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Court Cases
Ungar v. Palestine Liberation Organization
Boim v. Holy Land Foundation for Relief and Development
Weinstein v. Islamic Republic of Iran
Rubin v. Islamic Republic of Iran
Bennett v. Islamic Republic of Iran
Wyatt v. Syrian Arab Republic
Linde v. Arab Bank
Almog v. Arab Bank
Weiss v. National Westminster Bank
Strauss v. Crédit Lyonnais
Calderón-Cardona v. North Korea
Rothstein v. UBS AG
Elmaliach v. Bank of China
Wultz v. Bank of China
Kaplan v. North Korea
Kim v. North Korea
Kaplan v. North Korea
Wultz v. Syrian Arab Republic
Kaplan v. Al Jazeera
Licci v. American Express Bank
Holder v. Humanatarian Law Project
Ungar v. Palestinian Authority
Facts
Yaron and Efrat Ungar were killed in 1996 by a terrorist attack. Their familieis sued under the Antiterrorism Act and were awarded over 116 million dollars based on a default judgment against the defendants. The Palestinian Authority (PA) and the Palestinian Liberation Organization (“PLO”) marginally participated in the suit, mainly to challenge the capacity to sue them in court.
Recent Activity
Case filed on March, 2000 at the District Court of Rhode Island.
Following the filing of the suit, defendants attempted a number of challenges relating to personal and subject matter jurisdiction, improper venue and forum, insufficient filing of service, and failure to state a claim. The lower court dismissed these contentions, save for problems of personal jurisdiction of one plaintiff given her status as an Israeli citizen that prevented her from relying on US law. Plaintiffs amended their complaint to include Israeli negligence law as grounds for the complaint.
Thereafter, the PA and PLO stated to the court that they would not defend this case on the merits because “Arafat would not recognize the jurisdiction of this or any American court over the PA or PLO.”
The PA and PLO then filed another motion to dismiss because the issues could not be properly litigated given the difficulties in the region and capacity to obtain information. They also asserted sovereign immunity. The court rejected these arguments as well.
The PA and PLO unsuccessfully attempted to appeal these denials of their motion to dismiss. Nevertheless, the First Circuit indicated that the PA and PLO could still make assertions of sovereign immunity.
At around the same time, in July, 2003, the district court had begun to consider a default judgment against the defendants. Previously however, in June, 2003, the defendants had again moved to dismiss on the basis of sovereign immunity and that the case involved nonjusticiable political issues. The district court found that political issues or politically charged cases do not necessarily bar tort actions, and that the defendants were not entitled to sovereign immunity because they did not meet the formal criteria for statehood.
Plaintiffs again moved for a default judgment in 2004, principally because their capacity for discovery was being hindered by the non-participation of the defendants in the discovery process. Defendants then reiterated their initial contentions against the lawsuit (relating to jurisdiction and capacity), including as well the sovereign immunity defense and challenging the amount of the award.
The district court rejected the defendants’ challenges, noting in particular that they were afforded the opportunity to participate in the case but refused to do so. In an appeal before the First Circuit, the court of appeals upheld the findings of the district court, holding that the lower court had acted properly.
Following the entry of the default judgment, the PA and the PLO sought to have the judgment vacated due to exceptional circumstances.
In a 2009 decision of the District Court of Rhode Island, the court addressed the claims raised by the PA and PLO. They asserted that they were not connected to Hamas, the organization that carried out the attacks, and that exceptional circumstances warrant them the right to engage the court in a proper trial, especially to alleviate any further suffering by the Palestinian people that would result from payment of the judgment. Plaintiffs asserted that this was another delay tactic, especially as the PA and PLO previously stated in open court that they were not going to engage the court on the merits.
The district court acknowledged the potential damage that would accrue to the plaintiffs if the default judgment were to be overturned, especially as the capacity for discovery has been hindered, yet the court must account for the actions of the defendants in making a decision to dismiss a default judgment. In this instance, the court found, the defendants had participated in all procedural aspects of the case, playing quite an active role, and took a strategic decision regarding the extent of their participation. The defendants made a conscious and intentional choice not to engage the case. As such, the motion to vacate the default judgment was dismissed.
Defendants appealed the decision to the First Circuit Court of Appeals, resulting in a March, 2010 decision by the First Circuit. The court of appeals held that the district court erroneously dismissed the motion and remanded the issue back to the court for reconsideration. The court of appeals held that the lower court erroneously applied the standards for exceptional circumstances allowing for the overturning of a default judgment. The court should not solely account for defense tactics as a bar to claiming exceptional circumstances against a default judgment (although it is a strong indication against relying on such grounds). Nevertheless, the court should not apply a hard and fast rule without accounting for the entire gamut of circumstances that might lead to the declaration of an exceptional outcome and an overturning of the default judgment.
Boim v. Holy Land Foundation for Relief and Development
Facts
David Boim, a US citizen, was killed in a terrorist attack in Israel in 1996. Because the Holy Land Foundation and its officials had provided financial support to the terrorist group Hamas which committed the act, his family filed a suit asserting that the defendants were liable under the Antiterrorism Act given the financial support provided to a terrorist group.
Recent Activity
Case filed on 2000 at the Illinois District Court.
Defendants attempted to dismiss the case due to failure to state a claim, arguing that providing financial support to a terrorist group is not considered an act of international terrorism under the Antiterrorism Act. The motion was denied by the district court (and upheld by the Seventh Circuit on an interlocutory appeal), and the court granted summary judgment to the plaintiffs regarding liability of the defendants under the law.
