Opinion

Wultz v. Islamic Republic of Iran

755 F. Supp. 2d 1
2010 U.S. Dist. LEXIS 111469
2010 WL 4228350

Court: District Court, District of Columbia
Filed: Oct 20, 2010
Status: Published
Author: Lamberth
On the bench: Royce C. Lamberth
Cited by: 106 cases
Authority: More cited than 88.4%

explaining that considering an argument first advanced in a reply brief would be unfair and risky “because the opposing party is not entitled to file a surreply to address new issues raised for the first time in a reply”

How later courts described this case

explaining that considering an argument first advanced in a reply brief would be unfair and risky “because the opposing party is not entitled to file a surreply to address new issues raised for the first time in a reply”
concluding that judicial consideration of ATA suit against Chinese bank accused of providing financial services to terrorist organization was not precluded by the political question doctrine
noting that pendent personal jurisdiction ensures against due-process concerns of unfairness because the defendant is already justifiably hauled in to the forum to defend against other claims that derive from a common nucleus of operative fact
ruling that the Fifth Amendment governed personal jurisdiction for case brought under Antiterrorism Act, which includes a national-service-of-process provision

Written by the judges who cited it.

The opinion

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. Introduction................................................................17

II. Background................................................................18

A. A PIJ Suicide Bomber Allegedly Blew Up a Restaurant in Tel Aviv...........18

B. Plaintiffs Make Five Claims Against BOC Related to the Tel Aviv Bombing............................................................19

III. Discussion.................................................................19

A. Justiciability...........................................................20

1. Standing...........................................................20

a. Standing Requires Injury in Fact, Causation, and Redressability......20

b. Plaintiffs Have Standing.........................................21

2. Political-Question Doctrine...........................................24

a. Political Questions Are Those Issues Reserved for the Political Branches and Unsatisfactory for Judicial Determination ...........24

b. Plaintiffs’ Claims Do Not Raise Political Questions..................25

i. Adjudication of Plaintiffs’ Claims Does Not Intrude Upon Foreign Relations of the Executive Branch...................25

ii. The Issue of Whether Adjudication of Plaintiffs’ Claims Depends on Criteria Unsatisfactory for Judicial Determination Is Unripe...................................27

B. Subj ect-Matter Jurisdiction..............................................28

1. Subject-Matter Jurisdiction Over a Case to Which a Foreign Sovereign Is a Party Turns on Sovereign Immunity...................28

2. Instrumentalities of Foreign States Are Presumptively Immune...........29

3. BOC Is Not an Instrumentality of China...............................29

C. Personal Jurisdiction....................................................30

1. Plaintiffs Have the Burden of Alleging Jurisdictional Facts...............30

2. Plaintiffs Have Met Their Burden.....................................31

a. The Court Has Personal Jurisdiction Under the ATA................31

b. The Court Has Personal Jurisdiction Under the Fifth Amendment..................................................32

i. BOC Must Have Sufficient Minimum Contacts With the United States............................................32

ii. BOC Has Sufficient Minimum Contacts With the United States...................................................33

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c.The Court Has Pendent Personal Jurisdiction as to Claims Under Israeli Law............................................36

D. Venue.................................................................36

1. BOC Waived its Objection to Improper Venue..........................37

2. Regardless, Venue Is Proper Under the Doctrine of Pendent Venue......37

E. Sufficiency of Plaintiffs’ Pleadings........................................38

1. Plaintiffs Must Plead a Short and Plain Statement Showing That They Are Entitled to Relief........................................39

2. Plaintiffs Have Sufficiently Pled Count Two: Primary Liability...........40

a. Primary Liability Under the ATA Requires a Chain of Incorporations................................................41

b. Plaintiffs Adequately Plead Eligibility.............................43

c. Plaintiffs Adequately Plead Injury................................43

d. Plaintiffs Adequately Plead an Act of International Terrorism ........43

i. Plaintiffs Adequately Plead Acts Dangerous to Human Life......43

ii. Plaintiffs Adequately Plead Violations of U.S. Criminal Law......44

I. Plaintiffs Adequately Plead Violations of 18 U.S.C. § 2339A ...........................................44

II.Plaintiffs Adequately Plead a Violation of 18 U.S.C. § 2339B ...........................................46

III.Plaintiffs Adequately Plead a Violation of 18 U.S.C. § 2339C ...........................................47

iii. Plaintiffs Adequately Plead Appearance of Intention to Intimidate Civilians, Influence Government Policy, or Affect Government Conduct................................48

iv. Plaintiffs Adequately Plead Transcendence of National Boundaries ..............................................49

e. Plaintiffs Adequately Plead Ordinary Tort Requirements.............50

i. Plaintiffs Adequately Plead Intentional Misconduct..............50

ii. Plaintiffs Adequately Plead Proximate Causation................53

f. Conclusions Concerning Count Two ...............................53

3. Plaintiffs Have Sufficiently Pled Count Three: Secondary Liability......54

a. Secondary Liability Exists Under the ATA.........................54

b. Plaintiffs Adequately Plead a Claim for Secondary Liability ..........57

4. Plaintiffs Have Sufficiently Pled Count Four: Negligence................57

a. Liability for Negligence Requires Duty, Breach, Injury, and Causation....................................................57

b. Plaintiffs Adequately Plead Duty..................................58

i. Duties Arise When Injury Is Foreseeable......................58

ii. Plaintiffs Have Adequately Pled That BOC Was Under a Duty....................................................59

c. Plaintiffs Adequately Plead Breach................................62

i. Breach Occurs When a Person Under a Duty Acts Unreasonably With Respect to the Duty.....................62

ii. Plaintiffs Have Adequately Pled that BOC Breached its Duty....................................................62

d. Plaintiffs Adequately Plead Injury ................................62

e. Plaintiffs Adequately Plead Causation .............................62

i. Factual Causation Exists Where, But For a Defendant’s Act or Omission, a Plaintiffs Injury Would Not Have Occurred................................................63

ii. Plaintiffs Adequately Plead That BOC Factually Caused Their Injury.............................................64

iii. Legal Causation Exists Where Injury Is Foreseeable, Within the Field of Risk, and Causation Fits Common Sense...................................................65

iv. Plaintiffs Adequately Plead That BOC Legally Caused Their Injury .............................................65

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5. Plaintiffs Have Sufficiently Pled Count Five: Breach of Statutory Duty............................................................67

a. Breach of Statutory Duty Operates as a General Private Cause of Action for Violation of Israeli Law............................67

b. Plaintiffs Adequately Plead That BOC Was Under A Duty Imposed by Three Israeli Penal Laws ...........................68

c. Plaintiffs Adequately Plead That the Relevant Penal Laws Were Intended for the Benefit of the Public............................70

d. Plaintiffs Adequately Plead That BOC Breached its Duties...........73

i. Plaintiffs Adequately Plead a Violation of Israel’s Prevention of Terrorism Ordinance .........................73

ii. Plaintiffs Adequately Plead a Violation of Israel’s Penal Law.....................................................74

iii. Plaintiffs Adequately Plead a Violation of Israel’s Defense (Emergency) Regulations..................................75

iv. The Court Will Not Consider Whether Plaintiffs Have Pled a Violation of Israel’s Prohibition on Terrorist Financing Law.....................................................76

e. Plaintiffs Adequately Plead That Their Injuries Were Caused by BOC’s Breach................................................77

f. Plaintiffs Adequately Plead That They Suffered Injuries of the Sort Intended to Have Been Prevented by the Relevant Penal Statutes.....................................................78

g. The Double-Actionability Rule Has Been Replaced, and Its Replacement Does Not Apply...................................78

6. Plaintiffs Have Sufficiently Pled Count Six: Vicarious Liability...........80

F. Duplicity of Plaintiffs’ Claims ............................................81

1. Claims Duplicative of Others Should Be Dismissed......................81

2. Plaintiffs’ Secondary-Liability Claim Is Not Duplicative of Their Primary-Liability Claim...........................................82

IV. Conclusion......................... ......................................82

I. Introduction.

The Bank of China, Ltd. (“Bank of China,” “Bank,” or BOC) has moved the Court to dismiss all claims against it. Def. BOC’s Mot. to Dismiss the 1st Am. Compl., Mar. 5, 2009, ECF No. 15 [hereinafter BOC’s Mot.]. The Bank has advanced several arguments in favor of its motion: that the case is nonjusticiable because plaintiffs lack standing,

id.

at 4-5, and because plaintiffs’ claims raise political questions,

id.

at 5-12; that the Court lacks personal jurisdiction over the Bank,

id.

at 12-18; that venue is improper, Reply Mem. of P. & A. in Support of BOC’s Mot. 4-9, July 24, 2009, ECF No. 42 [hereinafter BOC’s Reply]; that plaintiffs fail to state any claim upon which relief can be granted, BOC’s Mot. at 18-28, 29-44; and that plaintiffs make duplicative claims,

id.

at 28-29. To this list, the Court will sua sponte add consideration of whether the Bank is entitled to immunity from suit as an instrumentality of China. Plaintiffs oppose all arguments. Pis.’ Mem. in Opp’n to BOC’s Mot., May 26, 2009, ECF No. 31. [hereinafter Pis.’ Opp’n]; Pis.’ Surreply, Oct. 20, 2010, ECF No. 80.

In this memorandum opinion, the Court will first provide an overview of plaintiffs claims against BOC and will second discuss why the Court will reach the merits of those claims: plaintiffs have standing, plaintiffs’ claims do not raise nonjusticiable political questions, the Bank is not entitled to sovereign immunity, the Court has personal jurisdiction over the Bank, venue is proper, plaintiffs have adequately pled claims upon which relief may be granted, and plaintiffs have not pled duplicative

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claims. The Court will thus deny the Bank’s motion.

II. Background.

Plaintiffs make five claims against BOC: that BOC committed an act of international terrorism in violation of U.S. law, that BOC aided and abetted acts of international terrorism committed by others in violation of U.S. law, that BOC is liable for negligence under Israeli law, that BOC is liable for a breach of a statutory duty under Israeli law, and that BOC is vicariously liable for acts of the Palestinian Islamic Jihad (PIJ) under Israeli law. All five claims arise under the same set of alleged facts. This part of the opinion summarizes those facts and claims.

A. A PIJ Suicide Bomber Allegedly Blew Up a Restaurant in Tel Aviv.

On April 17, 2006, a Palestinian suicide bomber allegedly attacked a restaurant in Tel Aviv, State of Israel (“Israel”) (“Tel Aviv bombing” or, as referred to by plaintiffs, the “Terrorist Bombing”). 1st Am. Compl. ¶ 1, Jan. 13, 2009, ECF No. 12 [hereinafter FAC]. Daniel Wultz allegedly suffered severe physical injuries, resulting in his death, further resulting in economic injuries to his estate.

Id.

¶¶ 87, 100. Daniel’s father also allegedly suffered physical injuries in the attack.

Id.

¶¶ 88, 101. Finally, several of Daniel’s family members allegedly also suffered emotional and financial injuries.

Id.

¶¶ 101-02.

In the wake of the bombing, Mr. Wultz’s estate and family members (“plaintiffs”) have brought suit against several defendants, including BOC.

See

FAC. Concerning BOC, plaintiffs specifically allege that between 2003 and the date of the attack, “BOC executed dozens of dollar wire transfers for the PIJ, totaling several million dollars.”

Id.

¶ 69. These transfers allegedly “were initiated by the PIJ leadership in Iran, Syria[,] and elsewhere in the Middle East, and were executed by and through BOC’s branches in the United States.”

Id.

Transferred moneys were allegedly received into accounts owned by officers and agents of the PIJ and used “for the purpose of planning, preparing for[,] and executing terrorist attacks” in general.

Id.

¶¶ 69-70. These transfers, therefore, allegedly “substantially increased and facilitated PIJ’s ability to plan, to prepare for[,] and to carry out” the particular bombing at issue in this case.

Id.

¶¶ 74, 92.

During the years when the alleged transfers were made, the PIJ was designated by the U.S. Department of State as a “foreign terrorist organization.” Review of Designation of Foreign Terrorist Organizations, 74 Fed.Reg. 4069, 4069 (Jan. 22, 2009); Redesignation of Foreign Terrorist Organizations, 68 Fed.Reg. 56,860, at 56,-861 (Oct. 2, 2003); Designation of Foreign Terrorist Organizations, 64 Fed.Reg. 55,-112, at 55,112 (Oct. 8, 1999); FAC ¶6. During this same time, the PIJ was also listed by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) as a “specially designated terrorist” and “specially designated global terrorist” entity. 31 C.F.R. ch. V, app. A (2006); 31 C.F.R. ch. V, app. A (2005); 31 C.F.R. ch. V, app. A (2004); 31 C.F.R. ch. V, app. A (2003). The holder of a BOC account for whom transfers were made— Said Al-Shurafa — however, has never been similarly designated by the State or Treasury Departments.

