Thomas Fortune Fay ’65 is dean of a small cadre of attorneys who have successfully sued foreign governments on behalf of American victims of terrorism.
In 2016, Fay, who has worked closely with other attorneys, was able to get almost $2 billion released for more than 1,000 victims and family members of Iran-sponsored terrorist attacks involving 16 lawsuits and numerous law firms.
Fay, who is based in Washington D.C., also was a pioneer who drafted legislation allowing American lawyers to sue sovereign foreign nations. Prior to such legislation, there were few remedies for American victims and their families.
Fay described his journey by which he became an advocate for American victims of terrorism at a talk at Rutgers Law School in November. His talk was co-sponsored by the Rutgers Center on Security, Race and Rights, the International Law Society and the Transportation, Trade and Security Society.
Fay, whose legal career included practicing in the fields of personal injury, medical malpractice and criminal law, said he met with the father of Alisa Flatow following her death. Flatow as a New Jersey college student who was killed in 1995 in the Gaza Strip0 when a suicide bomber drove into her bus.
Fay said Flatow’s father “was shocked to find out” that even though his daughter was an American citizen, there was nothing in place that allowed Flatow’s family to sue for damages or reparations.
“I felt that somebody should take this case and see what we could do and go from there,” he said.
Fay said he started conducting research at the Israeli embassy, developed a connection with the Israeli national secret service, traveled into the Gaza Strip and was able to contact witnesses who were injured on the same bus in which Flatow died. “I interviewed a number of people who had seen what happened,” he said. “We knew we had a case and had something we could work with.”
Fay’s cases also include representation of the victims of the Beirut Marine barracks bombing of 1983 and the bombings of the American embassies in Tanzania and Kenya in 1998. He investigated the cases abroad, tried the cases, handled appeals and worked with other attorneys to get judgments for his clients.
“It’s really collecting (damages) on behalf of all the American people; it’s important to keep that in mind,” he said.
Because of opposition from the U.S. State Department and at times, the White House, it took several years of litigation and heavy lobbying in Congress to obtain the special legislation to subject foreign nations to the jurisdiction of U.S. courts. Fay pointed to 28 U.S. Code 1605, Parts A & B, as protections for American citizens that are now law.
“There is no immunity for acts of torture, sabotage or intentional killing, such as crashing airplanes,” he said. “An American citizen or national can be a claimant.”
He gave the law students advice for the future and offered them pocket copies of the U.S. Constitution. “If you take a case and prosecute it, be aggressive and don’t stop,” he said. “Do what you think is right. People want to play it safe and shake everybody’s hand. To hell with that.”
Fay, who is a former president of the Trial Lawyers Association of Metropolitan Washington D.C., has taught continuing legal education courses on trial tactics in personal injury cases and problems in proving damages. That Association presented him with its Trial Lawyer of the Year Award in 2001 for his work establishing civil remedies for victims of terrorism.