In the subsequent jury trial, defendants were found liable and plaintiffs were awarded 52 million dollars. The court then trebled the damages, as provided for under the law.
Defendants again appealed and the Seventh Circuit vacated the judgment, directing the district court to re-determine liability.
Plaintiffs thereupon petitioned for a rehearing, specifically to consider the elements of a lawsuit under the Antiterrorism Act when engaging financial supporters of a terrorist group.
The Seventh Circuit issued its decision in December, 2008. Note that in a previous first panel opinion, the court upheld the notion of secondary liability under the law in question, such that financial organizations supporting a terrorist group could be deemed liable under the law. Because providing monetary support is an action that provides material support to a terrorist group and is dangerous to human life, the Antiterrorism Law includes those who financially support a terrorist group.
The court in the second panel supported this interpretation, noting in particular the policy issue of targeting the financial sources of terrorism as the more effective means for actually receiving any awarded damages.
The Seventh Circuit then discussed the need for intention under the law, and the required link between the defendant and the action of the terrorist group, especially because the law entails an intentional tort. The court found that a donor to Hamas must have known that the organization was targeting Israeli Jews, such that the intention can be read into the act of financial support. Regarding causation, the court held that any form of donation to a terrorist group like Hamas goes to support their acts of terror, even if they also engage in humanitarian activity like education or social services. Support to Hamas assists them to engage in terror, especially as their stated reason for acting is to commit acts of violence against Israel.
The court also upheld the expert witness who relied on websites and internet sources to establish the identity of the terrorists and the organization involved in the murder.
The court did vacate the judgment against two defendants. Salah’s liability was removed due to the timing of the donations, the date in which the law came into affect, and the act of terrorism against the plaintiffs (as Salah was in the hands of the Israeli authorities during that period). The court further remanded for a retrial whether the judgment applies against the Holy Land Foundation, given the Foundation’s claim that it was acting solely as a charity and not a supporter of terrorism. The majority also called for a reassessment of the awarded legal fees.
Some judges dissented against the causation standard, arguing that plaintiffs should present evidence regarding the link between a donor and the eventual terrorist act, especially because some donations were specifically given and used for humanitarian purposes. This was deemed a serious oversight by the majority, raising key Fist Amendment issues as well. The dissent also desired to create a distinction between primary and secondary liability, especially because the law seemed to support such a distinction. Another dissenting opinion also challenged the reliance on the expert witness given the lack of a proper foundation for the testimony.
Weinstein v. Islamic Republic of Iran
Facts
Ira Weinstein was killed in a terrorist bus bomb in Israel, in February, 1996. His family sued Iran under the Foreign Sovereign Immunity Act that grants jurisdiction over state supporters of terrorism. Although Hamas initiated the attack, they are supported directly by the Iranian government, such that plaintiff sued the Iranian government given Iran’s key support of Hamas.
Iran did not respond to the complaint and a default judgment was entered by the DC District Court in 2003
Recent Activity
Case filed at October 2002
In its decision from March, 2006, the court was compelled to review the evidence submitted by plaintiff prior to finalizing the default judgment. The court found that plaintiff, a US national, demonstrated that the State Department deemed Hamas as a terror organization, and that Iran provided material support to Hamas, thereby invoking vicarious liability for the attack. Iran and Hamas engaged in a civil conspiracy to ensure for ongoing terrorist attacks in Israel pursuant to a preconceived plan, leading to the wrongful death of a US citizen. Further, the action caused ongoing intentional infliction of emotional distress on the family of the victim. As such, the court ordered over 300,000,000 dollars in compensatory and punitive damages.
Rubin v. Islamic Republic of Iran
Facts
Plaintiffs were the victims of a Hamas bombing in 1997 in Jerusalem. Plaintiffs sued Iran under the Foreign Sovereign Immunity Act that grants jurisdiction over state supporters of terrorism. Although Hamas initiated the attack, they are supported directly by the Iranian government, such that plaintiff sued the Iranian government given Iran’s key support of Hamas.
Recent Activity
Case filed at 2001
Iran did not respond to the complaint and a default judgment was entered by the DC District Court in 2001. The court, in a September, 2003, decision, upheld the default judgment following a review of the evidence. The court found that plaintiffs adequately demonstrated that Iran supported Hamas, a designated terrorist organization, in carrying out terror acts and was therefore liable under the Act. As such, the court ordered over 300,000,000 dollars in compensatory and punitive damages.
Rubin attempted to execute the judgment in June, 2004 against a Bank of America account held by the General Consulate of Iran. While there was no diplomatic immunity at issue (contrary to the claims of the US government), the accounts had already been attached by another creditor. Following another lost suit in NY, Rubin did manage to claim sale of a home in Texas that was owned by Iran. They subsequently attempted to attach pieces of art and antiquities owned by Iran and held by museums around the US. The museums claimed sovereign immunity on behalf of Iran, with an Illinois court dismissing such a claim because it is for Iran to make such an assertion, while the Massachusetts court upheld the claim. Both courts also held that the commercial exception under the Act providing for attachment did not apply to museum property. Plaintiffs also attempted to attach under the 2002 Terrorism Risk Insurance Act, arguing that the antiquities were “blocked assets” under the Act. The Massachusetts court agreed with plaintiffs, subject to a factual hearing as to whether Iran actually owned the museum pieces. The Illinois court has not issued a decision.
Bennett v. Islamic Republic of Iran
Facts
Plaintiff was the victim of a terrorist bombing at Hebrew University in Jerusalem. Since Hamas claimed responsibility for the bombing, the victim sued Iran as a supporter of Hamas.