See generally

U.S. Dep’t of the Treasury, OFAC,

Terrorism: What You Need to Know About U.S. Sanctions

(Oct. 19, 2010), http://www.treasury. gov/offices/enforeement/ofae/programs/ terror/terror.pdf (identifying designees, not including Mr. Al-Shurafa). Notably, the transfers allegedly continued even after Israel notified the People’s Republic of

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China (PRC or “China”) of the transfers and demanded that China force BOC to cease any further transfers. FAC ¶ 77.

B. Plaintiffs Make Five Claims Against BOC Related to the Tel Aviv Bombing.

In count two of their first amended complaint, plaintiffs’ claim that BOC committed “an act of international terrorism” subjecting it to civil suit under the Anti-terrorism Act (ATA), which, in relevant part, permits “[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, [to] sue therefor in any appropriate district court of the United States.” 18 U.S.C. § 2333 (a).

Plaintiffs base their claim on a chain-of-corporations theory, alleging that BOC intentionally and knowingly provided financial services to an agent of the PIJ, thereby proximately causing plaintiffs’ injury. FAC ¶¶ 106-15. Plaintiffs thus assert a theory of primary liability: BOC is allegedly liable for its own acts.

In count three of their first amended complaint, plaintiffs’ second claim that BOC aided and abetted the commission of an act of terrorism by the PIJ.

Id.

¶¶ 116-25 . Plaintiffs thus allege a theory of secondary liability: BOC is allegedly liable for acts of the PIJ.

In counts four, five, and six of their first amended complaint, plaintiffs third, fourth, and fifth claim that, under the law of Israel, BOC committed the civil wrong of negligence by providing financial services to the PIJ knowing it would conduct terrorist attacks,

id.

¶¶ 126-40 , committed a breach of a statutory obligation by violating several Israeli criminal laws,

id.

¶¶ 141-52 , and should be held vicariously liable for actions of the PIJ,

id.

¶¶ 153-58 .

III. Discussion.

This section will first evaluate BOC’s arguments relating to justiciability: that plaintiffs lack standing and raise political questions. They do not. The Court will then turn to subject-matter jurisdictional issues: whether BOC is entitled to sovereign immunity as an instrumentality of China. Because BOC is not such an instrumentality, it is not entitled to immunity from this suit. The Court will then address personal jurisdictional issues: whether fundamental fairness permits plaintiffs to haul BOC into this Court. It does. The Court will then examine venue, concluding that this Court is a proper

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place for plaintiffs to raise their claims. Finally, the Court will evaluate defendant’s remaining arguments concerning plaintiffs’ individual claims: that plaintiffs fail to state any claims upon which relief may be granted and make duplicative claims. Plaintiffs’ claims may warrant relief and are not duplicative.

A. Justiciability.

BOC raises two arguments concerning justiciability: that plaintiffs lack standing and raise political questions. If plaintiffs lack standing to sue the Bank of China or if the complaint raises political questions, then the case is nonjusticiable and must be dismissed. This case is justiciable because plaintiffs have standing to sue BOC and plaintiffs’ claims do not raise political questions.

1. Standing.

Parties must have standing to sue. That is, a plaintiff must have suffered an injury in fact that was caused by a defendant and that is redressable by a court. If plaintiffs lack standing to sue BOC, then this case is nonjusticiable and must be dismissed. Because plaintiffs sufficiently allege a causal chain between BOC and alleged injuries suffered that are redressable under various theories of recovery pled by plaintiffs, plaintiffs have standing.

a. Standing Requires Injury in Fact, Causation, and Redressability.

The Constitution “limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’”

Lujan v. Defenders of Wildlife,

504 U.S. 555, 559-60 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (quoting U.S. Const, art. III, § 2, cl. 1). The requirement that plaintiffs have standing to sue is born of this case-or-controversy requirement.

Id.

at 560, 112 S.Ct. 2130 (citing

Allen v. Wright,

468 U.S. 737, 751 , 104 S.Ct. 3315 , 82 L.Ed.2d 556 (1984)). Whether a plaintiff has standing is composed of three elements. “First, the plaintiff must have suffered an ‘injury in fact.’ ”

Id.

To constitute an “injury in fact” the injury must be “concrete and particularized” — that is, it “must affect the plaintiff in a personal and individual way.”

Id.

at 560, 560 n. 1, 112 S.Ct. 2130 (citing

Allen,

468 U.S. at 751 , 104 S.Ct. 3315 ;

Warth v. Seldin,

422 U.S. 490, 508 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975);

Sierra Club v. Morton,

405 U.S. 727, 740-41 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972)). The injury must also be “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ”

Id.

at 560, 112 S.Ct. 2130 (citing

Whitmore v. Arkansas,

495 U.S. 149, 155 , 110 S.Ct. 1717 , 109 L.Ed.2d 135 (1990) (quoting

Los Angeles v. Lyons,

461 U.S. 95, 102 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983))). “Second, there must be a causal connection between the injury and the conduct complained of.”

Id.

A causal connection exists where the injury is “ ‘fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.’ ”

Id.

at 560-61, 112 S.Ct. 2130 (quoting

Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26, 41-42 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976)). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ”

Id.

at 561, 112 S.Ct. 2130 (quoting

Simon,

426 U.S. at 38, 43 , 96 S.Ct. 1917 ).

The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these three elements.

Devlin v. Scardelletti,

536 U.S. 1, 6-7 , 122 S.Ct. 2005 , 153 L.Ed.2d 27 (2002) (citing

Defenders of Wildlife,

504 U.S. at 555 , 112 S.Ct. 2130 ). When ruling on a motion to dismiss for want of standing, the trial court “must accept as true all material allegations of the complaint.”

Warth v. Seldin,

422 U.S. 490, 501 , 95 S.Ct. 2197 , 45

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L.Ed.2d 343 (1975). “At the pleading stage, general factual allegations of injury-resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’ ”

Defenders of Wildlife,

504 U.S. at 561 , 112 S.Ct. 2130 (quoting

Lujan v. Nat’l Wildlife Fed.,

497 U.S. 871, 889 , 110 S.Ct. 3177 , 111 L.Ed.2d 695 (1990)). With these considerations in mind, the Court now turns to plaintiffs’ allegations relating to standing and BOC’s arguments that such allegations are insufficient.

b. Plaintiffs Have Standing.

BOC does not contest that the claimant has suffered an injury in fact, nor does it argue that the injuries alleged are nonredressable.

See

BOC’s Mot. Rather, BOC argues that “[sjtanding cannot be established here because [pjlaintiffs’ alleged injuries are too causally attenuated from the wire transfers allegedly executed by the Guangzhou branch of BOC.”

Id.

at 5. According to BOC, because “[tjhere are innumerable third parties without whose ‘independent action’ [pjlaintiffs would not have been injured,” the injuries on which the claims are based are not fairly traceable to its alleged execution of the fund transfers.

Id.

(quoting

Greenberg v. Bush,

150 F.Supp.2d 447, 455 (E.D.N.Y.2001)). The issue, however, is not merely whether independent third parties are involved, but rather whether a sufficient causal chain is established between the alleged actions of a defendant and the injury suffered by the claimant.

See Allen v. Wright,

468 U.S. 737, 759 , 104 S.Ct. 3315 , 82 L.Ed.2d 556 (1984).

The circumstances of

Greenberg,

150 F.Supp.2d at 447 , the case cited by BOC for the proposition that causation is too attenuated, are quite different from the facts alleged in this case. In

Greenberg ,

plaintiffs argued that foreign-policy actions of the executive branch supporting the establishment of a Palestinian state had “weaken[edj and paralyze[dj” Israel in violation of longstanding policy favoring the creation and maintenance of a Jewish homeland in the Middle East. The plaintiffs thus concluded that these actions resulted in terrorist attacks on Israel.

Id.

at 449-50 . The plaintiffs made no attempt to prove a causal chain between these foreign-policy decisions and the terrorist acts perpetrated by third parties. The absence of that causal chain led the court to conclude that the plaintiffs lacked standing.

Id.

at 454-55 . According to the court, “[i]t would be difficult to imagine a clearer example of a third party’s actions breaking the causal chain.”

Id.

at 455 .

This case is distinguishable from

Green-berg

because, per plaintiffs’ allegations, there are links in a causal chain — and plaintiffs have connected them. According to defendant’s motion, the “implausible conclusory assertions that the wire transfers ‘enablefdj’ PLJ to carry out the attacks ... are plainly insufficient” for purposes of standing. BOC’s Mot. 5 (quoting FAC ¶ 72). Defendant’s assertion is an oversimplified characterization of plaintiffs’ allegations. The first amended complaint alleges that for several years predating the bombing, BOC executed dozens of wire transfers totaling several million dollars to and from an account owned by Mr. AlShurafa. FAC ¶ 69. Those transfers were allegedly initiated by the PI J, executed in part through BOC branches in the United States, and eventually directed to members of the PIJ to plan, prepare for, and execute terrorist activities, including the bombing at issue in this case.

Id.

¶¶ 69-70, 74, 77, 92. Based on these allegations, the Court finds that plaintiffs have adequately pled injuries that are fairly traceable to BOC’s alleged actions.

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This finding is supported by two other recent decisions addressing standing for claims brought against financial institutions under the ATA. In

Rothstein v. UBS AG,

scores of victims and their families brought suit alleging that UBS had executed fund transfers to Hamas and Hezbollah, the perpetrators of the attacks out of which the suit arose. 647 F.Supp.2d 292 (S.D.N.Y.2009),

appeal dismissed,

No. 09-4108-cv (2d Cir. Aug. 26, 2010),

filed as

Pis.’ Notice of New Appellate Auth. Relevant to Def. BOC’s Pending Mot. to Dismiss, Ex. A, EOF No. 77-1. The court explained the causal chain alleged by the plaintiffs:

[The] plaintiffs allege that the Iranian government is a recognized sponsor of terrorism and has funded and supported Hamas, Hezbollah, and other Palestinian terrorist organizations; that these terrorist organizations require U.S. cash dollars to carry out their activities; and that UBS’s involvement in banknote transactions with Iranian counterparties had the effect of providing U.S. cash dollars to the Iranian government, which, in turn, supplied the aforementioned terrorist organizations with U.S. cash dollars that were used to facilitate terrorist acts. This indirect facilitation, plaintiffs argue, makes UBS liable to plaintiffs for the harms they suffered at the hands of the terrorist groups.

Id.

at 294 . The court then identified several breaks in that chain: (1) the plaintiffs did “not allege that UBS is a primary or even relatively significant source of U.S. banknotes for the Iranian government”; (2) the plaintiffs did not consider that “cash dollars have multiple legitimate uses besides funding terrorism”; and (3) the plaintiffs made no allegations “showing that the terrorist groups here in question raise their funds from monies transferred from Iran.”

Id.

The court thus concluded that the “plaintiffs’ allegations here are far too speculative to provide the plausible indication of ... causation necessary to establish plaintiffs’ standing in this case.”

Id.

In the instant case, however, plaintiffs have alleged a flow of money

directly

into the coffers of the PIJ, FAC ¶ 69 — an organization entirely devoted to terrorist activity, and thus one that is unlikely to use wired moneys for any other purpose,

see

Holly Fletcher, Council on Foreign Relations,

Palestinian Islamic Jihad

(Apr. 10, 2008), http://www.cfr.org/publication/15984 (noting that “the PIJ offers no social services,” but rather engages solely in terroristic violence). The claimants’ causation allegations are therefore not speculative like those considered in

Rothstein.

Goldberg v. UBS AG,

the plaintiffs brought significantly similar claims alleging that UBS had transferred funds to Hamas, the perpetrator of the bombing out of which the suit arose. 660 F.Supp.2d 410 (E.D.N.Y.2009). The court explained the causal chain: (1) the plaintiffs alleged that Hamas is financed through false charities, one of which is the Association de Secours Palestinien (ASP); (2) UBS maintained an account for ASP and transferred money to ASP and other Hamas-controlled entities; and (3) that because Hamas had been designated a foreign terrorist organization by the State Department, and because ASP had been designated as a Ha-mas fundraising entity by the OFAC, UBS knew the result of transferring the money — the funding of terrorist violence.

Id.

at 415-16 . Thus, where UBS had transferred funds directly to a terrorist-affiliated entity, and knew or had reason to know of that entity’s terrorist affiliation, the court found that the plaintiffs had adequately pled standing.

The circumstances of

Goldberg

parallel those now before the Court. BOC allegedly transferred funds directly from PIJ op

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eratives to an account it maintained for Mr. Al-Shurafa, a PIJ agent. FAC ¶ 69. BOC urges the Court to distinguish

Goldberg

from this case, arguing that here, BOC performed financial services for an individual “who has never been designated as a member of a terrorist organization by any Government agency, and has never appeared on the OF AC list.” Def. BOC’s Resp. to Pis.’ Notice of New Auth. 2, Sept. 29, 2010, ECF No. 54 [hereinafter BOC’s Resp. to Pis.’ New Auth.]. BOC thus claims that, unlike the defendant in

Goldberg,

it had no knowledge that it was effectively providing financial services to the PIJ.

Id.

Below, the Court discusses an overarching knowledge requirement applicable to civil actions brought under 18 U.S.C. § 2333 (a).

See

discussion

infra

Goldberg,

plaintiffs have pled the knowing provision of financial services to terrorists resulting in terrorist violence.

