Case Information

‐ Licci et al. Lebanese Canadian Bank, SAL

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________ August Term (Argued: April Decided: August 2016) Docket No.

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YAAKOV LICCI, 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, minor, by his father natural guardian Fuad Shchiv Ghanam by his mother natural guardian Suha Shchiv Ghanam,

FUAD SHCHIV GHANAM, individually, SUHA SHCHIV GHANAM, individually, MA ʹ AYAN ARDSTEIN, minor, by

her father natural guardian, Brian Ardstein, by her mother natural guardian, Keren Ardstein, NOA ARDSTEIN, minor, her father natural guardian, Brian Ardstein, her mother natural guardian, Keren Ardstein, NETIYA

YESHUA ARDSTEIN, a minor, by her father and natural guardian, Brian Ardstein, and by her mother and natural guardian, Keren Ardstein, ARIEL CHAIM ARDSTEIN, a minor, by her father and natural guardian, Brian Ardstein, and by her

mother and natural guardian Keren Ardstein, BRIAN ARDSTEIN, individually, KEREN ARDSTEIN, individually, MARGALIT RAPPEPORT, a minor, by her mother and natural

guardian, Laurie Rappeport, LAURIE RAPPEPORT, individually, ORNA MOR, YAIR MOR, MICHAEL FUCHS, ESQ., MUSHKA KAPLAN, a minor, by her father and natural

guardian Chaim Kaplan, and by her mother and natural guardian Rivka Kaplan, ARYE LEIB KAPLAN, a minor, by his father and natural guardian Chaim Kaplan, and by his mother and natural guardian Rivka Kaplan, MENACHEM KAPLAN, minor, by his father natural guardian Chaim Kaplan, and by

his mother natural guardian Rivka Kaplan, CHANA KAPLAN, minor, by her father natural guardian Chaim Kaplan, by her mother natural guardian Rivka Kaplan,

EFRAIM LEIB KAPLAN, minor, his father natural guardian Chaim Kaplan his mother natural guardian

Rivka Kaplan, CHAIM KAPLAN, individually, RIVKA KAPLAN, individually, ROCHELLE SHALMONI, OZ SHALMONI, DAVID OCHAYON, YAAKOV MAIMON, MIMI

BITON, MIRIAM JUMA ʹ A, as personal representative estate Fadya Juma ʹ a, MIRIAM JUMA ʹ A, individually, SALAH

JUMA ʹ A, as personal representative estate Samira Juma ʹ a, SALAH JUMA ʹ A, individually, SAID JUMA ʹ A, individually, ABD EL ‐ RAHMAN JUMA ʹ A, as personal representative estate Samira Juma ʹ a, ABD EL ‐ RAHMAN JUMA ʹ A, individually, RAHMA ABU SHAHIN, ABDEL GAHNI, personal representative estate Soltana Juma ʹ individually, SHADI SALMAN AZZAM, personal representative estate Manal Camal Azam, *3 KANAR SHA ʹ ADI AZZAM, a minor, by his father and natural guardian, Shadi Salman Azzam, ADEN SHA ʹ ADI AZZAM, a minor, by his father and natural guardian, Shadi Salman Azzam,

SHADI SALMAN AZZAM, individually, ADINA MACHASSAN DAGESH, ARKADY SPEKTOR, YORI ZOVREV, MAURINE GREENBERG, JACOB KATZMACHER, DEBORAH CHANA KATZMACHER, CHAYA KATZMACHER, MIKIMI STEINBERG, JARED SAUTER, DANIELLE SAUTER, YAAKOV ABUTBUL, ABRAHAM NATHAN MOR, a minor, by his father and natural guardian, Zion Mor, and by his mother and natural guardian, Revital Mor, BAT ZION MOR, minor, by her father and natural guardian, Zion Mor, and by her mother and natural

guardian, Revital Mor, MICHAL MOR, minor, by her father natural guardian, Zion Mor, by her mother natural guardian, Revital Mor, ODED CHANA MOR, minor, by her father natural guardian, Zion Mor, by her mother

natural guardian, Revital Mor, ZION MOR, individually, REVITAL MOR, individually, ADHAM MAHANE TARRABASHI, JIHAN KAMUD ASLAN, ZOHARA LOUIE SA’AD, IYAH ZAID GANAM, minor, his father natural

guardian Ziad Shchiv Ghanam, his mother natural guardian Gourov Tisir Ghanam, ZIAD SHCHIV GHANAM, individually, GOUROV TISIR GHANAM, individually, THEODORE GREENBERG, EMILLA SALMAN ASLAN, ‐ Appellants,

LEBANESE CANADIAN BANK, SAL,

Defendant Appellee

AMERICAN EXPRESS BANK, LTD.,

Defendant

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Before:

SACK, WESLEY, LYNCH, Circuit Judges .

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Plaintiffs ‐ Appellants (“Plaintiffs”) foreign civilians residing Israel who were injured whose family members killed a series Hezbollah rocket attacks Israel. brought suit Alien Tort Statute against Defendant Appellee Lebanese Canadian Bank, SAL (the “bank”), alleging bank facilitated terrorist rocket attacks using correspondent banking account New York bank effectuate totaling several million dollars on behalf Hezbollah. States District Southern District York (Daniels, J. ), granted motion dismiss favor bank based presumption extraterritorial application Alien Tort Statute, see Kiobel v. Royal Dutch Petroleum Co. S. Ct. (“ Kiobel II ”). Though we conclude displaced presumption extraterritoriality, see Kiobel S. Ct. we conclude customary international does recognize liability bank, corporation, Royal Dutch Petroleum Co. (2d Cir. 2010). Accordingly, AFFIRM IN PART District Court’s dismissal.

