891 F. Supp. 2d 335
E.D.N.Y2012Background
- Gill sues Arab Bank plc for injuries from a 2008 Hamas-linked attack in Israel; plaintiff alleges the Bank knowingly provided financial services to Hamas and its affiliates.
- Bank New York branch entered a 2005 OCC consent order and paid a $24 million civil penalty for deficient internal controls and anti-terrorism compliance.
- Plaintiff asserts five ATA-based claims; aiding-and-abetting theory is dismissed on the pleadings, others survive.
- Court analyzes subject-matter jurisdiction, the act-of-war defense, and the viability of secondary liability theories under §2333(a).
- Court instructs that after discovery, summary judgment may be appropriate to resolve factual questions, and denies amendment of pleadings.
- Decision partially grants the Bank’s motion to dismiss (claims 1) and denies it as to the remaining claims at the pleading stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2333(a) allows aiding-and-abetting liability. | Gill argues aiding-and-abetting theory is viable under ATA. | Arab Bank contends §2333(a) does not provide secondary liability. | Aiding-and-abetting claim dismissed; §2333(a) does not permit aiding-and-abetting. |
| Whether the political-question doctrine bars ATA claims. | Gill contends issues fall within judicial review. | Bank asserts political-question bar. | Political-question doctrine does not bar adjudication of ATA claims. |
| Whether the act-of-war defense defeats the action at pleadings stage. | Gill argues no act-of-war defense applies at Rule 12(b)(6). | Bank asserts §2336(a) excludes injuries caused by acts of war. | Act-of-war defense not dispositive at pleadings stage; merits to be resolved on summary judgment. |
| Whether other ATA claims remain viable given the pleadings. | Plaintiff asserts conspiracy and material-support theories. | Bank challenges sufficiency of §2339A/B/C theories. | Claims 2–5 survive the 12(b)(6) stage; further proof required at summary judgment. |
| What is the required mental state and causation for Claims Two–Five? | Recklessness/intent sufficient to satisfy causation theories. | Proximate causation and specific state-of-mind requirements must be shown. | Mental-state and proximate-causation requirements described; aiding-and-abetting rejected; other claims survive. |
Key Cases Cited
- Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir.1991) (ATA context persuasive on justiciability of private claims against terrorists)
- Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (en banc: ATA does/does not provide for secondary liability; split views)
- Linde v. Arab Bank, PLC, 384 F.Supp.2d 571 (E.D.N.Y.2005) (ATA secondary-liability discussions inform reasoning)
- Wultz v. Islamic Republic of Iran, 755 F.Supp.2d 1 (D.D.C.2010) (ATA liability discussions; secondary-liability issues)
- Estate of Klieman v. Palestinian Auth., 424 F.Supp.2d 153 (D.D.C.2006) (acts-of-war interpretation context in ATA)
- Biton v. Palestinian Interim Self-Gov’t Auth., 412 F.Supp.2d 1 (D.D.C.2005) (act-of-war interpretation considerations)
- Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) (textual-silence governs secondary liability; no general presumption)
- Abecassis v. Wyatt, 704 F.Supp.2d 623 (S.D.Tex.2010) (controversies on mental-state standards under ATA)