Licci Ex Rel. Licci v. Lebanese Canadian Bank, SAL
834 F.3d 201
| 2d Cir. | 2016Background
- In 2006 Hezbollah rocket attacks injured or killed dozens of Israeli, U.S., and Canadian civilians. Plaintiffs (Israeli and Canadian citizens) sued Lebanese Canadian Bank, SAL (LCB) under the Alien Tort Statute (ATS), alleging LCB used a New York correspondent account (with American Express Bank) to effect dollar wire transfers that financed Hezbollah and facilitated the attacks.
- Plaintiffs alleged LCB knowingly handled Shahid (a Shahid/Martyrs Foundation) accounts tied to Hezbollah, performed dozens of dollar transfers through New York, and maintained a policy of supporting Hezbollah; they submitted an expert declaration (former Israeli intelligence official) and noted U.S. government actions (Treasury designation and a forfeiture complaint) implicating LCB in money laundering and ties to Hezbollah.
- The case has extensive procedural history: initial dismissal for lack of personal jurisdiction; certification to New York Court of Appeals; the Second Circuit later found personal jurisdiction proper and remanded for subject‑matter analysis under ATS post‑Kiobel II.
- The district court dismissed the ATS claims under Kiobel II’s presumption against extraterritoriality, finding plaintiffs failed to plead the requisite mens rea for aiding and abetting under international law.
- On appeal the Second Circuit held plaintiffs sufficiently alleged (1) violations of the law of nations (genocide, crimes against humanity), (2) an aiding‑and‑abetting theory, and (3) U.S. contacts (use of a New York correspondent account) that displace Kiobel II’s extraterritoriality presumption—but affirmed dismissal because binding circuit precedent (Kiobel I) bars corporate liability under the ATS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff pleaded violations of the law of nations | Licci: alleged systematic rocket attacks amount to genocide, crimes against humanity, war crimes | LCB: attacks are foreign and claims insufficiently pleaded | Held: Plaintiffs adequately pleaded genocide and crimes against humanity under customary international law |
| Whether the ATS extraterritoriality presumption is displaced | Licci: LCB’s use of a New York correspondent account to execute dollar transfers sufficiently "touches and concerns" the U.S. to displace the presumption | LCB: conduct is foreign; Kiobel II bars extraterritorial ATS application | Held: Displaced — the New York correspondent‑bank transfers are specific, domestic conduct that warrant further analysis and displace the presumption |
| Whether alleged conduct states a preliminary aiding‑and‑abetting claim (mens rea and effect) | Licci: LCB provided practical assistance (wire transfers) that substantially affected Hezbollah and acted with purpose/knowledge sufficient for accessorial liability; supported by Shaya declaration and U.S. government actions | LCB: plaintiffs plead only conclusory intent; insufficient to show purpose to facilitate crimes | Held: Plaintiffs satisfied preliminary showing that LCB’s transfers materially assisted Hezbollah and pleaded adequate mens rea for preliminary jurisdictional review |
| Whether corporations can be held liable under the ATS | Licci: Kiobel I was wrongly decided; corporate liability should be recognized | LCB: corporations not liable under ATS; follow Kiobel I | Held: Bound by Kiobel I — customary international law does not recognize corporate liability; ATS claims against LCB must be dismissed |
Key Cases Cited
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (Supreme Court: presumption against extraterritoriality constrains ATS; plaintiffs must show claims "touch and concern" the U.S. with sufficient force)
- Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010) (Second Circuit: held ATS does not provide civil liability for corporations)
- Sosa v. Alvarez–Machain, 542 U.S. 692 (2004) (Supreme Court: ATS is jurisdictional; federal courts may recognize a limited number of international‑law causes of action)
- Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) (Second Circuit: framework for assessing whether domestic conduct displaces Kiobel presumption; two‑step analysis)
- Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (Second Circuit: recognizing aiding and abetting as an ATS liability theory)
- Filártiga v. Peña‑Irala, 630 F.2d 876 (2d Cir. 1980) (Second Circuit: foundational ATS human‑rights enforcement decision)
- Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) (Second Circuit: articulating mens rea and substantial‑assistance standards for aiding and abetting under ATS)
- In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144 (2d Cir. 2015) (Second Circuit: reaffirming panel binding precedent rules and Kiobel I applicability)