In this litigation, judgment creditors of the Islamic Republic of Iran (“Iran”) attempt to execute on $1.68 billion in bond proceeds allegedly owned by Iran’s central bank. The Supreme Court has instructed that in an execution proceeding concerning a foreign sovereign’s assets, any defense predicated on foreign sovereign immunity must rise or fall on the text of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602 et seq. See Republic of Argentina v. NML Capital, Ltd., — U.S. -,
The plaintiffs-appellants, judgment creditors of Iran and Tran’s Ministry of Intelligence and Security (“MOIS”), obtained federal-court judgments against Iran and MOIS awarding the plaintiffs billions of dollars in compensatory damages. They now seek to enforce their judgments in part by executing on $1.68 billion in bond proceeds allegedly owned by Bank Marka-zi (“Markazi”), Iran’s central bank. The plaintiffs allege.that those bond proceeds were processed by and through a global chain of banks, specifically by Clearstream Banking, S.A. (“Clearstream”) through JPMorgan Chase Bank, N.A. (“JPMor-gan”), in the name of Banca UBAE, S.p.A. (“UBAE”), on behalf of Markazi (collectively, “the defendants” or “the defendant banks”). The plaintiffs further allege that the bond proceeds are denominated as United States dollars (“USD”) and held in cash in Clearstream’s account at JPMor-gan in New York City, rendering the assets subject to this Court’s jurisdiction and a turnover order.
The defendant banks respond that there is no cash to turn over: The bond proceeds are in fact recorded as book entries made in Clearstream’s Luxembourg offices and reflected as a positive account balance showing a right to payment owed by Clear stream to Markazi through UBAE. The defendants argue that
In a single order, the- district court (Katherine B. Forrest, Judge) granted the defendants’ motions to dismiss and for partial summary judgment in favor of the defendants on all claims in dispute. We affirm that decision in part, vacate it in part, and remand for further proceedings.
BACKGROUND
The' plaintiffs-appellants are, or represent persons who have been adjudicated in a federal court to be, victims of Iranian-sponsored terrorism. They obtained judgments from- the United States District Court for the District of Columbia against Iran and 'MOIS pursuant to §§ 1605(a)(7) and 1605A of the FSIA, and were awarded a total of approximately $3,8 billion in compensatory damages. Confidential Appendix (“C.A.”
The plaintiffs contend that through a series of fraudulent transactions, these banks managed to process billions of dollars in bond proceeds ultimately owed to Markazi. According to the plaintiffs, -the fruit of those transactions is a pool of cash traceable to the Markazi-owned bond proceeds and held by Clearstream at JPMor-gan in New York City. Because much of this dispute turns on the, nature and location of the bond proceeds, we review the processing of those assets, and previous attempts to obtain turnover of similar assets, in some detail.
2. Processing Markazi ⅛ Bonds
Like many large financial institutions, Markazi "invests- in foreign sovereign bonds. Id. at 701. Many of the bonds purchased by Markazi were issued pursuant to’prospectuses that require the purchaser
In 1994, Markazi opened a direct account, with Clearstream in Luxembourg. Id. at 117-18. Thereafter, Clearstream received bond payments into its New York-based JPMorgan correspondent account on behalf of Markazi; Clearstream then credited Markazi’s account in Luxembourg with a corresponding right to payment. In 2008, apparently because of increasing scrutiny of Iranian financial transactions, Markazi stopped processing its bond proceeds through Clearstream directly and instead began doing so through an intermediary bank: UBAE. Id. at 699-700. In January 2008, UBAE opened a customer account with Clearstream in Luxembourg—account number 13061. Id. at 118— 19. Shortly thereafter, Markazi arranged for Clearstream to transfer the Markazi account balance at Clearstream in Luxembourg to the UBAE account. Id. at 118, 434.
Clearstream continued to receive bond proceeds in New York on behalf of Marka-zi, but pursuant to the terms of the documentation directing the Markazi account transfer, Clearstream credited UBAE. account number 13061 with a corresponding right to payment. Id. at 701. In June 2008, apparently due to increasing attention, Clearstream notified UBAE that it had blocked UBAE account number, 13061 and transferred the balance of that account to a “sundry blocked account”—accqunt number 13675. Id. at 683-84. That account, which remains blocked, is at the center of the present dispute.
2. Peterson I
Clearstream has previously been the focus of an attempt by judgment creditors of Iran to obtain turnover of Markazi-linked assets. See generally Peterson v. Islamic Republic of Iran, No. 10-cv-4518-KBF,
While Markazi unsuccessfully appealed the district court’s turnover order in Peterson I,
Of relevance here, the Clearstream settlement agreement released Clearstream from “any and all past, present or future claims or causes of action ... whether direct or indirect” relating to:
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 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.
Id. at 903.
The Clearstream settlement agreement did, however, reserve the following claims to the Peterson I plaintiffs:
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 Clear-stream Party.
Id. at 905 (emphasis omitted).
