Chowdhury v. Worldtel Bangladesh Holding, Ltd.

746 F.3d 42

Nayeem Mehtab CHOWDHURY, Plaintiff–Appellee,

v.WORLDTEL BANGLADESH HOLDING, LTD., Amjad Hossain Khan, Defendants–Appellants.

No. 09–4483–cv.

United States Court of Appeals, Second Circuit.

Argued: Feb. 15, 2011.

Decided: Feb. 10, 2014.

J. Eric Charlton (Angela C. Winfield, on the brief), Hiscock & Barclay, LLP, Syracuse, NY, for Defendants–Appellants.

Evan Sarzin (Karen E. Goldman, on the brief), Law Offices of Evan Sarzin, P.C., New York, NY, for Plaintiff–Appellee.

Before: CABRANES, POOLER and CHIN, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Defendants in this action, an individual corporate officer and an affiliated company, appeal from a judgment entered against them by the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge ) following a trial and jury verdict. Defendants were found liable for torture under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991 (“TVPA”), 106 Stat. 73, note following 28 U.S.C. § 1350. For the reasons that follow, we reverse the judgment insofar as its rests on the claim brought under the Alien Tort Statute; we affirm the judgment insofar as it rests on the claim under the Torture Victim Protection Act; and we remand the cause to the District Court for such further proceedings as may be appropriate in the circumstances, including any appropriate adjustment for interest.¹

I. BACKGROUND

A. Factual Background

Plaintiff-appellee Nayeem Mehtab Chowdhury (“Chowdhury” or “plaintiff”), who is the managing director of WorldTel Bangladesh Ltd. (“WorldTel Ltd”) and a stockholder and officer of World Communications Investments Inc. (“WCII”), instituted this suit against his former business associate, defendant-appellant Amjad Hossain Khan (“Khan”) and one of Khan's businesses, Worldtel Bangladesh Holding Ltd. (“WBH”). At all times relevant to this appeal, Chowdhury and Khan were citizens of Bangladesh with legal permanent resident (“LPR”) status in the United States. Prior to the events giving rise to the current dispute, two of their businesses—WBH and WCII—jointly controlled a third entity, World Bangladesh Ltd. (“WBL”), with both Chowdhury and Khan serving as members on its board of directors. At trial, Chowdhury, who was WBL's managing director, testified that WBL had a 25–year license to provide a full range of telecommunications services in Bangladesh, with projected five-year profits estimated to be “in excess of a hundred million dollars.” Joint App'x 87.

In 2005, at Chowdhury's initiative, WBL issued new shares and took out additional debt, with the effect of reducing the interest that WBH (controlled by Khan) had in WBL, from fifty percent to less than one percent. Khan claims that Chowdhury employed improper corporate procedures and forged various signatures, including Khan's, in order to effect this change. Khan thereafter filed several official complaints against Chowdhury in Bangladesh, petitioning over 17 agencies and divisions of the Bangladeshi government for an official investigation of Chowdhury's actions.

Khan first complained to the Chief Metropolitan Magistrate in Bangladesh and to the Criminal Investigative Department of the Ministry of Home Affairs, each of which declined to pursue Khan's complaint after an independent investigation.² Khan next sought redress in 2007 with the Directorate General of Forces Intelligence (“DGFI”), an intelligence agency connected to the military. Following this complaint, in the summer of 2007, Chowdhury was summoned before the DGFI—with Khan present—and detained for 53 days, without charges and without access to anyone outside his room of confinement. Chowdhury testified at trial that he was released without any violence against his person during this period of detention by the DGFI.

However, Chowdhury also testified that on November 5, 2007, the Rapid Action Battalion (“RAB”), a paramilitary unit of the Bangladesh National Police to which Khan had also complained, arrested Chowdhury and held him, without any charges, until November 12, 2007. At trial, Chowdhury stated that during this second periodof confinement, from November 5 to 12, 2007, the RAB tortured him, at Khan's direction, in order to force him to turn over his business interests in Bangladesh to Khan. Chowdhury further stated that, during his confinement by the RAB, he was blindfolded and handcuffed before electric shocks were applied to his thigh and arms through the use of an unidentified prodding device. Chowdhury testified that he was then lifted off his feet and suspended from the prison door by his handcuffs. He also stated in trial testimony that his interrogators told him they were acting at the behest of “Bahdi[, which is] a Bangla word for [Khan].” Joint App'x 137.

