United States Court of Appeals

For the First Circuit

No. 22-1052

SAKAB SAUDI HOLDING COMPANY,

Plaintiff, Appellant,

v.

SAAD KHALID S. ALJABRI; KHALID SAAD KHALID ALJABRI; MOHAMMED 

SAAD KH ALJABRI; NEW EAST (US) INC.; NEW EAST 804 805 LLC; and 

NEW EAST BACK BAY LLC,

Defendants, Appellees,

UNITED STATES,

Intervenor, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Gelpí, Howard, and Thompson,

Circuit Judges.

Michael J. Gottlieb, with whom M. Annie Houghton-Larsen and 

Wilkie Farr & Gallagher LLP were on brief, for appellant.

Ian H. Gershengorn, with whom Lindsay C. Harrison, Jenner & 

Block LLP, R. Robert Popeo, Scott C. Ford, and Mintz Levin Cohn 

Ferris Glovsky and Popeo, P.C. were on brief, for appellees Saad 

Khalid S. Aljabri and Khalid Saad Khalid Aljabri.

Faith E. Gay, Caitlin Halligan, Selendy Gay Elsberg PLLC, 

Kevin P. Martin, Jaime A. Santos, and Goodwin Procter LLP on brief 

for appellees Mohammed Saad Kh Aljabri, New East (US) Inc., New 
East 804 805 LLC, and New East Back Bay LLC.

Lewis S. Yelin, Attorney, Appellate Staff, U.S. Department of 

Justice, with whom Brian M. Boynton, Principal Deputy Assistant 

Attorney General, Rachael S. Rollins, United States Attorney, and 

H. Thompson Byron III, Attorney, Appellate Staff, U.S. Department 

of Justice, were on brief, for intervenor-appellee United States.

January 27, 2023
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THOMPSON, Circuit Judge. We are called upon today to 

examine when ordinary legal procedures must yield to extraordinary 

ones for the greater good. In this case, a foreign 

counterterrorism corporation (our appellant) filed suit and sought 

an order freezing certain Massachusetts assets based on its 

allegations that a former government official perpetrated a 

massive fraud when he misappropriated billions of dollars from the 

corporation. The defendants to that suit (appellees here) seek to 

tell a very different tale in defense of these allegations: The 

funds were received lawfully in connection with clandestine 

counterterrorism and national security operations that sometimes 

were undertaken alongside the United States government. But to 

prove their story, the appellees say they'd need to divulge United 

States state secrets. Enter stage right: The United States 

government stepped in, asserted the state secrets privilege, and 

successfully got that information and, with it, a great deal of 

other information excluded from the case. And while the appellant 

insists the case can proceed nonetheless, and that it should be 

awarded the preliminary relief it seeks notwithstanding the 

exclusion of the privileged materials, the appellees are just as 

insistent the case cannot be litigated and thus obligates dismissal 

because they cannot fairly defend themselves without relying on 

the privileged materials. 
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The district court concluded it could not tackle the 

necessary inquiries to examine the claims and defenses or award 

the preliminary equitable relief the appellant sought without 

weighing the privileged information and risking disclosure of 

state secrets. Consequently, the district court determined the 

case could not be adjudicated and dismissed the suit. 

As we explain below, we affirm.

BACKGROUND

The facts and procedural history of this matter are 

something of a global affair. Bear with us as we tell the story 

that paves the way to the issues presented for our appellate 

review.

Players, Places, Suits, and Proceedings

The appellant is Sakab Saudi Holding Company ("Sakab"), 

an entity that bills itself as a creation of the Kingdom of Saudi 

Arabia ("KSA") that "perform[s] anti-terrorism activities in the 

public interest" and is funded by the KSA's Ministry of Finance. 

And the appellees are Saad Khalid S. Aljabri ("Aljabri"), a former 

high-ranking KSA government official who was engaged in 

counterterrorism and intelligence work, and his sons, Khalid Saad 

Khalid Aljabri and Mohammed Saad Kh Aljabri (we'll refer to Aljabri 

and his sons as "the Aljabris"). Together, the Aljabris are 

managers or directors of New East (US) Inc., New East 804 805 LLC, 
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and New East Back Bay LLC (collectively, "New East" and, all 

together with the Aljabris, "Appellees," who filed a joint brief). 

The case now before us has its genesis in Canada, where

Aljabri lives and where, on January 22, 2021, Sakab sued Appellees 

(and some others not involved in the instant matter). In Ontario 

Superior Court, Sakab alleged, inter alia, that Aljabri defrauded 

Sakab of billions of dollars, having used a variety of unauthorized 

payments and transfers to do so. Sakab supported its allegations 

with a dense forensic accounting report. Sakab immediately and 

successfully sought an interlocutory order freezing the Aljabris' 

assets worldwide (a Mareva injunction, see Grupo Mexicano de

Desarollo v. Alliance Bond Fund, Inc., 527 U.S. 308, 327-29 

(1999)), and the Canadian court also appointed a receiver for 

certain assets. Litigation in Ontario is ongoing.

Sakab then looked southward to Massachusetts, filing a 

March 24, 2021 state court complaint "to give effect to" the 

Ontario court's freezing and receivership orders relative to the 

Aljabris' Massachusetts properties. The ten-count complaint 

offers state law claims for breach of fiduciary duty (Count I), 

fraud (Count II), fraudulent misrepresentation (Count III), fraud 

by omission (Count IV), conversion (Count V), conspiracy (Count 

VI), aiding and abetting (Count VII), unjust enrichment (Count 

VIII), fraudulent transfer (Count IX) and alter ego/piercing 

corporate veil (Count X). In it, Sakab alleges, as it did in 
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Ontario, that Aljabri perpetrated a massive fraud on it, "us[ing] 

Sakab as a vehicle to distribute funds that had been allocated for 

anti-terrorism activities . . . to himself" and others -- specific 

to Massachusetts, the complaint alleges the proceeds of this 

fraudulent scheme were used to acquire $29 million worth of 

Massachusetts properties. And Sakab says those fraudulently 

obtained funds have since been distributed to various companies, 

including New East, and also have been used to purchase real estate 

in Massachusetts and beyond. So, Sakab says, the complaint was 

filed "to preserve the fruit of the Fraudulent Scheme now located 

in Massachusetts that is subject to the Ontario Orders." Sakab 

also filed motions for the preliminary attachment of properties in 

Massachusetts, memoranda of lis pendens, and a motion to stay the 

proceedings pending the outcome in the Ontario case.

Appellees swiftly removed the action to Massachusetts 

federal district court, citing the case's implication of federal 

interests. In so doing, Appellees denied any fraudulent wrongdoing 

by Aljabri, insisting the funds in question were lawfully received. 

According to Appellees, Aljabri, in his capacity as a government 

official under former Saudi Crown Prince Mohammed bin Nayef, helped 

the Saudi government establish Sakab with "the primary purpose of 

funding and undertaking clandestine and sensitive operations in 

partnership with the United States Government." Adjudicating 

Sakab's claims, Appellees said, would require the district court 
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to consider whether certain of Aljabri's activities, like "covert 

counterterrorism operations in partnership with the United States 

Government, constituted fraud, breach of fiduciary duty, or 

conversion under the law of Saudi Arabia." As a direct result, 

the district court would need to examine the financing of 

"sensitive programs operated in partnership" with U.S. 

intelligence agencies. Thus, knowing the district court would 

have to scrutinize "a partnership between the government of Saudi 

Arabia and the intelligence and national security agencies of the 

United States Government" to assess the claims and defenses in the 

case, Appellees told the court the suit clearly raised "substantial 

federal issues."

Sakab moved in April 2021 to send the case back to state 

court, arguing that the only point of the Massachusetts case was 

"to obtain prejudgment relief on the basis of comity to the Ontario 

Orders . . . and then to stay the Massachusetts Action." A few 

weeks later, the United States government noticed its potential 

participation in the action, and on August 3, 2021, the government, 

without taking any position on the merits of the case, formally 

moved to intervene -- a move Appellees supported but Sakab opposed. 

