The transaction involved the purchase and release of gold from
Kenya. CFG paid, but there was no delivery, allegedly on the
basis that there was more than gold in the shipment
(diamonds). There then ensued a series of statements from the
Kenyan police. The consignment was never released —
but nor were the funds returned.
The Eight Circuit addressed the issue as one of subject matter
jurisdiction. The Court looked first at the commercial
activity exception but found it inapplicable. Since the
allegations of the complaint alleged actions such as failure to
investigate, failure to secure the gold, and failure to return
funds, the District Court and the Court of Appeals found that there
was no commercial activity exception; "[t]he decisions
regarding whether or how too investigate an allegedly fraudulent
commercial transaction between private parties, regulate exports,
enforce criminal laws, and seize property during criminal
investigations are governmental rather than commercial
activities". The Court of Appeals did not address the
question directly of the refusal to return the funds, which,
allegedly, the defendants had, having seized it from the alleged
wrongdoers. So the alleged wrongdoers no longer had the
funds; defendants did. Where were the plaintiffs going to get
the funds if not from the Defendants, who, based on allegations
that were being accepted as true, were involved in the transaction
and aftermath. (The plaintiffs said that the wrongdoer was not an
agent of the Kenyan government but also alleges that the Kenyan
police were involved.)
The Court of Appeals further ruled that the tort exception to
the FSIA was inapplicable. It covers "'only torts
occurring within the territorial jurisdiction of the United
States', regardless of whether the alleged tor 'may have
had effects in the United States'". Assuming the
plaintiffs were U.S. entities, that the funds came from the U.S.,
and that the loss was suffered in the U.S., is there an argument
that the tort occurred here?
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