09‐4483‐cv
Chowdhury v. Worldtel Bangladesh Holding, Ltd.
In the
United States Court of Appeals
For the Second Circuit
________
No. 09‐4483‐cv
NAYEEM MEHTAB CHOWDHURY,
Plaintiff‐Appellee,
v.
WORLDTEL BANGLADESH HOLDING, LTD., AMJAD HOSSAIN KHAN,
Defendants‐Appellants.
________
Appeal from the United States District Court
for the Eastern District of New York.
No. 08‐cv‐1659 ― Brian M. Cogan, Judge.
________
AUGUST TERM 2010
ARGUED: FEBRUARY 15, 2011
DECIDED: FEBRUARY 10, 2014
________
Before: CABRANES, POOLER and CHIN, Circuit Judges.
________
1
Defendants in this action, an individual corporate officer and
an affiliated company, appeal from a judgment entered against them
by the United States District Court for the Eastern District of New
York (Brian M. Cogan, Judge) following a trial and jury verdict.
Plaintiff, a citizen of Bangladesh and resident of the United States,
instituted this suit alleging that defendants had directed a
paramilitary unit of the Bangladeshi national police to detain and
torture him in order to force him to turn over his ownership interest
in a telecommunications company. The jury found defendants liable
for violations of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and
the Torture Victim Protection Act of 1991 (“TVPA”), 106 Stat. 73,
note following 28 U.S.C. § 1350.
Upon review, we conclude that: (1) pursuant to the Supreme
Court’s recent decision in Kiobel v. Royal Dutch Petroleum Co., 133 S.
Ct. 1659 (2013), the conduct giving rise to this action occurred within
the territory of another sovereign and, therefore, cannot form the
basis for an action brought under the ATS; (2) the general verdict
rule does not require that the judgment against defendant Khan be
vacated with respect to plaintiff’s TVPA claim since, on the facts of
this case, the jury necessarily found Khan liable under that statute in
returning a general verdict form; (3) plaintiff’s TVPA claim was
based on actionable torture, and was permissibly predicated on
agency theories of liability; and (4) the District Court did not err in
allowing plaintiff to testify at trial regarding certain statements
made to him by foreign police agents while he was in custody in
Bangladesh.
Accordingly, we REVERSE the judgment insofar as its rests
on the claim brought under the Alien Tort Statute, we AFFIRM the
judgment insofar as it rests on the claim under the Torture Victim
Protection Act, and we REMAND the cause to the District Court for
2
such further proceedings as may be appropriate in the
circumstances, including any appropriate adjustment for interest.
Judge Pooler joins in the judgment and opinion of the Court
and files a separate opinion.
________
J. ERIC CHARLTON (Angela C. Winfield, on the
brief), Hiscock & Barclay, LLP, Syracuse, NY, for
Defendants‐Appellants.
EVAN SARZIN (Karen E. Goldman, on the brief),
Law Offices of Evan Sarzin, P.C., New York, NY,
for Plaintiff‐Appellee.
________
JOSÉ A. CABRANES, Circuit Judge:
Defendants in this action, an individual corporate officer and
an affiliated company, appeal from a judgment entered against them
by the United States District Court for the Eastern District of New
York (Brian M. Cogan, Judge) following a trial and jury verdict.
Defendants were found liable for torture under the Alien Tort
Statute (“ATS”), 28 U.S.C. § 1350, and the Torture Victim Protection
Act of 1991 (“TVPA”), 106 Stat. 73, note following 28 U.S.C. § 1350.
For the reasons that follow, we reverse the judgment insofar as its
rests on the claim brought under the Alien Tort Statute; we affirm
the judgment insofar as it rests on the claim under the Torture
Victim Protection Act; and we remand the cause to the District Court
3
for such further proceedings as may be appropriate in the
circumstances, including any appropriate adjustment for interest.1
I. BACKGROUND
A. Factual Background
Plaintiff‐appellee Nayeem Mehtab Chowdhury
(“Chowdhury” or “plaintiff”), who is the managing director of
WorldTel Bangladesh Ltd. (“WorldTel Ltd”) and a stockholder and
officer of World Communications Investments Inc. (“WCII”),
instituted this suit against his former business associate, defendant‐
appellant Amjad Hossain Khan (“Khan”) and one of Khan’s
businesses, Worldtel Bangladesh Holding Ltd. (“WBH”). At all
times relevant to this appeal, Chowdhury and Khan were citizens of
Bangladesh with legal permanent resident (“LPR”) status in the
United States. Prior to the events giving rise to the current dispute,
two of their businesses—WBH and WCII—jointly controlled a third
entity, World Bangladesh Ltd (“WBL”), with both Chowdhury and
Khan serving as members on its board of directors. At trial,
Chowdhury, who was WBL’s managing director, testified that WBL
had a 25‐year license to provide a full range of telecommunications
services in Bangladesh, with projected five‐year profits estimated to
be “in excess of a hundred million dollars.” Joint App’x 87.
In 2005, at Chowdhury’s initiative, WBL issued new shares
and took out additional debt, with the effect of reducing the interest
that WBH (controlled by Khan) had in WBL, from fifty percent to
less than one percent. Khan claims that Chowdhury employed
improper corporate procedures and forged various signatures,
1 As a general matter, “[i]nterest shall be allowed on any money judgment in a civil
case recovered in a district court . . . calculated from the date of the entry of the judgment
. . . .” 28 U.S.C. § 1961(a).
4
including Khan’s, in order to effect this change. Khan thereafter filed
several official complaints against Chowdhury in Bangladesh,
petitioning over 17 agencies and divisions of the Bangladeshi
government for an official investigation of Chowdhury’s actions.
Khan first complained to the Chief Metropolitan Magistrate in
Bangladesh and to the Criminal Investigative Department of the
Ministry of Home Affairs, each of which declined to pursue Khan’s
complaint after an independent investigation.2 Khan next sought
redress in 2007 with the Directorate General of Forces Intelligence
(“DGFI”), an intelligence agency connected to the military.
Following this complaint, in the summer of 2007, Chowdhury was
summoned before the DGFI—with Khan present—and detained for
53 days, without charges and without access to anyone outside his
room of confinement. Chowdhury testified at trial that he was
released without any violence against his person during this period
of detention by the DGFI.
