Freeman v. HSBC Holdings PLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CHARLOTTE FREEMAN, et al.,

Plaintiffs, MEMORANDUM & ORDER

14-CV-6601 (PKC) (CLP)

- against -

HSBC HOLDINGS PLC, et al.,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiffs, a group of American citizens killed or injured by terrorist attacks in Iraq, and/or

their families, filed this action in November 2014 against ten banking institutions1 and John

Does 1–50, seeking damages pursuant to the Antiterrorism Act (the “ATA”), 18 U.S.C. § 2333, as

now amended by the Justice Against State Sponsors of Terrorism Act (“JASTA”), codified at 18

U.S.C. § 2333(d).2 Freeman v. HSBC, No. 14-CV-6601 (PKC) (CLP) (“Freeman I”). On

September 16, 2019, the Court dismissed the action for lack of personal jurisdiction and failure to

state a claim pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). Freeman v.

HSBC Holdings PLC, 413 F. Supp. 3d 67, 73 (E.D.N.Y. 2019) (“Freeman I Dismissal”). On

1 The ten banking institutions are HSBC Holdings, PLC; HSBC Bank PLC; HSBC Bank

Middle East Ltd.; HSBC Bank USA, N.A.; Barclays Bank PLC; Standard Chartered Bank

(“SCB”); Royal Bank of Scotland, N.V.; Credit Suisse AG; Bank Saderat PLC (“Saderat”); and

Commerzbank AG (“Commerzbank”) (collectively, except Saderat, “Defendants”). Because

Saderat has effectively defaulted in this action, (see 10/8/2019 Dkt. Order; Dkt. 271; 1/12/2024

Dkt. Order), and has not filed an opposition to Plaintiffs’ motion to vacate, all references to

“Defendants” in this Memorandum & Order do not include Saderat.

2 JASTA was enacted during the pendency of this case. See Pub. L. No. 114-222, 130

Stat. 852 (Sep. 28, 2016). JASTA applies to pending civil actions “arising out of an injury to a

person, property, or business on or after September 11, 2001.” See id. §7 (2), 130 Stat. at 855.

January 5, 2023, the Second Circuit affirmed the dismissal of this action, on other grounds.

Freeman v. HSBC Holdings PLC, 57 F.4th 66 (2d Cir. 2023) (“Freeman Appeal”), cert. denied,

144 S. Ct. 83 (2023). Now pending before the Court is Plaintiffs’ motion to vacate the dismissal

of this action so that they may seek leave to file an amended complaint. For the reasons set forth

below, the Court denies Plaintiffs’ motion, and this action remains closed.

BACKGROUND

The Court assumes the parties’ familiarity with the background of this case, see Freeman

I Dismissal, 413 F. Supp. 3d 67, and therefore sets forth only the relevant factual and procedural

background.

I. Factual Background

The majority of Plaintiffs are American citizens who served as part of the Coalition Forces

in Iraq from 2004 to 2011 and were injured or killed by terrorist attacks in Iraq during that time.

(Second Am. Compl. (“SAC”), Dkt. 115, ¶¶ 7–9.)3 Plaintiffs allege that Defendants engaged in a

wide-ranging conspiracy dating back to 1987 to evade U.S. sanctions on financial and business

dealings with Iran, conduct illicit trade-finance transactions, conceal the involvement of Iranian

agents in financial payments to and from U.S. dollar-denominated accounts, and facilitate Iran’s

provision of material support to terrorist activities and organizations, including Hezbollah.4 (SAC,

3 Plaintiffs include several non-military members, such as Steven Vincent, a reporter

covering the Iraq War, and a translator, Ahmed Al-Taie. Freeman I Dismissal, 413 F. Supp. 3d

at 74 n.10; (see also SAC, Dkt. 115, ¶¶ 1232–40, 1388–1400).

4 Hezbollah is a designated terrorist organization and political party based in Lebanon that

Plaintiffs allege to have used, both directly and through its agents and auxiliaries, improvised

explosive devices to maim and kill Americans in Iraq. It was designated a foreign terrorist

organization (“FTO”) in 1997. (SAC, Dkt. 115, ¶ 229.)

Dkt. 115, ¶¶ 22–23.) Through Defendants’ alleged engagement in “stripping,”5 among other

activities, organizations designated by the U.S. as FTOs6 and Specially Designated Global

Terrorists (“SDGTs”)7 were able to illegally avail themselves of United States financial

institutions, markets, and instruments without alerting other banks or the United States authorities.

(See, e.g., id. ¶¶ 25, 40–45, 194–95, 372, 482, 673, 1011.) Plaintiffs claim injury under the ATA

based on Defendants’ alleged direct and indirect provision of material support for terrorism to and

conspiracy with FTOs and SDGTs. (Id. ¶¶ 2179–2293.)

II. The ATA and JASTA

A. The ATA

The ATA, which was passed in 1990, “affords a civil action for damages to United States

nationals injured by acts of international terrorism.” Linde v. Arab Bank, PLC, 882 F.3d 314, 319

(2d Cir. 2018). However, the ATA only provides for civil relief “against the principals perpetrating

acts of international terrorism.” Id. “It provide[s] no civil action against secondary actors who,

while not committing international terrorist acts themselves, facilitated such acts by others.” Id.

at 319–20 (citing Rothstein v. UBS AG, 708 F.3d 82, 97 (2d Cir. 2013)). Furthermore, the ATA’s

scope only extends to violent acts of international terrorism, since the ATA defines “international

terrorism” as “activities that . . . [inter alia] involve violent acts or acts dangerous to human life

5 “Stripping” involves removing or otherwise altering certain information on payment

messages sent through U.S. correspondent banks. (See, e.g., id. ¶ 25.)

6 The Secretary of State is authorized to designate foreign organizations as FTOs under

Section 219 of the Immigration and Nationality Act. 8 U.S.C. § 1189(a)(1).

7 The United States Department of the Treasury designates SDGTs pursuant to Executive

Order 13224. See 31 C.F.R. § 594.310 (“The term . . . SDGT means any person whose property

and interests in property are blocked pursuant to [31 C.F.R] § 594.201(a).”). The United States

may block the property of and prohibit transactions with any entity designated as an SDGT.

Freeman I Dismissal, 413 F. Supp. 3d at 74 n.7.

that are a violation of the criminal laws of the United States or of any State, or that would be a

criminal violation if committed within the jurisdiction of the United States or of any State.” 18

U.S.C. § 2331(1); see Linde, 882 F.3d at 326 (“[T]o qualify as international terrorism, a

defendant’s act must also involve violence or endanger human life.” (citing id.)). For purposes of

the ATA, “the provision of material support to a terrorist organization does not invariably equate

to an act of international terrorism,” because “providing financial services to a terrorist

organization” does not necessarily “involve violence or endanger life and do[es] not manifest the

apparent intent required by § 2331(1)(B).” Linde, 882 F.3d at 326.

B. JASTA

In recognition of the ATA’s limitations, on September 28, 2016, Congress passed JASTA,

which created “a new provision, codified at 18 U.S.C. § 2333(d)(2) [(‘§ 2333(d)’)], that explicitly

recognize[s] secondary liability—aiding-and-abetting and conspiracy—for a claim brought under

[§] 2333(a).”8 Freeman Appeal, 57 F.4th at 73–74 (citing 18 U.S.C. § 2333(d)(2)). JASTA also

expanded the definition of a “person” under the relevant statute to encompass “corporations,

companies, associations, firms, partnerships, societies, and joint stock companies, as well as

individuals.” Id. at 76 (first quoting 1 U.S.C. § 1; and then citing 18 U.S.C. § 2333(d)(1)).

Congress also “made JASTA’s secondary-liability provision retroactive to all cases pending at the

time of the enactment.” Id. at 73–74 (citing Pub. L. No. 114–222, § 7(1), 130 Stat. at 855).

Through this expansion in the scope of liability, Congress sought “to provide civil litigants with

the broadest possible basis, consistent with the Constitution of the United States, to seek relief

against persons, entities, and foreign countries . . . that have provided material support, directly or

indirectly, to foreign organizations or persons that engage in terrorist activities against the United

8 Hereinafter, the Court refers to the ATA and § 2333(a) interchangeably, and JASTA and

§ 2333(d) interchangeably.