In addition to its attenuation argument, BOC contends that causation fails because “[t]here can be no genuine claim that PIJ lacked the means to finance and carry out the April 17, 2006 bombing without the wire transfers from Guangzhou.” BOC’s Mot. 5. But the question is not whether, absent the wire transfers by BOC, it would have been impossible for the PIJ to carry out the bombing. Rather, the question is whether “it could reasonably be inferred that,” absent the wire transfers, “there is a substantial probability” that plaintiffs would not have been injured.

Greenberg,

150 F.Supp.2d at 455 . Such an inference may be based on “general factual allegations of injury resulting from the defendant’s conduct” because, on a motion to dismiss, courts will “ ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’ ”

Defenders of Wildlife,

504 U.S. at 561 , 112 S.Ct. 2130 (quoting

Nat’l Wildlife Fed.,

497 U.S. at 889 , 110 S.Ct. 3177 ).

A review of the factual allegations set forth in the first amended complaint demonstrates that plaintiffs have sufficiently pled causation for purposes of standing. First, plaintiffs allege that “[t]he PIJ is subject to strict economic sanctions programs imposed by the United States as the result of its designation” as a foreign terrorist organization and specially designated global terrorist entity, the enforcement of which is intended to limit the PIJ’s “ability to plan, to prepare!,] and to carry out terrorist attacks.” FAC ¶¶ 63-64. Second, were these sanctions universally enforced by financial institutions, plaintiffs allege that “the ability of PIJ to conduct banking activities would be severely restricted, and PIJ’s ability to plan, to prepare!,] and to carry out terrorist attacks would be significantly reduced.”

Id.

¶ 66. Third, plaintiffs allege that “very few banks and financial institutions ... do not observe and enforce the U.S. Sanctions Regime,” among which is BOC.

Id.

¶ 67. Finally, the first amended complaint alleges that BOC executed “dozens of ... wire transfers ... totaling several million dollars” on behalf of Mr. Al-Shurafa, a BOC account holder and “a senior officer and agent both of the PIJ and of the Hamas terrorist organization,” which were

“necessary

for planning, preparing and carrying out” the attack for which relief is sought.

Id.

¶¶ 69, 73 (emphasis added). Rather than “implausible conclusory assertions,” BOC’s Mot. 5, these allegations are supported by specific references to dates, amounts, and geographical distribution of funds by BOC on behalf of the PIJ’s leadership. In light of these factual allegations, it can reasonably be inferred that, absent the wire transfers, there is a sub

*24

stantial probability that claimants would not have suffered the harm alleged.

2. Political-Question Doctrine.

Political questions are those that have been reserved to the executive or legislative branches of government and that are not well suited for determination by courts. If plaintiffs’ claims raise political questions, then this case would be nonjusticiable and must be dismissed. Although plaintiffs’ claims allege facts concerning the conduct of the Chinese government, those allegations do not intrude upon the foreign policy of the United States, and BOC’s allegations concerning unsuitability for determination by courts are unripe. Accordingly, plaintiffs’ claims do not raise nonjusticiable political questions.

a. Political Questions Are Those Issues Reserved for the Political Branches and Unsatisfactory for Judicial Determination.

The political question doctrine “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution” by the executive and legislative branches.

Japan Whaling Ass’n v. Am. Cetacean Soc’y,

478 U.S. 221, 230 , 106 S.Ct. 2860 , 92 L.Ed.2d 166 (1986). Thus, the doctrine makes nonjusticiable those “political decisions that are by their nature committed to the political branches to the exclusion of the judiciary.”

Schneider v. Kissinger,

412 F.3d 190, 194 (D.C.Cir.2005) (quoting

Antolok v. United States,

873 F.2d 369, 379 (D.C.Cir.1989)). Two considerations guide a court’s testing for nonjusticiable political questions: “the appropriateness under our system of government of attributing finality to the action of the political departments” and “the lack of satisfactory criteria for a judicial determination.”

Baker v. Carr,

369 U.S. 186, 210 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962) (citing

Coleman v. Miller,

307 U.S. 433 , 59 S.Ct. 972 , 83 L.Ed. 1385 (1939)).

Based on those considerations, the Supreme Court in

Baker

identified “six independent tests for the existence of a political question”:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Vieth v. Jubelirer,

541 U.S. 267, 277 , 124 S.Ct. 1769 , 158 L.Ed.2d 546 (2004) (quoting

Baker,

369 U.S. at 217 , 82 S.Ct. 691 ) (quotation marks removed). Under the

Baker

analysis, “[t]o find a political question ... [a court] need only conclude that one factor is present, not all.”

Schneider,

412 F.3d at 194 . However, upon finding that a claim implicates “none of the [six] characteristics that

Baker v. Carr

identified as essential to ... raisfing] a political question,” a court may treat that claim as justiciable for purposes of the political question doctrine.

U.S. v. Munoz-Flores,

495 U.S. 385, 395 , 110 S.Ct. 1964 , 109 L.Ed.2d 384 (1990).

When undertaking the

Baker

analysis, a court must remember that “the mere fact that a case touches on the political process does not necessarily create a

*25

political question beyond courts’ jurisdiction.”

In re Nazi Era Cases Against German Defs. Litig.,

129 F.Supp.2d

370

(D.N.J.2001) (citing

Nixon v. Herndon,

273 U.S. 536, 540 , 47 S.Ct. 446 , 71 L.Ed. 759 (1927);

Can v. United States,

14 F.3d 160, 163 (2d Cir.1994)). For instance, “[disputes involving ... foreign policy decisions are ‘quintessential sources of political questions.’ ”

El-Shifa Pharm. Indus. v. United States,

559 F.3d 578 , 583 (D.C.Cir.2009) (quoting

Bancoult v. McNamara,

445 F.3d 427, 433 (D.C.Cir.2006)). Nonetheless, “it is ‘error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.’ ”

Japan Whaling Ass’n,

478 U.S. at 229-30 , 106 S.Ct. 2860 (quoting

Baker,

369 U.S. at 211 , 82 S.Ct. 691 ). Unless applicable

Baker

factors are “inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.”

Baker,

369 U.S. at 217 , 82 S.Ct. 691 .

b. Plaintiffs’ Claims Do Not Raise Political Questions.

BOC argues that the first amended complaint raises nonjusticiable political questions under two prongs of the

Baker

analysis. First, BOC maintains that the complaint “involve[s] issues which are constitutionally committed” to the Executive Branch by virtue of its plenary power over foreign affairs. BOC’s Mot. 9. Second, BOC argues nonjusticiability due to the lack of “ ‘satisfactory criteria for a judicial determination’ of the issues.”

Id.

at 10 (quoting

Baker,

369 U.S. at 210 , 82 S.Ct. 691 ). The Court will deny BOC’s motion with respect to the political-question doctrine, finding that the Court may adjudicate all claims presented without implicating “policy choices and value determinations constitutionally committed for resolution” by the executive and legislative branches,

Japan Whaling Ass’n,

478 U.S. at 230 , 106 S.Ct. 2860 , and that concerns about the difficulty of evidentiary compulsion raised by BOC’s motion are unripe.

i. Adjudication of Plaintiffs’ Claims Does Not Intrude Upon Foreign Relations of the Executive Branch.

BOC first contends that the claimants’ allegations raise “issues which are constitutionally committed to a coordinate political department” — the Executive Branch. BOC’s Mot. 9. It is true that “foreign relations are ‘quintessential sources of political questions,’ ”

id.

(quoting

Bancoult,

445 F.3d at 433 ), and that “the power to conduct foreign affairs is constitutionally committed to the political branches,”

id.

(citing

Ange v. Bush,

752 F.Supp. 509, 512 (D.D.C.1990)). These broad generalizations do not, however, render nonjusticiable all claims that have some relation to a foreign government’s “political policies and goals ... with respect to other foreign powers.”

Id.

Acceptance of BOC’s characterization of the political question doctrine would be a significant departure from the traditionally accepted scope of the doctrine in the context of foreign affairs. For instance, in

Japan Whaling Ass’n ,

the petitioners argued that the claims against them were “unsuitable for judicial review because they involve foreign relations and that a federal court, therefore, lackfed] the judicial power” to hear those claims under the

Baker

analysis. 478 U.S. at 221 , 106 S.Ct. 2860 . The Court rejected the petitioner’s reasoning, ruling that

“Baker

carefully pointed out that ... it is ‘error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.’ ”

Id.

at 229-30 , 106 S.Ct. 2860 (quoting

Baker,

369 U.S. at 211 , 82 S.Ct. 691 ). Unless one of the six factors of the

Baker

analysis is

“inextricable

from the case at bar, there should be no dis

*26

missal for nonjusticiability on the ground of a political question’s presence.”

Baker,

369 U.S. at 217 , 82 S.Ct. 691 (emphasis added). To the extent that the claimant’s allegations implicate any of the

Baker

factors, the Court finds that those allegations are extricable from the Court’s adjudication of the underlying claims.

BOC argues that “[plaintiffs’ attempt to litigate the political policies and goals of the Chinese government with respect to other foreign powers, including the United States and Israel, its relationship to Chinese citizens and corporations in connection with its policies, the alleged communications between Israeli and Chinese counterterrorism officials, and the Chinese government’s alleged disregard of Israeli government concerns about terrorism invitefs] judicial encroachment on matters assigned by the Constitution exclusively to the political branches of government.” BOC’s Mot. 9-10. BOC thus takes issue with three paragraphs of plaintiffs’ complaint: paragraph 77, which alleges that Israeli officials informed China, which informed BOC, that the wire transfers at issue were enabling the terrorist activities of the PIJ, and paragraphs 112 and 123, which allege that BOC actually intended to “intimidate or coerce a civilian population”; “influence the policy of a government by intimidation or coercion”; or “affect the conduct of a government by mass destruction.” 18 U.S.C. § 2331 (1)(B).

Concerning paragraphs 112 and 123, because, as the Court concludes below, actual intent is not required — plaintiffs need only plead the appearance of intent — the Court need not consider these allegations with respect to the plaintiffs’ claims under the ATA.

See

discussion

infra

Part III. E.2.d.iii. These allegations of actual intent also have nothing to do with plaintiffs’ claims under Israeli law. Pis.’ Opp’n 41. Because the Court will not consider them, there is no concern that these allegations will raise a political question to be decided by the Court.

Concerning paragraph 77, whatever political character there may be to allegations that Israeli officials met with Chinese officials, and that BOC thereafter knew it was providing financial services to the PIJ but did nothing to stop it, is extricable from the resolution of plaintiffs’ claims. Plaintiffs do not attempt, as BOC puts it, to “litigate ... political policies and goals.” BOC’s Mot. 9. Plaintiffs do not ask this court to “pass judgment” on whether those policies are “valid or invalid, good or evil.” Pis.’ Opp’n 41. Indeed, considering the Court’s determination that only

appearance

of intent is relevant under § 2331(1)(B), plaintiffs do not ask the Court to say anything at all with respect to the actual policies or goals of China. Plaintiffs merely ask the Court to determine whether, as a matter of fact, China received certain information from Israel.

See

discussion

infra

Part III.E.2.e.i. (discussing in detail plaintiffs’ allegations made in FAC ¶ 77). Ruling on that issue will not require the Court to intrude on the foreign policy prerogatives of the executive.

BOC, through an expert declaration on the nuances of the Sino-U.S. relationship, argues that judicial determination of other, more sensitive policy issues, would intrude on those prerogatives. Freeman Decl. 7-17, Mar. 4, 2009, ECF No. 15-16 (arguing that adjudication of allegations as to, among other things, Chinese direction of BOC decisions for ideological purposes, Chinese foreign policy goals of undermining the United States and Israel, and Chinese support for radical Islamic terrorism would intrude on the foreign policy of the United States). Because only the appearance of intent is at issue under § 2331(1)(B), the Court need not consider these allegations, which relate to actual

*27

intent. BOC does not explain how or why-adjudication of the mere fact that China received certain information from Israel will in any way affect foreign affairs. The Court is content that it may therefore decide the issue at trial.

This conclusion is buttressed by

Lev v. Arab Bank, P.L.C.,

a recent case also involving the alleged provision of financial services by a foreign bank to Ha-mas. No. 08-cv-3251, 2010 WL 623636 (E.D.N.Y. Jan. 29, 2010). Although

Lev

concerned claims brought under the Alien Tort Claims Act,

id.

at *1 , the district court’s reasoning on the political-question issue is apposite to analysis under the ATA. In

Lev,

as here, “no action by a coordinate branch of the United States government ... is involved.”

Id.

at *4 . And as discussed above, any political ingredient of the Court’s consideration plaintiffs’ alleged facts is merely incidental. Moreover, “the United States has enacted legislation implementing international conventions condemning ... the provision of financial services to terrorist groups.”

Id.

(citing

Almog v. Arab Bank, P.L.C.,

471 F.Supp.2d 257, 282-83 (E.D.N.Y.2007)). If anything, then, far from intruding on the political branches’ political interests, the Court’s application of those laws

furthers

those interests.

