CERTAIN UNDERWRITERS AT LLOYDS LONDON et al v. GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA et al

Filing 25

Memorandum in opposition to re 24 Supplemental MOTION to Dismiss filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Kalik, Tracy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
Certain Underwriters at Lloyds,
)
London, et al.,
)
Plaintiffs,
)
)
v.
)
Civil Action No. 06-cv-731 (GK)
)
Great Socialist People’s Libyan
)
Arab Jamahiriya, et al.,
)
)
Defendants. )
____________________________________)
)
Certain Underwriters at Lloyds
)
London, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 08-cv-504 (GK)
)
Socialist People’s Libyan Arab
)
Jamahirya, et al.
)
)
Defendants. )
____________________________________)

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ SUPPLEMENTAL MOTION TO
DISMISS

COME NOW the Plaintiffs, and hereby file their opposition to the Libyan Defendants’
Supplemental Motion to Dismiss. In support of said Opposition, the Plaintiffs state:
1. On July 31, 2008 Congress passed and on August 4, 2008 the President signed the Libyan
Claims Resolution Act (“LCRA”), Pub. L. No. 110-301 (2008). See Exhibit A attached
to Defendants’ Motion.

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2. On August 14, 2008, the United States and Libya entered into a Claims Settlement
Agreement. See Exhibit B attached to Libyan Defendants’ Motion.
3. The Claims Settlement Agreement encompasses
all pending suits…if such claim or suit is against Libya or its agencies or
instrumentalities, or against officials, employees or agents thereof (whether
such officials, employees or agents are sued in an official and/or personal
capacity) …and such claim or suit is brought by or on behalf of the [United
States’] nationals (including natural or juridical persons) or such suit is
brought on behalf of others (including natural or juridical persons); and such
claim or suit or suit arises from personal injury (whether physical or nonphysical, including emotional distress), death, or property loss caused by any
of the following acts occurring prior to June 30, 2006 (a) an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking or detention or other
terrorist act, or the provision of material support or resources for such an
act…..
Claims Settlement Agreement at Art. I. (emphasis added).
4. On October 31, 2008, the Secretary of State provided the Certification of receipt of funds
as required by the Claims Settlement Agreement and Section 5(a)(2) of the LCRA. The
President of the United States subsequently signed an Executive Order which espoused
and settled Plaintiffs’ claims against the Libyan Defendants pursuant to the Claims
Settlement Agreement in any pending suit in any court. See Exhibits C and D attached to
Defendants’ Motion.
5. Specifically, the Executive Order dictates in Section 1 that “[a]ll claims within the terms
of Article I of the Claims Settlement Agreement are settled.” This includes all claims of
United States nationals (Ex D. Executive Order 13,477 at §1(a)) and claims of foreign
nationals against the Libyan Defendants within the terms of Article I (Ex. D. Executive
Order 13,477 at §1(b))
6. Plaintiffs are the Certain Underwriters of insurers of the EgyptAir jetliner, seeking to
recover the amounts they expended to pay the property loss claims to reimburse the value

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of the destroyed airplane hull which was damaged in the hijacking of Egypt Air Flt 648,
and as the various companies comprising the group of Certain Underwriters, are both
U.S. Nationals and foreign nationals, their claims are encompassed by Art. I of the
Claims Settlement Agreement.
7. Plaintiffs have not, as of the date of the filing of this Opposition, been provided by the
Secretary of State with procedures relating to their pending claims against the Libyan
Defendants nor with an alternative forum for the pending claims of each of the Plaintiffs
and object to this Court dismissing Plaintiffs’ claims against the Libyan Defendants.
Plaintiffs particularly object to the dismissal of their claims against the Libyan
Defendants prior to the Secretary of State providing the Plaintiffs in these suits who are
United States nationals with the required alternative forum and procedures for applying
for compensation of their property loss claims against the Libyan Defendants, as required
by the Executive Order. See Exhibit D, Sec. 1(a)(iii).
8. Moreover, despite being encompassed in the Claims Settlement Agreement, the
Executive Order is deficient in that it does not state that any alternative forum for the
foreign-based (non-U.S.) insurers will be provided through which they may pursue their
property loss claims against the Libyan Defendants, which creates an issue of deprivation
of constitutional due process. (Ex. D., Compare Executive Order 13,477 at §1(a )(iii) and
Executive Order 13,477 at §1(b))
9. In addition, the State Department has provided no assurance or commitment that the
foreign-based insurers will be able to recover from the funds certified as having been
received and to the contrary has indicated to Plaintiffs’ counsel that their valid claims will
not be paid pursuant to the Claims Settlement Agreement.