However, Chowdhury also testified that on November 5,
2007, the Rapid Action Battalion (“RAB”), a paramilitary unit of the
Bangladesh National Police to which Khan had also complained,
arrested Chowdhury and held him, without any charges, until
November 12, 2007. At trial, Chowdhury stated that during this
second period of confinement, from November 5 to 12, 2007, the
RAB tortured him, at Khan’s direction, in order to force him to turn
over his business interests in Bangladesh to Khan. Chowdhury
further stated that, during his confinement by the RAB, he was
blindfolded and handcuffed before electric shocks were applied to
his thigh and arms through the use of an unidentified prodding
device. Chowdhury testified that he was then lifted off his feet and
Khan testified that he personally met with Bangladesh’s Secretary of Home Affairs
2
and complained to anybody he could think of in the government about Chowdhury’s
conduct.
5
suspended from the prison door by his handcuffs. He also stated in
trial testimony that his interrogators told him they were acting at the
behest of “Bahdi[, which is] a Bangla word for [Khan].” Joint App’x
137.
Chowdhury testified that he was subsequently transferred out
of the RAB’s custody and into the custody of the Dhaka Central Jail
for medical treatment stemming from injuries sustained during the
RAB’s interrogation. Chowdhury also testified that, after the
medical treatment, he was held for a further five months in jail
before being released without any lasting medical symptoms aside
from continuing nightmares.
Chowdhury’s parents testified that they, and other family
members, met with Khan during Chowdhury’s detention by the
RAB. The circumstances of that meeting were disputed at trial.
Chowdhury’s parents stated that Khan asked to see them and told
them, upon meeting, that: (1) Chowdhury had been subjected to
electric shock interrogation; (2) Khan was present for the
interrogation; and (3) Khan could make the interrogations stop if
Chowdhury agreed to transfer his business interests to Khan and
leave Bangladesh entirely. Chowdhury’s parents testified that they
refused to agree to these alleged demands. In contrast, Khan
testified that Chowdhury’s parents requested the meeting and
subsequently asked him to withdraw the charges he had filed with
Bangladesh authorities against Chowdhury—which he refused to
do. Khan also flatly denied seeing Chowdhury during his detention,
having any influence over his treatment in detention, or offering to
release Chowdhury if he agreed to transfer his business interests to
Khan. There is no dispute that Chowdhury refused to transfer his
interest in WBL and remains its managing director.
6
B. Procedural History
On April 22, 2008, Chowdhury, WorldTel Ltd, and WCII
(jointly, “plaintiffs”) filed a complaint against Khan and WBH
(jointly, “defendants”), alleging that Khan subjected Chowdhury to
torture. On this basis, plaintiffs brought claims under the Alien Tort
Statute (“ATS”), 28 U.S.C. § 1350, and the Torture Victim Protection
Act of 1991 (“TVPA”), 106 Stat. 73, note following 28 U.S.C. § 1350,
seeking monetary damages, punitive damages, and injunctive relief.
In pressing these claims, plaintiffs alleged that defendants directly
committed violations cognizable under the two statutes, as well as
aided and abetted Bangladesh authorities in violations of the same.
Defendants moved, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss the complaint in its entirety for failure to state a
claim upon which relief can be granted. Upon review, the District
Court dismissed with prejudice: (1) all claims by the plaintiff
corporations; (2) Chowdhury’s aiding and abetting claims under
both the ATS and TVPA; and (3) Chowdhury’s TVPA claim against
WBH. Chowdhury v. WorldTel Bangladesh Holding, Ltd., 588 F. Supp.
2d 375, 388 (E.D.N.Y. 2008). The District Court dismissed
Chowdhury’s remaining claims—those alleging that his
interrogation by the RAB constituted direct violations by Khan of
both certain customary international law norms (actionable in
federal court under the ATS) and of the TVPA—and granted
Chowdhury leave to replead. Id.
On January 5, 2009, Chowdhury, as the sole plaintiff, filed an
amended complaint alleging only that the defendants directly3
engaged in conduct prohibited, or otherwise made actionable, by the
ATS and TVPA. Specifically, Chowdhury alleged that Khan caused
Chowdhury did not re‐file two claims alleging that defendants had aided and
3
abetted violations under the TVPA and ATS.
7
the RAB to torture him through “electrical shocks and painful
shackled standing” and offered to prevent future torture in
exchange for control over WBL.
The parties then conducted discovery, which concluded on
May 5, 2009. The case proceeded to trial on August 3, 2009. The
jury, on August 4, 2009, returned a general verdict form in favor of
Chowdhury in which it concluded that Khan and WBH were liable
for torture. It found Khan and WBH liable for $1.5 million in
compensatory damages and Khan alone liable for $250,000 in
punitive damages. The jury further determined that WBH should
not be held liable for punitive damages.
Following the jury’s verdict, defendants brought a motion
pursuant to Federal Rules of Civil Procedure 50(b) and 59(a) seeking
judgment as a matter of law, or in the alternative, a new trial. The
District Court denied the motion, concluding that the evidence at
trial “was not only legally sufficient to present the case to the jury,
but one sided in plaintiff’s favor.” Chowdhury v. Worldtel Bangladesh
Holding, Ltd., No. 08 Civ. 1659(BMC), 2009 WL 9053203, at *1
(E.D.N.Y. Sept. 16, 2009). The District Court also noted that the jury
could have reasonably determined from testimony not only that
Khan had knowledge that Chowdhury was being tortured, but also
that the RAB was acting “at the behest of [Khan]” and that Khan
attended the torture.4 Id. Overall, the District Court concluded that
under a theory of agency or conspiracy, “[t]he facts set forth . . . were
more than sufficient to permit the jury to infer that defendant had a
deal with the torturers to extract business concessions from
[Chowdhury] by doing what they do best.” Id.
4 The District Court noted, for instance, that evidence of an email sent from Khan to
one of Chowdhury’s associates, after the latter’s arrest by the RAB, was “particular[ly]
damning,” and that Khan’s explanation of the message while testifying before the jury
“was somewhat shocking.” Chowdhury, 2009 WL 9053203, at *1.
