834 F.3d 201 (2nd Cir. 2016), 15-1580, Licci v. Lebanese Canadian Bank, SAL
|Citation:||834 F.3d 201|
|Opinion Judge:||WESLEY, Circuit Judge:|
|Party Name:||Yaakov Licci, a minor, by his father and natural guardian Elihav Licci and by his mother and natural guardian Yehudit Licci, et al., Elihav Licci, Yehudit Licci, Tzvi Hirsh, Arkady Graipel, Tatiana Kremer, Yosef Zarona, Tal Shani, Shlomo Cohen, Nitzan Goldenberg, Rina Dahan, Raphael Weiss, Agat Klein, Tatiana Kovleyov, Valentina Demesh, Rivka ...|
|Attorney:||Meir Katz (Robert J. Tolchin, on the brief), The Berkman, Law Office, LLC, Brooklyn, NY, for Plaintiffs-Appellants. Jonathan D. Siegfried (Douglas W. Mateyaschuk & Peter J. Couto, on the brief), DLA Piper LLP (US), New York, NY, for Defendant-Appellee.|
|Judge Panel:||Before: Sack, Wesley, and Lynch, Circuit Judges.|
|Case Date:||August 24, 2016|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Plaintiffs filed suit under the Alien Tort Statute (ATS), 28 U.S.C. 1350, seeking to hold LCB, a Lebanese bank headquartered in Beirut, liable for providing international financial services to Hezbollah that they claim facilitated Hezbollah’s 2006 attacks that injured them or killed family members. The district court dismissed the ATS claims under Kiobel v. Royal Dutch Petroleum Co., reasoning... (see full summary)
Argued: April 18, 2016
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Meir Katz (Robert J. Tolchin, on the brief), The Berkman, Law Office, LLC, Brooklyn, NY, for Plaintiffs-Appellants.
Jonathan D. Siegfried (Douglas W. Mateyaschuk & Peter J. Couto, on the brief), DLA Piper LLP (US), New York, NY, for Defendant-Appellee.
Before: Sack, Wesley, and Lynch, Circuit Judges.
WESLEY, Circuit Judge:
In July and August 2006, Hezbollah carried out a series of terrorist rocket attacks on civilians in Israel. Several dozen United States, Israeli, and Canadian civilians seek to hold Defendant-Appellee Lebanese Canadian Bank, SAL (“ LCB” ), a Lebanese bank headquartered in Beirut, liable for providing international financial services to Hezbollah that they claim facilitated Hezbollah’s attacks that injured them or killed family members. These civilians assert claims against LCB under the Anti-Terrorism Act and Israeli tort law. 1 In addition, some of the Israeli and Canadian plaintiffs (collectively, “ Plaintiffs” ) assert claims under the Alien Tort Statute, 28 U.S.C. § 1350 (the “ ATS” )— these claims are the subject of the present opinion. 2
This case is not new to our Court. In fact, this appeal is in its third appearance before us in the last five years. In our prior opinions, we determined (with an assist from the New York Court of Appeals, see Licci v. Lebanese Canadian Bank, SAL, 20 N.Y.3d 327, 339, 960 N.Y.S.2d 695, 984 N.E.2d 893 (2012) (“ Licci III ” )) that the District Court had personal jurisdiction over defendant LCB, and that subjecting the foreign bank to personal jurisdiction in New York comports with due process protections provided by the
United States Constitution. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 165 (2d Cir. 2013) (“ Licci IV ” ); Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 73-74 (2d Cir. 2012) (“ Licci II ” ). This case presents a different question: Whether the District Court has subject matter jurisdiction over Plaintiffs’ ATS claims. The District Court dismissed the ATS claims under Kiobel v. Royal Dutch Petroleum Co., __ U.S. __, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) (“ Kiobel II ” ), reasoning that Plaintiffs failed to displace the presumption against extraterritorial application of the ATS. Though we disagree with the District Court’s basis for dismissal, we affirm because the ATS claims seek to impose corporate liability in contravention of our decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 145 (2d Cir. 2010) (“ Kiobel I ” ).
I. Plaintiffs’ Complaint
According to Plaintiffs’ complaint, Hezbollah,  a terrorist organization, fired thousands of rockets into northern Israel between July 12, 2006 and August 14, 2006. App. 58, 66. Plaintiffs or their family members were injured or killed by these attacks. See App. 54.
LCB is a Lebanese bank with no branches, offices, or employees in the United States. Licci IV, 732 F.3d at 165; Licci II, 673 F.3d at 56. To effectuate U.S.-dollar-denominated transactions, LCB maintained a correspondent bank account with defendant American Express Bank Ltd. (“ AmEx” ) in New York.  Licci IV, 732 F.3d at 165; Licci II, 673 F.3d at 56. Plaintiffs allege that LCB used this account to conduct dozens of international wire transfers on behalf of the Shahid (Martyrs) Foundation (“ Shahid” ), an entity that maintained bank accounts with LCB and that Plaintiffs allege to be an “ integral part” of Hezbollah and “ part of [its] financial arm.” App. 65; see also id. (alleging that the Shahid-titled bank accounts “ belonged to [Hezbollah] and were under the control of [Hezbollah]” ). These wire transfers, which totaled several million dollars, “ substantially increased and facilitated [Hezbollah’ s] ability to plan, to prepare for[,] and to carry out” the rocket attacks that injured Plaintiffs. App. 66, 86. Plaintiffs further allege that LCB carried out the wire transfer services from 2004 until the rocket attacks began on July 12, 2006, and “ subsequently” continued to carry out those transfers. App. 66.
As relevant here, Plaintiffs contend that LCB’s role in conducting those wire transfers on Shahid’s behalf amounted to aiding and abetting genocide, war crimes, and crimes against humanity in violation of international law, and is actionable under the Alien Tort Statute. App. 110. They allege that LCB had “ actual knowledge” that Hezbollah was a violent terrorist organization, as reflected on official U.S.
government lists, 6 and that Shahid was “ part of [Hezbollah’ s] financial arm.” App. 88-90. They assert that the bank accounts held by LCB “ were owned and controlled by [Hezbollah],” and that the wire transfers carried out by the bank were “ by and at the direction of [Hezbollah].” App. 90. According to Plaintiffs’ complaint, LCB carried out various wire transfer services between Hezbollah...
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