Ungar v. Arafat
2011 U.S. App. LEXIS 2412
| 1st Cir. | 2011Background
- Estate of Yaron Ungar sued the PA and PLO under the Anti-Terrorism Act seeking recovery for US nationals injured by terrorism.
- A default judgment exceeding $116,000,000 was entered against the PA and PLO in 2004, later affirmed on appeal.
- An injunction issued May 5, 2005 restrained the PA, PLO, and their privies from selling or transferring assets in the United States to aid collection.
- Swiss American Securities, Inc. (SASI) froze the assets of the Palestinian Pension Fund for the State Administrative Employees in the Gaza Strip (the Fund), which denied the Fund access to its assets.
- The Fund filed parallel actions in New York: a turnover action (dismissed without prejudice) and a declaratory judgment action; discovery proceeded and a motion for summary judgment was unresolved.
- The Fund moved to intervene as of right in August 2010; the district court denied intervention as the injunction expressly covered only the PA, PLO, and their privies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fund can intervene as of right under Rule 24(a)(2). | Fund has an interest related to the injunction's assets at stake. | Injunctive scope excludes Fund; no adequate interest exists. | Fund had no sufficient interest; intervention denied. |
| Whether Fund's interest is sufficiently direct and protectable. | Fund's assets are frozen by the injunction through SASI. | Assets at issue belong to Fund, not to PA/PLO, so no direct interest in the litigation. | Interest was too contingent/indirect; not adequately protectable. |
| Whether the district court properly applied Rule 24(a)(2) requirements. | Court should have recognized Fund's asserted interest under Rule 24(a)(2). | Court reasonably found Fund lacked interest and therefore failed the Rule 24(a)(2) prong. | Rules analysis conducted appropriately; no abuse of discretion. |
| Whether bond requirements or other remedies were appropriate. | Estate should have posted a bond under Rule 65(c). | Injunction was not preliminary and Fund not a party; bond not required. | Bond requirement not applicable; no remedy change. |
Key Cases Cited
- R. & G. Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1 (1st Cir. 2009) (intervention standards and collateral-order considerations)
- Travelers Indem. Co. v. Dingwell, 884 F.2d 629 (1st Cir. 1989) (interest must be direct and significantly protectable)
- Patch v. Spirit Aerosystems, Inc., 136 F.3d 197 (1st Cir. 1998) (intervention analysis and standard for Rule 24(a)(2))
- Negrón-Almeda v. Santiago, 528 F.3d 15 (1st Cir. 2008) (interpretation of Rule 24(a)(2) in First Circuit)
- Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60 (1st Cir. 2008) (deference to district court's reasoning in bench decisions)
- Cotter v. Mass. Ass'n of Minority Law Enf. Officers, 219 F.3d 31 (1st Cir. 2000) (standard for evaluating district court rationale)
- Int'l Paper Co. v. Inhab. of Town of Jay, 887 F.2d 338 (1st Cir. 1989) (balancing factors in Rule 24(a)(2) analysis)
- Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610 F.2d 49 (1st Cir. 1979) (notions of interest adequacy in intervention)
- Tierney v. United States, 760 F.2d 382 (1st Cir. 1985) (cake metaphor illustrating competing interests)
- CMM Cable Reps., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618 (1st Cir. 1995) (tethering appellate review to record for bench decisions)
- Forest Park II v. Hadley, 336 F.3d 724 (8th Cir. 2003) (bond discussion in injunction context)