INTRODUCTION

The District Court issued a nine-page opinion granting Coca-Cola summary judgment in this case (JA 181-190). The three critical pages of that opinion (JA 184-187) — the primary discussion of the jurisdictional issue — declare that there is no federal jurisdiction over this lawsuit because the complaint fails to allege "a violation of the law of nations." The District Judge explained, in his opinion, that "ordinary torts like the claims of trespass and conversion as asserted here are not part of the law of nations" (JA 185-186). Following that extensive discussion, the District Court added an alternative holding — that even assuming, arguendo, that the Egyptian government’s conduct had violated the law of nations, Coca-Cola escapes liability because it was not a participant in the Egyptian government’s violation of international law (JA 186-188).

Our brief challenges both of these holdings and contends that neither could be entered on summary judgment. The "law of nations" issue is discussed at pages 19-21, 23-24, and 27-37 of our Principal Brief. The "state actor" issue is discussed at pages 21-23 and 37-40 of our Principal Brief.

Since it has no adequate response to these arguments, Coca-Cola now contends that the ratio decidendi of the District Court is beside the point. Coca-Cola now relies on "other grounds that require dismissal of the complaint" (Coca-Cola Br. 4). It first wishes away the principal holding of the District Court — i.e., that Egypt did not violate the law of nations. Its brief disingenuously summarizes the District Court’s opinion as follows (Coca-Cola Br. 3):

The District Court determined there was no jurisdiction under the Alien Tort Act because even assuming arguendo that the State of Egypt’s conduct in 1962 violated international law, the alleged tortious conduct of Coca-Cola in 1994 did not. (Emphasis in original.)

This same misimpression is conveyed in the body of Coca-Cola’s brief: "[T]he District Court found it unnecessary to reach the question of whether the nationalization by the Egyptian government violated the law of nations" (Coca-Cola Br. 13; see also, Coca-Cola Br. 15): "The District Court did not actually reach or decide the question, briefed extensively on this appeal by the Bigios and the Amici, namely whether the actions of the Egyptian government in fact violated the law of nations.")

On the basis of this revisionary summary of the District Court’s holding, Coca-Cola waves away the amicus curiae briefs filed in support of Appellants’ position as beside the point (Coca-Cola Br. 3). In fact, these briefs address the central point in the District Court’s decision granting summary judgment to Coca-Cola which was its holding that international law was not violated.

Moreover, Coca-Cola’s brief (like the opinion of the District Court) studiously ignores a central and dispositive fact in the evaluation of Coca-Cola’s own conduct. At issue in this case is not merely what Coca-Cola terms "the alleged tortious conduct of Coca-Cola in 1994" (Coca-Cola Br. 3). What is at issue is Coca-Cola’s conduct from the 1930’s — when it leased the plaintiffs’ property and established and operated its plant on that property — until 1994, when, with knowledge of the Bigios’ true ownership of that property, it purchased a substantial interest in the property and trespassed upon it. Coca-Cola would like this Court to treat it as if it was a new player on the scene in 1994 — as if it came to the purchase of the Heliopolis property with "clean hands." That is why there is not a single mention or hint in Coca-Cola’s 59-page brief of the fact that Coca-Cola occupied the property in the 1930’s, 1940’s, and 1950’s, and continued to benefit from the sale of Coca-Cola products bottled at that location in the 1960’s, 1970’s, and 1980’s.

The undisputed fact is that Coca-Cola was not, before 1994, a stranger to the Heliopolis property owned by the Bigios. It was a willing partner to the Egyptian government’s seizure of the Bigios’ property and it may have benefited substantially from that governmental action. It should not be permitted to avoid responsibility for that complicity by simply ignoring sixty years of history.

DISCLAIMER