The UBAE settlement agreement similarly released UBAE and its “beneficiaries” from “any and all liability, claims, causes of action, suits, judgments, costs, expenses, attorneys’ fees, or other incidental or consequential damages of any kind, whether known or unknown, arising out of or related to the Plaintiffs’ Direct Claims against UBAE,” except for those specifically listed in the agreement. Id. at 1648. The agreement defined “Plaintiffs’ Direct Claims” as those brought in Peterson I “for damages against UBAE with regard to certain assets transferred prior to the initiation of the [t]umover [a]ction and valued at approximately $250,000,000.00 ... including, but not limited to, claims for
The UBAE settlement agreement also contained a carve-out provision by which the “[plaintiffs agree[d] that any future claim against UBAE for the Remaining Assets shall be limited to turnover only”; the plaintiffs “waive[d] all other claims against UBAE for any damages regarding the Remaining Assets whether arising in contract, tort, equity, or otherwise.” Id. at 1648. The agreement defined “Remaining Assets” as “assets [that] remain in. an account at Clearstreamf ] [in] a UBAE customer account, that are beneficially owned by Bank Markazi.” Id. at 1647.
3. Procedural History
On December 30, 2013, the plaintiffs filed a complaint in the United States District Court for the Southern District of New York alleging that Clearstream held an additional $2.5 billion in Markazi-owned bond proceeds not at issue in Peterson I. See id. at 3, 28. On April 25, 2014, the plaintiffs filed an amended complaint specifically alleging that UBAE’,s “blocked sundry account” at Clearstream reflected a balance of approximately $1.68 billion, and that Clearstream held a corresponding amount of cash at JPMorgan in New York City. Id. at 687. The amended complaint named Iran, Clearstream, JPMorgan, Markazi, and UBAE as defendants, seeking: (1) declaratory relief identifying Mar-kazi as the beneficial owner of the assets at issue, id. at 720-21; (2) rescission of fraudulent conveyances under New York Debtor and Creditor Law (“DCL”) §§ 273-a, 276(a),. against Iran, Markazi, Clear-stream, and UBAE, id. at 721-25; (3) turnover of the $1.68 billion in assets at issue under New York Civil Practice Law and Rules (“C.P.L.R.”) §§ 5225, 5227 and § 201(a) of the Terrorism Risk Insurance Act (“TRIA”), against Clearstream, Iran, JPMorgan, Markazi, and UBAE, id. at 725-27; (4) rescission of fraudulent conveyances under DCL §§ 273-a, 276, 278 and common law, against Clearstream and Markazi, id. at 728-29; and (5) unspecified equitable relief against each defendant, id. at 729.
On April 9, 2014, the district court (Katherine B. Forrest, Judge) granted an ex parte application for an order directing the clerk of the district court to issue a writ of execution with respect to any Mar-kazi-owned property in the possession of JPMorgan. Id. at 104-05. The district court thereafter held a hearing to address the defendants’ argument that the writ was improper because the Clearstream correspondent account at JPMorgan contains “nothing ... except cash, and the cash turns over in billions of dollars every day, so there’s no possibility the cash in the account can be identified to any defendant,” including Markazi. Id. at 792. The district court thereupon vacated the order issuing the writ. Id. at 793, 800.
The plaintiffs moved to reinstate the order and the defendants responded with various motions seeking dismissal of the amended complaint. Clearstream moved to dismiss on the ground that the assets were located in Luxembourg, and therefore immune from execution under the FSIA. Clearstream also argued that the plaintiffs released all non-turnover claims against Clearstream under their settlement agreement. Markazi moved to dismiss on similar jurisdictional grounds. JPMorgan moved for partial summary judgment on the plaintiffs’ turnover claims on the ground that it possessed no assets owned by Mar-kazi. Finally, UBAE moved to dismiss for want of subject-matter jurisdiction, and for partial summary judgment on the plaintiffs’ non-turnover claims on the
The parties’ motions were accompanied by a voluminous record.
Clearstream also submitted evidence concerning its JPMorgan correspondent account. For example, it produced a chart documenting its account balance at JPMorgan for each day in October 2012, during which the Clearstream correspondent account balance did not exceed $817,959,813.65, and was frequently negative. Id. at 1957. Clearstream also submitted a declaration executed by Mathias Pa-penfuB, then Head of Operations for Clearstream, id. at 1972, who 'stated: “Each business day Clearstream uses U.S. dollars deposited in the JPMorgan [ale-count to pay its current U.S. .dollar obligations. Each business day, ápproximately $7-9 billion flows into the JPMorgan [account, and each business day a roughly equivalent sum flows out.” Id. at 1973. PapenfuB explained that “[t]he obligations credited to Clearstream by JPMorgan are booked as assets of Clearstream on Clear-stream’s balance sheet pursuant to applicable' Luxembourg banking law and accounting rules.” Id. “When Clearstream receives a payment in the JPMorgan [account on its own security entitlements, Clearstream credits the account of any customers in Luxembourg holding security entitlements against Clearstream relating to a security with the same [identification number].” Id. at 1974. PapenfuB corroborated Jonckheere’s statement that “[n]o transfer of cash [was] made,”‘adding that “Cléarstream does not hold funds in the JPMorgan [a]ccount in relation to specific U.S. dollar obligations to specific customers.” Id. PapenfuB concluded that “Clear-stream never issued instructions to JPMorgan to transfér any funds received in the JPMorgan [account to the [Clear-stream account iri Luxembourg], and no such transfers occurred.” Id. at 1976.
On September 19, 2014, the district court heard arguments on the defendants’ motions, focusing in particular on the nature and location of the assets at issue. See Joint Appendix (“J.A.”