Mindful that any further briefing would run the risk of revealing 

state secrets, the government also moved to stay briefing on the 

motion to remand. 
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About a week later, Aljabri filed an answer to the 

Massachusetts complaint in which he not only denied the ten counts 

against him, but also asserted affirmative defenses and raised 

counterclaims against Sakab.1 Throughout his filing, Aljabri 

acknowledged his receipt of funds from Sakab, but insisted they 

were lawfully received, and any off-the-book transactions were 

off-the-book simply because of the transactions' covert purposes 

and necessarily secretive nature. He raised the specter of his 

inability to effectively litigate the case -- to prove his defenses 

and counterclaims -- without relying on information he believed 

would be deemed privileged (and thus unavailable to him in the 

litigation).

The Privilege Assertion

On August 23, 2021, Avril Haines, the Director of 

National Intelligence ("the Director"), asserted the state secrets 

privilege and a statutory privilege pursuant to 50 U.S.C. 

§ 3024(i)(1) "to protect certain classified national security 

information . . . at risk of disclosure" in the Sakab case. Indeed, 

1 The answer laid out eighteen affirmative defenses, 

including, for example: failure to state a claim; statute of 

limitations problems; waiver; laches; estoppel; and immunity. The 

answer also asserted three counterclaims against Sakab. Those 

counterclaims sought: 1) declaratory judgment that the allegedly 

fraudulent transactions were actually legal; 2) declaratory 

judgment that Sakab is not entitled to enforce the Mareva 

injunctive relief in Massachusetts; and 3) judgment against Sakab 

for abuse of civil process.
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having reviewed the matter, the Director, "as head of the [U.S.

Intelligence Community]," explained that such disclosure 

"reasonably could be expected to cause serious, and in some cases 

exceptionally grave, damage to the national security of the United 

States and, accordingly, that this information must be protected 

and excluded from use in this case." 

Couching her assertion of the privilege "[i]n general 

and unclassified terms," the Director broadly asserted the state 

secrets and statutory privileges as to 

information concerning sources, methods, capabilities, 

activities, or interests of the [U.S. Intelligence 

Community], as well as information that might tend to 

reveal or disclose the identities of U.S. Government 

employees, affiliates, or offices with whom one or more 

of the parties or the Kingdom of Saudi Arabia may have 

had certain interactions and the disclosure of which 

would be damaging to U.S. national security interests. 

This description, the Director explained, was "intended to 

specifically include information known to [Aljabri] about such 

matters that he seeks to introduce or disclose in this action, 

whether through documents, testimony, affidavits, or declarations, 

as part of his response and defense to pending claims and motions."

But because "the complete factual basis for [this] 

privilege assertion [could not] be set forth on the public record 

without revealing the very information that [the Director was 

seeking] to protect and without risking the very harm to U.S. 

national security that [the Director sought] to prevent," the 
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government submitted for the district court's in camera, ex parte 

review classified declarations regarding the claim of state 

secrets. The declarations, according to the Director, "further 

describe the categories of information over which [she was] 

asserting privilege and explain that the unauthorized disclosure 

of this classified information, in this litigation or otherwise, 

reasonably could be expected to result in serious, and in some 

cases exceptionally grave, damage to our national security." 

"[S]uch harms," she wrote, "include the disclosure of information 

that would enable foreign adversaries to evade, undercut, negate, 

or otherwise impede critical national security and foreign policy 

objectives of the United States." The Director requested that the 

court "take all necessary steps to protect" the "classified and 

privileged intelligence information" she had just described.

As the district court would later note, those 

declarations -- their contents, who swore them, and so on --

"cannot be described in greater detail without risking public 

disclosure of the highly classified information contained 

therein." Sakab Saudi Holding Co. v. Aljabri, No. 21-10529-NMG, 

2021 WL 8999588, at *2 (D. Mass. Oct. 26, 2021) [hereinafter Sakab

I]. Having also reviewed the declarations,2 this court agrees and 

will say no more by way of description.

2 The classified record was made available to us by the 

government for our in camera, ex parte review.
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On the basis of the Director's declaration and the 

classified declarations, the government asked the district court 

to accept the privilege assertion and excise the privileged 

information from the Sakab case. In doing so, the government took 

"no position on whether [the] invocation of privilege should result 

in the dismissal of any aspect of this lawsuit." 

The Proposed Protective Order

In the days following the Director's assertion of the 

privilege, and still without taking any position on the merits of 

the case, the government on August 27, 2021 moved for a protective 

order "to establish procedures to protect against the risk of 

disclosure in further proceedings" by, inter alia, requiring all 

proposed filings be run by the government prior to submission to 

the court. Appellees opposed the protective order request, urging 

that the "exclusion of the extraordinarily broad category of 

information" would prove "insurmountab[ly] challeng[ing] to" 

Appellees' ability to prove their defenses. So Appellees requested 

that the district court modify the proposed protective order to 

allow Appellees to explain "why the case should be dismissed." In 

particular, echoing some of the statements made in their answer 

and counterclaims, Appellees urged that the big question in the 

case was whether Aljabri received money from Sakab fraudulently or 

legally, and getting to the bottom of that would necessitate an 

"examination of the programs and operations [Aljabri] was 
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compensated for leading or overseeing, how those programs and 

operations were funded, [and] why the funding in some cases may 

have been especially opaque." According to Appellees, it was 

inescapable that any litigation stemming from these issues would 

require scrutiny of privileged materials, to wit, "information 

concerning . . . activities, or interests of the [U.S. Intelligence 

Community]." 

But the government opposed Appellees' requested 

adjustments to the proposed order, asserting that any motion to 

dismiss that contained privileged information would simply be too 

"harmful to the national security interests of the United States." 

And, the government posited, if the privilege assertion was valid 

-- resulting in the exclusion of the privileged materials --

Appellees would then be able to argue, "without actually using 

th[e] privileged information in [a] motion," that the privileged 

information was needed to prove their defense.

Sakab responded by moving for what it styled as a 

procedural order, seeking to shepherd for review its motions for 

prejudgment attachment, lis pendens, and a subsequent stay of the 

case pending the outcome of the Ontario action. According to 

Sakab, there would be no need for privileged information and no 

risk to national security interests if the district court would 

simply grant Sakab preliminary relief on the basis of comity to 

Ontario's court orders.
- 13 -

Initial jockeying complete, it was time for the district 

court to weigh in.

District Court Rulings

All told, the pending motions and issues ripe for the 

district court's resolution come October 2021 were these: whether 

the government should be allowed to intervene; if permitted to 

intervene, whether the government's privilege assertion was a 

valid one; and whether the matter should be remanded to state 

court, as Sakab requested.

In fielding these queries, the district court: granted 

the government's motion to intervene, finding the government's 

"interest in preventing the disclosure of state secrets [was] 

obvious and uncontested," see id. at *2-3; concluded the assertion 

of privilege was valid, see id. at *3; and, in light of the clear 

"embedded" federal issues, declined to remand to state court, see

id. at *5-7.3

The court did something else, too. It directed Sakab to 

show cause as to why the case shouldn't be dismissed "in light of 

the accepted assertion of the state secrets privilege," which 

rendered Appellees unable to "fairly defend themselves" against 

the allegations of fraud without resorting to the off-limits 

privileged information.4 Id. at *4. 