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MEIR KATZ (Robert J. Tolchin, on brief ), Berkman Law Office, LLC, Brooklyn, NY, for ‐ Appellants

JONATHAN D. SIEGFRIED (Douglas W. Mateyaschuk & Peter J. Couto, on brief ), DLA Piper LLP (US), York, NY, Defendant ‐ Appellee.

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WESLEY, Circuit Judge :

In July August Hezbollah carried out series terrorist rocket attacks civilians Israel. Several dozen States, Israeli, Canadian civilians seek hold Defendant Appellee Lebanese Canadian Bank, SAL (“LCB”), Lebanese bank headquartered Beirut, liable providing international financial services Hezbollah they claim facilitated Hezbollah’s attacks injured them killed family members. These civilians assert claims under Anti–Terrorism Act Israeli tort law. addition, some Israeli Canadian plaintiffs (collectively, “Plaintiffs”) assert claims Alien Tort Statute, U.S.C. § (the “ATS”)—these claims subject present opinion. *6 This case new our Court. In fact, appeal is third appearance before us last five years. our prior opinions, we determined (with assist from New York Court Appeals, Licci v. Lebanese Canadian Bank, SAL , 20 N.Y.3d 327, 339 (2012) (“ Licci III ”)) District Court had personal jurisdiction over defendant LCB, subjecting foreign bank personal jurisdiction York comports with due process protections provided States Constitution. Licci ex rel. Licci v. Lebanese Canadian Bank, SAL , F.3d 161, 165 (2d Cir. 2013) (“ Licci IV ”); Licci v. Lebanese Canadian Bank, SAL 73–74 (2d Cir. 2012) (“ Licci II ”). This case presents different question: Whether District Court has subject matter jurisdiction over ATS claims. District dismissed ATS claims Kiobel v. Royal Dutch Petroleum Co. S. Ct. (“ Kiobel ”), reasoning failed displace presumption extraterritorial application ATS. Though we disagree District Court’s basis dismissal, we affirm because ATS claims seek impose corporate liability contravention our decision Kiobel Royal Dutch Petroleum Co. (2d Cir. 2010) (“ I ”).

use term “Plaintiffs” refer only those Israeli Canadian Appellants bringing Alien Tort Statute claims LCB. *7 BACKGROUND ^[3] I. Plaintiffs’ Complaint

According to Plaintiffs’ complaint, Hezbollah, ^[4] terrorist organization, fired thousands rockets into northern Israel between July 12, 2006 August 14, 2006. App. 58, 66. Plaintiffs or their family members were injured or killed these attacks. See App. 54.

LCB is Lebanese bank with no branches, offices, or employees States. Licci IV , 732 F.3d at 165; Licci II , 673 F.3d at To effectuate U.S. ‐ dollar ‐ denominated transactions, LCB maintained correspondent bank account with defendant American Express Bank Ltd. (“AmEx”) York. ^[5] Licci IV , 732 F.3d at 165; Licci II , 673 F.3d at allege LCB used this account conduct dozens international wire behalf Shahid (Martyrs) Foundation (“Shahid”), an entity maintained bank accounts allege be “integral part” Hezbollah “part [its] financial arm.” App. 65; see also id. (alleging Shahid ‐ titled bank accounts “belonged [Hezbollah] control [Hezbollah]”). These transfers, totaled several million dollars, “substantially increased facilitated [Hezbollah’s] ability *8 plan, prepare for[,] and to carry out” rocket attacks that injured Plaintiffs. App. 66, 86. Plaintiffs further allege that LCB carried out wire transfer services from until rocket attacks began on July 12, 2006, and “subsequently” continued carry out those transfers. App. 66.

As relevant here, contend that LCB’s role in conducting those wire transfers on Shahid’s behalf amounted aiding and abetting genocide, war crimes, and crimes humanity in violation international law, and actionable Alien Tort Statute. App. 110. They allege that LCB had “actual knowledge” that Hezbollah was violent terrorist organization, as reflected on official U.S. government lists, that Shahid was “part [Hezbollah’s] financial arm.” App. 88– They assert bank accounts held by LCB “were owned controlled [Hezbollah],” wire transfers carried out bank “by direction [Hezbollah].” App. According complaint, LCB carried out various wire transfer services between Hezbollah accounts “via Am[E]x Bank New York,” all issue “were carried out through State York.” 66; App. contend, moreover, knew Hezbollah required “transfer services order operate *9 order to plan, to prepare for[,] and to carry out terrorist attacks.” App. 89. They similarly allege LCB knew 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 U.S. sanction regime “is and intended prevent [Hezbollah] from conducting banking activities, including wire transfers, and thereby limit its ability operate and carry out terrorist attacks.” App. 89. Plaintiffs allege LCB, equipped knowledge, “as matter official LCB policy,” “continuously supports and supported [Hezbollah] and its anti ‐ Israel program, goals[,] and activities.” App. 88. particular, Plaintiffs allege LCB carried out wire transfers issue “with specific purpose and intention enabling and assisting [Hezbollah] [in] carry[ing] out terrorist attacks against Jewish civilians in Israel,” App. “to assist advance [Hezbollah’s] goal using terrorism destroy State Israel.” App. 88.

II. Shaya Declaration submitted expert declaration from former

Israeli intelligence officer Uzi Shaya (the “Shaya declaration”) in support allegations set forth in their complaint. App. 125– Shaya has served various roles Israeli intelligence *10 services since 1984. App. 125. From to 2008, Shaya served as Deputy Chief of Israeli National Security Council’s Interagency Unit for Combating Terrorist Financing and Financing State Sponsors Terrorism. App. 126. After Shaya maintained working relationship with Israel’s National Security Council, providing assistance counterterrorism staff on matters he dealt with as Deputy Chief. App. 126. capacity, requested Shaya “examine documents possession State Israel relating fund[] transfers carried out [Hezbollah] via [AmEx and LCB].” App. 126. Shaya stated that, one exception identified below, “all” his testimony was “based upon [his] examination” these documents. App. 126.

