BDS Litigation


Israel

Avneri v. Knesset, HCJ 5239/11, 15 Apr 2015.  The petitioners sought to void the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011. The Law attributes tortious liability and establishes various administrative restrictions against anyone who knowingly publishes a public call to impose a boycott on the State of Israel, as defined by the Law. The Petitioners argued that the Law was unconstitutional for infringing various constitutional rights. The court voided section 2c of the law which provided for payment of compensation independent of the actual damage done.

Decision and Ruling of the Court  (Hebrew)  (English)  (Abstract – English

Alqasem v. Ministry of the Interior and The Hebrew University, HCJ 7216/18, 18 Oct 2018.  The petitioner arrived at Ben Gurion Airport, but following questioning at the airport the Minister of Interior decided to prevent her entry due to her prior BDS activities, pursuant to Amendment 28 of the Entry into Israel Law of 1952.  The court, on appeal reversed the lower court’s ruling, finding that in view of the lapse in time since petitioner had engaged in BDS activities, preventing her entry would not advance the purpose of the Law. 

Decision and Ruling of the Tel Aviv Appeals Court (Hebrew)
Decision and Ruling of the High Court  (Hebrew)  (English)  (Abstract – English

Omar Shakir v. Ministry of the Interior, HCJ 2966/19, 5 Nov 2019.  In October 2016, Human Rights Watch (HRW) hired Omar Shakir, a known advocate of the BDS movement, to serve as its “Israel and Palestine Country Director,”  In May 2018, due to Shakir’s BDS ties, the Israeli Ministry of Interior chose not to renew his work visa. HRW and Shakir challenged this decision in Israeli courts. In April 2019, he lost his case in the Jerusalem District Court and appealed to the Israeli Supreme Court. The Israeli courts allowed him to remain in the country during his appeal process.  On 5 Nov 2019, the Supreme Court rejected Shakir’s appeal, upholding the ruling of the District Court confirming the decision to not renew his work visa. 

Decision and Ruling of the High Court  (Hebrew)  (English – unavailable) 

Europe

France

Cass. crim., 20 oct. 2015, no 14-80020, ECLI:FR:CCASS:2015:CR04290.  In two companion cases, the highest court of France, the Court of Cassation, upheld a ruling against activists who called to boycott Israeli products.  The court confirmed the convictions of 12 individuals in connection with their 2009 and 2010 actions in supermarkets near the eastern city of Mulhouse.   The court based it’s ruling on the French law on Freedom of the Press, which prescribes imprisonment or a fine for parties that “provoke discrimination, hatred or violence toward a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion.”

Decision and Opinion of the Court, No. 14-80020  (in French)
Decision and Opinion of the Court, No, 14-80021  (in French)

Spain

Many localities in Spain have enacted pro-BDS resolutions, resulting in a flurry of lawsuits successfully challenging those resolutions.  When essential  litigation information and documents have been obtained, they will be posted here. 

United Kingdom

Palestine Solidarity Campaign v. Secretary of State for Communities and Local Government, appeal decided 6 Jun 2018, [2018] EWCA Civ 1284.  The Secretary of State for Communities and Local Government had issued a Guidance for investment strategy by local government pension funds which stated “that using pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries are inappropriate … other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”  The lower court ruled on 22 Jun 2017, [2017] EWHC 1502 (Admin), that the Secretary of State unlawfully used powers designed for pensions regulation in order to achieve purposes unrelated to pensions, namely the advancement of UK foreign and defense policy. The appeals court set aside the lower court’s ruling, having considered it to be unduly narrow. 

The Guidance, first published on 15 Sep 2016, was amended, 12 Jul 2017, after the lower court’s ruling, to conform to that ruling.  However, notwithstanding the lower court’s ruling having been set aside by the Court of Appeal, the stricken clauses have not been reinstated as of 1 Jan 2019.  Any subsequent amendments can be followed on the government’s website.