3 On appeal, Sakab does not contest any of these conclusions. 

4 The district court also held under advisement the 
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Sakab did not dispute the district court's conclusion 

that the assertion of privilege was valid. Rather, in its November 

9, 2021 show-cause filing, Sakab argued that the district court 

could award Sakab the relief it wanted -- a prejudgment attachment 

and lis pendens as to the Massachusetts properties, plus the stay 

-- without any need to evaluate the privileged materials or even 

litigate the case on its merits. Sakab pointed to comity to the 

Ontario litigation's orders to carry its burden to get that 

prejudgment-attachment relief, requesting an opportunity to brief 

the notion further. Sakab also asserted that it would be premature 

to dismiss the case when Appellees hadn't shown any deprivation of 

a valid defense, nor had they shown the privileged information was 

necessary for a "valid" defense (according to Sakab, a defense 

that is "meritorious" or "dispositive"). In Sakab's telling, to 

determine that a defense is "valid," a court must conduct an 

"appropriately tailored in camera review" of the excluded 

privileged information, and that didn't happen here. On top of 

all of this, Sakab asseverated, Appellees had been able to raise 

some substantive defenses in the Ontario litigation without 

resorting to privileged information, so surely the same could be 

achieved here.

government's protective-order motion "pending consideration of 

[Sakab]'s show cause pleading." Sakab I, 2021 WL 8999588, at *7.
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Many of these arguments were repeated and probed at a 

hearing before the district court. After the hearing, the district 

court accepted Sakab's supplemental papers wherein Sakab argued 

for a lis pendens to encumber the subject properties, which Sakab 

urged it was entitled to and would avoid any risk of disclosing 

privileged materials. Appellees responded that a lis pendens was 

not an option as a matter of law and, regardless, wouldn't even 

avoid litigation on the merits.

The district court dismissed the case. See Sakab Saudi

Holding Co. v. Aljabri, 578 F. Supp. 3d 140, 143 (D. Mass. 2021)

[hereinafter Sakab II]. The district court was not persuaded by 

Sakab's contention that the court could grant Sakab a prejudgment 

attachment order without evaluating the merits of Sakab's claims 

against Appellees and, by the same token, the merits of Appellees' 

listed defenses. Id. at 144. Observing that Rule 64(a) of the 

Federal Rules of Civil Procedure permits a court to enter an order 

seizing property to cover a potential judgment when that remedy is 

authorized by state law, id. at 143-44, the district court then 

explained that Massachusetts law makes "[a] showing of reasonable 

likelihood of success on the merits . . . a prerequisite for 

attachment," id. at 144 (citation omitted). From there, the 

district court concluded Sakab couldn't establish a reasonable 

likelihood of success by relying on the Ontario court's interim 

order. Id. Instead, Sakab needed to establish a reasonable 
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likelihood of success on its fraud and other claims in the 

Massachusetts action -- but it could not do so unless the court 

considered the excluded privileged information. Id.

And the district court next explained that it could not 

avoid adjudicating the merits of Sakab's case by entering a lis 

pendens notice and staying the action.5 Id. at 145. A lis pendens 

notice "provides notice that property is the subject of a pending 

action" and "is derivative of the underlying claims," but "the 

underlying proceeding to which the lis pendens would refer consists 

of ten claims which the Court has determined must be dismissed." 

Id. 

Because the district court determined it could not grant 

Sakab its requested relief, id. at 144, 146, and having already 

determined Appellees could not fairly defend themselves on the 

merits without relying on the privileged information, Sakab I, 

2021 WL 8999588, at *4; see also Sakab II, 578 F. Supp. 3d at 143, 

the court dismissed the case, Sakab II, 578 F. Supp. 3d at 146.6 

5 The district court construed Sakab's post-hearing 

supplemental memorandum of law as a motion to record a lis pendens. 

See Sakab II, 578 F. Supp. 3d at 145 n.1.

6 The district court also noted that, since the "privileged 

material is similarly pertinent to Aljabri's first counterclaim 

it, too," had to be dismissed; but the court didn't reach "the 

merits of [Appellees'] two remaining counterclaims which [it] 

dismissed without prejudice." Sakab II, 578 F. Supp. 3d at 143. 

To close the matter out, the court also denied as moot the 

government's motion for a protective order. Id. at 145-46.
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Sakab timely appealed, challenging the dismissal and rejections of 

its preliminary relief requests. 

DISCUSSION

The stage set, we proceed to our de novo review of the 

district court's legal determinations concerning the effect of a 

successful assertion of the state secrets privilege. See Mohamed

v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1077 (9th Cir. 2010) 

(en banc); El-Masri v. United States, 479 F.3d 296, 302 (4th Cir. 

2007). It is well established that "we may affirm the dismissal 

of a complaint 'on any basis available in the record.'" Yan v. 

ReWalk Robotics Ltd., 973 F.3d 22, 30 (1st Cir. 2020) (quoting 

Lemelson v. U.S. Bank Nat'l Ass'n, 721 F.3d 18, 21 (1st Cir. 

2013)); see also Williams v. United States, 858 F.3d 708, 714 (1st 

Cir. 2017) ("As always, we are also free to affirm on any basis

apparent in the record, even if it would require ruling on 

arguments not reached by the district court or even presented to 

us on appeal.") (internal quotations and brackets omitted).

There is a tripartite inquiry courts must undertake when 

a state secrets question arises: first, make sure that the 

government has followed the proper procedure in making a formal 

claim of privilege; then, figure out whether the information 

purportedly covered by the privilege assertion does in fact qualify 

as privileged; and finally, sort out how -- if at all -- the case 

should proceed given the successful assertion of the state secrets 
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privilege. See Wikimedia Found. v. Nat'l Sec. Agency/Cent. Sec.

Serv., 14 F.4th 276, 302 (4th Cir. 2021) [hereinafter Wikimedia]

(first citing El-Masri, 470 F.3d at 304; and then United States v. 

Reynolds, 345 U.S. 1, 10 (1953)), petition for cert. filed, No. 

22-190 (U.S. Aug. 26, 2022).

In the instant matter, there is no debate about the first 

two components of this inquiry. Rather, the critical question 

here is all about that final query: whether this matter should 

proceed in light of the privilege claim. Id.

Sakab says of course its suit can proceed 

notwithstanding the privilege assertion, offering a variety of 

arguments in its effort to persuade us we should resuscitate the 

case, or at least grant it prejudgment attachment, a lis pendens 

recording, and a subsequent stay of the case (because, as Sakab 

has maintained all along, these forms of preliminary relief don't 

even turn on an ability to actually litigate the case in 

Massachusetts). But before we lay out and drill down on Sakab's 

contentions, because the outcome of the appeal substantially 

depends on the overall viability of the underlying suit, we must 

start by answering this overarching question: Given the assertion 

of the state secrets privilege, can litigation of this suit 

proceed?

The answer is no. To explain why, we will first explore 

the foundational standards and precedent that inform our analysis, 
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then use that to assess the functional, sweeping consequences of 

the government's assertion of privilege on this case. Along the 

way, we'll probe why each of Sakab's various proffers falls short 

of persuading us that dismissal is not required. Then we'll 

explain why Sakab has not demonstrated that it is entitled to any 

preliminary relief. 

State Secrets: Guiding Principles

Many of the Government's efforts to protect our national 

security are well known. It publicly acknowledges the 

size of our military, the location of our military bases, 

and the names of our ambassadors to Moscow and Peking. 

But protecting our national security sometimes requires 

keeping information about our military, intelligence, 

and diplomatic efforts secret.

Gen. Dynamics Corp. v. United States, 563 U.S. 478, 484 (2011). 

The state secrets privilege, "an evidentiary rule 

'bas[ed] in the common law of evidence,'" Wikimedia, 14 F.4th at 

294 (quoting El-Masri, 479 F.3d at 304), "permits the Government 

to prevent disclosure of information when that disclosure would 

harm national security interests," United States v. Zubaydah, 142 

S. Ct. 959, 967 (2022).7 Indeed, as the high Court has said, "the 

privilege applies where 'there is a reasonable danger that 

compulsion of the evidence will expose military matters which, in 

7 For more on the state secrets doctrine's policy points and 

an explanation of its evidentiary roots, the curious reader should 

consult in full Reynolds, 345 U.S. at 6-7, which has been described 

as the case that "established the doctrine in its modern form," 

El-Masri, 479 F.3d at 302.
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the interest of national security, should not be divulged.'" Fed. 