Shaya stated “[f]or many years,” “including period between and July 2006,” Hezbollah “maintained bank accounts various LCB branches,” some accounts Hezbollah maintained “titled to” Shahid. App. He stated Shahid integral Hezbollah, “serves important component [Hezbollah’s] financial apparatus.” App. He further specified Hezbollah uses Shahid funds prepare carry out “a wide range terrorist other violent activities, including rocket missile attacks Israel.” App.

Shaya stated leading up following July attacks, Hezbollah made “dozens” wire transfers from one Shahid account LCB Lebanon, “total[ing] several million dollars,” executed transfers “through Am[E]x Bank New York, acted LCB’s correspondent bank these dollar transfers.” “In other words,” Shaya explained, “LCB specifically requested Am[E]x Bank York carry out all these dollar wire transfers, Am[E]x Bank processed all these dollar *11 through its York branch.” App. 127. Shaya further stated that AmEx knew that was executing wire transfers on behalf Shahid. App. 128. In sole statement based on his review Israel’s documents related to funds Hezbollah allegedly transferred through LCB and its correspondent bank, Shaya declared that, based his experience in counterterrorism familiarity Hezbollah’s operations, he had “no doubt millions dollars carried out by Am[E]x Bank LCB for [Hezbollah]” significantly enhanced Hezbollah’s “ability to plan carry out . . . rocket attacks” injured Plaintiffs. App.

III. U.S. Government Actions Against LCB

The U.S. government has taken two actions reinforce many allegations against LCB. First, in October U.S. government initiated civil forfeiture action LCB properties. App. its complaint, government asserted there “reason to believe LCB has been routinely used by drug traffickers money launderers,” including least one “who provides financial support to [Hezbollah].” App. It asserted “that there reason to believe LCB managers complicit *12 network’s money laundering activities.” App. 328. government alleged that between approximately January 2011, “at least $329 million transferred from accounts held Lebanon LCB [and various other banks] States through their correspondent bank accounts with U.S. financial institutions located Southern District York elsewhere.” App.

Second, note U.S. Department Treasury (“Treasury”) has designated LCB as “a financial institution primary money laundering concern.” Finding That Lebanese Canadian Bank SAL Is Financial Institution Primary Money Laundering Concern, Fed. Reg. ‐ (Feb. 17, 2011). identifying LCB potential conduit money laundering, Treasury noted while LCB based Lebanon, it “maintains extensive correspondent accounts with banks worldwide, including several U.S. financial institutions.” Id. Treasury explained identified cause concern because government “has information through enforcement other sources indicating LCB—through management complicity, failure internal controls, lack application prudent banking standards—has been used extensively persons associated . . money laundering.” Id. Treasury also found Hezbollah—a U.S. government designated foreign terrorist organization—“derived financial support from criminal activities” network drug traffickers money launderers rely LCB, noting “LCB managers complicit network’s money laundering activities.” 9404–05; 327–28,

II. Procedural History

Because our previous opinions recite much procedural history case, Licci IV 165–67; Licci *13 II at 55–59, provide truncated version of events here. In July 2008, Plaintiffs initiated this action against LCB AmEx in state court; action removed to federal court soon thereafter. Licci January 2009, filed amended complaint issue on appeal. id. brought five claims LCB: (1) commission international terrorism in violation of Anti– Terrorism Act, U.S.C. § 2333; (2) aiding abetting international terrorism in violation Anti–Terrorism Act; (3) aiding abetting genocide, war crimes, crimes humanity violation international law, under ATS; (4) negligence violation Israeli Civil Wrongs Ordinance § 35; (5) breach statutory duty violation Israeli Civil Wrongs Ordinance § LCB moved dismiss all five claims for lack personal jurisdiction under Fed. R. Civ. P. 12(b)(2) failure state claim under Fed. R. Civ. P. 12(b)(6).

A. Licci I

On March 2010, District Court granted LCB’s motion dismiss lack personal jurisdiction. Licci Am. Express Bank Ltd. F. Supp. 2d (S.D.N.Y. 2010) (“ Licci I ”). District Court correctly noted defendant may subject personal jurisdiction New York under N.Y. C.P.L.R. § 302(a)(1) if (1) defendant “transacted business within state; claim asserted . . arise[s] from business activity,” id. (internal quotation marks omitted), but determined allegations amended complaint insufficient satisfy either prong, id.

Although Licci I ’s Rule 12(b)(2) dismissal rested entirely on failure make prima facie showing long arm jurisdiction York law, District offered view—without further explanation—that “[t]he exercise personal jurisdiction over basis alleged plaintiffs *14 would not comport constitutional principles of due process.” Id. at court did not reach LCB’s alternative argument claims should be dismissed for failure plead a cause of action under Rule 12(b)(6). id.

B. Licci II

In our initial consideration of appeal, we found scope application of long arm statute’s “transaction of business” “arising from” tests uncertain. We determined we could not “confidently say whether New York Court of Appeals would conclude plaintiffs” made a prima facie showing of jurisdiction under N.Y. C.P.L.R. § 302(a)(1). Licci II , F.3d at We therefore certified following questions New York of Appeals:

(1) Does foreign bank’s maintenance of a correspondent bank account financial institution in New York, use account effect “dozens” behalf foreign client, constitute “transact[ion]” business New York within meaning N.Y. C.P.L.R. § 302(a)(1)? If so, do plaintiffs’ claims Anti–

Terrorism Act, ATS, for negligence or breach statutory duty violation Israeli law, “aris[e] from” LCB’s transaction business York within meaning N.Y. C.P.L.R. § 302(a)(1)? 74–75 (alterations original). In time between Licci I Licci II , our Circuit decided Kiobel I , we held ATS does provide subject matter jurisdiction civil actions corporations violations customary international law. I 145; Licci Licci II predicted *15 should the Supreme Court affirm Kiobel I , hold ATS does not allow for corporate liability, “we will likely required affirm the dismissal of the ATS claims.” Licci II , 673 at Accordingly, we decided “await” the decision the Supreme Court “as the ATS claims against LCB,” addition the New York Court Appeals’ response our certified questions. Id.

