Peterson v. Islamic Republic of Iran, No. 15-0690 (2d Cir. 2017)

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Judgment creditors of the Islamic Republic of Iran and Iran's Ministry of Intelligence and Security sought to enforce underlying judgments obtaining the turnover of $1.68 billion in bond proceeds allegedly owned by Bank Markazi. The Second Circuit held that the settlement agreements released plaintiffs' non-turnover claims with respect to some but not all of the banks; the assets at issue were in fact located abroad, but that those assets may nonetheless be subject to turnover under state law pursuant to an exercise of the court's in personam jurisdiction, inasmuch as the district court has the authority under New York State law to direct a non‐sovereign in possession of a foreign sovereignʹs extraterritorial assets to bring those assets to New York State; and those assets will not ultimately be subject to turnover, however, unless the district court concludes on remand that such in personam jurisdiction exists and the assets, were they to be recalled, would not be protected from turnover by execution immunity. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings.

The court issued a subsequent related opinion or order on June 22, 2020.

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15 0690 Peterson v. Islamic Republic of Iran 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2015 (Argued: June 8, 2016 4 Decided: November 21, 2017*) Docket No. 15 0690 5 6 7 8 Deborah D. Peterson, et al., Plaintiffs Appellants, 9 v. 10 11 12 Islamic Republic of Iran, Bank Markazi, AKA Central Bank of Iran, Banca UBAE, S.p.A., Clearstream Banking, S.A., JPMorgan Chase Bank, N.A., Defendants Appellees.** 13 14 Before: POOLER, SACK, and LOHIER, Circuit Judges. The plaintiffs appellants, judgment creditors of the Islamic Republic of 15 16 Iran and Iran s Ministry of Intelligence and Security, seek to enforce their 17 underlying judgments by obtaining the turnover of $1.68 billion in bond The decision on this appeal has been delayed for some six months pending the completion of proceedings before the panel with respect to transferring a substantial amount of material in the record that was filed by the parties under seal to the public files of the Court in light of the public s presumptive right of access to judicial documents. Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 (2d Cir. 2004); see also Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). * The Clerk of Court is respectfully directed to amend the official caption to conform to the caption as it appears above. A complete list of plaintiffs in this appeal is attached as an appendix to this opinion. ** 15 0690 Peterson v. Islamic Republic of Iran 1 proceeds allegedly owned by Bank Markazi, Iran s central bank. The bond 2 proceeds are allegedly held by Clearstream Banking, S.A., a Luxembourg bank 3 that maintains accounts on behalf of both Bank Markazi and Banca UBAE, S.p.A., 4 an Italian bank that engaged in financial transactions on behalf of Iran. The bond 5 proceeds were processed in New York through JPMorgan Chase Bank, N.A. The 6 plaintiffs dispute the nature and location of the bond proceeds, arguing that they 7 are held as United States dollars in New York City and are therefore subject to 8 the Court s execution jurisdiction. The plaintiffs also dispute whether several 9 related non turnover claims, including several fraudulent conveyance claims, 10 brought by the plaintiffs against these banks were released pursuant to 11 settlement agreements resolving a previous dispute between some of these 12 parties. In a single decision, the United States District Court for the Southern 13 District of New York (Katherine B. Forrest, Judge) granted the banks motions to 14 dismiss the complaint and for partial summary judgment for the defendants on 15 all claims in dispute. We conclude that the settlement agreements released the 16 plaintiffs non turnover claims with respect to some but not all of the banks. We 17 also conclude that the assets at issue are in fact located abroad, but that those 18 assets may nonetheless be subject to turnover under state law pursuant to an 2 15 0690 Peterson v. Islamic Republic of Iran 1 exercise of the court s in personam jurisdiction, inasmuch as the district court has 2 the authority under New York State law to direct a non sovereign in possession 3 of a foreign sovereign s extraterritorial assets to bring those assets to New York 4 State. Those assets will not ultimately be subject to turnover, however, unless 5 the district court concludes on remand that (1) such in personam jurisdiction exists 6 and (2) the assets, were they to be recalled, would not be protected from turnover 7 by execution immunity. Accordingly, the district court s judgment is: 8 9 AFFIRMED in part, VACATED in part, and REMANDED for further proceedings. 10 11 12 13 14 15 LIVIU VOGEL (James P. Bonner, Patrick L. Rocco, and Susan M. Davies, Stone Bonner & Rocco LLP, on the brief), Salon Marrow Dyckman Newman & Broudy LLP, New York, New York, for Plaintiffs Appellants. 16 17 18 19 DONALD F. LUKE (Bension D. De Funis, on the brief), Jaffe & Asher LLP, New York, New York, for Defendant Appellee Bank Markazi, AKA Central Bank of Iran. 20 21 22 23 UGO COLELLA (John J. Zefutie, Jr., on the brief), Thompson Hine LLP, New York, New York, for Defendant Appellee Banca UBAE, S.p.A. 24 25 26 27 BENJAMIN S. KAMINETZKY (Gerald M. Moody, Jr., on the brief), Davis Polk & Wardwell LLP, New York, New York, for Defendant Appellee Clearstream Banking, S.A. 3 15 0690 Peterson v. Islamic Republic of Iran STEVEN B. FEIGENBAUM, Levi Lubarsky Feigenbaum & Weiss LLP, New York, New York, for Defendant Appellee JPMorgan Chase Bank, N.A. 1 2 3 4 5 SACK, Circuit Judge: In this litigation, judgment creditors of the Islamic Republic of Iran ( Iran ) 6 7 attempt to execute on $1.68 billion in bond proceeds allegedly owned by Iran s 8 central bank. The Supreme Court has instructed that in an execution proceeding 9 concerning a foreign sovereign s assets, any defense predicated on foreign 10 sovereign immunity must rise or fall on the text of the Foreign Sovereign 11 Immunities Act ( FSIA ), 28 U.S.C. §§ 1330, 1602 et seq. See Republic of Argentina v. 12 NML Capital, Ltd., U.S. , 134 S. Ct. 2250, 2256 (2014). In the same decision, 13 the Court explicitly abrogated decades of pre existing sovereign immunity 14 common law in light of its background understanding that most courts lack 15 jurisdiction to reach extraterritorial assets in any event. See id. at 2257. But that is 16 not so in New York. The plaintiffs appellants, judgment creditors of Iran and Iran s Ministry of 17 18 Intelligence and Security ( MOIS ), obtained federal court judgments against 19 Iran and MOIS awarding the plaintiffs billions of dollars in compensatory 20 damages. They now seek to enforce their judgments in part by executing on 4 15 0690 Peterson v. Islamic Republic of Iran 1 $1.68 billion in bond proceeds allegedly owned by Bank Markazi ( Markazi ), 2 Iran s central bank. The plaintiffs allege that those bond proceeds were 3 processed by and through a global chain of banks, specifically by Clearstream 4 Banking, S.A. ( Clearstream ) through JPMorgan Chase Bank, N.A. ( JPMorgan ), 5 in the name of Banca UBAE, S.p.A. ( UBAE ), on behalf of Markazi (collectively, 6 the defendants or the defendant banks ). The plaintiffs further allege that the 7 bond proceeds are denominated as United States dollars ( USD ) and held in 8 cash in Clearstream s account at JPMorgan in New York City, rendering the 9 assets subject to this Court s jurisdiction and a turnover order.1 The plaintiffs 10 also asserted several related non turnover claims against the defendant banks, 11 alleging primarily that the defendants effected the foregoing transactions by 12 means of fraudulent conveyances in violation of state law. The defendant banks respond that there is no cash to turn over: The bond 13 14 proceeds are in fact recorded as book entries made in Clearstream s Luxembourg 15 offices and reflected as a positive account balance showing a right to payment 16 owed by Clearstream to Markazi through UBAE. The defendants argue that this A turnover order is [a]n order by which the court commands a judgment debtor to surrender certain property to a judgment creditor, or to the sheriff or constable on the creditor s behalf. Turnover Order, BLACK S LAW DICTIONARY (10th ed. 2014). In this opinion, we use turnover and turnover order interchangeably. 1 5 15 0690 Peterson v. Islamic Republic of Iran 1 fact is fatal to the plaintiffs turnover claims because federal courts lack 2 jurisdiction to order the turnover of a foreign sovereign s extraterritorial assets. 3 Lastly, the defendants posit that the plaintiffs released their non turnover claims 4 in separate settlement agreements reached between several of the plaintiffs, on 5 the one hand, and Clearstream or UBAE, on the other. 6 In a single order, the district court (Katherine B. Forrest, Judge) granted the 7 defendants motions to dismiss and for partial summary judgment in favor of the 8 defendants on all claims in dispute. We affirm that decision in part, vacate it in 9 part, and remand for further proceedings. 10 BACKGROUND The plaintiffs appellants are, or represent persons who have been 11 12 adjudicated in a federal court to be, victims of Iranian sponsored terrorism. They 13 obtained judgments from the United States District Court for the District of 14 Columbia against Iran and MOIS pursuant to §§ 1605(a)(7) and 1605A of the 15 FSIA, and were awarded a total of approximately $3.8 billion in compensatory 16 damages. Confidential Appendix ( C.A. 2) at 679 81. The plaintiffs have since C.A. refers to the sealed Confidential Joint Appendix filed in this Court on June 1, 2015. On November 8, 2017, we ordered the parties to unseal their briefs and the C.A., allowing only redactions we concluded were justified despite the presumptively public 2 6 15 0690 Peterson v. Islamic Republic of Iran 1 registered their judgments with the United States District Court for the Southern 2 District of New York, which enables them to seek partial enforcement of their 3 judgments by obtaining an order compelling the turnover of approximately $1.68 4 billion in bond proceeds allegedly owned by Iran s central bank and held as cash 5 in New York City. The plaintiffs claims target four banks that were allegedly 6 involved in processing those bond proceeds: JPMorgan, a financial institution 7 organized under the laws of New York, id. at 679; Markazi, Iran s central bank, id. 8 at 677; UBAE, an Italian bank that engaged in transactions on behalf of Iran, id. at 9 678; and Clearstream, a Luxembourg bank with which Markazi and UBAE 10 opened customer accounts, id. The plaintiffs contend that through a series of fraudulent transactions, 11 12 these banks managed to process billions of dollars in bond proceeds ultimately 13 owed to Markazi. According to the plaintiffs, the fruit of those transactions is a 14 pool of cash traceable to the Markazi owned bond proceeds and held by 15 Clearstream at JPMorgan in New York City. Because much of this dispute turns 16 on the nature and location of the bond proceeds, we review the processing of nature of court files. The parties recently completed this process. We have nevertheless maintained the title of the appendix to avoid confusion with a separate Joint Appendix in this case that was never filed under seal. 7 15 0690 Peterson v. Islamic Republic of Iran 1 those assets, and previous attempts to obtain turnover of similar assets, in some 2 detail. 1. Processing Markazi s Bonds 3 Like many large financial institutions, Markazi invests in foreign sovereign 4 5 bonds. Id. at 701. Many of the bonds purchased by Markazi were issued 6 pursuant to prospectuses that require the purchaser to receive interest and 7 redemption payments in New York State. Id. at 555. Markazi has long engaged 8 Clearstream, a Luxembourg bank that specializes in the settlement and custody 9 of internationally traded bonds and equities, id. at 678, to facilitate that process. 10 Clearstream uses correspondent accounts at banks in New York State, including 11 JPMorgan and Citibank, N.A. ( Citibank ), to receive bond proceeds on behalf of 12 its customers, including Markazi. Id. at 690. As Clearstream receives these cash 13 payments in New York, it credits customer accounts based in Luxembourg with 14 an equivalent positive amount. Id. at 685. In 1994, Markazi opened a direct account with Clearstream in 15 16 Luxembourg. Id. at 117 18. Thereafter, Clearstream received bond payments 17 into its New York–based JPMorgan correspondent account on behalf of Markazi; 18 Clearstream then credited Markazi s account in Luxembourg with a 8 15 0690 Peterson v. Islamic Republic of Iran 1 corresponding right to payment. In 2008, apparently because of increasing 2 scrutiny of Iranian financial transactions, Markazi stopped processing its bond 3 proceeds through Clearstream directly and instead began doing so through an 4 intermediary bank: UBAE. Id. at 699 700. In January 2008, UBAE opened a 5 customer account with Clearstream in Luxembourg—account number 13061. Id. 6 at 118 19. Shortly thereafter, Markazi arranged for Clearstream to transfer the 7 Markazi account balance at Clearstream in Luxembourg to the UBAE account. 8 Id. at 118, 434. Clearstream continued to receive bond proceeds in New York on behalf of 9 10 Markazi, but pursuant to the terms of the documentation directing the Markazi 11 account transfer, Clearstream credited UBAE account number 13061 with a 12 corresponding right to payment. Id. at 701. In June 2008, apparently due to 13 increasing attention, Clearstream notified UBAE that it had blocked UBAE 14 account number 13061 and transferred the balance of that account to a sundry 15 blocked account —account number 13675. Id. at 683 84. That account, which 16 remains blocked, is at the center of the present dispute. 9 15 0690 Peterson v. Islamic Republic of Iran 2. Peterson I 1 Clearstream has previously been the focus of an attempt by judgment 2 3 creditors of Iran to obtain turnover of Markazi linked assets. See generally 4 Peterson v. Islamic Republic of Iran, No. 10–cv 4518 KBF, 2013 WL 1155576, 2013 5 U.S. Dist. LEXIS 40470 (S.D.N.Y. Mar. 13, 2013) ( Peterson I ), aff d, 758 F.3d 185 6 (2d Cir. 2014). Many, but not all, of the plaintiffs in the case at bar attempted in 7 an earlier litigation to enforce part of their judgments by executing against 8 approximately $2 billion in Markazi owned bond proceeds allegedly held by 9 Clearstream at Citibank in New York City. See C.A. at 671. Those plaintiffs 10 successfully obtained a judgment from the United States District Court for the 11 Southern District of New York (Katherine B. Forrest, Judge) ordering the turnover 12 of $1.75 billion in cash denominated in USD and held in New York City by 13 Clearstream at Citibank on behalf of Markazi and UBAE. Peterson I, 2013 WL 14 1155576, at *2, *35, 2013 U.S. Dist. LEXIS 40470, at *42, *138. The district court s 15 decision in that case did not address the plaintiffs related fraudulent conveyance 16 claims concerning an additional $250 million in bond proceeds allegedly 17 transferred by Markazi and UBAE to UBAE s customer account at Clearstream in 10 15 0690 Peterson v. Islamic Republic of Iran 1 Luxembourg. See id. at *3 4, *28 n.14, 2013 U.S. Dist. LEXIS 40470, at *46 48, *117 2 n.15. While Markazi unsuccessfully appealed the district court s turnover order 3 4 in Peterson I,3 Clearstream and UBAE reached separate settlement agreements 5 with the plaintiffs to resolve not only the Peterson I appeal but also the plaintiffs 6 then pending fraudulent conveyance claims. C.A. at 900 45 (Clearstream 7 settlement agreement); id. at 1646 62 (UBAE settlement agreement). 8 Of relevance here, the Clearstream settlement agreement released 9 Clearstream from any and all past, present or future claims or causes of 10 action . . . whether direct or indirect relating to: 11 12 13 14 15 16 17 18 any account maintained at Clearstream . . . by or in the name of or under the control of any Iranian Entity . . . or any account maintained at Clearstream or at any Clearstream Affiliate by or in the name of or under the control of UBAE, including, but not limited to, accounts numbered . . . 