Decision and Opinion of the High Court of Justice (Administrative)
Decision and Opinion of the Court of Appeal


United States – BDS and Support of Terror

Damage Claim for Material and Financial Support of Terror

Keren Kayemeth LeIsrael-Jewish National Fund, et al. v. Education for a Just Peace in the Middle East d/b/a US Campaign for Palestinian Rights, 19-cv-03425 (D.D.C., filed 13 Nov 2019.  The complaint alleges that USCPR has violated the Anti-Terrorism Act, 18 U.S.C. § 2331, by  funneling online donations to the Boycott National Committee, the umbrella organization that steers and coordinates the global activities of the BDS movement, knowing that in doing so they are supporting and sponsoring known designated foreign terrorist organizations, including Hamas. The lawsuit further alleges that USCPR has materially supported the foreign terrorist organizations responsible for incendiary terror balloons and kites launched from Hamas-controlled Gaza into Israel.  The connection between BDS and terrorism is documented in a report [En, He, Fr, Sp] from the Israel Ministry of Strategic Affairs and Public Diplomacy

Complaint   –   Press Release
Motion to Dismiss

United States – Challenges to State Anti-BDS Laws

 Arizona

Arizona’s anti-BDS law has been the subject to two court challenges, one of which has been settled.

1.  Jordahl v. Brnovich, Arizona Attorney General, 336 F. Supp. 3d 1016 (D. Ariz. 2018).  The lawsuit, brought by the ACLU, challenges Arizona law on First Amendment grounds.  The Arizona Attorney General, in defending the law, has stated that the it regulates commercial conduct, not speech.  Notwithstanding the State’s view, the court granted the plaintiff’s motion for a preliminary injunction on 27 Sept 2018.  An appeal by the State of Arizona to the 9th Circuit Court of Appeals has been briefed, but was stayed by the Court after the law was amended, pending outcome of other litigation.  On 10 Dec 2019, the Ninth Circuit Court of Appeals vacated the preliminary injunction and directed the lower court to dismiss the case as moot.  The Court found the matter moot because the plaintiff is no longer subject to the law, as amended.

Complaint
Plaintiff’s Motion for Preliminary Injunction
First Amended Complaint

State’s Motion to Dismiss and Opposition to Motion for Preliminary Injunction
Plaintiff’s Opposition to Motion to Dismiss and Reply in Support of Preliminary Injunction
State’s Reply in Support of Motion to Dismiss
Court Order Granting Motion for Preliminary Injunction and Denying Motion to Dismiss
State’s Opening Brief on Appeal to the Ninth Circuit
Appellee’s Answering Brief on Appeal to the Ninth Circuit
State’s Reply Brief on Appeal to the Ninth Circuit
State’s Supplemental Briefing on Mootness
Court Order Staying Proceedings
Court Order Vacating Preliminary Injunction and Directing Dismissal

2.  American Muslims for Palestine v. Arizona State University, 18-cv-00670 (D. Ariz., filed 1 Mar 2018).  This lawsuit claims First Amendment violations, arguing the Arizona’s ban on contracting with boycotters constitutes viewpoint discrimination.  However, the contract which an invited speaker was asked to sign contained a clause barring boycotts of Israel.  However, the university has agreed not to enforce the contract, and has circulated a revised form for speakers, artists, and performer, which does not contain the anti-boycott language.  As a result, the parties have entered a joint stipulation which largely renders the lawsuit moot.

Complaint
Joint Stipulation

Arkansas

Arkansas Times LP v. Waldrip, et al., 18 Cv. 914 (E.D. Ark., filed 11 Dec 2018).  Lawsuit, filed on behalf of Arkansas Times LP, by the ACLU, claims that Arkansas’ anti-BDS law is an unconstitutional tax on free speech.  The law requires either, that government contractors pledge not to boycott Israel, or have their fees reduced by 20 percent.  By order and judgment issued on 23 Jan 2019, the court dismissed the case holding that the statute does not violate the First Amendment.  This ruling has been appealed by the plaintiff and is pending in the 8th Circuit Court of Appeals.

Complaint
Motion for Preliminary Injunction
Brief in Support of Preliminary Injunction Motion
Brief in Opposition to Motion for Preliminary Injunction
Motion to Dismiss
Brief in Support of Motion to Dismiss
Plaintiff’s Opposition to Motion to Dismiss and in Further Support of Preliminary Injunction Motion
Order and Judgment Denying Motion for Preliminary Injunction and Dismissing Case
Plaintiff-Appellant’s Opening Brief on Appeal
Defendants-Appellees’ Answering Brief
Plaintiff-Appellant’s Reply Brief
Oral Argument in Court of Appeals

Kansas

Koontz v. Watson, Commissioner of Education, 283 F. Supp. 3d 1007 (D. Kan. 2018).  The lawsuit challenges Kansas Anti-BDS Law on First Amendment free speech grounds.  The Federal District Court, on 30 Jan 2018, issued a preliminary injunction against the applying the law.  A motion for summary judgment was filed by the plaintiff, but the Kansas Attorney General worked with the state legislature to amend the law, narrowing its coverage.  On the basis of the amended law, the plaintiff agreed to a dismissal of the case.

