Broidy Capital Management, LLC v. State of Qatar, 982 F.3d 582

Plaintiffs Elliott Broidy and Broidy Capital Management alleged Qatari agents hacked their California servers, stole emails/trade secrets, and leaked them to U.S. media to damage Broidy’s influence.
Qatar allegedly retained Global Risk Advisors (GRA) and used Stonington Strategies; forensic data showed some accesses via Doha IPs and numerous accesses from Vermont; many leaked files were converted/distributed within the U.S.
Plaintiffs sued in federal court asserting intrusion, conversion, trade-secret claims, CFAA, SCA, DMCA, state statutes, and other torts; sought damages and injunctive relief.
District court dismissed Qatar for lack of subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), finding neither the tortious-activity nor commercial-activity exceptions applied; dismissal was without leave to amend.
On appeal the Ninth Circuit affirmed: it held Plaintiffs’ tort claims fall within the FSIA’s discretionary-function exclusion and that Qatar’s alleged espionage and dissemination were not "commercial activity" under the FSIA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the FSIA tortious-activity exception (28 U.S.C. §1605(a)(5)) applies	Broidy: torts (intrusion, conversion, trade-secret theft) caused harm in U.S.; exception permits suit	Qatar: alleged conduct involves discretionary foreign-policy decisions and is excluded by the FSIA discretionary-function clause	Held: discretionary-function exclusion bars Plaintiffs’ tort claims; exception inapplicable
Whether the FSIA commercial-activity exception (28 U.S.C. §1605(a)(2)) applies	Broidy: Qatar’s use of U.S. agents/contracts and dissemination in U.S. makes the action based on commercial activity	Qatar: espionage and covert dissemination are sovereign acts, not commercial acts that private parties perform	Held: espionage/dissemination are sovereign in nature and not "commercial activity" under the FSIA; exception inapplicable

Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009) (FSIA discretionary-function analysis guidance)
Olsen by Sheldon v. Government of Mexico, 729 F.2d 641 (9th Cir. 1984) ("one entire tort" occurring in U.S. rule)
Republic of Argentina v. Weltover, 504 U.S. 607 (1992) (FSIA is sole basis for jurisdiction over foreign states)
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (tort exception covers only torts occurring within U.S.)
United States v. Gaubert, 499 U.S. 315 (1991) (two-part discretionary-function test)
Berkovitz v. United States, 486 U.S. 531 (1988) (discretionary exception inapplicable where statute/regulation prescribes action)
Saudi Arabia v. Nelson, 507 U.S. 349 (1993) (sovereign police/power acts are not "commercial activity")
Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994) (use of irregular operatives is not commercial)
Risk v. Halvorsen, 936 F.2d 393 (9th Cir. 1991) (discretionary-function exclusion applies unless violated sovereign’s own law)
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (caution in creating judicially enforceable international-law norms)