C. Licci III

On March the New York Court Appeals accepted the certified questions. Licci Lebanese Canadian Bank , SAL , N.Y.3d (2012). Court answered certified questions affirmative. Licci III , N.Y.3d at

D. Licci IV

Following guidance from New York Court Appeals, we held (1) made prima facie showing District Court had personal jurisdiction over LCB, Licci IV 168–69, subjecting LCB, foreign bank, “to personal jurisdiction York comports due process protections provided States Constitution,” id. 165; Accordingly, we vacated remanded portion District Court’s judgment Licci I dismissing claims defendant lack personal jurisdiction. Id. Licci IV we did reach question whether

ATS provides subject matter jurisdiction over case. We noted while Supreme did fact affirm Kiobel I on appeal, did so different grounds than those upon decided I (citing Kiobel S. Ct. (deciding presumption extraterritoriality constrains federal courts from hearing causes action ATS “seeking relief violations nations occurring outside States”)). We decided, therefore, because Kiobel II “did not directly address the question corporate liability under the ATS,” because “the question subject matter jurisdiction not briefed appeal,” it was best the District Court “address issue first instance.”

E. Licci V

On remand, District Court dismissed Plaintiffs’ case once more. In relevant part, District held lacked subject matter jurisdiction over ATS claims Kiobel II Specifically, court held Plaintiffs failed rebut presumption extraterritorial application ATS because their complaint’s allegations regarding LCB’s provision banking services failed state claim for aiding abetting another’s violation nations. court concluded failed allege adequately had required mens rea for aiding abetting liability, reasoning complaint lacked sufficiently detailed allegations as LCB’s intent. timely appealed.

DISCUSSION

We review de novo district court’s dismissal for failure state claim pursuant Federal Rule Civil Procedure 12(b)(6), accepting all well ‐ pleaded factual allegations complaint as true drawing all inferences favor plaintiffs. Bell Atl. Corp. Twombly, U.S. 544, 555–56 *17 (2007); City Pontiac Policemen ʹ s & Firemen ʹ s Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir. 2014). Although courts generally limited to examining the sufficiency the pleadings a motion dismiss, on a challenge to a district court’s subject matter jurisdiction, the court may also resolve disputed jurisdictional fact issues reference evidence outside pleadings. Flores v. S. Peru Copper Corp ., 414 F.3d 233, 255 n.30 (2d Cir. 2003) (consulting evidence outside pleadings resolve disputed jurisdictional fact issues); Cargill Int ʹ l S.A. v. M/T Pavel Dybenko , 991 1012, 1019 (2d Cir. 1993) (“In resolving jurisdictional dispute, district court must review pleadings any evidence before it, such as affidavits.”).

I. The Alien Tort Statute

In full, ATS states: “The district courts shall original jurisdiction any civil action alien tort only, committed violation nations or treaty States.” 28 U.S.C. § Enacted as part Judiciary Act 1789, ATS received little no judicial attention until 1980, when Court decided Filártiga v. Peña Irala , 630 876 (2d Cir. 1980). years followed Filártiga witnessed dramatic increase ATS litigation, as ATS came viewed means help victims human rights violations. ^[10] history, Supreme has decided two cases directly addressing ATS: Sosa Alvarez–Machain, U.S. *18 692 (2004), Kiobel II ^[11] The Supreme Court clarified the ATS is a “jurisdictional” statute the sense it “address[es] power of courts entertain cases concerned with a certain subject.” Sosa, 542 U.S. Though “statute provides district courts jurisdiction hear certain claims, [it] does not expressly provide any causes of action.” , 133 S. Ct. The ATS’s grant of jurisdiction “best read having been enacted understanding common law would provide a cause action a modest number international law violations.” (alteration internal quotation marks omitted) (quoting Sosa , 542 U.S. 724). here—Israeli Canadian citizens—assert a civil tort action, thus satisfy first clause ATS. In determining whether tort “committed violation law nations treaty States,” look Supreme Court Second Circuit precedent, mindful there “numerous jurisdictional predicates, all must be met before court may properly assume jurisdiction over ATS claim.” Mastafa v. Chevron Corp. , 770 179 (2d Cir. 2014). These include, “but may not limited to,” id. following: [T]he complaint pleads violation

nations, Sosa, U.S. 732; Kadic v. Karadz ĭć (2d Cir. 1995); *19 (2) [T]he presumption against extraterritorial application ATS, announced by Supreme Court Kiobel [ ] does not bar claim; (3) [C]ustomary international law recognizes liability for defendant, see Kiobel [ I ] F.3d ; (4) [T]he theory liability alleged by plaintiffs ( i.e., aiding abetting, conspiracy) recognized customary international law, see Khulumani Barclay National Bank Ltd., F.3d (2d Cir. 2007) (Katzmann, J., concurring). (citation omitted).

The District Court found complaint failed rebut presumption extraterritoriality. On appeal, parties focus inquiry, as well as whether customary international law recognizes liability capacity corporation. Appellants Br. 18–40; Appellees Br. Nevertheless, we consider all four inquiries, each “requires an affirmative determination before court properly has jurisdiction over ATS claim.” Mastafa As set forth below, we conclude have satisfied all jurisdictional predicates but one. Because Circuit has ruled customary international does not recognize liability corporations, I must conclude District does jurisdiction over ATS claims LCB, corporation.

