Foley Hoag Secures Victory for Peru in U.S. Courts

Marking Third Win Protecting Sovereign State Immunity in as Many Months

October 2, 2020

On September 28, 2020, Foley Hoag LLP preserved the sovereign immunity of the Government of Peru, by securing the early dismissal of a case under the Foreign Sovereign Immunities Act (FSIA). The U.S. District Court for the Southern District of New York granted the motion to dismiss brought by the Consulate General of Peru in New York and the former Consul General, Amb. Maria Teresa Merino Villarán de Hart, in Bardales v. Consulate General of Peru in New York, et al. (No. 17-cv-8897 (ALC)).

The case was brought by Juan Carlos Bardales, a former Consulate employee, who asserted various violations of federal and state labor laws. The Consulate moved to dismiss the case, arguing that it was immune from the Court’s jurisdiction because the commercial activity exception of the FSIA did not apply to Mr. Bardales’ employment claims. Mr. Bardales argued that his employment by the Consulate as a chauffeur and citizen service representative constituted a commercial activity. 

Amb. Merino invoked her consular immunity under the Vienna Convention on Consular Relations as grounds for dismissal of Mr. Bardales’ claims against her. She argued, contrary to plaintiff’s assertions, that her supervision of Mr. Bardales was performed in the exercise of her function as Consul General.

The Court, in an Opinion by Judge Carter, rejected the plaintiff’s argument that the commercial activity exception to sovereign immunity applied to his claims. The Court confirmed that Mr. Bardales’ duties were sufficiently intertwined with the Consulate’s governmental function to make the employment relationship governmental, and not commercial, in nature. Accordingly, the Consulate was immune from suit. Likewise, Amb. Merino retained her immunity because she supervised Mr. Bardales in her role as Consul General, and not as a personal employee. 

Foley Hoag partners Lawrence Martin and Clara Brillembourg led the team defending Peru, with the assistance of partner Michael Rosen, and associates Nicholas Renzler, Madeleine Rodriguez, Emily Nash, and Christian Garcia.

“It was a privilege to represent the Government of Peru and to preserve its immunity from abusive lawsuits concerning its valuable diplomatic work in the United States,” Brillembourg said.

This is Foley Hoag’s third victory concerning foreign sovereign immunity in recent months. In July, the firm succeeded in dismissing an appeal of a claim to enforce a multi-million-dollar foreign judgment against Tanzania, similarly concerning the FSIA’s commercial activity exception. That same month, Foley Hoag also achieved an appellate victory for Greece in seeking to retrieve ancient cultural artifacts from a private sale at Sotheby’s, also concerning the same FSIA exception.

Foley Hoag specializes in representing sovereign States, and their entities and officials, in disputes before U.S courts. Chambers Global recently reported: “Foley Hoag LLP stands out because of its high level of competence and admirable record of cases handled and won.” 

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