June 22, 2021

Volume XI, Number 173


June 21, 2021

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Supreme Court Decides Opati v. Republic of Sudan

On May 18, 2020, the U.S. Supreme Court decided Opati v. Republic of Sudan, holding that plaintiffs who sue a foreign government under the state-sponsored-terrorism exception to the Foreign Sovereign Immunities Act can seek punitive damages for conduct that predated its enactment.

In 1998, al Qaeda operatives detonated bombs outside the U.S. Embassies in Kenya and Tanzania, killing hundreds and injuring thousands. A group of victims and affected family members sued the Republic of Sudan (Sudan) in federal district court under the then-recently-enacted state-sponsored-terrorism exception to the Foreign Sovereign Immunities Act (FSIA), alleging that Sudan provided shelter and support to al Qaeda in connection with the bombings.

At the time of the lawsuit, the FSIA precluded an award of punitive damages against a foreign government. Ten years later, in 2008, Congress amended the FSIA in several ways. It moved the state-sponsored-terrorism exception to a new section of the U.S. Code, which took it out of the statutory prohibition on punitive damages. Congress also created a new express federal cause of action for acts of terror, and provided that a plaintiff could recover punitive damages in such a lawsuit. And Congress provided that existing lawsuits that had been “adversely affected” on the ground that prior law failed to create a cause of action against the foreign government would be given effect “as if” they had been originally filed under the new statutory provision creating a federal cause of action. After those amendments, the plaintiffs amended their complaints to assert claims under the federal statute and to request punitive damages. The district court awarded punitive damages at trial, but the U.S. Court of Appeals for the District of Columbia Circuit reversed the award of punitive damages on the ground that Congress did not clearly authorize punitive damages when it amended the FSIA.

The Supreme Court reversed the D.C. Circuit and reinstated the punitive-damages award. The Court explained that the plain language of the 2008 amendments to the FSIA created a new federal cause of action that expressly allows claims for punitive damages, and also allowed plaintiffs who had existing lawsuits to invoke the new federal cause of action. That last part is important, because it specifically authorized a new claim (one that allowed for punitive damages) for conduct that occurred before the 2008 amendments. The Court concluded that Congress was “as clear as it could have been” that plaintiffs could seek and win punitive damages for conduct that predated the new federal cause of action.

The Court remanded the case to the D.C. Circuit to consider whether punitive damages are available for claims asserted against Sudan under state law, rather than the new federal cause of action.

Justice Gorsuch delivered the opinion of a unanimous Court. (Justice Kavanaugh took no part in the consideration or decision of the case.)

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 140



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Robert Gallup Products Liability Attorney Faegre Drinker

Robert Gallup solves product liability litigation challenges for clients in a variety of industries.

Before joining the firm, Robert served as a law clerk for the Honorable Chief Justice Lorie S. Gildea of the Minnesota Supreme Court. While in law school, he also served as a legal extern on the Court of Appeals for the 8th Circuit with the Honorable Diana E. Murphy.

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Chuck Webber Trial Attorney Faegre Drinker

Chuck Webber is a commercial trial and appellate lawyer. He has represented clients in trying and winning complex commercial cases involving medical devices, financial transactions, commercial contracts and business torts. He is a Fellow of the American College of Trial Lawyers, a Member of the American Board of Trial Advocates and a Fellow of the International Society of Barristers.

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