me please the court my name is tobias wolff from the university of pennsylvania law school representing the plaintiff appellants in this case with me to counsel table are katherine crawford and thomas watson from the firm of mccool smith prior to the ruling  court below no court had ever held their crimes of genocide torture and mass reign are entitled to deference comedy and respect in the courts of the united states and this court should reject out holding for two principal reasons first b n p has not identified any official sovereign act of the government of sudan that would be the subject of this lawsuit that would serve as a rule of decision in this lawsuit in the supreme court unanimously held in w that were that element is absent the act of state that fails at the threshold it plays no role in this lawsuit second the actions by the government of sudan that b n p has identified in attempting to craft their defense or crimes against humanity that are universally condemned and the executive branch of the united states government and the congress of the united states have both consistently repeatedly and forcefully denounced those activities as atrocities including by the imposition of the sanctions that b n p violated in this case sanctions that had as one of their primary purposes the prevention of the very injuries that these planets which the rogue should be focusing focusing maybe not quite the right word isn't were violated or allegedly by the bad that is you don't know the act of state the state is the united states in the us well your honor it isn't quite correct to say that the sanctions impose by the united states which b n p violated in their ten year long conspiracy are a statement of policy by the united states about the atrocities committed by the government of sudan any defendant seeking to raise an affirmative defense of an of state must identify the act of state of a foreign government that will be declared invalid as a rule of decision in the courts of the united states but what i'm trying to figure out is whether with a violation of u s law can we get at the state of sudan out of here just for a minute and talk about active state being the act of the united states in saying you cannot you cannot deal with with with sudan because and therefore i'm violating an american statute and doesn't matter sudan can say everything is legal they can in sr they can even have the death penalty ou trageously yes your honor so this is a claim about the new york law civil liability that attaches to be n p s violation of both new york criminal law and the criminal sanctions of the united states government and so you're exactly correct your honor the active state doctrine comes in if at all only by way of an affirmative defense it has nothing to do with the definition of the plaintiff's cause of action in this claim in this case and the plan is cause of action in this case it i in many jurisdictions and the laws that the plaintiffs in this case are proceeding under our new york tort law that relate to financial improprieties committed largely within the financial markets of new york which this court held in new york choice of long rules would attach new york tort law to the question of whether plaintiffs can recover for the foreseeable injuries that they suffered as a result of b and his misconduct this is at base a straightforward case about financial crimes and tort liability flowing from those financial crimes being has attempted to make it into a case that involves u s foreign policy in relation to sudan much at all precisely because b n p has failed to identify any sovereign we did not your honor what do you think you're entitled to raise me to answer that in two is your honor first of all it's an alternative basis for finding these claims time to time in the court need not reach and and second this court has discretion to reach it because it is involves a question of law as to which of the relevant facts have already been fully developed below and you know what you're talking about what is the i apologize your honor b m p succeeded in getting one portion of the  or under section two thirteen b which is the provision that the district court ruled on in this case the analysis is quite straightforward b n p is a criminal defendant it was convicted pled guilty of a criminal offense the plaintiff's claims are for the injuries that resulted from the defendant's crimes and under either section two thirteen b or under section two fifteen sub eight if the court chooses to reach a fifteen is is somewhat more straightforward because you don't have the  is any confusion about the interpretation of section two thirteen b except with all due respect in the district court below the courts of new york have been quite consistent in saying that the purpose of section two thirteen b was to provide private remedial avenues for people who are the foreseeable victims of criminal activity and the only basis on which the lower court was able to craft an argument the two thirteen b doesn't apply here was first by suggesting that a conspiracy  violation of federal conspiracy law doesn't have any victims but the united states because it's an offense against a sovereign which is of course true in every single criminal prosecution and i suggest is not a valid argument and second by grafting on to section two thirteen be a provision from the new york executive law which there is no reported new york case that has has undertaken that grafting and instead a thorough examination by decision of the second department rejecting the proposition that those executive anything to do with section two thirteen b and i believe that those are the only sources of confusion about the applicability of section two thirteen but i could take you back to the act of state doctrine how are the here in sudan the the atrocities  different from the acts in underhill where there was assaults the tensions thank you so in several ways are these acts different first the judgment of the united states government in the underhill case was that the revolutionary force in venezuela was waging a lawful war and had become the legitimate ruling party in venezuela and that the actions that were complained of by mr underhill involving the refusal to grant a passport for example were sovereign acts that had to be respected by the united states after recognizing the revolutionary force as the new government here we are talking about crimes against humanity which have been consistently denounced by the unit and united states government including as recently as last month in a statement issued by the state department about u s policy in the current state of relations with sudan in