13061 . . . [or] 13675 . . . or any asset or interest held in an Account in the name of an Iranian Entity . . . or . . . any transfer or other action taken by or at the direction of any Clearstream Party, Citibank, or any Iranian Entity, including any transfer or other action in any account, including a In Peterson I, the district court concluded that the cash Clearstream held at Citibank was subject to turnover under both the Terrorism Risk Insurance Act of 2002 ( TRIA ) and the Iran Threat Reduction and Syria Human Rights Act of 2012. Peterson I, 2013 WL 1155576, at *22 23, 2013 U.S. Dist. LEXIS 40470, at *97 103. We reached only the latter basis for jurisdiction on appeal and affirmed. Peterson, 758 F.3d at 189 92. The Supreme Court granted Markazi s petition for writ of certiorari and also affirmed. Bank Markazi v. Peterson, U.S. , 136 S. Ct. 1310, 1328 29 (2016). 3 11 15 0690 Peterson v. Islamic Republic of Iran 1 2 3 securities account or cash account or omnibus account or correspondent account maintained in Clearstream s name or under its control, that in any way relates to any Account or any Iranian Asset. 4 Id. at 903. 5 6 claims to the Peterson I plaintiffs: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 The Clearstream settlement agreement did, however, reserve the following Garnishee Actions. Notwithstanding the [claim release described above], the Covenant shall not bar any action or proceeding regarding (a) the rights and obligations arising under this Agreement, or (b) efforts to recover any asset or property of any kind, including proceeds thereof, that is held by or in the name, or under the control, or for the benefit of, Bank Markazi or Iran . . . in an action against a Clearstream Party solely in its capacity as a garnishee (a Garnishee Action. ) Such a Garnishee Action may include, without limitation, an action in which a Clearstream Party is named solely for the purpose of seeking an order directing that a Clearstream Party perform an act that will have the effect of reversing a transfer between other parties that is found to have been a fraudulent transfer under any legal or equitable theory, provided however that such a Garnishee Action shall not seek an award of damages against a Clearstream Party. 21 Id. at 905 (emphasis omitted). 22 23 beneficiaries from any and all liability, claims, causes of action, suits, 24 judgments, costs, expenses, attorneys fees, or other incidental or consequential 25 damages of any kind, whether known or unknown, arising out of or related to 26 the Plaintiffs Direct Claims against UBAE, except for those specifically listed in The UBAE settlement agreement similarly released UBAE and its 12 15 0690 Peterson v. Islamic Republic of Iran 1 the agreement. Id. at 1648. The agreement defined Plaintiffs Direct Claims as 2 those brought in Peterson I for damages against UBAE with regard to certain 3 assets transferred prior to the initiation of the [t]urnover [a]ction and valued at 4 approximately $250,000,000.00 . . . including, but not limited to, claims for 5 fraudulent conveyance, tortious interference with the collection of a money 6 judgment, and prima facie tort. Id. at 1646. The UBAE settlement agreement also contained a carve out provision by 7 8 which the [p]laintiffs agree[d] that any future claim against UBAE for the 9 Remaining Assets shall be limited to turnover only ; the plaintiffs waive[d] all 10 other claims against UBAE for any damages regarding the Remaining Assets 11 whether arising in contract, tort, equity, or otherwise. Id. at 1648. The 12 agreement defined Remaining Assets as assets [that] remain in an account at 13 Clearstream[] [in] a UBAE customer account, that are beneficially owned by 14 Bank Markazi. Id. at 1647. 15 3. Procedural History On December 30, 2013, the plaintiffs filed a complaint in the United States 16 17 District Court for the Southern District of New York alleging that Clearstream 18 held an additional $2.5 billion in Markazi owned bond proceeds not at issue in 13 15 0690 Peterson v. Islamic Republic of Iran 1 Peterson I. See id. at 3, 28. On April 25, 2014, the plaintiffs filed an amended 2 complaint specifically alleging that UBAE s blocked sundry account at 3 Clearstream reflected a balance of approximately $1.68 billion, and that 4 Clearstream held a corresponding amount of cash at JPMorgan in New York 5 City. Id. at 687. The amended complaint named Iran, Clearstream, JPMorgan, 6 Markazi, and UBAE as defendants, seeking: (1) declaratory relief identifying 7 Markazi as the beneficial owner of the assets at issue, id. at 720 21; (2) rescission 8 of fraudulent conveyances under New York Debtor and Creditor Law ( DCL ) 9 §§ 273 a, 276(a), against Iran, Markazi, Clearstream, and UBAE, id. at 721 25; (3) 10 turnover of the $1.68 billion in assets at issue under New York Civil Practice Law 11 and Rules ( C.P.L.R. ) §§ 5225, 5227 and § 201(a) of the Terrorism Risk Insurance 12 Act ( TRIA ), against Clearstream, Iran, JPMorgan, Markazi, and UBAE, id. at 13 725 27; (4) rescission of fraudulent conveyances under DCL §§ 273 a, 276, 278 14 and common law, against Clearstream and Markazi, id. at 728 29; and (5) 15 unspecified equitable relief against each defendant, id. at 729. 16 On April 9, 2014, the district court (Katherine B. Forrest, Judge) granted an 17 ex parte application for an order directing the clerk of the district court to issue a 18 writ of execution with respect to any Markazi owned property in the possession 14 15 0690 Peterson v. Islamic Republic of Iran 1 of JPMorgan. Id. at 104 05. The district court thereafter held a hearing to address 2 the defendants argument that the writ was improper because the Clearstream 3 correspondent account at JPMorgan contains nothing . . . except cash, and the 4 cash turns over in billions of dollars every day, so there s no possibility the cash 5 in the account can be identified to any defendant, including Markazi. Id. at 792. 6 The district court thereupon vacated the order issuing the writ. Id. at 793, 800. 7 The plaintiffs moved to reinstate the order and the defendants responded 8 with various motions seeking dismissal of the amended complaint. Clearstream 9 moved to dismiss on the ground that the assets were located in Luxembourg, 10 and therefore immune from execution under the FSIA. Clearstream also argued 11 that the plaintiffs released all non turnover claims against Clearstream under 12 their settlement agreement. Markazi moved to dismiss on similar jurisdictional 13 grounds. JPMorgan moved for partial summary judgment on the plaintiffs 14 turnover claims on the ground that it possessed no assets owned by Markazi. 15 Finally, UBAE moved to dismiss for want of subject matter jurisdiction, and for 16 partial summary judgment on the plaintiffs non turnover claims on the ground 17 that those claims had been released by the UBAE settlement agreement. 15 15 0690 Peterson v. Islamic Republic of Iran The parties motions were accompanied by a voluminous record.4 Among 1 2 the documents before the district court was a chart depicting a Recap of Total 3 Debits [and] Credits in Clearstream s correspondent account at JPMorgan for 4 each month over the four year period that Clearstream processed the bond 5 proceeds at issue. Id. at 1959. The chart indicates that the Clearstream account at 6 JPMorgan was both debited and credited many hundreds of billions of dollars 7 each month. Moreover, the Clearstream correspondent account at JPMorgan 8 frequently posted a negative balance. Id. JPMorgan submitted, inter alia, two 9 declarations prepared by Gauthier Jonckheere, id. at 1862 68, 2533 43, a 10 JPMorgan vice president and relationship manager[] for the Clearstream 11 account, id. at 1862. Jonckheere stated that Clearstream s correspondent account 12 at JPMorgan is an operating account that processes hundreds of bond related 13 payments each day. Id. at 1863. Because this is a general operating account, 14 indeed Clearstream s only account at JPMorgan, the account s balance at both 15 the beginning and the end of a given business day would . . . be, if not $0, usually 16 very low . . . . During the day, the account balance would frequently be negative For example, JPMorgan responded to the plaintiffs request for the production of pertinent documents, see C.A. at 1733, by producing more than 100,000 pages of banking records, see JPMorgan Br. at 9. 4 16 15 0690 Peterson v. Islamic Republic of Iran 1 . . . . Id. at 1864. Jonckheere also asserted that Clearstream s operating account 2 at [JPMorgan] . . . holds no funds that are the property of Markazi because all 3 bond proceeds have long since left Clearstream s operating account and are no 4 longer maintained at [JPMorgan]. Id. at 1865. Jonckheere added that 5 Clearstream never segregated Markazi s bond proceeds from or within its 6 general operating account. Id. at 2537 39. 7 Clearstream also submitted evidence concerning its JPMorgan 8 correspondent account. For example, it produced a chart documenting its 9 account balance at JPMorgan for each day in October 2012, during which the 10 Clearstream correspondent account balance did not exceed $817,959,813.65, and 11 was frequently negative. Id. at 1957. Clearstream also submitted a declaration 12 executed by Mathias Papenfuá , then Head of Operations for Clearstream, id. 13 at 1972, who stated: Each business day Clearstream uses U.S. dollars deposited 14 in the JPMorgan [a]ccount to pay its current U.S. dollar obligations. Each 15 business day, approximately $7 9 billion flows into the JPMorgan [a]ccount, and 16 each business day a roughly equivalent sum flows out. Id. at 1973. Papenfuá 17 explained that [t]he obligations credited to Clearstream by JPMorgan are 18 booked as assets of Clearstream on Clearstream s balance sheet pursuant to 17 15 0690 Peterson v. Islamic Republic of Iran 1 applicable Luxembourg banking law and accounting rules. Id. When 2 Clearstream receives a payment in the JPMorgan [a]ccount on its own security 3 entitlements, Clearstream credits the account of any customers in Luxembourg 4 holding security entitlements against Clearstream relating to a security with the 5 same [identification number]. Id. at 1974. Papenfuá corroborated Jonckheere s 6 statement that [n]o transfer of cash [was] made, adding that Clearstream does 7 not hold funds in the JPMorgan [a]ccount in relation to specific U.S. dollar 8 obligations to specific customers. Id. Papenfuá concluded that Clearstream 9 never issued instructions to JPMorgan to transfer any funds received in the 10 JPMorgan [a]ccount to the [Clearstream account in Luxembourg], and no such 11 transfers occurred. Id. at 1976. The plaintiffs proffered the opinions of a putative financial services expert, 12 13 Peter U. Vinella, id. at 2385 440, who asserted that the customary practice in 14 international banking . . . is for a securities intermediary (such as Clearstream) to 15 segregate its assets from customer assets generally. Thus, the [assets at issue] 16 should [not be] included as part of Clearstream s general operating funds and 17 should remain in the USD JPMorgan [a]ccount, id. at 2389. Vinella also stated 18 that even if Clearstream had failed and continues to fail to properly segregate 18 15 0690 Peterson v. Islamic Republic of Iran 1 the funds at issue in this matter in the [Clearstream account at JPMorgan] . . . , 2 the Markazi USD [b]alance . . . still remains in the USD JPMorgan [a]ccount. Id. 3 Vinella attributed evidence that the Clearstream correspondent account often 4 reflected a near zero or negative end of day balance, see, e.g., id. at 1957, 1959, 5 2568 698, to industry standard [s]weeps, whereby the account s funds were 6 invested [by JPMorgan] in very short dated USD investments and subsequently 7 redeposited in the . . . JPMorgan [a]ccount the next day, id. at 2422. On September 19, 2014, the district court heard arguments on the 8 9 defendants motions, focusing in particular on the nature and location of the 10 assets at issue. See Joint Appendix ( J.A. 5) at 83 151. Although the district court 11 appeared to harbor some doubt about the validity of Vinella s expert report, id. 12 at 88, it stopped short of holding a hearing pursuant to Daubert v. Merrell Dow 13 Pharmaceuticals, Inc., 509 U.S. 579 (1993), see J.A. at 105 06 (considering whether a 14 Daubert hearing would be appropriate). Following oral argument, the district 15 court issued an order declining to hold an evidentiary hearing on the nature and 16 location of the assets at issue. See id. at 153. J.A. hereinafter refers to the parties unsealed joint appendix filed in this Court on June 1, 2015. 5 19 15 0690 Peterson v. Islamic Republic of Iran On February 20, 2015, the district court issued a single opinion and order 1 2 granting the defendants various motions to dismiss and for partial summary 3 judgment on all claims in dispute. Peterson v. Islamic Republic of Iran, No. 13 cv 4 9195 KBF, 2015 WL 731221, 2015 U.S. Dist. LEXIS 20640 (S.D.N.Y. Feb. 20, 2015) 5 ( Peterson II ) (construing each motion as one for dismissal ). The district court 6 first dismissed the plaintiffs non turnover claims against Clearstream, UBAE, 7 and Markazi on the ground that those claims had been released by the 8 Clearstream and UBAE settlement agreements. Id. at *6, 2015 U.S. Dist. LEXIS 9 20640, at *18 19 (dismissing the non turnover claims against Clearstream); id. at 10 *9, 2015 U.S. Dist. LEXIS 20640, at *28 30 (dismissing the non turnover claims 11 against UBAE); id. at *10, 2015 U.S. Dist. LEXIS 20640, at *30 31 (dismissing the 12 non turnover claims against Markazi as a beneficiary of UBAE under the UBAE 13 settlement). The district court also dismissed the plaintiffs turnover claims on 14 15 jurisdictional grounds, having found that the assets at issue are not in the United 16 States: 17 18 19 [JPMorgan] received proceeds relating to the [assets], which it credited to a Clearstream account at [JPMorgan]. Whether it should have or should not have, Clearstream in turn credited amounts attributable to the [assets] 20 15 0690 Peterson v. Islamic Republic of Iran 1 2 to the UBAE/Bank Markazi account in Luxembourg. The [JPMorgan] records are clear that whatever happened to the proceeds, they are gone. 3 Id. at *6, 2015 U.S. Dist. LEXIS 20640, at *20. That finding sufficed to require 4 dismissal of JPMorgan from the lawsuit because JPMorgan does not have an 5 account for UBAE or Bank Markazi. Id. at *10 n.17, 2015 U.S. Dist. LEXIS 20640, 6 at *33 n.17. Turning to the remaining defendants, the district court concluded 7 that Markazi s interest in book entries that Clearstream held in Luxembourg was 8 not subject to turnover because the FSIA does not allow for attachment of 9 property outside of the United States. Id. at *10, 2015 U.S. Dist. LEXIS 20640, 10 at *31. Therefore, because Markazi d[id] not maintain the assets that plaintiffs 11 seek in the United States, the district court held that it lack[ed] subject matter 12 jurisdiction. Id. The plaintiffs appealed. With respect to the non turnover claims, they 13 14 argue that the Clearstream and UBAE settlement agreements: (1) do not apply to 15 many of the plaintiffs, including several who were not party to Peterson I, Pls. Br. 16 at 23; and, in any event, (2) did not release the non turnover claims against 17 Clearstream, UBAE, or Markazi, id. at 24 33. With respect to the turnover claims, 18 the plaintiffs argue that the court has subject matter jurisdiction because the 19 assets at issue are (1) cash holdings located in New York, id. at 47 51; and (2) 21 15 0690 Peterson v. Islamic Republic of Iran 1 therefore subject to turnover under the TRIA, id. at 35 36, and the FSIA, id. at 61 2 66. The plaintiffs argue in the alternative that even assets located abroad may 3 be subject to turnover pursuant to the court s exercise of in personam jurisdiction 4 over the holder of the assets. Id. at 55. DISCUSSION 5 6 A. Standard of Review 7 With respect to the non turnover claims, the district court granted 8 Clearstream s motion to dismiss and UBAE s motion for partial summary 9 judgment on the ground that the Clearstream and UBAE settlement agreements 10 released those claims. We review a district court s interpretation of a contract de 11 novo. Seabury Constr. Corp. v. Jeffrey Chain Corp., 289 F.3d 63, 67 (2d Cir. 2002). As to the turnover claims, [w]e accord deferential review to a district 12 13 court ruling on a petition for an order of attachment or execution under the 14 FSIA. Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 285 (2d 15 Cir. 2011). We review de novo legal conclusions denying [or granting] FSIA 16 immunity to a foreign sovereign or its property, and factual findings for abuse 17 of discretion. NML Capital, Ltd. v. Republic of Argentina, 680 F.3d 254, 256 57 (2d 18 Cir. 2012). A district court is said to have abused its discretion if it has, inter 22 15 0690 Peterson v. Islamic Republic of Iran 1 alia, made a clearly erroneous assessment of the evidence. Id. at 257 (internal 2 quotation marks omitted).6 The plaintiffs contend that our review should be particularly meticulous because the district court should have permitted [p]laintiffs to conduct the relevant discovery or at least held an evidentiary hearing before ruling on the defendants motions. Pls. Br. at 34. We review the district court s determination not to hold an evidentiary hearing . . . for abuse of discretion. United States v. Amico, 486 F.3d 764, 779 (2d Cir. 2007). We do not think that the district court abused its discretion in this case, which was marked by a voluminous record that was reviewed by the court and upon which the parties based their arguments. See J.A. at 83 151 (transcript of September 19, 2014 district court proceedings). The plaintiffs principally rely on Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008), in which we cautioned that [a] district court has discretion to hold a hearing to resolve factual disputes that bear on the court s jurisdiction, but where . . . the case is at the pleading stage and no evidentiary hearings have been held, in reviewing the grant of a motion to dismiss . . . we must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff s favor. Id. at 83 (internal quotation marks and brackets omitted). Sharkey is inapposite because here, unlike in Sharkey, the plaintiffs dispute the district court s factual findings made pursuant to deciding, inter alia, JPMorgan s motion for partial summary judgment on the plaintiffs turnover claims on the ground that there are no assets subject to turnover located in the United States. Peterson II, 2015 WL 731221, at *10, 2015 U.S. Dist. LEXIS 20640, at *32 33. Moreover, it is within the district court s discretion to decide disputed jurisdictional facts, even at the motion to dismiss stage, without holding an evidentiary hearing where, as here, the court consider[ed] all the submissions of the parties and it has not [been] shown that a hearing was necessary because the resolution of factual issues was not readily ascertainable from the declarations of witnesses or turned on questions of credibility. Filetech S.A. v. Fr. Telecom S.A., 304 F.3d 180, 183 (2d Cir. 2002) (per curiam) (internal quotation marks omitted). Indeed, we have previously stated in the context of an FSIA claim that [o]n a Rule 12(b)(1) motion challenging the district court s subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing. Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000) (emphasis added). 6 23 15 0690 Peterson v. Islamic Republic of Iran 1 B. The Non Turnover Claims 2 The district court concluded that the Clearstream settlement agreement 3 and the UBAE settlement agreement released the plaintiffs non turnover claims, 4 including the fraudulent conveyance claims, brought against those banks.7 5 Peterson II, 2015 WL 731221, at *6, *9, 2015 U.S. Dist. LEXIS 20640, at *18 19, *28 6 29. The district court also determined that the UBAE settlement agreement 7 released the plaintiffs non turnover claims against Markazi because Markazi 8 was a beneficiary of UBAE and, therefore, the UBAE settlement agreement. Id. 9 at *10, 2015 U.S. Dist. LEXIS 20640, at *30 31. We agree with respect to 10 Clearstream, but not with respect to UBAE or Markazi. The amended complaint contained several fraudulent conveyance claims: First, the plaintiffs alleged that Iran, Markazi, Clearstream, and UBAE engaged in a conspiracy to make fraudulent conveyances designed to avoid Iran s debt to [the] [p]laintiffs and other creditors by transferring the bond proceeds from Markazi s account at Clearstream to the UBAE/Markazi [a]ccount at Clearstream in violation of DCL § 276, C.A. at 721, which states that [e]very conveyance made . . . to hinder, delay, or defraud either present or future creditors shall be deemed fraudulent as to both present and future creditors, DCL § 276. Second, the plaintiffs alleged that the same transfer violated DCL § 273 a, C.A. at 724 25, which provides that [e]very conveyance made without fair consideration when the person making it is a defendant in an action for money damages or a judgment in such an action has been docketed against him, is fraudulent as to the plaintiff in that action without regard to the actual intent of the defendant if . . . the defendant fails to satisfy the judgment, DCL § 273 a. Finally, the plaintiffs alleged that if the assets at issue are in fact located abroad, they are so located because of transfers that qualify as fraudulent conveyances under the DCL and common law. C.A. at 728 29. Each of the plaintiffs fraudulent conveyance claims seeks, inter alia, rescission of the allegedly fraudulent transfers. Id. at 723, 725, 729. 7 24 15 0690 Peterson v. Islamic Republic of Iran Before turning to the substance of the settlement agreements, however, we 1 2 address first the plaintiffs argument that many of them, including several who 3 were not plaintiffs in Peterson I, did not agree to the Clearstream or UBAE 4 settlement agreements and are therefore not bound by their provisions. See Pls. 5 Br. at 23 (arguing with respect to Clearstream); Pls. Reply at 13 14 (arguing with 6 respect to UBAE). Noting that this argument was not timely raised, the district 7 court dismissed it on the ground that ninety three percent of the Peterson I 8 plaintiffs had agreed to the Clearstream settlement agreement and that figure 9 surpassed the percentage . . . needed . . . in order for the [Clearstream] 10 settlement [agreement] to become effective and binding on all of the plaintiffs. 11 Peterson II, 2015 WL 731221, at *8, 2015 U.S. Dist. LEXIS 20640, at *27.8 Moreover, 12 the district court noted that none of the Peterson I plaintiffs had declined to sign 13 the agreement. Id. We disagree with the district court’s analysis insofar as we 14 conclude that the Clearstream settlement agreement is binding only with respect 15 to those plaintiffs who were a party to Peterson I. The plaintiffs post briefing letter first alerting the district court to this issue concerned only the Clearstream settlement agreement. See J.A. at 154. The district court did not, therefore, address the UBAE settlement agreement. 8 25 15 0690 Peterson v. Islamic Republic of Iran As an initial matter, the district court correctly observed that the plaintiffs 1 2 belatedly raised this issue. See id., 2015 U.S. Dist. LEXIS 20640, at *25 26. Only 3 after argument on the parties motions did plaintiffs counsel notify the district 4 court by letter that not all of the Peterson II plaintiffs were parties to Peterson I, or 5 therefore, the resultant Clearstream settlement agreement. J.A. at 154. 6 Moreover, the plaintiffs letter noted that many of the Peterson II plaintiffs who 7 were Peterson I plaintiffs had not yet assented to the terms of the Clearstream 8 settlement agreement. Id. An argument raised for the first time on appeal is typically forfeited. 9 10 Katel Ltd. Liab. Co. v. AT & T Corp., 607 F.3d 60, 68 (2d Cir. 2010). This rule 11 applies even if a party ultimately presents an issue to the district court in an 12 untimely manner, after briefing and argument on the merits is complete. See 13 Corsair Special Situations Funds, L.P. v. Nat l Res., 595 F. App x 40, 43 (2d Cir. 2014) 14 (summary order). Nonetheless, [t]he general rule that an appellate court will not consider an 15 16 issue raised for the first time on appeal is not an absolute bar. Corporación 17 Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex Exploración y 18 Producción, 832 F.3d 92, 101 n.3 (2d Cir. 2016) (internal quotation marks omitted). 26 15 0690 Peterson v. Islamic Republic of Iran 1 Instead, a forfeited argument may be reviewed for plain error. United States v. 2 Gore, 154 F.3d 34, 41 (2d Cir. 1998). To establish plain error, the [plaintiffs] must 3 establish (1) error (2) that is plain and (3) affects substantial rights. United States 4 v. Villafuerte, 502 F.3d 204, 209 (2d Cir. 2007). Then, [i]f the error meets these 5 initial requirements, we . . . must consider whether to exercise our discretion to 6 correct it, which is appropriate only if the error seriously affected the fairness, 7 integrity, or public reputation of the judicial proceedings. Id. (internal quotation 8 marks omitted). We must first determine whether the plaintiffs in fact forfeited, rather than 9 10 waived, their argument concerning applicability of the Clearstream settlement 11 agreement. [F]orfeiture is the failure to make a timely assertion of a right[;] 12 waiver is the intentional relinquishment or abandonment of a known right. 13 United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 14 458, 464 (1938)). The distinction is meaningful because a waived argument is 15 ordinarily reviewed only to avoid a manifest injustice, In re Nortel Networks 16 Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008), whereas, as noted, a forfeited 17 argument may be reviewed for plain error, Gore, 154 F.3d at 41. 27 15 0690 Peterson v. Islamic Republic of Iran We think that the plaintiffs forfeited, not waived, their argument. Nothing 1 2 in the record or briefing suggests that plaintiffs intentional[ly] relinquish[ed], 3 as opposed to mistakenly omitted, their argument. See Olano, 507 U.S. at 733. 4 Accordingly, we review for plain error. The district court did not plainly err with respect to those plaintiffs who 5 6 were parties to Peterson I. As noted, the district court found that ninety three 7 percent of the Peterson I plaintiffs had agreed to the terms of the Clearstream 8 settlement agreement, and that no Peterson I plaintiff had refused to sign. 9 Peterson II, 2015 WL 731221, at *8, 2015 U.S. Dist. LEXIS 20640, at *25 26. The 10 Clearstream settlement agreement plainly states that it shall [be] effective upon 11 the agreement of at least 80% of the Peterson I plaintiffs. C.A. at 904 05. The 12 plaintiffs sole rebuttal is that the Clearstream settlement agreement does not 13 bind [non signatory] [p]laintiffs. Pls. Reply at 11 (citing C.A. at 902). We find 14 nothing in the part of the record cited by the plaintiffs to support their assertion. 15 Because the plaintiffs have not advanced any other rebuttals, or pointed us to 16 other parts of the record, we cannot say that the district court committed an error 17 that is plain with respect to this forfeited argument. Villafuerte, 502 F.3d at 209. 28 15 0690 Peterson v. Islamic Republic of Iran The district court did plainly err, however, with respect to those plaintiffs 1 2 who were not parties to Peterson I. The plaintiffs argued, albeit belatedly, that 3 several plaintiffs in this case were not parties to Peterson I, or therefore, the 4 resultant Clearstream settlement agreement. J.A. at 154. The part of the district 5 court s decision concerning the applicability of the Clearstream settlement 6 agreement did not address this issue. See Peterson II, 2015 WL 731221, at *8, 2015 7 U.S. Dist. LEXIS 20640, at *25 26 (addressing only non signatory Peterson I 8 plaintiffs). The application of the Clearstream settlement to these non party 9 plaintiffs was plainly an error affecting those plaintiffs substantial rights. See 10 Villafuerte, 502 F.3d at 209. Moreover, it would seriously affect[] the fairness of 11 judicial proceedings, id. (internal quotation marks omitted), were we to sanction 12 an order errantly, and without apparent reason, binding several plaintiffs to a 13 settlement agreement that arose from litigation to which they were not party. 14 Accordingly, we vacate that part of the district court s order applying the 15 Clearstream settlement agreement to the Peterson II plaintiffs who were not also 16 plaintiffs in Peterson I.9 Likewise, our substantive review of the Clearstream settlement agreement, see Part B.1 infra, applies only to the plaintiffs here who were also parties to Peterson I. 9 29 15 0690 Peterson v. Islamic Republic of Iran 1 Our plain error review does not extend, however, to the plaintiffs 2 argument, made for the first time in reply, that many of the plaintiffs, including 3 those who were not party to Peterson I, should be similarly excused from the 4 reach of the UBAE settlement agreement. See Pls. Reply at 13. This argument 5 was never raised before the district court, even belatedly, see J.A. at 154 6 (addressing only the Clearstream settlement agreement), nor was it directly 7 raised in the plaintiffs opening appellate brief, see Pls. Br. at 23 (same). The 8 preceding analysis aside, [w]e will not consider an argument raised for the first 9 time in a reply brief. United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003). 10 Turning to the substance of the settlement agreements, New York law 11 governs our review. See C.A. at 908 (providing that the Clearstream settlement 12 agreement shall be governed by New York law); id. at 1650 51 (providing that the 13 UBAE settlement agreement shall be governed by New York law). Settlement 14 agreements are contract[s] and [their] meaning must be discerned under several 15 cardinal principles of contractual interpretation. Brad H. v. City of New York, 17 16 N.Y.3d 180, 185, 951 N.E.2d 743, 746 (2011). Where [a] contract is unambiguous, 17 courts must effectuate its plain language. Seabury, 289 F.3d at 68 (citing Slamow 18 v. Del Col, 79 N.Y.2d 1016, 594 N.E.2d 918, 919 (1992)). To determine whether a 30 15 0690 Peterson v. Islamic Republic of Iran 1 writing is unambiguous, language should not be read in isolation because the 2 contract must be considered as a whole. Brad H., 17 N.Y.3d at 185, 951 N.E.2d at 3 746. We consider the Clearstream and UBAE settlement agreements in light of 4 those principles. 1. The Clearstream Settlement Agreement 5 The Clearstream settlement agreement released all past, present or future 6 7 claims or causes of action . . . arising out of, or relating in any way to 8 Clearstream accounts numbered . . . 13061 [the UBAE customer account] . . . [or] 9 13675 [the sundry blocked account]. C.A. at 903. The settlement agreement 10 excepted from that release [g]arnishee [a]ctions against Clearstream regarding 11 . . . efforts to recover any asset or property of any kind . . . that is held by or in the 12 name, or under the control, or for the benefit of, Bank Markazi or Iran . . . in an 13 action against . . . Clearstream . . . solely in its capacity as a garnishee. Id. at 905 14 (emphasis omitted). The district court properly concluded that these provisions 15 released the plaintiffs non turnover claims against Clearstream. Under New York law, a garnishee action is one for the turnover of 16 17 assets already within [the garnishee s] possession. Commonwealth of the 18 Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 64, 31 15 0690 Peterson v. Islamic Republic of Iran 1 990 N.E.2d 114, 120 (2013). The plaintiffs non turnover claims, by contrast, 2 involve more than obtaining the turnover of assets already within Clearstream s 3 possession. For example, the plaintiffs fraudulent conveyance claims brought 4 under DCL § 276 entail a showing of, inter alia, fraudulent intent. See Wall St. 5 Assocs. v. Brodsky, 257 A.D.2d 526, 528 29, 684 N.Y.S.2d 244, 247 48 (1st Dep t 6 1999). The non turnover claims brought against Clearstream therefore fall within 7 the settlement agreement s broad release of all claims arising out of or relating 8 to the Clearstream accounts at issue. C.A. at 903. The plaintiffs argument that 9 the release should be construed in their favor, Pls. Br. at 22 23, 28, yields to an 10 explicit, unequivocal statement of a present promise to release [a party] from 11 liability. Golden Pac. Bancorp v. FDIC, 273 F.3d 509, 515 (2d Cir. 2001) (internal 12 quotation marks omitted); see also Vt. Teddy Bear Co. v. 538 Madison Realty Co., 13 1 N.Y.3d 470, 475, 807 N.E.2d 876, 879 (2004). 14 The plaintiffs contend that the Clearstream settlement agreement released 15 only claims relating to those litigated in Peterson I and damages claims against 16 Clearstream. Pls. Br. at 29 (emphasis omitted). The plain language of the 17 release provision suggests otherwise. The settlement agreement purported to 18 release all claims concerning several Covered Subjects, C.A. at 903 (emphasis 32 15 0690 Peterson v. Islamic Republic of Iran 1 omitted), a defined term that includes any claims alleged against Clearstream by 2 judgment creditors . . . in Peterson [I]; or [] any account maintained at Clearstream 3 . . . including . . . accounts numbered . . . 13061 [the UBAE customer account] . . . 4 [or] 13675 [the sundry blocked account], id. (emphasis added). The plaintiffs 5 argument rests on the (we think mistaken) suggestion that the release of all 6 claims applies only to Peterson Direct Claims, a defined term that is distinct 7 from Direct Claims, also a defined term. Contrary to the plaintiffs suggestion, 8 only the former term is restricted to asserted claims in Peterson [I]. Id. at 901. 