Recent Activity
Plaintiff won a judgment in 2007 from the DC District Court of 12 million dollars.
In 2009, plaintiffs attempted to attach a variety of Iranian diplomatic properties that were being held by the US government. The court denied them the ability to attach the properties in a 2009 decision in accordance with the US government’s claim that bthe properties, being diplomatic property, were not subject to attachment, and plaintiffs appealed. In a September, 2010 decision, the DC Court of Appeals held that despite the Terrorism Risk Insurance Act that provides for attachment of “blocked assets”, the Act does not apply to diplomatic property of a state. The court held that even though the property is being rented out (thus maintaining a commercial nature), the property is still under the framework of diplomatic property being held by the US, even if it is rented out for non-diplomatic purposes.
Wyatt v. Syrian Arab Republic
Facts
Plaintiff was abducted by PKK terrorists in Turkey. The PKK held the plaintiffs for 21 days, subjecting them to harsh conditions and holding them for ransom demands against the Turkish government. Syria is a key supporter of the PKK, providing financial and logistic support.
Recent Activity
Case filed July 2001in DC Dstrict Court
Following a series of motions to dismiss by Syria and an amended complaint by plaintiff, Syria moved to dismiss the case for failure to state a claim and because the complaint is time barred. Syria also asserted that Turkish law should apply to the complaint. In a September, 2005 decision, the DC District Court held that there is no basis to dismiss for failure to state a claim since plaintiff provided enough of a prima facie facts to support the allegations. Further, sovereign immunity does not apply since the case is dealing with state-sponsored terrorism, an exception to the rule under the Foreign Sovereign Immunities Act. The court further found that Syria did not properly state why Turkish law would lead to a different outcome, such that there is no basis under the choice of law rules to apply foreign law. Holding that the law of the plaintiffs’ domiciles apply here (Texas and Tennessee), the court dismissed the statute of limitations argument on the basis of the pre-emption doctrine. Federal law, and the interests in having the case move forward, pre-empts the application of state law. Congress clearly intended to provide a longer filing period for cases of this sort, even if state tort laws provide a shorter time for filing a complaint.
Linde v. Arab Bank
Facts
Plaintiffs, US citizens, are victims of terrorist attacks that occurred in Israel during 2001-2003. Plaintiffs have based their claims on the Antiterrorism Act and for intentional infliction of emotional distress, asserting that the Arab Bank knowingly served as a key financial conduit for terror organizations, thereby providing support for the ensuing terror activities of their clients and allowing the terrorist acts to continue.
The Arab Bank is a Jordanian financial institution that has funnelled funds for organizations claiming they are legitimate charities. In fact, they were routing large sums of money to support the violent activities of Hamas and other terrorist organizations. These organizations served as agents of Hamas and used the Arab Bank to receive deposits and process wire transfers. The Bank was aware that these organizations are fronts which support terrorist activities, such that the Bank’s continued provision of services to these groups facilitated their illegal activities. One account number belongs to Hamas itself and was used to collect funds in support of its violent activities.
Further, the Saudi Committee In Support of the Intifada Al Quds ("Saudi Committee") was established as a private charity in Saudi Arabia whose purpose was to support the Initfada and the families of the terrorists who have died, as well as subsidize the Palestinian terror campaign. The Saudi Committee furnishes awards to terrorists’ families as a reward for suicide attacks. The Arab Bank is the exclusive financial administrator for the Saudi Committee. These payments create an incentive to engage in terrorist acts by rewarding all Palestinian terrorists, regardless of their affiliation with a particular group.
Recent Activity
Case filed on July, 2004 at the New York District Court.
Defendant submitted a motion to dismiss for failure to state a claim upon which relief can be granted in that the Bank itself did not commit the acts of terror and there was no proximate cause, and on forum non conveniens grounds.
Plaintiffs asserted that the Arab Bank allowed for terror acts to occur by engaging the Saudi Committee as a client, thereby promoting terror actions, and by providing Hamas organizations with financial services. These actions raised, at the very least, secondary liability for the defendant.
The New York District Court decided in September, 2005 that aiding and abetting a terrorist act is incorporated within the Antiterrorism Act, such that the Arab Bank can be found liable under secondary liability. Because the Arab Bank knew the activities of its clients and provided them with financial assistance, there were sufficient grounds in the complaint to assert secondary liability against the defendant. Plaintiffs need not prove motive or causation since the aiding and abetting standard sufficed once the defendants knew that the Saudi Committee program was rewarding terrorists and they knowingly provided financial services to Hamas and its attendant organizations. Indeed, it was these factors that distinguished this case from previous cases that had been dismissed where the bank in question was merely providing general financial services.
The court also upheld the complaints under the Antiterrorism Act even though the injured were Israeli nationals. Because the spouses in question were US nationals, there were sufficient grounds for damage to uphold the complaint.
The court did however dismiss the claim for intentional infliction of emotional distress because the Bank’s actions were too attenuated from the harm that was caused.
Almog v. Arab Bank
Facts
Hundreds of foreign terrorism victims filed suit in NY District Court pursuant to the Antiterrorism Act as well as the Alien Tort Statute that permits foreign victims of international law violations a right to sue in federal court.
The plaintiffs alleged that Arab Bank had knowingly provided financial services to terrorist organizations like Hamas and was therefore liable for aiding and abetting the organizations’ subsequent violations of international law.
Arab Bank would collect funds and donations for Hamas directly into its bank, as well as maintain accounts for individual supporters of terrorist organizations. The bank also maintained accounts and solicited and collected funds for charitable organizations affiliated with various terrorist organizations. Arab Bank knew that the accounts of these organizations and individuals were being used to fund suicide bombings and other attacks sponsored by terrorist organizations. The bank also laundered funds for organizations like the Holy Land Foundation for Relief and Development, which raised funds for Hamas in the United States.