See also Burnett v. Al Baraka Inv. and Dev. Corp.,

274 F.Supp.2d 86 , 110 n. 19 (D.D.C.2003) [hereinafter

Burnett I

] (concluding, without significant discussion, that suit under the ATA against a Saudi Arabian bank for allegedly providing financial services to Al-Qaeda did not raise nonjusticiable political questions).

ii. The Issue of Whether Adjudication of Plaintiffs’ Claims Depends on Criteria Unsatisfactory for Judicial Determination Is Unripe.

The second argument BOC advances for dismissal under the

Baker

analysis is a lack of “ ‘satisfactory criteria for a judicial determination’ of the issues” presented. BOC’s Mot. 10 (quoting

Baker,

369 U.S. at 210 , 82 S.Ct. 691 ). According to BOC, “the Judiciary has neither the aptitude, facilities^] nor responsibility” to overcome the difficulties of evidentiary compulsion in “the realm of foreign affairs where the Constitution grants operational powers only to the two political branches.”

Id.

(citing

Ange v. Bush,

752 F.Supp. 509, 513 (D.D.C.1990)). “What discovery will take place to develop evidence in support of, and in opposition to, the FAC’s contentions about the Chinese government’s policies with respect to Israel, the United States, terrorism, and counterterrorism?” asks BOC.

Id.

“Do [pjlaintiffs expect the Court to require Chinese and Israeli government officials to produce documents in response to discovery requests, and to submit to depositions, on the subject of governmental policies and goals with respect to terrorism, including an exploration of the inner councils of these governments?” BOC adds rhetorically.

Id.

BOC thus argues that discovery via compulsion orders to China is the only way plaintiffs could prove up their case, but that the Court cannot issue such orders, so plaintiffs’ claims depend on criteria that are unsatisfactory for judicial determination. This argument is unripe. Plaintiffs have not yet attempted to acquire evidence of their allegations through discovery. The Court will not guess how plaintiffs will attempt to prove their case, whether through discovery requests to China, Israel, or any other entity, or whether through some other as-yet unimagined means. Just as “it is premature to dismiss the case as involving political questions on the chance that discovery may bump up against issues of confiden

*28

tiality,”

Alr-Quraishi v. Nakhla,

728 F.Supp.2d 702, 733 (D.Md.2010), so too is it premature to dismiss this case on the chance that discovery may bump up against noncooperation by China or Israel. Not until the Court is presented with a discovery dispute, or at least until after the parties formulate a discovery plan, can the Court decide whether plaintiffs have raised a political question with respect to evidentiary compulsion.

B. Subject-Matter Jurisdiction.

Although neither party has raised the issue of sovereign immunity, the general impression that BOC is linked to China herself gives the Court pause to consider the issue sua sponte. If BOC is entitled to sovereign immunity as a corporate instrumentality of China, for the Court to have jurisdiction over the subject-matter of this case, BOC must fall into some exception to that immunity. BOC, however, is not such an instrumentality and is therefore not entitled to immunity. BOC has not made any arguments in its motion that the Court lacks subject-matter jurisdiction, and the Court finds no other subject-matter jurisdictional issues necessary to address sua sponte.

1. Subject-Matter Jurisdiction Over a Case to Which a Foreign Sovereign Is a Party Turns on Sovereign Immunity.

The Foreign Sovereign Immunities Act of 1976 (FSIA) provides “the sole basis for obtaining jurisdiction over a foreign state in federal court.”

Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 439 , 109 S.Ct. 683 , 102 L.Ed.2d 818 (1989). The FSIA jurisdictional provisions consist of two parts. First, “[28 U.S.C.] § 1604 bars federal and state courts from exercising jurisdiction when a foreign state

entitled to immunity.”

Id.

at 434, 109 S.Ct. 683 . Second, “[28 U.S.C.] § 1330(a) confers jurisdiction on district courts to hear suits brought by United States citizens and by aliens when a foreign state is

not

entitled to immunity.”

Id.

Thus, under the FSIA, “a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.”

Saudi Arabia v. Nelson,

507 U.S. 349, 355 , 113 S.Ct. 1471 , 123 L.Ed.2d 47 (1993);

see

28 U.S.C. §§ 1605 -1605A (enumerating exceptions to the general rule of foreign sovereign immunity).

Because “subject-matter jurisdiction turns on the existence of an exception to foreign sovereign immunity,” the Court may raise the issue sua sponte.

Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 , 495 n. 20, 103 S.Ct. 1962 , 76 L.Ed.2d 81 (1983). Further, because a foreign sovereign has “immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits,”

Foremost-McKesson Inc. v. Islamic Republic of Iran,

905 F.2d 438, 443 (D.C.Cir.1990), this Circuit requires a district court “to decide the predicate issues of jurisdiction and sovereign immunity at its earliest opportunity,”

Peterson v. Islamic Republic of Iran,

563 F.Supp.2d 268 , 271 n. 2 (D.D.C.2008) (citing

Phoenix Consulting, Inc. v. Republic of Angola,

216 F.3d 36, 39 (D.C.Cir.2000)). “To defer the question ... [would] ‘frustrate the significance and benefit of entitlement to immunity from suit.’ ”

Phoenix Consulting,

216 F.3d at 39 (quoting

Foremost-McKesson,

905 F.2d at 449 ). Although neither plaintiffs nor BOC have raised the issue of sovereign immunity, BOC has previously been presumed immune when “the Bank was wholly owned and operated by the People’s Republic of China.”

Orient Mineral Co. v. Bank of China,

506 F.3d 980 ,

*29

985, 991-1001 (10th Cir.2007). Accordingly, and because it is appropriately early in this litigation, the Court should raise and resolve this issue sua sponte.

2. Instrumentalities of Foreign States Are Presumptively Immune.

Other than for purposes of service of process, a “foreign state” entitled to immunity under the FSIA is defined to include any “agency or instrumentality” of that state. 28 U.S.C. § 1603 (a). This Circuit “follows a categorical approach when determining whether a foreign governmental entity should be considered ‘a foreign state or political subdivision’ rather than an ‘agency or instrumentality of the nation.’ ”

In re Islamic Republic of Iran Terrorism Litig.,

659 F.Supp.2d 31 , 48 n. 10 (D.D.C.2009) (quoting

Roeder v. Islamic Republic of Iran,

333 F.3d 228, 234 (D.C.Cir.2003)). “Under the categorical approach, if the core functions of the entity are governmental, it is considered the foreign state itself.”

Id.

If the core functions are commercial, however, then the entity qualifies as an agency or instrumentality of a foreign state.

Id.

The Court’s analysis does not end, however, with this categorical distinction. Upon finding that an entity’s core functions are commercial, a district court must also determine whether the entity constitutes an agency or instrumentality as defined by the FSIA. The entity thus must be (1) a separate legal person, corporate or otherwise, from the foreign state; (2) “an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof’; and (3) “neither a citizen of a State of the United States ... nor created under the laws of any third country.” 28 U.S.C. § 1603 (b)(1)-(3). Concerning the second criterion, the Supreme Court has held that “a foreign state must itself own a majority of the shares of a corporation if the corporation is to be deemed an instrumentality of the state under the provisions of the FSIA.”

Dole Food Co. v. Patrickson,

538 U.S. 468, 480 , 123 S.Ct. 1655 , 155 L.Ed.2d 643 (2003). Therefore, “a subsidiary of an instrumentality is not itself entitled to instrumentality status,” regardless of the degree of control the foreign state exercises over that subsidiary.

Id.

at 473, 477 , 123 S.Ct. 1655 . Importantly, “instrumentality status is determined at the time of the filing of the complaint.”

Id.

at 480 , 123 S.Ct. 1655 .

3. BOC Is Not an Instrumentality of China.

Pleadings and papers filed with the Court state that BOC is “the fifth largest commercial bank in the world,” BOC’s Mot. 14, and that it “does extensive business throughout the United States and holds significant assets in the United States.” FAC ¶ 24. BOC’s core functions are therefore commercial in nature, and BOC is therefore properly considered an instrumentality of China under the categorical analysis.

Concerning the definitional analysis, BOC satisfies the first and third criteria for classification as an agency or instrumentality of China: BOC is a legal person separate from China and is neither a citizen of this country nor created under the laws of a country other than the United States or China. BOC,

Annual Report 2008,

at 1 (2008), http://pic.bankofehina. com/bocappd/report/200904/P02009043034 3687728848.pdf (discussing BOC’s history, including its incorporation in China). It is less clear, however, that BOC satisfies the second criterion, which limits instrumentality status to those corporations in which a foreign state

directly

owns a majority of shares or other ownership interest at the

*30

time the suit was filed.

Dole Food,

538 U.S. at 478, 480 , 123 S.Ct. 1655 .

At the beginning of 2008, BOC was principally owned by China SAFE Investments Limited (“SAFE”), which held 67.49% of BOC’s shares. BOC,

Annual Report 2007,

at 89 (2007), http://www.boc.cn/en/investor/ ir3/200812/P020081212710831551281.pdf. By the end of 2008, SAFE had marginally increased its holdings to 67.52%. BOC,

Annual Report 2008, supra,

at 77 (2008). It is therefore reasonable to infer that SAFE owned a majority interest in BOC on August 22, 2008, the date on which this action was filed.

SAFE, which stands for “State Administration of Foreign Exchange,” is also known by its Chinese name:. Central Huijin Investment Company, Ltd. (“Huijin”). Wang Jianxi, Executive Vice President, Chief Risk Officer, China Investment Corp.,

Commercial Banking Reform, in

China’s Emerging Financial Markets 107, 114 (Min et al. eds., 2009). Huijin operates as an investment arm of the Chinese government.

Id.;

BOC,

Annual Report 2008, supra,

at 79 (“Huijin makes equity investment in key state-owned financial institutions .... ”). But Huijin is not directly owned by China; instead, Huijin is a subsidiary of the China Investment Corporation (CIC), China’s sovereign wealth fund. CIC, Overview, http://www.china-inv.cn/ eicen/about^cic/aboutcic_overview.html (last visited Oct. 20, 2010) (“CIC[ ] is an investment institution established as a wholly state-owned company.... Huijin[] is wholly-owned subsidiary of CIC.”); Amadan Int’l,

The Creation of the China Investment Corporation

6, 16 (2008), http://www.amadaninternational.com/ reports/TheCreationoftheChinalnvestment Corporatiompdf;

see also

Levush,

supra.

When evaluating whether plaintiffs have stated claims upon which relief may be granted under Israeli law, the Court will therefore evaluate the text of relevant Israeli law with appropriate deference to Israeli Supreme Court interpretations thereof.

Further, “[i]n determining foreign law, the court may consider any relevant material or source, ... whether or not submitted by a party.” Fed.R.Civ.P. 44.1. In addition to caselaw and statutory materials submitted by the parties, the Court will thus consider several third-party sources discussing that caselaw and those materials. The Court also notes that English translations of Israeli law often use British English, not American English. The Court’s quotations of words with spellings such as “organisation” for “organization” or “defence” for “defense,” are, therefore, intentional. With these standards and considerations in mind, the Court now turns to whether plaintiffs have stated claims upon which relief may be granted.

2. Plaintiffs Have Sufficiently Pled Count Two: Primary Liability.

To state a claim of primary liability under the ATA, a plaintiff must plead facts as to all statutory elements of the claim, established through a chain of incor

*41

porations, as well as overarching elements of ordinary tort law. Plaintiffs have done so.

a. Primary Liability Under the ATA Requires a Chain of Incorporations.

The ATA provides 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.” § 2333(a). “International terrorism” means activities that

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum....

18 U.S.C. § 2331 (1). Three criminal laws, all part of the ATA, are particularly relevant to civil cases brought under the ATA: 18 U.S.C. §§ 2339A, 2339B, and 2339C.

The first law makes it a federal crime to “provide[] material support or resources ... knowing or intending that they are to be used in preparation for, or in carrying out, a violation of’ various terrorism-related criminal statutes. § 2339A(a). “Material support or resources” includes, among other things, “financial services.” § 2339A(b)(l). Among the referenced terrorism-related criminal statutes are 18 U.S.C. §§ 2332 (a), 2332a(a)(l), and 2332f(a)(l), which criminally prohibit, among other things, the extraterritorial killing of a U.S. national, the extraterritorial use of a weapon of mass destruction against a U.S. national, and the extraterritorial bombing of a place of public use, respectively. These laws make further referential incorporations of, for example, definitions of key terms.

See, e.g.,

§ 2332(a) (referencing definitions of “murder,” “voluntary manslaughter,” and “involuntary manslaughter” located elsewhere in title 18).

The second law makes it a crime to “provide[] material support or resources to a foreign terrorist organization” with “knowledge that the organization is a designated terrorist organization ..., that the organization has engaged or engages in terrorist activity ..., or that the organization has engaged or engages in terrorism.” § 2339B(a)(l). The statute also defines several terms by reference to other sections of title 18.

See id.

Finally, the third law makes it a crime to, among other things,

by any means, directly or indirectly, unlawfully and willfully provide[] or colleet[ ] funds ... with the knowledge that such funds are to be used, in full or part, to carry out ... any ... act intended to cause death or serious bodily injury to a civilian ... when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

§ 23390(a)(1). As with the other two laws, this law incorporates several definitions by

*42

reference to other statutes.