II. Pleading Violation Law Nations ATS confers jurisdiction over only two varieties torts: violations treaties ratified States violations of law of nations, i.e. , customary international law. 28 U.S.C. § 1350; see also Flores , 414 F.3d at 247. “There is no federal subject matter jurisdiction under [ATS] unless complaint adequately pleads a violation of law of nations (or treaty of States).” Kadic , 70 F.3d at 238; Mastafa , F 3d at “Because [ATS] requires plaintiffs plead a violation of law of nations jurisdictional threshold, statute requires a more searching review of merits establish jurisdiction than is required under more flexible ‘arising under’ formula of [28 U.S.C. §] 1331.” Kadic (other internal quotations marks omitted). Therefore, “it not sufficient basis for jurisdiction plead merely colorable violation law of nations.” This inquiry has definitive historical dimension, “federal courts should recognize private claims under federal common law violations any international law norm less definite content acceptance among civilized nations than historical paradigms familiar when [the ATS] enacted.” Sosa U.S. assert Hezbollah’s actions, including “its

attempts physically exterminate expel Jewish residents Israel intentional systematic use violence against civilians, constitute genocide, crimes against humanity[,] war crimes under customary international law, therefore constitute violations ‘the law nations’ within meaning [the ATS].” App. They allege LCB’s actions “constitute[] aiding abetting [Hezbollah’s] acts genocide, crimes humanity[,] war crimes.”

Genocide, crimes humanity, war crimes certainly constitute violations nations customary international law. Kadic (observing defendant “may found liable genocide, war crimes, crimes against humanity” under ATS); Sosa , 542 U.S. at 762 (Breyer, J., concurring part concurring in judgment) (describing a “subset” of “universally condemned behavior” which “universal jurisdiction exists,” including “torture, genocide, crimes against humanity, war crimes”). Plaintiffs have alleged systematic rocket attacks against Jewish civilian population Israel, committed intent exterminate expel them from territory. These allegations adequately plead acts of genocide crimes against humanity. Therefore, Plaintiffs have satisfied their burden assert a cause of action grounded actions recognized violations of law of nations. Mastafa 770 F.3d 181 (finding “plaintiffs have satisfied their burden of asserting some causes of actions grounded actions recognized violations customary international law” where they asserted principal committed genocide, war crimes, crimes against humanity).

III. Theory Liability assert “actions defendant . . constituted aiding abetting [Hezbollah’s] acts genocide, crimes against humanity[,] war crimes under nations.” (emphasis added). Aiding abetting a theory liability recognized customary international law. Khulumani (Opinion Court); see id. (Katzmann, J., concurring); Mastafa (recognizing that, Circuit, plaintiff may plead theory aiding abetting liability ATS). Accordingly, pleaded theory liability over have subject matter jurisdiction.

IV. Displacing Presumption Extraterritoriality presumption extraterritoriality provides “when statute gives no clear indication extraterritorial *22 application, it has none, reflects the presumption United States governs domestically but does not rule the world.” Kiobel II S. Ct. at (alteration, citations, internal quotation marks omitted). The presumption typically applies when court is discerning “whether Act Congress regulating conduct applies abroad.” Id. Kiobel II the Supreme Court held the presumption

against extraterritoriality constrains courts exercising their power under the ATS. Id. ’s extension the presumption against extraterritoriality ATS in capacity “strictly jurisdictional” statute was principally based foreign policy considerations. Id. (quoting Sosa U.S. 713). The Court observed “danger unwarranted judicial interference conduct foreign policy is magnified context ATS, because question is what Congress has done but instead what courts may do.” Id. It underscored, therefore, “the need judicial caution considering claims could brought ATS, light foreign policy concerns.” Id. careful, however, provide plaintiff could “displace” presumption:

[E]ven where claims touch concern territory States, they must do so sufficient force displace presumption extraterritorial application. Corporations often present many countries, would reach too far say mere corporate presence suffices. (citation omitted). To determine whether displaced presumption extraterritoriality, first consider threshold inquiry whether presumption “self evidently *23 dispositive” or whether “its application requires further analysis.” Morrison v. Nat ʹ l Australia Bank Ltd. , U.S. 266 (2010); Mastafa , F.3d at 182. That is, when complaint alleges no contact “between the injuries alleged territory United States,” the presumption against extraterritoriality is not displaced inquiry, all likelihood, ends there. Mastafa , 182–83; Balintulo Daimler AG (2d Cir. 2013) (holding plaintiffs’ claims did not rebut presumption extraterritoriality set forth Kiobel II “because plaintiffs failed allege any relevant conduct occurred United States” (emphasis added)).

The Kiobel complaint, contained no averment contact between conduct alleged U.S. territory, self ‐ evidently dispositive. Kiobel S. Ct. The Kiobel plaintiffs Nigerian nationals alleging certain Dutch, British, Nigerian corporations aided abetted Nigerian military police forces “attack[ing] [plaintiffs’] villages, beating, raping, killing, arresting residents destroying looting property” “among other things, providing Nigerian forces food, transportation, compensation, as well allowing Nigerian military use respondents’ property staging ground attacks.” Id. Supreme held because “all relevant conduct took place outside States,” plaintiffs’ claims did not displace presumption extraterritorial application. case. Unlike Kiobel plaintiffs, who only alleged extraterritorial conduct, allege, inter alia used correspondent banking account York facilitate dozens international Shahid, entity alleged an “integral part” Hezbollah. *24 Thus, allege sufficient connections the United States require “further analysis.” Mastafa , at 182 (internal quotation mark omitted). Applying Kiobel II Morrison , have previously set forth exactly what “further analysis” entails. See Mastafa , at 185–87. As a preliminary matter, the court must isolate the “relevant conduct” the complaint—here, “the conduct of the defendant . . constitutes aiding abetting another’s violation of the law of nations.” Id. isolating the relevant conduct of the defendant, a court

must evaluate the “territorial events” or “relationships” “focus” of ATS. Id. at (alterations omitted) (quoting Morrison , U.S. 266). Then, “determining whether this conduct displaces presumption, district court must engage a two step jurisdictional analysis of this conduct.” Id. Step one is a determination whether relevant conduct— i.e. conduct aiding abetting violation law nations—“sufficiently ‘touches concerns’ territory States so displace presumption extraterritoriality.” Id. (quoting S. Ct. 1669). Step two is determination whether “the same conduct upon preliminary examination, states claim violation law nations aiding abetting another’s violation nations.”

