Wultz v. Bank of China Ltd.
811 F. Supp. 2d 841
S.D.N.Y.2011Background
- Four Wultz family members sue Bank of China for acts of international terrorism and related claims under ATA, plus Israeli-law negligence, statutory duty, and vicarious liability theories.
- 2006 PIJ suicide bombing in Tel Aviv injured Daniel Wultz and Yekutiel Wultz; Daniel died May 14, 2006; Israeli attack killed others and injured many.
- Plaintiffs allege BOC facilitated PIJ wire transfers (2003–2006) through Guangzhou and U.S. branches, aiding terrorist activities; warnings from Israeli and Chinese officials allegedly ignored.
- BOC sought to apply New York law to non-federal claims; the case was transferred from D.C. District Court to this Court, which applied New York choice-of-law rules.
- Court preliminarily determines conduct-regulating foreign-law claims trigger choice-of-law analysis; lex loci delicti is Israel for this personal-injury case; after balancing interests, Israeli law is applied.
- Decision requires briefing to construct foreign-law contours for Israeli law substantive application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BOC waived right to argue NY law | BOC waived nothing; implied consent insufficient | BOC preserved argument under new governing rules | No waiver; NY law issues retained |
| Whether substantive conflict exists between NY and Israeli law | Conflicts affect negligence, statutory duty, vicarious liability | Conflicts exist; need choice-of-law analysis | Substantive conflict exists for non-federal claims |
| Which law governs conduct-regulating vs loss-allocating rules | Treats Israeli statutory breach and aiding/abetting as conduct-regulating | Potentially loss-allocating; analysis needed | All three claims invoke conduct-regulating rules under lex loci delicti analysis |
| What is the proper law under lex loci delicti and interest analysis | American interest in combating terrorism and protecting victims | Israel has strong interest due to location and victims | Israel law applies after balancing conduct-regulating focus and tort location; not violative of justice |
| Impact of foreign-law application on NY public policy interests | NY interests in regulating financial institutions | Policy concerns do not trump Israeli law here | Foreign-law application is appropriate; NY policy not controlling |
Key Cases Cited
- Wultz v. Islamic Republic of Iran, 755 F.Supp.2d 1 (D.D.C.2010) (tort claims against terrorist actors; choice-of-law considerations in related action)
- In re Sept. 11th Litig., 494 F.Supp.2d 232 (S.D.N.Y.2007) (conduct-regulating vs loss-allocating; choice-of-law in terrorism context)
- Curley v. AMR Corp., 153 F.3d 5 (2d Cir.1998) (aiding-and-abetting and conduct-regulating distinctions in NY law)
- Padula v. Lilam Props. Corp., 84 N.Y.2d 519 (N.Y.1984) (internal choice-of-law aspects relevant to torts)
- LaSala v. TSB Bank, PLC, 514 F.Supp.2d 447 (S.D.N.Y.2007) (bank-tort duties; cross-border conduct-regulating considerations)