Further, the Saudi Committee In Support of the Intifada Al Quds ("Saudi Committee") was established as a private charity in Saudi Arabia whose purpose was to support the Initfada and families of terrorists who have died, as well as subsidize the Palestinian terror campaign. The Saudi Committee furnishes awards to terrorists’ families as a reward for suicide attacks. The Arab Bank is the exclusive financial administrator for the Saudi Committee, transferring millions of dollars on their behalf. These payments created an incentive to engage in terrorist acts by rewarding all Palestinian terrorists, regardless of their affiliation with a particular group.
Recent Activity
Case filed on July, 2005 at the New York District Court.
The Arab Bank submitted a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Defendant asserted that there was no proximate cause between the terrorist actions and the bank, such that it did not commit any legal violation nor cause the ensuing damage to plaintiffs.
In January, 2007, the NY District Court upheld the majority of the complaints under the Antiterrorism Act, save for the allegations regarding the duty to report in existing funds. Because the Arab Bank knew the activities of its clients and provided them with financial assistance, there were sufficient grounds in the complaint to assert secondary liability against the defendant. Plaintiffs need not prove motive or causation since the aiding and abetting standard sufficed once the defendants knew that the Saudi Committee program was rewarding terrorists and they knowingly provided financial services to Hamas and its attendant organizations.
Concerning the Alien Tort Claims Act, the defendant claimed that the court lacked jurisdiction because there was no allegation concerning the law of nations, as required under the Act, nor was Arab Bank liable for these violations.
The court decided that terrorist acts are condemned by the international community at large and can serve as a claim under the Act, especially since there is no collateral consequences for including terrorism under the Act. As to the bank’s liability under this statute, the court held that some form of knowledge coupled with support to conduct an international crime suffices to allow for liability of actors aiding in the crime, especially if the crime would have been different had the assistance not been provided. Here Arab Bank knew it was providing services directly to Hamas, and was well aware of their stated intentions and activities with regard to Israel. The same goes with regard to the Saudi Committee funds, given their stated purpose in making the payments.
Weiss v. National Westminster Bank
Facts
Twenty families who were victims of terrorist attacks between 2002 and 2003 committed by Hamas alleged that National Westminster Bank provided banking services and maintained accounts for Interpal, a British entity designated a “Specially Designated Global Terrorist” by the United States Government in August 2003. The US Treasury Department had deemed Interpal as an organization that was utilized to hide the flow of money to Hamas, as well as the fundraising coordinator of Hamas.
As a result of Interpal’s financial support to Hamas institutions, the State of Israel outlawed Interpal in 1997, and designated it a terrorist organization in 1998.
From 1995 to 2007, NatWest maintained accounts for Interpal and transferred funds at Interpal’s behest to Hamas-controlled organizations in the West Bank and Gaza Strip. The plaintiffs further allege that as far back as 1996, NatWest knew that its customer, Interpal, was transferring money to Hamas-controlled entities.
Recent Activity
Case filed on July 2006 at the New York District Court.
Plaintiffs sued National Westminster Bank on the grounds that it violated the Antiterrorism Act for aiding in the murder of US citizens, knowingly providing support for a terrorist organization, and collecting funds that the defendant knew were to be used by a terrorist organization.
Defendant moved to dismiss on the grounds that it did not participate in the terror actions nor provide material support to allow the terrorist actions to take place.
In September, 2006, the New York District Court dismissed the first claim of the complaint but upheld the other claims. the plaintiffs did not present enough grounds to sustain the first claim that the bank assisted in the murder of US citizens.
Regarding the other claims concerning financial assistance as assisting in terrorist acts, the court dismissed the motion and upheld the complaint. The court found that plaintiffs adequately alleged that the bank’s clients were terrorist affiliated organizations. Even if the bank acted without intention, it still knew or should have known that the funds were going to support terrorist activities.
Interestingly, the court noted that despite being a UK bank, defendant was still bound by US laws, especially since the court maintains jurisdiction over the defendant. Therefore, the bank could not rely on the fact that the UK did not designate the bank’s clients as terrorist organizations as grounds for dismissing the complaint.
Discovery has ensued between the two sides, resulting in a motion to compel evidence from both the plaintiff and defendant. The court issued a decision on these motions in May, 2007.
Plaintiff requested documents relating to transactions of defendant’s customers. The bank refused to disclose such documents, choosing to adhere to the British Consumer Protection Law. Note that the British Government does not object to the disclosure of the information. The court stated that defendant adequately notified plaintiff of the reliance on the British law, that this reliance was correct, and that it applies even to documents located in the US and seen by the plaintiff. Nevertheless, the documents are essential to the case, plaintiffs did not make an unduly broad request but tailored their discovery to specific information, and both the US and UK have a keen interest in preventing terror financing. The court also did not find an undue hardship developing for the bank to disclose the requested information given the circumstances and lack of objection by the bank’s clients to any such disclosure. Thus, the motion to compel was upheld.
Concerning the bank’s motion, the action stemmed from plaintiff’s refusal to provide what it deemed to be work product (information concerning the means by which how the plaintiff received the bank records) and overly broad requests that were more relevant for trial (such as names of intended experts). Concerning the work product claim, the court held that some of the requests were valid (such as the individuals who assisted in obtaining discovery information) while other request were not (such as requesting the names of every single person who worked on preparing the interrogatories). Further, some of the requests by defendant were deemed contention interrogatories, but the court granted the defendant’s motion for the majority of their requests.