On February 20, 2015, the district court issued á single opinion and order granting the defendants’ various motions to dismiss and for partial summary judgment on all claims in dispute. Peterson v. Islamic Republic of Iran, No. 13-CV-9195-KBF,
The district court also dismissed the plaintiffs’ turnover claims on jurisdictional grounds, having found that the assets at issue are not in the United States:
[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] to the- UBAE/Bank Markazi account in Luxembourg. The [JPMorgan] records are clear that whatever happened to the proceeds, they are gone.
Id. at *6,
The plaintiffs appealed. With respect to the non-turnover claims, they argue that the Clearstream and UBAE settlement agreements: (1) do not apply to many of the plaintiffs, including several who were not party to Peterson I, Pis.’ Br. at 23; and, in any event, (2) did not release the non-turnover claims against Clearstream, UBAE, or Markazi, id. at 24-33. With respect to the turnover claims, the plaintiffs argue that the court has subject-matter jurisdiction because the assets at issue are (1) cash holdings' located in New York, id. at 47-51; and (2) therefore subject to turnover under the TRIA, id. at 35-36, and the FSIA, id. at 61-66. The plaintiffs argue in the alternative that even assets “located abroad” may be subject to turnover pursuant to the court’s exercise of in personam jurisdiction over the holder of the assets. Id. at 55.
DISCUSSION
A. Standard of Review
With respect to the non-turnover claims, the district court granted Clear-stream’s motion to dismiss and .UBAE’s motion for partial summary judgment on the ground that the Clearstream and UBAE settlement agreements released those claims. “We review a district court’s interpretation of a contract de novo.” Seabury Constr. Corp. v. Jeffrey Chain Corp.,
As to the turnover claims, “[w]e accord deferential review to a district court ruling on a petition for an order of attachment or execution under the FSIA.” Walters v. Indus. & Commercial Bank of China, Ltd.,
The district court concluded that the Clearstream settlement agreement and the UBAE settlement agreement released the plaintiffs’ non-turnover claims, including the fraudulent-conveyance claims, brought against those banks.
Before turning to the substance of the settlement agreements, however, we address first the plaintiffs’ argument that many of them, including several who were not plaintiffs in Peterson I, did not agree to the Clearstream or UBAE settlement agreements and are therefore not bound by their provisions. See Pls.’ Br. at 23 (arguing with respect to Clearstream); Pis.’ Reply at 13-14 (arguing with respect to UBAE). Noting that this argument was not timely raised, the district court dismissed it on the ground that ninety-three percent of the Peterson I plaintiffs had agreed to the Clearstream settlement agreement and that figure surpassed “the percentage ... needed ... in order for the [Clearstream] settlement [agreement] to become effective” and binding on all of the
As an initial matter, the district court correctly observed that the plaintiffs belatedly raised this issue. See id.,
“An argument raised for the first time on appeal .is typically forfeited.” Katel Ltd. Liab. Co. v. AT & T Corp.,
Nonetheless, “[t]he general rule that an appellate court will not consider an issue raised for the first time on appeal is not an absolute bar.” Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploración y Producción,
We must first determine whether the plaintiffs in fact forfeited, rather than waived, their argument concerning applicability of the Clearstream settlement agreement. “[Forfeiture is the failure to make a timely assertion of a right]];] waiver is the ‘intentional, relinquishment or abandonment of a known right.’ ” United States v. Olano,
We think that the plaintiffs forfeited, not waived, their argument. Nothing in the record or briefing suggests that plaintiffs “intentional[ly] relinquished],” as opposed to mistakenly omitted,- their argument; See Olano,
The district court did not plainly err with respect to those plaintiffs who were parties to Peterson /. As noted, the district court found that ninety-three percent of the Peterson I plaintiffs had agreed to the terms of the Clearstream settlement agreement, and that no Peterson I plaintiff had refused to sign. Peterson II,
The district court did plainly err, however, with respect to those plaintiffs who were not parties to Peterson I. The plaintiffs argued, albeit belatedly, that several plaintiffs in this case were not parties to Peterson I, or therefore, the resultant Clearstream settlement agreement. J.A. at 154. The part of the district court’s decision concerning the applicability of the Clearstream settlement agreement did not address this issue. See Peterson II,
Our plain-error review does not extend, however, to the plaintiffs’ argument, made for the first time in reply, that many of the plaintiffs, including those who were not party to Peterson I, should be similarly excused from the reach- of the UBAE settlement agreement. See Pis.’ Reply at 13. This argument was never raised before- the district court, even belatedly, see J.A. at 154 (addressing only the Clear-stream settlement agreement), nor was it directly raised in the plaintiffs’ opening appellate brief, see Pis.’ Br. at 23 (same). The preceding analysis aside, “[w]e will not consider an argument raised for the first time- in a reply brief.” United States v. Yousef,
Turning to . the substance' of the settlement agreements, New York law governs our review. See C.A. at 908 (providing that the Clearstream settlement agreement shall be governed by New York law); id. at 1650-51 (providing that the UBAE settlement agreement shall be governed by New York law). Settlement agreements are “co’ntract[s] and [their] meaning must be discerned under several cardinal principles of contractual interpretation.” Brad H. v. City of New York,
1. The Clearstream Settlement Agreement
The Clearstream settlement agreement released “all past, present or future claims or causes of action ... arising out of, or relating in any way to” Clearstream “accounts numbered ... 13061 [the UBAE customer account] ... [or] 13675 [the sundry blocked account].” C.A. at 903. The settlement agreement excepted from that release “[g]arnishee [a]ctions” against Clearstream “regarding ... efforts to recover any asset or property of any kind ... 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 ... Clearstream ... solely in its capacity as a garnishee.” Id. at 905 (emphasis omitted). The district court properly concluded that these provisions released the plaintiffs’ non-turnover claims against Clearstream.
