Strauss v. Crédit Lyonnais, S.A.
925 F. Supp. 2d 414
E.D.N.Y2013Background
- consolidated ATA action against Crédit Lyonnais over fifteen Hamas-related attacks in Israel/Palestine; CBSP served as primary conduit with 13 Charities as alleged Hamas front groups
- CBSP opened accounts with Defendant; CBSP designated SDGT by OFAC on August 21, 2003; CBSP funds flowed to 13 Charities alleged to be Hamas fronts
- CPML conducted suspicions: 1997–2003 monitored CBSP; TRACFIN declarations and heightened surveillance followed
- French and EU non-designations pre-dating 2003; U.S. designation tied CBSP to Hamas financing; local investigations in France/Israel occurred
- CBSP accounts closed in 2002–2003 after investigations and OFAC designation; Café Hillel attack is a subset dispute under 2333(a)
- Café Hillel Plaintiffs seek damages and Hamas’ responsibility for the Café Hillel attack is adjudicated as part of the record
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendant acted with sufficient scienter under ATA §2333(a) | Plaintiffs contend Defendant knowingly or recklessly aided Hamas via CBSP and 13 Charities | Defendant argues no proof of knowledge or deliberate indifference to Hamas ties | Genuine issue of material fact on knowledge/deliberate indifference exists |
| Proximate causation and Article III standing | Plaintiffs assert funds to Hamas front groups proximately caused injuries and are traceable to defendant | Defendant contends causation/standing too attenuated and cannot be shown | Triable issues exist as to proximate causation and standing |
| Whether 13 Charities are Hamas alter egos or controlled by Hamas | Experts show overlap and control indicating alter ego relations | Evidence insufficent or contested; alter ego finding inappropriate at summary judgment | Rational jury could find alter ego status based on record; issues for trial |
| Whether Hamas was responsible for the fifteen attacks | Shaked and Kohlmann testify Hamas responsible; Israeli judgments and records support | Certain testimony inadmissible hearsay; contested reliability of experts | Most attacks (14 of 15) supported by admissible evidence; Sept. 24 attack limited by admissibility |
| Café Hillel Plaintiffs’ scienter and causation claims | OFAC designation and related evidence show knowledge of terrorism support | OFAC designation alone does not prove scienter under ATA; extraterritoriality issues | Summary judgment denied for some aspects; Hamas’ responsibility for Café Hillel attack established on admissible evidence; other elements to be proven at trial |
Key Cases Cited
- Boim v. Holy Land Found., for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (reckless/knowing standard for material support under ATA)
- Gill v. Arab Bank, PLC, 893 F. Supp. 2d 542 (E.D.N.Y. 2012) (admissibility of expert testimony on Hamas with cautionary evidence rules)
- Gill v. Arab Bank, PLC, 893 F. Supp. 2d 523 (E.D.N.Y. 2012) (admissibility and methodology of experts in terrorism cases)
- Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571 (E.D.N.Y. 2005) (alter ego/agency approach to FTO liability)
- Nat’l Council of Resistance of Iran v. Dep’t of State, 373 F.3d 152 (D.C. Cir. 2004) (alter ego/alias framework for designation context)
- Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) (proximate causation under ATA; clarifies traceability)
- Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) (proximate causation and statutory purposes in ATA context)
- Boim I, 291 F.3d 1000 (7th Cir. 2002) (earlier recklessness/knowledge standard for ATA)
- Boim III, 549 F.3d 685 (7th Cir. 2008) (en banc reaffirmation of knowledge/recklessness standard)
- Mejia (United States v. Mejia), 545 F.3d 179 (2d Cir. 2008) (Daubert gatekeeping; admissibility of expert testimony on terrorism)