Yaakov LICCI, a minor, BY his father and natural guardian Elihav LICCI and by his mother and natural guardian Yehudit Licci, et al., Plaintiffs-Appellants v. LEBANESE CANADIAN BANK, SAL, Defendant-Appellee, American Express Bank, Ltd., Defendant.
No. 15-1580
United States Court of Appeals, Second Circuit.
August 24, 2016
833 F.3d 201
2. The record evidence is sufficient to support the district court‘s preponderance finding that Edwards violated supervised release by committing new crimes related to drug trafficking.
The judgment of the district court is, therefore, AFFIRMED.
Yaakov LICCI, a minor, BY his father and natural guardian Elihav LICCI and by his mother and natural guardian Yehudit Licci, et al., Elihav Licci, Yehudit Licci, Tzvi Hirsh, Arkady Graipel, Tatiana Kremer, Yosef Zarona, Tal Shani, Shlomo Cohen, Nitzan Goldenberg, Rina Dahan, Raphael Weiss, Agat Klein, Tatiana Kovleyov, Valentina Demesh, Rivka Epon, Joseph Maria, Immanuel Penker, Esther Pinto, Avishai Reuvance, Elisheva Aron, Chayim Kumer, Sarah Yefet, Shoshana Sappir, Rahmi Guhad Ghanam, a minor, by his father and natural guardian Fuad Shchiv Ghanam and by his mother and natural guardian Suha Shchiv Ghanam, Fuad Shchiv Ghanam, individually, Suha Shchiv Ghanam, individually, Ma‘ayan Ardstein, a minor, by her fa-
Docket No. 15-1580
August Term 2015
United States Court of Appeals, Second Circuit.
Argued: April 18, 2016
Decided: August 24, 2016
Jonathan D. Siegfried (Douglas W. Mateyaschuk & Peter J. Couto, on the brief), DLA Piper LLP (US), New York, NY, for Defendant-Appellee.
Before: SACK, WESLEY, and LYNCH, Circuit Judges.
WESLEY, Circuit Judge:
In July and August 2006, Hezbollah carried out a series of terrorist rocket attacks on civilians in Israel. Several dozen United States, Israeli, and Canadian civilians seek to hold Defendant-Appellee Lebanese Canadian Bank, SAL (“LCB“), a Lebanese bank headquartered in Beirut, liable for providing international financial services to Hezbollah that they claim facilitated Hezbollah‘s attacks that injured them or killed family members. These civilians assert claims against LCB under the Anti-Terrorism Act and Israeli tort law.1 In addition, some of the Israeli and Canadian plaintiffs (collectively, “Plaintiffs“) assert claims under the Alien Tort Statute,
This case is not new to our Court. In fact, this appeal is in its third appearance before us in the last five years. In our prior opinions, we determined (with an assist from the New York Court of Appeals, see Licci v. Lebanese Canadian Bank, SAL, 20 N.Y.3d 327, 339, 960 N.Y.S.2d 695, 984 N.E.2d 893 (2012) (“Licci III“)) that the District Court had personal jurisdiction over defendant LCB, and that subjecting the foreign bank to personal jurisdiction in New York comports with due process protections provided by the
BACKGROUND3
I. Plaintiffs’ Complaint
According to Plaintiffs’ complaint, Hezbollah,4 a terrorist organization, fired thousands of rockets into northern Israel between July 12, 2006 and August 14, 2006. App. 58, 66. Plaintiffs or their family members were injured or killed by these attacks. See App. 54.
LCB is a Lebanese bank with no branches, offices, or employees in the United States. Licci IV, 732 F.3d at 165; Licci II, 673 F.3d at 56. To effectuate U.S.-dollar-denominated transactions, LCB maintained a correspondent bank account with defendant American Express Bank Ltd. (“AmEx“) in New York.5 Licci IV, 732 F.3d at 165; Licci II, 673 F.3d at 56. Plaintiffs allege that LCB used this account to conduct dozens of international wire transfers on behalf of the Shahid (Martyrs) Foundation (“Shahid“), an entity that maintained bank accounts with LCB and that Plaintiffs allege to be an “integral part” of Hezbollah and “part of [its] financial arm.” App. 65; see also id. (alleging that the Shahid-titled bank accounts “belonged to [Hezbollah] and were under the control of [Hezbollah]“). These wire transfers, which totaled several million dollars, “substantially increased and facilitated [Hezbollah‘s] ability to plan, to prepare for[,] and to carry out” the rocket attacks that injured Plaintiffs. App. 66, 86. Plaintiffs further allege that LCB carried out the wire transfer services from 2004 until the rocket attacks began on July 12, 2006, and “subsequently” continued to carry out those transfers. App. 66.