Under New York law, a “garnishee” action is one for the “turnover” of “assets already within [the garnishee’s] possession.” Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce,
The plaintiffs contend that the Clearstream settlement agreement released only claims relating to those “litigated in Peterson 7” and “damages claims against Clearstream.” Pis.’ Br. at 29 (emphasis omitted). The plain language of the release provision suggests otherwise. The settlement agreement purported to release all claims “concerning” several “Covered Subjects,” C.A. at 903 (emphasis omitted), a defined term that includes “any claims alleged against Clearstream by judgment creditors ... in Peterson [/]; or [] any account maintained at Clearstream ... including ... accounts numbered ... 13061 [the UBAE customer account] ... [or] 13675 [the sundry blocked account],” id. (emphasis added). The plaintiffs’ argument rests on the (we think mistaken) suggestion that the release of “all” claims applies only to “Peterson Direct Claims,” a defined term that is distinct from “Direct Claims,” also a defined term. Contrary to the plaintiffs’ suggestion, only the former
The plaintiffs argue that their fraudulent-conveyance claims against Clear-stream nonetheless qualify as “garnishee actions” under the settlement agreement’s carve-out provision. The plaintiffs note that “judgment creditors can obtain turnover 'from garnishees by undoing fraudulent conveyances.” Pis.’ Br. at 30. Be that as it may, the relief that one can obtain from a fraudulent-conveyance action does not convert that -claim into a “garnishee action,” which, as previously noted, is a cause of action, that seeks the turnover of assets already in the garnishee’s possession. See N.Y. C.P.L.R. § 105(i) (“A ‘garnishee’ is a person ... other than the judgment debtor who has property in his possession or custody in which a judgment debtor has an interest.” (emphasis added)). Moreover, the Clearstream settlement agreement limits permissible “garnishee actions” to those in which Clearstream is named “solely in its capacity as a garnishee.” C.A. at 905 (emphasis omitted).
The plaintiffs argue that this final provision encompasses their fraudulent-conveyance claims because it permits “an action in which ... 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. We disagree. The plaintiffs’ fraudulent-conveyance claims against Clearstream allege more than a transfer “between other parties,’-’- including, for example, the allegation that Clearstream was an active “[c]onspirator[ ]” in the alleged fraudulent -scheme.
2. The UBAE Settlement Agreement
We vacate, however, the district court’s order granting UBAE’s motion for partial summary judgment with respect to the plaintiffs’ non-turnover claims brought against UBAE.
The UBAE settlement agreement “release[d] UBAE and all of its past, present and future ... beneficiaries ... from any and all liability, claims, causes of action, suits, judgments, costs, ... or other incidental or consequential damages of any kind ... arising out of or related to the [plaintiffs’ Direct Claims against UBAE.” Id. at 1648. “Direct Claims” as defined in the UBAE settlement agreement includes “claims in Peterson [7] for damages against UBAE with regard to certain.assets transferred ... and valued at approximately $250,000,000.00 ..., including, but not limited to, claims for fraudulent conveyance, tortious interference with the collection of a money judgment, and prima facie tort.” Id. at 1646. The same provision refers to these Peterson I “Direct Claims” collectively as “the Turnover Action.” Id. The UBAE settlement agreement also provides that the “[pjlaintiffs agree that any future claim against UBAE for the Remaining Assets shall be limited to turnover only, and [the pjlaintiffs waive all other claims against UBAE for any damages regarding the Remaining Assets.” Id.
As indicated in a summary--order published in tandem with this decision,
UBAE argues that under New York law, a claim seeking “turnover” is an action brought under C.P.L.R. Article 52, which provides “a procedural mechanism ... rather than a .. substantive right.” Mitchell v. Garrison Protective Servs., Inc.,
We also note- that, under New York law, a party may-allege a fraudulent-conveyance claim within a turnover action brought under C.P.L.R. Article 52. See Gelbard v. Esses,
UBAE might benefit from the plaintiffs’ agreement to “release UBAE ... from ... causes of action ... related to the Direct Claims against UBAE.” C.A. at 1648. In context, however, the meaning of “related to” is also ambiguous. It is certainly the case that both the Peterson I claims—i.e., the “Direct Claims”—and those at issue here concern related transactions, specifically) the allegedly fraudulent transfers of bond proceeds linked to Markazi. On the other hand, the plaintiffs in this litigation seek to recover proceeds related to a distinct set of bonds. Accordingly, it is not apparent to us that their fraudulent-conveyance claims here are necessarily “related to” the Peterson I Direct Claims.