Complaint
Memorandum in Support of Motion for Preliminary Injunction
Defendant’s Response to Motion for Preliminary Injunction
Plaintiff’s Reply in Support of Motion
Court’s Memorandum and Order Granting Motion
Agreed Order of Dismissal

Maryland

Ali v. Hogan, et al., 19-cv-00078 (D. Maryland, filed 9 Jan 2019).  Lawsuit challenges, on First Amendment grounds, the Anti-BDS Executive Order issued by the Governor of Maryland. After the original complaint was dismissed, plaintiffs filed an amended complaint.  On 26 Oct 2020, a second round of motions to dismiss the lawsuit  was also granted by the court.

Complaint
Motion to Dismiss by Governer
Motion to Dismiss by State Attorney General
Memorandum in Opposition to Motions to Dismiss
Governor’s Reply in Support of Motion to Dismiss
Attorney General’s Reply in Support of Motion to Dismiss
Court’s Decision Dismissing Case with Leave to File Amended Complaint
First Amended Complaint
Memorandum in Support of Governor’s Motion to Dismiss Amended Complaint
Memorandum in Support of Attorney General’s Motion to Dismiss Amended Complaint
Memorandum in Opposition to Motions to Dismiss
Governor’s Reply in Support of Motion to Dismiss
Court’s Order and Memorandum Decision Dismissing Case

Texas

Amawi v. Pflugerville Independent School District, et al., 18-cv-01091 (W.D. Tex., filed 16 Dec 2018); and Pluecker, et al. v. Paxton, et al., 18-cv-01100 (W.D. Tex., filed 18 Dec 2018).  The two cases, involving identical challenges to the Texas Anti-BDS Law on First Amendment grounds, have been consolidated by court order on 15 Jan 2019, with the Amawi case designated as the lead case.  The motions for a preliminary injunction were granted on 25 Apr 2019, and defendants appealed to the Fifth Circuit Court of Appeals.  In the interim, Texas amended its anti-BDS statute and moved to dismiss the lawsuit as moot.  The motion was denied but the Court of Appeals stayed the lower court’s injunction pending appeal. Subsequently the Court of Appeals issued a decision ordering the lawsuit dismissed as moot.

Amawi Complaint
Pluecker Complaint
Amawi Motion for Preliminary Injunction
Amawi Memorandum in Support of Preliminary Injunction Motion
Pluecker Motion for Preliminary Injunction
Pluecker Memorandum in Support of Preliminary Injunction Motion
Court Order Consolidating the Two Cases
Defendant Paxton’s Response to the Motions for Preliminary Injunction
Court Order Granting Preliminary Injunction, 373 F.Supp.3d 717 (2019)
Defendant Paxton’s Motion to Dismiss the Case as Moot
Plaintiff Amawi’s Opposition to Motion to Dismiss for Mootness
Court Order Denying Motion to Dismiss
Court Order Granting Stay of Injunction Pending Appeal
Appellant-State’s Opening Brief on Appeal
Appellants-School Districts’ Opening Brief on Appeal
Appellee-Amawi’s Answering Brief on Appeal
Appellees-Others’ Answering Brief on Appeal
Appellant-State’s Reply Brief on Appeal
Appellants-School Districts’ Reply Brief on Appeal
Decision of Court of Appeals Ordering Dismissal of Case


United States – Lawsuits Against Internet Platforms

Airbnb – California

Harow, et al. v. Airbnb, Inc., 19-cv-00395 (N.D. Cal. filed 22 Jan 2019).  Plaintiffs claim discrimination by Airbnb for its decision to remove from its website rental listings for Jewish-owned accommodations in Judea and Samaria.  The lawsuit is based on (1) the federal Fair Housing Act, (2) the California Fair Employment and Housing Act, (3) California’s Unruh Civil Rights Act, and (4) California Unfair Competition Law.  The lawsuit was settled and discontinued on 30 Apr 2019, after Airbnb’s agreement to list all accommodations in Judea and Samaria, including those in Jewish communities.