States.” Id. at 76 (quoting Pub. L. 114-222, § 2(b), 130 Stat. at 853). With the passage of JASTA,

claims that had failed under the ATA due to a lack of proximate causal link to a violent terrorist

act became more viable. See Linde, 882 F.3d at 328–29 (discussing potential impact of “JASTA’s

expansion of ATA liability” on aiding-and-abetting claims that had failed to “establish causation”

in relation to terrorism acts, as required by ATA).

III. Procedural History

A. Freeman I

Plaintiffs filed their original complaint in this matter on November 10, 2014, which was

assigned to the Honorable Dora Irizarry, District Judge. Freeman I Dismissal, 413 F. Supp. 3d

at 75. Plaintiffs thereafter filed two amended complaints, with which they added Commerzbank

and SCB as new defendants. Id. The operative SAC was filed on August 17, 2016. (SAC,

Dkt. 115.) At that time, only the ATA causes of action were available to Plaintiffs.

On September 14, 2016, Defendants moved to dismiss the SAC. (Dkts. 119–124 (filed on

November 10, 2016, pursuant to Judge Irizarry’s bundling preferences).) On October 11, 2016,

Plaintiffs filed their omnibus response (“Omnibus Response”), in which they pointed to the newly

passed JASTA as providing “an alternative legal basis for Plaintiffs’ conspiracy claims.”

(Omnibus Resp., Dkt. 125,9 at 31 (filed on November 10, 2016, pursuant to the district’s bundling

preferences).) On July 11, 2017, Judge Irizarry referred the pending motions to dismiss to the

Honorable Cheryl L. Pollak, Magistrate Judge. (7/11/2017 Dkt. Order.)

On July 27, 2018, Judge Pollak issued her Report and Recommendation (“R&R”), in which

she recommended denying Defendants’ dismissal motions in their entirety. (R&R, Dkt. 165.)

9 Although Plaintiffs filed two “Omnibus Responses” at Dkts. 117 and 125, one was

directed solely at Saderat’s motion to dismiss, (Dkt. 116), and the other at Defendants’ motion to

dismiss, (Dkt. 119), respectively. Plaintiffs’ filings are identical, and so the Court only refers to

Dkt. 125.

Notably, Judge Pollak’s comprehensive R&R discussed the standards for both conspiracy and

aiding and abetting under the ATA and JASTA, (see R&R, Dkt. 165, at 25–30 (discussing primary

liability standards under the ATA), 30–47 (discussing secondary liability standards under the ATA

through JASTA, including conspiracy and aiding and abetting)), but analyzed Plaintiffs’ claims

only “in light of the conspiracy [secondary liability] principles” set forth in Halberstam v. Welch

(“Halberstam”), 705 F.2d 472 (D.C. Cir. 1983)10, (id. at 49), and the primary liability standards

applicable to the predicate acts recognized by the ATA, (id. at 49 n.40, 105).11 Though Judge

Pollak noted that “many of [Plaintiffs’] claims would also fall under an aiding-abetting theory,”

she specifically stated that Plaintiffs had not pleaded aiding-and-abetting claims. (Id. at 49 n.42.)

Defendants filed objections to the R&R on August 31, 2018, in which they highlighted that

“Plaintiffs and the R&R do not suggest that Plaintiffs’ First or Second Claims for Relief allege the

elements of secondary aiding[-]and[-]abetting liability.” (R&R Obj., Dkt. 174, at 6 n.4 (citing

Omnibus Resp., Dkt. 125, at 32).) Plaintiffs did not contest this in their response. (See generally

R&R Obj. Opp’n., Dkt. 183.) Instead, Plaintiffs’ post-R&R filings did not contest Defendants’

characterization of their claims and identified Defendants’ “aiding[-]and[-]abetting cases” as

10 As Judge Pollak explained, “[i]n addition to defining who can be held liable under

§ 2333(d), Congress incorporated into JASTA an instruction that courts, when assessing secondary

liability, should apply the test found in Halberstam.” (R&R, Dkt. 165, at 37 (first citing Pub.

L. 114-222 § 2(a)(5), 130 Stat. at 852; and then citing Linde, 882 F.3d at 328).)

11 The conduct proscribed by 18 U.S.C. §§ 2332d, 2339A, and 2339B are the material

support statutes that serve as the predicates upon which a § 2333(a) conspiracy can be brought.

§ 2332d makes it illegal for any “United States person, knowing or having reasonable cause to

know that a country is designated under section 6(j) of the Export Administration Act

of 1979 . . . as a country sponsoring international terrorism,” to “engage[] in a financial transaction

with the government of that country[.]” 18 U.S.C. § 2332d. § 2339A defines “material support”

in aid of a violation of certain criminal statutes. 18 U.S.C. § 2339A. § 2339B prohibits

“knowingly provid[ing] material support or resources to [an FTO],” or attempting or conspiring to

do so. 18 U.S.C. § 2339B.

“inapposite.” (Id. at 26 n.15 (rejecting Defendants’ reliance on Owens v. BNP Paribas, S.A., 897

F.3d 266 (D.C. Cir. 2018), because “it is an aiding and abetting case”).)12 Plaintiffs also endorsed

Judge Pollak’s application of JASTA to their conspiracy claims. (Id. at 6 (“Judge Pollak

recognized that the allegations of Plaintiffs’ pre-JASTA Complaint plausibly supported ‘not only’

their claims for primary liability with the character of conspiracy, but also JASTA § 2333(d)(2)

liability for conspiracy.”).)

On October 30, 2018, while Defendants’ objections to the R&R were pending, Plaintiffs

requested leave from Judge Pollak to “join” over 400 new plaintiffs who had retained or were

expected to retain Plaintiffs’ counsel since the filing of the SAC and whose claims would soon be

barred by the statute of limitations. (Joinder Mot., Dkt. 185, at 1.) Plaintiffs’ counsel proposed

joining these 400-plus plaintiffs via a third amended complaint (“TAC”), which would not add any

new causes of action. (Id. at 2.) Defendants opposed the proposed addition of new plaintiffs,

arguing that it would “more than doubl[e] the existing number[,] . . . [and] nearly doubles the

number of attacks alleged, from 92 to 173.” (Dkt. 201, at 2.) Ultimately, on December 11, 2018,

Plaintiffs notified Judge Pollak that they had “decided to file a related case rather than to amend

the current Freeman complaint,” and the TAC was not filed. (Dkt. 202, at 1.)

B. Freeman II and Bowman

On December 26, 2018, Plaintiffs filed a new action, Freeman et al. v. HSBC Holdings

PLC et al., No. 18-CV-7359 (PKC) (CLP) (“Freeman II”), on behalf of the additional plaintiffs

proposed in Freeman I. On April 11, 2019, Plaintiffs’ counsel filed an additional action in this

district, Bowman et al. v. HSBC Holdings PLC et al., No. 19-CV-2146 (PKC) (CLP) (“Bowman”),

12 In a footnote to their discussion regarding their Seventh Claim, asserted only against

SCB, Plaintiffs stated, “Claim VII is properly analyzed through the prism of aiding-and-abetting

principles of proximate cause.” (R&R Obj. Opp’n., Dkt. 183, at 44 n.25.) The Court discusses

Plaintiffs’ Seventh Claim supra.

against the same defendants, though on behalf of different plaintiffs. In addition to the claims

asserted in Freeman I, both Freeman II and Bowman asserted conspiracy and aiding-and-abetting

claims under JASTA. Compl., Freeman II, No. 18-CV-7359, Dkt. 1, at ¶ 3683–777; Compl,

Bowman, No. 19-CV-2146, Dkt. 1, at ¶¶ 1291–385. Bowman was randomly assigned to the

undersigned. Bowman, No. 19-CV-2146, 4/16/2019 Dkt. Order. Later, Freeman I and Freeman

II were both reassigned to the undersigned as well. (5/8/2019 Dkt. Order); Freeman II,

No. 18-CV-7359, 5/8/2019 Dkt. Order.