Thus, although it is clear that the UBAE settlement agreement released UBAE from “any and all ... claims [or] causes of action,” C.A. 1648, “for damages against UBAE with regard to [the assets at issue in Peterson I],” id. at 1646, the settlement’s applicability beyond such claims is unclear. Because the question on a motion for summary judgment is “whether the contract is unambiguous with respect to the question disputed by the parties,” Int’l Multifoods Corp. v. Commercial Union Ins. Co.,
UBAE argues that “[t]he definition of ‘Plaintiffs’ Direct Claims’ in the [UBAE settlement- agreement] specifically includes the Peterson II fraudulent conveyance claims.” UBAE Br. at 21. We. disagree. The UBAE Settlement Agreement defines “Direct Claims” as those “in Peterson [7] for damages against UBAE with regard to certain assets [at issué in Peterson 7] ... and valued at approximately $250,000,000.00 (the ‘Transferred Assets’), including, but not limited to, claims for fraudulent conveyance.” C.A. at 1646. Although this provision cleárly includes the Peterson I fraudulent-conveyance claims among the Peterson I “Direct Claims,” it also plainly requires that those causes of action concern the assets at issue in Peterson I. The fraudulent-conveyance claims -brought against UBAE in this litigation of course do not satisfy that requirement.
For the foregoing reasons, we vacate the district court’s conclusion that the UBAE settlement agreement released the plaintiffs’ non-turnover claims brought against UBAE and remand the case to the district court for further proceedings with respect to those claims.
The district court also determined that the UBAE settlement agreement also released the plaintiffs’ non-turnover claims against Markazi. Peterson II,
The district court therefore erred by dismissing the plaintiffs’ non-turnover claims, including the fraudulent-conveyance claims, brought against Markazi. Accordingly, we vacate that part of the district court’s order and remand the case to the district court for further proceedings with respect to the plaintiffs’ non-turnover claims brought against Markazi.
C. The Turnover Claims
The plaintiffs seek to enforce their underlying judgments against Iran and MOIS by executing on $1.68 billion of Mar-kazi-owned bond proceeds. The plaintiffs’ claims seeking a turnover order to that effect rest, as an initial matter, on the nature and location of the bond proceeds. The plaintiffs contend that they are denominated as USD and held as cash in New York City at Clearstream’s correspondent account at JPMorgan. The defendants argue that there is no cash; at most, Markazi owns, through UBAE, a right to payment from Clearstream in the amount of $1.68 billion as reflected on book entries located in Luxembourg. Whether the plaintiffs can obtain an order compelling one or several of the defendants to turn over the assets at issue depends first on the nature and location of the assets, and second on the court’s jurisdiction for execution of those assets, whatever and wherever they are.
1. The Nature and Location of the Assets
The plaintiffs insist that Clearstream holds the bond proceeds in New York City as cash in its correspondent account at JPMorgan. The district court disagreed, finding sufficient record evidence that the bond proceeds are not held as cash in New York City but are recorded as a right to payment in Luxembourg. Peterson II,
It is undisputed that Clear-stream’s correspondent account at JPMor-gan was a general “operating account,” C.A. at 1863, used to service transactions on behalf of many customers who are not parties to this litigation, id. at 1973-74, 2541; see also id. at 2834-35. Although Clearstream received bond proceeds into this general account, id. at 686, the account’s USD holdings were not segregated by customer, id. at 2537-39. Moreover, no cash attributable to the Markazi-owned bond proceeds was transferred from Clearstream’s correspondent account at JPMorgan to Markazi or UBAE. Id. at 1976. Clearstream instead used its general pool of cash to meet other obligations. Id. at 1865-66. As a result, approximately seven to nine billion dollars flowed in and out of the Clearstream correspondent account each day. Id. at 1973. Indeed, JPMorgan records show that this account frequently had a near-zero or negative end-of-day balance.
The plaintiffs’ putative expert, Peter U. Vinella, attributed minuscule or negative end-of-day balances to industry-standard “[sjweeps.” C.A. at 2422. Under this theory, JPMorgan commandeered the Clear-stream correspondent account at the close of business, “invested [its funds] in very short-dated USD investments],] and subsequently redeposited ... the USD [in the] JPMorgan [a]ccount the next day ..., essentially refilling the bucket.” Id. (internal quotation marks omitted). Vinella opined that these sweeps “are not generally reflected on the customer’s statement” so that “the funds remain in the bank account from the customer’s perspective.” Id. JPMorgan acknowledged that it indeed “employed] an investment sweep mechanism during the 2008-2012 period that enabled it to pay overnight interest to Clear-stream.” Id. at 2541.
We nonetheless agree with the district court that “Vinella’s argument that the money is somehow still there [does not] really work[].” J.A. at 88 (raising this concern during the September 19, 2014 argument). Even assuming that JPMor-gan’s sweeps used all cash holdings in the Clearstream correspondent account, JPMorgan established through bank records that “the end-of-day balances in the account that were available for overnight investment were never more than a small fraction of the $1.68 billion that make up the [assets at issue].” C.A. at 2541. In fact, the Clearstream correspondent account rarely had an end-of-day balance greater than $300 million, far short of the $1.68 billion sought by the plaintiffs. See J.A. at 80. JPMorgan may have swept all cash in the Clearstream correspondent account, but the plaintiffs have offered no evidence that those sweeps were performed specifically with Markazi’s cash.'
