381 F. Supp. 3d 223
E.D.N.Y2019Background
- Plaintiffs (approximately 200 individuals and estates) sued National Westminster Bank PLC (NatWest) under the Antiterrorism Act (18 U.S.C. § 2333) alleging NatWest provided material support to Hamas through banking services for Interpal and transfers to 13 charities allegedly controlled by Hamas, causing terrorist injuries/deaths.
- Prior proceedings: Judge Sifton dismissed an aiding-and-abetting claim (Weiss I); the district court granted summary judgment to NatWest on scienter in 2013 (Weiss II) which the Second Circuit reversed and remanded (Weiss II-A). Subsequent motions addressed jurisdiction (Daimler), additional attacks, and evidentiary rulings; some claims survived earlier summary judgment rulings (Weiss IV).
- After Linde v. Arab Bank, PLC (2d Cir. 2018), the Court permitted a narrow renewed summary-judgment motion to consider Linde's impact on whether routine financial services can constitute an "act of international terrorism" under 18 U.S.C. § 2331(1).
- NatWest moved for summary judgment limited to (a) whether its services constituted violent acts or acts dangerous to human life and (b) whether its conduct appeared intended to intimidate/coerce (the § 2331(1)(A) and (B) prongs). NatWest assumed a triable issue on § 2339B (material support) and on the jurisdictional/prong that conduct occurred outside the U.S.
- The Court found undisputed that Interpal and the 13 charities performed charitable activities and that no wire transfers were identified as explicitly for violent/terroristic purposes; Plaintiffs’ experts did not opine that specific transfers funded the attacks.
- Holding: The Court granted NatWest's renewed motion for summary judgment in full, concluding NatWest's routine banking services did not constitute violent acts/acts dangerous to human life nor manifest the apparent terroristic intent under § 2331(1). The Court also denied Plaintiffs leave to amend to add a JASTA (18 U.S.C. § 2333(d)(2)) aiding-and-abetting claim as futile and dismissed the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NatWest's routine banking services constitute "violent acts" or "acts dangerous to human life" under 18 U.S.C. § 2331(1)(A) | NatWest provided material support to Interpal/charities controlled by Hamas; that support enabled violence and so the banking services are effectively dangerous/violent | Routine financial services to charities are not violent or life-endangering; no transfers were labeled for violent purposes and experts concede charities performed charitable work | NatWest's services do not as a matter of law constitute violent acts or acts dangerous to human life; summary judgment for NatWest granted |
| Whether NatWest's actions "appear to be intended" to intimidate/coerce under § 2331(1)(B) (terroristic intent) | Knowledge that funds flowed to Hamas (or conscious avoidance) supplies the apparent intent element | Scienter for § 2339B (knowledge of connection to terrorism) is not equivalent to the higher, objective "apparent intent" required by § 2331(1)(B); no evidence transfers were identified as for terrorism | No triable issue that NatWest's services appeared intended to intimidate/coerce; summary judgment for NatWest granted |
| Whether Plaintiffs may add a JASTA (18 U.S.C. § 2333(d)(2)) aiding-and-abetting claim at this late stage | JASTA is retroactive; plaintiffs may assert aiding-and-abetting under Halberstam framework and should be allowed to amend (or include in pretrial order) | Claim was not pleaded; raising it first in a pretrial order is improper; even if allowed, evidence fails JASTA's higher "general awareness" scienter requirement | Amendment denied as futile: Plaintiffs cannot show NatWest was generally aware it played a role in violent or life-endangering activities; aiding-and-abetting claim dismissed with prejudice |
Key Cases Cited
- Linde v. Arab Bank, PLC, 882 F.3d 314 (2d Cir. 2018) (providing material support does not invariably equal an act of international terrorism; Halberstam framework applies to JASTA aiding-and-abetting)
- Daimler AG v. Bauman, 571 U.S. 117 (2014) (personal jurisdiction principles applied in prior motions)
- Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (framework for civil aiding-and-abetting: wrongful act by principal, defendant's general awareness, and knowing substantial assistance)
- Boim v. Holy Land Foundation for Relief and Dev., 549 F.3d 685 (7th Cir. 2008) (discussed analogy that direct monetary support can be "dangerous to human life" in some circumstances)
- Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50 (2d Cir. 2012) (definitions and elements of "international terrorism" under § 2331(1))
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (distinguishing scienter for criminal material support from awareness required for secondary liability)