As relevant here, Plaintiffs contend that LCB‘s role in conducting those wire transfers on Shahid‘s behalf amounted to aiding and abetting genocide, war crimes, and crimes against humanity in violation of international law, and is actionable under the Alien Tort Statute. App. 110. They allege that LCB had “actual knowledge” that Hezbollah was a violent terrorist organization, as reflected on official U.S.
Plaintiffs contend, moreover, that LCB knew that Hezbollah required “transfer services in order to operate and in order to plan, to prepare for[,] and to carry out terrorist attacks.” App. 89. They similarly allege that LCB knew that providing wire transfer services to Hezbollah would enable Hezbollah “to plan, to prepare for[,] and to carry out terrorist attacks and/or enhance” its ability to do so, in part because LCB was aware that the U.S. sanction regime “is and was intended to prevent [Hezbollah] from conducting banking activities, including wire transfers, and thereby limit its ability to operate and to carry out terrorist attacks.” App. 89. Plaintiffs allege that LCB, equipped with this knowledge, “as a matter of official LCB policy,” “continuously supports and supported [Hezbollah] and its anti-Israel program, goals[,] and activities.” App. 88. In particular, Plaintiffs allege that LCB carried out the wire transfers at issue “with the specific purpose and intention of enabling and assisting [Hezbollah] [in] carry[ing] out terrorist attacks against Jewish civilians in Israel,” App. 109, and “to assist and advance [Hezbollah‘s] goal of using terrorism to destroy the State of Israel.”7 App. 88.
II. Shaya Declaration
Plaintiffs submitted an expert declaration from former Israeli intelligence officer Uzi Shaya (the “Shaya declaration“) in support of the allegations set forth in their complaint. App. 125-28. Shaya has served in various roles in the Israeli intelligence services since 1984. App. 125. From 2004 to 2008, Shaya served as the Deputy Chief of the Israeli National Security Council‘s Interagency Unit for Combating Terrorist Financing and Financing of State Sponsors of Terrorism. App. 126. After 2008, Shaya maintained a working relationship with Israel‘s National Security Council, providing assistance to counterterrorism staff on the matters he dealt with as Deputy Chief. App. 126. In this capacity, Plaintiffs requested that Shaya “examine documents in possession of the State of Israel relating to fund[] transfers carried out by [Hezbollah] via [AmEx and LCB].” App. 126. Shaya stated that, with one exception identified
Shaya stated that “[f]or many years,” “including the period between 2004 and July 12, 2006,” Hezbollah “maintained bank accounts at various LCB branches,” and that some of the accounts Hezbollah maintained were “titled to” Shahid. App. 126-27. He stated that Shahid was integral to Hezbollah, and that it “serves as an important component of [Hezbollah‘s] financial apparatus.” App. 127. He further specified that Hezbollah uses Shahid funds to prepare for and carry out “a wide range of terrorist and other violent activities, including rocket and missile attacks on Israel.” App. 127.
Shaya stated that leading up to and following the July 2006 attacks, Hezbollah made “dozens” of wire transfers from one Shahid account at LCB in Lebanon, “total[ing] several million dollars,” and LCB executed the transfers “through Am[E]x Bank in New York, which acted as LCB‘s correspondent bank for these dollar transfers.” App. 127. “In other words,” Shaya explained, “LCB specifically requested Am[E]x Bank in New York to carry out all these dollar wire transfers, and Am[E]x Bank processed all these dollar wire transfers by and through its New York branch.” App. 127. Shaya further stated that AmEx knew that it was executing wire transfers on behalf of Shahid. App. 128. In the sole statement not based on his review of Israel‘s documents related to the funds Hezbollah allegedly transferred through LCB and its correspondent bank, Shaya declared that, based on his experience in counterterrorism and familiarity with Hezbollah‘s operations, he had “no doubt that the millions of dollars of wire transfers carried out by Am[E]x Bank and LCB for [Hezbollah]” significantly enhanced Hezbollah‘s “ability to plan and carry out ... the rocket attacks” that injured Plaintiffs. App. 128.
