American families suing Africa’s biggest telco MTN have filed a fresh application opposing the mobile operator’s motion to dismiss the case.
The families argue the operator “purposefully availed” itself to the US by obtaining funding and insurance guarantees from US-based units of the World Bank.
In the court papers, the plaintiffs argue that for more than a decade, MTN has been integral to the Taliban’s terrorist campaign against Americans in Afghanistan.
The SA-headquartered mobile operator entered the Afghan market in 2006 in the midst of an escalating insurgency, and it soon grew to become the country’s dominant mobile phone provider.
The Americans argue it is this MTN expansion strategy that brought them misery because the mobile operator bought its way into dangerous areas of Afghanistan by paying the Taliban to protect it.
The matter is likely to be a major headache for Ralph Mupita, who took over as group CEO in September, at a time MTN asked the US court to terminate the case, filed against it by the families seeking $100 million civil monetary relief under the US Anti-Terrorism Act.
MTN’s legal counsel requested the court to end the lawsuit and grant a judgement in MTN’s favour because the court lacks jurisdiction over MTN, which does not operate in the US, and because the complaint does not allege any conduct by MTN that violated the Anti-Terrorism Act.
Jurisdiction question
However, in the latest court filing, the families hit back at MTN, saying in seeking US monies, it placed itself under US jurisdiction.
They claim MTN reached out to the US and engaged in repeated communications with US-based personnel and those contacts were not coincidental as they “were prerequisites to MTN’s protection payments and funded the very cell towers that MTN manipulated to support the Taliban”.
In addition, they say, MTN even signed contracts (and made written certifications) promising US personnel it would not support the Taliban.
The families claim, as MTN understood, the money and operational support it gave the Taliban – at a scale unrivalled by any other Western company – helped the terrorists to kill and maim thousands of Americans, and the plaintiffs and their family members are among the victims.
In the papers seen by ITWeb, they say the court should recognise and reject MTN’s argument for what it is: “an attempt to enshrine a rule that a foreign company can obtain US financing, use the financing to support terrorist attacks on Americans, and face no accountability for doing so”.
The plaintiffs argue that, for more than a decade, MTN has been integral to the Taliban’s terrorist campaign against Americans in Afghanistan.
“It also deactivated its cell towers at the Taliban’s behest, switching off parts of its network at night to obstruct the US military operations that depended on active cell signals. Both decisions contributed substantially to the Taliban’s terrorist insurgency.”
Furthermore, the court papers say, MTN harboured anti-American motives in supporting the Taliban, which further supports effects-based jurisdiction.
According to the lawyers: “It is indeed outrageous that a public company would partner with Iran, become Afghanistan’s largest mobile-phone provider, and use its position to support terrorists responsible for thousands of American deaths. And it is equally outrageous that a company would do those things while insisting it cannot even be called into an American court.”
In response, MTN says the next step after its written reply is for the court to review the motion and make a determination, but it remains of the view that the case should be dismissed.
“The plaintiffs cannot establish jurisdiction over MTN in the United States or plead a viable claim. Their response does not and could not fix those fundamental defects in their case. MTN Group and its affiliates are proud of their work entering emerging markets and helping people in the world’s most underserved areas connect to each other and the world.
“MTN remains of the view that it conducts its business in a responsible and compliant manner in all its territories and, as reflected in the motion to dismiss, intends to defend its position accordingly.”
According to US court rules, a district judge will now preside over the case with the assistance of a magistrate judge and the magistrate judge will first issue a recommendation to the district judge on how to decide the motion to dismiss, and then further proceedings before the district judge are possible.
The judges could schedule a hearing for the parties to make oral submissions or decide the motion on the written filings alone.
There is no set timetable for the court’s ruling on the motion.
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