On May 30, 2019, the Court held a pre-motion conference to discuss the status of

Freeman I, Freeman II, and Bowman with the parties, including the proposed motions to dismiss

in Freeman I. (5/30/2019 Min. Entry.) During the conference, the Court noted “that [Plaintiffs]

didn’t amend in Freeman I to add the JASTA claim, but . . . everyone has treated the case as if it

was amended to include that claim,” concluding that amendment would be “somewhat of a

formality at this point.” Hr’g. Tr., Freeman II, No. 18-CV-7359, Dkt. 66, at 19:9–17. However,

the Court also stated that while “everyone assumed that JASTA applies, even though there wasn’t

a formal JASTA claim” in the Freeman I complaint, the parties would “need to probably go

through the formality of having [Plaintiffs] resubmit a complaint [under JASTA] if we get past the

motion to dismiss phase so that it’s clear exactly what the claims are going forward.” Id. at 11:13–

14; 19:25–20:3.

C. The Dismissal and Reconsideration Motion in Freeman I

On September 16, 2019, the Court dismissed the SAC in its entirety. Freeman I Dismissal,

413 F. Supp. 3d 67. The Court declined to adopt Judge Pollak’s recommendation to deny

Defendants’ motions to dismiss, instead finding that Plaintiffs had “failed to adequately allege the

threshold requirements for both primary liability under § 2333(a) and secondary conspiracy

liability under § 2333(d)(2).” Id. at 98–99. The Court analyzed Plaintiffs’ conspiracy claims under

both primary liability (ATA) and secondary liability (JASTA), see id. at 81–82, 95, and construed

Plaintiffs’ primary liability claims as “assert[ing] that Defendants [had] violated 18 U.S.C.

§ 2339A and 18 U.S.C. § 2339B by conspiring to provide material support to Iran, despite knowing

or being deliberately indifferent to the fact that Iran provides financial, material, and logistical

support to terrorist organizations, including FTOs such as Hezbollah,” id. at 84.

On September 26, 2019, Plaintiffs filed a motion for “partial reconsideration of the Court’s

dismissal of Plaintiffs’ primary and secondary liability conspiracy claims against [Saderat], and

dismissal of Plaintiffs’ secondary liability aiding[-]and[-]abetting and conspiracy claims against

[SCB].” (Mot. Recons. Mem., Dkt. 239-1, at 1.) In their procedural overview, Plaintiffs noted

that “because the amendment [i.e., the addition of § 2333(d)(2) under JASTA] occurred before

briefing of Defendants’ motions to dismiss was completed, . . . JASTA provided an alternative

basis for recovery under the SAC.” (Id. at 4 (citing Omnibus Resp., Dkt. 125, at 313).) Notably,

Plaintiffs observed that “[w]hile this Court subsequently recognized that ‘all of the claims’ were

also brought under JASTA, . . . its analysis . . . focused solely on § 2333(d)(2)’s conspiracy

elements” and, “[b]ecause of the procedural history of this litigation,” “did not directly address

Defendants’ alternative § 2333(d)(2) liability for aiding and abetting.” (Id. at 11 n.6.) On

October 10, 2019, SCB responded that “Plaintiffs expressly disclaimed that they were making any

13 The page Plaintiffs cite to in their Omnibus Response states, in relevant part: “Plaintiffs’

First and Second Claims for Relief against all Defendants are predicated on the incorporated

criminal conspiracy provisions of 18 U.S.C. § 2339A and § 2339B, (as well as [Pub. L.

No. 114-222] § 4(a), adding § 2333(d) to the ATA)”; and “[u]nder both settled Second Circuit

precedent and the legal framework Congress has expressly found applicable in [Pub. L.

No. 114-222] § 2(a)(5), Defendants are liable for all of the foreseeable acts of the conspiracy they

willingly joined.” (Omnibus Resp., Dkt. 125, at 3 (emphases added).)

such [aiding-and-abetting] claim in an April 2019 submission to the Court (Dkt. No. 22214), and

that Plaintiffs’ effort to recast their failed conspiracy claim as an aiding[-]and[-]abetting claim

improperly ‘presents the case under a new theory.’” (Defs. Recons. Resp., Dkt. 242, at 3 (cleaned

up and citations omitted).) On October 17, 2019, Plaintiffs replied, inter alia, that “[u]nlike the

First and Second Claims, which expressly alleged conspiracy, the Seventh Claim alleged knowing,

substantial assistance—i.e., aiding and abetting—as a primary liability claim.” (Recons. Reply,

Dkt. 243, at 7–8.) Further, Plaintiffs stated that their April 2019 submission to the Court, Dkt. 222,

“never ‘expressly disclaim[ed]’ anything” but rather differentiated the aiding-and-abetting case

law that Defendants had raised because some of the case law “involved claims predicated solely

on aiding and abetting, whereas Plaintiffs’ § 2333(d) claims ‘here are premised on conspiracy.’”

(Id. at 8 (citing Dkt. 222).)

On October 28, 2019, the Court held oral argument on Plaintiffs’ motion for

reconsideration. (10/28/2019 Min. Entry.) While Plaintiffs represented that the “key question”

regarding Plaintiffs’ motion for reconsideration was “whether the Court overlooked the

14 Dkt. 222 is an April 24, 2019 letter from Plaintiffs that is part of a back-and-forth

between the parties concerning supplemental authority. (See, e.g., Dkt. 217 (Defendants’ notice

of supplemental authority); Dkt. 218 (Plaintiffs’ first response); Dkt. 220 (Defendants’ reply);

Dkt. 222 (Pls.’ second response).) On March 29, 2019, Defendants notified Judge Irizarry of a

Southern District of New York decision granting dismissal of a complaint asserting claims “for

primary liability and secondary liability under the ATA including JASTA,” O’Sullivan v. Deutsche

Bank AG, No. 17-CV-8709 (LTS) (GWG), (Dkt. 217, at 1), which is now reported at 2019

WL 1409446 (Mar. 28, 2019). In reply to Plaintiffs’ arguments distinguishing O’Sullivan,

Defendants claimed that Judge Irizarry had “rejected that very argument” when granting summary

judgment to defendants in two decisions involving similar ATA and/or JASTA claims, Weiss v.

Nat’l Westminster Bank PLC, No. 05-CV-4622 (DLI) (RML), 2019 WL 1441118 (E.D.N.Y.

Mar. 31, 2019), and Strauss v. Credit Lyonnais, S.A., No. 06-CV-0702 (DLI) (RML), 2019

WL 1492902 (E.D.N.Y. Mar. 31, 2019). (Dkt. 220, at 2.) In their April 24, 2019 letter, Plaintiffs’

second response in this discussion, they disputed the applicability of Weiss and Strauss, arguing

that both involved aiding-and-abetting claims and were therefore “largely irrelevant to the legal

issues presented by Freeman,” because “the claims here are premised on conspiracy.” (Dkt. 222,

at 1.)

significance of the [Islamic Revolutionary Guard Corps]’s designation as an FTO” and any

potential impact of this on the Court’s causation analysis, (10/28/2019 Hr’g Tr., Dkt. 248,

at 10:21–25), Plaintiffs also represented that “the only other procedural issue” was that the Court’s

September 16, 2019 decision dismissing the SAC “did not directly address aiding[-]and[-]abetting

claims under . . . JASTA.” (Id. at 9:4–6.) The Court responded:

To the extent that I said at the first meeting with all the parties that I’m assuming

that the claims are being construed under JASTA as well or broader under JASTA

as well, I was not in any way endorsing the theory that you were alleging aiding

and abetting along with conspiracy under JASTA. In fact, I did not think that based

on the letter that’s been cited by SCB which was docketed as 222. I read that letter,

and I understand what you’re saying about the second part of the letter, but the letter

seemed to stake out the position at least to my mind that the plaintiffs were relying

on the conspiracy theory both for purposes of primary liability under the ATA and

then also under JASTA. That certainly was the focus of the briefing thereafter.

[ . . . ] [W]hen you said that the decisions cited by [D]efendants . . . had no legal

relevance, one of your main points was that those cases talked about

aiding[-]and[-]abetting liability and didn’t talk about conspiracy. So that, to me,

signaled the fact that your claims were about conspiracy, even though you

suggested later that even if one considered them for purposes of their aiding and

abetting relevance, they didn’t preclude your claims.

Nowhere in any of your submissions have you actually used the words, [w]e are

alleging aiding[-]and[-]abetting liability under JASTA, and even in your briefing

now, you simply say that one of the elements is met, namely, a general awareness

of the terrorist activities of some of these entities that they provided banking

services for, but I just think the way you proceeded is not exactly or I find it a little

disingenuous, to be perfectly frank, because you never declared in this case that

you were advancing an aiding[-]and[-]abetting theory.