III. U.S. Government Actions Against LCB
The U.S. government has taken two actions that reinforce many of Plaintiffs’ allegations against LCB. First, in October 2012, the U.S. government initiated a civil forfeiture action against LCB properties. App. 323-95. In its complaint, the government asserted that there is “reason to believe that LCB has been routinely used by drug traffickers and money launderers,” including at least one “who provides financial support to [Hezbollah].” App. 328.8 It also asserted “that there was reason to believe that LCB managers are complicit in the network‘s money laundering activities.” App. 328. The government alleged that between approximately January 2007 and 2011, “at least $329 million was transferred by wire from accounts held in Lebanon at LCB [and various other banks] to the United States through their correspondent bank accounts with U.S. financial institutions located in the Southern District of New York and elsewhere.” App. 329.
IV. Procedural History
Because our previous opinions recite much of the procedural history in this case, Licci IV, 732 F.3d at 165-67; Licci II, 673 F.3d at 55-59, we provide a truncated version of events here. In July 2008, Plaintiffs initiated this action against LCB and AmEx in state court; the action was removed to federal court soon thereafter. Licci II, 673 F.3d at 57. In January 2009, Plaintiffs filed the amended complaint that is at issue on this appeal. See id. Plaintiffs brought five claims against LCB: (1) commission of international terrorism in violation of the Anti-Terrorism Act,
A. Licci I
On March 31, 2010, the District Court granted LCB‘s motion to dismiss for lack of personal jurisdiction. Licci v. Am. Express Bank Ltd., 704 F.Supp.2d 403, 408 (S.D.N.Y. 2010) (“Licci I“). The District Court correctly noted that a defendant may be subject to personal jurisdiction in New York under N.Y. C.P.L.R. § 302(a)(1) if (1) the defendant “transacted business within the state; and (2) the claim asserted ... arise[s] from that business activity,” id. at 406 (internal quotation marks omitted), but determined that the allegations in the amended complaint were insufficient to satisfy either prong, id. at 406-08.
Although Licci I‘s Rule 12(b)(2) dismissal rested entirely on Plaintiffs’ failure to make a prima facie showing of long-arm jurisdiction under New York law, the District Court also offered its view—without further explanation—that “[t]he exercise of personal jurisdiction over LCB on the basis alleged by plaintiffs would not comport with constitutional principles of due process.” Id. at 408. The court did not reach LCB‘s alternative argument that the claims against it should be dismissed for failure to plead a cause of action under Rule 12(b)(6). See id.
In our initial consideration of Plaintiffs’ appeal, we found the scope and application of the long-arm statute‘s “transaction of business” and “arising from” tests to be uncertain. We determined that we could not “confidently say whether the New York Court of Appeals would conclude that the plaintiffs” have made a prima facie showing of jurisdiction under N.Y. C.P.L.R. § 302(a)(1). Licci II, 673 F.3d at 73. We therefore certified the following questions to the New York Court of Appeals:
(1) Does a foreign bank‘s maintenance of a correspondent bank account at a financial institution in New York, and use of that account to effect “dozens” of wire transfers on behalf of a foreign client, constitute a “transact[ion]” of business in New York within the meaning of N.Y. C.P.L.R. § 302(a)(1)?
(2) If so, do the plaintiffs’ claims under the Anti-Terrorism Act, the ATS, or for negligence or breach of statutory duty in violation of Israeli law, “aris[e] from” LCB‘s transaction of business in New York within the meaning of N.Y. C.P.L.R. § 302(a)(1)?
Id. at 74-75 (alterations in original).
In the time between Licci I and Licci II, our Circuit decided Kiobel I, in which we held that the ATS does not provide subject matter jurisdiction for civil actions against corporations for violations of customary international law. Kiobel I, 621 F.3d at 145; see Licci II, 673 F.3d at 73. In Licci II, we predicted that should the Supreme Court affirm Kiobel I, and hold that ATS does not allow for corporate liability, “we will likely be required to affirm the dismissal of the ATS claims.” Licci II, 673 F.3d at 73. Accordingly, we decided to “await” the decision of the Supreme Court “as to the ATS claims against LCB,” in addition to the New York Court of Appeals’ response to our certified questions. Id.