See

§ 2339C(e).

The ATA thus compels a “chain of incorporations” from § 2333(a), which references international terrorism, to § 2331(1), which defines international terrorism, to whatever federal criminal laws the violation of which a plaintiff might plead, which are referenced in the definition of international terrorism, and further to whatever additional referential incorporations those criminal laws might make.

Boim III,

549 F.3d at 691;

Boim v. Quranic Literacy Inst.,

291 F.3d 1000 , 1012-16 (7th Cir.2002) [hereinafter

Boim

I].

Additionally, the ATA requires allegations of intentional misconduct — in addition to other state-of-mind requirements incorporated in §§ 2339A-2339C — and proximate causation.

Boim III,

549 F.3d at 691-98;

Biton v. Palestinian Interim Self-Gov’t Auth.,

310 F.Supp.2d 172, 182 (D.D.C.2004) (citing

Boim I,

291 F.3d at 1011-12 (interpreting “by reason of’ language of § 2333(a) as requiring a showing that defendant’s actions proximately caused plaintiffs’ injuries)). Courts have thus evaluated claims against those who provided financial services or assistance to terrorist groups under this chain-of-incorporations theory, inquiring whether plaintiffs should be held primarily liable for their own actions: the provision of financial services or assistance.

See, e.g., Boim III,

549 F.3d 685 ;

Goldberg,

660 F.Supp.2d at 426-27 ;

In re Terrorist Attacks on September 11, 2001,

462 F.Supp.2d 561 (S.D.N.Y.2006) [hereinafter

Ten-orist Attacks II

];

Weiss v. Nat’l Westminster Bank, P.L.C.,

453 F.Supp.2d 609, 622-32 (E.D.N.Y.2006).

BOC does not deny the availability of the chain-of-incorporations theory to plaintiffs; indeed, BOC argues that it is “the only theory available” to plaintiffs under the ATA. BOC’s Mot. 19. Instead, BOC criticizes the “labyrinthine route” through which plaintiffs attempt to plead a chain of incorporations, arguing that theirs is “a theory so utterly implausible — indeed irrational — that it falls well short of the

Twombly

standard.”

Id.

at 20-22. BOC additionally argues that plaintiffs have failed to adequately plead facts relating to BOC’s state of mind to support the elements of knowledge or intent required by the ATA and the other statutes it incorporates.

Id.

at 23-28. Although BOC does not specifically argue that plaintiffs have failed to adequately plead proximate causation,

see id.

at 19-23, the Court will nonetheless also address this issue, which is implied by BOC’s general argument that plaintiffs have failed to adequately state a primary-liability ATA claim. For the reasons discussed below, the Court disagrees with BOC: plaintiffs have adequately pled links in a plausible chain of incorporations,

*43

including those relating to state of mind, and have also adequately pled proximate causation.

b.Plaintiffs Adequately Plead Eligibility.

To be eligible for civil relief under the ATA, a plaintiff must either be a U.S. national or an estate, a survivor, or an heir of a U.S. national. § 2333(a). A national of the United States is “a citizen of the United States” or

“a

person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 8 U.S.C. § 1101 (a)(22);

see

18 U.S.C. § 2331 (2). Plaintiffs plead that the one estate-plaintiff in this case is the estate of an individual who was a U.S. citizen while living, and further plead that all other survivor-plaintiffs are survivors of a U.S. citizen, and are U.S. citizens themselves. FAC ¶¶ 3, 5-7. Plaintiffs have therefore adequately pled their eligibility under § 2333(a).

c.Plaintiffs Adequately Plead Injury.

After pleading eligibility, plaintiffs must allege that they suffered some injury to their person, property, or business. § 2333(a). Personal injury includes “[a]ny invasion of a personal right, including mental suffering” in addition to physical or financial suffering.

Black’s Law Dictionary

802 (8th ed.2004). Family members of decedents can therefore suffer “mental anguish, emotional pain and suffering, [and] loss of society, companionship, comfort, protection, marital care, attention, advice or counsel.”

Biton,

310 F.Supp.2d at 182 (internal quotation marks omitted).

First, plaintiffs plead that Daniel Wultz, the estate of whom is a plaintiff, “was severely injured in the Terrorist Bombing, and died of his injuries on May 14, 2006.” FAC ¶¶ 3, 100. Second, plaintiffs plead that Yekutiel Wultz—Daniel’s father—“was seriously injured in the Terrorist Bombing but survived,” suffering “severe physical, psychological, emotional,] and other injuries ... including[ ] disfigurement; loss of physical and mental functions; extreme pain and suffering; loss of guidance, companionship[,] and society; loss of consortium; severe emotional distress and mental anguish; loss of solatium; and loss of future income.”

Id.

¶¶ 3, 100-01. Finally, plaintiffs plead that Sheryl Wultz, Amanda Wultz, and Abraham Leonard Wultz—Daniel’s mother, sister, and brother, respectively—suffered “severe injury, including ... pecuniary loss and loss of income; loss of guidance, companionship and society; loss of consortium; severe emotional distress and mental anguish; and loss of solatium.”

Id.

¶ 3, 6-7, 100, 102. Plaintiffs have thus adequately alleged injury under the ATA.

d.Plaintiffs Adequately Plead an Act of International Terrorism.

As part of the chain of incorporations, plaintiffs must allege an act of international terrorism, which, in turn, requires that plaintiffs allege acts dangerous to human life; violations of U.S. criminal law; the appearance of intention to intimidate civilians, influence government policy, or affect government conduct; and transcendence of national boundaries. § 2331(1). Plaintiffs have adequately pled these allegations.

i. Plaintiffs Adequately Plead Acts Dangerous to Human Life.

After pleading injury, plaintiffs must allege that BOC committed an act of international terrorism, § 2333(a), which must include allegations that BOC’s activities were violent acts or acts dangerous to human life, § 2331(1)(A). The first amended complaint alleges that defendant BOC provided “extensive banking services to PIJ,” which thereby “enable[d] PIJ to

*44

plan, to prepare for and to carry out terrorist attacks,” including the attack in this case. FAC ¶¶ 69, 72. The complaint further alleges that the defendant’s provision of financial services to Mr. Al-Shurafa and the PIJ was “dangerous to human life, since the PIJ is a violent terrorist organization” the only goal of which is to engage in terroristic violence, including the murder of Israeli and American citizens.

Id.

¶ 109.

Plaintiffs’ pleadings are similar to those made in

Goldberg,

which arose out of a bus bombing allegedly carried out by Hamas. 660 F.Supp.2d at 416 . In that case, the plaintiffs alleged that Hamas, which had been designated a foreign terrorist organization by the State Department, was financed through false charities.

Id.

at 415-lb. UBS allegedly maintained an account for one of these charities and transferred money to it and other Hamas-controlled entities.

Id.

The court denied a motion to dismiss by UBS for failure to state a primary-liability claim under § 2333, concluding that the “plaintiffs have sufficiently alleged that defendant UBS committed acts of international terrorism,” necessarily including allegations that the provision of financial services constitutes an act dangerous to human life.

Id.

at 427. This Court reaches a similar conclusion: plaintiffs have adequately pled the commission of an act dangerous to human life,

ii. Plaintiffs Adequately Plead Violations of U.S. Criminal Law.

After pleading acts dangerous to human life, plaintiffs must continue their allegations that BOC committed an act of international terrorism by alleging that BOC violated a criminal law of the United States. § 2331(1)(A). Plaintiffs thus allege that BOC’s actions constitute “a violation of ... the criminal provisions of 18 U.S.C. §§ 2339A, 2339B and 2339C, which prohibit the provision of material support and resources to terrorist organizations.” FAC ¶ 108. Adequately pleading a violation under any single provision would suffice for purposes of the plaintiffs’ primary liability claim, but based on the allegations set forth in the first amended complaint, the Court finds plaintiffs have sufficiently pled BOC’s violation of all three applicable laws.

I. Plaintiffs Adequately Plead Violations of 18 U.S.C. § 2339A.

Section 2339A makes it a crime to “provide[ ] material support or resources ... knowing or intending that they are to be used in preparation for, or in carrying out, a violation of’ various terrorism-related criminal statutes. § 2339A(a). Plaintiffs have pled facts satisfying these elements.

First, material support or resources include, among other things, “financial services.” § 2339A(b)(1). BOC protests that it merely engaged in the “routine provision of banking facilities,” not “acts of international terrorism.” BOC’s Mot. 22. Material support or resources, however, can include “even the ‘provision of basic banking services,’ ” so long as other elements of § 2339A(a), such as knowledge, are met.

Weiss,

453 F.Supp.2d at 620 (citing

Terrorist Attacks I,

349 F.Supp.2d at 833, 835 ) (quoting

Linde v. Arab Bank, P.L.C.,

384 F.Supp.2d 571, 588 (E.D.N.Y.2005)).

Compare Terrorist Attacks I,

349 F.Supp.2d at 835 (“Providing routine banking services, without having knowledge of the terrorist activities, cannot subject Arab Bank to liability.”),

with Linde,

384 F.Supp.2d at 588 (“Given plaintiffs allegations regarding the knowing and intentional nature of [Arab] Bank’s activities there is nothing ‘routine’ about the services the Bank is alleged to provide.”). Plaintiffs have alleged that BOC provided financial services to the PIJ

*45

by executing dozens of wire transfers totaling millions of dollars to an agent of the PIJ. FAC ¶ 69. Plaintiffs thus plead facts in satisfaction of this first element of § 2339A, particularly considering facts also pled as to knowledge, which are discussed below.

Second, among the various terrorism-related criminal statutes referenced in § 2339A are 18 U.S.C. §§ 2332 (a), 2332a(a)(1), and 2332f(a)(1). The first statute proscribes murder—“the unlawful killing of a human being with malice aforethought.” 18 U.S.C. §§ 1111 (a), 2332(a)(1). Plaintiffs allege that the PIJ maliciously killed several human beings by meticulously planning for and successfully carrying out the Tel Aviv bombing with the intent to kill civilians in a crowded restaurant. FAC ¶¶ 82. Plaintiffs thus plead facts satisfying the elements of the first statute.

The second statute proscribes, among other things, the use “without lawful authority” of a “weapon of mass destruction ... against a national of the United States while such national is outside of the United States.” § 2332a(a)(l). A weapon of mass destruction is, among other things, “any destructive device,” which includes “any explosive,” such as a “bomb.” 18 U.S.C. §§ 921 (a)(4)(A)(i); 2332a(c)(2)(A). Plaintiffs allege that “[t]he PIJ is a radical terrorist organization” that works toward its goal—“the destruction of the State of Israel”—“by carrying out terrorist attacks against Jewish civilians,” including the Tel Aviv bombing. FAC ¶¶ 27, 82. Terrorism is fundamentally extra-legal.

See

8 U.S.C. § 1182 (a)(3)(B)(iii) (defining “terrorist activity” to mean, in part, “any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State)”). Plaintiffs thus adequately plead that the PIJ lacked lawful authority to engage in its attack. Plaintiffs further plead that the PIJ exploded “a powerful explosive device covered with nails and other metallic projectiles.” FAC ¶¶ 84-85. Plaintiffs thus adequately plead the use of a weapon of mass destruction. Plaintiffs also plead the use of the weapon against Daniel Wultz and Yekutiel Wultz, both alleged U.S. nationals, while they were outside the United States in Tel Aviv, Israel. FAC ¶¶ 1, 3, 5, 87-88. Plaintiffs thus plead facts satisfying the final elements of the second statute.

Finally, the third statute proscribes, among other things, the delivery, placement, discharge, or detonation of “an explosive or other lethal device in, into, or against a place of public use ... with the intent to cause death or serious bodily injury.” § 2332f(a)(l)(A). Plaintiffs plead that an agent of the PIJ carried the aforementioned explosive device to the public— and very crowded—Rosh Ha’ir restaurant and detonated it, intending to kill and maim Jewish civilians. FAC ¶¶ 82-85. Plaintiffs thus plead facts satisfying the elements of the third statute. Because plaintiffs have pled facts as to the elements of §§ 2332(a), 2332a(a)(l), and 2332f(a)(l), plaintiffs have therefore pled facts in satisfaction of the criminal-law-violation element of § 2339A.

Third and finally, liability under § 2339A attaches only when the provider of material support or resources knew or intended that its financial services would be used in preparation for or carrying out violations of the various criminal-law provisions referenced in subsection (a). § 2339A(a). Such provider need not have had the “specific intent to aid or encourage the particular attacks that injured plaintiffs.”

Linde,

384 F.Supp.2d at 586 n. 9.

*46

Thus, plaintiffs need only allege that BOC provided financial services knowing or intending that such provision would generally facilitate the terrorist activities of the PIJ.