which the united states reiterated once again that sudan had committed genocide that there were continuing human rights violations in sudan and that attempts to negotiate and broker better relations and better conditions in sudan happen against a backdrop of the very atrocities that the united states has consistently denounced i would also position that kirkpatrick is the last word on this active state problem absolutely so your honor if i may kirkpatrick draws the distinction which the lower court failed to understand between allegations that a sovereign or their agents have engaged in wrongful conduct which of course this court hears all the time in foreign sovereign immunity zakk cases in alien tort claims cases all the time to u s courts have occasion to talk about circumstance in which the active state doctrine attaches is where there is an unofficial to create an official sovereign act that will serve as a rule of decision in the u s lawsuit and beyond he has never identified such an act and the district court neither identified such an act nor could be n p to the burden they should have had and so i want to i think i knew this there was no oral argument on this is that right that's correct your honor and oral argument might have given us an of this complaint is that the official acts these are all official acts of the government of sudan and that the amount are the official i just want you to identify for me what the official acts are  understanding of the plaintiffs is in the heartland of the active state doctrine if it's random criminal and how these how do these become official acts or decree or pronouncements of us or the entire theory of the complaint honor is that this is the government of sudan acting as official policy that this is what they were doing this is the regime that they were engaged in civil war those are the people who got the banks money i mean it wasn't the end of the individual people doing the attacking the banks money that that is why they've hedge their theory on this because otherwise the chain of causation is even further attenuated if they say that this is about individuals like in the kharaj the case that weren't acting under color of law and so the whole point of their claim and they've invoked international law but there are no international law claims in this case are you going to be record asking us to write hirani dealt with a defamation suit the the glen case dealt with theories of trespass and unjust enrichment and in all those cases we go back to the bedrock case sabatini and underhill where the rule of the act of state is that a court in one country will not sit in judgment on the acts of the government of another done within its own territory and that is exactly what we have here and if we think about this case the reason why they haven't pled these acts is international to international law torts is that jensen are decided last term by the supreme court said that the such claims could not lie against a foreign corporation like my client and the reason why they came to that conclusion were the same active state i'm sorry the same separation of powers concerns that motivate the active state doctrine it's the provenance of the executive and its supreme role in foreign affairs of the united states and the legislature to take action in this area and they're doing that the other two branches of government require a say in the law of the united states irrespective of what sudan did we're not we're not passing judgment on sudanese  put it to cases based on the violation of the us government sanctions then plaintiffs are out of court because there's no private right of action under those sanctions the executive orders in the case  specific that those executive orders give no right or impose any obligations piece of the any other party against any other party so if they planned this is a sanctions violation there's no private ryan of action for that and in terms of the enforcement of that law in the united states being p p was criminally prosecuted and pled guilty and he paid a nine billion dollars fine all that again within they all were created by the executive in the legislature to deal with the sanctions issue  for which these plaintiffs have no claim and so they had to step back and and and think about the purpose of the act of state doctrine you know it's rooted in in an considerations of international comedy separation of powers does applying the doctrine on these facts further those purposes and considerations when you have the executive branch and the legislative branch condemning what happened in sudan the key consideration a separation of powers judge chen and specifically so the united states government imposed no sanctions they gave no private right of action in january of two thousand and seventeen the sanctions were lifted when the sanctions statement that if we were  made in sudan and in negotiations and the attempt to improve what on earth does that have to do with these individuals who are and are asking to offer and it seems to me that's this case we're not questioning lidia which is the whore and soul of the act of state doctrine we're simply considering whether it is adequately allege that they occurred respect john or encourage patrick the defendants conceded all parties agreed that the dissent defendant there could have had liability regardless of whether there was an invalid act by the nigerian government here because the claims are all based on the primary acts of this one hand and being p p is being sued in a secondary compasses aiding and abetting conspiring the only way to get a cause of action here for plaintiffs is to have that first level tort by the government of sudan so that's the act of invalidation applying and no case that we've found has done this applying new york tort law to actions by the sudanese government within their own borders or applying it is a choice of what law question is applying new york tort law to the bank which has operations in new york but they're doing it your honor in a context where all of the injuries alleged all the activity alleged that directly injured their clients was in the sudan and as i mentioned there's a choice of law i guess is a variant of what judge parker asked a few moments ago but you're asking this court whole that atrocities human rights violations are official acts to which we must give deference that's what you're asking me where i'm not asking this court to give deference to deference here is owed to the executive  and legislative branches for them to deal in this area and following the act of state doctrine to allow that to go forward because otherwise this court is stepping into a realm that our