C. Licci III
On March 29, 2012, the New York Court of Appeals accepted the certified questions. Licci v. Lebanese Canadian Bank, SAL, 18 N.Y.3d 952, 944 N.Y.S.2d 472, 967 N.E.2d 697 (2012). The Court answered the certified questions in the affirmative. Licci III, 20 N.Y.3d at 341, 960 N.Y.S.2d 695, 984 N.E.2d 893.
D. Licci IV
Following the guidance from the New York Court of Appeals, we held that (1) Plaintiffs made a prima facie showing that the District Court had personal jurisdiction over LCB, Licci IV, 732 F.3d at 168-69, and (2) subjecting LCB, as a foreign bank, “to personal jurisdiction in New York comports with due process protections provided by the United States Constitution,” id. at 165; see also 169-74. Accordingly, we vacated and remanded the portion of the District Court‘s judgment in Licci I dismissing claims against defendant LCB for lack of personal jurisdiction. Id. at 174.
In Licci IV, we did not reach the question of whether the ATS provides subject matter jurisdiction over this case. We noted that while the Supreme Court did in fact affirm Kiobel I on appeal, it did so on different grounds than those upon which we decided Kiobel I. Id. (citing Kiobel II, 133 S.Ct. at 1669 (deciding that the presumption against extraterritoriality constrains federal courts from hearing causes of action under the ATS “seeking relief for violations of the law of nations occurring outside the United States“)).9 We decided,
E. Licci V
On remand, the District Court dismissed Plaintiffs’ case once more. In relevant part, the District Court held that it lacked subject matter jurisdiction over Plaintiffs’ ATS claims under Kiobel II. Specifically, the court held that Plaintiffs failed to rebut the presumption against the extraterritorial application of the ATS because their complaint‘s allegations regarding LCB‘s provision of banking services failed to state a claim for aiding and abetting another‘s violation of the law of nations. The court concluded that Plaintiffs failed to allege adequately that LCB had the required mens rea for aiding and abetting liability, reasoning that the complaint lacked sufficiently detailed allegations as to LCB‘s intent. Plaintiffs timely appealed.
DISCUSSION
We review de novo a district court‘s dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all well-pleaded factual allegations in the complaint as true and drawing all inferences in favor of the plaintiffs. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); City of Pontiac Policemen‘s & Firemen‘s Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir. 2014). Although courts are generally limited to examining the sufficiency of the pleadings on a motion to dismiss, on a challenge to a district court‘s subject matter jurisdiction, the court may also resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings. Flores v. S. Peru Copper Corp., 414 F.3d 233, 255 n.30 (2d Cir. 2003) (consulting evidence outside the pleadings to resolve disputed jurisdictional fact issues); see also Cargill Intl S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993) (“In resolving the jurisdictional dispute, the district court must review the pleadings and any evidence before it, such as affidavits.“).
I. The Alien Tort Statute
In full, the ATS states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
In its history, the Supreme Court has decided two cases directly addressing
The Plaintiffs here—Israeli and Canadian citizens—assert a civil tort action, and thus satisfy the first clause of the ATS. In determining whether the tort was “committed in violation of the law of nations or a treaty of the United States,” we look to Supreme Court and Second Circuit precedent, mindful that there are “numerous jurisdictional predicates, all of which must be met before a court may properly assume jurisdiction over an ATS claim.” Mastafa v. Chevron Corp., 770 F.3d 170, 179 (2d Cir. 2014). These include, “but may not be limited to,” id. the following:
(1) [T]he complaint pleads a violation of the law of nations, see Sosa, 542 U.S. at 732, 124 S.Ct. 2739; Kadic v. Karadžić, 70 F.3d 232, 238 (2d Cir. 1995);
(2) [T]he presumption against the extraterritorial application of the ATS, announced by the Supreme Court in Kiobel [II] does not bar the claim;
(3) [C]ustomary international law recognizes liability for the defendant, see Kiobel [I], 621 F.3d at 145; and
(4) [T]he theory of liability alleged by plaintiffs (i.e., aiding and abetting, conspiracy) is recognized by customary international law, see Khulumani v. Barclay National Bank Ltd., 504 F.3d 254, 264 (2d Cir. 2007) (Katzmann, J., concurring).
Id. (citation omitted).