Id.; Estate of Parsons v. Palestinian Auth.,

715 F.Supp.2d 27, 31-32 (D.D.C.2010);

Gates v. Syrian Arab Republic,

580 F.Supp.2d 53, 67 (D.D.C.2008);

Ben-Rafael v. Islamic Republic of Iran,

540 F.Supp.2d 39, 46 (D.D.C.2008). Below, the Court discusses the overarching knowledge requirement imposed by § 2333.

See

discussion

infra

II. Plaintiffs Adequately Plead a Violation of 18 U.S.C. § 2339B.

Section 2339B makes it a crime to “provide[ ] material support or resources to a foreign terrorist organization” with “knowledge that the organization is a designated terrorist organization ..., that the organization has engaged or engages in terrorist activity ..., or that the organization has engaged or engages in terrorism.” § 2339B(a)(l). The law defines “material support or resources” by reference to § 2339A, which includes the provision of financial services. § 2339B(g)(4). The law also defines “terrorist activity” to mean “any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves,” among other things, “the use of any ... explosive,” 8 U.S.C. § 1182 (a)(3)(B)(iii); § 2339B(a)(l); and, relatedly, defines engagement in terrorist activity to mean, among other things, “to commit ..., under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity.” 8 U.S.C. § 1182 (a)(3)(B)(iv)(D; § 2339B(a)(l). Finally, the law defines “terrorism” to mean “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.” 22 U.S.C.A. § 2656f(2); § 2339B(a)(l).

As discussed above, material support or resources include the provision of financial services, § 2339A(b)(l), and plaintiffs have adequately pled the provision of such services by BOC,

see

discussion

supra

Part III.E.2.d.ii.I. Plaintiffs plead that the PIJ is a designated foreign terrorist organization. FAC ¶ 31. The only remaining issue, therefore, is whether plaintiffs adequately plead that BOC provided financial services to the PIJ with the requisite state of mind. Discussing the state-of-mind requirement, the Supreme Court recently stressed that “Congress plainly spoke to the necessary mental state for a violation of § 2339B, and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activities.”

Holder v. Humanitarian Law Project,

— U.S. —, 130 S.Ct. 2705, 2717 , 177 L.Ed.2d 355 (2010). Therefore, by alleging that defendant had knowledge of an organization’s connection to terrorism by one of the three means provided at § 2339B(a)(l), a plaintiff can sufficiently plead the state of mind necessary to plead a violation of § 2339B.

Below, the Court discusses the overarching knowledge requirement imposed by § 2333.

See

discussion

infra

*47

organization that had previously engaged in terrorism and terrorist activities.

III. Plaintiffs Adequately Plead a Violation of 18 U.S.C. § 2339C.

Section 2339C makes it a crime to, among other things,

unlawfully and willfully provide[ ] or collect[ ] funds ... with the knowledge that such funds are to be used, in full or part, to carry out ... any ... act intended to cause death or serious bodily injury to a civilian ... when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

§ 23390(a)(1).

Provision includes “giving, donating, and transmitting” funds, § 23390(e)(4), and collection includes “raising and receiving” funds, § 23390(e)(4). Thus, providing financial services to a terrorist organization falls within the scope of § 2339C, to the extent that the financial institution receives and transmits the organization’s funds.

See, e.cj., Weiss,

453 F.Supp.2d at 628-30 (concluding, after reviewing legislative history, that “maintenance of bank aecounts[ ] and processing of deposits and withdrawals” constitutes provision and collection under § 2339C);

Linde,

384 F.Supp.2d at 588 (denying motion to dismiss claims against bank for provision of financial services under § 2339C where bank received funds as deposits and transmitted funds to terrorist organizations). Plaintiffs plead that BOC transmitted and received funds for the PIJ on several occasions. FAC ¶ 69. There is no indication that BOC’s provision of financial services was done against its will. Plaintiffs thus adequately plead the first element of a claim under § 2339C.

Plaintiffs also plead facts concerning the act described in subsection (a)(1), which the statute refers to as a “predicate act.” § 2339C(e)(6). By allegedly carrying out the Tel Aviv bombing, the PIJ allegedly intended to kill and maim Jewish civilians with the purpose of intimidating those civilians to leave Israel and compelling the Israeli government into acceding to its demands. FAC ¶¶ 27, 82-85.

Concerning state of mind, § 2339C does not require a showing of specific intent that the defendant acted to further the organization’s terrorist activities or that it intended to aid or encourage the particular attack giving rise to a plaintiffs injuries.

Boim I,

291 F.3d at 1023-24. Mere knowledge that the funds provided and collected would be used to carry out the predicate act is enough.

See e.g., Linde,

384 F.Supp.2d at 588 (denying motion to dismiss where the plaintiffs alleged that a financial institution knew that funds received as deposits and transmitted to various organizations “were to be used for conducting acts of international terrorism”). Below, the Court discusses below the overarching knowledge requirement imposed by § 2333.

See

discussion

infra

Part III.E.2.e.i. As more fully discussed in that part, Israeli officials allegedly informed China, which informed BOC, that the transfers were enabling the terrorist activities of the PIJ. FAC ¶ 77. Plaintiffs have thus adequately pled that BOC knew that its provision and collection of funds would be used to carry out terrorist attacks such as the Tel Aviv bombing. Importantly, it is “not ... necessary that the funds were actually used to carry out a predicate act.” § 2339C(a)(3). BOC’s knowledge that they could be, even if they actually were not, is enough.

Regardless of whether plaintiffs have pled facts as to the elements of a claim under § 2339C(a), a court cannot entertain such a claim unless it has jurisdiction as

*48

provided by § 23390(b). Subsection (b) provides different rules for when a court may entertain claims for offenses under subsection (a) depending on whether the offense took place within or outside the United States. If within, a court has jurisdiction where, among other situations, an offense “resulted in the carrying out of a predicate act against ... a national of another state,” § 2339C(b)(l)(E)(i), an offense “resulted in the carrying out of a predicate act committed in an attempt to compel another state or international organization to do ... any act,” § 23390(b)(1)(F), or an offense “resulted in the carrying out of a predicate act ... outside the United States,” § 2339C(b)(l)(G)(i). If outside, a court has jurisdiction where, among other situations, an offense “resulted in the carrying out of a predicate act against ... any national of the United States,” § 2339C(b)(2)(C)(iii). Plaintiffs allege that BOC engaged in violations of § 2339C both within and outside the United States. FAC ¶ 69 (alleging BOC received and transferred funds “through BOC’s branches in the United States” as well as through a branch in Guangzhou, China).

Below, the Court discusses the causation requirement imposed by § 2333.

See

discussion

infra

Part III.E.2.e.ii. As more fully discussed in that part, BOC’s provision of financial services, including receipt and transfer of funds, proximately caused plaintiffs’ alleged injuries by facilitating the Tel Aviv bombing. Accordingly, the Court is satisfied that plaintiffs have pled allegations that BOC’s alleged offense under § 2339C(a)(l) “resulted in” the bombing, as that term is used in § 2339C(b). As for the rest of the requirements of § 2339C(b), first, plaintiffs plead that the bombing was carried out against, among others, Daniel Wultz and his father, both U.S. citizens, FAC ¶ 3, 5, 87-88, thus satisfying both § 2339C(b)(1)(E)(i) and § 2339C(b)(2)(C)(iii). Second, plaintiffs plead that the purpose of the bombing was to compel the Israeli government to accede to the PIJ’s demands, FAC ¶¶ 27, 82-85, thus satisfying § 2339C(b)(l)(F). Third, plaintiffs plead that the bombing took place in Tel Aviv, Israel, outside the United States, FAC ¶ 1, thus satisfying § 2339C(b)(l)(G)(i). Plaintiffs have therefore pled facts supporting jurisdiction under several provisions of § 2339(C)(b).

iii. Plaintiffs Adequately Plead Appearance of Intention to Intimidate Civilians, Influence Government Policy, or Affect Government Conduct.

After pleading violations of U.S. criminal law, plaintiffs must continue their allegations that BOC committed an act of international terrorism by alleging the appearance of BOC’s intention to intimidate civilians, influence government policy, or affect government conduct. § 2331(1)(B). Despite BOC’s protestation that such allegations “cross[ ] the line from implausibility to absurdity,” BOC’s Mot. 22, the Court concludes that plaintiffs have adequately pled these allegations.

To constitute an act of terrorism, an act dangerous to human life and violative of U.S. criminal law must also “appear to be intended” to do one of three things: “intimidate or coerce a civilian population”; “influence the policy of a government by intimidation or coercion”; or “affect the conduct of a government by mass destruction, assassination, or kidnapping.” § 2331(1)(B). At first glance, it does seem remarkable that BOC — an internationally respected financial institution with branches in this country — would actually intend to facilitate the terroristic murder of American civilians by the PIJ. Unfortu

*49

nately for BOC, actual subjective intent is not what the ATA is concerned with. Instead, the law requires only that a defendant’s acts

“appear

to be intended” to achieve one of the three enumerated items. § 2331(1)(B) (emphasis added);

Boim III,

549 F.3d at 694 (finding that satisfaction of § 2331(1)(B) is based on “a matter of external appearance rather than subjective intent”). Plaintiffs allege that the objective intent standard is satisfied “by the fact that subsequent to April 2005[,] BOC knowingly continued to carry out the PIJ Transfers after being expressly warned of the consequences of its actions and asked to desist.” FAC ¶ 111. Thus, defendant’s actions allegedly “created the objective ‘external appearance’ ... that BOC shared the PIJ’s goals of intimidating and coercing a civilian population and of influencing the policy of a government by intimidation and coercion.”

Id.

Plaintiffs thus adequately allege the objective appearance of intent by BOC. Based on these allegations, the Court easily finds that the plaintiffs have sufficiently pled grounds from which an objective observer could conclude defendant BOC intended to achieve any of the three results set forth under § 2331(1)(B): the attack at issue in this case, by its nature and context, appears to have been intended to intimidate or coerce the Israeli population, to influence the policies of the Israeli government by intimidation and coercion, and to affect the conduct of the Israeli government by mass destruction. Although directly attributable to the PIJ, a reasonable person could easily infer similar intent of BOC by virtue of its having allegedly provided material support to PIJ despite having allegedly been aware of a substantial probability that its support would facilitate the planning, preparation for, and execution of terrorist attacks in Israel.

Cf. Boim III,

549 F.3d at 708 (noting that mere financial support of a Hamas-affiliated charity

without

reason to impute intent from the charity to the financier did not create the requisite appearance of intent). Plaintiffs have thus adequately pled appearance of intent by BOC to achieve goals similar to those of the PIJ.

iv. Plaintiffs Adequately Plead Transcendence of National Boundaries.

After pleading appearance of intent, plaintiffs must continue their allegations that BOC committed an act of international terrorism by pleading allegations either that the activities at issue “occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.” Plaintiffs allege that defendant BOC executed fund transfers “by and through BOC’s branches in the United States ... [to an] account ... in Guanzhou, China.” FAC ¶ 69. Plaintiffs thus plead facts showing that the provision of financial services transcended national boundaries.

*50

e. Plaintiffs Adequately Plead Ordinary Tort Requirements.

When evaluating primary liability under a federal tort statute, “the ordinary tort requirements relating to fault, state of mind, causation, and foreseeability must be satisfied for the plaintiff to obtain a judgment,” even if not specifically enumerated as elements of the statute.

Boim III,

549 F.3d at 692 . When applied to an ATA claim, these traditional elements require that a plaintiff show intentional misconduct and proximate causation.

Id.

at 692 ;

Boim I,

291 F.3d at 1011-12. Plaintiffs have adequately pled both.

i. Plaintiffs Adequately Plead Intentional Misconduct.

Because § 2333(a) provides for the automatic trebling of damages, courts require proof of “intentional misconduct” on the part of the tortfeasor.

Boim III,

549 F.3d at 692 . As the Seventh Circuit has explained, “[w]hen the facts known to a person place him on notice of a risk, he cannot ignore the facts and plead ignorance of the risk.”

Id.

at 693 (citing

Makor Issues & Rights, Ltd. v. Tellabs, Inc.,

513 F.3d 702, 704 (7th Cir.2008)). Thus, proceeding in the same manner after being notified of a risk will constitute intentional misconduct where the defendant “knows that the consequences are certain, or substantially certain, to result from his act.”

Id.

at 694 (citing Restatement (Second) of Torts § 8(a), cmt. b.). If the defendant proceeds with the action in spite of the risk, “he is treated by the law as if he had in fact desired to produce the result.”

Id.

In this case, plaintiffs have pled facts alleging that BOC actually knew it was providing financial services to an agent of the PIJ, thus risking the use of those funds in the furtherance of the PIJ’s terrorist attacks. FAC ¶ 77. Between July 2003 and April 17, 2006, the date of the Tel Aviv bombing, BOC allegedly performed several wire transfers to and from the account of Said al-Shurafa, whom plaintiffs allege is an agent of the PIJ.

Id.

¶ 69. By pleading that Mr. Al-Shurafa is a “senior officer and agent ... of the PIJ” who acted “[p]ursuant to the PIJ’s instructions,” plaintiffs have adequately pled facts alleging that provision of financial services to Mr. Al-Shurafa constitutes the provision of financial services to the PIJ.

Id.