There’s been so much briefing for the last year and a half or two years, that it

seemed to me at some point, post JASTA, and I realize the briefing started before

JASTA, that in these many submissions that I’ve received, that you would have

clarified that you were actually claiming aiding[-]and[-]abetting liability [to me or]

to . . . Chief Judge Irizarry who had the case before me. I think the defense has a

theory as to why you didn’t do that, because of some of the decisions Judge Irizarry

wrote, but nonetheless, I wanted to be clear that I didn’t actually believe or interpret

your [claims alleged] aiding[-]and[-]abetting liability under JASTA even after the

statute was passed.

(Id. at 44:18–46:14.) Plaintiffs countered that their Sixth Claim, against Commerzbank, and

Seventh Claim, against SCB, “were what [they] would call aiding[-]and[-]abetting claims,” in

comparison to the other claims, which “focused on conspiracy” and “[were] always the focus of

the parties’ exchanges.” 15 (Id. at 57:24–58:9, 58:6–9.) Ultimately, the Court “still consider[ed]

[Plaintiffs’] arguments . . . under a theory of aiding[-]and[-]abetting liability,” (id. at 46:16–17),

and noted that it would not “preclude [P]laintiffs from amending [to include this theory], if we get

to that point,” (id. at 45:6–9). Having found that it had “considered both the facts and the law that

the [P]laintiffs are relying on for reconsideration” and that Plaintiffs had failed to show the

requisite “extraordinary circumstances” required to overcome the strict standard applicable, the

Court denied Plaintiffs’ motion for reconsideration. (Id. at 60:16–61:16.)

D. Potential Consolidation of Freeman I and II and Bowman for Appeal

During the October 28, 2019 oral argument on Plaintiff’s motion for reconsideration, the

parties also discussed consolidating Freeman I, Freeman II, and Bowman in order to facilitate one

Notice of Appeal. (See id. at 62–63.) Plaintiffs argued that “it might make sense to write a

consolidated complaint” that included the JASTA claims “elucidate[d]” by the Freeman II and

Bowman complaints. (See id. at 63:11–21.) The Court agreed that “that is certainly an option”

and that “if [Plaintiffs] wanted to do that and the defense could go through the motions, so to speak,

of moving to dismiss, [the Court] could issue a ruling.” (Id. at 63:22–64:3.) However, the Court

noted that an agreement, rather than a consolidated amendment, “probably [made] more sense in

terms of conserving . . . resources.” (Id. at 64:3–7.) “[I]f it happens that my decision is reversed

in whole or in part, then you can file an Amended Complaint at that time.” (Id. at 64:4–6.) The

15 Plaintiffs’ Sixth Claim for relief asserted civil liability against Commerzbank under

§ 2333(a) for violations of 18 U.S.C. § 2339B; Plaintiffs’ Seventh Claim for relief asserted civil

liability against SCB bank under § 2333(a) for violations of 18 U.S.C. § 2339A. (SAC, Dkt. 115,

at 332, 334.)

parties agreed that they would confer and provide the Court with a joint proposal within 30 days,

or by November 27, 2019. (Id. at 64–65.)

E. Plaintiffs’ Notice of Appeal16 in Freeman I

The Court then tolled the deadline for Plaintiffs to notice their appeal until

November 27, 2019. (10/28/2019 Min. Entry.) However, on November 4, 2019, the Second

Circuit issued a summary order in Ren Yuan Deng v. New York State Office of Mental Health, 783

F. App’x 72 (2d Cir. 2019) (summary order), limiting the Court’s authority to toll or extend the

period for parties to notice their appeal. On November 25, 2019, the Court notified the parties of

the Deng decision and directed them to indicate how they wished to proceed with respect to all

three cases. (11/25/2019 Dkt. Order.) The next day, November 26, 2019, before responding to

the Court’s November 25, 2019 docket order17, Plaintiffs noticed their appeal in Freeman I.

(Notice of Appeal, Dkt. 246.) Further, despite conferring, the parties were “unable to agree on the

form of the stipulated dismissal” of the aiding[-]and[-]abetting claims in Freeman II and Bowman,

because Plaintiffs “declined to agree to [Defendants’] proposed stipulation and dismissal order”

that “would make express the reasons for dismissing aiding[-]and[-]abetting claims in those cases,”

given that these claims had not been previously raised nor disposed of in the Freeman I Dismissal.

(11/27/2019 Joint Letter, Dkt. 247, at 3.)18

16 Plaintiffs appealed both the Freeman I Dismissal and the Court’s denial of their motion

for reconsideration. (See Notice of Appeal, Dkt. 246.)

17 The parties’ joint response to the Court’s November 25, 2019 docket order was filed on

November 27, 2019.

18 In support of their argument that the Freeman I Plaintiffs had “chose[n] to pursue only

a conspiracy theory of liability,” Defendants cited numerous instances where Plaintiffs had “made

this clear”: Dkt. 117 at 31–32 (applying discussion of JASTA to “Plaintiffs’ conspiracy claims,”

with no mention of aiding-and-abetting claims); Dkt. 183 at 6–7 (arguing Plaintiffs’ complaint

supports JASTA “liability for conspiracy,” with no mention of aiding and abetting); Dkt. 218 at 2–

4 (arguing O’Sullivan, 2019 WL 1409446, did not apply the proper framework to “§ 2333(d)

F. Dismissal of Freeman II and Bowman

Freeman II and Bowman initially proceeded without consolidation. On December 2, 2019,

the Court granted the Freeman II plaintiffs leave to amend their complaint, Freeman II,

No. 18-CV-7359, 12/2/2019 Dkt. Order, and did the same for the Bowman plaintiffs on

December 18, 2019, Bowman, No. 19-CV-2146, 12/18/2019 Dkt. Order. The Freeman II

plaintiffs filed their First Amended Complaint on December 16, 2019, Freeman II,

No. 18-CV-7359, Dkt. 72, and the Bowman plaintiffs did the same on December 20, 2019,

Bowman, No 19-CV-2146, Dkt. 21. On January 6, 2020, Defendants moved to dismiss both cases.

Freeman II, No. 18-CV-7359, Dkt. 75; Bowman, No 19-CV-2146, Dkt. 34. On June 5, 2020, the

Court dismissed both cases. Freeman v. HSBC Holdings PLC (“Freeman II Dismissal”), 465 F.

Supp. 3d 220 (E.D.N.Y. 2020). Given the Freeman I Dismissal, which discussed Plaintiffs’

conspiracy theories at length, the Court focused exclusively on the aiding-and-abetting theories in

the Freeman II Dismissal. Id. at 225–26.

The Court consolidated Freeman II and Bowman into Freeman II on July 13, 2023.

Freeman II, No. 18-CV-7359, 7/13/2023 Dkt. Order. On December 27, 2023, and March 28, 2025,

the Freeman II plaintiffs filed, respectively, a Second Amended Complaint and a Third Amended

Complaint, Freeman II, No. 18-CV-7359, Dkts. 117, 137. Defendants filed a motion to dismiss

the Third Amended Complaint in Freeman II on July 16, 2025. Freeman II, No. 18-CV-7359,

Dkt. 143. That motion is currently pending.

Conspiracy Claims,” with no mention of aiding and abetting); Dkt. 222 at 2 (attempting to

distinguish Weiss and Strauss from Freeman I because “[f]irst, the claims here are premised on

conspiracy” and not aiding and abetting); and Dkt. 235 at 3–4 (attempting to distinguish Siegel,

933 F.3d 217, based on argument that Freeman I claims are “predicated on conspiracy” rather than

aiding and abetting). (11/27/2019 Joint Letter, Dkt. 247, at 3 n.3.)

G. Affirmance of Freeman I Dismissal

On January 5, 2023, the Second Circuit upheld the Freeman I Dismissal, albeit on different

grounds, and found that Plaintiffs had forfeited their aiding-and-abetting claims. See Freeman

Appeal, 57 F.4th at 72. As discussed in more detail, supra, the Circuit “agree[d] with the district

court that Plaintiffs forfeited their JASTA aiding-and-abetting claims by raising them for the first

time in a motion for reconsideration.” Id. The Circuit found that “Plaintiffs never asserted JASTA

aiding-and-abetting liability in their opposition to the Banks’19 motion to dismiss or in their

response to the Banks’ objections to [Judge Pollak’s R&R], despite ample opportunity to do so.”