Bureau of Investigation v. Fazaga, 142 S. Ct. 1051, 1061 (2022) 

(quoting Reynolds, 345 U.S. at 10); see also Gen. Dynamics Corp., 

563 U.S. at 484 (observing that the privilege serves the 

"sometimes-compelling necessity of governmental secrecy" over 

"military, intelligence, and diplomatic" information). 

This "expansive and malleable" privilege can apply to 

different types of state secrets, such as materials and information 

that could, if made public, disclose our intelligence communities' 

information-gathering methods and/or capabilities, impair our 

country's defenses, and "disrupt[] . . . diplomatic relations with 

foreign governments." Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. 

Cir. 1983). Indeed, even if a party has made a "strong showing of 

necessity" for the discovery or use of such information, Reynolds, 

345 U.S. at 11, the state secrets privilege still applies in the 

face of "a reasonable danger" that the disclosure of the evidence 

in question would harm our national-security interests, Fazaga, 

142 S. Ct. at 1061 (quoting Reynolds, 345 U.S. at 10); see also

Reynolds, 345 U.S. at 11 ("[E]ven the most compelling necessity 

cannot overcome the claim of privilege if the court is ultimately 

satisfied that [state] secrets are at stake.").

Now, in the instant matter, as we know, the district 

court concluded the government's privilege assertion was properly 

interposed as a matter of procedure, and the information it covered 
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was indeed privileged. Sakab I, 2021 WL 8999588, at *3 ("[T]he 

government's assertion of the state secrets privilege is 

procedurally proper and validly taken."). That conclusion had the 

effect of completely excising the privileged material from the 

case. See Wikimedia, 14 F.4th at 302-03 (explaining that, "[o]nce 

a court determines that certain facts are state secrets, they are 

'absolutely protected from disclosure,'" and there can be "no 

attempt . . . to balance the need for secrecy of the privileged 

information against a party's need for the information's 

disclosure'" (quoting El-Masri, 479 F.3d at 306)); Al-Haramain

Islamic, Inc. v. Bush, 507 F.3d 1190, 1204 (9th Cir. 2007) 

(reasoning that "[t]he effect of the government's successful 

invocation of privilege 'is simply that the evidence is 

unavailable, as though a witness had died'" (quoting Ellsberg, 709 

F.2d at 64)).

As mentioned above, this is where that pivotal final 

part of the tripartite inquiry kicks in: What happens to a case 

in the wake of a successful assertion of the state secrets 

privilege? Well, "[i]f a proceeding involving state secrets can 

be fairly litigated without resort to the privileged information, 

it may continue." Wikimedia, 14 F.4th at 303 (quoting El-Masri, 

479 F.3d at 306). But "if 'any attempt to proceed will threaten 

disclosure of the privileged matters,'" id. (quoting El-Masri, 479 

F.3d at 306 (cleaned up)) -- if "the circumstances make clear that 
- 22 -

privileged information will be so central to the litigation that 

any attempt to proceed will threaten that information's 

disclosure," El-Masri, 479 F.3d at 308, and "maintenance of [the] 

suit" would risk disclosure, Mohamed, 614 F.3d at 1077, 1089 

(quoting Totten v. United States, 92 U.S. 105, 107 (1875)) -- then 

dismissal is not only appropriate, but necessary, El-Masri, 479 

F.3d at 308. Indeed, "[t]he Supreme Court has recognized that 

some matters are so pervaded by state secrets as to be incapable 

of judicial resolution once the privilege has been invoked." ElMasri, 479 F.3d at 306 (citing Totten, 92 U.S. at 107; Reynolds,

345 U.S. at 11 n.26).

Some situations that have required dismissal include 

those where: "the very subject matter of the action" (an espionage 

agreement being the oft-cited illustration) is a "matter of state 

secret," Reynolds, 345 U.S. at 11 n.26; a plaintiff cannot prove 

the prima facie elements of a claim without the use of privileged 

evidence; even supposing a plaintiff can make out a prima facie 

case without resort to privileged information, "the defendants 

could not properly defend themselves without using privileged 

evidence"; and any "further litigation would present an 

unjustifiable risk of disclosure," Wikimedia, 14 F.4th at 303 
- 23 -

(quoting Abilt v. Central Intelligence Agency, 848 F.3d 305, 313-

14 (4th Cir. 2017)).8

With these foundational guideposts laid out, "cognizant 

of the delicate balance to be struck in applying the state secrets 

doctrine," El-Masri, 479 F.3d at 308, we turn to our review.

Dismissal as a Consequence of the 

State Secrets Privilege Assertion

Our de novo review confirms that the district court was 

correct: Litigation of this case cannot proceed in the wake of 

the government's assertion of the state secrets privilege, and 

thus dismissal was necessary. Sakab urges otherwise, and we'll 

get to that, but as an initial matter, it is apparent to us that 

the privileged information is so central to this case that any 

8 The El-Masri court elaborated:

Although Totten has come to primarily represent a 

somewhat narrower principle -- a categorical bar on 

actions to enforce secret contracts for espionage -- it 

rested . . . on the proposition that a cause cannot be 

maintained if its trial would inevitably lead to the 

disclosure of privileged information. See 92 U.S. at 

107. And in Reynolds, while concluding that dismissal 

was unnecessary because the privileged information was 

peripheral to the plaintiffs' action, the Court made 

clear that where state secrets form the very subject 

matter of a court proceeding, as in Totten, dismissal at 

the pleading stage -- "without ever reaching the 

question of evidence" -- is appropriate. See 345 U.S. 

at 11 n.26.

479 F.3d at 306.
- 24 -

attempt to proceed with litigation of the suit would unduly risk 

disclosure and thereby compromise our national security. We 

explain, parrying Sakab's unavailing arguments and rejoinders as 

we go.9

9 As a threshold matter, Sakab takes aim at the district 

court's "rush to dismiss this action," deploying the "extreme 

remedy" of sua sponte dismissal. (Sakab links its sua-sponte 

related grievances in part to the protective order as a readily 

available alternative to dismissal, but we'll talk about the 

protective order later.)

Sakab is right that no formal dispositive motion had 

been docketed. To Appellees' way of thinking, and the district 

court's for that matter, that was a symptom of the larger problem

presented by the privilege assertion: Appellees represented they 

were unable to comprehensively buttress a motion to dismiss. See

Sakab II, 578 F. Supp. 3d at 143 (recapping that the show-cause 

directive was issued "[i]n response to [Appellees'] concerns that 

they cannot fairly defend themselves (or even substantiate a motion 

to dismiss) without recourse to privileged material"). Based on 

its own review and analysis, the district court, having gone 

through the first parts of the above-described tripartite test, 

Sakab I, 2021 WL 8999588, at *3-4, indicated dismissal seemed 

likely, but in a thorough and notice-imbued move, the court 

afforded Sakab the opportunity to explain why the case could go 

forward notwithstanding that lay of the land, id. at *4. After 

receiving that initial show-cause briefing, the court went 

further: It heard detailed arguments from Sakab, Appellees, and 

the government. It even allowed Sakab to file supplemental posthearing papers before ultimately dismissing the case. So while 

it's true the dismissal did not flow from a dispositive motion, 

this wasn't the sort of "strong medicine" sua sponte dismissal our 

case law warns about. Martinez-Rivera v. Sanchez Ramos, 498 F.3d 

3, 7 (1st Cir. 2007) ("The general rule is that in limited 

circumstances, sua sponte dismissals of complaints under Rule 

12(b)(6) are appropriate, but that such dismissals are erroneous 

unless the parties have been afforded notice and an opportunity to 

amend the complaint or otherwise respond.") (cleaned up). Rather, 

it was the natural result of the district court's close adherence 

to what the precedent demands in this sort of state secrets case, 

which dictated that dismissal would be the next step if further 

litigation would run afoul of the above-described principles. See

Wikimedia, 14 F.4th at 302-03. 
- 25 -

As the precedent shows, when the state secrets privilege 

is successfully interposed over information that is so central to 

the case that any further litigation presents too much risk of 

exposure of that information, the case must not go on. Here, as 

Appellees argue, the privileged information (as covered in the 

government's remarkably sweeping privilege assertion) forms the 

basis of the factual disputes in this case, so the case cannot be 

fairly litigated, and any attempt to do so would risk disclosure 

of state secrets. They are correct.