¶¶ 69-70;

see

Restatement (Third) of Agency § 1.01 (noting that a principal-agent relationship is that where “the agent shall act on the principal’s behalf and subject to the principal’s control”);

Nat’l Council of Resistance of Iran v. Dep’t of State,

373 F.3d 152 (D.C.Cir.2004) (“When one entity so dominates and controls another that they must be considered principal and agent, it is appropriate, under [the ATA], to look past their separate juridical identities and to treat them as aliases.”).

BOC stresses that Mr. Al-Shurafa is an individual “who has never been designated as a member of a terrorist organization by any Government agency, and has never appeared on the OFAC list.” BOC’s Resp. to Pis.’ New Auth. 2. BOC thus claims that it had no knowledge that it was effectively providing financial services to the PIJ.

Id.

Plaintiffs, however, allege that, in April 2005, “officials of the counterterrorism division of the Office of the Prime Minister of the State of Israel ... met with officials of the PRC’s Ministry of Public Security and the PRC’s central bank ... regarding the PIJ Transfers.” FAC ¶ 77. In this meeting, the Israeli officials allegedly told the Chinese officials that the transfers were being made by the PIJ and the money transferred was being used to fund terror.

Id.

Israel allegedly demanded that China stop the BOC from providing further services to Mr. Al-Shurafa, but that China demurred.

Id.

*51

Plaintiffs further allege that “the PRC officials notified the BOC of the Israeli officials’ statements that the PIJ Transfers were being made by the PIJ for the purpose of carrying out terrorist attacks and that the PIJ Transfers enhanced the PIJ’s ability to plan, prepare for[,] and carry out such attacks,” and that “the PRC officials also notified BOC of the Israeli officials’ demand the BOC halt the PIJ Transfers, but the BOC (with the approval of the PRC) ignored this demand and continued to carry out further PIJ Transfers.”

Id.

The Court must assume the truth of this allegation, which is plausible because it is reasonable to assume that, although BOC is not directly owned by China,

see

discussion

supra

Part III.B.3., China does exert a measure of control over the BOC through China’s central bank, the People’s Bank of China (PBC), PBC, About PBC, http://www.pbc.gov.cn/publish/english/952/ index.html (last visited Oct. 20, 2010) (“[T]he PBC funetion[s] as a central bank.”). Such an assumption is buttressed by BOC’s proclamation that is its “one of China’s largest

state-controlled

commercial banks.” BOC,

Annual Report 2008, supra,

at 1 (emphasis added). Thus, BOC’s argument that plaintiffs have not adequately alleged knowledge by BOC itself, rather than China,

see

BOC’s Mot. 26, is unpersuasive.

The Court must take plaintiffs’ allegations to be true, and when doing so, plaintiffs’ claim is facially plausible: if Israeli officials did inform China of the consequences of the provision of financial services to Mr. Al-Shurafa by BOC, China told BOC, and BOC continued to provide those services, plaintiffs make a valid claim under § 2333(a).

See e.g., Goldberg,

660 F.Supp.2d at 432-33 (holding that ATA liability extends to where the recipient of material support was not formally designated as a foreign terrorist organization but the alleged violator either had knowledge that the ultimate beneficiary was such an organization or that the direct recipient' was acting as an agent of the foreign terrorist organization);

Strauss v. Credit Lyonnais, S.A.,

No. 06-ev-702, 2006 WL 2862704 , at *11 (E.D.N.Y. Oct. 5, 2006) (holding that allegations concerning the provision of financial services to charitable branches of a foreign terrorist organization could serve as a basis for liability under § 2333 where it was also alleged that the charitable branches acted as agents of such organization). This conclusion is buttressed by comparison to similar cases cited by BOC involving financial institutions. In the first case, the plaintiffs in

Stutts v. De Dietrich Group

alleged that several banks, acting as domestic correspondents for foreign banks, issued letters of credit that were used to fund the purchase of goods and services facilitating the chemical weapons program of Saddam Hussein. No. 03-cv-4058 (ILG), 2006 WL 1867060 , at *1 (E.D.N.Y. June 30, 2006). The plaintiffs argued that the banks had or should have had knowledge that they were funding terrorism because they would have had to review the letters of credit before issuing them.

Id.

at *2 . The court found that this speculative allegation was insufficient under

Twombly. Id.

In the second case,

Terrorist Attacks I,

the court dismissed claims against banks where “[p]laintiffs offered no factual allegations” supporting the banks’ alleged knowledge. 349 F.Supp.2d at 831-34 . Plaintiffs in this case, on the other hand, offer specific and plausible allegations as to how BOC had the knowledge alleged.

*52

BOC’s alleged knowledge is all the more significant when compared with the sort of knowledge alleged in

Boim III .

In that case, the court faced the difficulty of evaluating the provision of financial assistance to a terrorist organization that also engages in peaceable pursuits. 549 F.3d at 698 (“Hamas is ... engaged not only in terrorism but also in providing health, educational, and other social welfare services.”). In this ease, the Court faces no such difficulty: “the PIJ offers no social services”; it engages solely in terroristic violence. Fletcher,

swpra.

Therefore, once BOC allegedly knew that it was providing financial services to the PIJ and continued to do so, BOC engaged in the sort of intentional misconduct prohibited by § 2333(a).

In addition to arguing that plaintiffs’ allegations of BOC’s knowledge are simply too implausible, BOC argues that the act-of-state doctrine prohibits the Court from considering allegations that China had been informed by Israel of the nature of the wire transfers. BOC’s Mot. 25-26. This argument widely misses its mark. As the D.C. Circuit has explained:

The act-of-state doctrine “precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.”

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 401 , 84 S.Ct. 923 , 11 L.Ed.2d 804 (1964). It is applicable when “the relief sought or the defense interposed would [require] a court in the United States to declare invalid the official act of a foreign sovereign performed within” its boundaries. W.S.

Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp.,

493 U.S. 400, 405 , 110 S.Ct. 701 , 107 L.Ed.2d 816 (1990).

World Wide Minerals, Ltd. v. Republic of Kazakhstan,

296 F.3d 1154, 1165 (D.C.Cir.2002).

Plaintiffs do not ask the Court to inquire into the validity of any public act of China. They do not, for example, ask the Court to say that China’s alleged refusal to stop BOC was illegal under Chinese law. They merely plead that China did, as a matter of fact, know that BOC was funding the PIJ, a fact which invites the Court to say nothing about the validity of any act of China.

See, e.g., W.S. Kirkpatrick,

493 U.S. at 406 , 110 S.Ct. 701 (citing

Sharon v. Time, Inc.,

599 F.Supp. 538, 546 (S.D.N.Y.1984) (“The issue in this litigation is not whether [the alleged] acts are valid, but whether they occurred.”)).

Additionally, plaintiffs do not limit their allegations of BOC’s knowledge to only the time period after the April 2005 meeting. “Even prior to the Israeli officials’ demand to halt the PIJ Transfers, BOC knew and/or should have known that the PIJ Transfers were being made for illegal purposes,” based on several alleged attributes of the transfers that “are universally recognized by all professional bankers, including BOC and its employees, as typical indicia of transactions made for illegal purposes.” FAC ¶¶ 78-79. For example, the transfers were made in cash in large, round numbers, with no apparent legitimate business purpose.

Id.

¶ 78. These attributes allegedly put BOC on notice, based on its duty under the rules of the

*53

international Financial Action Task Force and U.S. banking laws to “monitor, report[,] and refuse to execute suspicions and/or irregular banking transactions.”

Id.

¶ 80-81.

BOC takes issue with these allegations of constructive knowledge and what should have been known, correctly arguing that a civil action under § 2333(a) requires actual knowledge per the requirement of intentional misconduct. BOC’s Mot. 27-28 (quoting

Boim

III, 549 F.3d at 693 ). As the Seventh Circuit has pointed out, “it would not be enough to impose liability ... for violating [§ ] 2333 ... that the average person or a reasonable person would realize that the organization he was supporting was a terrorist organization, if the actual defendant did not realize it. That would just be negligence.”

Boim III,

549 F.3d at 693 . Plaintiffs, however, do not intend or rely upon these allegations to support their claim under the ATA; they are pled for the sake of plaintiffs’ claims under Israeli law. Pis.’ Opp’n 19. Accordingly, the Court does not examine whether these allegations support plaintiffs’ ATA claim.

ii. Plaintiffs Adequately Plead Proximate Causation.

To satisfy the ordinary tort requirement of causation and foreseeability, as well as the textual requirement that injury be suffered “by reason of’ an act of international terrorism, plaintiffs must plead that an alleged act of international terrorism proximately caused their injury. § 2333(a);

Boim III,

549 F.3d at 691-98 ;

Biton,

310 F.Supp.2d at 182 (citing

Boim I,

291 F.3d at 1011-12 (interpreting “by reason of’ language of § 2333(a) as requiring showing that defendant’s actions proximately caused plaintiffs’ injuries)). “Foreseeability is the cornerstone of proximate cause, and in tort law, a defendant will be held liable only for those injuries that might have reasonably been anticipated as a natural consequence of the defendant’s actions.”

Biton,

310 F.Supp.2d at 182 .

BOC could have reasonably anticipated plaintiffs’ injuries, assuming plaintiffs’ allegations to be true. BOC allegedly knew that it was providing financial services to an agent of the PIJ, and that the PIJ would use those funds for the sole purpose of engaging in terroristic violence against Jewish civilians in Israel.

See

discussion

supra

Part III.E.2.e.i. In light of these allegations, and as the Court discussed more fully above when considering causation with respect to standing,

see

discussion

supra

Part III.A. l.b., plaintiffs have adequately pled facts alleging BOC’s proximate causation of plaintiffs’ injuries.

See Weiss,

453 F.Supp.2d at 632 (concluding that plaintiffs pled proximate cause where they alleged that bank provided financial services to terrorists before terrorist attack).

f. Conclusions Concerning Count Two.

Plaintiffs have pled facts supporting the long chain of incorporations necessary under the ATA, alleging that they are eligible as the estate of and survivors of a U.S. citizen; that they suffered physical, emotional, and financial injuries; that BOC’s

*54

provision of financial services to an agent of the PIJ was dangerous to human life; that BOC provided financial services to the PIJ knowing that funds transferred would be used to prepare for and carry out the murder of U.S. citizens abroad, the use of a weapon of mass destruction against a U.S. citizen abroad, and the detonation of an explosive device with the intent to kill and injure civilians; that BOC provided financial services to the PIJ knowing that it was a designated terrorist organization that has engaged in terrorist activity and terrorism; that BOC willfully conducted wire transfers knowing that funds transferred would be used to carry out acts intended to kill and injure for the purpose of intimidating Jewish civilians and compelling Israel to accede to the PIJ’s demands; that by doing so, BOC appeared to have the intent to intimidate civilians, influence government policy, or affect government conduct; that BOC’s provision of financial services transcended national boundaries; that BOC acted knowingly and thus engaged in intentional misconduct; and that BOC’s acts proximately caused plaintiffs’ injuries. Plaintiffs have therefore pled facts sufficient to establish a claim of primary liability under the ATA upon which relief may be granted.

3. Plaintiffs Have Sufficiently Pled Count Three: Secondary Liability.

The Court must determine whether secondary liability for aiding and abetting the commission of acts of international terrorism by others is actionable under the ATA — an issue on which this Circuit has not ruled. BOC argues that is it not, but following a review of competing caselaw— circuits are split on the issue — and the legislative structure and history of the ATA, the Court concludes that plaintiffs may plead and have pled secondary liability.

a. Secondary Liability Exists Under the ATA.

In addition to their primary-liability claim, plaintiffs allege that BOC aided and abetted the commission of an act of international terrorism — the Tel Aviv bombing — by the PIJ. FAC ¶¶ 116-25. In other words, under this theory, BOC should allegedly be held liable not because its provision of financial services itself was an act of international terrorism, but rather because it furthered the PIJ’s terrorist act. BOC argues that liability for aiding and abetting another’s commission of an act of international terrorism is not actionable under the ATA because the ATA does not specifically provide for a cause of action against secondary actors. BOC’s Mot. 28-29; BOC’s Reply 19. The Court disagrees.

As an initial matter, the Court is generally hesitant to imply secondary aiding- and-abetting liability under the ATA in light of the Supreme Court’s ruling in

Cent. Bank v. First Interstate Bank of Denver,

511 U.S. 164 , 114 S.Ct. 1439 , 128 L.Ed.2d 119 (1994). In

Cent. Bank ,

the Supreme Court refused to recognize the availability of implied private rights of action for aiding-and-abetting liability under § 10(b) of the Securities Exchange Act of 1934.

Id.

at 164, 114 S.Ct. 1439 . The Court based its ruling on the lack of an express private cause of action under § 10(b),

id.

at 173, 114 S.Ct. 1439 ; analysis of express private causes of action in the federal securities law, none of which imposed liability on aiders and abettors,

id.

at 178-79 , 114 S.Ct. 1439 ; and the lack of evidence that Congress had intended to provide for aiding and abetting liability under § 10(b),

id.

at 183-84, 114 S.Ct. 1439 .

