S.D.N.Y. Notes Split re Whether FSIA Applies to Individuals, Does Not Reach Issue
Per Kensington Intern. Ltd. v. Societe Nationale des Petroles du Congo, 2006 WL 846351 (S.D.N.Y. Mr. 31, 2006):
Itoua argues that he is a foreign sovereign who is immune under the FSIA, yet there is a circuit split as to whether the FSIA even applies to individuals. Compare Enahoro et al. v. Abubakar, 408 F.3d 877, 882 (7th Cir.2005) (FSIA may not apply to individuals) with Velasco v. Gov't of Indon. et al., 370 F.3d 392, 402 (4th Cir.2004) (FSIA may apply to individuals). Because the Court of Appeals for the Second Circuit has not clearly addressed this issue, I normally would need to determine whether Itoua was acting in his official capacity to be entitled to immunity if his acts do not fall under the commercial activity exception. Here, it is not necessary to make that determination because Kensington has sufficiently alleged that Itoua's acts--through his capacity as SNPC's Chief Executive during the relevant time period, Compl. ¶ 9--fall under the commercial activity exception in the same way that SNPC's acts do. Thus, regardless of whether he acted in his official capacity, Itoua is not immune under the FSIA because of the commercial activity exception.