Chowdhury testified that he was subsequently transferred out of the RAB's custody and into the custody of the Dhaka Central Jail for medical treatment stemming from injuries sustained during the RAB's interrogation. Chowdhury also testified that, after the medical treatment, he was held for a further five months in jail before being released without any lasting medical symptoms aside from continuing nightmares.

Chowdhury's parents testified that they, and other family members, met with Khan during Chowdhury's detention by the RAB. The circumstances of that meeting were disputed at trial. Chowdhury's parents stated that Khan asked to see them and told them, upon meeting, that: (1) Chowdhury had been subjected to electric shock interrogation; (2) Khan was present for the interrogation; and (3) Khan could make the interrogations stop if Chowdhury agreed to transfer his business interests to Khan and leave Bangladesh entirely. Chowdhury's parents testified that they refused to agree to these alleged demands. In contrast, Khan testified that Chowdhury's parents requested the meeting and subsequently asked him to withdraw the charges he had filed with Bangladesh authorities against Chowdhury—which he refused to do. Khan also flatly denied seeing Chowdhury during his detention, having any influence over his treatment in detention, or offering to release Chowdhury if he agreed to transfer his business interests to Khan. There is no dispute that Chowdhury refused to transfer his interest in WBL and remains its managing director.

B. Procedural History

On April 22, 2008, Chowdhury, WorldTel Ltd, and WCII (jointly, “plaintiffs”) filed a complaint against Khan and WBH (jointly, “defendants”), alleging that Khan subjected Chowdhury to torture. On this basis, plaintiffs brought claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991 (“TVPA”), 106 Stat. 73, note following 28 U.S.C. § 1350, seeking monetary damages, punitive damages, and injunctive relief. In pressing these claims, plaintiffs alleged that defendants directly committed violations cognizable under the two statutes, as well as aided and abetted Bangladesh authorities in violations of the same. Defendants moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the complaint in its entirety for failure to state a claim upon which relief can be granted. Upon review, the District Court dismissed with prejudice: (1) all claims by the plaintiff corporations; (2) Chowdhury's aiding and abetting claims under both the ATS and TVPA; and (3) Chowdhury's TVPA claim against WBH. Chowdhury v. WorldTel Bangladesh Holding, Ltd., 588 F.Supp.2d 375, 388 (E.D.N.Y.2008). The District Court dismissed Chowdhury's remaining claims—those alleging that his interrogation by the RAB constituted direct violations by Khan of both certain customary international law norms (actionable in federal court under the ATS) and of the TVPA—and granted Chowdhury leave to replead. Id.

On January 5, 2009, Chowdhury, as the sole plaintiff, filed an amended complaint alleging only that the defendants directly ³ engaged in conduct prohibited, or otherwise made actionable, by the ATS and TVPA. Specifically, Chowdhury alleged that Khan caused the RAB to torture him through “electrical shocks and painful shackled standing” and offered to prevent future torture in exchange for control over WBL.

The parties then conducted discovery, which concluded on May 5, 2009. The case proceeded to trial on August 3, 2009. The jury, on August 4, 2009, returned a general verdict form in favor of Chowdhury in which it concluded that Khan and WBH were liable for torture. It found Khan and WBH liable for $1.5 million in compensatory damages and Khan alone liable for $250,000 in punitive damages. The jury further determined that WBH should not be held liable for punitive damages.

Following the jury's verdict, defendants brought a motion pursuant to Federal Rules of Civil Procedure 50(b) and 59(a) seeking judgment as a matter of law, or in the alternative, a new trial. The District Court denied the motion, concluding that the evidence at trial “was not only legally sufficient to present the case to the jury, but one sided in plaintiff's favor.” Chowdhury v. Worldtel Bangladesh Holding, Ltd., No. 08 Civ. 1659(BMC), 2009 WL 9053203, at *1 (E.D.N.Y. Sept. 16, 2009). The District Court also noted that the jury could have reasonably determined from testimony not only that Khan had knowledge that Chowdhury was being tortured, but also that the RAB was acting “at the behest of [Khan]” and that Khan attended the torture.⁴Id. Overall, the District Court concluded that under a theory of agency or conspiracy, “[t]he facts set forth ... were more than sufficient to permit the jury to infer that defendant had a deal with the torturers to extract business concessions from [Chowdhury] by doing what they do best.” Id.

In considering the motion, the District Court also rejected multiple evidentiary challenges by defendants. As relevant here, defendants contended that Chowdhury should not have been allowed to testify regarding statements by RAB agents...