Courts should dismiss a state secrets case, even at the 

pleadings stage, see Fazaga, 142 S. Ct. at 1062 (observing that 

"the state secrets privilege . . . sometimes authorizes district 

courts to dismiss claims on the pleadings"), when "the 

circumstances make clear that privileged information will be so 

central to the litigation that any attempt to proceed will threaten 

that information's disclosure," Abilt, 848 F.3d at 313 (quoting 

El-Masri, 479 F.3d at 308); Mohamed, 614 F.3d at 1079 (cautioning 

that dismissal is necessary when litigation "would present an 

unacceptable risk of disclosing state secrets"); see also In re 

Sealed Case, 494 F.3d 139, 153 (D.C. Cir. 2007) [hereinafter Sealed 

Case] (reasoning that if "the subject matter of a case is so 

sensitive that there is no way it can be litigated without risking 

national secrets, then the case must be dismissed"). Critically, 

"[t]he controlling inquiry is not whether the general subject 
- 26 -

matter of an action can be described without resort to state 

secrets. Rather, we must ascertain whether an action can be 

litigated without threatening the disclosure of such state 

secrets." El-Masri, 479 F.3d at 308. And "[t]hus, for purposes 

of the state secrets analysis, the 'central facts' and 'very 

subject matter' of an action are those facts that are essential to 

prosecuting the action or defending against it." Id.

Recall that the privilege assertion here covered 

"information concerning sources, methods, capabilities, 

activities, or interests of the [U.S. Intelligence Community]," 

plus "information that might tend to reveal or disclose the 

identities of U.S. Government employees, affiliates, or offices 

with whom one or more of the parties or the [KSA] may have had 

certain interactions and the disclosure of which would be damaging 

to U.S. national security interests." This is not a narrow 

interposition of privilege. Cf. Wikimedia, 14 F.4th at 282 

(privilege assertion covered certain categories of information 

concerning a surveillance system used by the National Security 

Agency); Sealed Case, 494 F.3d at 153 (privilege was interposed 

over certain portions of two internal government reports). This 

privilege assertion covers a wide swath of information -- and was 

"intended to specifically include information known to [Aljabri] 

about such matters that he seeks to introduce or disclose in this 

action, whether through documents, testimony, affidavits, or 
- 27 -

declarations, as part of his response and defense to pending claims 

and motions." 

Now recall that the basic theory of Sakab's case is that 

Aljabri misappropriated massive sums of money from Sakab, and 

Appellees say the allegedly fraudulent transactions were actually 

legitimate, directed by the then-leadership of the KSA and made in 

connection with Aljabri's work on sensitive operations with, or at 

least alongside, the U.S. Intelligence Community. So, if the case 

were to proceed, the facts critical to its litigation and 

adjudication would center on getting to the bottom of those 

transactions and their nature. To that end, the parties would be 

seeking, inter alia, evidence about Aljabri's role and 

relationships with U.S. agencies, the degree of Aljabri's 

authority, how he participated in the programs and operations, who 

else was involved, the existence and execution of the operations 

themselves, who authorized and paid for them, and who then directed 

payment to or through Aljabri -- not to mention the whens, wheres, 

whys, and inverses of any of these things. 

All of this is suffused with sensitive information, and 

discovery of any of this cannot be undertaken without risking 

disclosure of information that has been swept into oblivion by the 

incredibly broad privilege assertion. See, e.g., El-Masri, 479 

F.3d at 309 ("Even marshalling the evidence necessary to make the 

requisite showings would implicate privileged state secrets, 
- 28 -

because El-Masri would need to rely on witnesses whose identities, 

and evidence the very existence of which, must remain confidential 

in the interest of national security."); see also Mohamed, 614 

F.3d at 1087 (finding dismissal was required "because there [was] 

no feasible way to litigate [the] alleged liability without 

creating an unjustifiable risk of divulging state secrets"); 

Sterling v. Tenet, 416 F.3d 338, 347-49 (4th Cir. 2005) (affirming 

dismissal at the pleading stage when the facts central to the 

action's litigation consisted of state secrets, noting that "the 

very methods by which evidence would be gathered in this case are 

themselves problematic"). Indeed, all of this information 

comprises the "central facts" of the action, i.e., "facts that are 

essential to prosecuting the action or defending against it." ElMasri, 479 F.3d at 308. The district court was right when it 

observed as much. See, e.g., Sakab I, 2021 WL 8999588, at *2 

(stating that "the disposition of this matter threatens 

th[e government's] interest" in preventing disclosure of state 

secrets, and "[n]otwithstanding [Sakab]'s request for a 

disposition without consideration of the merits, the subject 

matter of [this] action for fraud is [Appellees'] property and 

transactions which implicate the state secrets claim asserted by 

the government"). 

This dynamic is compounded by the fact that, as both 

Appellees and the government point out, "both sides have an 
- 29 -

incentive to probe up to the boundaries of state secrets" -- or 

even beyond. Gen. Dynamics Corp., 563 U.S. at 487. Indeed, we're 

mindful that when parties "have every incentive to probe 

dangerously close to the state secrets themselves," it's possible 

that "state secrets could be compromised even without direct 

disclosure." Fitzgerald v. Penthouse Intl'l, Ltd., 776 F.2d 1236,

1243 & n.10 (4th Cir. 1985) ("For example, if a witness is 

questioned about facts A and B, the witness testifies that fact A 

is not a military secret, and the government objects to any answer 

regarding fact B, by implication one might assume that fact B is 

a military secret."). It is all too easy to envision discovery 

and trial scenarios in which each side would press for information, 

documents, or answers to questions (perhaps posed to "witnesses 

with personal knowledge of relevant [state] secrets," id.) that 

flirt with the boundaries of the state secrets privilege here. 

With this privilege assertion being so broad, the parties would 

crash into its outer limits with nearly every propounded discovery 

request or deposition question, not to mention the risks of probing 

things at trial.

Sakab suggests that some of this information would be 

discoverable without running afoul of the privilege's bounds or 

that it could be disentangled from that which is privileged. Sakab 

complains that no one has even tried to litigate what, exactly, 

could be litigated, so that litigation could proceed on an 
- 30 -

unprivileged record. But such a feat is impossible on the facts 

of a case like this, with a very broad privilege assertion and a 

complaint that centers on conduct and events awash in privileged 

secrecy. Even an attempt to do what Sakab is asking could risk 

disclosure.10 This is the whole point. All of the pertinent 

information is simply too entwined, and (emphasis ours) "any 

attempt to proceed [with litigation would] threaten disclosure of 

the privileged matters." Wikimedia, 14 F.4th at 303 (quoting ElMasri, 479 F.3d at 306 (cleaned up)); see also Mohamed, 614 F.3d 

at 1088; El-Masri, 479 F.3d at 308-09.