Applying framework, District appears found step one satisfied; dismissed complaint conclusion failed meet requirements step two. Special 9–10. On appeal, parties dispute whether either step met. Appellants Br. 21– 23; Appellee Br. We consider each turn.

A. Conduct that Touches and Concerns the United States The “relevant conduct” in the complaint LCB’s provision wire transfers between Hezbollah accounts through its correspondent bank in New York. Specifically, Plaintiffs allege (1) LCB “provided extensive banking services [Hezbollah]” that “caused, enabled[,] and facilitated the terrorist rocket attacks in the plaintiffs and their decedents harmed and killed” and those banking services “were carried out LCB in and through State New York .” App. (emphasis added). Plaintiffs further allege that “between and July (and subsequently), [Hezbollah] made and received dozens dollar wire transfers . . totaling several million dollars,” “[a]ll” those wire transfers “were made to, from, and/or between” Hezbollah’s bank accounts various LCB branches through AmEx in New York. App. allege LCB worked “in concert with” AmEx carry out wire transfers, AmEx acted “on behalf of” carrying out transfers. App. offer additional allegations New York State Banking Department investigated LCB’s correspondent bank York when took place, bank violated various terrorist financing money laundering laws carrying out transfers.

We previously concluded claim similar sufficiently touched concerned States displace presumption extraterritorial application. Specifically, Mastafa considered an ATS claim brought five Iraqi nationals oil company French bank. Mastafa plaintiffs alleged oil company bank aided abetted Saddam Hussein regime torture, imprisonment, execution plaintiffs their family members “by paying regime *26 kickbacks and other unlawful payments, which enabled the regime to survive and perpetrate the abuses suffered by plaintiffs or their husbands.” Id. The allegations stemmed from the United Nations’ Oil Food Programme (“OFP”), program “permitted the export of oil from Iraq in exchange food, medicine, and other basic civilian necessities by allowing the purchase Iraqi oil to proceed through escrow account, into which purchasers submitted payments and from providers civilian necessities received payment.” Id. (internal quotation marks omitted). essence, the Mastafa plaintiffs alleged “that Saddam Hussein regime—then subject to United Nations economic sanctions—misused OFP order to elicit income outside United Nations’ oversight fund its regime and to fund its campaign human rights abuses people.” Id. (alterations internal quotation marks omitted).

Three four allegations Mastafa plaintiffs’ complaint came up short. allegations were insufficient to satisfy touch concern inquiry because they either (1) too tangential conduct alleged aid abet violation law nations or inadequately pleaded. id. First, we determined “the fact United Nations is located New York, OFP’s inception administration occurred York, [was] irrelevant” touch concern inquiry, “[s]uch allegations, themselves, are not facts related defendants all, let alone alleged conduct taken defendants aid abet violations law nations.” Second, considered fact oil company is headquartered States “immaterial” because “the relevant inquiry on conduct constituting violation customary international aiding abetting such violations, where defendants *27 present.” Id. Third, we rejected the plaintiffs’ allegation that because the defendant oil company headquartered the United States, “its profits reaped from the transactions were recouped the United States” mere conclusory statement that “d[id] satisfy basic pleading requirements.” Id. (internal quotation marks omitted).

However, we found that the Mastafa plaintiffs’ fourth allegation—that the French bank “entered into Banking Agreement with the United Nations New York pursuant to which it maintained escrow account New York City through which all OFP funds moved, including the illicit surcharge payments”—sufficiently touched concerned the United States to surpass the first step displacing the presumption extraterritoriality. Id. Specifically, the Mastafa plaintiffs alleged that both the bank the oil company made “U.S. ‐ based attempts to skirt the sanctions regime.” Id. As to bank, plaintiffs alleged it “maintained [an] escrow account New York City through all [relevant] payments transmitted.” Id. (internal quotation marks omitted). plaintiffs alleged bank “allowed payments” through York City account included kickbacks Saddam Hussein regime, bank’s financing arrangements “allowed oil purchasers conceal true nature oil purchase.” Id. (internal quotation mark omitted). As oil company, plaintiffs alleged, inter alia facilitated surcharge payments Hussein regime part particular transactions. Id. Assessing allegation, concluded relevant conduct sufficiently “specific domestic” (1) non conclusory touch concern United States. We held plaintiffs’ fourth allegation touched concerned States sufficient force displace presumption *28 against extraterritoriality and establish ATS jurisdiction—so long as also “satisfie[d] a preliminary determination that such conduct aided and abetted a violation the nations.”

Like the Mastafa plaintiffs’ allegations against the French bank, Plaintiffs here assert LCB, a Lebanese Bank, used a correspondent banking account New York bank facilitate between Hezbollah’s bank accounts in the months leading up rocket attacks. specifically allege LCB carried out specific “banking services harmed plaintiffs their decedents . . in and through State New York .” App. (emphasis added). here alleged LCB engaged in “numerous New York based payments ‘financing arrangements’ conducted exclusively through New York bank account.” See Mastafa As Mastafa find these allegations both specific domestic. See id. Plaintiffs’ allegations “touch concern” United States sufficient force displace presumption, so long such conduct also meets second prong our extraterritoriality analysis.