8
In considering the motion, the District Court also rejected
multiple evidentiary challenges by defendants. As relevant here,
defendants contended that Chowdhury should not have been
allowed to testify regarding statements by RAB agents that they
were torturing him at Khan’s direction. Id. at *2. In dismissing this
challenge, the District Court concluded that the statement was
properly admitted as the statement of an agent or coconspirator
because “the jury could reasonably infer that the reason the RAB let
[Chowdhury] know why they were torturing him was to induce
surrender which would further the aims of the agency and
conspiracy.” Id.
The District Court entered judgment in favor of Chowdhury
on August 6, 2009, and denied defendants’ motion for judgment as a
matter of law on September 16, 2009.
This appeal followed. After oral argument on February 15,
2011, our resolution of the appeal was held in abeyance pending the
Supreme Court’s review of another ATS case from this Circuit, Kiobel
v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). On October
17, 2011, the Supreme Court granted the petition for a writ of
certiorari in Kiobel to consider whether the law of nations recognizes
corporate liability. See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.
1659, 1663 (2013) (“Kiobel”). Following oral argument on February
28, 2012, the Supreme Court, on March 5, 2012, restored the case to
its calendar for reargument on the additional question of “[w]hether
and under what circumstances the [ATS] allows courts to recognize
a cause of action for violations of the law of nations occurring within
the territory of a sovereign other than the United States.” Kiobel v.
Royal Dutch Petroleum, 132 S. Ct. 1738 (2012) (order directing
supplemental briefing and reargument). Reargument was held on
October 1, 2012, and on April 17, 2013, the Supreme Court affirmed
the judgment of the Court of Appeals, but on different grounds,
9
holding that “the presumption against extraterritoriality applies to
claims under the ATS,” and that “relief [under the ATS] for
violations of the law of nations occurring outside the United States is
barred.” 133 S. Ct. at 1669. The Kiobel action having concluded, we
directed the parties in the instant appeal to submit supplemental
briefing on the impact, if any, of the Supreme Court’s decision in
Kiobel. We now address their arguments.
II. DISCUSSION
On appeal, defendants raise four principal arguments: (1)
Chowdhury’s ATS claims against both Khan and WBH must be
dismissed under the Supreme Court’s holding in Kiobel due to their
extraterritorial nature; (2) under the general verdict rule,
Chowdhury’s TVPA claim against Khan must also be dismissed; (3)
Chowdhury’s TVPA claim ought to be dismissed because the
underlying conduct was extraterritorial and did not constitute
actionable torture, and because the claim was predicated on
improper agency theories of liability; and (4) Chowdhury’s
testimony regarding the RAB’s statements constituted hearsay
under Federal Rule of Evidence 801 and was improperly admitted
because it was unfairly prejudicial. We consider these arguments in
turn.
A. Standards of Review
We review de novo a denial of a motion for judgment as a
matter of law. See Highland Capital Mgmt. LP v. Schneider, 607 F.3d
322, 326 (2d Cir. 2010). “In undertaking this review, we view the
evidence in the light most favorable to the party against which the
motion was made . . . [and] draw[ ] all reasonable inferences
regarding the weight of the evidence and the credibility of witnesses
in favor of the non‐movant . . . .” Id. (citations and internal quotation
10
marks omitted). We review a district court’s denial of a Rule 59
motion for a new trial for abuse of discretion. See United States v.
Rigas, 583 F.3d 108, 125 (2d Cir. 2009); see also In re Sims, 534 F.3d 117,
132 (2d Cir. 2008) (explaining that the term of art “abuse of
discretion” includes errors of law, clearly erroneous assessments of
the evidence, or decisions “that cannot be located within the range
of permissible decisions” (internal quotation marks omitted)). We
explain the relevant standard of review regarding Khan’s challenge
to the admission of out‐of‐court statements in our discussion of that
issue.
B. ATS Claims
Defendants first argue that the judgment entered against them
pursuant to the ATS must be reversed in light of the Supreme
Court’s recent ruling in Kiobel. The unique history and purpose of
the ATS has been described at length by the Supreme Court, by the
lower courts, and by scholars, and need not be reiterated here.5 The
ATS provides “original jurisdiction” in the federal district courts
over “any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States.” 28
U.S.C. § 1350. In Sosa v. Alvarez‐Machain, 542 U.S. 692, 712 (2004)
(“Sosa”), the Supreme Court recognized that “the ATS is a
jurisdictional statute creating no new causes of action,” but that it
indicates Congressional intent that “the common law would provide
a cause of action for [a] modest number of international law
See, e.g., Kiobel, 133 S. Ct. at 1663; Sosa v. Alvarez‐Machain, 542 U.S. 692, 712 (2004);
5
Kiobel, 621 F.3d at 115; Filartiga v. Pena‐Irala, 630 F.2d 876, 887 (2d Cir. 1980); IIT v. Vencap,
Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.) (“This old but little used section is a
kind of legal Lohengrin . . . no one seems to know whence it came.”), abrogated on other
grounds by Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (2010); Anthony J. Bellia Jr. &
Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. CHI. L. REV. 445
(2011); Curtis A. Bradley, The Alien Tort Statute and Article III, 42 VA J. INT’L L. 587 (2002).
11
violations” based on a “norm of international character accepted by
the civilized world and defined with a specificity comparable to the
features of the 18th‐century paradigms” familiar to those who
enacted the statute. Sosa, 542 U.S. at 724‐25; see also id. at 731 n.19
(explaining that the ATS, although a grant of jurisdiction, “carries
with it an opportunity to develop common law”).
While this appeal was pending, the Supreme Court in Kiobel
further clarified the scope of the ATS by holding that “the
presumption against extraterritoriality applies to claims under the
ATS,” and concluding that “relief [under the ATS] for violations of
the law of nations occurring outside the United States is barred.”
133 S. Ct. at 1669 (citing Morrison v. Nat’l Australia Bank Ltd., 130 S.
Ct. 2869, 2883 (2010)). Writing for the Court, the Chief Justice further
noted that “all the relevant conduct [in Kiobel] took place outside the
United States,” and therefore the plaintiffs’ “case seeking relief for
violations of the law of nations occurring outside the United States is
barred.” Id.