Sakab would have us fault the district court for 

neglecting to isolate the privileged information from that which 

is public and discoverable. But the district court was not 

permitted to disentangle the information here, certainly not after 

it had already deemed the privilege assertion valid (and nobody 

objected to that conclusion). Remember, a district court can look 

to any evidence it deems necessary when it is trying to figure out 

whether the information at issue encompasses state secrets, "[b]ut 

after a court makes that determination, the privileged evidence is 

excised from the case," Wikimedia, 14 F.4th at 303, like a witness 

died, Al-Haramain, 507 F.3d at 1204, and (emphasis ours) "not even 

10 Sakab also urges, without citation, that dismissal isn't 

appropriate in the face of litigation that "merely risks (rather 

than requires) disclosure." Our above discussion of the precedent 

amply refutes this. 
- 31 -

the court may look at such material in camera" after that, 

Wikimedia, 14 F.4th at 303 (collecting cases). So at this 

juncture, the evidence cannot be evaluated ex parte and in camera 

to disentangle it. See Sterling, 416 F.3d at 348, 349 (explaining 

that a court is "neither authorized nor qualified to inquire 

further" into privileged matters -- "even in camera"). 

And in any event, even if some non-privileged evidence 

could have been extracted for use in litigation, recall that

litigants must be able to do more than just discuss a case in 

general terms -- they need to have access to the information 

necessary to actually litigate the case. See El-Masri, 479 F.3d 

at 310; see also, e.g., Wikimedia, 14 F.4th at 303-04 (observing 

that "'it would be a mockery of justice . . .' to permit Wikimedia 

to substantiate its claims by presenting its half of the evidence 

to the factfinder as if it were the whole" (quoting Sealed Case, 

494 F.3d at 148)). Whether some facts can be set forth without 

revealing state secrets -- and perhaps that has been the case to 

some extent here -- isn't our inquiry.11 The point is that the 

11 Sakab maintains that litigation is possible here because 

Appellees have been "freely litigating" in the Ontario matter 

without reference to confidential information. We have a few 

issues with this argument and its premise, though. For one thing, 

it's not at all clear that Appellees have been able to do as much 

as they'd like by way of defense in that suit or otherwise 

meaningfully and fully litigating it since the same state-secrets 

obstacle presents in Canada. The attendant barriers to litigation 

presented here appear to be in play there too. Our appellate 

record suggests the Ontario case has not proceeded to discovery 
- 32 -

essential factual questions central to the resolution of this case 

can't be fairly litigated without unduly threatening disclosure of 

state secrets. See El-Masri, 479 F.3d at 308.

Related to its "disentangle the secret materials" 

proposition, Sakab urges that the government's proposed protective 

order was a perfectly viable alternative to dismissal. According 

to Sakab, the district court should have just safeguarded the 

sensitive materials using the government-approved protective order 

and proceeded with litigation from there.12

yet, and, just as they've argued here, Appellees have argued in 

Canada that the case shouldn't proceed because of state secrets. 

In fact, last we knew, Canada's Federal Court had undertaken 

proceedings to determine whether Appellees' evidence is 

privileged, the outcome of which will impact the course of the 

Ontario litigation. The parties appear to be in a holding pattern 

while that process plays out. 

Moreover, it's somewhat beside the point that Appellees 

may or may not be saying "more" or enough to defend in Canada, as 

Sakab asserts; the inquiry we're presented with is whether the 

case can be litigated here. Our government's privilege assertion 

is in full force and effect in the matter before us, and that's 

what everyone (us included) is up against here.

12 On the topic of the protective order, Sakab posits that the 

government advised against dismissal as premature and "propos[ed] 

to move forward with the litigation" of Sakab's case under the 

proposed protective order. The record before us is clear: The 

government did not advise against dismissal, and in floating its 

proposed protective order, it took no position on the propriety of 

dismissal. Both below and before this court, the government has 

consistently taken no position on whether the successful privilege 

assertion means the case should be dismissed (or on the impact of 

the privilege on the preliminary relief Sakab seeks, for that 

matter). And we decline to read into what Sakab calls "the 

[g]overnment's measured forbearance" and intuit that, by not 

affirmatively recommending dismissal as it does (Sakab says) "more 
- 33 -

Our response to this suggestion echoes what has already 

been carefully elucidated by the Ninth Circuit: 

Our conclusion [that further litigation poses an 

unacceptable risk of disclosure of state secrets] holds 

no matter what protective procedures the district court 

might employ. Adversarial litigation, including 

pretrial discovery of documents and witnesses and the 

presentation of documents and testimony at trial, is 

inherently complex and unpredictable. Although district 

courts are well equipped to wall off isolated secrets 

from disclosure, the challenge is exponentially greater 

in exceptional cases like this one, where the relevant 

secrets are difficult or impossible to isolate and even 

efforts to define a boundary between privileged and 

unprivileged evidence would risk disclosure by 

implication. In these rare circumstances, the risk of 

disclosure that further proceedings would create cannot 

be averted through the use of devices such as protective 

orders or restrictions on testimony.

Mohamed, 614 F.3d at 1089. So it is here.13

often than not," the government nonetheless is staking out some 

sort of position on this or that it proves the government's belief 

error was committed. Indeed, as the government pointed out at 

oral argument, the U.S. doesn't need to support dismissal in order 

to protect state secrets, particularly where the United States

isn't a party to this suit between private parties.

13 We reject Sakab's characterization of the risk-ofdisclosure precedent as not justifying dismissal -- that the case

law limits us to three situations in which dismissal is required 

(the very subject matter was a state secret, plaintiffs can't show 

a prima facie case, defendants can't properly defend) and the 

concept of any attempt to proceed risking disclosure is in essence 

just "a different label" for the first type of scenario (the very 

subject of litigation is a state secret). Not so. 

The standard is that dismissal is required when any 

attempt to proceed would risk or require disclosure of privileged 

information -- and the case law bears out examples of circumstances 

in which dismissal would protect against that risk (like when a 

plaintiff cannot prove the prima facie elements of a claim without 

the use of privileged evidence, or a defendant can't properly 
- 34 -

Bottom line: "[S]ome matters are so pervaded by state 

secrets as to be incapable of judicial resolution once the 

privilege has been invoked," El-Masri, 479 F.3d at 306, and this 

is one such matter. "[T]he circumstances make clear that 

privileged information [is] so central to the litigation that any 

attempt to proceed will threaten that information's disclosure." 

Id. at 308; see also Wikimedia, 14 F.4th at 303; Mohamed, 614 F.3d 

at 1077, 1089 (quoting Totten, 92 U.S. at 107); Sterling, 416 F.3d 

at 347-49; Fitzgerald, 776 F.2d at 1243.14 

Before we move along, a few final words. We recognize 

that the successful assertion of the state secrets privilege can 

defend without using that information). It's our job to examine 

the nature of the privileged information and its centrality to the 

anticipated litigation as a whole, then weigh the risk of 

disclosure if that litigation proceeds. It's clear to us that 

this case runs this risk for the many reasons described above.

14 Our conclusion that, from all the circumstances, privileged 

information will be so central to the litigation that any attempt 

to proceed will threaten the information's disclosure means we 

need not specifically address the availability-of-defenses

quarrel. We do note, though, that it's clear on the facts of this 

case the issues are linked (emphases ours): "Circumstances in 

which any valid defense would require resort to privileged 

materials are those in which 'state secrets are so central to [the] 

proceeding that it cannot be litigated without threatening their 

disclosure.'" Wikimedia, 14 F.4th at 304 (quoting El-Masri, 479 

F.3d at 308). See also Gen. Dynamics Corp., 563 U.S. at 486 

("Where liability depends upon the validity of a [certain] defense,

and when full litigation of that defense would inevitably lead to

the disclosure of" state secrets, neither party can obtain judicial

relief. (cleaned up)); id. ("It is claims and defenses together

that establish the justification, or lack of justification, for 

judicial relief.").
- 35 -

result in a harsh outcome for litigants who want a case to proceed. 