The District Court found that the complaint failed to rebut the presumption against extraterritoriality. On appeal, the parties focus on that inquiry, as well as whether customary international law recognizes liability for LCB in its capacity as a corporation. See Appellants Br. 18-40; Appellees Br. 36-48. Nevertheless, we consider all four inquiries, as each “requires an affirmative determination before a court properly has jurisdiction over an ATS claim.” Mastafa, 770 F.3d at 179. As set forth below, we conclude that Plaintiffs have satisfied all of the jurisdictional predicates but one. Because this Circuit has ruled that customary international law does not recognize liability for corporations, see Kiobel I, 621 F.3d at 145, we must conclude that the District Court does not have jurisdiction over Plaintiffs’ ATS claims against LCB, a corporation.
II. Pleading a Violation of the Law of Nations
The ATS confers jurisdiction over only two varieties of torts: (1) violations of treaties ratified by the United States and (2) violations of the law of nations, i.e., customary international law.
Plaintiffs assert that Hezbollah‘s actions, including “its attempts to physically exterminate or expel the Jewish residents of Israel and its intentional and systematic use of violence against civilians, constitute genocide, crimes against humanity[,] and war crimes under customary international law, and therefore constitute violations of ‘the law of nations’ within the meaning of [the ATS].” App. 110. They allege that LCB‘s actions “constitute[] aiding and abetting [Hezbollah‘s] acts of genocide, crimes against humanity[,] and war crimes.” App. 111.
Genocide, crimes against humanity, and war crimes certainly constitute violations of the law of nations under customary international law. See Kadic, 70 F.3d at 236 (observing that a defendant “may be found liable for genocide, war crimes, and crimes against humanity” under the ATS); Sosa, 542 U.S. at 762, 124 S.Ct. 2739 (Breyer, J., concurring in part and concurring in judgment) (describing a “subset” of “universally condemned behavior” for which “universal jurisdiction exists,” including “torture, genocide, crimes against humanity, and war crimes“). Plaintiffs have alleged systematic rocket attacks against the Jewish civilian population in Israel, committed with the intent to exterminate or expel them from the territory. These allegations adequately plead acts of genocide and crimes against humanity. Therefore, Plaintiffs have satisfied their burden to assert a cause of action grounded in actions recognized as violations of the law of nations. See Mastafa, 770 F.3d at 181 (finding that “plaintiffs have satisfied their burden of asserting some causes of actions grounded in actions recognized as violations of customary international law” where they asserted that the principal committed genocide, war crimes, and crimes against humanity).
III. Theory of Liability
Plaintiffs assert that the “actions of defendant LCB ... constituted aiding and abetting [Hezbollah‘s] acts of genocide, crimes against humanity[,] and war crimes under the law of nations.” App. 111 (emphasis added). Aiding and abetting is a theory of liability recognized by customary international law. Khulumani, 504 F.3d at 260 (Opinion of the Court); see id. at 270 (Katzmann, J., concurring); see also Mastafa, 770 F.3d at 181 (recognizing that, in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the ATS). Accordingly, Plaintiffs have pleaded a theory of liability over which we have subject matter jurisdiction.
IV. Displacing the Presumption against Extraterritoriality
The presumption against extraterritoriality provides that “when a statute
In Kiobel II, the Supreme Court held that the presumption against extraterritoriality constrains courts exercising their power under the ATS. Id. at 1664-65. Kiobel II‘s extension of the presumption against extraterritoriality to the ATS in its capacity as a “strictly jurisdictional” statute was principally based on foreign policy considerations. Id. at 1664 (quoting Sosa, 542 U.S. at 713, 124 S.Ct. 2739). The Court observed that the “danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do.” Id. It underscored, therefore, “the need for judicial caution in considering which claims could be brought under the ATS, in light of foreign policy concerns.” Id. The Court was careful, however, to provide that a plaintiff could “displace” the presumption:
[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.
Id. at 1669 (citation omitted).
To determine whether Plaintiffs have displaced the presumption against extraterritoriality, we first consider the threshold inquiry of whether the presumption is “self-evidently dispositive” or whether “its application requires further analysis.” Morrison v. Nat‘l Australia Bank Ltd., 561 U.S. 247, 266, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010); see also Mastafa, 770 F.3d at 182. That is, when a complaint alleges no contact “between the injuries alleged and the territory of the United States,” the presumption against extraterritoriality is not displaced and the inquiry, in all likelihood, ends there. Mastafa, 770 F.3d at 182-83; Balintulo v. Daimler AG, 727 F.3d 174, 189 (2d Cir. 2013) (holding plaintiffs’ claims did not rebut the presumption against extraterritoriality set forth in Kiobel II “because the plaintiffs have failed to allege that any relevant conduct occurred in the United States” (emphasis added)).