Applying the holding of Kiobel to the facts of this case, we
conclude that, pursuant to the rule enunciated by the Supreme
Court, there is no legally sufficient basis to support the jury’s verdict
with respect to plaintiff’s claim under the ATS. As described in Part
I, ante, “all the relevant conduct” set forth in plaintiff’s complaint
occurred in Bangladesh, Kiobel, 133 S. Ct. at 1669, and therefore
plaintiff’s claim brought under the ATS is “barred,”6 id; see also
Plaintiff’s claims under the ATS against WBH encounter a second obstacle as well:
6
the Supreme Court’s decision in Kiobel did not disturb the precedent of this Circuit, see
Kiobel, 621 F.3d at 145, aff’d on other grounds by 133 S. Ct. at 1669, that corporate liability is
not presently recognized under customary international law and thus is not currently
actionable under the ATS. See Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011) (“‘A decision
of a panel of this Court is binding unless and until it is overruled by the Court en banc or
by the Supreme Court.’” (quoting S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d
80, 83 (2d Cir. 1998)). We also note that Chowdhury’s amended complaint did not state a
12
Balintulo v. Daimler AG, 727 F.3d 174, 189‐90 (2d Cir. 2013) (“[C]laims
under the ATS cannot be brought for violations of the law of nations
occurring within the territory of a sovereign other than the United
States . . . . [I]f all the relevant conduct occurred abroad, that is
simply the end of the matter under Kiobel.”). Accordingly, the
judgment must be reversed insofar as it rests on plaintiff’s claims
under the ATS.
C. TVPA Claim
i. General Verdict Rule
Second, defendants argue that it is impossible to know
whether the jury found in favor of plaintiff on the basis of an ATS or
TVPA theory of liability. As a consequence, defendants contend, if
the ATS claim must be vacated then the judgment must be vacated
in its entirety and the cause remanded for a new trial.
The Supreme Court decades ago announced the so‐called
general verdict rule, that “a new trial will be required” where “there
is no way to know that [an] invalid claim . . . . was not the sole basis
for [a] verdict.” United N.Y. & N.J. Sandy Hook Pilots Ass’n v. Halecki,
358 U.S. 613, 619 (1959); see also Sunkist Growers, Inc. v. Winckler &
Smith Citrus Prods. Co., 370 U.S. 19, 30 (1962); Tire Eng’g &
Distribution, LLC v. Shandong Linglong Rubber Co., 682 F.3d 292,
313 (4th Cir. 2012) (“The Supreme Court has recognized that when a
jury issues a general verdict on multiple theories of liability and one
of those theories is overturned on appeal, the entire verdict falls.”).
TVPA claim against WBH. See Mohamad v. Palestinian Authority, 132 S. Ct. 1702,
1710 (2012) (holding that “Congress did not extend liability to organizations” under the
TVPA).
13
Numerous subsequent courts, however, “have engrafted a . . .
harmless error gloss onto the basic principle.” Muth v. Ford Motor
Co., 461 F.3d 557, 564 (5th Cir. 2006). So it is that we have recognized,
in this context, that “[h]armless error arises when we are sufficiently
confident that the verdict was not influenced by an error in the jury
charge.” Bruneau v. S. Kortright Cent. Sch. Dist., 163 F.3d 749, 759‐760
(2d Cir. 1998), abrogated on other grounds by Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246 (2009); see also Tire Eng’g & Distribution, 682
F.3d at 314; Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 30 (1st Cir.
2004) (“[W]e have generously applied the harmless error concept to
rescue verdicts where we could be reasonably sure that the jury in fact
relied upon a theory with adequate evidentiary support.”).
Applying a harmless error analysis to the facts of the instant
case, we have no difficulty in concluding, as we discuss below, that
there was indeed adequate evidentiary support for a jury to find the
defendants liable for torture under the TVPA. Under the
straightforward circumstances of this case, plaintiff’s claim brought
under the ATS and his claim under the TVPA both stemmed from
the same alleged acts of torture, and Khan can point to no
circumstances in which the jury could have found him liable under
the ATS but not the TVPA.
ii. Other Challenges to the TVPA Claim: Extraterritoriality,
Torture, and Agency
a. Extraterritoriality
Defendant Khan also raises other challenges to the validity of
judgment entered against him under plaintiff’s TVPA claim. All of
his arguments lack merit.
14
First, Khan asserts that the conduct underlying the TVPA
claim here “do[es] not ‘touch and concern’ the United States,”
Appellant’s Supp. Letter Br. 4 (quoting Kiobel, 133 S. Ct. at 1669), and
we must therefore exercise a “‘vigilant door keeping’ function,” id.
(quoting Sosa, 542 U.S. at 732‐33), to bar it. We find no support in
Kiobel or any other authority for the proposition that the territorial
constraints on common‐law causes of action under the ATS apply to
the statutory cause of action created by the TVPA. Rather, we must
conduct a separate statutory analysis with respect to the TVPA to
determine whether that statute—not the ATS—“‘gives . . . clear
indication of an extraterritorial application.’” Kiobel, 133 S. Ct. at
1664 (quoting Morrison, 130 S. Ct. at 2878). Under this separate
analysis, we conclude that the TVPA, unlike the ATS, has
extraterritorial application.
Our analysis begins with the text of the statute. Congress
created civil liability in the TVPA, inter alia, for torture and
extrajudicial killing carried out by an individual with “actual or
apparent authority, or color of law, of any foreign nation.” TVPA
§ 2(a) (emphasis supplied). Although this language could
conceivably refer to conduct occurring within the United States, the
provision is more naturally understood to address primarily
conduct occurring in the territory of foreign sovereigns.7 The
legislative history of the TVPA unambiguously supports that
conclusion. See S. Rep. No. 102–249, p. 3‐4 (1991) (“A state that
practices torture and summary execution is not one that adheres to
the rule of law. Consequently, the Torture Victim Protection Act
(TVPA) is designed to respond to this situation by providing a civil
7 Justice Kennedy—one of the five Justices who joined the Kiobel majority opinion—
explicitly endorsed the extraterritorial reach of the TVPA in his concurring opinion in
Kiobel, noting that the TVPA addresses “human rights abuses committed abroad.” Kiobel,
133 S. Ct. at 1669 (Kennedy, J., concurring) (emphasis added).
15
cause of action in U.S. courts for torture committed abroad.”); H.R.