9 By contrast, the term Direct Claims, the subject of the release provision, is 10 defined more broadly as all claims concerning the Covered Subjects. Id. 11 at 903 (emphasis omitted). The plaintiffs argue that their fraudulent conveyance claims against 12 13 Clearstream nonetheless qualify as garnishee actions under the settlement 14 agreement s carve out provision. The plaintiffs note that judgment creditors can 15 obtain turnover from garnishees by undoing fraudulent conveyances. Pls. Br. at 16 30. Be that as it may, the relief that one can obtain from a fraudulent conveyance 17 action does not convert that claim into a garnishee action, which, as previously 18 noted, is a cause of action that seeks the turnover of assets already in the 33 15 0690 Peterson v. Islamic Republic of Iran 1 garnishee s possession. See N.Y. C.P.L.R. § 105(i) ( A garnishee is a person . . . 2 other than the judgment debtor who has property in his possession or custody in 3 which a judgment debtor has an interest. (emphasis added)). Moreover, the 4 Clearstream settlement agreement limits permissible garnishee actions to those 5 in which Clearstream is named solely in its capacity as a garnishee. C.A. at 905 6 (emphasis omitted). The plaintiffs argue that this final provision encompasses their fraudulent 7 8 conveyance claims because it permits an action in which . . . Clearstream . . . is 9 named solely for the purpose of seeking an order directing that . . . Clearstream 10 . . . perform an act that will have the effect of reversing a transfer between other 11 parties that is found to have been a fraudulent transfer. Id. We disagree. The 12 plaintiffs fraudulent conveyance claims against Clearstream allege more than a 13 transfer between other parties, including, for example, the allegation that 14 Clearstream was an active [c]onspirator[] in the alleged fraudulent scheme.10 15 Id. at 707, 721. We therefore affirm that part of the district court s order granting The carve out provision indicates that a permissible [g]arnishee [a]ction includes, inter alia, an order to reverse a transfer between other parties that is found to have been a fraudulent transfer. C.A. at 905 (emphasis added). No such finding has been made with respect to the assets at issue. 10 34 15 0690 Peterson v. Islamic Republic of Iran 1 Clearstream s motion to dismiss the plaintiffs non turnover claims brought 2 against Clearstream. 2. The UBAE Settlement Agreement 3 We vacate, however, the district court s order granting UBAE s motion for 4 5 partial summary judgment with respect to the plaintiffs non turnover claims 6 brought against UBAE. The UBAE settlement agreement release[d] UBAE and all of its past, 7 8 present and future . . . beneficiaries . . . from any and all liability, claims, causes 9 of action, suits, judgments, costs, . . . or other incidental or consequential 10 damages of any kind . . . arising out of or related to the [p]laintiffs Direct Claims 11 against UBAE. Id. at 1648. Direct Claims as defined in the UBAE settlement 12 agreement includes claims in Peterson [I] for damages against UBAE with regard 13 to certain assets transferred . . . and valued at approximately $250,000,000.00 . . . , 14 including, but not limited to, claims for fraudulent conveyance, tortious 15 interference with the collection of a money judgment, and prima facie tort. Id. at 16 1646. The same provision refers to these Peterson I Direct Claims collectively as 17 the Turnover Action. Id. The UBAE settlement agreement also provides that 18 the [p]laintiffs agree that any future claim against UBAE for the Remaining 35 15 0690 Peterson v. Islamic Republic of Iran 1 Assets shall be limited to turnover only, and [the p]laintiffs waive all other 2 claims against UBAE for any damages regarding the Remaining Assets. Id. at 3 1648. Remaining Assets are defined by the UBAE settlement agreement as 4 certain assets [that] remain in an account at Clearstream[] [in] a UBAE customer 5 account[] that are beneficially owned by Bank Markazi. Id. at 1647. As indicated in a summary order published in tandem with this decision,11 6 7 we disagree with the district court s conclusion that these provisions necessarily 8 released the plaintiffs non turnover claims, including their fraudulent 9 conveyance claims, brought against UBAE. The UBAE settlement agreement 10 provides that any future claim against UBAE for the assets at issue shall be 11 limited to turnover only. Id. at 1648. The term turnover is not defined. But 12 the agreement, taken as a whole, Brad H., 17 N.Y.3d at 185, 951 N.E.2d at 746, 13 suggests that the parties intended the term to encompass the plaintiffs 14 fraudulent conveyance claims insofar as the agreement refers to the Peterson I 15 claims, which included both fraudulent conveyance and turnover qua turnover 16 claims, as the Turnover Action, C.A. at 1646. 11 See generally Olson v. Banca UBAE, S.p.A., Nos. 15 2213, 15 2535. 36 15 0690 Peterson v. Islamic Republic of Iran UBAE argues that under New York law, a claim seeking turnover is an 1 2 action brought under C.P.L.R. Article 52, which provides a procedural 3 mechanism . . . rather than a . . . substantive right. Mitchell v. Garrison Protective 4 Servs., Inc., 819 F.3d 636, 640 (2d Cir. 2016) (emphases omitted). Although UBAE 5 may be correct about the meaning of turnover as used in New York law, we do 6 not think that this resolves what we conclude to be the ambiguity of that term as 7 used by the parties in the UBAE settlement agreement. The question for us on 8 appeal is not whether a turnover proceeding and fraudulent conveyance claim 9 are one and the same under New York law. It is, instead, what the parties meant 10 by use of the word turnover as employed in the UBAE settlement agreement. 11 We conclude that when the UBAE settlement agreement is viewed in its entirety, 12 the meaning of the term is ambiguous. We also note that, under New York law, a party may allege a fraudulent 13 14 conveyance claim within a turnover action brought under C.P.L.R. Article 52. See 15 Gelbard v. Esses, 96 A.D.2d 573, 575, 465 N.Y.S.2d 264, 267 (N.Y. App. Div. 2d 16 Dep t 1983) ( CPLR [§] 5225 may serve as the means to set aside a transfer made 17 by a judgment debtor to defraud his creditors. (citation omitted)); see also 18 Mitchell v. Lyons Prof l Servs., Inc., 109 F. Supp. 3d 555, 563 (E.D.N.Y. 2015) ( What 37 15 0690 Peterson v. Islamic Republic of Iran 1 C.P.L.R. §§ 5225 and 5227 provide, in contrast to a plenary action, is a procedural 2 mechanism for attacking a fraudulent conveyance . . . , colloquially known as 3 turnover proceedings. ), aff d sub nom. Mitchell v. Garrison Protective Servs., Inc., 4 819 F.3d at 640 (describing C.P.L.R. § 5225 as a mechanism for avoiding a 5 fraudulent transfer in New York ).12 While UBAE correctly observes that 6 fraudulent conveyance is not a necessary element of a turnover action, UBAE Br. 7 at 26 (emphasis added), it incorrectly surmises from that observation that 8 fraudulent conveyance therefore cannot be an element of a turnover action. But, 9 as we have noted, whether UBAE is correct about New York law does not 10 resolve whether it is also correct about the meaning of the UBAE settlement 11 agreement. As noted, whether the plaintiffs fraudulent conveyance claims are turnover claims as that term is used in the UBAE settlement agreement is ambiguous. The distinction between fraudulent conveyance and turnover claims under New York law is also ambiguous. Although a turnover action may be based on and contain a fraudulent conveyance allegation, a fraudulent conveyance claim may also be pursued as a plenary action to avoid a transfer. See Bienstock v. Greycroft Partners, L.P., 128 A.D.3d 459, 459, 7 N.Y.S.3d 893, 893 (N.Y. App. Div. 1st Dep t 2015) ( The motion court erred in awarding attorneys fees since this is a turnover proceeding brought pursuant to [N.Y. C.P.L.R.] 5225(b) as opposed to an action or proceeding to set aside a fraudulent conveyance (compare [DCL] § 276 a). ). Thus, while we are sympathetic to UBAE s interpretation of turnover, the meaning of that term is ambiguous both as used in the UBAE Settlement Agreement and under state law. 12 38 15 0690 Peterson v. Islamic Republic of Iran UBAE might benefit from the plaintiffs agreement to release UBAE . . . 1 2 from . . . causes of action . . . related to the . . . Direct Claims against UBAE. C.A. 3 at 1648. In context, however, the meaning of related to is also ambiguous. It is 4 certainly the case that both the Peterson I claims—i.e., the Direct Claims —and 5 those at issue here concern related transactions, specifically, the allegedly 6 fraudulent transfers of bond proceeds linked to Markazi. On the other hand, the 7 plaintiffs in this litigation seek to recover proceeds related to a distinct set of 8 bonds. Accordingly, it is not apparent to us that their fraudulent conveyance 9 claims here are necessarily related to the Peterson I Direct Claims. Thus, although it is clear that the UBAE settlement agreement released 10 11 UBAE from any and all . . . claims [or] causes of action, C.A. 1648, for damages 12 against UBAE with regard to [the assets at issue in Peterson I], id. at 1646, the 13 settlement s applicability beyond such claims is unclear. Because the question on 14 a motion for summary judgment is whether the contract is unambiguous with 15 respect to the question disputed by the parties, Int l Multifoods Corp. v. 16 Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir. 2002), and [a]n ambiguity 17 exists where the terms of the contract could suggest more than one meaning 18 when viewed objectively by a reasonably intelligent person who has examined 39 15 0690 Peterson v. Islamic Republic of Iran 1 the context of the entire . . . agreement, Law Debenture Tr. Co. of N.Y. v. Maverick 2 Tube Corp., 595 F.3d 458, 466 (2d Cir. 2010) (internal quotation marks omitted), 3 the district court erred by granting UBAE s motion for partial summary 4 judgment with respect to the plaintiffs non turnover claims. UBAE argues that [t]he definition of Plaintiffs Direct Claims in the 5 6 [UBAE settlement agreement] specifically includes the Peterson II fraudulent 7 conveyance claims. UBAE Br. at 21. We disagree. The UBAE Settlement 8 Agreement defines Direct Claims as those in Peterson [I] for damages against 9 UBAE with regard to certain assets [at issue in Peterson I] . . . and valued at 10 approximately $250,000,000.00 (the Transferred Assets ), including, but not 11 limited to, claims for fraudulent conveyance. C.A. at 1646. Although this 12 provision clearly includes the Peterson I fraudulent conveyance claims among the 13 Peterson I Direct Claims, it also plainly requires that those causes of action 14 concern the assets at issue in Peterson I. The fraudulent conveyance claims 15 brought against UBAE in this litigation of course do not satisfy that requirement. 16 For the foregoing reasons, we vacate the district court s conclusion that the 17 UBAE settlement agreement released the plaintiffs non turnover claims brought 40 15 0690 Peterson v. Islamic Republic of Iran 1 against UBAE and remand the case to the district court for further proceedings 2 with respect to those claims.13 3. Application of the UBAE Settlement Agreement to Claims Brought Against Markazi 3 4 The district court also determined that the UBAE settlement agreement 5 6 also released the plaintiffs non turnover claims against Markazi. Peterson II, 7 2015 WL 731221, at *10, 2015 U.S. Dist. LEXIS 20640, at *30 32. We disagree. The 8 UBAE settlement agreement released certain claims brought against UBAE and 9 undefined UBAE beneficiaries. C.A. at 1648. It made clear, however, that this 10 release does not impact the ability of any of the [p]arties to pursue claims 11 against Clearstream, Citibank, Bank Markazi, [or] Iran. Id. at 1649. Whoever The UBAE and Clearstream settlement agreements are distinguishable inasmuch as the latter is unambiguous with respect to its release of certain claims. While the UBAE settlement agreement nebulously limits the plaintiffs to undefined turnover claims, C.A. at 1648, the Clearstream settlement agreement limits the plaintiffs to defined [g]arnishee [a]ctions against Clearstream . . . solely in its capacity as a garnishee, id. at 905 (emphasis omitted). Unlike the term turnover as used in the UBAE settlement agreement, the term [g]arnishee [a]ctions is defined by the Clearstream settlement agreement and includes such actions only where Clearstream . . . is named solely for the purpose of seeking an order directing that . . . Clearstream . . . perform an act that will have the effect of reversing a transfer between other parties that is found to have been a fraudulent transfer. Id. The plaintiffs fraudulent conveyance claims against Clearstream sought to accomplish more than permitted by the pertinent settlement agreement; the same cannot be said for the fraudulent conveyance claims brought against UBAE. 13 41 15 0690 Peterson v. Islamic Republic of Iran 1 and whatever the parties meant to define as UBAE beneficiaries, it seems clear 2 that Markazi was not included. The district court therefore erred by dismissing the plaintiffs non turnover 3 4 claims, including the fraudulent conveyance claims, brought against Markazi. 5 Accordingly, we vacate that part of the district court s order and remand the case 6 to the district court for further proceedings with respect to the plaintiffs non 7 turnover claims brought against Markazi. 8 C. The Turnover Claims 9 The plaintiffs seek to enforce their underlying judgments against Iran and 10 MOIS by executing on $1.68 billion of Markazi owned bond proceeds. The 11 plaintiffs claims seeking a turnover order to that effect rest, as an initial matter, 12 on the nature and location of the bond proceeds. The plaintiffs contend that they 13 are denominated as USD and held as cash in New York City at Clearstream s 14 correspondent account at JPMorgan. The defendants argue that there is no cash; 15 at most, Markazi owns, through UBAE, a right to payment from Clearstream in 16 the amount of $1.68 billion as reflected on book entries located in Luxembourg. 17 Whether the plaintiffs can obtain an order compelling one or several of the 18 defendants to turn over the assets at issue depends first on the nature and 42 15 0690 Peterson v. Islamic Republic of Iran 1 location of the assets, and second on the court s jurisdiction for execution of those 2 assets, whatever and wherever they are. 1. The Nature and Location of the Assets 3 The plaintiffs insist that Clearstream holds the bond proceeds in New York 4 5 City as cash in its correspondent account at JPMorgan. The district court 6 disagreed, finding sufficient record evidence that the bond proceeds are not held 7 as cash in New York City but are recorded as a right to payment in Luxembourg. 8 Peterson II, 2015 WL 731221, at *6, 2015 U.S. Dist. LEXIS 20640, at *20 9 ( [JPMorgan] received proceeds relating to the [bonds], which it credited to a 10 Clearstream account at [JPMorgan]. Whether it should have or should not have, 11 Clearstream in turn credited amounts attributable to the [bonds] to the 12 UBAE/Bank Markazi account in Luxembourg. The [JPMorgan] records are clear 13 that whatever happened to the proceeds, they are gone. ). We agree. It is undisputed that Clearstream s correspondent account at JPMorgan 14 15 was a general operating account, C.A. at 1863, used to service transactions on 16 behalf of many customers who are not parties to this litigation, id. at 1973 74, 17 2541; see also id. at 2834 35. Although Clearstream received bond proceeds into 18 this general account, id. at 685, the account s USD holdings were not segregated 43 15 0690 Peterson v. Islamic Republic of Iran 1 by customer, id. at 2537 39. Moreover, no cash attributable to the Markazi owned 2 bond proceeds was transferred from Clearstream s correspondent account at 3 JPMorgan to Markazi or UBAE. Id. at 1976. Clearstream instead used its general 4 pool of cash to meet other obligations. Id. at 1865 66. As a result, approximately 5 seven to nine billion dollars flowed in and out of the Clearstream correspondent 6 account each day. Id. at 1973. Indeed, JPMorgan records show that this account 7 frequently had a near zero or negative end of day balance.14 Id. at 1864, 1959. The plaintiffs putative expert, Peter U. Vinella, attributed minuscule or 8 9 negative end of day balances to industry standard [s]weeps. C.A. at 2422. 