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.

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. 

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.”

Spain

The Supreme Court of Spain, in a decision issued on 3 Oct 2022, has ruled that the support and/or funding of BDS campaigns by public institutions constitutes unlawful discrimination.

Many localities in Spain had previously enacted pro-BDS resolutions, resulting in a flurry of lawsuits successfully challenging those resolutions.  The Spanish organization ACOM (Acción y Comunicacion sobre Oriente Medio), which has spearheaded those lawsuits, has a web page listing 85 of the lawsuits along with a map providing information on the localities involved.

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.”  In response to the court challenge, the lower court ruled, on 22 Jun 2017, that the Secretary of State unlawfully used powers designed for pension regulation in order to achieve unrelated purposes, namely the advancement of UK foreign and defense policy. The ruling was set aside on appeal.  However, the Supreme Court of the United Kingdom, in a 3-2 issued on 29 Apr 2020, reinstated the ruling of the lower court.

The Supreme Court’s ruling has sparked proposed anti-BDS legislation in the UK Parliament, as outlined in the 2022 Queen’s Speech — the annual ceremonial address on May 10 that opens parliament, and which sets out the government’s legislative priorities. The legislation, according to a government summary, would stop public bodies in the United Kingdom from engaging in BDS measures and prevent them from “adopting their own approach to international relations.” If the proposed legislation is enacted, any subsequent amendments to the Guidance, can be viewed on the government’s website.


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.  Notwithstanding plaintiff’s allegations of harm, the court granted defendant’s motion to dismiss on 29 Mar 2021.  Plaintiff’s motion for reconsideration was denied in a minute order issued by the court on 2 Aug 2021. Plaintiff has appealed to the D.C. Circuit Court of Appeals.

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 was dismissed as moot and the other settled.

1.  Jordahl v. Brnovich, Arizona Attorney General, 336 F. Supp. 3d 1016 (D. Ariz. 2018).  The lawsuit, brought by the ACLU, challenged the Arizona law on First Amendment grounds.  The Arizona Attorney General, in defending the law, 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 was 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.

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 agreed not to enforce the contract, and has circulated a revised form for speakers, artists, and performers, which does not contain the anti-boycott language.  As a result, the parties entered a joint stipulation in which plaintiffs withdrew their application for a preliminary injunction. Subsequently, defendants’ motion to dismiss was granted by the Court for lack of jurisdiction.

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.  On appeal to the 8th Circuit Court of Appeals, the Court reversed in a 2-1 decision issued on 12 Feb 2021, and remanded the case back to the trial court. However, the Court of Appeals granted a rehearing en banc and reversed, finding that the statute is constitutional.

Georgia

Martin v. Wrigley, Chancellor for the Board of Regents, et al., 20-cv-00596 (N.D. Georgia, filed 10 Feb 2020).  Lawsuit challenges the Georgia Anti-BDS Law on First Amendment Grounds.  On 21 May 2021 the Court granted in part and denied in part defendants’ motion to dismiss. The law was amended, effective 1 Jul 2022, after which the Court dismissed the lawsuit in its entirety, it having been rendered moot by the amendment.

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.

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. The ruling has been appealed.

Texas

Texas’ Anti-BDS law has been the subject to three court challenges, two of which were dismissed as moot and the other currently being litigated.

1.  A & R Engineering and Testing, Inc. v. City of Houston, et al., 21-cv-03577 (S.D. Tex., filed 29 Oct 2021). This case, as did the other two Texas lawsuits, challenges the Texas law on First Amendment grounds. Plaintiff’s motion for a preliminary junction was granted on 28 Jan 2022, and has been appealed by defendants.

2.  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.


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.

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.


United States – Other Litigation

Boycott by Ben & Jerry’s – Unilever

Zinger, et al. v. Ben & Jerry’s Homemade, Inc., et al., 22-cv-01154 (D.N.J., filed 3 Mar 2022). This is action was brought in response to Ben & Jerry’s signing on to the BDS boycott of Israel. The lawsuit sought to declare unlawful and prohibit the termination of a license agreement under which the plaintiffs manufactured and distributed Ben & Jerry’s ice cream products in Israel for more than 3 decades. Plaintiffs alleged that the only reason defendants Ben & Jerry’s Homemade, Inc. and Unilever ended the Agreement was Plaintiffs’ refusal to comply with the unlawful demand that Plaintiffs violate Israeli law by boycotting parts of Israel. Plaintiffs further claimed that the demand was a violation by defendants of Israeli law, U.S. anti-boycott policy, and the laws and policies of many states in the United States. In addition, plaintiffs claimed that the demand violated terms of the license agreement itself as well as the Consent Decree required by the Israeli Government Competition Authority as a condition of its approval of the merger between Ben & Jerry’s and Unilever. On 29 Jun 2022 the parties announced that the case had been settled and was discontinued. Ben & Jerry’s followed with a lawsuit against their parent company, Unilever, seeking to overturn the settlement (see, Ben & Jerry’s Homemade Inc. v. Conopco Inc., below). (related actions, correspondence, and analysis)

Ben & Jerry’s Homemade Inc. v. Conopco Inc., 22-cv-05681 (S.D.N.Y., filed 5 Jul 2022). Ben & Jerry’s sues, seeking to overturn the settlement, claiming that it violates its merger agreement with Unilever. The Court denied Ben & Jerry’s request for a temporary restraining order and the mediation agreed to by the parties was unsuccessful. The court has subsequently denied Ben & Jerry’s motion for a preliminary injunction, ruling that there was no showing of irreparable harm.

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.

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 denied defendants’ motions to dismiss.  On appeal of the denial the District of Columbia Court of Appeals remanded to the lower court for procedural reasons.  As of April 2022, the case is being litigated in the lower court.

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.

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.


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.

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 Psagot wines produced in communities in Judea and Samaria are “false, misleading and deceptive.”  On appeal, the Federal Court of Appeal, on 5 May 2021, held that the lower court improperly substituted its interpretation of the relevant legislation, vacated the lower court’s ruling, and sent the case back to the administrative agency for further proceedings.

On 13 May 2022, the administrative agency issued a redetermination.  Although not definitive on what must be stated on the labels for the wine, it appears that the labels may state “Product of Israel” along with “clarifying information”.  What that information might be is not described.  The redetermination leaves open the possibility of further proceedings.