379 F. Supp. 3d 148
E.D.N.Y2019Background
- ~200 U.S. nationals and estates sued Crédit Lyonnais (CL) under the Antiterrorism Act (18 U.S.C. § 2333) for damages from 15 terrorist attacks, alleging CL processed transfers from CBSP to 13 charities that were alter egos/controlled by Hamas and thus aided terrorism.
- Prior proceedings: multiple motions and appeals over years (Strauss I–VI); some claims/time-barred attacks previously dismissed and some evidence rulings made; several evidentiary rulings limited Plaintiffs’ proof at trial.
- Plaintiffs’ remaining theories alleged (1) CL committed an act of international terrorism (primary liability via § 2339B predicate) and (2) aided-and-abetting liability under JASTA (§ 2333(d)).
- Defendant moved for renewed summary judgment following the Second Circuit’s decision in Linde v. Arab Bank, arguing Plaintiffs cannot meet § 2331(1)’s violence/danger and apparent-intent prongs.
- Key factual stipulations for summary-judgment purposes: court assumed triable issue exists on whether CL knowingly provided material support (§ 2339B) and that conduct occurred primarily outside the U.S.; disputed issues were whether CL’s routine banking services were "violent or dangerous to human life" and whether they "appeared intended" to intimidate/coerce.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CL’s provision of routine banking services to CBSP/13 charities constituted an "act of international terrorism" under 18 U.S.C. § 2331(1) (violent/dangerous prong) | CL knowingly facilitated Hamas-controlled charities; that control and payments to families of attackers made transfers life-endangering — jury question. | Routine, charitable-purpose transfers lacked any direct violent character; no transfers were marked for violent uses; expert concessions show charities performed charitable work. | Granted for CL: Plaintiffs failed to raise a triable issue that CL’s banking services were violent or dangerous to human life. |
| Whether CL’s actions "appeared to be intended" to intimidate/coerce or otherwise meet § 2331(1)(B) (terroristic intent prong) | Knowledge of material support and deliberate indifference to Hamas ties suffices to create an intent issue for the jury. | § 2331(1)(B) demands objective apparent intent separate from § 2339B scienter; no evidence that transfers were identified or intended to further intimidation/coercion. | Granted for CL: Plaintiffs produced no evidence that CL’s services appeared intended to intimidate or coerce. |
| Whether Plaintiffs may proceed on aiding-and-abetting (JASTA § 2333(d)) claims raised first in the pretrial order | JASTA is retroactive; Plaintiffs can assert statutory aiding-and-abetting and should be allowed to proceed or amend. | Plaintiffs did not plead JASTA claims timely; claims not pleaded in operative complaints; prior dismissal of common-law aid-and-abetting argued as dispositive. | Court refused to permit JASTA claims first in pretrial order and denied leave to amend as futile. |
| Whether, applying Halberstam factors, evidence supports JASTA aiding-and-abetting liability (substantial assistance & general awareness) | The record shows CL was generally aware of its role and provided substantial assistance enabling foreseeable terrorism. | Knowledge of providing material support alone is insufficient under Halberstam/Linde; no nexus tying CL’s services to violent acts or showing CL was aware it played a role in violent activities. | Granted for CL: Even if pleaded, Plaintiffs’ evidence cannot create a triable issue on aiding-and-abetting; amendment would be futile and is denied with prejudice. |
Key Cases Cited
- Linde v. Arab Bank, PLC, 882 F.3d 314 (2d Cir. 2018) (material support does not automatically satisfy § 2331(1); jury must find violence/danger and apparent intent)
- Weiss v. Nat’l Westminster Bank PLC, 768 F.3d 202 (2d Cir. 2014) (§ 2339B scienter requires knowledge or deliberate indifference that client provided material support)
- Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (analogy that direct monetary support can be "dangerous to human life" depending on foreseeability)
- Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50 (2d Cir. 2012) (framework for § 2331(1) analysis)
- Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (civil aiding-and-abetting standard and substantial-assistance factors)
- Owens v. BNP Paribas, S.A., 897 F.3d 266 (D.C. Cir. 2018) (JASTA creates statutory aiding-and-abetting liability that did not previously exist)
- In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp.2d 765 (S.D.N.Y. 2005) (aiding-and-abetting analysis in terrorism litigation)
- Strauss v. Crédit Lyonnais, S.A., 925 F. Supp.2d 414 (E.D.N.Y. 2013) (court’s prior summary-judgment rulings addressing material-support scienter)