Id. at 83. Rejecting Plaintiffs’ argument that the SAC could be sustained on “any legal theory that

its allegations, fairly construed, support,” id., the Circuit noted that “the [SAC] does not merely

articulate an imperfect statement of the legal theory supporting the claim asserted; it asserts only

a conspiracy theory, with no reference to aiding and abetting whatsoever. Plaintiffs’ subsequent

briefs before the district court do the same.” Id. (internal quotations and citations omitted).

Ultimately, it held that “Plaintiffs have not articulated any excuse that would warrant the exercise

of” the discretion courts have “to consider untimely arguments such as Plaintiffs’ aiding-and-

abetting claims.” Id. at 83.

H. Plaintiffs’ Motion to Vacate

Following the issuance of the Second Circuit’s mandate affirming the Freeman I Dismissal,

Plaintiffs served their motion to vacate the Freeman I Dismissal on February 26, 2024, seeking to

have the Court reconsider that dismissal and reopen this case so that Plaintiffs can file a Third

Amended Complaint alleging aiding-and-abetting claims under JASTA against Defendants.

(Dkt. 275.) Plaintiffs’ motion was fully briefed on May 21, 2024. (Pl. Mot. to Vacate, Dkt. 277.)

19 The “Banks” include all Defendants and Saderat. See Freeman Appeal, 57 F.4th at 72.

On October 9, 2024, the Court “defer[red] resolution of” the motion to vacate “until after the

Supreme Court issues its decision in” BLOM Bank SAL v. Honickman, 6 F.4th 487 (2d. Cir. 2024),

to which the Supreme Court had just granted a writ of certiorari, “because that decision will address

the appropriate standard the Court should apply in resolving the [m]otion to [v]acate.” (10/9/2024

Dkt. Order.) The Supreme Court issued its ruling in BLOM on June 5, 2025, see BLOM, 605 U.S.

---, 145 S. Ct. 1612, 1619 (2025), and the Freeman I parties submitted supplemental letters

regarding the same on June 10, 2025, (Defs.’ 6/10/2025 Letter, Dkt. 281), and June 18, 2025,

(Pls.’ 6/18/2025 Letter, Dkt. 282).

LEGAL STANDARD

Motions to vacate are assessed pursuant to Federal Rule of Civil Procedure

(“Rule”) 60(b).20 “Rule 60(b) allows a party to seek relief from final judgment and reopen a case

based on mistake or excusable neglect, newly discovered evidence, fraud, or the void or

prospectively inequitable status of a judgment.” BLOM, 145 S. Ct. 1619 (2025) (citing Fed. R.

20 At the time the parties briefed Plaintiffs’ motion, Rule 60(b) motions in this Circuit were

assessed pursuant to Foman v. Davis, 371 U.S. 178, 180–82 (1962) (applying Rule 59(e) standard

to plaintiff’s Rule 60(b) motion and noting that, where a plaintiff merely seeks to “state an

alternative theory for recovery” in the proposed amended complaint, leave to amend should be

“freely given” “[i]n the absence of any apparent or declared reason” including, inter alia, undue

delay or bad faith), and Williams v. Citigroup Inc., 659 F.3d 208, 213 (2d Cir. 2011)

(“[P]ostjudgment motions for leave to replead must be evaluated with due regard to both the value

of finality and the policies embodied in Rule 15,” which governs leave to amend). (See generally

Mem., Dkt. 277-1). But in BLOM, the Supreme Court explicitly rejected the Second Circuit’s

Foman/Williams approach to Rule 60(b) motions to vacate, finding that “[t]he Second Circuit’s

‘balancing’ approach . . . dilutes Rule 60(b)(6)’s well-established standard.” 145 S. Ct. at 1619;

see also id. at 1622 (“Balancing the strict standards of Rule 60(b)(6) against the more relaxed

standards of Rule 15 necessarily weakens the former, and is thus incompatible with [the Supreme

Court’s] long line of precedents holding that Rule 60(b)(6) ‘should only be applied in

“extraordinary circumstances.”’” (quoting Liljeberg v. Health Servs. Acquisition Corp., 486

U.S. 847, 864 (1988))). Indeed, the Supreme Court found that Foman is entirely inapposite to

motions to vacate pursuant to Rule 60(b) because it “dealt with Rule 59(e), not Rule 60(b),” and

“Rule 59(e) does not threaten the finality of judgments to the same degree that Rule 60(b)(6) does.”

BLOM, 1435 S. Ct. at 1622.

Civ. P. 60(b)(1)–(5)). “Rule 60(b) also includes a ‘catchall’ provision—Rule 60(b)(6)—that

allows a district court to reopen a case for ‘any other reason that justifies relief.’” Id. (quoting

Kemp v. United States, 596 U.S. 528, 533 (2022)). But because “a Rule 60(b) motion ‘threaten[s]

an already final judgment with successive litigation’” years after it is entered, id. at 1622

(alterations in original), “[r]elief under Rule 60(b)(6) requires extraordinary circumstances,” id.

at 1619. “This very strict interpretation of Rule 60(b) is essential if the finality of judgments is to

be preserved.” Id. at 1620 (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). Rule 60(b)’s

“standard does not become less demanding when a Rule 60(b)(6) movant also hopes to amend

[their] complaint.” Id. at 1619. “Rather, a party seeking to reopen [their] case and replead must

first satisfy Rule 60(b) on its own terms and obtain Rule 60(b) relief before Rule 15(a)’s liberal

amendment standard can apply.” Id. A district court enjoys wide discretion in resolving a motion

under Rule 60(b). Id. at 1622 (“[A] district court’s decision need only ‘appl[y] the correct legal

standard and offe[r] substantial justification’ for its conclusion.” (quoting Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 405 (1990))).

“Extraordinary circumstances” are strictly interpreted. Pastor v. P’ship for Children’s Rts.,

856 F. App’x 343, 344–45 (2d Cir. 2021) (summary order) (“Rule 60(b)(6) is . . . properly invoked

only when there are extraordinary circumstances justifying relief . . . and when the judgment may

work an extreme and undue hardship.” (quoting Metzler Inv. GmbH v. Chipotle Mexican Grill,

Inc., 970 F.3d 133, 143 (2d Cir. 2020))); see, e.g., Buck v. Davis, 580 U.S. 100, 120–26 (2017)

(death penalty sentence after medical expert improperly offered race-based testimony constituted

extraordinary circumstances). The Supreme Court first recognized “extraordinary circumstances”

in Klapprott v. United States, 335 U.S. 601 (1949), when the petitioner, seeking to set aside a

default judgment entered in denaturalization proceedings, was “in jail . . ., weakened from illness,

without a lawyer . . . or funds to hire one,” “disturbed and fully occupied in efforts to protect

himself against the gravest criminal charges” in separate proceedings, and “no more able to defend

himself ” in the proceedings he sought to vacate “than he would have been had he never received

notice of the charges.” 335 U.S. at 613–14. By contrast, a year later, the Supreme Court found no

such “extraordinary circumstances” in Ackermann v. United States, 340 U.S. 193 (1950), where

the petitioner, also facing an adverse denaturalization judgment, declined to appeal and only sought

vacatur four years later, arguing that his delay was due to expense and the advice of his attorney

and a third party. 340 U.S. at 196–97. Ultimately, “extraordinary circumstances” lie in “the

difference between no choice and choice; imprisonment and freedom of action; no trial and trial;

no counsel and counsel; no chance for negligence and inexcusable negligence.” Id. at 202

(discussing Klapprott, 335 U.S. 601).

DISCUSSION

I. Plaintiffs Cannot Claim “Extraordinary Circumstances” Where Plaintiffs Created

Those Circumstances

Plaintiffs’ failure to amend the complaint to add aiding-and-abetting claims over the

lengthy course of this case was a problem of their own making. As is clear from the procedural

history, see supra, which the Court pointedly summarizes below, and as the Circuit has already

found, over the 18-month period that began in July 2018, Plaintiffs had “ample opportunity” to

amend their SAC to add the aiding-and-abetting claims they now seek to bring, Freeman Appeal,

57 F.4th at 83, and throughout this period, Plaintiffs also had every reason to believe that they

should do so in order to preserve those claims.