Moreover, Jonckheere, the JPMorgan account manager for Clearstream, offered an undisputed explanation for Clear-stream’s near-zero end-of-day account balances: “[JPMorgan] and Clearstream have an arrangement under which [JPMorgan]
Vinella separately posited -that “Clear-stream cannot hold or process USD in Luxembourg in any material amount.” Id. at 2408. Maybe so. But it does not -follow that Clearstream must be holding $1.68 billion in cash in New York' City. Vinella’s observation is entirely consistent with the undisputed . record evidence that Clear-stream received cash payments into a general pool, which was drawn down on a daily basis to service many customers’ demands. Clearstream then caused a corresponding credit to be reflected in the Markazi, and later UBAE, account in Luxembourg as a right to payment equivalent to the bond proceeds that Clear-stream received and processed in New York:
The location of that right to payment is determined by state law. See Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
The plaintiffs advance several rebuttals, each presuming the validity of their position that Clearstream holds a segregated pool of $1.68 billion in cash traceable to the bond proceeds in New York. For example, the plaintiffs argue that “the empty act of making book entries to a Luxembourg account without an accompanying transfer did not alter the location of the Markazi-owned assets.” Pis,’ Br. at 49. That is neither controversial nor surprising: There was no accompanying transfer of cash to Markazi or UBAE. For similar reasons, the plaintiffs’ contention that fraudulent conveyances have no legal effect is of no moment. This argument presumes “that [the] [defendants moved the [b]ond [proceeds to Luxembourg.” Id. at 51. Not so. No bond proceeds were “moved,” at least not as envisaged by the plaintiffs. Rather, cash flowed into the Clearstream correspondent account at JPMorgan, which was then used to meet other customers’ demands. Markazi was made whole by its interest in the recordation of an equivalent right to payment in Luxembourg.
The nature and location of the asset here—a right to payment located in Luxembourg—distinguishes this case from Peterson I, where it was “undisputed” that Clearstream held a segregated pool of “$1.75 billion in cash proceeds of the bonds ... in an account at Citigroup in New York.” Id. at *2,
We conclude that the assets at issue are, therefore, represented by a right to payment in the possession of Clearstream located in Luxembourg. Accordingly, the district court properly . granted • JPMor-gan’s motion for partial summary judgment because JPMorgan is not in possession of any assets subject to turnover. Similarly, neither Markazi nor UBAE possesses any assets subject to turnover here because the asset at issue is in fact held by Clearstream and represented as a positive account balance in a “sundry blocked account” to which neither Markazi nor UBAE has access. C.A. at 684. We therefore turn to whether the principal asset at issue, a right to payment held by Clear-stream and located in Luxembourg, is subject to execution.
2. Jurisdiction for Execution
The district , court concluded that it lacked jurisdiction to order turnover because the principal asset at issue—a right to payment recorded and held in Luxembourg—is located outside the United States and, therefore, absolutely immune from execution under the FSIA. Peterson II,
Before the FSIA,' foreign sovereigns were generally afforded broad immunity from the jurisdictional reach of American courts. NML Capital,
The prevailing regime changed in 1976 with the enactment of the FSIA, a “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.” Verlinden,
Section 1604 of the FSIA provides in general terms for foreign sovereign immunity: “[A] foreign state shall be immune from the jurisdiction of the courts of the United States and of the-States.” 28 U.S.C. § 1604. The law then subjects this limit on in personam jurisdiction to several exceptions. See id. §§ 1605-07. In this case, for example, the plaintiffs obtained their judgments against Iran and MOIS pursuant to § 1605A, C.A. at 1673-75,
In addition to jurisdictional immunity, the FSIA also provides foreign sovereigns so-called “execution immunity”: Section 1609 states that, generally, “the property
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.
TRIA, Pub. L. No. 107-297, § 201(a), 116 Stat. 2322, 2337-40 (2002) (codified at 28 U.S.C. § 1610 note); see also Kirschenbaum v. 650 Fifth Ave. & Related Props.,
The FSIA framework of immunities and exceptions is “comprehensive,” NML Capital,
Comprehensive though it may be with respect to immunities and exceptions, the FSIA does not specify “the circumstances and manner of attachment and execution proceedings.” EM Ltd. v. Republic of Argentina,
In New York, that law is C.P.L.R. § 5225,
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.
N.Y. C.P.L.R.. § 6225(b).
Relying on this provision, the plaintiffs seek turnover of Iran’s right to payment in the amount of $1.68 billion, represented as a positive account balance and recorded on the books of Clearstream in Luxembourg. The district .court concluded that this asset’s location in Luxembourg is fatal to the plaintiffs’ turnover claims. Peterson II,
The FSIA does not by its terms provide execution immunity to a foreign sovereign’s extraterritorial assets. See 28 U.S.C. § 1609 (“[T]he property in the United States of a foreign state shali be immune from attachment arrest and execution ,... ” (emphasis added)). In NML Capital, the Supreme Court squarely rejected the argument that any common law execution immunity afforded to “a foreign state’s extraterritorial assets” survived the enactment of the FSIA:
[We identify] no case holding that, before the Act, á 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?