Rep. No. 102–367, pt. 1, p. 4 (1991) (noting Judge Bork’s skepticism
in Tel‐Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), as to
whether “victims of torture committed in foreign nations” could
bring a cause of action under the ATS absent an explicit grant of a
cause of action and stating that the “TVPA would provide such a
grant”). Thus, we find no bar on the basis of extraterritoriality to
Chowdhury’s TVPA claim.8
b. Torture
Second, Khan argues that the facts presented do not constitute
torture under the TVPA, because not all police brutality is actionable
under the statute. It is clearly true, of course, that not all conduct
falling under the journalistic and political rubric of “police
brutality,” whether here or abroad, can be described as “torture,”
but a review of the particular facts of this case persuades us that the
jury could have properly found the conduct presented to constitute
torture under the TVPA. The TVPA defines torture as
any act, directed against an individual in the
offender’s custody or physical control, by which severe
pain or suffering (other than pain or suffering arising
only from or inherent in, or incidental to, lawful
sanctions), whether physical or mental, is intentionally
inflicted on that individual for such purposes as
Although the parties do not raise the issue, we note that our affirmance of plaintiff’s
8
TVPA claim here necessarily recognizes that aliens—not just American citizens—may
bring suit under the TVPA, a conclusion that we have relied upon, but not made explicit,
in prior decisions. See Arar v. Ashcroft, 532 F.3d 157, 176 n.13 (2d Cir. 2008) (observing
“that past holdings of our Court, as well as those of our sister courts of appeals, strongly
suggest that TVPA actions may in fact be brought by non‐U.S. citizens,” and collecting
authorities), vacated and superseded, on other grounds, on rehearing en banc, 585 F.3d 559,
568 (2d Cir. 2009).
16
obtaining from that individual or a third person
information or a confession, punishing that individual
for an act that individual or a third person has
committed or is suspected of having committed,
intimidating or coercing that individual or a third
person, or for any reason based on discrimination of
any kind.
TVPA § 3(b)(1). While “torture [under this definition] does not
automatically result whenever individuals in official custody are
subjected even to direct physical assault,” Price v. Socialist People’s
Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002), we conclude
that the term “torture” can apply to powerful electric shocks
administered to the body, when the fact‐finder determines that the
shocks are sufficiently severe. This conclusion is bolstered by the
numerous courts of appeals that have referred to electric shocks as
an instrument of torture. See, e.g., Jean‐Pierre v. U.S. Attorney General,
500 F.3d 1315, 1324 n.6 (11th Cir. 2007) (noting that electric shock can
constitute torture within the meaning of the 1984 United Nations
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S.
Treaty Doc. No. 100‐20, 1465 U.N.T.S. 85, the multilateral
international convention upon which the TVPA was based); see also
Cherichel v. Holder, 591 F.3d 1002, 1009, n.11 (8th Cir. 2010) (electric
shock may rise to the level of torture); Abdel‐Rahman v. Gonzales, 493
F.3d 444, 448 (4th Cir. 2007) (same); Lhanzom v. Gonzales, 430 F.3d
833, 848 (7th Cir. 2005) (same); United States v. Webster, 392 F.3d 787,
794 (5th Cir. 2004) (same); Price, 294 F.3d at 92‐93; Zubeda v. Ashcroft,
333 F.3d 463, 472 (3d Cir. 2003) (same).
Additionally, the TVPA contemplates the “purposes” for
which torture might be undertaken by the perpetrator, and
specifically lists “intimidating or coercing” the victim among them.
17
TVPA § 3(b)(1). Here, defendants subjected Chowdhury to electric
shocks for the distinct purpose of coercing him to relinquish his
business interests to Khan.
In this case, moreover, the District Court took particular care
to instruct the jury on the definition of torture in a manner consistent
with the one provided by the TVPA, stating that “[t]he severity
requirement is crucial in determining whether conduct is torture”
and that “an act must be a deliberate and calculated act of an
extremely cruel and inhuman nature specifically intended to inflict
excruciating and agonizing physical or mental pain or suffering” in
order to constitute torture.9 Joint App’x 213. Accordingly, we find
that plaintiff’s allegations of being subject to electric shock while
detained by the RAB were properly actionable as torture under the
TVPA.
c. Agency
Third, Khan claims that the jury’s verdict was predicated on
improper agency theories of liability, arguing that any brutality by
RAB agents was not attributable to him. We disagree. The weight of
authority makes clear that agency theories of liability are available in
the context of a TVPA claim.
For a claim of torture to be actionable under the TVPA, a
plaintiff must demonstrate, inter alia, that a defendant acted “under
actual or apparent authority, or color of law, of any foreign nation.”
TVPA § 2(a). To determine whether a defendant acted under color of
foreign law, we look to “principles of agency law and to
jurisprudence under 42 U.S.C. § 1983.” Kadic v. Karadzic, 70 F.3d 232,
245 (2d Cir. 1995). Under those principles, “[f]or purposes of the
Indeed, the District Court further instructed the jury, properly, that not all physical
9
assaults, instances of police brutality, or excessive force rise to the level of torture.
18
TVPA, an individual acts under color of law . . . when he acts
together with state officials or with significant state aid.” Khulumani
v. Barclay Nat. Bank Ltd., 504 F.3d 254, 260 (2d Cir. 2007) (per curiam)
(internal quotation marks omitted), aff’d for want of a quorum sub nom.
Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008); Kadic, 70 F.3d
at 245 (same); cf. Arar, 585 F.3d at 567‐568 (“[T]o state a claim under
the TVPA, [plaintiff] must adequately allege that the defendants
possessed power under [foreign] law, and that the offending actions
. . . derived from an exercise of that power, or that defendants could
not have undertaken their culpable actions absent such power.”).
Khan, who was found to have conspired with state authorities in
Bangladesh, thus clearly acted under color of law within the
meaning of the TVPA.
Agency law, however, does not simply apply to the question
whether a defendant acts under color of law; it also can provide a
theory of tort liability if a defendant did not personally torture the
victim. As the Supreme Court recently explained in Mohamad v.