Chronology

7/27/2018: R&R: Judge Pollak issues her R&R in Freeman I, expressly noting that Plaintiffs

have not pleaded aiding-and-abetting claims. (R&R, Dkt. 165, at 49 n.42.)

Plaintiffs do not seek to amend to add aiding-and-abetting claims.

8/31/2018: Defendants’ Objections: Defendants file objections to the R&R. (R&R Obj.,

Dkt. 174.) Plaintiffs do not seek to amend in their October 5, 2018 opposition to

Defendants’ objections. (R&R Obj. Opp., Dkt. 183.)

10/30/2018: Plaintiffs’ Proposed TAC: Plaintiffs seek leave to file TAC in Freeman I only to

add 450 new plaintiffs, but do not seek to add any new claims, i.e.,

aiding-and-abetting claims. (Joinder Mot., Dkt. 185.)

12/11/2018: Plaintiffs’ Withdrawal of TAC: Plaintiffs advise Judge Pollak that they will not file

a TAC in Freeman I but will instead initiate a “related case” on behalf of the 450

new plaintiffs. (Dkt. 202, at 1.)

12/26/2018 & Initiation of Freeman II and Bowman: Plaintiffs file Freeman II and Bowman, both

4/11/2019 of which contain aiding-and-abetting claims. Compl., Freeman II,

No. 18-CV-7359, Dkt. 1, at ¶ 3710–77; Compl., Bowman, No. 19-CV-2146, Dkt. 1,

at ¶¶ 1318–85. Plaintiffs still do not seek to add aiding-and-abetting claims to

Freeman I.

5/30/2019: Conference Regarding the Three Cases: The Court states at a pre-motion

conference in Freeman II that the Freeman I Plaintiffs would “need to probably go

through the formality” of filing a complaint under JASTA “if we get past the motion

to dismiss phase so that it’s clear exactly what the claims are going forward.” Hr’g.

Tr., Freeman II, No. 18-CV-7359, Dkt. 66, at 19:9–20:3. Plaintiffs do not seek to

amend.

9/16/2019: Dismissal of Freeman I: The Court dismisses Freeman I in its entirety. (Dismissal,

Dkt. 237); Freeman I Dismissal, 413 F. Supp. 3d 67.

9/26/2019: Plaintiffs’ Reconsideration Motion of Freeman I Dismissal: Plaintiffs move for

partial reconsideration of Freeman I Dismissal. (Mot. Recons. Mem., Dkt. 239-1,

at 1.) Plaintiffs do not move to amend.

10/17/2019: Plaintiffs’ Response to SCB’s Opposition to Reconsideration: In reply to SCB’s

opposition to Plaintiffs’ partial reconsideration motion, Plaintiffs effectively

acknowledge that they have not alleged aiding-and-abetting claims against any

Defendant except SCB.21 (Recons. Reply, Dkt. 243, at 7–8.)

21 In this reply, Plaintiffs stated that the SAC’s “Seventh Claim alleged knowing,

substantial assistance—i.e., aiding and abetting—as a primary liability claim.” (Recons. Reply,

10/28/2019: Oral Argument on Plaintiffs’ Reconsideration Motion: The Court emphatically

states at the oral argument on Plaintiff’s reconsideration motion that Plaintiffs have

never alleged aiding-and-abetting liability in Freeman I. (10/28/2019 Hr’g Tr.,

Dkt. 248, at 44:18–46:14.) Plaintiffs argue only that they have effectively alleged

aiding and abetting as to Defendants SCB and Commerzbank.22 (Id. at 57:24–

58:8.) The Court says it will consider Plaintiffs’ reconsideration

“argument . . . under a theory of aiding and abetting liability.” (Id.) The Court

denies reconsideration. (Id. at 60–61.)

10/28– Parties’ Stipulation Negotiations: The parties unsuccessfully attempt to negotiate a

11/25/2019: stipulation that would add aiding-and-abetting claims to Freeman I and consolidate

Freeman I and II and Bowman for appeal. (See 11/27/2019 Joint Letter, Dkt. 247.)

Plaintiffs do not seek to amend complaint in Freeman I to add aiding-and-abetting

claims.

11/27/2019: Plaintiffs’ Appeal in Freeman I: Plaintiffs notice their appeal of the Freeman I

Dismissal and the denial of their reconsideration motion. (Notice of Appeal,

Dkt. 246.)

Plaintiffs argue that the extraordinary circumstance23 that justifies reconsideration and the

reopening of this case under Rule 60(b)(6) is its “unique” procedural history, particularly the

Court’s purported failure to “facilitate the prompt dismissal of the Freeman II and Bowman

complaints” following the failed consolidation of Freeman I and II and Bowman, (Mot. to Vacate

Mem. (“Mem.”), Dkt. 277-1, at 24), which, according to Plaintiffs, caused them to not have “had

the opportunity to amend’ [the SAC] that [they] reasonably understood the Court to provide,”

Dkt. 243, at 7–8.) The Seventh Claim in the SAC is brought only against Defendant SCB. (SAC,

Dkt. 115, ¶¶ 2274–93.)

22 Here, Plaintiffs claimed that the SAC’s Sixth Claim, brought only against Commerzbank,

was also an aiding-and-abetting claim. (10/28/2019 Hr’g Tr., Dkt. 248, at 57:24–58:5; SAC,

Dkt. 115, ¶¶ 2264–73.)

23 As previously noted, the parties briefed Plaintiffs’ motion before BLOM. Thus, Plaintiffs

originally argued that their motion to vacate meets both the exceptional circumstances requirement

of Rule 60(b) and the standard set by Foman/Williams. (Mem., Dkt. 277-1, at 18.) Their latest

briefing, post-BLOM, asserts that BLOM “does not, in any way, alter the proper disposition of

Plaintiffs’ [motion]” “[b]ecause of the extraordinary circumstances justifying vacatur here.”

(Pls.’ 6/18/2025 Letter, Dkt. 282, at 1.)

(Pls.’ 6/18/2025 Letter, Dkt. 282, at 1 (emphasis in original)).24 Plaintiffs claim that this “derailed

amendment process” prevented them from pursuing their aiding-and-abetting claims after the

Freeman I Dismissal. (Mem., Dkt. 277-1, at 24.)25 Plaintiffs thus narrowly focus their argument

on the one month before they noticed their appeal and, in essence, seek to shift blame onto the

Court for their failure to seek amendment of the SAC at that time, despite—or perhaps because

of—the clear record demonstrating that Plaintiffs had both opportunity and reason to amend the

SAC to add aiding-and-abetting claims.

At its core, Plaintiffs’ argument, though not clearly stated, is that it is irrelevant that

Plaintiffs had both the opportunity and reason to amend their complaint before October 28, 2019,

when Plaintiffs argued, and the Court denied, their motion for reconsideration, because they still

could have done so between October 28 and November 26, 2019, when Plaintiffs noticed their

appeal, but were effectively prevented from doing so by the Court. (See Reply, Dkt. 279, at 6

24 This argument contradicts Plaintiffs’ pre-appeal arguments to the Court that they had

actually asserted aiding-and-abetting claims in Freeman I. But, as noted supra, Plaintiffs

implicitly contradicted those arguments at various times during the 18-month period leading up to

their appeal.

25 Plaintiffs further claim that they had “not initially raised the amendment issue on appeal”

and therefore, this amendment issue is not foreclosed by the Freeman Appeal. (Mem., Dkt. 277-1,

at 24.) The Court disagrees. First, as noted, the Circuit has already found that Plaintiffs had

“ample opportunity” to amend, regardless of whether Plaintiffs squarely raised the issue or not.

Freeman Appeal, 57 F.4th at 83. Second, the Circuit specifically reviewed the October 2019

amendment discussion between the Court and Plaintiffs on which Plaintiffs attempt to hang their

current argument, regardless of whether the Circuit’s review was framed in the way Plaintiffs now

wish. See id. (discussing “statements made by the district court during [the October 2019]

hearing”). Finally, the Court notes that Plaintiffs did not raise the amendment issue on appeal

because Plaintiffs chose instead—and ill-fatedly—to argue that the aiding-and-abetting claims

were present in their SAC (and therefore amendment was not needed). Plaintiffs’ regret regarding

what they raised—and how they raised it—to the Circuit does not change the fact that the record

on which Plaintiffs bring their current motion was squarely in front of the Circuit during the

Freeman Appeal. Plaintiffs are now stuck with the ramifications of the strategic decisions they

made in pursuing the Freeman Appeal.