10 Under this theory, JPMorgan commandeered the Clearstream correspondent 11 account at the close of business, invested [its funds] in very short dated USD 12 investments[,] and subsequently redeposited . . . the USD [in the] JPMorgan 13 [a]ccount the next day . . . , essentially refilling the bucket. Id. (internal A footnote in the plaintiffs brief challenges Jonckheere s declarations as hearsay. See Pls. Br. at 49 n.4. Even ignoring the significant record evidence that is independent and corroborative of Jonckheere s statements, the plaintiffs challenge is meritless. [W]e afford district courts wide latitude in determining whether evidence is admissible, and review . . . evidentiary rulings for abuse of discretion, reversing only if we find manifest error. United States v. Miller, 626 F.3d 682, 687 88 (2d Cir. 2010) (internal quotation marks and ellipsis omitted). The district court did not abuse its discretion by considering declarations executed by Jonckheere, the JPMorgan account manager who conducted a regular[] review of Clearstream s correspondent account. C.A. at 2535. 14 44 15 0690 Peterson v. Islamic Republic of Iran 1 quotation marks omitted). Vinella opined that these sweeps are not generally 2 reflected on the customer s statement so that the funds remain in the bank 3 account from the customer s perspective. Id. JPMorgan acknowledged that it 4 indeed employ[ed] an investment sweep mechanism during the 2008 2012 5 period that enabled it to pay overnight interest to Clearstream. Id. at 2541. We nonetheless agree with the district court that Vinella s argument that 6 7 the money is somehow still there [does not] really work[]. J.A. at 88 (raising this 8 concern during the September 19, 2014 argument). Even assuming that 9 JPMorgan s sweeps used all cash holdings in the Clearstream correspondent 10 account, JPMorgan established through bank records that the end of day 11 balances in the account that were available for overnight investment were never 12 more than a small fraction of the $1.68 billion that make up the [assets at issue]. 13 C.A. at 2541. In fact, the Clearstream correspondent account rarely had an end 14 of day balance greater than $300 million, far short of the $1.68 billion sought by 15 the plaintiffs. See J.A. at 80. JPMorgan may have swept all cash in the 16 Clearstream correspondent account, but the plaintiffs have offered no evidence 17 that those sweeps were performed specifically with Markazi s cash. 45 15 0690 Peterson v. Islamic Republic of Iran Moreover, Jonckheere, the JPMorgan account manager for Clearstream, 1 2 offered an undisputed explanation for Clearstream s near zero end of day 3 account balances: [JPMorgan] and Clearstream have an arrangement under 4 which [JPMorgan] will at its discretion advance a very significant amount of 5 intra day liquidity to Clearstream to allow Clearstream s [correspondent 6 account] to be overdrawn and thereby ensure that the account operates smoothly 7 at all times. C.A. at 2539. This explanation and Vinella s sweep theory are not 8 mutually exclusive. And both are consistent with the district court s finding that 9 $1.68 billion in cash attributable to Markazi s bond proceeds is not sitting in 10 Clearstream s correspondent account at JPMorgan in New York City. Vinella separately posited that Clearstream cannot hold or process USD in 11 12 Luxembourg in any material amount. Id. at 2408. Maybe so. But it does not 13 follow that Clearstream must be holding $1.68 billion in cash in New York City. 14 Vinella s observation is entirely consistent with the undisputed record evidence 15 that Clearstream received cash payments into a general pool, which was drawn 16 down on a daily basis to service many customers demands. Clearstream then 17 caused a corresponding credit to be reflected in the Markazi, and later UBAE, 46 15 0690 Peterson v. Islamic Republic of Iran 1 account in Luxembourg as a right to payment equivalent to the bond proceeds 2 that Clearstream received and processed in New York. The location of that right to payment is determined by state law. See 3 4 Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 5 F.3d 70, 83 (2d Cir. 2002); see also EM Ltd. v. Republic of Argentina, 389 F. App x 38, 6 44 (2d Cir. 2010) (summary order) (relying on state law to determine the location 7 of property). Under New York law, the situs of an intangible property interest, 8 such as the right to payment relevant here, is the location of the party of whom 9 performance is required by the terms of the contract. ABKCO Indus., Inc. v. 10 Apple Films, Inc., 39 N.Y.2d 670, 675, 350 N.E.2d 899, 902 (1976) (noting that 11 where an intangible property interest is represented by a negotiable instrument, 12 the physical location of that instrument determines the location of the property 13 interest); see also Hotel 71 Mezz Lender LLC v. Falor, 14 N.Y.3d 303, 315, 926 N.E.2d 14 1202, 1210 (2010) ( [W]here a creditor seeks to attach a debt (an intangible form of 15 property) solely for security purposes (i.e., the debtor is subject to the court s 16 personal jurisdiction), the situs of the debt is wherever the debtor is present. ). In 17 this case, the right to payment is reflected as a book entry or account balance 47 15 0690 Peterson v. Islamic Republic of Iran 1 maintained in Luxembourg by Clearstream, a Luxembourg entity. Thus, the 2 asset the plaintiffs seek—a right to payment—is located in Luxembourg. 3 The plaintiffs advance several rebuttals, each presuming the validity of 4 their position that Clearstream holds a segregated pool of $1.68 billion in cash 5 traceable to the bond proceeds in New York. For example, the plaintiffs argue 6 that the empty act of making book entries to a Luxembourg account without an 7 accompanying transfer did not alter the location of the Markazi owned assets. 8 Pls. Br. at 49. That is neither controversial nor surprising: There was no 9 accompanying transfer of cash to Markazi or UBAE. For similar reasons, the 10 plaintiffs contention that fraudulent conveyances have no legal effect is of no 11 moment. This argument presumes that [the] [d]efendants moved the [b]ond 12 [p]roceeds to Luxembourg. Id. at 51. Not so. No bond proceeds were moved, 13 at least not as envisaged by the plaintiffs. Rather, cash flowed into the 14 Clearstream correspondent account at JPMorgan, which was then used to meet 15 other customers demands. Markazi was made whole by its interest in the 16 recordation of an equivalent right to payment in Luxembourg. The plaintiffs argue that under the Uniform Commercial Code ( UCC ), 17 18 Clearstream must maintain a corresponding financial asset (i.e., USD) sufficient 48 15 0690 Peterson v. Islamic Republic of Iran 1 to satisfy . . . entitlements [owed to Markazi and UBAE], and those USD[] must 2 be segregated from Clearstream s assets. Id. at 49. We need not, and therefore 3 do not, comment on the propriety of Clearstream s banking practices under the 4 UCC, assuming that it applies.15 Even if the bond proceeds should have been 5 segregated and held as cash, they were not; there is not, therefore, property in 6 New York subject to turnover. Contrary to the plaintiffs suggestion, see Pls. Br. 7 at 40, this position is not inconsistent with Peterson I, in which the district court 8 concluded that a separate set of bond proceeds—held at a different bank that is 9 not party to this litigation—were both located in New York and owned by 10 Markazi for reasons wholly unrelated to the UCC. Peterson I, 2013 WL 1155576, 11 at *30 31, 2013 U.S. Dist. LEXIS 40470, at *121 24. In any event, the question 12 whether the UCC governs Markazi s ownership interest in and rights to the bond 13 proceeds is unrelated to the nature and location of those assets. The nature and location of the asset here—a right to payment located in 14 15 Luxembourg—distinguishes this case from Peterson I, where it was undisputed 16 that Clearstream held a segregated pool of $1.75 billion in cash proceeds of the 17 bonds . . . in an account at Citigroup in New York. Id. at *2, 2013 U.S. Dist. 15 Clearstream asserts that it does not. See Clearstream Br. at 34 37. 49 15 0690 Peterson v. Islamic Republic of Iran 1 LEXIS 40470, at *42. Indeed, in Peterson I the district court specifically found that 2 nearly $2 billion in bond proceeds [traceable to Markazi] is sitting in an account 3 in New York at Citibank, which the court determined was far from a fleeting or 4 ephemeral interest[]. Id. at *24, 2013 U.S. Dist. LEXIS 40470, at *103. Here, by 5 contrast, there never was a traceable or segregated pool of Markazi owned bond 6 proceeds held as cash in Clearstream s correspondent account at JPMorgan in 7 New York City. We conclude that the assets at issue are, therefore, represented by a right 8 9 to payment in the possession of Clearstream located in Luxembourg. 10 Accordingly, the district court properly granted JPMorgan s motion for partial 11 summary judgment because JPMorgan is not in possession of any assets subject 12 to turnover. Similarly, neither Markazi nor UBAE possesses any assets subject to 13 turnover here because the asset at issue is in fact held by Clearstream and 14 represented as a positive account balance in a sundry blocked account to which 15 neither Markazi nor UBAE has access. C.A. at 684. We therefore turn to whether 16 the principal asset at issue, a right to payment held by Clearstream and located in 17 Luxembourg, is subject to execution. 50 15 0690 Peterson v. Islamic Republic of Iran 2. Jurisdiction for Execution 1 The district court concluded that it lacked jurisdiction to order turnover 2 3 because the principal asset at issue—a right to payment recorded and held in 4 Luxembourg—is located outside the United States and, therefore, absolutely 5 immune from execution under the FSIA. Peterson II, 2015 WL 731221, at *10, 2015 6 U.S. Dist. LEXIS 20640, at *31 32. Although the district court s assumption was 7 reasonable in light of many judicial decisions suggesting as much, we think it 8 was incorrect. 9 Before the FSIA, foreign sovereigns were generally afforded broad 10 immunity from the jurisdictional reach of American courts. NML Capital, 134 S. 11 Ct. at 2255. Foreign sovereign immunity was offered as a matter of grace and 12 comity . . . not a restriction imposed by the Constitution. Id. (quoting Verlinden 13 B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)). Pursuant to this 14 discretionary practice, the United States gave absolute immunity to foreign 15 sovereigns from, in particular, the execution of judgments. 16 Autotech Techs. v. As Justice Scalia explained for the Court in NML Capital, this was long at the behest of the executive branch, which typically requested immunity in all suits against friendly foreign states. NML Capital, 134 S. Ct. at 2255. That changed in 1952, when the State Department embraced (in the so called Tate Letter) the restrictive theory of sovereign immunity, which holds that immunity shields only a foreign sovereign s 16 51 15 0690 Peterson v. Islamic Republic of Iran 1 Integral Research & Dev. Corp., 499 F.3d 737, 749 (7th Cir. 2007). This rule 2 required plaintiffs who successfully obtained a judgment against a foreign 3 sovereign to rely on voluntary repayment by that State. Id. The prevailing regime changed in 1976 with the enactment of the FSIA, a 4 5 comprehensive set of legal standards governing claims of immunity in every 6 civil action against a foreign state. Verlinden, 461 U.S. at 488. Since its 7 enactment, courts have held that the FSIA provides the sole basis for obtaining 8 jurisdiction over a foreign state in the courts of this country. Argentine Republic 9 v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989); see also Weinstein v. Islamic 10 Republic of Iran, 609 F.3d 43, 47 (2d Cir. 2010) ( The [FSIA] provides the exclusive 11 basis for subject matter jurisdiction over all civil actions against foreign state 12 defendants, and therefore for a court to exercise subject matter jurisdiction over a 13 defendant the action must fall within one of the FSIA s exceptions to foreign 14 sovereign immunity. (citation omitted)). public, noncommercial acts. Id. (internal quotation marks omitted). It has been observed that this shift thr[ew] immunity determinations into some disarray because political considerations sometimes led the [State] Department to file suggestions of immunity in cases where immunity would not have been available under the restrictive theory. Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004) (internal quotation marks omitted). Congress abated the bedlam in 1976 with the FSIA. NML Capital, 134 S. Ct. at 2255. 52 15 0690 Peterson v. Islamic Republic of Iran Section 1604 of the FSIA provides in general terms for foreign sovereign 1 2 immunity: [A] foreign state shall be immune from the jurisdiction of the courts 3 of the United States and of the States. 28 U.S.C. § 1604. The law then subjects 4 this limit on in personam jurisdiction to several exceptions. See id. §§ 1605 07. In 5 this case, for example, the plaintiffs obtained their judgments against Iran and 6 MOIS pursuant to § 1605A, C.A. at 1673 75,17 which vitiates immunity in any 7 case . . . in which money damages are sought against a foreign state for personal 8 injury or death that was caused by an act of torture, extrajudicial killing, . . . or 9 the provision of material support or resources for such an act, 28 10 U.S.C. § 1605A(a)(1). In addition to jurisdictional immunity, the FSIA also provides foreign 11 12 sovereigns so called execution immunity : Section 1609 states that, generally, 13 the property in the United States of a foreign state shall be immune from The plaintiffs also obtained their underlying judgments pursuant to § 1605(a)(7), a since repealed provision of the FSIA that similarly suspended jurisdictional immunity where money damages [were] sought against a foreign state for personal injury or death that was caused by an act of torture [or] extrajudicial killing. 28 U.S.C. § 1605(a)(7) (2006); see also Weinstein, 609 F.3d at 48 n.4 ( In 2008, Congress repealed § 1605(a)(7) and created a new section [§ 1605A] specifically devoted to the terrorism exception to the jurisdictional immunity of a foreign state. (citing Pub. L. No. 110 181, § 1083, 122 Stat. 3, 341 (2008))). As relevant here, § 1605(a)(7) provided the same exception to jurisdictional immunity as does § 1605A. 17 53 15 0690 Peterson v. Islamic Republic of Iran 1 attachment arrest and execution. Id. § 1609. Execution immunity is also subject 2 to several exceptions, id. §§ 1610 11, three of which the plaintiffs argue permit 3 execution here: first, § 1610(a), which permits execution against property in the 4 United States of a foreign state . . . used for a commercial activity in the United 5 States . . . if . . . the judgment relates to a claim for which the foreign state is not 6 immune under [§ 1605A], id. § 1610(a)(7); second, § 1610(g), which authorizes 7 execution against the property of a foreign state against which a judgment is 8 entered under [§ 1605A] . . . upon that judgment as provided in this section, id. 9 § 1610(g)(1); and third, TRIA § 201(a), codified as a note to FSIA § 1610, which 10 reads: 11 12 13 14 15 16 17 18 19 Notwithstanding any other provision of law, and except as provided in subsection (b), in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under [28 U.S.C. § 1605A], the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable. 20 TRIA, Pub. L. No. 107 297, § 201(a), 116 Stat. 2322, 2337 40 (2002) (codified at 28 21 U.S.C. § 1610 note); see also Kirschenbaum v. 650 Fifth Ave. & Related Props., 830 22 F.3d 107, 131 (2d Cir. 2016) ( The TRIA provides jurisdiction for execution and 54 15 0690 Peterson v. Islamic Republic of Iran 1 attachment proceedings to satisfy a judgment for which there was original 2 jurisdiction under the FSIA if certain statutory elements are satisfied. ). The FSIA framework of immunities and exceptions is comprehensive, 3 4 NML Capital, 134 S. Ct. at 2255 56; see also Republic of Austria v. Altmann, 541 U.S. 5 677, 699 (2004); Verlinden, 461 U.S. at 493, and, therefore, supersedes the pre 6 existing common law of foreign sovereign immunity, Samantar v. Yousuf, 560 7 U.S. 305, 313 (2010). As the Supreme Court wrote in NML Capital, any sort of 8 immunity defense made by a foreign sovereign in an American court must stand 9 on the Act s text. Or it must fall. 134 S. Ct. at 2256. 10 Comprehensive though it may be with respect to immunities and 11 exceptions, the FSIA does not specify the circumstances and manner of 12 attachment and execution proceedings. EM Ltd. v. Republic of Argentina, 473 F.3d 13 463, 474 n.10 (2d Cir. 2007); see also Peterson v. Islamic Republic of Iran, 627 F.3d 14 1117, 1130 (9th Cir. 2010) ( The FSIA does not provide methods for the 15 enforcement of judgments against foreign states, only that those judgments may 16 not be enforced by resort to immune property. ).18 Accordingly, [i]n attachment FSIA § 1610(c) does, however, enumerate broad limitations on attachment or execution, viz., [n]o attachment or execution . . . shall be permitted until the court has 18 55 15 0690 Peterson v. Islamic Republic of Iran 1 actions involving foreign states, federal courts . . . apply Fed. R. Civ. P. 69(a). 