PROGRAM OF RELIGIOUS PERSECUTION

A. The Expropriation of the Bigios’ Property Violated the Law of Nations.

The sequestration and subsequent nationalization of the Bigios’ factories and land, pursuant to a systematic program designed to persecute and rid Egypt of its Jews, unquestionably violated the law of nations. This Court and other Courts of Appeals have looked to the Restatement to determine the content of international law. See Kadic, 70 F.3d at 240 n.3; Princz v. Republic of Germany, 26 F.3d 1166, 1173 (D.C. Cir. 1994); United States v. Nippon Paper Industries, Co., Ltd., 109 F.3d 1, 9-11 (1st Cir. 1997) (Lynch, J., concurring), cert. denied, 118 S. Ct. 685 (1998). The persecution of the Bigio family qualified under two of the eight categories of offenses proscribed by the law of nations, as set forth in Section 702 of the Restatement: (i) systematic racial discrimination (subsection f); and (ii) a consistent pattern of gross violations of internationally recognized human rights (subsection g) (Bigio Br. 27-41; Yale Br. 10-25; IAJLJ Br. 3-12).

B. Coca-Cola’s Interpretation of the Content of the Law of Nations Is Inconsistent With the Law of This Circuit and With the Restatement.

Coca-Cola first urges this Court to turn back the hands of time and apply international law as it existed 35 years ago (Coca-Cola Br. 27). This Court has repeatedly rejected such calls. In Kadic v. Karadzic, 74 F.3d 377, 378 (2d Cir. 1996), for example, this Court said:

[C]ourts ascertaining the content of the law of nations "must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." (Emphasis added.)

Coca-Cola also contends that systematic religious discrimination is not within the law of nations because subsection (f) of Section 702 only explicitly proscribes systematic racial discrimination (Coca-Cola Br. 31). Although the Comments and Reporters’ Notes to Section 702 plainly equate racial and religious discrimination, Coca-Cola dismisses these as non-binding "aspirational principles" (Coca-Cola Br. 32). These arguments do not withstand scrutiny. This Court has traditionally looked to the Reporters’ Notes and Comments to give content to the principles contained within the Restatement. See Kadic, 70 F.3d at 240, 244; Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 424 (2d Cir. 1987), rev’d on other grounds, 488 U.S. 428 (1989); see also Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1516 n.63, 1535 n.154, 1568 n.3 (D.C. Cir. 1984) (en banc), rev’d on other grounds, 471 U.S. 1113 (1985).

Coca-Cola’s cramped reading of Section 702 as a static legal code is also at odds with the interpretive principles prescribed by Section 702 and by this Court. Section 702 states that its category of eight offenses, as of 1987, "is not necessarily complete, and is not closed: human rights not listed in this section may have achieved the status of customary law, and some rights might achieve that status in the future." Comment a to Section 702 (citation omitted). This Court has endorsed that view, stating that is has "neither the authority nor the inclination to retreat" from its conclusion — announced in Filartiga — that it is "the law of this Circuit that the Alien Tort Act has a broad scope" and that courts must analyze the content of international law as it exists today. Kadic, 74 F.3d at 378 (denying motion for rehearing en banc); see also Kadic, 70 F.3d at 241 (cautioning courts to be "mindful of the important precept that ‘evolving standards of international law govern who is within the [Alien Tort Act’s] jurisdictional grant’") (citation omitted).

Nor is there any basis for Coca-Cola’s argument that a "property exception" is embedded within the universal condemnation of religious or racial persecution. After an exhaustive examination of the prohibition against religious and racial persecution contained in treaties, judicial opinions of international tribunals, resolutions of international organizations, and opinions of respected commentators, Amicus Yale concluded (Yale Br. 26, emphasis added):

Virtually every authoritative instrument and body of the international community has condemned religious and racial discrimination unequivocally. Notably, not one of these sources supports the district court’s view that the prohibitions against religious and racial discrimination cease to function when anti-Semitic seizures of citizens’ property are at issue.

Further, the statement in Comment k to Section 702 that there is "wide disagreement" about the scope and content of the right to own property (Coca-Cola Br. 33) does not mean that there is "wide disagreement" about whether States may expropriate, on a discriminatory basis, its residents’ property as a matter of policy. The portion of Comment k that Coca-Cola fails to cite makes this clear: "All states have accepted a limited core of rights to private property, and violation of such rights, as state policy, may already be a violation of customary law." (Emphasis added). Indeed, it is inconceivable that a virulent, state-sponsored campaign of racial or religious persecution would not violate international law on the ground that it "only" sought the extermination of a despised racial or religious group by means of the expropriation of their houses, businesses, real property, and personal effects.

C. Proving State Action Is Unnecessary and, in Any Event, It Cannot Be Proved Without Discovery.

Proof that Coca-Cola acted "in concert" with Egypt is not required to establish a violation of the ATCA (Bigio Br. 37-38); see also Doe I v. Islamic Salvation Front (FIS), 993 F. Supp. 3, 7 (D.D.C. 1998) (noting that Kadic "made it clear that" offenses of "universal concern" are exceptions to the state-action requirement and that piracy, slave trade, war crimes, and aircraft hijacking are "not the exclusive exceptions"). Even if a state-action requirement does exist, discovery is needed to determine the extent to which Coca-Cola "act[ed] together with" or "with significant . . . aid" from the Egyptian government. Kadic, 70 F.3d at 245. Reversal is required to enable the plaintiffs to determine, for example, whether Coca-Cola benefited in some way from the unlawful 1962 expropriation, or whether it acquired in 1994 the assets — and not just the shares — of ENBC, as its public statements suggest. See, e.g., JA 168 (Coca-Cola press release reporting the "purchase" of ENBC). See also Sutera v. Schering Corp., 73 F.3d 13, 18 (2d Cir. 1995) (stating that "it cannot be said that plaintiff had a full and fair opportunity" to oppose the motion for summary judgment granted before any discovery had taken place); Gary Plastic Packaging v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 756 F.2d 230, 237 (2d Cir. 1985) (reversing grant of summary judgment where plaintiff was "forced" to oppose motion "without knowledge of many material facts").

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