Palestinian Authority, 132 S. Ct. 1702 (2012), “Congress is understood
to legislate against a background of common‐law adjudicatory
principles,” id. at 1709 (quotation marks omitted), and therefore “the
TVPA contemplates liability against officers who do not personally
execute the torture or extrajudicial killing,” id. (citing Chavez v.
Carranza, 559 F.3d 486 (6th Cir. 2009)).
Congress has not, in other words, “specified” any “intent”
that traditional agency principles should not apply under the TVPA.
Meyer v. Holley, 537 U.S. 280, 287 (2003); see also S. Rep. No. 102‐249,
at 9 (1991) (noting that “responsibility for torture . . . extends beyond
the person or persons who actually committed those acts”); Aldana v.
Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir.
2005) (holding that “the [TVPA] reaches those who ordered, abetted,
or assisted in the wrongful act”). Accordingly, an individual can be
19
liable for “subject[ing]” the victim to torture even if his agent
administers the torture,10 see TVPA § 2(a)(1), and the District Court
did not err in permitting agency theories of liability to be submitted
to the jury.11
D. Admission of Out‐of‐Court Statements
Finally, Khan argues that the District Court erred in allowing
Chowdhury to testify about statements made by RAB agents while
he was in their custody. The District Court admitted these
statements as statements of an agent or coconspirator pursuant to
The District Court dismissed the aiding‐and‐abetting claim against Khan, and
10
therefore we need not address whether the TVPA recognizes that theory of liability—an
“ancient criminal law doctrine” that is generally presumed not to apply in civil suits. See
Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181‐82
(1994); In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 118, 123 (2d Cir. 2013).
Khan raises a number of claims regarding the specific agency theories upon which
11
the District Court instructed the jury, all of which lack merit. First, Khan claims that
“there was no evidence of an agreement” between him and members of the RAB.
Appellants’ Br. 15. Having conducted a review of the record, we identify no support for
this argument, and therefore reject it. Second, Khan argues that a ratification theory of
agency can be used “only with respect to a parent corporation’s liability for a subsidiary’s
acts.” Appellants’ Br. 18. We perceive no basis in tort law or agency law for Khan’s
argument, see, e.g., Restatement (Third) of Agency § 7.04 (outlining the bases for liability
on a ratification theory of agency), and further determine that the ratification theory of
agency was amply supported by the record evidence in this case. Finally, Khan raises a
perplexing claim that the District Court’s instruction on willful participation liability was
“essentially the same as [an instruction] on aiding and abetting,” and since the District
Court had already dismissed the aiding and abetting claims, it should not have
instructed the jury on willful participation. Appellants’ Br. 21. Whether someone is a
“willful participant in joint action with the State or its agents,” however, is the standard
for determining whether a private actor acts under color of law, see Dennis v. Sparks, 449
U.S. 24, 27 (1980), and is plainly not, as Khan asserts, merely an alternative instruction on
an aiding‐and‐abetting theory. Accordingly, we conclude that Khan’s claims regarding
the agency theories upon which the District Court instructed the jury all lack merit.
20
Federal Rule of Evidence 801(d)(2).12 We review a district court’s
evidentiary rulings for “abuse of discretion.” United States v. Al
Kassar, 660 F.3d 108, 123 (2d Cir. 2011); In re Sims, 534 F.3d 117, 132
(2d Cir. 2008). Whether certain evidence is hearsay is generally a
question of law that is reviewed de novo, see United States v. Ferguson,
676 F.3d 260, 285 (2d Cir. 2011), but the admission of evidence under
Rule 801(d)(2) is generally based on a district court’s assessment of
whether the evidence is sufficient to trigger one of the Rule’s five
exceptions, and therefore we generally review for “clear error” a
district court’s decision, pursuant to Rule 801(d)(2), to admit
evidence that would otherwise constitute hearsay, see id. at 285 &
285 n.27; United States v. Coppola, 671 F.3d 220, 246 (2d Cir. 2012).
Having reviewed the record in light of this standard, we find no
error, much less clear error, in the District Court’s admission of the
testimony. Accordingly, we reject defendants’ evidentiary challenge
substantially for the reasons set forth in the District Court’s ruling of
August 4, 2009, and in our prior discussion of the sufficiency of the
evidence with respect to agency liability, see Part II(C)(ii)(c), ante.
Rule 801(d)(2) provides that a statement is not hearsay if it is offered against “an
12
opposing party” and it:
(A) was made by the party in an individual or representative
capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a
statement on the subject;
(D) was made by the party’s agent or employee on a matter within
the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance
of the conspiracy.
Fed. R. Evid. 801(d)(2).
21
CONCLUSION
We have reviewed all of Khan’s arguments on appeal and
summarize our holdings as follows:
(1) The conduct giving rise to this action occurred within the
territory of another sovereign and, therefore, pursuant to
the Supreme Court’s recent decision in Kiobel v. Royal Dutch
Petroleum Co., 133 S. Ct. 1659 (2013), cannot form the basis
for an action brought under the Alien Tort Statute, 28
U.S.C. § 1350.
(2) The general verdict rule does not require that the
judgment against defendant be vacated with respect to
plaintiff’s claim under the Torture Victim Protection Act,
106 Stat. 73, note following 28 U.S.C. § 1350, because, on
the facts of this case, the jury necessarily found defendant
Khan liable under that statute in returning a general
verdict in favor of plaintiff.
(3) Plaintiff’s claim under the Torture Victim Protection Act
was based on actionable torture, and permissibly
predicated on agency theories of liability.
(4) The District Court did not err in allowing plaintiff to testify
at trial regarding certain statements made to him by
foreign police agents, who were agents or coconspirators of
the defendant.
For the reasons stated above, we REVERSE the judgment of
the District Court insofar as its rests on claims brought under the
Alien Tort Statute, and we AFFIRM the judgment insofar as it rests
on a claim brought under the Torture Victim Protection Act. We
REMAND the cause to the District Court for such further
22
proceedings as may be appropriate in the circumstances, including
any appropriate adjustment for interest.
23
1 ROSEMARY S. POOLER, Circuit Judge, concurring:
2 I am pleased to concur in the concise and thorough opinion of
3 this Court. I write separately for the sole purpose of emphasizing the
4 narrowness of this Court=s disposition with respect to the
5 implications of Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659
6 (2013), for claims brought under the Alien Tort Statute, 28 U.S.C.