Notwithstanding the Supreme Court’s rhetorical observation, the question whether courts sitting in New York, have the authority to execute against property in other countries arose in Koehler,
The Court of Appeals accepted certification and, closely 'divided, “h[e]ld that a New York court with personal jurisdiction over a defendant may order him to turn over out-of-state property regardless of whether the defendant is a judgment debtor or a garnishee.” Koehler v. Bank of Berm. Ltd.,
Following NML Capital,
Each of the many cases cited by the defendants for the proposition that a foreign sovereign’s extraterritorial assets are absolutely immune from execution were decided before the Supreme Court’s decision in NML Capital, which made clear that such cases 'predating NML Capital are no longer binding on this discrete point. See EM Ltd. v. Republic of Argentina,
NML Capital and Koehler do not, however, affect our long-standing view that “[t]he FSIA provides the exclusive basis for obtaining subject matter jurisdiction over a foreign state.” Kirschenbaum,
Nonetheless, NML Capital and Koehler, when combined, do authorize a court sitting in New York with personal jurisdiction over a non-sovereign third party to recall to New York extraterritorial assets owned by a foreign sovereign. Had Koehler arisen in the context of an exercise of in personam jurisdiction over a foreign sovereign—it did not—the FSIA’s grant of jurisdictional immunity would supersede contrary state law. See Peterson,
At least one of our sister circuits has, without considering the issue in any detail, suggested the contrary conclusion: that even after NML Capital, a foreign sovereign’s extraterritorial assets remain absolutely immune from execution. In Rubin v. Islamic Republic of Iran,
Moreover, we do not understand the Supreme Court’s observation that “[o]ur courts generally lack authority in the first place to execute against property in other countries,” NML Capital,
We think that the Supreme Court’s decision in NML Capital counsels in favor of part of the reasoning suggested by the Ninth Circuit’s decision in Peterson,
But the Ninth 'Circuit also turned to state law as directed by Federal Rule of Civil Procedure 69(a). Id. at 1130-31 (noting that “California enforcement law authorizes a court to ‘order the judgment debtor to assign to the judgment creditor ... all or part of a right to payment due or to become due’” (quoting Cal. Civ. Proc. Code § 708.510(a))). In particular, the Ninth Circuit relied on Philippine Export & Foreign Loan Guar. Corp. v. Chuidian,
Although the Ninth Circuit’s decision appears to have rested on its pre-AML Capital understanding of the FSIA, its decision and citation to Philippine Export suggest an alternative approach that is in step with our reconciliation of AML Capital and Koehler. Were one to except the part of the Ninth Circuit’s opinion that did not survive AML Capital, the principal difference between the Ninth Circuit’s decision in Peterson and our disposition of this case might be viewed as one of state law. Compare Philippine Export,
On remand, the district court should determine in the first instance whether it has personal jurisdiction over Clear-stream.
Should that asset be recalled, it may, upon being produced in New York, qualify as an asset “in the ■United States of a foreign state” and, if so, it would be afforded execution immunity as such. 28 U.S.C. § 1609 (emphasis added). Accordingly, the district court will, likely be required to determine, if and when it reaches that juncture, whether the asset that comes to be “in the United States” .is subject to the execution-immunity exceptions relied on by the plaintiffs, 28 U.S.C. § 1610(a)(7), (g)(1); TRIA § 201(a). The defendants should, of course, be permitted to raise appropriate rebuttals at that time if they so choose.
We are cognizant of the conundrum apparently posed by NML Capital and Koehler when read in tandem. The FSIA “aimed to facilitate and depoliticize litigation against foreign states and to minimize irritations in foreign relations arising out of such litigation.” Cargill Int’l S.A. -v. M/T Pavel Dybenko,
Moreover, we think that the two-step process called for by these cases—first recalling the asset at issue, and second, proceeding with a traditional FSIA analysis—is unlikely to open the proverbial floodgates to a wave of turnover claims seeking to execute against heretofore-unreachable extraterritorial assets. Even if those assets are in the possession of a third party over whom or which a court sitting in New York'has personal jurisdiction, those assets still must not be subject to execution immunity upon being recalled to New York State. In that respect, the FSIA contains several limiting principles, such as the requirement that any asset, subject to execution must have been “used for a commercial activity in the United States.” 28 U.S.C. § 1610(a). Similarly, the TRIA contains its own limiting provisions, including the requirement that any asset subject to turnover be “blocked,” a term of art imbued with precise meaning. TRIA § 201(a); see also Smith v. Fed. Reserve Bank of N.Y.,
Indeed, these or other limitatioiis may ultimately prevent the plaintiffs in this case from obtaining , turnover of the asset at issue, should it be recalled to New York State pursuant to an exercise of the court’s in personam jurisdiction. As but one example, one of the defendants argues on appeal that the asset .at issue does not qualify for the execution-immunity exceptions enumerated in 28 U.S.C. § 1610(a) because it was not “used for a commercial activity in the United States.” UBAE Br. at 37-39. Whether that is.so is independent of whether the asset comes to be located “in the United States.” See 28 U.S.C. § 1610(a) (“The property in the United States of a foreign state, .,. used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, ... if [additional specified requirements are satisfied].”). While we need not, and therefore do not, consider the applicability of these barriers at this time, we wish to make clear that the plaintiffs are by no means assured success upon remand.
CONCLUSION
To summarize, for the foregoing reasons, we conclude as follows:
1. Plain error as to the application of the Clearstream settlement agreement to those plaintiffs who were not parties to Peterson I requires vacatur of the judgment of dismissal and remand with respect to those plaintiffs’ non-turnover claims brought against Clearstream.
2. Excepting those plaintiffs who were not parties to Peterson I, the Clear-stream settlement agreement released the plaintiffs’ non-turnover claims brought against Clearstream. •The district court therefore properly-dismissed those claims.