The Kiobel complaint, which contained no averment of contact between the conduct alleged and U.S. territory, was self-evidently dispositive. See Kiobel II, 133 S.Ct. at 1669. The Kiobel plaintiffs were Nigerian nationals alleging that certain Dutch, British, and Nigerian corporations aided and abetted Nigerian military and police forces in “attack[ing] [plaintiffs‘] villages, beating, raping, killing, and arresting residents and destroying or looting property” by “among other things, providing the Nigerian forces with food, transportation, and compensation, as well as by allowing the Nigerian military to use respondents’ property as a staging ground for attacks.” Id. at 1662-63. The Supreme Court held that because “all the relevant conduct took place outside the United States,” the plaintiffs’ claims did not displace the presumption against extraterritorial application. Id. at 1669.
Kiobel is not this case. Unlike the Kiobel plaintiffs, who only alleged extraterritorial conduct, Plaintiffs allege, inter alia, that LCB used its correspondent banking account in New York to facilitate dozens of international wire transfers for the
In isolating the relevant conduct of the defendant, a court must evaluate the “territorial events” or “relationships” that were the “focus” of the ATS. Id. at 184 (alterations omitted) (quoting Morrison, 561 U.S. at 266, 130 S.Ct. 2869). Then, in “determining whether this conduct displaces the presumption, the district court must engage in a two-step jurisdictional analysis of this conduct.” Id. Step one is a determination of whether the relevant conduct—i.e., conduct aiding and abetting a violation of the law of nations—“sufficiently ‘touches and concerns’ the territory of the United States so as to displace the presumption against extraterritoriality.” Id. at 186 (quoting Kiobel II, 133 S.Ct. at 1669). Step two is a determination of whether “the same conduct, upon preliminary examination, states a claim for a violation of the law of nations or aiding and abetting another‘s violation of the law of nations.” Id. at 187.
Applying this framework, the District Court appears to have found that step one was satisfied; it dismissed the complaint on its conclusion that Plaintiffs failed to meet the requirements of step two. Special App. 9-10. On appeal, the parties dispute whether either step is met. See Appellants Br. 21-23; Appellee Br. 37-39. We consider each in turn.
A. Conduct that Touches and Concerns the United States
The “relevant conduct” in the complaint is LCB‘s provision of wire transfers between Hezbollah accounts through its correspondent bank in New York. Specifically, Plaintiffs allege (1) LCB “provided extensive banking services to [Hezbollah]” that “caused, enabled[,] and facilitated the terrorist rocket attacks in which the plaintiffs and their decedents were harmed and killed” and (2) those banking services “were carried out by LCB in and through the State of New York.” App. 58 (emphasis added). Plaintiffs further allege that “between 2004 and July 12, 2006 (and subsequently), [Hezbollah] made and received dozens of dollar wire transfers ... totaling several million dollars,” and that “[a]ll” of those wire transfers “were made to, from, and/or between” Hezbollah‘s bank accounts at various LCB branches through AmEx in New York. App. 66. Plaintiffs allege that LCB worked “in concert with” AmEx to carry out the wire transfers, and that AmEx acted “on behalf of” LCB in carrying out the transfers. App. 66. Plaintiffs offer additional allegations that the New York State Banking Department investigated LCB‘s correspondent bank in New York when the wire transfers took place, and that the bank violated various terrorist financing and money laundering laws in carrying out the transfers. App. 104–05.
We have previously concluded that a claim similar to the Plaintiffs’ sufficiently touched and concerned the United States to displace the presumption against extraterritorial application. Specifically, in Mastafa, we considered an ATS claim brought by five Iraqi nationals against an oil company and a French bank. See
Three of the four allegations in the Mastafa plaintiffs’ complaint came up short. The allegations were insufficient to satisfy the touch and concern inquiry because they were either (1) too tangential to the conduct alleged to aid and abet a violation of the law of nations or (2) inadequately pleaded. See id. at 189-90. First, we determined that “the fact that the United Nations is located in New York, and that the OFP‘s inception and administration occurred in New York, [was] irrelevant” to the touch and concern inquiry, as “[s]uch allegations, by themselves, are not facts related to defendants at all, let alone alleged conduct taken by defendants to aid and abet violations of the law of nations.” Id. at 190. Second, we considered the fact that the oil company is headquartered in the United States to be “immaterial” because “the relevant inquiry is on conduct constituting a violation of customary international law or of aiding and abetting such violations, not on where defendants are present.” Id. Third, we rejected the plaintiffs’ allegation that because the defendant oil company is headquartered in the United States, “its profits reaped from the transactions were recouped in the United States” as a mere conclusory statement that “d[id] not satisfy basic pleading requirements.” Id. (internal quotation marks omitted).
