993 F.3d 144
2d Cir.2021Background
- U.S. victims of multiple Hamas attacks in Israel (2001–2004) sued NatWest under the Antiterrorism Act (ATA), alleging the bank provided material support by banking for Interpal, a London charity accused of funneling funds to Hamas.
- NatWest, a U.K. bank, maintained Interpal accounts from the 1990s through 2007 and processed at least 457 wire transfers (1996–2003) to 13 charities plaintiffs allege were tied to Hamas; Interpal was designated an SDGT in August 2003.
- Plaintiffs relied on 18 U.S.C. § 2339B (material support) as the predicate for civil recovery under § 2333(a), and sought to add aiding-and-abetting claims after JASTA's 2016 enactment.
- Following this Court's decision in Linde (material support alone does not automatically establish an ATA "act of international terrorism"), the district court granted summary judgment for NatWest, finding plaintiffs lacked evidence that the bank's conduct involved violence or objectively appeared intended to intimidate or coerce; it also denied leave to add JASTA aiding-and-abetting claims as futile for lack of general awareness/substantial assistance evidence.
- The Second Circuit affirmed the summary-judgment dismissal and denial of leave to amend; NatWest's conditional cross-appeal on personal jurisdiction was dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NatWest's banking for Interpal constitutes an "act of international terrorism" (principal liability under §2333(a)) | NatWest's knowing provision of financial services to a fundraiser for Hamas suffices (or at least raises triable issue) | Material support alone is insufficient; plaintiffs must prove all §2331 elements, including violence/danger to life and appearance of intent to intimidate/coerce | Affirmed for NatWest: plaintiffs failed to adduce evidence that NatWest's conduct involved violence or appeared intended to intimidate/coerce |
| Whether plaintiffs must trace transfers to specific terrorist attacks | District court imposed an improper tracing requirement | Defendant: absent tracing or other evidence linking transfers to violent acts, §2331 elements cannot be met | Court properly required evidence sufficient to satisfy §2331; lack of evidence linking transfers to violent acts was fatal |
| Whether plaintiffs may amend to add JASTA aiding-and-abetting claims (general awareness & substantial assistance) | JASTA is retroactive and plaintiffs can infer general awareness from NatWest's relationship with Interpal | Plaintiffs lack evidence NatWest was generally aware it was assuming a role in Hamas's violent activities or that it provided substantial assistance | Denial of leave to amend affirmed as futile: record does not support general awareness or substantial assistance required by Halberstam/JASTA |
| NatWest's conditional cross-appeal on personal jurisdiction | N/A (NatWest sought dismissal if not affirmed) | NatWest urged reversal of district court's denial of dismissal for lack of jurisdiction if merits reversed | Cross-appeal dismissed as moot because the merits judgment was affirmed |
Key Cases Cited
- Linde v. Arab Bank, PLC, 882 F.3d 314 (2d Cir. 2018) (material support alone does not invariably establish ATA principal liability; must satisfy §2331 elements)
- Siegel v. HSBC N. Am. Holdings, Inc., 933 F.3d 217 (2d Cir. 2019) (JASTA claims require plausible allegations of defendant's general awareness and substantial assistance)
- Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (framework for aiding-and-abetting: principal's wrongful act, defendant's general awareness, and knowing substantial assistance)
- Weiss v. Nat'l Westminster Bank PLC, 768 F.3d 202 (2d Cir. 2014) (earlier vacatur holding evidence could create a triable issue on material-support scienter)
- Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50 (2d Cir. 2012) (describes the four statutory elements that define an "act of international terrorism")
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (mens rea for §2339B is knowledge of the organization's connection to terrorism)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary-judgment standard: lack of sufficient evidence on an essential element defeats nonmovant)