(noting that Plaintiffs’ “request to ‘write a consolidated complaint’ was effectively, if

unintentionally, denied.”)26.) Plaintiffs argue that they believed, based on the Court’s statements

at the October 28, 2019 argument, that they would have the opportunity to add aiding-and-abetting

claims after the appeal regardless of its outcome and that their procedural predicament was foisted

upon them by the Court. (See id. at 4–5 (noting Plaintiffs “raised” the Court’s “apparent agreement

not to ‘preclude [P]laintiffs from amending . . . their complaint with respect to

aiding[-]and[-]abetting liability under JASTA’ from the October 28, 2019, conference” during a

June 27, 2023 conference).) This Hail Mary attempt to re-write history, however, is unavailing.

A. Purported Lack of Necessity or Futility of Pre-Appeal Amendment

At the October 28, 2019 oral argument on Plaintiffs’ reconsideration motion, the Court

unequivocally stated that the aiding-and-abetting claims had not been brought in Freeman I despite

the case’s extensive briefing. (10/28/2019 Hr’g Tr., Dkt. 248, at 44:18–46:17.) While effectively

conceding that those claims had not been brought against the majority of the Defendants, Plaintiffs’

counsel still insisted that they had stated aiding-and-abetting claims against SCB and

Commerzbank. (Id. at 57:24–58:5.) Without specifically referring to SCB and Commerzbank,

the Court indicated that it considered aiding-and-abetting liability under JASTA in denying

reconsideration of its Freeman I Dismissal. (See 10/28/2019 Hr’g Tr., Dkt. 248, at 61:5–20.)

The Court also noted at the oral argument, and after denying reconsideration, that “if it

happens that my decision is reversed in whole or in part, then you can file an Amended Complaint

26 The Court assumes Plaintiffs here refer to the October 28, 2019 oral argument discussion

where they state, “it might make sense to write a consolidated complaint that allows Your Honor

then to issue an order as to that.” (10/28/2019 Hr’g Tr., Dkt. 248, at 63:17–19.) What Plaintiffs

conveniently omit is this Court’s response: “that is certainly an option.” (Id. at 63:22.) The Court

then presented the alternative option of “com[ing] up with some [stipulated dismissal]

agreement . . . [which] probably makes more sense in terms of conserving [the parties’] resources.”

(Id. 64:4–7.) Plaintiffs chose to pursue—but failed to effectuate, as discussed supra—the

alternative option.

at that time.” (Id. at 64:4–6 (emphasis added).) This is the statement that Plaintiffs construe as

the Court’s invitation to amend, which they claim they accepted and now seek to avail themselves

of. (Pls.’ 6/18/2025 Letter, Dkt. 282, at 2.) However, Plaintiffs fail to include the fact that this

“invitation” was conditioned upon the Circuit reversing the Court’s denial of reconsideration,

which did not happen. (See 10/28/2019 Hr’g Tr., Dkt. 248, at 64:4–6.) Because the Court had

clearly stated that the aiding-and-abetting claims had not been brought in Freeman I—statements

that the Second Circuit relied upon and quoted at length during the appeal, Freeman Appeal, 57

F.4th at 83 (citations omitted)—and because the Court entertained the idea of amendment to

include these claims post-appeal, Plaintiffs had clear notice that the aiding-and-abetting claims

would not be included in the appeal. Plaintiffs were also on notice that they would only be able to

add the aiding-and-abetting claims post-appeal if they were successful on appeal.

Correspondingly, if Plaintiffs wanted to ensure that these claims were preserved, they would have

had to add them before noticing their appeal—something that Plaintiffs clearly understood based

on what transpired after the October 28, 2019 oral argument, as discussed infra at Discussion § I.B.

Plaintiffs also argue that they did not raise the possibility of amendment after the

October 28, 2019 oral argument because they believed that seeking leave to add these claims

would have been “futile,” as they believed that the Court had already dismissed them. (Mem.,

Dkt. 277-1, at 9 (“Having found Plaintiffs’ aiding[-]and[-]abetting claims insufficient as a matter

of law, amending Freeman I to explicitly include them would have been . . . futile,” and so

“Plaintiffs would have to first appeal the Court’s ruling to the Second Circuit.”).) The Court finds

this argument without merit and disingenuous for several reasons. First, it contradicts and defeats

Plaintiffs’ other argument that they believed that the Court had “invited” them to seek to amend to

add the aiding-and-abetting claims, regardless of the outcome of the appeal. Second, this purported

belief that the Court had already decided their aiding-and-abetting claims was contradicted by the

Court’s “emphatic” statements at the oral argument, set forth earlier, about Plaintiffs never having

pleaded aiding-and-abetting claims in Freeman I and Plaintiffs’ implicit concession that, at most,

they had brought aiding-and-abetting claims against only SCB and Commerzbank. See supra

at 19–20; Freeman Appeal, 57 F.4th at 83. This would mean that the Court’s purported dismissal

of aiding-and-abetting claims would only apply to those two Defendants. Third and relatedly,

even though the Court stated at the oral argument that it “still consider[ed] [Plaintiffs’]

argument . . . under a theory of aiding[-]and[-]abetting liability,” (10/28/2019 Hr’g Tr., Dkt. 248,

at 46:16–17), this did not provide a sufficient basis for Plaintiffs to conclude that the Court had

decided that any and all aiding-and-abetting claims would be dismissed, particularly when the

Court expressly stated that it would not “preclude [P]laintiffs from amending [to include an aiding-

and-abetting theory], if we get to that point,” (id. at 45:6–7). Fourth, to the extent Plaintiffs actually

believed that the Court had already ruled on and dismissed their aiding-and-abetting claims, they

could have chosen to agree to the stipulation proposed by Defendants, as discussed infra at

Discussion § I.B, which would have preserved those claims for appeal and possible reinstatement

post-appeal. Instead, Plaintiffs took a calculated risk by trying to convince the Circuit that the

aiding-and-abetting claims had been pleaded all along and that the Court had erroneously

dismissed them—and/or by counting on the Freeman II and Bowman motions to dismiss to be

resolved in time for the three cases to be joined on appeal—thereby foregoing the opportunity to

ensure the inclusion of aiding-and-abetting claims in the case by way of stipulation. That was a

strategic choice, and one that backfired on Plaintiffs.

Thus, whether due to a purported “understanding with the Court,” (Reply, Dkt. 279, at 8),

or a “reasonable misunderstanding between Plaintiffs and the Court,” (Mem., Dkt. 277-1, at 1),

the fact remains that Plaintiffs made a decision after the October 28, 2019 oral argument not to

seek amendment of the SAC, despite knowing that the aiding-and-abetting claims were not in

Freeman I. Any attempt to frame this decision as the Court’s denial of an amendment request or

“derailment of the amendment process,” (Mem., Dkt. 277-1, at 24), is unsupported by the record.

B. Plaintiffs’ Refusal to Stipulate to Dismissal of Any Aiding-And-Abetting

Claims to Facilitate Freeman II and Bowman Consolidation for Appeal

Finally, to the extent any doubt remains regarding Plaintiffs’ role in creating these “unique”

circumstances, this is put to rest by the consolidation negotiations between the parties that followed

the October 28, 2019 oral argument. During the oral argument, the Court advised the parties that,

if they could “come to some agreement about a stipulated dismissal . . . solely for purposes of

allowing all three cases to go before the Circuit at the same time, [the Court] would certainly do

that.” (10/28/2019 Hr’g Tr., Dkt. 248, at 62:20–23.) While the Court provided Plaintiffs with

guidance “in terms of conserving . . . resources,” (id. at 64:6–7), the Court left it to the parties to

decide on the next steps. The Court also tolled the time for Plaintiffs to notice their appeal to

November 27, 2019, to facilitate this negotiation. (10/28/2019 Min. Entry.)27

But the parties failed to reach agreement. In a letter jointly submitted to the Court on

November 27, 2019, Defendants described the impasse thus:

Unlike the Freeman I action, the complaints in Bowman and Freeman II both

expressly plead aiding[-]and[-]abetting claims against all Defendants. Defendants

agree with Plaintiffs that this Court’s reasoning in the September 16 Order and this

Court’s denial of reconsideration in Freeman I should lead to dismissal of all claims

in Freeman II and Bowman for failure to state a claim and, in addition, with respect

to Count 6 of the Freeman II Amended Complaint and Bowman Complaint, for lack

of personal jurisdiction. However, because aiding[-]and[-]abetting claims were

27 As explained supra, Deng foreclosed the Court’s ability to toll the time for the Freeman I

parties to notice their appeal. See Deng, 783 F. App’x at 72–73 (noting that, except for motions

specified in Fed. R. App. P. 4(a)(5) and (6), “a notice of appeal ‘must be filed with the district

clerk within 30 days after entry of the judgment or order appealed from’” (citing Fed. R. App.

