Second Circuit Victory for Former President of Mexico

February 18, 2014

New Haven – Wiggin and Dana is pleased to announce that the Second Circuit today granted a victory to former President of Mexico Ernesto Zedillo, affirming the dismissal of a lawsuit brought by anonymous plaintiffs who falsely alleged that Mr. Zedillo was responsible for a tragic massacre nearly twenty years ago in Mexico. The Second Circuit decision marks the first time that a federal court of appeals has upheld the dismissal of a lawsuit against a former foreign official on the basis of deference to a "Suggestion of Immunity" filed by the U.S. State Department since the Supreme Court's landmark decision in Samantar v. Yousuf, which held that the sovereign immunity of officials, as opposed to states, is governed by common law and not the Foreign Sovereign Immunities Act. Wiggin and Dana was counsel to President Zedillo.

In the district court, litigation partners Jonathan Freiman and Tahlia Townsend defended the federal lawsuit brought against Mr. Zedillo, which alleged that he was responsible for a massacre in 1997 during an insurrection by Zapatista insurgents in the Mexican state of Chiapas and sought $50 million in damages. The suit was brought under the Alien Tort Claims Act and the Torture Victims Protection Act. Freiman and Townsend successfully argued that the district court should proceed only on the immunity issue. Freiman and Townsend then successfully lobbied the U.S. State Department to issue a "Suggestion of Immunity." Following briefing and oral argument, the district court became the first court after Samantar to hold that courts must dismiss a case against a former foreign official when the U.S. Department of State has issued a "Suggestion of Immunity."

The plaintiffs appealed, contending that the district court should have allowed them to amend their complaint to raise allegations relating to subsequent developments in Mexico, including a Mexican trial court's decision that the Mexican Ambassador's request to the United States for immunity for the former President violated the Mexican constitution (a decision later reversed on appeal). Freiman argued that any amendment to the complaint would necessarily be futile because the State Department was aware of all of the additional allegations before it filed its Suggestion of Immunity in the District Court. The Second Circuit agreed, affirming the district court by summary order just one week after oral argument.

On appeal, Mr. Freiman, who is Chair of Wiggin and Dana's Appellate and Complex Legal Issues practice group, represented Mr. Zedillo with associate Tadhg Dooley.