*29 B. States a Claim for Violation of the Law of Nations To displace the presumption extraterritoriality, the conduct “which the court has determined sufficiently ‘touches concerns’ the States” must also, upon preliminary examination, state claim a violation of the law of nations aiding abetting another’s violation of the law of nations. Mastafa , 770 F.3d “This second step of the extraterritoriality analysis ensures . . that ‘the statute’s jurisdictional reach will match the statute’s underlying substantive grasp.’” Id. 186 (alteration omitted) (quoting , S. Ct. (Breyer, J., concurring judgment)). A defendant may held liable under aiding abetting theory liability international law if defendant “(1) provide[d] practical assistance principal has substantial effect on perpetration crime, d[id] so purpose facilitating commission that crime.” Presbyterian Church Sudan Talisman Energy, Inc. (quoting Khulumani (Katzmann, J. concurring)). As latter requirement, have underscored mens rea standard accessorial liability ATS actions is “purpose rather than knowledge alone.” Id.

The District here did address whether Plaintiffs adequately alleged LCB provided practical assistance had substantial effect perpetration crime. It concluded only “insufficiently allege[d] aided abetted violation nations.” Special court reasoned failed surpass preliminary mens rea determination because complaint’s allegations LCB’s intent merely “conclusory.” It further noted complaint “devoid any factual allegations supporting LCB’s specific intent, *30 executing the wire transfers, to promote or engage Hezbollah’s coercive actions the Israeli government and public.” Id. “Because the [complaint] inadequately pleads that wire transfers issue were made intent to aid abet alleged terrorist activities,” it concluded, “Plaintiffs have not established that there subject matter jurisdiction ATS.” Special App. 10. relevant conduct alleged here— i.e. LCB’s alleged act carrying out wire transfer services on Hezbollah’s behalf

through state York, App. 65–66—satisfies preliminary determination that such conduct provided practical assistance Hezbollah substantially affected Hezbollah’s perpetration underlying violations nations. Plaintiffs adequately allege these wire transfer services had substantial effect on Hezbollah’s actions insofar they “enabled” “facilitated” terrorist rocket attacks harming or killing Plaintiffs their decedents. App. Plaintiffs further allege LCB’s wire transfers “substantially increased facilitated [Hezbollah’s] ability plan, prepare for[,] carry out rocket attacks on civilians,” including rocket attacks injuring killing Plaintiffs their family members. App. addition, particularly allege “[Hezbollah] planned, made preparations necessary carried out” rocket attacks “utilizing funds” received part wire transfers. allegations bolstered evidence record LCB’s “significantly enhanced [Hezbollah]’s ability plan carry out terrorist other violent actions, including rocket attacks [Plaintiffs] harmed.” does dispute whether adequately

shown provided practical assistance Hezbollah has had substantial effect perpetration underlying *31 crimes. Rather, it argues only that District correctly held Plaintiffs failed to meet required mens rea for accessorial liability. We disagree. complaint, considered conjunction with Shaya declaration and government’s actions LCB, satisfies our preliminary review mens rea requirement aiding and abetting violations nations. Presbyterian Church essence, Plaintiffs allege (1) LCB acted intentionally, and pursuant its official policy, assisting Hezbollah carrying out rocket attacks by carrying out wire transfers, and (2) LCB knew bank accounts between which facilitated transfers owned and controlled by Shahid, an integral part Hezbollah.

As an initial matter, allege “as matter official LCB policy” LCB “continuously supports and supported [Hezbollah] and anti Israel program, goals[,] and activities.” App. They also allege LCB had “actual knowledge” (1) “[Hezbollah] is violent terrorist organization [that] carried out numerous terrorist attacks Israeli civilians and American targets planned and intended carry out additional such terrorist attacks,” App. 88–89; (2) “Shahid integral part [Hezbollah] constitutes part [Hezbollah’s] financial arm,” App. 90; (3) Hezbollah’s bank accounts various branches funds therein “were owned controlled by [Hezbollah],” Id. ; (4) wire transfers made received Hezbollah leading up rocket attacks “were being carried out direction [Hezbollah],” ; App. 65—66; Hezbollah “require[d] wire transfer services . . order plan, prepare carry out terrorist attacks.” then allege LCB, equipped actual knowledge, carried out issue “with specific purpose intention *32 enabling and assisting [Hezbollah] to carry out terrorist attacks against Jewish civilians in Israel.” App. 109. Indeed, complaint states that LCB carried out wire transfers “as matter official LCB policy, in order to assist and advance [Hezbollah’s] terrorist activities Jews in Israel, in order assist and advance [Hezbollah’s] goal using terrorism destroy State Israel and murder expel its Jewish inhabitants and in order assist and advance [Hezbollah’s] goal coercing, intimidating and influencing Israeli government and public.” App.

As set forth above, in determining disputed jurisdictional fact, may consider evidence record outside pleadings. See Flores n.30. Shaya declaration provides context Plaintiffs’ allegations that LCB aided abetted Hezbollah’s alleged violations nations. Specifically, Shaya declaration states that between “2004 July (and later),” Hezbollah “made dozens dollar wire transfers out of” specific account number LCB’s headquarters. App. Shaya stated that LCB requested that correspondent bank York carry out wire transfers identified Shahid account holder, thus “there no question” Amex Bank knew executing behalf Shahid. App. 127–28. addition, government forfeiture action LCB lends support Plaintiffs’ allegations. App. Specifically, government alleged LCB engaged activity “intended conceal disguise true source, nature, ownership, control of” proceeds illegal activities scheme “benefitted [Hezbollah].”

We conclude complaint alleges conduct touched concerned States, same conduct upon preliminary examination, states claim aiding abetting Hezbollah’s violation law nations, sufficient force displace presumption against extraterritoriality. Accordingly, surpassed jurisdictional hurdle set forth Kiobel , 133 S. Ct. 1669.

