The insurance industry routinely attacks plaintiff’s lawyers for trying to win money for clients. But insurers are seldom shy about being a plaintiff to try to recover their own money, including for example seeking legislation to grease the skids for their claims. The zeal to recover money may pay off in the 9/11 litigation due to a recent 2d Circuit ruling on FSIA claims. Last week, a panel of 2d Circuit judges explicitly disagreed with a sibling panel and allowed FSIA claims arising from 9/11. AmLaw Daily has the story here. The gist is as follows:
"In his 2008 opinion in the Saudi case, Judge Jacobs concluded that, because terrorism falls under its own exception to the FSIA, "claims based on terrorism must be brought under the terrorism exception, and not under any other FSIA exception," or else the "terrorism exception would be drained of all force." That holding forced the 9/11 plaintiffs into a dead end, since only countries on the government’s list of state sponsors of terrorism can be sued under the terrorism exception, and Saudi Arabia isn’t on the list.
In last Monday’s per curiam decision, Second Circuit judges Amalya Kearse, Guido Calabresi, and Richard Wesley concluded that the 2008 panel’s view was unsupported by the text, history, and purpose of the FSIA. "We recognize that this holding is inconsistent with that reached by a different panel of our court," the court wrote. "That panel, however, was presented with sparse and one-sided argument on this point in the context of a very large and complex case that focused on other aspects of the FSIA. This opinion has been circulated to the members of that panel as well as all active judges on the Court, and we received no objection to our issuing this opinion."
Armed with the Afghanistan ruling, Carter said Cozen O’Connor may ask to have the plaintiffs’ suit against the dismissed Saudi entities reopened under Rule 60 of the Federal Rules of Civil Procedure, which permits the court to vacate a prior final judgment. And if that gambit doesn’t work, the decision could still bolster Cozen’s bid to bring a different group of Saudi or Saudi-affiliated defendants back into the case, Carter said. The Second Circuit recently certified for appeal the cases of 75 previously dismissed 9/11 defendants, including deep-pocketed charities and banks with apparent ties to the state. "It’s not over yet," Carter told us."
The possibilities here are interesting, and somewhat tie the insurance industry to one of its "arch-enemies," the Motley Rice plaintiff’s firm which is famous for its work in tobacco cases and asbestos litigation. The tie arises because Motley Rice has for years been pressing claims by victims against various persons and overseas governments and organizations, as described here and here. Insurance side efforts also were previously covered here and here.