In re Arab Bank, PLC Alien Tort Statute Litig.

Citation808 F.3d 144
Decision Date08 December 2015
Docket Number13–4650,Docket Nos. 13–3605,13–3620,13–3635,13–4652.
Parties In re ARAB BANK, PLC ALIEN TORT STATUTE LITIGATION.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

808 F.3d 144

In re ARAB BANK, PLC ALIEN TORT STATUTE LITIGATION.1

Docket Nos. 13–3605
13–3620
13–3635
13–4650
13–4652.

United States Court of Appeals, Second Circuit.

Argued: Dec. 2, 2014.
Decided: Dec. 8, 2015.

Amended: Dec. 17, 2015.


808 F.3d 146

Michael E. Elsner (John M. Eubanks, on the brief), Motley Rice LLC, Mount Pleasant, South Carolina, for Plaintiffs–Appellants.

Mark Werbner and Joel Israel, Sayles Werbner, PC, Dallas, TX, (on the brief), for Plaintiffs–Appellants.

Kevin Walsh (Douglas W. Mateyaschuk, II, Steven J. Young, on the brief), DLA Piper LLP, New York, New York, for Defendant–Appellee.

Stephen M. Shapiro, Timothy S. Bishop, Chad M. Clamage, Mayer Brown LLP, Chicago, IL, (on the brief), for Defendant–Appellee.

Richard L. Herz, EarthRights International, Washington, D.C., for Amici Curiae–Human Rights Organizations.

Tyler R. Giannini, Harvard Law School, International Human Rights Clinic, Cambridge, MA, for Amici Curiae–Professors of Legal History Barbara Aronstein Black, William R. Casto, Martin S. Flaherty, Nasser Hussain, Stanley N. Katz, John V. Orth, and Anne–Marie Slaughter.

Neal Kumar Katyal and Jessica L. Ellsworth, Hogan Lovells U.S. LLP, Washington, D.C., for Amicus Curiae–The Hashemite Kingdom of Jordan.

Douglas Hallward–Driemeier, Ropes & Gray LLP, Washington, D.C., for Amicus Curiae–Union of Arab Banks.

Jeffrey B. Wall, Sullivan & Cromwell LLP, Washington D.C., for Amicus Curiae–Institute of International Bankers.

Before: SACK, CHIN, and CARNEY, Circuit Judges.

SACK, Circuit Judge:

The plaintiffs in this case filed five separate lawsuits between 2004 and 2010 in the United States District Court for the Eastern District of New York against the defendant, Arab Bank, PLC. Oran Almog, et

808 F.3d 147

al. v. Arab Bank, PLC , No. 04–CV–5564 (E.D.N.Y. filed Dec. 21, 2004)2 ; Gila Afriat–Kurtzer, et al. v. Arab Bank, PLC, No. 05–CV–0388 (E.D.N.Y. filed Jan. 21, 2005)3 ; Joseph Jesner, et al. v. Arab Bank, PLC , No. 06–CV–3869 (E.D.N.Y. filed Aug. 9, 2006); Yaffa Lev, et al. v. Arab Bank, PLC, No. 08–CV–3251, 2008 WL 5354204 (E.D.N.Y. filed Aug. 11, 2008) ; Viktoria Agurenko, et al. v. Arab Bank, PLC , No. 10–CV–0626 (E.D.N.Y. filed Feb. 11, 2010).

The plaintiffs are aliens who were injured or captured by terrorists overseas, or family members and estate representatives of those who were injured, captured, or killed. The plaintiffs seek judgments against Arab Bank, PLC—a bank headquartered in Jordan with branches in various places around the world—for allegedly financing and facilitating the activities of organizations that committed the attacks that caused the plaintiffs' injuries. It is undisputed that, as a PLC,4 Arab Bank is a corporation for purposes of this appeal.

The plaintiffs allege violations by Arab Bank of the Anti–Terrorism Act (the "ATA"), 18 U.S.C. § 2333(a) (providing that "[a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States"), the Alien Tort Statute, 28 U.S.C. § 1350 (the "ATS")5 (providing that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States"), and federal common law.6 The ATS differs from the ATA in that, among other things, it provides jurisdiction only with respect to suits by "aliens," while the ATA provides jurisdiction only for suits by "national[s] of the United States."7

Between 2007 and 2010, the plaintiffs' federal common-law claims were dismissed as redundant and lacking what the district

808 F.3d 148

court called a "sound basis."8 On May 24, 2013, the defendant also moved to dismiss the plaintiffs' ATS claims, arguing that the law of this Circuit prohibits ATS suits against corporate entities. In their briefing in the district court, the plaintiffs responded to the defendant's arguments on their merits but also argued, in the alternative, that if the district court granted the defendant's motion, it should also reinstate the plaintiffs' federal common-law claims or permit the plaintiffs to plead related non-federal common-law claims.