See, e.g., Sealed Case, 494 F.3d at 148 ("As Judge Learned Hand

observed, a claim of the state secrets privilege will often impose 

a grievous hardship, for it may deprive parties . . . of power to 

assert their rights or to defend themselves. That is a consequence 

of any evidentiary privilege." (cleaned up)); Fitzgerald, 776 F.2d 

at 1238 n.3 ("When the state secrets privilege is validly asserted, 

the result is unfairness to individual litigants -- through the 

loss of important evidence or dismissal of a case -- in order to 

protect a greater public value."). In this matter, the specific 

reasons for the government's assertion of the state secrets 

privilege were explained in the classified declarations we 

mentioned many pages ago. Those declarations provide detailed 

descriptions of the nature of the information that our Executive 

wants to protect, and they also explain why disclosure would 

threaten our national security. The declarations decisively 

inform and support our conclusion today. We can appreciate the 

frustration of not being in the know when it comes to some of the 

specific (classified) reasons supporting dismissal here. Sakab

voices concerns about "graymail tactics" being used by Appellees 

(or, as a policy matter, by any defendants who happen to have

knowledge of state secrets) to thwart litigation against them by 

harnessing or weaponizing state secrets that aren't actually at 

issue to secure a dismissal. Perhaps these concerns are 
- 36 -

understandable in the abstract, but they are misplaced: The

requisite layers of review and scrutiny we've already described in 

detail provide protection against that type of strategic

gamesmanship and prevent attempts to abuse state secrets, and here, 

that review and scrutiny counsel our outcome. 

Having answered the threshold "can the case proceed" 

question in the negative, we now must answer this question: 

Notwithstanding the fact that the case can't be litigated and must 

be dismissed as a result of the assertion of the state secrets 

privilege, is Sakab nevertheless entitled to the preliminary 

relief it seeks?

Preliminary Relief

Before the district court, Sakab sought a few types of

preliminary relief: prejudgment attachment; a recording of lis 

pendens; and a stay of the Massachusetts case pending the outcome 

of the Ontario action. 

Pursuant to our above analysis, litigation of the case 

can't proceed, and the complaint must be dismissed. But Sakab 

says that doesn't necessarily mean it isn't entitled to some 

preliminary equitable relief. Truth be told, Sakab has represented 

throughout the Massachusetts case that it doesn't even want to 

pursue litigation here -- it just wants to encumber the subject 

Massachusetts properties and to then secure a stay of the action 

pending a final judgment in Ontario, where it plans to litigate 
- 37 -

the merits. And in Sakab's telling, we need not pull at the statesecrets thread or consider the merits of Sakab's complaint to 

provide it with preliminary relief. Like the district court, we 

are not persuaded.

Prejudgment Attachment

Sakab argues the district court's handling of the 

prejudgment attachment relief issue was both premature and 

substantively wrong. Given the nature and posture of this case, 

we disagree with Sakab's contentions.

As a threshold matter, Sakab says any disposition of the 

prejudgment attachment was premature because there was no pending 

motion for that relief. But the district court clearly understood 

that requested relief to be before it. And rightly so. Not only 

did Sakab reiterate its interest in and affirmatively argue the 

prejudgment attachment issue to the district court in its various 

papers and at the November 2021 show-cause hearing, but also the 

record reflects that Sakab had a pending motion (with memorandum 

of law in support and proposed findings) for prejudgment attachment 

in state court, meaning it was transferred with the record to the 

district court. See L.R., D. Mass. 81.1 (providing for filing of 

state court record upon removal). The issue of prejudgment 

attachment was squarely presented to the district court. And in 

any event, as we'll explain, the district court's point was that 
- 38 -

any such motion would be untenable for the reasons it offered. So 

let's get into that.

According to Rule 64(a) of the Federal Rules of Civil 

Procedure, which incorporates state law to determine the 

availability of a prejudgment attachment of property, a court may 

grant every remedy, under the law of the state where the court is 

located, that "provides for seizing a person or property to secure 

satisfaction of the potential judgment." Fed. R. Civ. P. 64(a); 

Grupo Mexicano, 527 U.S. at 330-31. In Massachusetts, Rule 4.1 of 

the Rules of Civil Procedure, along with chapter 223, section 42 

of Massachusetts General Laws, direct the availability of 

prejudgment attachment. Rule 4.1(a) instructs that, "[s]ubsequent 

to the commencement of any action under these rules, real estate, 

goods and chattels and other property may, in the manner and to 

the extent provided by law, but subject to the requirements of 

this rule, be attached and held to satisfy the judgment for damages 

and costs which the plaintiff may recover." Mass. R. Civ. P. 

4.1(a). Before ordering a prejudgment attachment, a court must 

first find that "there is a reasonable likelihood that the 

plaintiff will recover judgment, including interest and costs, in 

an amount equal to or greater than the amount of the attachment 

over and above any liability insurance shown by the defendant to 

be available to satisfy the judgment." Mass. R. Civ. P. 4.1(c); 

see also Mass. Gen. Laws ch. 223, § 42 (2022) (providing (with 
- 39 -

exceptions not relevant to this case) that all real property "may 

be attached upon a writ of attachment in any action in which the 

debt or damages are recoverable, and may be held as security to 

satisfy such judgment as the plaintiff may recover").

The district court reasoned that Sakab could not make 

the prerequisite showing of a reasonable likelihood of success on 

the merits without implicating state secrets. See Sakab II, 578 

F. Supp. 3d at 144. And the district court declined to "rule as 

an exercise of comity with respect to the interlocutory decisions

of the Ontario" court that Sakab "has satisfied the reasonable 

likelihood standard," particularly when Sakab could not point to 

examples of a federal court doing what Sakab was seeking. Id. 

Indeed, as the district court explained, "Rule 64 limits the 

available prejudgment remedies to those which 'secure satisfaction 

of the potential judgment,'" id. (quoting and emphasizing Fed. R. 

Civ. P. 64), while "Rule 4.1 likewise limits prejudgment relief to 

that which can be 'held to satisfy the judgment . . . which the 

plaintiff may recover,'" id. (quoting and emphasizing Mass. R. 

Civ. P. 4.1(a)). Each of these rules talk about "the" (not "a") 

judgment (if there is one) obtained in the action before that 

court, and they do not "contemplate that the likelihood of success 

in another, foreign action can justify prejudgment attachment in 

the action at hand." Sakab II, 578 F. Supp. 3d at 144.
- 40 -

And, as the district court observed, section 42 stymies 

Sakab's argument with a one-two punch: 

[F]irst, in prescribing attachment in actions in which 

the debt or damages are demonstrably recoverable, which 

is not this case, and second, in designating attachment 

as security to satisfy "such judgment as the plaintiff 

may recover", a phrase which read in context gives no 

indication of encompassing judgments recovered in other, 

foreign jurisdictions.

Id. (quoting ch. 223, § 42).

This is all correct. Despite Sakab's efforts to 

demonstrate otherwise,15 Massachusetts' law and Rule 4.1 are clear 

and do not require any mental gymnastics given the posture of this 

case: This attachment relief is available only upon a finding of 

reasonable likelihood of success. That likelihood of success could 

not be shown in this case for all the state-secrets reasons much 

15 For example, Sakab writes that the district court 

"mistakenly assumed that the prejudgment attachment on the basis 

of comity would secure a potential Ontario judgment," apparently 

suggesting that Sakab wanted an adjudication of its Massachusetts 

case. This is difficult to square with Sakab's representations 

below that the district court didn't need to "consider the 

underlying evidence of the parties' claims and defenses" in the 

Massachusetts case because the court could just accord comity to 

the Ontario court's rulings. But it's clear to us the focus by 

Sakab was and is on using the Ontario Mareva injunction to secure 

preliminary relief in Massachusetts. If the name of Sakab's game 

had been to secure relief in Massachusetts based on the 

Massachusetts state law complaint, it would have needed to show a 

likelihood of success on that complaint. For the same reasons 

we've explained and continue to explicate, that merits inquiry 

could not be assessed because of the assertion of the state secrets 

privilege.
- 41 -

discussed to this point -- doing so would tread too closely to the 

boundaries of the privilege assertion, and too much evidence was 

swept up within that assertion. There is no precedent compelling

us to forgo the touchstone merits inquiry necessary to meet Rule 

4.1's requirements by relying on comity to Ontario's preliminary 

injunction -- a Mareva injunction at that16 -- which provides only 

that, as a typical pre-discovery, asset-freezing injunction matter 

(as opposed to a final foreign judgment, which Sakab does not 

have), Sakab was likely to prevail in the Ontario case -- not the 

Massachusetts case. 