Strauss v. Crédit Lyonnais
Facts
Thirty families who were victims of terrorist attacks either because they were injured or because they lost a family member in a wave of terrorist attacks that occurred in Israel between 2001 and 2003. The families sued Credit Lyonnais, a French bank, because the bank provided banking services and maintained accounts for CBSP, a primary fundraiser for Hamas (as designated by the US Treasury Department and by Israel in 1998). CBSP acts in collaboration with more than a dozen humanitarian organizations based in different towns in the West Bank and Gaza and in Palestinian refugee camps in Jordan and Lebanon. The group has collected large amounts of money from mosques and Islamic centers, which it then transfers to sub-organizations of Hamas.
From 1997 onward, the bank knowingly transferred large sums to Hama controlled organizations in the West Bank and Gaza. This activity occurred until 2003, when the bank finally closed the account following over three years of suspicious fund transfers.
Recent Activity
Case filed July 2006 at the District Court of New York.
Plaintiffs sued the bank under the Antiterrorism Act for aiding in the murder of US citizens, knowingly providing support for a terrorist organization, and collecting funds that the defendant knew were to be used by a terrorist organization.
There have been three key decisions regarding this case.
Defendant initially moved to dismiss the complaint for failing to state a claim, specifically because it did not participate in the terrorist act, and because the bank did not knowingly or directly provide material support to the terrorist organization (proximate cause) responsible for the murder and emotional distress caused to the plaintiffs.
In an October, 2006 decision, following a discussion concerning the scope of plaintiffs capacity to sue under the Act (which includes family members of the victims) and some statute of limitations problems with some of the defendants (but not the bank), the NY District Court held that the plaintiffs did not present enough grounds to sustain the first claim that the bank assisted in the murder of US citizens. The court found that providing financial assistance was not enough to sustain a claim that the bank thereby assisted in the actual terrorist act.
Regarding the other claims concerning financial assistance as assisting in terrorist acts, the court dismissed the motion and upheld the complaint. The court found that plaintiffs adequately alleged that the bank’s clients were terrorist affiliated organizations. Even if the bank acted without intention, it still knew or should have known that the funds were going to support terrorist activities. There were enough indicators to alarm the bank that from 2000 to 2003, large sums were being transferred to an area that was engaging a war of terror against Israel, such that the bank’s claim that it was concerned solely with money laundering but not terrorist funding was questioned by the court. Similarly, the provided support established a strong enough link to the eventual act as financial support of any kind is a substantial factor in establishing support.
The next court decision in this case, decided in May, 2007, entailed cross-motions to compel evidence. Plaintiffs requested information regarding wire transfers and account information of Hamas, and the bank refused to supply the information on the grounds of consumer protection and that such disclosure would open up the bank to criminal liability under French law. The court acknowledged the fact that the bank had provided adequate notice that the French laws prohibit the provision of such information, and that even though plaintiffs had already seen some of the account information, the bank is entitled to rely on French law. This is especially the case for the documents that had originated in France, in distinction to other cases involving documents that had originated in the US. Nevertheless, the court found that the information sought is vital to the case and the discovery requests were not overly broad so as to prevent bank from providing the information. Coupled with the fact that US and France maintain a strong interest in combating terror financing (a central goal of the Antiterrorism Act) and that there is little likelihood of prosecution in France (especially for inactive bank accounts), the court ordered the bank to respond to plaintiff’s discovery requests.
Concerning defendant’s motion for information concerning the provision to plaintiff of account information, which plaintiff asserted was work product, the court held that information regarding the account could be provided, but not the person who provided the information. Similarly, the court held that plaintiff must provide information concerning the basis for their allegations, as it was not deemed a contentious interrogatory.
The third decision related to the bank’s reliance on bank secrecy laws as grounds for not responding to certain discovery requests. The bank relied on the fact that the French Ministry of Justice also participated in the motion as grounds to show that the bank could not provide information without breaching French law. In March, 2008, the court denied defendant’s motion, noting in particular that France maintains a particularly strong interest in eradicating terrorism, and the likelihood of criminal or civil challenges against the bank are rather slim.
Calderón-Cardona v. North Korea
Facts
Plaintiffs were victims of a 1972 terror attack in Israel, at Ben Gurion Airport. Conducted by Palestinian terrorists and the Japanese Red Army, plaintiffs asserted that these organizations were materially and financially supported by North Korea. Plaintiffs filed suit in the Puerto Rican District Court under the Foreign Sovereign Immunities Act for tort damages due to the state-sponsored activities of North Korea.
Following a declaration of default judgment in October, 2008, the court had to make a determination regarding jurisdiction over North Korea and whether plaintiffs provided enough proof to hold North Korea liable for the attacks.
Recent Activity
Case filed on March, 2008 at the District Court of Puerto Rico.
The court found sufficient jurisdiction over North Korea in a July, 2010 decision. The court relied on testimony from three key experts as well as documents supplied by plaintiffs concerning the intricate connections between the terrorist perpetrators and North Korea during the time leading up to and including the 1972 attack. The court held that plaintiffs demonstrated sufficient facts of an “extrajudicial killing” against a US citizen, and of North Korean support (a designated state-sponsor of terrorism). The court extensively delineated the damages incurred by each plaintiff, including death, injuries, and ongoing emotional distress, awarding the plaintiffs $378,000,000 in compensatory and punitive damages.