3. Whether the UBAE settlement agreement is applicable to the plaintiffs’ non-turnover claims brought against UBAE is, under the language of the agreement, unclear. Those claims were, therefore, dismissed by the district court in error. Accordingly, we vacate and remand that part of the district court’s judgment of dismissal.
4. The UBAE settlement agreement did not release the plaintiffs’ non-turnover claims brought against Markazi. Accordingly, we vacate and remand that part of the district court’s judgment of dismissal.
5. The district court correctly determined that the asset at issue is a right to payment held by Clear-stream in Luxembourg. It also, therefore, properly dismissed JPMorgan from this action.
6. The district court prematurely dismissed the amended complaint for lack of subject-matter jurisdiction. Cf. Republic of Argentina v. NML Capital, Ltd., — U.S. -,134 S.Ct. 2250 ,189 L.Ed.2d 234 (2014); Koehler v. Bank of Berm. Ltd.,12 N.Y.3d 533 ,911 N.E.2d 825 ,883 N.Y.S.2d 763 (2009). On remand the district court should consider whether it has personal jurisdiction over Clearstream. If the court answers that question in the affirmative, then it should determine whether any provision of state or federal law prevents the court from recalling, or the plaintiffs from receiving, the asset.
Accordingly, we AFFIRM the district court’s judgment in part, VACATE it in part, and REMAND for further proceedings consistent with this opinion.
Appendix
The following parties are plaintiffs in this appeal: Deborah D. Peterson, personal representative of the Estate of James C. Knipple, Terry Abbott, John Robert Allman, Ronny Kent Bates, James Bay-nard, Jess W. Beamon, Alvin Burton Bel-mer, Richard D. Blankenship, John W. Blocker, Joseph John Boccia, Jr., Leon Bohannon, John Bonk, Jr., Jeffrey Joseph Boulos, John Norman Boyett, William Burley, Paul Callahan, Mecot Camara, Bradley Campus, Johnnie Ceasar, Robert Alen Conley, Charles Dennis Cook, Jolu-my Len Copeland, David Cosner, Kevin Coulman, Rick Crudale, Russell Cyzick, Michael Devlin, Nathaniel Dorsey, Timothy Dunnigan, Bryan Earle, Danny R. Estes, Richard Andrew Fluegel, Michael D. Fulcher, Sean Gallagher, George Gan-gur, Randall Garcia, Harold Ghumm, Timothy Giblin, Michael Gorchinski, Richard Gordon, Davin M. Green, Thomas Hair-ston, Michael Haskell, Mark Anthony Helms, Stanley G. Hester, Donald Wayne Hildreth, Richard Holberton, Dr. John Hudson, Maurice Edward Hukill, Edward Iacovino, Jr., Paul Innocenzi, III, James Jackowski, Jeffrey Wilbur James, Nathaniel Walter Jenkins, Edward Anthony Johnston, Steven Jones, Thomas Adrian Julian, Thomas Keown, Daniel Kluek, Freas H. Kreischer, III, Keith Laise, James Langon, IV, Steven LaRiviere,
Notes
. A turnover order is "[a]n order by which the court commands a judgment debtor to surren- • der 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.
. "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, 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.
. 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,
. For example, JPMorgan responded' to the plaintiffs’ request for the productipn of pertinent documents, see C.A. at 1733, by producing more than 100,000 pages of banking records, see JPMorgan Br. at 9. :
. "J.A.” hereinafter refers to the parties' unsealed joint appendix filed in this Court .on June 1, 2015.
. The plaintiffs contend that our review should be particularly meticulous because the district court should have “permitted [p]lain-tiffs to conduct the relevant discovery or at least held an evidentiary hearing” before ruling on the defendants’ motions. Pis.’ Br. at 34. We review the district court’s "determination not to hold an evidentiary hearing .■.. for . abuse of discretion.” United States v. Amico,
. The amended complaint contained several fraudulent-conveyance claims: First, the plaintiffs alleged that Iran, Markazi, Clear-stream, and UBAE "engaged in a conspiracy to make fraudulent conveyances designed to avoid Iran’s debt to [the] [plaintiffs 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.
. 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.
. Likewise, our substantive review of the Clearstream settlement agreement, see Part B.l infra, applies only to the plaintiffs here who were also parties to Peterson I.
. The carve-out provision indicates that a permissible "[gjarnishee [ajction” 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.
. See generally Olson v. Banca UBAE, S.p.A., Nos. 15-2213, 15-2535.
. As noted, whether the plaintiffs’ fraudulent-conveyance claims are "turnover” claims as that term is iised 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.,
. 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]ar-nishee [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 [ajctions” 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.
. A footnote in the plaintiffs’ brief challenges Jonckheere’s declarations as hearsay. See Pis.’ 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,
. Clearstream asserts that it does not. See Clearstream Br. at 34-37.
. 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,
. 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,
. 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 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 "proper- . ty," 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 fíne to distinguish.” Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A.,
. 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,
. Although the district court concluded in Peterson I that it had general personal jurisdiction over Clearstream, Peterson I,
. Such barriers might include the "separate entity” doctrine. See Motorola Credit Corp. v. Standard Chartered Bank,
. 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,
. 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 more generally.” NML Capital, 134 S.Ct. át 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.