2 Karaha Bodas Co., 313 F.3d at 83. Under that Rule, a district court has the 3 authority to enforce a judgment by attaching property in accordance with the 4 law of the state in which the district court sits. Koehler v. Bank of Berm. Ltd., 544 5 F.3d 78, 85 (2d Cir. 2008). In New York, that law is C.P.L.R. § 5225,19 which provides in pertinent 6 7 part: ordered such attachment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under section 1608(e) of [the FSIA]. 28 U.S.C. § 1610(c). The plaintiffs brought their state law turnover claims under C.P.L.R. §§ 5225, 5227. The former concerns the turnover of property, including money or other personal property, N.Y. C.P.L.R. § 5225; the latter concerns the turnover of debts owed to the judgment debtor, id. § 5227. Our analysis turns on § 5225. Although New York law draws a line between a debt owed to a judgment debtor and property owned by the judgment debtor but in the possession of another, that line can at times become too fine to distinguish. Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 190 F.3d 16, 21 (2d Cir. 1990) (internal quotation marks and alteration omitted). We think that Iran s right to payment, held by Clearstream, falls on the property side of that blurred line. In ABKCO, the Court of Appeals held that a judgment debtor s right to payment under a licensing agreement was property because, like Markazi s interest in the right to payment held by Clearstream, it was an assignable interest. ABKCO, 39 N.Y.2d at 674 75, 350 N.E.2d at 900 02. And at least one New York court has confirmed that a bank account—like the Markazi, UBAE, and blocked sundry accounts at Clearstream in Luxembourg—was subject to turnover because [t]he property of the depositor is the indebtedness of the bank to it. Gryphon Domestic VI, LLC v. APP Int l Fin. Co., B.V., 41 A.D.3d 25, 36, 836 N.Y.S.2d 4, 12 (N.Y. App. Div. 1st Dep t 2007) (internal quotation marks omitted). 19 56 15 0690 Peterson v. Islamic Republic of Iran 1 2 3 4 5 6 7 8 9 10 11 Property not in the possession of judgment debtor. Upon a special proceeding commenced by the judgment creditor, against a person in possession or custody of money or other personal property in which the judgment debtor has an interest . . . where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor s rights to the property are superior to those of the transferee, the court shall require such person to pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment to a designated sheriff. 12 N.Y. C.P.L.R. § 5225(b). 13 14 payment in the amount of $1.68 billion, represented as a positive account balance 15 and recorded on the books of Clearstream in Luxembourg. The district court 16 concluded that this asset s location in Luxembourg is fatal to the plaintiffs 17 turnover claims. Peterson II, 2015 WL 731221, at *10, 2015 U.S. Dist. LEXIS 20640, 18 at *31 ( The FSIA does not allow for attachment of property outside of the United 19 States. ). We disagree. Relying on this provision, the plaintiffs seek turnover of Iran s right to The FSIA does not by its terms provide execution immunity to a foreign 20 21 sovereign s extraterritorial assets. See 28 U.S.C. § 1609 ( [T]he property in the 22 United States of a foreign state shall be immune from attachment arrest and 23 execution . . . . (emphasis added)). In NML Capital, the Supreme Court squarely 57 15 0690 Peterson v. Islamic Republic of Iran 1 rejected the argument that any common law execution immunity afforded to a 2 foreign state s extraterritorial assets survived the enactment of the FSIA: 3 4 5 6 7 [We identify] no case holding that, before the Act, a foreign state s extraterritorial assets enjoyed absolute execution immunity in United States courts. No surprise there. Our courts generally lack authority in the first place to execute against property in other countries, so how could the question ever have arisen? 8 134 S. Ct. at 2257 (holding that § 1609 does not immunize a foreign sovereign s 9 extraterritorial assets from post judgment discovery). Notwithstanding the Supreme Court s rhetorical observation, the question 10 11 whether courts sitting in New York have the authority to execute against 12 property in other countries arose in Koehler, 544 F.3d 78, in which we were asked 13 to decide whether C.P.L.R. § 5225(b) applies extraterritorially. There, a judgment 14 creditor sought to execute against stock certificates owned by a judgment debtor 15 but held in Bermuda by a third party garnishee. Id. at 80 81. The district court 16 concluded that stock certificates in general must be located within the state in 17 order to be attached . . . . Id. at 86. On appeal, however, we found that this 18 raised an important and unsettled question of state law; accordingly, we certified 19 the issue to the New York Court of Appeals. Id. at 87 88. 58 15 0690 Peterson v. Islamic Republic of Iran The Court of Appeals accepted certification and, closely divided, h[e]ld 1 2 that a New York court with personal jurisdiction over a defendant may order 3 him to turn over out of state property regardless of whether the defendant is a 4 judgment debtor or a garnishee. Koehler v. Bank of Berm. Ltd., 12 N.Y.3d 533, 541, 5 911 N.E.2d 825, 831 (2009). The court observed that CPLR article 52 contains no 6 express territorial limitation barring the entry of a turnover order that requires a 7 garnishee to transfer money or property into New York from another state or 8 country. Id. at 539, 911 N.E.2d at 829. Turning to recent legislative 9 amendments, the court determined that the New York State [l]egislature 10 intended CPLR article 52 to have extraterritorial reach. Id. The court s holding 11 turned on the exercise of in personam jurisdiction; a court sitting in New York 12 with personal jurisdiction over a party may order that party to bring property 13 into the state. Id. at 540, 911 N.E.2d at 830 ( [T]he key to the reach of the 14 turnover order is personal jurisdiction over a particular defendant. ). Following NML Capital, 134 S. Ct. at 2256 57, the FSIA appears to be no 15 16 impediment to an order issued pursuant to Koehler directing Clearstream— 17 should the court have personal jurisdiction over it—to bring the Markazi owned 18 asset held in Luxembourg to New York State. Section 1604 s grant of 59 15 0690 Peterson v. Islamic Republic of Iran 1 jurisdictional immunity applies only to a foreign state, which Clearstream of 2 course is not. 28 U.S.C. § 1604. Section 1609 s grant of execution immunity 3 applies only to assets located in the United States, which the Luxembourg right 4 t0 payment is not. 28 U.S.C. § 1609. And, as noted, the Supreme Court s view set 5 forth in NML Capital appears unequivocal: [A]ny sort of immunity defense 6 made by a foreign sovereign in an American court must stand on the Act s text. 7 Or it must fall. 134 S. Ct. at 2256. Each of the many cases cited by the defendants for the proposition that a 8 9 foreign sovereign s extraterritorial assets are absolutely immune from execution 10 were decided before the Supreme Court s decision in NML Capital, which made 11 clear that such cases predating NML Capital are no longer binding on this discrete 12 point. See EM Ltd. v. Republic of Argentina, 695 F.3d 201, 208 (2d Cir. 2012) ( We 13 recognize that a district court sitting in Manhattan does not have the power to 14 attach Argentinian property in foreign countries. ); Aurelius Capital Partners, LP v. 15 Republic of Argentina, 584 F.3d 120, 130 (2d Cir. 2009) ( [T]he property that is 16 subject to attachment and execution must be property in the United States of a 17 foreign state . . . . (internal quotation marks omitted)). Following NML Capital, 18 this body of former case law is of no help to the defendants. As the Supreme 60 15 0690 Peterson v. Islamic Republic of Iran 1 Court instructed, even if [the defendants] were right about the scope of the 2 common law execution immunity rule, then it would be obvious that the terms 3 of § 1609 execution immunity are narrower, since the text of that provision 4 immunizes only foreign state property in the United States. NML Capital, 134 S. 5 Ct. at 2257 (emphasis in original). NML Capital and Koehler do not, however, affect our long standing view 6 7 that [t]he FSIA provides the exclusive basis for obtaining subject matter 8 jurisdiction over a foreign state. Kirschenbaum, 830 F.3d at 122 (emphasis added); 9 see also NML Capital, 134 S. Ct. at 2256 58 (concerning execution jurisdiction). 10 Here, though, the putative exercise of in personam jurisdiction concerns 11 Clearstream—the party in possession of the asset at issue—which is not itself a 12 sovereign and therefore does not possess sovereign immunity. Nonetheless, NML Capital and Koehler, when combined, do authorize a 13 14 court sitting in New York with personal jurisdiction over a non sovereign third 15 party to recall to New York extraterritorial assets owned by a foreign sovereign. 16 Had Koehler arisen in the context of an exercise of in personam jurisdiction over a 17 foreign sovereign—it did not—the FSIA s grant of jurisdictional immunity would 18 supersede contrary state law. See Peterson, 627 F.3d at 1130 (applying state law 61 15 0690 Peterson v. Islamic Republic of Iran 1 insofar as it does not conflict with the FSIA ). As it was decided, however, 2 Koehler does not appear to us to be inconsistent with the FSIA as interpreted by 3 the Supreme Court in NML Capital. 4 At least one of our sister circuits has, without considering the issue in any 5 detail, suggested the contrary conclusion: that even after NML Capital, a foreign 6 sovereign s extraterritorial assets remain absolutely immune from execution. In 7 Rubin v. Islamic Republic of Iran, 830 F.3d 470 (7th Cir. 2016), the Seventh Circuit 8 remarked that before a foreign sovereign s assets are even potentially subject to 9 attachment and execution, it must be shown that the assets are within the 10 territorial jurisdiction of the district court. Id. at 475 (citing NML Capital, 134 S. 11 Ct. at 2257 ( Our courts generally lack authority in the first place to execute 12 against property in other countries . . . . )). The Seventh Circuit s comment is 13 unavailing to the defendants here. As an initial matter, it is not evident that an 14 exercise of in personam jurisdiction over a non sovereign pursuant to Koehler is 15 inconsistent with the Seventh Circuit s statement concerning the exercise of 16 territorial jurisdiction in the context of an in rem proceeding. Id.; see also Rubin 17 v. Islamic Republic of Iran, 33 F. Supp. 3d 1003, 1006 (N.D. Ill. 2014) ( Plaintiffs now 18 seek to collect on [judgments against Iran] by attaching alleged assets of Iran . . . . 62 15 0690 Peterson v. Islamic Republic of Iran 1 (emphasis added)), aff d, 830 F.3d 470 (7th Cir. 2016), cert. granted, 137 S. Ct. 2326 2 (2017). Moreover, we do not understand the Supreme Court s observation that 3 4 [o]ur courts generally lack authority in the first place to execute against property 5 in other countries, NML Capital, 134 S. Ct. at 2257, to foreclose that possibility.20 6 Indeed, Justice Scalia s observation was made in the context of noting that no 7 court had ever before held that a foreign state s extraterritorial assets enjoyed 8 absolute execution immunity in United States courts. Id. And as we have noted, 9 even if such a rule had existed at common law, it would be obvious that the 10 terms of § 1609 execution immunity are narrower, since the text of that provision 11 immunizes only foreign state property in the United States. Id. (emphasis in 12 original). So . . . § 1609 execution immunity . . . [does] not shield . . . a foreign 13 sovereign s extraterritorial assets. Id. The Supreme Court observed that a writ of execution . . . can be served anywhere within the state in which the district court is held. NML Capital, 134 S. Ct. at 2257 (alteration omitted) (quoting 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3013, p. 156 (2d ed. 1997) [hereinafter Wright & Miller ]). That statement of law pertains to service and is not a barrier to a court s exercise of jurisdiction in accordance with the jurisdictional boundaries established by the state in which the court resides. See Wright & Miller § 3012 ( Many questions that arise in the enforcement of a money judgment will not be answered in the federal statutes and resort must be had to state law. The relevant law is that of the state in which the district court is held. ). 20 63 15 0690 Peterson v. Islamic Republic of Iran We think that the Supreme Court s decision in NML Capital counsels in 1 2 favor of part of the reasoning suggested by the Ninth Circuit s decision in 3 Peterson, 627 F.3d 1117, itself a pre–NML Capital case. There, judgment creditors 4 of Iran sought to execute against Iran s rights to payment from CMA CGM, a 5 French shipping company indebted to Iran. Id. at 1121. The Ninth Circuit held 6 that the right to payment was not property in the United States within the 7 meaning of § 1610(a) and was, therefore, immune from execution. Id. at 1130. 8 The court appeared to reach that conclusion based on the FSIA itself, see id. 9 (citing 28 U.S.C. § 1610(a)), which reasoning, as explained, was vitiated by NML 10 Capital. 11 But the Ninth Circuit also turned to state law as directed by Federal Rule 12 of Civil Procedure 69(a). Id. at 1130 31 (noting that California enforcement law 13 authorizes a court to order the judgment debtor to assign to the judgment 14 creditor . . . all or part of a right to payment due or to become due (quoting Cal. 15 Civ. Proc. Code § 708.510(a))). In particular, the Ninth Circuit relied on Philippine 16 Export & Foreign Loan Guar. Corp. v. Chuidian, 218 Cal. App. 3d 1058, 267 Cal. 17 Rptr. 457 (6th Dist. 1990), for the proposition that the location of a right to 18 payment . . . is the location of the debtor, Peterson, 627 F.3d at 1131 (citing 64 15 0690 Peterson v. Islamic Republic of Iran 1 Philippine Export, 218 Cal. App. 3d 1058, 267 Cal. Rptr. 457). The state appellate 2 court s decision in Philippine Export also held that California s state execution law 3 does not apply extraterritorially. Philippine Export, 218 Cal. App. 3d at 1099, 267 4 Cal. Rptr. at 481. Citing that decision, the Ninth Circuit concluded that a foreign 5 state defendant s rights to payment from third party debtors are assignable only 6 if those debtors [] reside in the United States. Peterson, 627 F.3d at 1131 7 (quoting Philippine Export, 218 Cal. App. 3d at 1099, 267 Cal. Rptr. at 481). 8 Although the Ninth Circuit s decision appears to have rested on its pre 9 NML Capital understanding of the FSIA, its decision and citation to Philippine 10 Export suggest an alternative approach that is in step with our reconciliation of 11 NML Capital and Koehler. Were one to except the part of the Ninth Circuit s 12 opinion that did not survive NML Capital, the principal difference between the 13 Ninth Circuit s decision in Peterson and our disposition of this case might be 14 viewed as one of state law. Compare Philippine Export, 218 Cal. App. 3d at 1099, 15 267 Cal. Rptr. at 480 (declining to exercise extraterritorial personal jurisdiction 16 because, under California law, the limits which generally exist upon the right to 17 execute . . . apply in a judgment debtor proceeding such as this (citing Cal. Civ. 18 Proc. Code § 708.510 cmt. (West 1987) (Legislative Committee Comments, 65 15 0690 Peterson v. Islamic Republic of Iran 1 Assembly, 1982 Addition))), with Koehler, 12 N.Y.3d at 539, 911 N.E.2d at 829 2 (determining that the New York State [l]egislature intended CPLR article 52 to 3 have extraterritorial reach ). 4 On remand, the district court should determine in the first instance 5 whether it has personal jurisdiction over Clearstream.21 If it answers that 6 question in the affirmative, then the court should determine if a barrier exists to 7 an exercise of in personam jurisdiction to recall to New York State the right to 8 payment held by Clearstream in Luxembourg, whether for reasons of, inter alia, 9 state law,22 federal law, international comity,23 or for any other reason. Although the district court concluded in Peterson I that it had general personal jurisdiction over Clearstream, Peterson I, 2013 WL 1155576, at *18 19, 2013 U.S. Dist. LEXIS 40470, at *87 91 (finding both general and specific personal jurisdiction), the district court explicitly declined in Peterson II to decide whether it did here, Peterson II, 2015 WL 731221, at *1, 2015 U.S. Dist. LEXIS 20640, at *4. We think it prudent for the district court to decide in the first instance whether personal jurisdiction over Clearstream exists in the context of the events relevant to this case. 21 Such barriers might include the separate entity doctrine. See Motorola Credit Corp. v. Standard Chartered Bank, 24 N.Y.3d 149, 21 N.E.3d 223 (2014). 