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Rothstein v. UBS AG
Facts
Swiss Bank UBS AG had used US Federal Reserve funds, entrusted to it as part of an Iraqi currency custodial program, to support states sponsoring terrorism, including Iran. While UBS was subsequently fined 100 million dollars and subject to a series of congressional hearings for these illicit acts, American victims of Iranian-sponsored terrorism filed suit against UBS under US criminal law, international law, and the US Antiterrorism Act. The Americans were victims or families of victims of Hamas or Hezbollah bombings that occurred in various parts of Israel in 1997, 2001, and 2006.
Recent Activity
Case filed on May, 2008 at New York Federal District Court.
Plaintiffs based their claim primarily on the fact that UBS knew it was funding a state explicitly supporting terrorist acts (against Israel) and that resulted in harm to US citizens. Thus, UBS is liable to the injured US citizens for the actions of the Iranian government, given Iran’s support for terrorist organizations like Hamas and Hezbollah who instigated the fatal terrorist actions.
Defendant’s refuted plaintiffs’ claims regarding the support provided by UBS to terrorist organizations like Hamas and Hezbollah. Granted it was involved in cash transactions with the Iranian government, but defendant asserted that it was by no means proven that their minor involvement in the Iranian cash flow went directly to assist Hamas and Hezbollah.
The Federal District Court dismissed the complaint in August, 2009 for lack of proximate cause between UBS’ fund transfers and Iranian support of terror organizations like Hamas and Hezbollah. The court found that there was no causal link between UBS and the terror organizations supported by Iran. The court stated that a requirement under the Antiterrorism Act is that UBS not only must have known about the causal link between its funds provided to Iran and Iranian support for terror organizations, but also must have intended that the funds were to be used for that purpose. Such intent was not proven by plaintiffs.
Upon appeal, the Second Circuit Court of Appeals sent the case back to the District Court in an August, 2010 decision, following a seminal 2010 US Supreme Court Case, Holder v. Humanitarian Law Project. The Appellate Court held that the parties should account for the Holder case because the Supreme Court lessened the required proximate cause that must exist between terrorist activities and those supporting terrorists, as mere knowledge of an organization’s connection to terrorism can suffice to create liability.
Elmaliach v. Bank of China
Facts
Hamas and the Islamic Jihad are terrorist organizations that were placed under the US sanctions regime, a system designed to prevent terrorist organizations from obtaining funds or engaging in worldwide money transfers.
The Bank of China engaged in extensive monetary transactions with Hamas and the Islamic Jihad from 2003-2007. The wire transfers were sent from the US branch of the bank directly to China, whereupon the terrorist organizations transferred funds to their operatives in Israel, the West Bank, and Gaza. The complaint provides detailed information concerning these transactions, along with warnings from Israeli authorities to the Chinese that these transactions were taking place.
Recent Activity
Case filed on February, 2009 at the New York Supreme Court.
Plaintiffs, families of terror victims who were killed or injured by Islamic Jihad or Hamas terrorist activity during the wave of terrorist attacks from 2006-2007, filed a lawsuit agasint defendant alleging that the Bank of China knew or should have known that these transactions were directly supporting terrorist organizations, in direct contravention of US law. The plaintiffs charged the bank with negligence and a breach of statutory duty, and have demanded 750 million dollars in damages.
Wultz v. Bank of China
Facts
Daniel Wultz, a 16 year old American citizen, was murdered in an Islamic Jihad suicide bombing in 2006 at a Tel Aviv restaurant. Ten other individuals were killed in the explosion and Wultz' father, Tuli, was also seriously injured.
Wultz charged the Bank of China Ltd. with providing extensive banking services, including wiring funds, to the Islamic Jihad and Hamas organizations. The transfers were made from Syria to the bank in China, and then sent to terrorist operatives through the banks’ branches in the US.
Apparently, Chinese bank officials were warned in 2005 by Israel's counter-terrorism division that wire transfers were taking place to terrorist operatives through their bank, and the bank was directed to transfers that had occurred. The bank officials did nothing to stop the transfers.
Recent Activity
Case filed on March, 2009 at the Federal District Court of Washington DC.
Plaintiff contended that Bank of China enabled these terrorist organizations to engage in terrorist attacks by allowing funds to be transferred through their branches to individuals in these terror organizations throughout the world. Thus, the Bank of China served as a key financial source by which terrorist organizations like Hamas and the Islamic Jihad could continue to operate and engage in terror attacks, resulting in the death of the plaintiff Wultz. This is a direct violation of the Antiterrorism Act. Plaintiffs also alleged violations of Israeli law as grounds for bringing the action against the bank.
The Bank of China contended that the plaintiffs lack standing to sue the bank, raised non-justiciable issues in an improper complaint, integrated political questions into the complaint, and also challenged due to sovereign immunity given the position and role of the Bank of China.
In an October, 2010 decision, the DC Federal District Court upheld the complaint, noting that the plaintiff properly established a connection between the Bank of China and the subsequent terror actions of the bank’s clients. In particular, the court stated that "Israeli officials allegedly informed China, which informed the Bank of China (BOC), that the transfers were enabling the terrorist activities of the Palestinian Islamic Jihad. Plaintiffs have thus adequately pled that the BOC knew that its provision and collection of funds would be used to carry out terrorist attacks such as the Tel Aviv bombing.” Significantly, the court went on to note that even if the funds were not used to actually carry out a predicate act, “BOC's knowledge that they could be, even if they actually were not, is enough."
Thus, plaintiff maintained standing to sue the bank given the causality between the bank allowing funds to be transferred to support terrorist activities, and the complaints were upheld as raising a proper cause of action. The court also noted that there was no political question since the actions do not interfere with the foreign policy of the US, and the bank is not entitled to sovereign immunity given its status as a commercial entity engaging in private transactions.