Complaint
First Amended Complaint
Court Ordered Stipulation of Dismissal

Airbnb – Delaware

Silber, et al. v. Airbnb, Inc., 18-cv-01884 (D. Del., filed 28 Nov 2018).  The plaintiffs claim religious discrimination by Airbnb for its decision to remove from its website rental listings for Jewish-owned accommodations in Judea and Samaria.   The lawsuit is based on the provisions of the federal Fair Housing Act.  The lawsuit was settled and discontinued on 10 Apr 2019, upon Airbnb’s agreeing to list all accommodations in Judea and Samaria, including those in Jewish communities.  Prior to the stipulated dismissal there was a motion to intervene.  After the stipulated dismissal the proposed intervenors filed a motion to proceed with the claims.  However, since the motion to intervene was not decided before the dismissal, there was no longer a case in which the proposed intervenors could intervene.  Therefore, the court dismissed both the motion to intervene and the motion to proceed.

Amended Complaint (with attachment)
Airbnb’s Motion to Dismiss
Brief in Support of Motion to Dismiss
Settlement Agreement
Court Ordered Stipulation of Dismissal
Memorandum Order Denying Motions to Intervene and to Proceed


United States – Other Litigation

Academic Boycott – American Studies Association

Bronner, et al. v. Duggan, et al., 16-cv-00740 (D.D.C., filed 20 Apr 2016).  This lawsuit claims breaches by individuals who are alleged to have gained and abused positions of trust within the American Studies Association through deception and misrepresentation, aided and assisted by a pro-Palestinian group that seeks to de-legitimize the State of Israel.  The defendants are alleged to have misappropriated the assets, both monetary and reputational, of the American Studies Association to further their agenda to promote an academic boycott of Israel – an agenda contrary to the apolitical mission and scholarly purpose of the American Studies Association.  The case has been procedurally complex, with motion practice resulting in a number of memorandum decisions by the court. The docket can be viewed and motion documents downloaded at the Court Listener website.  The case was dismissed without prejudice on 4 Feb 2019.  That determination has been affirmed by the D.C. Circuit Court of Appeals.

Complaint
First Amended Complaint
Order Granting in Part Motion to Dismiss, 249 F. Supp. 3d 27 (D.D.C. 2017)
Order Granting Motion to File Second Amended Complaint, 324 F.R.D. 285 (D.D.C. 2018)
Second Amended Complaint
Order Confirming Subject Matter Jurisdiction, 317 F.Supp.3d 284 (D.D.C. 2018)
Order Granting Defendants’ Motions to Dismiss, 4 Feb 2019
Defendants-Appellees’ Motion for Summary Affirmance on Appeal
Plaintiffs-Appellants’ Opposition to Motion for Summary Affirmance
Defendants-Appellees’ Reply in Support of Motion
Court Order Denying Motion for Summary Affirmance
Appellants’ Opening Brief on Appeal
Appellee ASA’s Answering Brief on Appeal
Appellees Kauanui and Puar’s Answering Brief on Appeal
Appellee Salaita’s Answering Brief on Appeal
Appellant’s Reply Brief on Appeal
Opinion of the Court of Appeal Affirming Decision Below
Order Denying Petition for Rehearing En Banc, 6 Aug 2020

Bronner, et al. v. Duggan, et al., 2019 CA 001712 B (D.C. Sup. Ct, filed 15 Mar 2019). This lawsuit brings all of the claims that were pending in the Federal lawsuit immediately prior to the court’s dismissal in February, 2019. It also brings new claims specific to Plaintiff Simon Bronner, who alleges that the defendants wrongfully removed as editor of the Encyclopedia of American Studies, ex officio officer of the ASA, and member of the ASA National Council. The complaint further alleges that Defendants breached their fiduciary duties to Plaintiff Brunner, the ASA, and its members in various respects.  The lower court’s denial of defendants’ motions to dismiss is currently on appeal to the District of Columbia Court of Appeals.

