Second Circuit – Sovereign immunity: Schansman v. Sberbank

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United States Court of Appeals for the Second Circuit

Sovereign immunity —  Commercial activity — Anti-Terrorism Act

Schansman v. Sberbank

22-3097-cv

Judges Walker, Cabranes, and Bianco

Background: The defendant appealed from a decision that denied its motion to dismiss on foreign sovereign immunity grounds. The plaintiffs are the surviving relatives of a decedent passenger who was killed when the plane was shot down over eastern Ukraine by a surface-to-air missile launched from territory controlled by the Russian Federation-backed Donetsk People’s Republic. The plaintiffs commenced claims alleging that the defendant knowingly provided material support to the DPR by facilitating money transfers from donors to the DPR via correspondent accounts in the United States, and that the material support proximately caused the downing of the plane.

Ruling: The Second Circuit affirmed. The court held that the defendant is presumptively immune but that the Foreign Sovereign Immunities Act’s commercial activity exception applies because the alleged claims are based upon quintessentially commercial activity that occurred in the U.S. The Second Circuit further held that the FSIA’s commercial activity exception applies equally to an action brought under the Anti-Terrorism Act.

Jay S. Auslander, of Wilk Auslander, for the defendant-appellant; Andrianna Kastanek, of Jenner & Block, for the plaintiffs-appellees.

Oral argument audio