Lis Pendens

Sakab also asked the district court to issue a lis 

pendens recording and then stay the matter, and argues here that 

the district court circularly rejected that request based on its 

erroneous conclusion that dismissal of the case proper was required 

based on the state secrets privilege. Rather, Sakab argues, the 

district court should have simply issued the lis pendens, stayed 

the case to preserve the Massachusetts action without any risks to 

16 Global, asset-freezing Mareva orders -- "a powerful tool 

for general creditors," Grupo Mexicano, 527 U.S. at 329 -- are 

unavailable here in the United States, where our Supreme Court has 

said "[e]ven when sitting as a court in equity, we have no 

authority to craft a 'nuclear weapon' of the law like the one 

advocated here," id. at 332-33. See also id. at 333 ("The debate 

concerning this formidable power over debtors should be conducted 

and resolved where such issues belong in our democracy: in the 

Congress.").
- 42 -

national security, and awaited a final judgment in the Ontario 

case. These arguments, though, do not persuade.

"Lis pendens" means "[a] pending lawsuit." Lis Pendens, 

Black's Law Dictionary (11th ed. 2019); see also id. ("A notice, 

recorded in the chain of title to real property, required or 

permitted in some jurisdictions to warn all persons that certain 

property is the subject matter of litigation, and that any 

interests acquired during the pendency of the suit are subject to 

its outcome."). And specifically under Massachusetts law, a 

memorandum or recording of lis pendens may issue if a case's 

subject matter concerns a claim of title to real property. See

Mass. Gen. Laws ch. 184, § 15(b). Indeed, a lis pendens is a tool 

meant to provide recorded notice of lawsuits that impact title to 

real property. See, e.g., Wolfe v. Gormally, 802 N.E.2d 64, 67-

68 (Mass. 2004) (citing and discussing evolution of ch. 184, § 15); 

id. at 70 (concluding that the record title at issue should 

"reflect the pendency of [an] action so as to give notice to 

prospective purchasers of the contested lots that the proposed use 

of those lots is subject to active legal challenge," so approval 

of the memorandum of lis pendens was appropriate); Debral Realty,

Inc. v. DiChiara, 420 N.E.2d 343, 347 (Mass. 1981) ("A memorandum 

of lis pendens, like an attachment of real estate, temporarily 

restricts the power of a landowner to sell his or her property, by 

depriving the owner of the ability to convey clear title while the 
- 43 -

litigation is pending."). In explaining the history and policy 

undergirding the lis pendens mechanism, the Wolfe court observed 

that the lis pendens statute "thus allowed courts to retain control 

over the subject matter of the litigation while the action was 

pending," 802 N.E.2d at 67 (citing F.T. Talty, P.S. Talty, et al., 

Methods of Practice § 8:19 (4th ed. 2000)), "and protected 

prospective buyers by enabling them to obtain 'notice of pending 

litigation affecting title' through the registry of deeds, in the 

same way that they searched for record encumbrances," id. (quoting 

DiChiara, 420 N.E.2d at 346).

Particularly in view of this policy context, we conclude

the district court got the lis pendens issue right, too. The 

district court rightly explained that a lis pendens is derivative 

of the underlying claims -- it should reflect an action's pendency. 

Sakab II, 578 F. Supp. 3d at 145 (citing Wolfe, 802 N.E.2d at 70). 

It thus declined to issue the lis pendens here because "the 

underlying proceeding to which the lis pendens would refer consists 

of ten claims [(the entirety of Sakab's complaint, that is)] which 

the Court has determined must be dismissed." Id.

Indeed, the point of a lis pendens is that it's linked 

to litigation -- the idea being that pending litigation is what 

the lis pendens is meant to warn third parties about. So, given 

the circumstances of this matter -- we and the district court 

having determined the suit will be dismissed -- can a lis pendens 
- 44 -

issue nonetheless? There is no pending Massachusetts lawsuit, 

nothing over which the court should or could retain control, see

Wolfe, 802 N.E.2d at 67 (observing the lis pendens statute "allowed 

courts to retain control over the subject matter of the 

litigation while the action was pending"), so we think not. Sakab 

calls this reasoning circular, but really it's a typical linear 

sequence of legal analysis wherein one determination dictates the 

outcome of the next. And like in the district court, the sequence 

here ends with us rejecting Sakab's lis pendens position. 

Also problematic in Sakab's lis-pendens-and-stay 

asseveration: There is no Massachusetts precedent that requires 

issuance of a lis pendens recording for an indefinite duration --

and not on the merits of "the underlying proceeding," ch. 184, 

§ 15(b), but instead on the (as yet undetermined) merits of a 

foreign proceeding. Indeed, what Sakab is after is encumbrances 

of Appellees' real estate in Massachusetts, pre-foreign judgment, 

and an indefinite stay of a Massachusetts case it has no intention 

of trying to litigate during the pendency of the foreign suit. 

Sakab is right, of course, that sometimes our courts will stay 

litigation pending the outcome of parallel litigation abroad. But 

the non-binding cases17 to which Sakab points us don't support what 

17 Louis Vuitton N. Am., Inc. v. Schenker S.A., No. 17-CV7445, 2019 WL 1507792, at *1 (E.D.N.Y. Mar. 31, 2019); Pexcor Mfg. 

Co., Inc. v. Uponor AB, 920 F. Supp. 2d 151, 152 (D.D.C. 2013); 

Argus Media Ltd. v. Tradition Fin. Servs. Inc., No. 09 Civ. 
- 45 -

Sakab is trying to do here: Those cases don't involve stays sought 

by the plaintiffs in U.S. suits in the wake of an order encumbering 

a defendant's property, nor do they involve a U.S. court putting 

a lien on property for the pendency of litigation in a foreign 

forum without also entertaining a merits defense against that lien. 

Stay

To be clear, the result of our prejudgment attachment 

and lis pendens analyses is that Sakab is not entitled to a stay 

that would hinge on or flow from either of those forms of relief. 

To the extent Sakab is seeking a stay simpliciter, untethered to 

any property-secured equitable relief, we likewise conclude it is 

not entitled to that relief. The case is dismissed; there is 

nothing to stay. And we decline to revive the case just to 

indefinitely stay it while the Ontario litigation plays out. To 

do so is unsupported by our precedent and runs counter to the idea 

that Appellees, as defendants to this ten-count complaint,18 are

entitled to defend against it rather than being stuck in unlimited

limbo.

7966(HB), 2009 WL 5125113, at *1 (S.D.N.Y. Dec. 29, 2009); 

Goldhammer v. Dunkin' Donuts, Inc., 59 F. Supp. 2d 248, 250, 256 

(D. Mass. 1999); Evergreen Marine Corp. v. Welgrow Int'l Inc., 954 

F. Supp. 101, 102-03 (S.D.N.Y. 1997).

18 And of note, Sakab's state law complaint does not include 

a claim to recognize or enforce a foreign judgment under 

Massachusetts' Uniform Enforcement of Foreign Judgments Act, Mass. 

Gen. Laws ch. 218, § 4A.
- 46 -

In the end, Sakab has not demonstrated it is entitled at 

this time to any of the preliminary relief it requested.19

CONCLUSION

For the foregoing reasons, we affirm the order of the 

district court. Each side shall bear its own costs.

19 That said, Sakab's toolkit is not empty. Ontario's Mareva 

injunction includes the Massachusetts properties. The 

comprehensive receivership order likewise lists the Massachusetts 

properties, along with a Washington, D.C. property and shares in 

a Canadian company. Should Sakab secure the judgment in Ontario, 

nothing in today's opinion should be read to prevent it from 

pursuing remedies here.