On August 23,2013, the district court issued the following order:

The law of this Circuit is that plaintiffs cannot bring claims against corporations under the ATS. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.2010), aff'd, Kiobel v. Royal Dutch Petroleum Co., [––– U.S. ––––] 133 S.Ct. 1659 [185 L.Ed.2d 671] (2013). A decision by a panel of the Second Circuit "is binding unless and until it is overruled by the Court en banc or by the Supreme Court." Baraket v. Holder, 632 F.3d 56, 59 (2d Cir.2011). Because the Supreme Court affirmed [this Circuit's Kiobel decision] on other grounds, the Second Circuit's holding on corporate liability under the ATS remains intact. Nothing in the Supreme Court's affirmance undercuts the authority of the Second Circuit's decision. Plaintiffs' request to reinstate their federal common law claims or, in the alternative, assert non-federal common law claims is denied. The federal common law claims were dismissed not only as redundant, but also because Plaintiffs offered "no sound basis" for them. Almog v. Arab Bank, PLC, 471 F.Supp.2d 257 (E.D.N.Y.2007). Plaintiffs also offer no sound basis for repackaging these claims under unidentified "non-federal common law" theories.

Jesner v. Arab Bank , 06–CV–3869, Unnumbered Dkt. Entry on Aug. 23, 2013. Soon thereafter, judgments on the pleadings were entered in each of the individual cases as to the ATS claims. The plaintiffs filed timely appeals as to these claims.9

On appeal, the plaintiffs argue principally that this Circuit's opinion in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.2010) ("Kiobel I "), aff'd on other grounds, Kiobel v. Royal Dutch Petroleum Co., –––U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) ("Kiobel II "), when analyzed in light of the Supreme Court's decision in Kiobel II , is no longer "good law," or at least, does not control this case. The plaintiffs also contend that the facts alleged sufficiently touch and concern the territory of the United States as required under Kiobel II to support jurisdiction, although they request that we remand to the district court for an initial decision on this issue. Finally, and in the alternative,

808 F.3d 149

the plaintiffs request the opportunity either to reinstate their federal common-law claims or to amend their pleadings in order to plead non-federal common-law claims.

BACKGROUND

I. The Plaintiffs' Claims

The plaintiffs in the underlying cases are U.S. and foreign nationals who have brought suit against Arab Bank for its alleged role in facilitating terrorist operations that harmed the plaintiffs. While the underlying cases contain differing factual allegations, they are, as the plaintiffs assert, "based on the same nucleus of [purported] material facts." Appellants' Br. at 1 n.1. In recounting those facts to this Court, the plaintiffs' briefing relies heavily on the operative, amended complaint in Zur v. Arab Bank, PLC. In providing a summary of the facts of this case, we therefore draw, at times verbatim, from the district court's thorough opinion addressing a previous motion to dismiss by Arab Bank in Zur (sub nom. Almog v. Arab Bank, PLC, 471 F.Supp.2d 257 (E.D.N.Y.2007) ).10

According to the plaintiffs, over the past two decades, four prominent Palestinian terrorist organizations—the Islamic Resistance Movement ("HAMAS"), the Palestinian Islamic Jihad ("PIJ"), the Al Aqsa Martyrs' Brigade ("AAMB"), and the Popular Front for the Liberation of Palestine ("PFLP") (collectively "the terrorist organizations")11 —have conducted widespread murderous attacks, including suicide bombings, against citizens of Israel—mostly Jews. The terrorist organizations allegedly arranged those attacks in part by promising, and later delivering, financial payments to the relatives of "martyrs" who were killed—along with those who were injured or captured—while perpetrating the attacks. See Almog, 471 F.Supp.2d at 260–61.

The plaintiffs assert that the terrorist organizations funded these attacks in two ways. The organizations solicited public and private donations directly and deposited them in bank accounts throughout the Middle East. The organizations also raised funds through affiliated, purportedly charitable proxy organizations, including two entities created in Saudi Arabia: the Popular Committee for Assisting the Palestinian Mujahideen and the Saudi Committee for Aid to the Al–Quds Intifada (the "Saudi Committee"). These two organizations allegedly set up their own bank accounts, under the shared label "Account 98," at various banks in Saudi Arabia in order to hold funds collected for the families of "martyrs." See id. at 261–62.

According to the amended complaint, Arab Bank—one of the largest financial institutions in...

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