Complaint
Defendants’ Motions to Dismiss
Plaintiffs’ Opposition to Motions to Dismiss
Defendants’ Replies in Support of the Motions to Dismiss
Plaintiffs’ Opposition to Special Motions to Dismiss
Court’s Amended Order Dismissing in Part
Defendants’ Notice of Appeal
Defendants’ Answer to Complaint
Defendants-Appellants’ Opening Brief on Appeal
Plaintiffs-Appellees’ Answering Brief on Appeal
Defendants-Appellants’ Reply Brief on Appeal

Food Co-op Boycott – Tacoma, Washington

Davis v. Cox, 351 P.3d 862, 183 Wn.2d 269  (Wash. May, 2015).  Members of a local food co-op sued the co-op seeking to overturn the co-op’s adoption of a boycott against Israeli-produced goods, arguing that the board of directors failed to follow the co-op’s governing rules, procedures, and principles.  The co-op moved to dismiss the lawsuit on procedural grounds pursuant to the state’s Anti-SLAPP Act.  The Washington Supreme Court reversed the decision of the Court of Appeals, held the Act to be unconstitutional, and remanded the case back to the Superior Court for further proceedings.  On 9 Mar 2018, the Superior Court dismissed the case on procedural grounds.  On 19 Feb 2020, the Court of Appeals affirmed the dismissal, concluding that plaintiffs lacked standing due to changed circumstances.

May, 2011 Letter to Coop Board
Complaint
Oral Decision of Superior Court Dismissing Case
Decision of the Court of Appeals Affirming Lower Court

Decision of the Supreme Court Reversing Rulings of Lower Courts
Amended Complaint
Oral Decision of Superior Court Dismissing Remanded Case
Plaintiff’s Appellate Brief to the Court of Appeals
Defendant’s Brief in Opposition to the Appeal
Plaintiff’s Reply Brief to the Court of Appeals
Decision of Court of Appeals Affirming Dismissal

Oral argument before the Supreme Court in 2015 is archived on the TVW” website.  Note that the video may not play in certain browsers without first disabling protection.

Lawyer’s Organization Rejects Non-Political Dinner Program Ad from Israeli Organization

Biotechnical Atheneum v. National Lawyers Guild, Inc., et al., Index No. 653668/2016 (N.Y. Sup.Ct., NY Co., filed 13 Jul 2016).  Plaintiff—an organization incorporated in Israel and authorized to do business in New York—attempted in June 2016 to place an ad in the dinner journal for the NLG’s Annual Banquet. The NLG refused to accept the ad and refunded the $200 payment, stating: “Unfortunately, we have a resolution barring us from accepting funds from Israeli organizations.”  As a result, plaintiff sued, seeking injunctive relief based upon the New York City and New York State Human Rights Laws.  Plaintiff’s motion for summary judgment was denied on 29 Jan 2019.  After continuing litigation, a stipulation and consent judgment was agreed to on 19 May 2020, with plaintiff achieving many of its aims in bringing the lawsuit.

Summons and Complaint
Decision and Order Denying First Motion to Dismiss
Amended Complaint
Decision and Order Denying Second Motion to Dismiss
Motion for Partial Summary Judgment
Memorandum in Support of Motion for Summary Judgment
Memorandum in Opposition to Motion for Summary Judgment
Reply Memorandum in Support of Motion for Summary Judgment
Decision and Order Denying Motion for Partial Summary Judgment
Stipulation and Consent Judgment


BDS and Product Labeling

Europe

Organisation juive européenne, Vignoble Psagot Ltd v. Ministre de l’Economie et des Finances, Case C-363/18 (Eur. Ct. of Justice, 12 Nov 2019).  The court ruled, based on European Union directives concerning protection of health for consumers, and the Union Customs Code, that foodstuffs originating in Judea and Samaria must bear the indication of their territory of origin, when those foodstuffs come from an Israeli community within that territory.

Request for a preliminary ruling
Opinion of Advocate General    English    French   Press Release
Judgment of the Court    English    French    Press Release

This ruling has been sharply criticized as discriminatory and unjustified.

Canada

Kattenburg v. Attorney General of Canada, 2019 FC 1003 (Fed. Ct. Ont., July 29, 2019).  The Federal Court of Canada ruled that ‘product of Israel’ labels on wines produced in communities in Judea and Samaria are “false, misleading and deceptive.”  The Canadian government has announced that it will appeal the decision.

Judgment of the Federal Court