However, we found that the Mastafa plaintiffs’ fourth allegation—that the French bank “entered into a Banking Agreement with the United Nations in New York pursuant to which it maintained an escrow account in New York City through which all OFP funds moved, including the illicit surcharge payments“—sufficiently touched and concerned the United States to surpass the first step of displacing the presumption against extraterritoriality. Id. at 190-91. Specifically, the Mastafa plaintiffs alleged that both the bank and the oil company made “U.S.-based attempts to skirt the sanctions regime.” Id. at 190. As to the bank, plaintiffs alleged that it “maintained [an] escrow account in New York City through which all [relevant] payments were transmitted.” Id. (internal quotation marks omitted). The plaintiffs alleged that the bank “allowed payments” through the New York City account that included kickbacks to the Saddam Hussein regime, and that the bank‘s financing arrangements “allowed the oil purchasers to conceal the true nature of the oil purchase.” Id. (internal quotation mark omitted). As to the oil company, plaintiffs alleged, inter alia, that it facilitated surcharge payments to the Hussein regime as part of particular transac-
Like the Mastafa plaintiffs’ allegations against the French bank, Plaintiffs here assert that LCB, a Lebanese Bank, used a correspondent banking account at a New York bank to facilitate wire transfers between Hezbollah‘s bank accounts in the months leading up to the rocket attacks. Plaintiffs specifically allege that LCB carried out the specific “banking services which harmed the plaintiffs and their decedents ... in and through the State of New York.” App. 58 (emphasis added). Plaintiffs here have alleged that LCB engaged in “numerous New York-based payments and ‘financing arrangements’ conducted exclusively through a New York bank account.” See Mastafa, 770 F.3d at 191. As in Mastafa, we find these allegations to be both specific and domestic. See id. Plaintiffs’ allegations “touch and concern” the United States with sufficient force to displace the presumption, so long as such conduct also meets the second prong of our extraterritoriality analysis.12
B. States a Claim for Violation of the Law of Nations
To displace the presumption against extraterritoriality, the conduct “which the court has determined sufficiently ‘touches and concerns’ the United States” must also, upon preliminary examination, state a claim for a violation of the law of nations or aiding and abetting another‘s violation of the law of nations. Mastafa, 770 F.3d at 186-87. “This second step of the extraterritoriality analysis ensures ... that ‘the statute‘s jurisdictional reach will match the statute‘s underlying substantive grasp.‘” Id. at 186 (alteration omitted) (quoting Kiobel II, 133 S.Ct. at 1673 (Breyer, J., concurring in the judgment)). A defendant may be held liable under an aiding and abetting theory of liability under international law if the defendant “(1) provide[d] practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) d[id] so with the purpose of facilitating the commission of that crime.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009) (quoting Khulumani, 504 F.3d at 277 (Katzmann, J., concurring)). As to the latter requirement, we have underscored that the mens rea standard for accessorial liability in ATS actions is “purpose rather than knowledge alone.” Id.
The District Court here did not address whether Plaintiffs adequately alleged that LCB provided practical assistance to Hezbollah that had a substantial effect on the perpetration of the crime. It
The relevant conduct alleged here—i.e., LCB‘s alleged act of carrying out wire transfer services on Hezbollah‘s behalf through the state of New York, see App. 58, 65-66—satisfies a preliminary determination that such conduct provided practical assistance to Hezbollah that substantially affected Hezbollah‘s perpetration of the underlying violations of the law of nations. Plaintiffs adequately allege that these wire transfer services had a substantial effect on Hezbollah‘s actions insofar as they “enabled” and “facilitated” terrorist rocket attacks harming or killing Plaintiffs and their decedents. App. 54. Plaintiffs further allege that LCB‘s wire transfers “substantially increased and facilitated [Hezbollah‘s] ability to plan, to prepare for[,] and to carry out rocket attacks on civilians,” including the rocket attacks injuring or killing Plaintiffs and their family members. App. 86. In addition, Plaintiffs particularly allege that “[Hezbollah] planned, made the preparations necessary for and carried out” the rocket attacks by “utilizing funds” received as part of the wire transfers. Id. Plaintiffs’ allegations are bolstered by evidence in the record that LCB‘s wire transfers “significantly enhanced [Hezbollah‘s] ability to plan and carry out terrorist and other violent actions, including the rocket attacks in which [Plaintiffs] were harmed.” App. 128.