V. Corporate Liability

Nevertheless, Kiobel I forecloses Plaintiffs’ claims LCB. In Kiobel I , we established that law nations, while imposing civil liability individuals torts qualify under ATS, immunizes corporations from liability. Kiobel I , 621 F.3d Specifically, Kiobel I held “insofar plaintiffs bring claims ATS corporations, plaintiffs fail allege violations nations, plaintiffs’ claims fall outside limited jurisdiction provided by ATS.” Neither party disputes is corporation. Accordingly, we cannot exercise subject matter jurisdiction over ATS claims pursuant statute.

To extent submit Kiobel I wrongly decided, we reaffirm Arab Bank ’s conclusion—we are free consider argument. In re Arab Bank F.3d “[I]t is axiomatic panel this court bound by decisions prior panels until such time they overruled either by en banc panel our Court Supreme Court.” See NML Capital Republic Argentina, F.3d (2d Cir. 2010) (internal quotation marks omitted); accord In re Arab Bank Indeed, has previously declined similar attempts ATS plaintiffs overturn I. re Arab Bank, PLC Alien Tort Statute Litig. (2d Cir. 2016) (denying rehearing en banc). Accordingly, faithfully apply *34 Kiobel I affirm District Court’s dismissal of case on basis.

CONCLUSION

For foregoing reasons, AFFIRM IN PART judgment District Court.

[1] An accompanying summary order addresses Anti– Terrorism Act Israeli tort claims.

[2] Four Israeli Canadian do assert Alien Tort Statute claims LCB: Sarah Yefet, Shoshana Sappir, Rochelle Shalmoni, Oz Shalmoni. Except reviewing procedural history, case term “Plaintiffs” refers all plaintiffs action,

[3] facts set forth below drawn from record, First Amended Complaint (the “complaint”), see App. 48–120, this Court’s previous opinions this case, see Licci IV , 732 F.3d 165–67; Licci II , 673 F.3d 55–59. We accept as true all non conclusory factual allegations relevant this decision. Ashcroft Iqbal U.S. (2009); see also I

[4] “Hezbollah” may spelled “Hizbollah,” complaint, “Hizballah,” Licci

[5] Defendant AmEx party appeal.

[6] “LCB notes all relevant times, Shahid itself not designated terrorist organization on official U.S. government lists. Shahid was, however, added U.S. Treasury Department ʹ s ‘Specially Designated Nationals’ list July 2007.” Licci n.4. Shahid today remains list “individuals, groups, entities, such terrorists . . country specific.” generally U.S. Dep’t Treasury, Specially Designated Nationals Blocked Persons List (SDN) https://www.treasury.gov/ofac/downloads/sdnlist.pdf (last visited Aug. 2016).

[7] At another point complaint, allege LCB carried out issue “with specific purpose intention enabling assisting [Hezbollah] carry out its goal physically exterminating expelling Jewish residents Israel, goal intentionally systematically using violence Jewish civilians Israel.” App. They further allege supports Hezbollah’s “terrorist activities Jews Israel” Hezbollah’s “goal using terrorism coerce, intimidate influence Israeli government public.”

[8] government’s complaint civil forfeiture action LCB includes allegations elaborate scheme involving used car sales proxies for narcotics trafficking money laundering. Specifically, government alleged “provided funds, goods, services to for benefit [Hezbollah] . . causing funds to be wired from Lebanon to U.S. persons States purchase used cars be shipped U.S. persons West Africa order create channel laundering proceeds narcotics trafficking other unlawful activities, [and] generate fees commissions paid [Hezbollah] members supporters who involved various points money laundering scheme.”

[9] I Kiobel ’s separate grounds for dismissing plaintiffs’ Alien Tort Statute claims are distinct and, previously observed, “not logically inconsistent.” re Arab Bank, PLC Alien Tort Statute Litig. (2d Cir. 2015), amended (Dec. 2015) (“The two decisions adopted different bases dismissal lack subject matter jurisdiction. Whatever tension between them, decisions logically inconsistent.”).

[10] See, e.g. Beth Stephens, Judicial Deference Unreasonable Views Bush Administration B ROOK J. I NT ’ L L. & n.18, 810–11 (estimating approximately human rights lawsuits filed after Filártiga compared total suits before Filártiga ) (citing B ETH S TEPHENS ET AL ., I NTERNATIONAL H UMAN R IGHTS L ITIGATION IN U.S. C OURTS 12–25 (2d ed. 2008)).

[11] one other case, Argentine Republic Amerada Hess Shipping Corp. U.S. (1989), Supreme briefly discussed ATS context foreign state immunity, holding did permit jurisdiction over foreign sovereign.

[12] As above analysis indicates, fact LCB’s correspondent bank New York, AmEx, is no longer party appeal, is immaterial our conclusion allegations defendant sufficiently touch concern United States. only allegations AmEx did not involve LCB’s domestic contacts include (1) AmEx is headquartered New York incorporated Connecticut, AmEx “does extensive business holds significant assets York.” Because relevant inquiry whether defendant’s conduct touches concerns States, not where defendant particular assets located, AmEx’s absence party does affect inquiry. Mastafa

[13] In voting reconsideration Kiobel I ’s holding ATS does not regulate corporate conduct, four judges our reasoned “the population cases dismissible under Kiobel I is largely coextensive with those dismissible Kiobel II .” re Arab Bank (Jacobs, J. concurring denial rehearing en banc) (emphasis added). concurring judges concluded “[t]he principle Kiobel I has been largely overtaken, importance outcomes has been sharply eroded.” But is often case law, no sooner is certainty expressed than exception presents itself. This case, which defendants accused domestic acts aided abetted torts committed abroad, may illustrate category cases surpass Kiobel ’s extraterritoriality inquiry but do survive I ’s bar corporate liability. At present, how large class cases may difficult know.

[14] This opinion affirms District Court’s judgment regard Plaintiffs’ ATS claims. This opinion accompanying summary order, addresses balance claims, combine affirm District Court’s judgment toto