7 ' 1350 (the AATS@). This narrowness is tied to considerations
8 regarding which claims do not Atouch and concern the territory of the
9 United States,@ Kiobel, 133 S. Ct. at 1669, and conclusions which are
10 driven by the facts and arguments made in the case before us on
11 appeal.
12 I. KIOBEL
13 As our opinion describes, we have held in abeyance decision
14 on this appeal since the case was argued on February 15, 2011. Maj.
15 Op. at [9]. Our resolution of this appeal was held in abeyance
16 pending the resolution of the question of Awhether the law of nations
17 recognizes corporate liability.@ Maj Op. at [9] (citing Kiobel, 133 S. Ct.
18 at 1663). 1 After oral argument on these questions, the Supreme
19 Court ordered reargument on a third question: A>[w]hether and
20 under what circumstances the [ATS] allows courts to recognize a
21 cause of action for violations of the law of nations occurring within
22 the territory of a sovereign other than the United States.=@ Maj Op. at
23 [9] (quoting Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (2012)).
1 The petition for certiorari that was granted also included the question of
whether corporate liability under the ATS was a question of subject matter jurisdiction, or
a merits issue. See Brief for Petitioner at i Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659
(2013) (No. 10-1491), 2011 WL 2326721 at *i.
1
1 The Supreme Court did not explicitly answer the questions
2 posed in the first petition for certiorari which caused us to hold
3 resolution of this appeal in abeyance. 2 Rather, it affirmed the
4 decision of this Court by requiring reargument on, and then
5 answering, the third question above, a question the Supreme Court
6 put before the parties of its own accord. In affirming, the Supreme
7 Court reasoned that, as a matter of statutory interpretation, the
8 Aprinciples underlying the presumption against extraterritoriality . . .
9 constrain courts exercising their power under the ATS.@ Kiobel, 133 S.
10 Ct. at 1665. But as to the question of Awhether@ the ATS allows
11 courts to recognize a cause of action for violations of the law of
12 nations occurring within the territory of a sovereign other than the
13 United States, the answer was an unequivocal AYes.@ Concluding as
14 much is required by the manner in which the Supreme Court
15 answered the question of the Acircumstances@ under which courts
16 might recognize such a cause of action, reasoning as follows:
17 A[W]here the claims [under the ATS] touch and concern the territory
18 of the United States, they must do so with sufficient force to displace
19 the presumption against extraterritorial application.@ Kiobel, 133 S. Ct.
20 at 1669.3 Reasoning that A[o]n [the] facts [in Kiobel], all the relevant
2 At least one sister circuit has determined that, by not passing on the question of
corporate liability and by making reference to Amere corporate presence@ in its opinion,
the Supreme Court established definitively the possibility of corporate liability under the
ATS. Doe I v. Nestle USA, Inc., 738 F.3d 1048, 1049 (9th Cir. 2013) (citing Kiobel, 133 S. Ct. at
1669). The relevance of the Supreme Court=s reference to corporate presence for the
disposition of this case need not be explored here, because as the majority opinion notes,
and as I agree, Aall of the relevant conduct@ took place in Bangladesh. Maj. Op. at [12]. As
such, the assertion that Kiobel Adid not disturb the precedent of this Circuit@ with respect to
corporate liability, Maj. Op. at [12 n.6], is not pertinent to our decision, and thus is dicta.
3 I note that some of the district courts to have considered the issue have
apparently split on the import of this language. Compare, e.g., Sexual Minorities Uganda v.
Lively, --- F. Supp. 2d ---, 2013 WL 4130756, at *15 (D. Mass. Aug. 14, 2013) (AGiven that
Defendant is a United States citizen living in this country and that the claims against him
>touch and concern the territory of the United States . . . with sufficient force to displace
the presumption against extraterritoriality,= a cause of action is appropriate under the
2
1 conduct took place outside the United States,@ and further reasoning
2 Athat mere corporate presence [of a defendant]@ would also not
3 Asuffice[]@ to displace the presumption against extraterritorial
4 application of a United States statute, specifically the ATS, the
5 Supreme Court affirmed our dismissal of plaintiffs= claims in Kiobel.
6 The affirmance was unanimous, although it drew three
7 concurrences. Justice Alito, joined by Justice Thomas, concurred Ain
8 the judgment and join[ed] the opinion of the Court as far as it goes.@
9 Id. at 1669 (Alito, J., concurring). Specifically, Justice Alito noted that
10 the question of whether claims Atouch and concern the territory of the
11 United States@ was a Aformulation [that] obviously leaves much
12 unanswered.@ Id. Justice Alito would have gone farther, however,
13 and concluded that Aa putative ATS cause of action will fall within
14 the scope of the presumption against extraterritoriality . . . unless the
15 domestic conduct is sufficient to violate an international law norm
16 that satisfies Sosa=s requirements of definiteness and acceptance
17 among civilized nations.@ Id. at 1670. Justice Alito characterized this
18 as a Abroader standard.@ Id.
19 Justice Breyer, joined by Justices Ginsburg, Sotomayor, and
20 Kagan, concurred in the judgment only. Justice Breyer would have
21 reached the disposition of the majority not by invoking the
22 presumption against extraterritoriality, but rather by invoking the
23 Aprinciples and practices of foreign relations law.@ Id. at 1670 (Breyer,
24 J., concurring). As such, Justice Breyer would have concluded that a
ATS.@ (quoting Kiobel, 133 S. Ct. at 1669)), with Al Shimari v. CACI Intern., Inc., --- F. Supp.
2d ---, 2013 WL 3229720, at *9 (E.D. Va. June 25, 2013) (noting that APlaintiffs= reading of
Kiobel [supporting extraterritorial application of the ATS in some circumstances] is a fair
one,@ because Kiobel=s A>touch and concern= language is textually curious, and may be
interpreted by some as leaving the proverbial door ajar,@ but nonetheless dismissing
plaintiffs’ claims). At this writing, one of our sister circuits has seen fit to vacate its prior
rule on the question of extraterritoriality and remand to the district court for further
consideration of the issue. Doe v. Exxon Mobil Corp., 527 F. App=x 7 (D.C. Cir. 2013).