LCB does not dispute whether Plaintiffs have adequately shown that it provided practical assistance to Hezbollah that has had a substantial effect on the perpetration of the underlying crimes. Rather, it argues only that the District Court correctly held that Plaintiffs have failed to meet the required mens rea for accessorial liability. We disagree. Plaintiffs’ complaint, considered in conjunction with the Shaya declaration and the government‘s actions against LCB, satisfies our preliminary review of the mens rea requirement for aiding and abetting violations of the law of nations. See Presbyterian Church, 582 F.3d at 259. In essence, Plaintiffs allege that (1) LCB acted intentionally, and pursuant to its official policy, in assisting Hezbollah in carrying out the rocket attacks by carrying out the wire transfers, and (2) LCB knew that the bank accounts between which it facilitated transfers were owned and controlled by Shahid, an integral part of Hezbollah.
As an initial matter, Plaintiffs allege that “as a matter of official LCB policy” LCB “continuously supports and supported [Hezbollah] and its anti-Israel program, goals[,] and activities.” App. 88. They also allege that LCB had “actual knowledge” that (1) “[Hezbollah] is a violent terrorist organization [that] carried out numerous terrorist attacks against Israeli civilians and American targets and which planned and intended to carry out additional such terrorist attacks,” App. 88-89; (2) “Shahid is an integral part of [Hezbollah] and constitutes part of [Hezbollah‘s] financial arm,” App. 90; (3) Hezbollah‘s bank ac-
As set forth above, in determining this disputed jurisdictional fact, we may also consider evidence in the record outside the pleadings. See Flores, 414 F.3d at 255 n.30. The Shaya declaration provides context to Plaintiffs’ allegations that LCB aided and abetted Hezbollah‘s alleged violations of the law of nations. Specifically, the Shaya declaration states that between “2004 and July 12, 2006 (and later),” Hezbollah “made dozens of dollar wire transfers in and out of” a specific account number at LCB‘s headquarters. App. 127. Shaya stated that LCB requested that its correspondent bank in New York carry out the wire transfers and identified Shahid as the account-holder, and thus “there is no question” that AmEx Bank knew that it was executing wire transfers on behalf of Shahid. App. 127-28. In addition, the government forfeiture action against LCB lends support to Plaintiffs’ allegations. See App. 323-95. Specifically, the government alleged that LCB engaged in activity “intended to conceal and disguise the true source, nature, ownership, and control of” proceeds of illegal activities in a scheme that “benefitted [Hezbollah].” App. 358.
We conclude that Plaintiffs’ complaint alleges conduct by LCB that touched and concerned the United States, and that the same conduct, upon preliminary examination, states a claim for aiding and abetting Hezbollah‘s violation of the law of nations, with sufficient force to displace the presumption against extraterritoriality. Accordingly, Plaintiffs have surpassed the jurisdictional hurdle set forth in Kiobel II, 133 S.Ct. at 1669.
V. Corporate Liability
Nevertheless, Kiobel I forecloses Plaintiffs’ claims against LCB. In Kiobel I, we established that the law of nations, while imposing civil liability on individuals for torts that qualify under the ATS, immunizes corporations from liability. Kiobel I, 621 F.3d at 120. Specifically, Kiobel I held that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS.” Id. Neither party disputes that LCB is a corporation. Accordingly, we cannot exercise subject matter jurisdiction over Plaintiffs’ ATS claims pursuant to that statute.
To the extent Plaintiffs submit that Kiobel I was wrongly decided, we reaffirm Arab Bank‘s conclusion—we are not free to consider that argument. In re Arab Bank, 808 F.3d at 157. “[I]t is axiomatic that a panel of this court is bound by the
CONCLUSION
For the foregoing reasons, we AFFIRM IN PART14 the judgment of the District Court.