P. 4(a)(1)(A)).

never properly asserted in Freeman I and thus not addressed in the Court’s

September 16 Order, Defendants proposed to Plaintiffs a form of stipulation and

dismissal order for Freeman II and Bowman that would make express the reasons

for dismissing aiding[-]and[-]abetting claims in those cases. Specifically, and as

set forth in [SCB’s] opposition to the Freeman I [P]laintiffs’ motion for

reconsideration, Plaintiffs’ aiding[-]and[-]abetting claims fail to state any claim for

relief under Linde v. Arab Bank, 882 F.3d 314, 329–31 (2d Cir. 2018) and Siegel v.

HSBC N. Am Holdings, Inc., 933 F.3d 217, 224–25 (2d Cir. 2019)[.] . . . Plaintiffs

declined to agree to the proposed stipulation and dismissal order.

(11/27/2019 Joint Letter, Dkt. 247, at 3 (emphasis added) (record citations omitted).) In effect,

despite now claiming to have believed that the Court had dismissed Plaintiffs’ aiding-and-abetting

claims from the bench such that seeking leave to add these would have been “futile,” Plaintiffs

refused to stipulate to that very fact—a refusal that cost them the consolidated appeal they sought.

Plaintiffs now argue, in effect, that the Court is to blame for the “procedural quagmire that

left the Freeman I [P]laintiffs without the aiding[-]and[-]abetting claims they understood they

could argue on appeal.” (Mem., Dkt. 277-1, at 15; see also id. at 3, 14 (arguing that despite

“[Plaintiffs] urg[ing] the Court on multiple occasions to dismiss Freeman II and Bowman quickly

so that the Circuit could still consolidate the three cases into ‘one’ appeal,” the Court failed to act

with the alacrity Plaintiffs wanted, and “did not rule on the motion to dismiss until June 5, 2020,”

which “created yet another [un]usual procedural dilemma” for Plaintiffs).) This argument is

entirely misplaced. It is true that, had the Court ruled on the Freeman II and Bowman motions to

dismiss on Plaintiffs’ desired timeline, the three cases theoretically could have been consolidated

for appeal. But that would not have solved the fundamental problem Plaintiffs faced in Freeman

I with respect to any aiding-and-abetting theory of liability. There is no reason to believe that the

Circuit would have found differently than it did in the Freeman Appeal, namely, that there were

no aiding-and-abetting claims in Freeman I. So, a ruling on those claims in Freeman II and

Bowman would not have altered the result on appeal for the Freeman I Plaintiffs. Furthermore,

the Court has no obligation to comply with a litigant’s desired schedule, and the timing of the

Court’s decisions in related cases that Plaintiffs’ counsel chose to bring does not constitute

“extraordinary circumstances.” See Andrulonis v. United States, 26 F.3d 1224, 1235 (2d Cir. 1994)

(“[W]hen a party makes a deliberate, strategic choice . . ., [it] cannot be relieved of such a choice

merely because [its] assessment of the consequences was incorrect.” (quoting United States v.

Bank of New York, 14 F.3d 756, 759 (2d Cir. 1994)). Even more so here, where Plaintiffs could

have synchronized the three appeals—by stipulating to the dismissal of the aiding-and–abetting

claims—but chose not to.

* * *

“[F]ree, calculated, deliberate choices are not to be relieved from.” Ackermann, 340 U.S.

at 198; see United Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir. 2009) (noting “that Rule 60

does ‘not allow district courts to indulge a party’s discontent over the effects of its bargain’”

(quoting Andrulonis, 26 F.3d at 1235)). Plaintiffs must now face the consequences of their many

choices—namely, the Circuit finding that Plaintiffs had never asserted aiding-and-abetting claims

in Freeman I. Perhaps Plaintiffs thought they might achieve different results in the different

complaints. Perhaps they thought they could get another proverbial bite at the apple after seeing

whether any of their original Freeman I claims survived appeal. Perhaps they failed to understand

or believe that they were foregoing amendment by not acting before appeal. Regardless, and

putting Plaintiffs’ sense of grievance aside, the “procedural quagmire” resulting from the interplay

between the progression of this case and that of Freeman II and Bowman is one of Plaintiffs’ own

making. (Mem., Dkt. 277-1, at 15.) Plaintiffs could have easily avoided this quagmire by seeking

to amend in Freeman I after Judge Pollak found that there were no aiding-and-abetting claims in

the case, or even later, after this Court issued a ruling dismissing the entire case without discussing

aiding-and-abetting liability. They cannot now reinvent history and claim that they never had an

opportunity to assert those claims—Plaintiffs did have that opportunity, several times over. By

choosing not to, they lost their opportunities to do so. The Court declines to reopen this case, after

the Circuit’s full review, to relieve Plaintiffs of the consequences of their choices.

II. Even Looking Ahead to Amendment, Vacatur is Not Required

Plaintiffs also argue that this Court would not “contravene[] Rule 60(b) merely by

considering a movant’s desire to amend [their] complaint” and that “a district court is free to cite

Rule 15 and acknowledge amendment-related considerations, such as whether a movant has had

the opportunity to amend, and the amendment standard that the party will eventually have to meet

if the Rule 60(b) motion is granted.” (Pls.’ 6/18/2025 Letter, Dkt. 282, at 1 (quoting BLOM, 145

S. Ct. at 1621).) Having found that Plaintiffs have failed to meet Rule 60(b)’s standard, the Court

need not do a Rule 15 analysis. However, for the sake of completeness, the Court briefly addresses

Plaintiffs’ amendment arguments.

First, for the reasons discussed supra, the Court finds that Plaintiffs clearly had the

opportunity to amend the complaint in this case to add aiding-and-abetting claims after JASTA

was passed and before Plaintiffs’ appeal of the dismissal. Even with the benefit of hindsight,

Plaintiffs cannot now justify their failure to amend to add these claims, which was ultimately the

product of their own litigation decisions. This consideration supports denial of leave to amend.

Second, at this point, any motion to amend to add aiding-and-abetting claims would be

denied as futile. The Court has already dismissed the aiding-and-abetting claims in Freeman II

and Bowman, Freeman II Dismissal, 465 F. Supp. 3d at 225–26, which are based on the same or

similar allegations and are against the same Defendants as in Freeman I. Although Plaintiffs note

that “there is newly discovered evidence,” (Mem., Dkt. 277-1, at 17 n.10)—which would

purportedly support vacatur under “Rule 60(b)(2), although that [was] not the basis for” Plaintiffs’

motion for reconsideration, (id.)—Plaintiffs know that they cannot use this evidence in this case

because of a protective order that applies to this evidence in another case in which Plaintiffs are a

party, see Freeman II, No. 18-CV-7359, Quash Order, Dkt. 136, at 10 (noting that the Freeman II

plaintiffs “are prohibited from using the information” they sought “for the purpose of amending

their complaint”). Without evidence that renders more plausible the allegations already dismissed,

Plaintiffs’ amendment to add aiding-and-abetting claims would fail for futility. And, given the

pending motion to dismiss plaintiffs’ Third Amended Complaint in Freeman II, restarting briefing

in Freeman I would perpetuate the very disjointed procedural posture between two significantly

related actions that Plaintiffs claim constitutes a “procedural quagmire” worthy of being deemed

“extraordinary circumstances.” The Court declines to deliberately wade back into such a

quagmire.

CONCLUSION

Accordingly, the Court denies Plaintiffs’ Motion to Vacate the Court’s dismissal of the

SAC and the attendant judgment, (Pl. Mot. to Vacate, Dkt. 277), for the purpose of filing an

amended complaint. This action remains closed.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 30, 2025

Brooklyn, New York