22 For example, in the event that the district court concludes [on remand] that the exercise of personal jurisdiction over [Clearstream] is appropriate, the court may undertake a comity analysis before ordering [Clearstream] to comply with the [putative order]. Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 138 (2d Cir. 2010). Such an analysis would likely follow the framework provided by . . . the Restatement (Third) of Foreign Relations Law. Id. at 139. We leave it to the parties to develop and the district court to review the requisite record indicating whether a court order will infringe on sovereign interests of a foreign state. Id. 23 66 15 0690 Peterson v. Islamic Republic of Iran Should that asset be recalled, it may, upon being produced in New York, 1 2 qualify as an asset in the United States of a foreign state and, if so, it would be 3 afforded execution immunity as such. 28 U.S.C. § 1609 (emphasis added). 4 Accordingly, the district court will likely be required to determine, if and when it 5 reaches that juncture, whether the asset that comes to be in the United States is 6 subject to the execution immunity exceptions relied on by the plaintiffs, 28 U.S.C. 7 § 1610(a)(7), (g)(1); TRIA § 201(a). The defendants should, of course, be 8 permitted to raise appropriate rebuttals at that time if they so choose. We are cognizant of the conundrum apparently posed by NML Capital and 9 10 Koehler when read in tandem. The FSIA aimed to facilitate and depoliticize 11 litigation against foreign states and to minimize irritations in foreign relations 12 arising out of such litigation. Cargill Int l S.A. v. M/T Pavel Dybenko, 991 F.2d 13 1012, 1016 (2d Cir. 1993) (internal quotation marks omitted). We are not at all 14 sure that NML Capital when read in light of the law established by Koehler 15 furthers that goal. But if we are correct in our analysis, any such problem is one 16 for the Supreme Court or the political branches—not this Court—to resolve.24 The Supreme Court noted that its decision in NML Capital might present worrisome international relations consequences, provoke reciprocal adverse treatment of the United States in foreign courts, or threaten harm to the United States foreign relations 24 67 15 0690 Peterson v. Islamic Republic of Iran 1 Here, we attempt only to apply the law as we find it: The authority of courts 2 sitting in New York with personal jurisdiction over a non sovereign third party 3 to order that third party garnishee to produce in New York an extraterritorial 4 asset seems clear enough. Koehler, 12 N.Y.3d at 540, 911 N.E.2d at 830. Whether 5 that extraterritorial asset is owned by a foreign sovereign is of no moment, 6 because the FSIA s grant of execution immunity does not extend to assets located 7 abroad. NML Capital, 134 S. Ct. at 2257. Moreover, we think that the two step process called for by these cases— 8 9 first recalling the asset at issue, and second, proceeding with a traditional FSIA 10 analysis—is unlikely to open the proverbial floodgates to a wave of turnover 11 claims seeking to execute against heretofore unreachable extraterritorial assets. 12 Even if those assets are in the possession of a third party over whom or which a 13 court sitting in New York has personal jurisdiction, those assets still must not be 14 subject to execution immunity upon being recalled to New York State. In that 15 respect, the FSIA contains several limiting principles, such as the requirement 16 that any asset subject to execution must have been used for a commercial more generally. NML Capital, 134 S. Ct. at 2258 (internal quotation marks omitted). It nonetheless expressed the view that [t]hese apprehensions are better directed to that branch of the government with authority to amend the Act. Id. We are similarly constrained. 68 15 0690 Peterson v. Islamic Republic of Iran 1 activity in the United States. 28 U.S.C. § 1610(a). Similarly, the TRIA contains 2 its own limiting provisions, including the requirement that any asset subject to 3 turnover be blocked, a term of art imbued with precise meaning. TRIA 4 § 201(a); see also Smith v. Fed. Reserve Bank of N.Y., 346 F.3d 264, 267 69 (2d Cir. 5 2003) (defining blocked in the context of the TRIA). These and other 6 constraints have frequently proven to be barriers to execution on foreign 7 sovereign assets. See, e.g., Calderon Cardona v. Bank of N.Y. Mellon, 770 F.3d 993, 8 999 (2d Cir. 2014) (holding that attachment was unavailable under the TRIA 9 because North Korea was not designated as a state sponsor of terrorism under 10 . . . the Export Administration Act of 1979 . . . or . . . the Foreign Assistance Act of 11 1961 at the time of judgment (internal quotation marks omitted)); Hausler v. JP 12 Morgan Chase Bank, N.A., 770 F.3d 207, 212 (2d Cir. 2014) (per curiam) 13 (determining that the property at issue did not qualify as the blocked asset of a 14 foreign sovereign); Aurelius Capital Partners, 584 F.3d at 130 31 (holding that 15 assets were not subject to execution under the FSIA because the assets at issue 16 were not used for a commercial activity, as required by the Act); Bank of N.Y. v. 17 Rubin, 484 F.3d 149, 150 (2d Cir. 2007) (per curiam) (concluding that the assets at 18 issue were not blocked assets subject to turnover under the TRIA). 69 15 0690 Peterson v. Islamic Republic of Iran Indeed, these or other limitations may ultimately prevent the plaintiffs in 1 2 this case from obtaining turnover of the asset at issue, should it be recalled to 3 New York State pursuant to an exercise of the court s in personam jurisdiction. As 4 but one example, one of the defendants argues on appeal that the asset at issue 5 does not qualify for the execution immunity exceptions enumerated in 28 U.S.C. 6 § 1610(a) because it was not used for a commercial activity in the United States. 7 UBAE Br. at 37 39. Whether that is so is independent of whether the asset comes 8 to be located in the United States. See 28 U.S.C. § 1610(a) ( The property in the 9 United States of a foreign state, . . . used for a commercial activity in the United 10 States, shall not be immune from attachment in aid of execution, or from 11 execution, . . . if [additional specified requirements are satisfied]. ). While we 12 need not, and therefore do not, consider the applicability of these barriers at this 13 time, we wish to make clear that the plaintiffs are by no means assured success 14 upon remand. 15 CONCLUSION 16 To summarize, for the foregoing reasons, we conclude as follows: 17 1. Plain error as to the application of the Clearstream settlement agreement to those plaintiffs who were not parties to Peterson I requires 18 70 15 0690 Peterson v. Islamic Republic of Iran 1 vacatur of the judgment of dismissal and remand with respect to those 2 plaintiffs non turnover claims brought against Clearstream. 3 2. Excepting those plaintiffs who were not parties to Peterson I, the 4 Clearstream settlement agreement released the plaintiffs non turnover 5 claims brought against Clearstream. The district court therefore 6 properly dismissed those claims. 3. Whether the UBAE settlement agreement is applicable to the plaintiffs 7 8 non turnover claims brought against UBAE is, under the language of 9 the agreement, unclear. Those claims were, therefore, dismissed by the 10 district court in error. Accordingly, we vacate and remand that part of 11 the district court s judgment of dismissal. 4. The UBAE settlement agreement did not release the plaintiffs non 12 13 turnover claims brought against Markazi. Accordingly, we vacate and 14 remand that part of the district court s judgment of dismissal. 15 5. The district court correctly determined that the asset at issue is a right 16 to payment held by Clearstream in Luxembourg. It also, therefore, 17 properly dismissed JPMorgan from this action. 71 15 0690 Peterson v. Islamic Republic of Iran 1 6. The district court prematurely dismissed the amended complaint for 2 lack of subject matter jurisdiction. Cf. Republic of Argentina v. NML 3 Capital, Ltd., 134 S. Ct. 2250 (2014); Koehler v. Bank of Berm. Ltd., 12 4 N.Y.3d 533, 911 N.E.2d 825 (2009). On remand the district court should 5 consider whether it has personal jurisdiction over Clearstream. If the 6 court answers that question in the affirmative, then it should determine 7 whether any provision of state or federal law prevents the court from 8 recalling, or the plaintiffs from receiving, the asset. Accordingly, we AFFIRM the district court s judgment in part, VACATE it 9 10 in part, and REMAND for further proceedings consistent with this opinion. 11 72 15 0690 Peterson v. Islamic Republic of Iran APPENDIX 1 The following parties are plaintiffs in this appeal: Deborah D. Peterson, 2 3 personal representative of the Estate of James C. Knipple, Terry Abbott, John 4 Robert Allman, Ronny Kent Bates, James Baynard, Jess W. Beamon, Alvin Burton 5 Belmer, Richard D. Blankenship, John W. Blocker, Joseph John Boccia, Jr., Leon 6 Bohannon, John Bonk, Jr., Jeffrey Joseph Boulos, John Norman Boyett, William 7 Burley, Paul Callahan, Mecot Camara, Bradley Campus, Johnnie Ceasar, Robert 8 Allen Conley, Charles Dennis Cook, Jolumy Len Copeland, David Cosner, Kevin 9 Coulman, Rick Crudale, Russell Cyzick, Michael Devlin, Nathaniel Dorsey, 10 Timothy Dunnigan, Bryan Earle, Danny R. Estes, Richard Andrew Fluegel, 11 Michael D. Fulcher, Sean Gallagher, George Gangur, Randall Garcia, Harold 12 Ghumm, Timothy Giblin, Michael Gorchinski, Richard Gordon, Davin M. Green, 13 Thomas Hairston, Michael Haskell, Mark Anthony Helms, Stanley G. Hester, 14 Donald Wayne Hildreth, Richard Holberton, Dr. John Hudson, Maurice Edward 15 Hukill, Edward Iacovino, Jr., Paul Innocenzi, III, James Jackowski, Jeffrey Wilbur 16 James, Nathaniel Walter Jenkins, Edward Anthony Johnston, Steven Jones, 17 Thomas Adrian Julian, Thomas Keown, Daniel Kluck, Freas H. Kreischer, III, 18 Keith Laise, James Langon, IV, Steven LaRiviere, Richard Lemnah, Paul D. Lyon, 73 15 0690 Peterson v. Islamic Republic of Iran 1 Jr., John Macroglou, Charlie Robert Martin, Michael Scott LaRiviere, Joseph R. 2 Livingston, III, Samuel Maitland, Jr., David Massa, John McCall, James E. 3 McDonough, Timothy R. McMahon, Richard Menkins, II, Ronald Meurer, Joseph 4 Peter Milano, Joseph Moore, Harry Douglas Myers, David Nairn, John Arne 5 Olson, Joseph Albert Owens, Connie Ray Page, Ulysses Gregory Parker, Olson J. 6 Ronald, (Estate of) Sigurd Olson, David Owens, Deanna Owens, Frances Owens, 7 James Owens, Steven Owens, Connie Mack Page, Judith K. Page, Lisa Menkins 8 Palmer, Geraldine Paolozzi, Maureen Pare, (Estate of) Mary A. Cook, Alan Tracy 9 Copeland, Betty Copeland, Donald Copeland, Blanche Corry, Harold Cosner, 10 Jeffrey Cosner, Leanna Cosner, (Estate of) Marva Lynn Cosner, Cheryl 11 Cossaboom, Bryan Thomas Coulman, Christopher J. Coulman, Dennis P. 12 Coulman, Lorraine M. Coulman, Robert D. Coulman, Robert Louis Coulman, 13 (Estate of) Angela Josephine Smith, Bobbie Ann Smith, Cynthia Smith, Donna 14 Marie Smith, Erma Smith, Holly Smith, Ian Smith, Janet Smith, Joseph K. Smith, 15 III, Joseph K. Smith, Jr., Keith Smith, Shirley L. Smith, Tadgh Smith, Terrence 16 Smith, Timothy B. Smith, Jocelyn J. Sommerhof, John Sommerhof, William J. 17 Sommerhof, Douglas Spencer, Christy Williford Stelpflug, Joseph Stelpflug, 18 Kathy Nathan Stelpflug, Laura Barfield Stelpflug, Peggy Stelpflug, William 74 15 0690 Peterson v. Islamic Republic of Iran 1 Stelpflug, Horace Stephens, Sr., Joyce Stephens, Keith Stephens, Dona Stockton, 2 (Estate of) Donald Stockton, Richard Stockton, Irene Stokes, Nelson Stokes, Jr., 3 (Estate of) Nelson Stokes, Sr., Robert Stokes, Gwenn Stokes Graham, Marcus D. 4 Sturghill, Marcus L. Sturghill, Jr., NaKeisha Lynn Sturghill, Doreen Sundar, 5 Margaret Tella, Susan L. Terlson, Mary Ellen Thompson, Adam Thorstad, 6 Barbara Thorstad, James Thorstad, Jr., James Thorstad, Sr., John Thorstad, Ryan 7 Thorstad, Charlita Martin Covington, Amanda Crouch, Marie Crudale, Eugene 8 Cyzick, Lynn Dallachie, Anne Deal, Lynn Smith Derbyshire, Theresa Desjardins, 9 Christine Devlin, Daniel Devlin, Gabrielle Devlin, Richard Devlin, Sean Devlin, 10 Rosalie Donahue (Milano), Ashley Doray, Rebecca Doss, Chester Dmmigan, 11 Elizabeth Ann Dunnigan, Michael Dunnigan, William Dunnigan, Claudine 12 Dunnigan, Pedro Alvarado, Jr., Dennis Jack Anderson, Timothy Brooks, Michael 13 Harris, Donald R. Pontillo, John E. Selbe, Willy G. Thomson, Terance J. Valore, 14 (Estate of) David L. Battle, (Estate of) Matilde Hernandez, Jr., (Estate of) John 15 Muffler, (Estate of) John Jay Tishmack, (Estate of) Leonard Warren Walker, 16 (Estate of) Walter Emerson Wint, Jr., (Estate of) James Yarber, Angel Alvarado, 17 Geraldo Alvarado, Grisselle Alvarado, Luis Alvarado, Luisa Alvarado, Maria 18 Alvarado, Marta Alvarado, Minerva Alvarado, Yolanda Alvarado, Arlington 75 15 0690 Peterson v. Islamic Republic of Iran 1 Ferguson, Janet Williams, Orlando M. Valore, Jr., Bill Macroglou, Thomas D. 2 Brown, Jr., Gwen Woodcock, (Estate of) Warner Gibbs, Jr., Zoraida Alvarado, 3 Hilton Ferguson, Johnny Williams, Neale Scott Bolen, Faith Albright, Jeanette 4 Odom, Lisa Burleyson, Freda Gibbs Hutcherson, Tull Andres Alvarado, Linda 5 Sandback Fish, Rhonda Williams, (Estate of) Moses Arnold, Jr., Gary Wayne 6 Allison, Deborah Vogt, Mecot Echo Camara, Larry Gibbs, Cheryl Bass, Nancy 7 Brocksbank Fox, Ronald Williams, Lolita M. Arnold, C. Keith Bailey, Christopher 8 Burnette, Dale Comes, Marcus A. Lewis, Edward J. Brooks, Tia Fox, Ruth 9 Williams, Lisa Ann Beck, Vina S. Bailey, Connie Decker, Tommy Comes, (Estate 10 of) Warner Gibbs, Sr., Patricia A. Brooks, Tammy Freshour, Scipio J. Williams, 11 Betty J. Bolen, Charles E. Bailey, Gwen Burnette, (Estate of) Bert Daniel Corcoran, 12 (Estate of) Janet Yvonne Lewis, Wanda Ford, Ruby Fulcher, Wesley Williams, 13 Keith Edwin Bolen, Karen L. Cooper, Kathleen Collins, Earl Guy, Bennie Harris, 14 Barbara Gallagher, Delma Williams Edwards, Sheldon H. Bolen, Mark 15 Bartholomew, Catherine Corcoran, Joan M. Crawford, Rose Harris, Brian 16 Gallagher, Tony Williamson, Sharla M. Korz, Teresa Bartholomew, (Estate of) 17 Robert Alton Corcoran, Ian Guy, Marcy Lynn Parson, (Estate of) James 18 Gallagher, Jewelene Williamson, (Estate of) James Silvia, Crystal Bartholomew, 76 15 0690 Peterson v. Islamic Republic of Iran 1 (Estate of) Keith Alton Corcoran, Eddie Guy, Jr., Douglas Pontillo, James 2 Gallagher, Jr., Michael Winter, Lynne Michol Spencer, Jerry Bartholomew, Robert 3 Brian Corcoran, Adam Guy, Don Selbe, Kevin Gallagher, Barbara Wiseman, 4 Catherine Bonk, Joyce Bartholomew, Elizabeth Ann Ortiz, (Estate of) Douglas 5 Held, Eloise F. Selbe, Michael Gallagher, Phyllis Woodford, Kevin Bonk, Arthur 6 Johnson, Michael Corrigan, (Estate of) Sondra Lou Held, James Selbe, Dimitri 7 Gangur, Kelly B. Smith, Thomas Bonk, Robert Bragg, (Estate of) Andrew Davis, 8 Patrick Held, Belinda Skarka, Mary Gangur, Keysha Tollivel, John Bonk, Sr., 9 Carolyn Davis, Thomas Held, Allison Thomson, Jess Garcia, Ronald Garcia, 10 Marion DiGiovanni, Jennifer Davis, Thomas Hoke, Johnny Thompson, Betty Ann 11 Thurman, Roxanne Garcia, Sherry Lynn Fiedler, (Estate of) Frederick Douglass, 12 Glenn W. Hollis, Deborah True, Barbara Tingley, Russell Garcia, Marilou 13 Fluegel, Shirley Douglass Miller, Jane Costa, Janice Valore, Richard L. Tingley, 14 Violet Garcia, Robert Fluegel, Susan Baker, (Estate of) Ann Hollis, Janice 15 Thorstad Edquist, Russell Tingley, Suzanne Perron Garza, Thomas A. Fluegel, 16 Regina Periera, Jack Darrell Hunt, Mary Ruth Ervin, Mary Ann Turek, Jeanne 17 Gattegno, Evans Hairston, Richard Dudley, Mendy Leight Hunt, Barbara Estes, 18 Karen Valenti, Arlene Ghumm, Felicia Hairston, Toledo Dudley, Molly Fay 77 15 0690 Peterson v. Islamic Republic of Iran 1 Hunt, Charles Estes, Anthony Vallone, Ashley Ghumm, Julia Bell Hairston, 2 Sherry Latoz, (Estate of) John Ingalls, Frank Estes, Bill Ghumm, Henry Durban 3 Hukill, Cynthia Blankenship, James Ingalls, Lori Fansler, Donald H. Vallone, 4 Edward Ghumm, Mark Andrew Hukill, Ginger Tuton, Joseph Ingalls, Angela 5 Dawn Farthing, Timothy Vallone, Hildegard Ghumm, Matthew Scott Hukill, 6 Scott Dudley, Kevin Jiggetts, Leona Mae Vargas, (Estate of) Jedaiah Ghumm, 7 Melissa Hukill, David Eaves, Donald Long, Denise Voyles, Jesse Ghumm, 8 Meredith Ann Hukill, (Estate of) Roy Edwards, Robert Lynch, Ila Wallace, Leroy 9 Ghumm, Mitchell Charles Hukill, Cindy Colasanti, (Estate of) Manual Massa, Sr., 10 Kathryn Thorstad Wallace, Moronica Ghumm, Monte Hukill, (Estate of) Barbara 11 Edwards, Tim McCoskey, Barbara Thorstad Warwick, Donald Giblin, Virginia 12 