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10. The Foreign Sovereign Immunity Act, 28 U.S.C. §1605A, does not restrict the class of
potential plaintiffs to only United States nationals. It allows a private right of action for
the insured property loss that was a foreseeable result of aircraft sabotage, such as the
hijacking of Egypt Air Flt. 648. See 28 U.S.C. §1605A(d).
11. The ability of third-party foreign insurers to bring claims pursuant to the FSIA was
recently affirmed by the D.C. Circuit in La Reunion Aerienne v. Socialist People’s Libyan
Arab Jamahiriya. 533 F.3d 837 (D.C. Cir. 2008).
12. Thus, any exclusion of the foreign-based insurers from recovery is arbitrary, capricious,
unconstitutional and a denial of the due process rights of the Plaintiffs. This is especially
true as the State Department has already paid from the funds received $162 million ($2
million apiece) to the families of the 81 foreign victims of the Pan Am 103 bombing. By
paying the Pan Am 103 foreign victims, but denying compensation to the foreign-based
insurers of Egypt Air Flt 648, the State Department is clearly acting arbitrarily and
capriciously and is on its face applying arbitrary guidelines for its decision making
process.
13. Plaintiffs, accordingly, file this opposition to Libyan Defendants’ Motion to Dismiss, as
no alternative forum for the adjudication of their claims has been provided. Should no
alternative forum be provided, a serious constitutional question on behalf of these
Plaintiffs will be raised as to whether the United States may extinguish Plaintiffs
cognizable FSIA claims without providing an alternative forum to pursue their rights to
recover for the injuries they sustained from the Libyan Defendants. Dames & Moore v.
Regan, Secretary of Treasury, 453 U.S. 654 (1981).

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14. Plaintiffs do not concede that this Court has been divested of jurisdiction as argued by
the Libyan Defendants. This Court should request from the Department of State
clarification and assurance that the settlement reached is fair, proper and constitutionally
permissible, given the valid claims of these Plaintiffs.
15. If this Court should determine that it has been so divested of jurisdiction as to the
Plaintiffs’ claims against the Libyan Defendants as argued by the Libyan Defendants and
grant Libyan Defendants’ Motion to Dismiss, and the United States does not provide an
alternative forum to adjudicate Plaintiffs’ claims, and the Court does not receive
assurances that the Plaintiffs’ claims will be properly heard in an alternative forum,
Plaintiffs do not waive and expressly reserve all their rights to assert any and all claims
against the United States and do not waive any rights or claims which they may have
against the United States Government or others responsible to the Plaintiffs.

WHEREFORE, for the reasons set forth above, Plaintiffs’ are opposed to the dismissal of
their claims against the Libyan Defendants, as requested by the Libyan Defendants.

Dated: December 1, 2008

Respectfully Submitted,
HEIDEMAN NUDELMAN & KALIK, PC
1146 19th Street NW, Fifth Floor
Washington, DC 20036
Telephone: [phone]
Facsimile: 202.463.2999
By: _/s/Richard D. Heideman________
_/s/ Tracy Reichman Kalik_________
Richard D. Heideman (No. 377462)
Noel J. Nudelman (No. 449969)
Tracy Reichman Kalik (No. 462055)

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Steven R. Perles (No. 326975)
Edward MacAllister (No. 494558)
THE PERLES LAW FIRM, PC
1146 19th Street, NW, 5th Floor
Washington, DC 20036
Telephone: [phone]
Telefax: 202-955-3806
Counsel for Plaintiffs

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