565 F.Supp.3d 405
S.D.N.Y.2021Background
- MH17 was downed on July 17, 2014; plaintiff Quinn Lucas Schansman was killed and his family brings this ATA suit on his behalf.
- Defendants: Russian state-owned banks Sberbank and VTB, and U.S.-based money-transfer companies Western Union and MoneyGram.
- Plaintiffs allege defendants provided material support/financial services to the Donetsk People’s Republic (DPR) via correspondent accounts (including in New York), fundraiser accounts, and money-transfer channels; DPR fundraisers and individuals (e.g., Zhuchkovsky) advertised specific bank/card/transfer instructions and published ledgers confirming receipts and expenditures for weapons.
- Plaintiffs allege defendants knew or were deliberately indifferent to the DPR’s violent, terroristic activities (news reports, public fundraising, and Ukrainian investigations warned defendants of DPR ties before MH17).
- Procedural posture: Plaintiffs filed a Second Amended Complaint; defendants moved to dismiss; the court denied the motions in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over Sberbank & VTB | Banks used NY correspondent accounts and routed U.S.-dollar transfers through New York; course of dealing establishes purposeful availment | Transfers occurred in Ukraine; plaintiffs fail to tie transactions to New York or show purposeful use of NY banking | Court: Prima facie facts show defendants used NY correspondent accounts and routed USD transfers through NY; specific jurisdiction proper |
| Whether defendants' conduct qualifies as "international terrorism" under §2331/§2333 | Routing/transmitting funds to DPR and its fundraisers enabled lethal attacks and therefore are acts "dangerous to human life" | Providing routine financial services is not necessarily terrorism; act-of-war or nonterrorist-actor arguments | Court: Well-pleaded allegations that services materially enabled DPR violence satisfy the ATA definition at pleading stage |
| Required intent/knowledge under §§2339A/2339C | Defendants were deliberately indifferent/aware (public fundraising, news, Ukrainian probes), satisfying the mens rea for material-support statutes | Defendants lacked specific intent or knowledge that transfers would fund terrorism | Court: Allegations of deliberate indifference and public notice meet the knowledge/intent requirements for §§2339A and 2339C at this stage |
| Proximate causation under §2333(a) | Money fungibility and allegations that funds were used to buy weapons make plaintiffs' injuries a reasonably foreseeable consequence of defendants' conduct | Plaintiffs cannot trace specific dollars to MH17; causation too attenuated | Court: Plaintiffs need not trace specific dollars; pleaded facts adequately allege foreseeability and proximate causation |
| Act-of-war exclusion (18 U.S.C. §2336) | N/A for plaintiffs | DPR is a military force engaged in armed conflict; MH17 was an act of war barred from ATA liability | Court: On the complaint's allegations, DPR is a terrorist group, not a military force or nation; act-of-war exclusion does not bar the claims |
Key Cases Cited
- Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161 (jurisdictional rule that purposeful use of NY correspondent accounts can establish specific jurisdiction)
- Linde v. Arab Bank, PLC, 882 F.3d 314 (banks' financial services and jury questions on whether such services satisfy ATA terrorism definitions)
- Boim v. Holy Land Foundation for Relief & Dev., 549 F.3d 685 (donations to known terrorist organizations can be treated as "acts dangerous to human life" and standards for deliberate indifference)
- Weiss v. Nat'l Westminster Bank, PLC, 993 F.3d 144 (foreseeability and knowledge in ATA proximate-cause and terrorism analyses)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard on motion to dismiss)
- Strauss v. Credit Lyonnais, S.A., 925 F. Supp. 2d 414 (permitting ATA claims without tracing exact dollars and treating course-of-dealing through NY accounts as relevant to jurisdiction)
- Miller v. Arab Bank, PLC, 372 F. Supp. 3d 33 (finding that routing/maintaining accounts for terrorist organizations can amount to acts dangerous to human life)