3
1 federal court could find jurisdiction under the ATS under three
2 circumstances: A(1) the alleged tort occurs on American soil, (2) the
3 defendant is an American national, or (3) the defendant=s conduct
4 substantially and adversely affects an important American national
5 interest . . . .@ Id. at 1671. Because none of the three conditions were
6 satisfied in Kiobel, Justice Breyer would have affirmed our dismissal
7 of the plaintiffs= claims in Kiobel. Justice Kennedy, writing for
8 himself, concurred in the Court=s opinion. His concurrence, in full, is
9 as follows:
10 The opinion for the Court is careful to leave open
11 a number of significant questions regarding the reach
12 and interpretation of the Alien Tort Statute. In my view
13 that is the proper disposition. Many serious concerns
14 with respect to human rights abuses committed abroad
15 have already been addressed by Congress in statutes
16 such as the Torture Victims Protection Act of 1991
17 (TVPA), 106 Stat. 73, note following 28 U.S.C. ' 1350,
18 and that class of cases will be determined in the future
19 according to the detailed statutory scheme Congress has
20 enacted. Other cases may arise with allegations of
21 serious violations of international law principles
22 protecting persons, cases covered neither by the TVPA
23 nor by the reasoning and holding of today=s case; and in
24 those disputes the proper implementation of the
25 presumption against extraterritorial application may
26 require some further elaboration and explanation.
27 Id. at 1669 (Kennedy, J., concurring).
28 II. CHOWDHURY’S CLAIMS
29 Drawing from the principles and reasoning of the Supreme
30 Court in Kiobel, I am convinced that this is not a case covered Aneither
4
1 by the TVPA nor by the reasoning and holding of@ Kiobel, and thus is
2 not a case in which Athe proper implementation of the presumption
3 against extraterritorial application [] require[s] some further
4 elaboration . . . .@ Id. at 1669 (Kennedy, J., concurring). This is true
5 for several reasons.
6 First, as our opinion makes clear, in this case the plaintiff has a
7 clear avenue of relief available to him in the form of the TVPA. Maj.
8 Op. at [13-20]. Having pursued this avenue for relief for conduct
9 outside of the United States, Chowdhury has vindicated the interests
10 which we first identified in the ATS, namely, to hold accountable a
11 torturer, who Ahas become like the pirate and slave trader before him
12 hostis humani generis, an enemy of all mankind.@ Filartiga v.
13 Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).
14 Second, our opinion draws on one set of questions explicitly
15 identified by the majority in Kiobel to determine whether a claim
16 sufficiently touches and concerns the United States, by focusing on
17 the conduct of defendants in this case.4 We therefore explain that
18 A>all the relevant conduct=@ set forth in plaintiff=s complaint occurred
19 in Bangladesh.@ Maj. Op. at [12] (quoting Kiobel, 133 S. Ct. at 1669).
20 Further still the complaint alleges not just that all relevant conduct,
21 but that all conduct claimed in this case, occurred in Bangladesh.
22 Finally, there was no evidence adduced at trial to indicate any
23 conduct relevant to Chowdhury=s ATS claim took place in the United
24 States.
4 We have no cause in this case to focus on the nationality of the defendant, as he
is a Bangladeshi citizen. The Kiobel Court at least implied that nationality could be
relevant for determining whether a claim brought under the ATS would Atouch and
concern@ the territory of the United States, as the Kiobel Court determined that Ait would
reach too far@ for Amere corporate presence@ to suffice to make out a claim under the
circumstances in Kiobel. 133 S. Ct. at 1669.
5
1 Chowdhury does not seriously contest this factual matter on
2 appeal. Haphazardly, he avails, A[Khan] maintained his residence
3 and business in the United States while directing the acts of torture to
4 be carried out in Bangladesh. He may well have directed some of
5 those acts from his U.S. residence.@ Pl. Letter Br. at 7, May 10, 2013.
6 Chowdhury points to no evidentiary basis to support this claim. In
7 point of fact, trial testimony from Chowdhury=s own mother and
8 father supported the conclusion that Khan was in Bangladesh at the
9 time of Chowdhury=s torture. And Khan himself testified, at the time
10 of trial in 2009, that though he had a residence in the United States,
11 he had been living in Bangladesh for four years prior, including
12 during 2007, when the RAB engaged in acts of torture at Khan=s
13 instigation. And of course there is no dispute that Chowdhury=s
14 torture occurred entirely within Bangladeshi holding facilities, at the
15 hands of the RAB, a Bangladeshi force. Thus, the fact that all conduct
16 (both relevant to the ATS claim and otherwise) took place outside the
17 United States renders our case firmly on point with the facts and
18 holding of Kiobel.
19 Third, the distinctions recognized in our opinion today, and
20 which were recognized in Kiobel as well, go to the crux of the
21 presumption against extraterritoriality. As the Supreme Court noted
22 in Morrison v. National Australian Bank Ltd., the mere relevance of the
23 Apresumption . . . is not self-evidently dispositive, but its application
24 requires further analysis.@ 130 S. Ct. 2689, 2884 (2010). In Morrison,
25 further analysis required the Court to examine the Afocus@ of the
26 Securities Exchange Act, and led to the conclusion that the Act would
27 cover situations where Athe purchase or sale [of a covered security] is
28 made in the United States, or involves a security listed on a domestic
29 exchange.@ Id. at 2886. The analogous analytical work of the Supreme
30 Court in Kiobel led it to adopt a rule under the ATS which was
31 Acareful to leave open a number of significant questions regarding
32 [its] reach and interpretation.@ Kiobel, 133 S. Ct. at 1669 (Kennedy, J.,
6
1 concurring). These questions require courts to answer, at least,
2 whether the claims Atouch and concern the territory of the United
3 States.@ Id. at 1669. Because the record establishes that the claims
4 alleged in this case involve conduct that took place entirely in
5 Bangladesh, I am convinced that we need not elaborate on what
6 facts, if alleged or proved, might lead us to conclude that claims
7 touch and concern the United States. The elaboration of such
8 Asignificant questions,@ id. at 1669 (Kennedy, J., concurring), is
9 properly left to a further panel of this Court.
10 With these considerations in mind, I concur.
7