The plaintiffs are now entitled to seek discovery from the Bank of China, including details of funds received from Hamas in Syria, and the wire transfers from the suspected account.
Kaplan v. North Korea
Facts
In 2006, Hezbollah launched an unprovoked attack on Israel by kidnapping two Israeli soldiers and firing a barrage of rockets into Israel. Over 4000 rockets were fired at Israeli civilians, causing havoc and killing and maiming numerous Israeli and foreign citizens. North Korea had aided and abetted Hezbollah by providing material support essential to these attacks, including constructing tunnels for hiding rockets, providing vital missile components, and training senior Hezbollah officials in North Korea.
These allegations are supported by a 2008 US Congressional memorandum regarding the connection between North Korea and Hezbollah.
Recent Activity
Case filed on April, 2009 at the DC District Court.
Thirty Israelis with US citizenship filed suit against North Korea for more than $100 million under the Antiterrorism Act, the Foreign Sovereign Immunities Act, and tort. The plaintiffs charged North Korea with materially aiding and abetting Hezbollah via training senior officers, building a series of bunkers in south Lebanon to store Hezbollah’s rockets, and building an underground tunnel for moving fighters during the war.
Since North Korea was officially deemed by the US to be a state sponsor of terrorism, it lacks the sovereign immunity defense.
Kim v. North Korea
Facts
In January, 2000, North Korean agents kidnapped Reverend Kim Dong Shik, a missionary working to assist North Korean defectors, from China. Placed in a detention camp and subject to torture, he perished. This was part of an active policy conducted by North Korean agents to track down defectors and return them to North Korea for prolonged imprisonment, torture, and harsh living conditions, usually leading to death, as was the case here.
Reverend Shik’s remains have not been returned to his family, who only learned of his death in 2005.
Recent Activity
Case filed: November, 2009
As US citizens, Reverend Shik’s family filed a complaint in the DC District Court against North Korea on grounds that they committed, through their agents, illicit criminal acts like torture and extrajudicial killing, all violations of US criminal law. The plaintiffs also seek compensation for emotional distress under US law.
Because the North Korean goverment defaulted, the case is presently scheduled for trial on the basis of the affidavits.
Kaplan v. Central Bank of Iran
Facts
Iran assisted to create Hezbollah and continues to support their activities. In this instance, a number of Iranian banks, which are controlled by the Iranian government, provided Hezbollah with over $50 million in financial support in the years prior to 2006, when Hezbollah engaged in a rocket barrage against Israeli civilians. Hezbollah used the funds transferred by the Iranian banks to prepare for and carry out the rocket barrage on Israeli cities. The banks provided such support, knowing that Hezbollah planned to use the funds for terrorist activities against both US and Israeli targets.
The plaintiffs rest their claims in part on a 2007 finding by the U.S. Treasury that between 2001 and 2006, an Iranian bank, Bank Saderat, transferred funds to Hezbollah to support acts of terrorism.
Recent Activity
Case filed on February, 2010 at the DC Dictrict Court.
Eighty five American, Israeli, and Canadian victims of Hezbollah rocket attacks filed a complaint in the DC Federal Court against the Central Bank of Iran (“CBI”), Bank Saderat Iran of Teheran and Bank Saderat, PLC of London. The plaintiffs, whose family members were killed or who were themselves injured, by rockets fired at Israel by Hezbollah between July 12 and August 14, 2006, allege that without the financial support provided by Iranian banks, the barrage of rocket attacks by Hezbollah would not have occurred.
The claims are based on violations of the Antiterrorism Act and the Alien Tort Claims Act, along with negligence and vicarious liability resulting from the rocket attacks. Plaintiffs seek $1 billion in compensatory damages, and an unspecified sum of punitive damages.
Wultz v. Syrian Arab Republic
Facts
Daniel Wultz, a 16 year old American citizen, was murdered in an Islamic Jihad suicide bombing in 2006 at a Tel Aviv restaurant. Ten other individuals were killed in the explosion and Wultz' father, Tuli, was also seriously injured.
In the wake of the bombing, Mr. Wultz’s estate and family members have
brought suit against several defendants, including the Syrian Arab Republic, the Syrian
Ministry of Defense, Syrian Military Intelligence, and the Syrian Air Force Intelligence
Directorate. Specifically, plaintiffs allege that the defendants are liable under the terrorism exception to the Foreign Sovereign Immunities Act for their provision of material support and resources to the PIJ.
Recent Activity
Case filed on March, 2009 at the DC District Court.
The defendants have moved the Court to dismiss all claims against them for Lack of
Subject Matter Jurisdiction and Legal Insufficiency. The defendants made four arguments: (1) that the terrorism exception to the Foreign Sovereign Immunities Act (FSIA) violates the principle of sovereign equality of nations enumerated in
Article 2.1 of the United Nations Charter, (2) that this case presents nonjusticiable political questions, (3) that the FSIA terrorism exception unconstitutionally violates separation-of-powers principles, and (4) that plaintiffs have not adequately pled causation.
The District Court ruled that the first three arguments are utterly meritless, as the salient issues have already been dispensed with by the Court of Appeals
for the District of Columbia Circuit, and that they will be summarily rejected. Concerning the only remaining argument, the Court concluded that plaintiffs have adequately pled a causal chain.