constitutional framework of course stands for the proposition that if something isn't in violation of international law that doesn't stop the active state doctrine from being applied but putting that aside they have not pled and they're not seeking to  for use kogan violations and i would add they couldn't because following the the rule of law in this that discourse in the talisman case they cannot they haven't pleaded and they can't plead that we the bank acted with the specific intent your honor i don't i don't believe that there can be a link drawn through the money that flowed as a result of those sanctions violations and the specific acts of violence that befell these plaintiffs wanted to pay of six billion dollars because we violated sanctions your honor and the sanctions don't give a private right of action and the sanctions if this court looks and what we did if you look at the last case decided by this circuit there's not that direct link i mean these are merits issues to the plaintiffs injuries here but the going back to the active state doctrine the active state doctrine and if you think about all three factors and the first one which is i think they most rely on which is your use your honor which is the codification or consensus concerning a particular area of international law but there's no international law in this case and there is no codification of consensus about applying new york state law a court applying either new york state law or sudanese laws to declare invalid the bank is bringing international law into the picture by invoking the fence that the fences act of state doctrine because these are official acts and now suddenly we have to look at those acts and look at them in the context of international law you are where invoking u s law which is the source of the active state doctrine the separation of powers and we're looking at their complaint as pl which is played as this is about the official acts of the government of sudan and we're saying that the act of staying there for says look to the executive in the legislature to determine what remedies these folks have because they don't have a remedy in this court for afflicted violence on the plaintiffs in expropriating and again their expropriation claims in this complaint counts ten to fourteen those by everybody's agreement are in the heartland of the active state and then other acts of sexual violence mass rape and they say genocide and how are those last three acts those that well they again this is their theory  played as the act of state of the government of sudan if your honour's decided that those were not acts of state then they have an issue with the attenuation in terms of the causal chain because they're basically saying by interacting with a government a bank is now responsible for anything on the ground that befalls an individual at the hands of say a policeman i'm standing at the do do we know that at this point is that the other acts that  the district court found was that the cognizable injury i e that it was wrongful requires an act of finding of wrongdoing by the core of what the government's the dam was doing honest in its own territory during the time of the complaint the two fifteen eight a was not raised below and therefore is waived it doesn't apply for your honor so the alford case the first department case it says specifically that the purpose for that statute was to alleviate the burden of a plaintiff being in a criminal proceeding and then having to deal with a civil suit and to give them time to do that the plaintiffs of course were not victims of the sanctions violations they were not involved in that criminal proceeding and so for that basis alone y the crime and here we don't have that makes this the court below is correct in finding that and so to thirteen b does not apply as well which means that for all of the intentional towards which honour's let me try to clear up to some confusion here the court asked one of the official acts and my opponent talked about the atrocities committed by the government of sudan the atrocities committed by the government of sudan is wrongful technicality when a government or a rogue autocrat in a government or aegis of the government commit atrocities if they announce to the world that genocide and mass rape constitute the official sovereign policy of that government that has implications in the international community that has foreign relations implications that has implications for their individual criminal liability in international tribunals and the sudan and the officials of sudan have never embraced their atrocities as the official acts of sudan and so with respect my opponent suggestion that our theory of the case is that these are official acts within the meaning of the act of state doctrine is simply flat wrong the theory of the case is that these were some kind of formal adoption of policy or program where if the where is the country going to even the contrary to its own law and if i may quickly counsel points to the fact that there are no private rights of action under these sanctions which of course is true this court has already rejected the argument that that language forecloses other avenues of relief and other causes of action i would point the court to come harajuku in which this court relied upon the genocide convention implementation act in order to hold that genocide constitutes a violation of that statute includes the same kind of boilerplate language about no private rights of action and mr kharaj in that case attempted to argue that that language foreclosed other remedies in that case he was proceeding under the alien torts that you this court express that that language about no private remedies under one statute has nothing to do with the availability of remedies under a separate and independent cause of action which here is new york law seeking to hold b m p responsible for its violation of the new york criminal code in committing proceeding under state common law claims sabbatini was a state common law claim sabatini it was a new york conversion law claim under new york common law and the court conducted a substantive international law analysis about what the status of property exp iations were and those plaintiffs lost because property expropriations are not genocide finally if i may takings of property an expropriation in this case are actions that were taken in furtherance of genocide that doesn't put  comfortably into the established expropriation law when you shove somebody out of their home and burn it to the ground as part of a campaign of genocide that is part of a campaign of genocide it is not a property expropriation like seizing the artwork of a