Ellen Hukill, (Estate of) Penny Garner, Ronald L. Moore, Linda Washington, 13 Jeanne Giblin, Catherine Bonk Hunt, (Estate of) David D. Gay, Alan C. 14 Anderson, Vancine Washington, Michael Giblin, Storm Jones, Gail Black, Thelma 15 Anderson, Kenneth Watson, Tiffany Giblin, Penni Joyce, (Estate of) Neva Jean 16 Gay, (Estate of) Stephen B. Bland, Diane Whitener, Valerie Giblin, Jeff Kirkwood, 17 Ronald Gay, (Estate of) Frank Bland, Daryl Wigglesworth, William Giblin, 18 Shirley Kirkwood, Timothy Gay, James Bland, Darren A. Wigglesworth, Thad 78 15 0690 Peterson v. Islamic Republic of Iran 1 Gilford Smith, Carl A. Kirkwood, Jr., Rebecca Cordell, Ruth Ann Bland, Henry 2 Wigglesworth, Rebecca Gintonio, Carl Kirkwood, Sr., (Estate of) David D. Gay, 3 Sr., (Estate of) Laura V. Copeland, Mark Wigglesworth, Dawn Goff, Patricia 4 Kronenbitter, Ronald Duplanty, Robyn Wigglesworth, Christina Gorchinski, Bill 5 Laise, (Estate of) Sean F. Estler, Sandra Wigglesworth, Judy Gorchinski, Betty 6 Laise, Keith Estler, Shawn Wigglesworth, Kevin Gorchinski, Kris Laise, Mary 7 Ellen Estler, Dianne Stokes Williams, Valerie Gorchinski, Louis C. Estler, Jr., 8 Gussie Martin Williams, Alice Gordon, (Estate of) Benjamin E. Fuller, Joseph 9 Gordon, Elaine Allen, Linda Gordon, Ernest C. Fuller, (Estate of) Norris Gordon, 10 John Gibson, Holly Gibson, Maurice Gibson, (Estate of) Michael Hastings, Joyce 11 Hastings, (Estate of) Paul Hein, Christopher Hein, Jo Ann Hein, Karen Hein, 12 Victor Hein, Jacqueline M. Kuncyz, (Estate of) John Hendrickson, John 13 Hendrickson, Tyson Hendrickson, Deborah Ryan, (Estate of) Bruce 14 Hollingshead, Melinda Hollingshead, Renard Manley, James Macroglou, 15 Lorraine Macroglou, Kathy McDonald, Edward J. McDonough, Edward W. 16 McDonough, Sean McDonough, Deborah Rhosto, (Estate of) Luis Rotondo, 17 (Estate of) Rose Rotondo, (Estate of) Phyllis Santoserre, Anna Marie Simpson, 18 Renee Eileen Simpson, Robert Simpson, Larry Simpson, Sr., Sally Jo Wirick, 79 15 0690 Peterson v. Islamic Republic of Iran 1 (Estate of) Michael R. Massman, Angela Massman, Kristopher Massman, Lydia 2 Massman, Nicole Gomez, Patricia Lou Smith, (Estate of) Louis Melendez, 3 Douglas J. Melendez, Johnny Melendez, Zaida Melendez, Johnny Melendez, Jr., 4 (Estate of) Michael D. Mercer, Sarah Mercer, Samuel Palmer, Robin Nicely, 5 (Estate of) Juan Rodriguez, Louisa Puntonet, Robert Rucker, (Estate of) Billy San 6 Pedro, Cesar San Pedro, Guillermo San Pedro, Javier San Pedro, Sila San Pedro, 7 Thurnell Shields, Emmanuel Simmons, (Estate of) James Surch, Will Surch, Patty 8 Barnett, Bradley Ulich, Jeanette Dougherty, Marilyn Peterson, (Estate of) Eric 9 Walker, Tena Walker Jones, Ronald E. Walker, Ronnie Walker, Galen Weber, 10 (Estate of) Obrian Weekes, Ianthe Weekes, Keith Weekes, Meta Weekes, Anson 11 Edmond, Arnold Edmond, Hazel Edmond, Wendy Edmond, (Estate of) Dennis 12 Lloyd West, Kathy West, (Estate of) John Weyl, Sharon Rowan, Kelly Bachlor, 13 Robin Brock, Morgan W. Rowan, Nelson Weyl, Joseph A. Barile, Angela E. Barile, 14 Michael Barile, Andrea Ciarla, Ann Marie Moore, Angela Yoak, John Becker, 15 (Estate of) Anthony Brown, John Brown, Rowel Brown, Sulba Brown, Vara 16 Brown, Marvine McBride, LaJuana Smith, Rodney E. Burns, Eugene Burns, 17 David Burns, Jeannie Scaggs, Daniel Cuddeback, Jr., Barbara Cuddeback, Daniel 18 Cuddeback, Sr., Michael Episcopo, Randy Gaddo, Louise Gaddo Blattler, Peter 80 15 0690 Peterson v. Islamic Republic of Iran 1 Gaddo, Timothy Gaddo, (Estate of) William R. Gaines, Jr., Michael A. Gaines, 2 William R. Gaines, Sr., Carolyn Spears, Carole Weaver, (Estate of) Virgel 3 Hamilton, Gloria Hamilton, Bruce S. Hastings, Maynard Hodges, Mary Jean 4 Hodges, Kathy Hodges, Loretta Brown, Cindy Holmes, Shana Saul, Daniel Joy, 5 Daniel Kremer, (Estate of) Thomas Kremer, (Estate of) Christine Kremer, Joseph 6 T. Kremer, Jacqueline Stahrr, (Estate of) David A. Lewis, Betty Lewis, Jerry L. 7 Lewis, Scott M. Lewis, Paul Martinez, Sr., Teresa Gunther, Alphonso Martinez, 8 Daniel L. Martinez, Michael Martinez, Paul Martinez, Jr., Tomasita L. Martinez, 9 Esther Martinez Parks, Susanne Yeoman, (Estate of) Jeffrey B. Owen, Jean G. 10 Owen, Steven Owen, (Estate of) Michael L. Page, Albert Page, Janet Page, Joyce 11 Clifford, David Penosky, Joseph Penosky, Christian R. Rauch, Leonard Paul Tice, 12 (Estate of) Burton Wherland, Gregory Wherland, Sarah Wherland, Sharon Davis, 13 Charles F. West, Charles H. West, Rick West, Kimmy Wherland, Janet LaRiviere, 14 John M. LaRiviere, Lesley LaRiviere, Michael LaRiviere, Nancy LaRiviere, 15 Richard LaRiviere, (Estate of) Richard G. Lariviere, Robert LaRiviere, William 16 LaRiviere, Cathy L. Lawton, Heidi Crudale LeGault, (Estate of) Clarence 17 Lemnah, Etta Lemnah, Fay Lemnah, Harold Lemnah, Marlys Lemnah, Robert 18 Lemnah, Ronald Lemnah, Annette R. Livingston, Joseph R. Livingston, IV, 81 15 0690 Peterson v. Islamic Republic of Iran 1 (Estate of) Joseph R. Livingston, Jr., Robin M. Lynch, Earl Lyon, Francisco Lyon, 2 June Lyon, Maria Lyon, Paul D. Lyon, Sr., Valerie Lyon, Heather Macroglou, 3 Kathleen Devlin Mahoney, Kenty Maitland, Leysnal Maitland, Samuel Maitland, 4 Sr., Shirla Maitland, Virginia Boccia Marshall, John Martin, Pacita Martin, 5 Renerio Martin, Ruby Martin, Shirley Martin, Mary Mason, Christina Massa, 6 Edmund Massa, Joao John Massa, Jose Joe Massa, Manuel Massa, Jr., Ramiro 7 Massa, Mary McCall, (Estate of) Thomas McCall, Valerie McCall, Gail 8 McDermott, Julia A. McFarlin, George McMahon, Michael McMahon, Patty 9 McPhee, Darren Menkins, Gregory Menkins, Margaret Menkins, Richard H. 10 Menkins, Jay T. Meurer, John Meurer, John Thomas Meurer, Mary Lou Meurer, 11 Michael Meurer, Penny Meyer, Angela Angela Milano, Peter Milano, Jr., Earline 12 Miller, Henry Miller, Patricia Miller, Helen Montgomery, Betty Moore, Harry 13 Moore, Kimberly Moore, Mary Moore, Melissa Lea Moore, (Estate of) Michael 14 Moore, Elizabeth Phillips Moy, Debra Myers, Geneva Myers, Harry A. Myers, 15 Billie Ann Nairn, Campbell J. Nairn, III, (Estate of) Campbell J. Nairn, Jr., 16 William P. Nairn, Richard Norfleet, Deborah O Connor, Pearl Olaniji, (Estate of) 17 Bertha Olson, Karen L. Olson, Randal D. Olson, Roger S. Olson, John W. Nash, 18 Rose Ann Nash, (Estate of) Frank E. Nash, William H. Nash, Mark S. Nash, Frank 82 15 0690 Peterson v. Islamic Republic of Iran 1 E. Nash, Jr., Jaklyn Milliken, Rosemarie Vliet, Cataldo Anthony Nashton, 2 Claudio Comino, Mark Nashton, Myles Nashton, Jennifer Page Nelson, Timothy 3 Price, (Estate of) Betty Lou Price, James M. Puckett, Ronald Putnam, Bruce H. 4 Richardson, Bernice Rivers, Barbara Ann Russell, Robert Emmett Russell, Glenn 5 Edward Russell, Charles Edward Russell, Jr., Jean Louis Brown, Nancy 6 MacDonald, Diane Carol Higgins, (Estate of) Thomas Russell, Thomas Rutter, 7 John Santos, Raoul Santos (father), Mary Santos, Donna Duffy, Mary Cropper, 8 Doreen Callanan, Jean Winner, Kevin Santos, Raoul Santos (brother), Joseph 9 Richard Schneider, Morris Schneider, Jacqueline Gibson, Paul Segarra, Steven 10 Shapuras, David W. Sharp, Charles Simmons, (Estate of) Thomas D. Stowe, 11 David Stowe, Barbara Stowe, Priscilla Stowe, Samantha Stowe, Donna Baloga, 12 Edward J. Streker, (Estate of) Henry Townsend, Jr., Lillian Townsend, Henry 13 Townsend, Marcia C. Townsend Tippett, Valerie Tatum, Cynthia Green, 14 Kawanna Duncan, John Turner, Judith Turner, Thomas Andrew Walsh, Charles 15 Walsh, Ruth Walsh, Pat Campbell, Rachel Walsh, Timothy Walsh, Michael 16 Walsh, (Estate of) Sean Walsh, Patricia Fitzgerald Washington, Gerald Foister, 17 (Estate of) Tandy W. Wells, Danny Holland Wells, Edith Holland Wells, (Estate 18 of) Harold Dean Wells, Frances Mangrum, Stella Wells George, Cleta Wells, 83 15 0690 Peterson v. Islamic Republic of Iran 1 Timothy Shon Wells, Michael Shane Wells, Perry Glenn Wells, Bryan K. 2 Westrick, John Westrick, Patricia Westrick, Whitney R. Westrick, Gerald Wilkes, 3 Jr., Gerald Wilkes, Sr., (Estate of) Peggy Wilkes, (Estate of) Dorothy Williams, Bill 4 Williamson, Deborah Wise, Michael Zilka, Sue Zilka, John L. Pearson, Thomas S. 5 Perron, John Arthur Phillips, Jr., William Roy Pollard, Victor Mark Prevatt, James 6 Price, Patrick Kerry Prindeville, Diomedes J. Quirante, Warren Richardson, Louis 7 J. Rotondo, Michael Caleb Sauls, Charles Jeffrey Schnorf, Scott Lee Schultz, Peter 8 Scialabba, Gary Randall Scott, Thomas Alan Shipp, Jerryl Shropshire, Larry H. 9 Simpson, Jr., Kirk Hall Smith, Frederick Daniel Eaves, Thomas Gerard Smith, 10 Charles Frye, Vincent Smith, Truman Dale Garner, William Scott Sommerhof, 11 Larry Gerlach, Stephen Eugene Spencer, John Hlywiak, Horace Renardo 12 Stephens, Jr., Orval Hunt, Craig Stockton, Joseph Jacobs, Jeffrey Stokes, Brian 13 Kirkpatrick, Eric D. Sturghill, Burnham Matthews, Devon Sundar, Timothy 14 Mitchell, Thomas Paul Thorstad, Lovelle Darrell Moore, Stephen Tingley, Jeffrey 15 Nashton, Donald H. Vallone, Jr., Jolm Oliver, Eric Glenn Washington, Paul 16 Rivers, Dwayne Wigglesworth, Stephen Russell, Rodney J. Williams, Dana 17 Spaulding, Scipio Williams, Jr., Craig Joseph Swinson, Johnny Adam Williamson, 18 Michael Toma, William Ellis Winter, Danny Wheeler, Donald Elberan Woollett, 84 15 0690 Peterson v. Islamic Republic of Iran 1 Thomas D. Young, Craig Wyche, Lilla Woollett Abbey, Jeffrey D. Young, James 2 Abbott, Marvin Albright, (Estate of) Mary Abbott, Pablo Arroyo, Elizabeth 3 Adams, Anthony Banks, Eileen Prindeville Ahlquist, Rodney Darrell Burnette, 4 Anne Allman, Paul Gordon, Robert Allman, Andrea Grant, (Estate of) Theodore 5 Allman, Deborah Green, DiAnne Margaret Allman, Liberty Quirante Gregg, 6 Margaret E. Alvarez, Alex Griffin, Kimberly F. Angus, Catherine E. Grimsley, 7 Donnie Bates, Megan Gummer, Johnny Bates, Lyda Woollett Guz, Laura Bates, 8 Darlene Hairston, Margie Bates, Tara Hanrahan, Monty Bates, Mary Clyde Hart, 9 Thomas Bates, Jr., Brenda Haskill, Thomas C. Bates, Sr., Jeffrey Haskell, Mary E. 10 Baumgartner, Kathleen S. Hedge, Anthony Baynard, Christopher Todd Helms, 11 Bany Baynard, Marvin R. Helms, Emerson Baynard, Doris Hester, Philip 12 Baynard, Clifton Hildreth, Henry James Parker, Julia Hildreth, Sharon Parker, 13 Mary Ann Hildreth, Helen M. Pearson, Michael Wayne Hildreth, John L. 14 Pearson, Jr., Frank Comes, Jr., Sonia Pearson, Glenn Dolphin, Brett Perron, 15 Deborah Jean Perron, Michelle Perron, Ronald R. Perron, Muriel Persky, Deborah 16 D. Peterson, Sharon Conley Petry, Sandra Petrick, Donna Vallone Phelps, Harold 17 Phillips, John Arthur Phillips, Sr., Donna Tingley Plickys, Margaret Aileen 18 Pollard, Stacey Yvonne Pollard, Lee Holland Prevatt, Victor Thornton Prevatt, 85 15 0690 Peterson v. Islamic Republic of Iran 1 John Price, Joseph Price, (Estate of) Barbara D. Prindeville, Kathleen Tara 2 Prindeville, Michael Prindeville, Paul Prindeville, Sean Prindeville, Belinda J. 3 Quirante, Edgar Quirante, (Estate of) Godofredo Quirante, Milton Quirante, 4 Sabrina Quirante, Susan Ray, Deborah Graves, Sharon A. Hilton, Donald 5 Holberton, Patricia Lee Holberton, Thomas Holberton, Tangie Hollifield, Debra 6 Horner, Elizabeth House, Joyce A. Houston, Tammy Camara Howell, Lisa H. 7 Hudson, Lorenzo Hudson, Lucy Hudson, Ruth Hudson, William J. Hudson, 8 Nancy Tingley Hurlburt, Cynthia Perron Hurston, Elizabeth Iacovino, Deborah 9 Innocenzi, Kristin Innocenzi, Mark Innocenzi, Paul Innocenzi, IV, Laura M. 10 Reininger, Alan Richardson, Beatrice Richardson, Clarence Richardson, Eric 11 Richardson, Lynette Richardson, Vanessa Richardson, Philiece Richardson Mills, 12 Melrose Ricks, Belinda Quirante Riva, Barbara Rockwell, Linda Rose Rooney, 13 Tara Smith, Tammi Ruark, Juliana Rudkowski, Marie McMahon Russell, Alicia 14 Lynn Sanchez, Andrew Sauls, Henry Caleb Sauls, Riley A. Sauls, Margaret 15 Medler Schnorf, Richard Schnorf (brother), Richard Schnorf (father), Robert 16 Schnorf, Beverly Schultz, Dennis James Schultz, Dennis Ray Schultz, Frank 17 Scialabba, Jacqueline Scialabba, Samuel Scott Scialabba, Jon Christopher Scott, 18 Kevin James Scott, (Estate of) Larry L. Scott, Mary Ann Scott, Sheria Scott, 86 15 0690 Peterson v. Islamic Republic of Iran 1 Stephen Allen Scott, Jacklyn Seguerra, Bryan Richard Shipp, James David Shipp, 2 Janice Shipp, Maurice Shipp, Pauline Shipp, Raymond Dennis Shipp, Russell 3 Shipp, Susan J. Sinsioco, Ana Smith Ward, Thomasine Baynard, Timothy 4 Baynard, Wayne Baynard, Stephen Baynard, Anna Beard, Mary Ann Beck, Alue 5 Belmer, Annette Belmer, Clarence Belmer, Colby Keith Belmer, Denise Belmer, 6 Donna Belmer, Faye Belmer, Kenneth Belmer, Luddie Belmer, Shawn Biellow, 7 Mary Frances Black, Donald Blankenship, Jr., Donald Blankenship, Sr., (Estate of) 8 Mary Blankenship, Alice Blocker, Douglas Blocker, John R. Blocker, Robert 9 Blocker, James Boccia, Joseph Boccia, Sr., Patricia Boccia, Raymond Boccia, 10 Richard Boccia, Ronnie Veronica Boccia, Leticia Boddie, Angela Bohannon, 11 Anthony Bohannon, Carrie Bohannon, David Bohannon, Edna Bohannon, Leon 12 Bohannon, Sr., Ricki Bohannon, Billie Jean Bolinger, Joseph Boulos, Lydia Boulos, 13 Marie Boulos, Rebecca Bowler, Lavon Boyett, (Estate of) Norman E. Boyett, Jr., 14 Theresa U. Roth Boyett, William A. Boyett, Susan Schnorf Breeden, Damian 15 Briscoe, Christine Brown, Rosanne Brunette, Mary Lynn Buckner, (Estate of) 16 Claude Burley, (Estate of) William Douglas Burley, Myra Burley, Kathleen 17 Calabro, Rachel Caldera, Avenell Callahan, Michael Callahan, Patrica Patsy Ann 18 Calloway, Elisa Rock Camara, Theresa Riggs Camara, Candace Campbell, Clare 87 15 0690 Peterson v. Islamic Republic of Iran 1 Campus, Elaine Capobianco, Florene Martin Carter, Phyllis A. Cash, Theresa 2 Catano, Bruce Ceasar, Franklin Ceasar, Fredrick Ceasar, Robbie Nell Ceasar, 3 Sybil Ceasar, Christine Devlin Cecca, Tammy Chapman, James Cherry, Sonia 4 Cherry, Adele H. Chios, Jana M. Christian, Sharon Rose Christian, Susan 5 Ciupaska, Leshune Stokes Clark, Rosemary Clark, Mary Ann Cobble, Karen 6 Shipp Collard, Jennifer Collier, Melia Winter Collier, Deborah M. Coltrane, 7 Roberta Li Conley, Charles F. Cook, Elizabeth A. Cook, Bernadette Jaccom, John 8 Jackowski, Jr., John Jackowski, Sr., Victoria Jacobus, Elaine James, Nathalie C. 9 Jenkins, Stephen Jenkins, Rebecca Jewett, Linda Martin Johnson, Ray Johnson, 10 Rennitta Stokes Johnson, Sherry Johnson, Charles Johnston, Edwin Johnston, 11 Mary Ann Johnston, Zandra LaRiviere Johnston, Alicia Jones, Corene Martin 12 Jones, Kia Briscoe Jones, Mark Jones, Ollie Jones, Sandra D. Jones, (Estate of) 13 Synovure Jones, Robin Copeland Jordan, Susan Scott Jordan, Joyce Julian, Karl 14 Julian, Nada Jurist, Adam Keown, Bobby Keown, Jr., Bobby Keown, Sr., Darren 15 Keown, William Keown, Mary Joe Kirker, Kelly Kluck, Michael Kluck, (Estate of) 16 John D. Knipple, John R. Knipple, (Estate of) Pauline Knipple, Shirley L. Knox, 17 Doreen Kreischer, Freas H. Kreischer, Jr., Cynthia D. Lake, Wendy L. Lange, 18 James Langon, III, Eugene LaRiviere, Joyce Woodle, Beverly Woollett, Paul 88 15 0690 Peterson v. Islamic Republic of Iran 1 Woollett, Melvina Stokes Wright, Patricia Wright, Glenn Wyche, John Wyche, 2 John F. Young, John W. Young, Judith Carol Young, Sandra Rhodes Young, 3 Joanne Zimmerman, Stephen Thomas Zone, Patricia Thorstad Zosso, Jarnaal 4 Muata Ali, Margaret Angeloni, Jesus Arroyo, Milagros Arroyo, Olympia 5 Carletta, Kimberly Carpenter, Joan Comes, Patrick Comes, Christopher Comes, 6 Frank Comes, Sr., Deborah Crawford, Barbara Davis, Alice Warren Franklin, 7 Patricia Gerlach, Travis Gerlach, Megan Gerlach, Arminda Hernandez, Margaret 8 Hlywiak, Peter Hlywiak, Jr., Peter Hlywiak, Sr., Paul Hlywiak, Joseph Hlywiak, 9 Cynthia Lou Hunt, Rosa Ibarro, Andrew Scott Jacobs, Daniel Joseph Jacobs, 10 Danita Jacobs, Kathleen Kirkpatrick, Grace Lewis, Lisa Magnotti, Wendy 11 Mitchell, (Estate of) James Otis Moore, (Estate of) Johnney S. Moore, Marvin S. 12 Moore, Alie Mae Moore, Jonnie Mae Moore Jones, (Estate of) Alex W. Nashton, 13 Paul Oliver, Riley Oliver, Michael John Oliver, Ashley E. Oliver, Patrick S. 14 Oliver, Kayley Oliver, Tanya Russell, Wanda Russell, Jason Russell, Clydia 15 Shaver, Mary Stilpen, Kelly Swank, (Estate of) Kenneth J. Swinson, (Estate of) 16 Ingrid M. Swinson, Daniel Swinson, William Swinson, Dawn Swinson, Teresa 17 Swinson, Bronzell Warren, Jessica Watson, Audrey Webb, Jonathan Wheeler, 18 Benjamin Wheeler, (Estate of) Marlis Molly Wheeler, Kerry Wheeler, Andrew 89 15 0690 Peterson v. Islamic Republic of Iran 1 Wheeler, Brenda June Wheeler, Jill Wold, (Estate of) Nora Young, James Young, 2 (Estate of) Robert Young, Scott Spaulding, Cecilia Stanley, Miralda, (Judith 3 Maitla Alarcon), (Estate of) Samuel Hudson, (Estate of) Susan Thorstad Hudson, 4 (Estate of) Edward Iacovino, Sr. 90

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