In its decision the Court said that despite the Syrian defendants’ arguments to the contrary, which have been repeatedly rejected by the courts of the Second Circuit, the FSIA terrorism exception does not violate the principle of sovereign equality, does not raise political questions, and does not violate the separation of powers. Concerning causation, Court said that plaintiffs have adequately alleged that the Syrian defendants’
provision of material support and resources to the PIJ caused plaintiffs’ injuries. Court denied defendants' motion to dismiss.
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Kaplan v. Al Jazeera
Facts
Al Jazeera television-network provided extensive material support and resources to Hezbollah, that caused, enabled, and facilitated the 2006 Hezbollah rocket barrage in the North of Israel. Particularly, Al Jazeera repeatedly broadcast real-time information concerning the landing of rockets in the North of Israel, thereby assisting Hezbollah to re-adjust their targeting mechanisms, resulting in more precise and deadlier missile attacks against Israel.
The Israeli authorities had requested the news agencies to abstain from broadcasting such information, and there were instances where Israeli authorities caught Al Jazeera engaging in such broadcasts during the rocket barrage. As a result of the information broadcast by Al Jazeera, 91 American, Israeli, and Canadian civilians were injured or killed.
Recent Activity
Case filed: June, 2010 at the NY District Court.
The plaintiffs who were injured or killed by Hezbollah rockets charged Al Jazeera before the NY District Court with violations of the Antiterrorism Act, the Alien Tort Claims Act, war crimes, negligence and breach of statutory duty, seeking $1.2 billion in damages. The complaint is based on the illicit broadcasts of Al Jazeera, that, but for these broadcasts, Hezbollah would not have been able to so readily target victims in the North of Israel. As such, Al Jazeera knowingly assisted Hezbollah in its terrorist actions against US civilians, in violation of US law.
Licci v. American Express Bank
Facts
During the summer of 2006, Hezbollah fired dozens of rockets into Israel from southern Lebanon. These rockets resulted in the maiming and killing of numerous Israeli citizens and several Americans and Canadians citizens.
Since 2004, Hezbollah accounts were maintained at the Lebanese Canadian Bank (LCB) which maintained a correspondent banking relationship with the American Express Bank (Amex Bank) in New York. Between 2004 and 2006, LCB used American Express to wire money to Hezbollah accounts. An investigation by the New York State Banking Department revealed that Amex Bank had failed to sufficiently follow New York and federal laws to prevent terrorism financing and had failed conduct due diligence to prevent the LCB fund transfers on behalf of Hezbollah. As such, Hezbollah terrorism victims have sued both Amex Bank and LCB in the NY District Court for negligence and breaches of statutory duties that facilitated Hezbollah’s financial account network and provided Hezbollah with the economic strength it needed to conduct a campaign of sustained rocket fire on Israel’s citizens.
Defendants moved to dismiss for failure to state a claim and for lack of jurisdiction.
Recent Activity
Case filed: January, 2009 at the NY District Court
Defendants’ motions to dismiss the case were granted by the NY District Court in March, 2010. The court held that there was no jurisdiction over the Canadian bank as merely doing business through an associate bank was insufficient grounds for establishing jurisdiction over a foreign entity. The connection was deemed too attenuated. As for Amex Bank and the failure to state a claim, the court referred to NY law after pointing out the lack of differences between Israeli and NY tort law (thereby subverting the reliance by plaintiff on Israeli law). In this instance, Amex Bank did not have requisite knowledge or ties to Hezbollah to know for what purpose(s) the funds were being used. Further, the court held that there was lack of proximate cause between the bank and Hezbollah’s activities such as to remove any claim of negligence against Amex Bank.
Plaintiffs thereupon filed an appeal to the Second Circuit Court of Appeals in August 2010. Regarding LCB, plaintiffs claimed that the district court incorrectly applied the broad jurisdictional capacities of the Antiterrorism Act, as the latter act allows for jurisdiction even on the basis of a single act, such as one wire transfer. The connection between the eventual terrorist act and the action of the bank is enough under the law to create a nexus between the defendants’ banking services (as they knowingly supported Hezbollah) and the rocket attacks that ensued. Regarding Amex Bank, plaintiffs asserted that the district court overlooked the different standard for duty of care towards third parties for the intentional acts of its customers under Israeli negligence law. As such, a conflict does exist between NY and Israeli law, and a determination by the court was required.
Holder v. Humanitarian Law Project
Facts
The case centered on the extent of support that organizations legally can provide to overseas entities deemed as terrorist organizations by the US government.
Plaintiffs asserted that they could provided nonviolent support (such as humanitarian and political aid in the form of funds and legal and political assistance) to organizations like the PKK (Kurdish independence from Turkey) and LTTE (Tamil independence from Sri Lanka). The latter organizations have been deemed to be terrorist organizations by the US Government. Plaintiffs asserted that preventing them from engaging in the aforementioned activities violates the Fifth Amendment, on the grounds of legal vagueness, and the First Amendment, as infringing freedom of speech and association.
US Supreme Court Decision
In a June, 2010 decision, the US Supreme Court focused specifically on a number of terms being challenged by plaintiff that are used in the definition of the prohibited “material support” under the 1996 Antiterrorism Act (18 USC 2339B). The court held that the statute was sufficiently defined by Congress, as a person of ordinary intelligence would understand the terms in the law, especially after Congress further delineated the terms. Coupled with the clear national interests of the government in suppressing terrorism worldwide, there were enough grounds to limit activities that would assist terror organizations.
The court held that any form of material support, such as training to acquire UN funds or political assistance, serves to benefit the organization by freeing up their resources for them to engage in terror activities. The court noted that medical assistance or independent advocacy would not be considered material support under the statute given the constitutional problems that such a limitation would raise.
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