The Firm was asked to represent Sudan in 2015. Our task was to help Sudan challenge over $10 billion in default judgments entered in favour of private plaintiffs in the U.S. courts.

Several U.S. courts had entered these default judgments in Sudan’s absence, concluding that Sudan provided material support for two terrorist attacks that were carried out by al Qaeda in 1998 and 2000 — years after Sudan had expelled Osama Bin Laden from Sudan.

Thus far, we’ve successfully wiped out over $4 billion in punitive damages against Sudan and, more recently, we achieved a complete vacatur of two multi-million default judgements through our latest win in the U.S. Supreme Court.

The Supreme Court victory allows Sudan the opportunity to defend the two actions against it from scratch and seek to clear its name from any involvement in the terrorist attack at issue — the bombing of the U.S.S. Cole in the Port of Aden, Yemen in 2000.

From left to right:  Mr. Asaad Ahmad (First Secretary at the Sudanese Embassy in Washington, DC), Ambassador Maowia Khalid (Sudan’s former Ambassador to the United States), Ambassador Mohammed Atta Abbas (Sudan’s former Ambassador to the United States), and Minister El Dirdiri Mohamed (Sudan’s Minister of Foreign Affairs), and the legal team: Christopher Curran (W&C), His Excellency Judge Awn al Khasawneh (former justice of the International Court of Justice and former Prime Minister of Jordan), Nicole Erb (W&C), Claire DeLelle (W&C), Mr. Aiman Odeh (former Minister of Justice of Jordan), Nicolle Kownacki (W&C), and Celia McLaughlin (W&C).

Improving relations

Washington, D.C. partner Chris Curran says: “Sudan has been widely regarded as a disreputable pariah country by the United States for several decades, but relations between the two countries have been improving for several years now, including with the United States lifting economic sanctions against Sudan in 2017.

“Even so, to take a case to the Supreme Court and win by an overwhelming 8-1 majority is a landmark victory, especially in a terrorism case of this magnitude.”

The case before the Supreme Court concerned a default judgement of $315 million against Sudan for the bombing of the U.S.S. Cole that killed 17 crew members and injured many others in 2000. The claim was that Sudan held responsibility for the bombing because it provided safe haven to Osama Bin Laden and other members of al Qaeda in the early 1990s.

The Firm challenged the default judgment by successfully demonstrating that Sudan was not served with process in compliance with the strict requirements of U.S. law governing foreign sovereign immunity and international law under the Vienna Convention of Diplomatic Relations.

In particular, under U.S. and international law, a copy of the summons and complaint must be mailed to the Sudanese foreign minister in Khartoum, not to the Sudanese Embassy in Washington, D.C.

Vital support

Washington, D.C. partner Claire DeLelle explains: “U.S. law governing foreign sovereigns requires strict compliance with the relevant statutory service requirements.

“Our arguments invoked delicate issues of statutory interpretation, international law and diplomacy.

“We were able to obtain the support of four other foreign sovereigns and numerous international law professors who supported Sudan’s interpretation and asked the Supreme Court to hear Sudan’s case. The volume of support from parties with unique interests was critical to winning the Supreme Court’s decision.”

Perhaps most importantly of all, the team was able to persuade the United States government to support Sudan’s argument. The United States filed briefs in three different courts supporting Sudan, including a brief filed by the office of the solicitor general in the Supreme Court.

Issues of law

Washington, D.C. partner Nicole Erb stated: “The case raised important issues of international law and reciprocity. If the United States through its courts violates its treaty obligations and treats foreign countries in a certain way, the United States can expect to be treated similarly in overseas courts as well.”

Washington, D.C. associate Celia McLaughlin adds: “Statistically, if the solicitor general supports your case, your odds of the Supreme Court granting review and ultimately agreeing with your position are much higher. So our ability to persuade the United States to support Sudan was of great strategic importance, and particularly challenging in a case involving such sympathetic plaintiffs, including U.S. veterans.”

Nicolle Kownacki, also an associate in Washington, D.C., continues: “That’s what made this a tough sell.

“We engaged with multiple high-level U.S. government lawyers from various agencies including the Department of Justice to persuade them of the strength of the U.S. interests at issue in the case.

“When the solicitor general’s office contacted us to ask if we would give them 10 minutes of our oral argument time at the Supreme Court, we gladly agreed.”

Strong track record

This isn’t the first time that the Firm has represented an unpopular state in this way. In fact, Sudan approached White & Case following our successful representation of the Libyan government under similar circumstances back in 2008. This made us uniquely placed to fight the case.

Chris says: “The team effort throughout was amazing and vital to achieving the win. Every team member showed the kind of grit that we look for in lawyers at the firm.

“We experienced a number of setbacks from lower courts along the way, but the team persisted and pursued every angle to position the client for the right result in the end.

“We faced a formidable adversary, one of the leaders of the Supreme Court bar and a specialist in Supreme Court advocacy who formerly represented the United States at the Solicitor General’s office, so to win by such a majority was extraordinary.”

Nicole adds: “To get Justice Alito’s opinion, stating that the rule of law demands strict adherence in Sudan’s case, really vindicated our client’s rights and the efforts of our team to protect those rights.

“We are hopeful that the U.S. courts heed Justice Alito’s words as we continue to represent Sudan in the cases remaining.”