“Congress has not enacted a general civil aiding and abetting stat

*55

ute.... Congress instead has taken a statute-by-statute approach.... ”

Id.

at 182 , 114 S.Ct. 1439 .

Cent. Bank

thus stands for the proposition that “when Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant’s violation of some statutory norm, there is no general presumption that the plaintiff may also sue aiders and abettors.”

Id.

(citing

Elec. Lab. Supply Co. v. Cullen,

977 F.2d 798, 805-806 (3d Cir.1992)). However, this is only a presumption, and the Court held that the availability of a claim should ultimately be guided by “whether aiding and abetting is covered by the statute.”

Id.

at 177, 114 S.Ct. 1439 . In this case, the presumption is overcome because Congress expressly created a private right of action under the ATA, Congress intended to incorporate common principles of tort law, and to refuse to recognize aiding-and-abetting liability would stymie Congress’s intent.

See generally Boim I,

291 F.3d at 1019-21; Brief for the United States as Amicus Curiae Supporting Affirmance,

Boim v. Quranic Literacy Inst.,

Nos. 01-cv-1969, 01-cv-1970, 2001 WL 34108081 (7th Cir. Nov. 14, 2001) [hereinafter U.S. Amicus Br.].

First, § 2333(a) provides an express private civil cause of action, whereas § 10(b) does not.

Boim I,

291 F.3d at 1019. Thus, a cause of action for primarily liability under § 10(b) had already been read into the securities laws, counseling against a further reading-in of secondary liability.

Id.

Because Congress has already expressly provided for a private cause of action under the ATA, the Court does not face a similar problem here.

Id.

Second, Congress intended to incorporate general principles of tort law, including secondary liability, into the cause of action under the ATA. The statute provides in relevant part:

Any 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 and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.

18 U.S.C. § 2333 (a). “This text contains all of the elements of a traditional tort: breach of a legal duty

(i.e.,

commission of an act of 'international terrorism’); personal or economic injury; and an appropriate causal connection between the breach and the injury.” U.S. Amicus Br.,

supra,

at 9-10. Furthermore, the language of § 2333 does not impose any limitation on the class of defendants who might be held liable. “Any such restrictions therefore must arise, if at all, from background tort principles that Congress presumably intended to incorporate.”

Id.

(citing

Molzof v. United States,

502 U.S. 301, 305-07 , 112 S.Ct. 711 , 116 L.Ed.2d 731 (1992) (holding that the meaning of statutory language should be determined by background common-law principles against which Congress legislates)). The text of the statute thus invites inclusion of ordinary tort-law principles, which include secondary liability.

See generally

Restatement (Second) of Torts § 876.

Additionally, by defining international terrorism to include activities “that are a violation of the criminal law of the United States ... or that would be a criminal violation if committed within the jurisdiction of the United States,” § 2331(1)(A), Congress intended “to make civil liability at least as extensive as criminal liability,”

Boim I,

291 F.3d at 1020. That criminal law includes 18 U.S.C. § 2 , “which creates liability for aiding and abetting violations of any other criminal provisions.”

Id.

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The legislative history of § 2333 further supports the conclusion that the ATA permits a claim for secondary liability. For example, at a hearing on the bill that would become the ATA held by the Subcommittee on Courts and Administrative Practice of the Committee on the Judiciary of the U.S. Senate, a “former high-level Department of Justice attorney” testifying in favor of the ATA stated that the law would “bring all of the substantive law of the American tort law system” into play, including liability for aiding and abetting by “those who knowingly or negligently make it possible for some actor grievously to injure somebody else.”

Antiterrorism Act of 1990: Hearing Before the Sub-comm. on Courts & Admin. Practice of the Comm, on the Judiciary, U.S. Senate, 101st Cong., 2d Sess., on S. 2165,

101st Cong. 136 (1990) (statement of Joseph A. Morris, Gen. Counsel, U.S. Info. Agency); U.S. Amicus Br.,

supra,

at 13. After the bill was reported out of committee and introduced to the full Senate, Senator Charles Grassley explained that the bill “empowers victims with

all

the weapons available in civil litigation” and “accords victims of terrorism the remedies of American tort law,” presumably including causes of action for secondary liability. 137 Cong. Rec. S4511 (daily ed. Apr. 16, 1991) (emphasis added). Congress has thus made clear its intent to permit claims for secondary liability under the ATA. Failure to honor that intent would “thwart[] Congresses] clearly expressed intent to cut off the flow of money to terrorists at every point along the causal chain of violence.”

Boim I,

291 F.3d at 1020 (citing S.Rep. No. 102-342, at 22 (1992) (“[T]he imposition of liability at any point along the causal chain of terrorism ... would interrupt, or at least imperil, the flow of money.”)).

Several courts in addition to

Boim I

have extended liability to secondary actors under the ATA.

See, e.g., In re Chiquita Brands Int’l, Inc. Alien Tort Statute and Shareholder Derivative Litig.,

690 F.Supp.2d 1296, 1309-10 (S.D.Fla.2010) (holding that plaintiffs had stated a claim for primary liability, civil aiding-and-abetting liability, and conspiracy liability under the ATA);

Linde,

384 F.Supp.2d at 583 (holding that aiding-and-abetting liability and civil-conspiracy liability are available under the ATA);

Stutts,

2006 WL 1867060 , at *3 (discussing with approval the theory of secondary liability under the ATA but dismissing claim for insufficient allegations of causation);

Strauss,

2006 WL 2862704 , at *9 (discussing with approval the theory of secondary liability under the ATA but dismissing claim for insufficient allegations of knowledge);

Morris v. Khadr,

415 F.Supp.2d 1323, 1330 (D.Utah 2006) (holding that civil liability under the ATA extends to aiders and abettors who provide money to terrorists). Finally, in

Burnett I,

an opinion authored by another court of this District, the Court allowed an aiding- and-abetting claim to proceed against alleged financiers of the September 11 attacks. 274 F.Supp.2d at 105-07 . Apparently the only case in this Circuit to have considered the issue,

Burnett I

approved of the Seventh Circuit’s reasoning in

Boim I. Id.

(citing

Boim I,

291 F.3d at 1003, 1011-12). The Court is thus strongly persuaded that secondary liability exists under the ATA.

Only one court has come to the opposite conclusion. In

Boim III ,

the Seventh Circuit concluded en banc that “statutory silence on the subject of secondary liability means there is none,” and that because § 2333(a) “authorizes awards of damages to private parties but does not mention aiders and abettors or other secondary actors,” a cause of action for secondary liability does not exist under the ATA, 549 F.3d at 689 . In so concluding, the Court

*57

of Appeals implicitly overruled its previous finding in

Boim I.

Although courts should presume that Congress does not create a cause of action for aiding and abetting unless it specifically says so in the text, such is still only a presumption, rebuttable where evidence strongly suggests that Congress did mean to allow secondary liability. In this case, based on the structure of the ATA, the legislative history, and the persuasive authority of every court to have considered the question aside from

Boim III ,

plaintiffs have convinced the Court to rebut the presumption.

b. Plaintiffs Adequately Plead a Claim for Secondary Liability.

To make a claim for aiding-and-abetting liability, a plaintiff must plead facts showing the following:

(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation.

Halberstam v. Welch,

705 F.2d 472, 477 (D.C.Cir.1983),

cited in In re Chiquita,

690 F.Supp.2d at 1310 (quoting Restatement (Second) of Torts § 876(b) (“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.”)).

BOC has only argued that secondary liability simply does not exist under the ATA; it has not alternatively argued that plaintiffs have failed to plead any of the necessary particulars of such a claim.

See

BOC’s Mot. 28-29; BOC’s Reply 19-20. Accordingly, the Court has no reason to question whether plaintiffs have adequately so pled. The Court, therefore, will not belabor another analysis of the chain of incorporations. Suffice it to say that, as discussed in detail above, plaintiffs have pled facts showing that the party that BOC allegedly aided—the PIJ—performed a wrongful act causing injury—the Tel Aviv bombing,

see

discussion

supra

Part III.E.2.c.-d.—and that BOC, aware of its role, knowingly assisted the PIJ,

see

discussion

supra

Part III.E.2.e.i. Plaintiffs have therefore adequately pled facts supporting allegations of secondary liability. Plaintiffs have not failed to state a claim for secondary liability under the ATA upon which relief may be granted.

4. Plaintiffs Have Sufficiently Pled Count Four: Negligence.

A defendant is liable for negligence under Israeli law when the defendant has a duty to another and breaches that duty, causing injury to the other. Plaintiffs have adequately pled that BOC was under a duty to refrain from providing financial services to known terrorists, that BOC beached that duty, and that BOC’s breach caused plaintiffs to suffer serious physical, emotional, and financial injuries. The Court will therefore deny BOC’s motion to dismiss for failure to state a negligence claim.

a. Liability for Negligence Requires Duty, Breach, Injury, and Causation.

Under Israeli law, the civil tort of negligence is codified in the new version of the Civil Wrongs Ordinance (CWO), which provides in relevant part:

When a person does some act which in the circumstances a reasonable prudent person would not do, or fails to do some

*58

act which in the circumstances such a person would do, ... then such act or failure constitutes carelessness and a person’s carelessness as aforesaid in relation to another person to whom he owes a duty in the circumstances not to act as he did constitutes negligence. Any person who causes damage to any person by his negligence commits a civil wrong.

Civil Wrongs Ordinance (New Version) § 35, 2 LSI (New Version) 14-15 (1972),

filed as

Naschitz Decl. Ex. A, ECF No. 15-14. Israeli law thus imposes liability for negligence in a manner roughly similar to American tort law: liability attaches where one has a duty to another and breaches that duty, causing injury to the other.

Compare id. with

Restatement (Second) of Torts § 281 (outlining elements of a cause of action for negligence under American law).

b. Plaintiffs Adequately Plead Duty.

Duty, which Israeli courts divide into duty in fact and notional duty, depends on foreseeability. Plaintiffs have pled facts alleging factual duty — that BOC could have foreseen that its acts would result in plaintiffs’ injury — and facts alleging notional duty — that, consistent with judicial policy considerations, BOC ought to have foreseen that its acts would result in plaintiffs’ injury. Plaintiffs have, therefore, adequately pled duty.

i. Duties Arise When Injury Is Foreseeable.

The CWO elaborates on the element of duty, providing that “every person owes a duty to all persons whom ... a reasonable person ought in the circumstances to have contemplated as likely in the usual course of things to be affected by an act, or failure to do an act,” constituting negligence under § 35. Civil Wrongs Ordinance (New Version) § 36, 2 LSI (New Version) 15 (1972).

See generally

Ariel Porat,

Tort law, in

Introduction to the Law of Israel 127, 128-32 (Amos Shapira & Keres C. DeWitt-Arar eds., 1995). The Israeli Supreme Court has further elaborated on the element of duty, holding that it consists of two parts: “duty in fact” and “notional duty.” CA 145/80

Vaknin v. Beit Shemesh Local Council

37(1) PD 113, 122 [1982],

translated in and filed as

Loughlin Decl. Ex. 8, ECF No. 15-9. The answer to both whether a person is under a duty in fact and whether a person is under a notional duty “is in the foreseeability test.”

Vaknin,

37(1) PD at 122. The Israeli formulation of negligence thus differs slightly from the American formulation: the question of foreseeability, which is asked only when considering legal causation in the American formulation, is asked when considering duty as well as legal causation in the Israeli formulation.

Compare id. with

57A Am.Jur.2d

Negligence

§ 469 (“[American] courts commonly make foreseeability of injury or harm an element or test of proximate cause for negligence.”).

The question of duty in fact, also called a “concrete duty,” “is technical in nature,” inquiring “whether a reasonable person

could

have foreseen, under the particular circumstances of the case, the occurrence of the damage.”

Vaknin,

37(1) PD at 125-26 (emphasis added). This question “takes into account the special facts of the circumstance.”

Id.

at 125. A concrete duty arises when “a reasonable person could have foreseen, under the particular circumstances of the case, the occurrence of the damage.”

Id.

at 126. However, even where a court finds that the defendant owed the plaintiff a concrete duty of care, it “has been held, as a matter of legal policy, that the concrete duty of care does not crystallize” with respect to the “natural and ordinary risks of common human activity.”

Id.

To the extent that a risk is

*59

“natural and ordinary” — that is, taken into account by normal society when engaged in a particular action — there will be no liability under the tort of negligence. “[T]he question is not whether the plaintiff accepted the risk, but rather whether, as a matter of legal policy, a concrete duty of care should be imposed upon the tortfeasor for such risk.... There are reasonable risks that must be recognized and lived with on a daily basis.”

Id.

Unlike duty in fact, the question of notional duty “is normative in nature,” inquiring “whether, as a matter of policy, a reasonable person

ought

to have foreseen the occurrence of the particular damage.”

Id.

at 125-26 (emphasis added). This question is “disconnected from the concrete facts of the specific event.”

Id.

at 125. Although there is a presumption “that where damage can be technically foreseen, there is a notional duty of care,”

id.

at 123, the existence of a notional duty “is never derived automatically from a finding of technical foreseeability,” CA 915/91

State of Israel v. Levy

48(3) PD 45, 65-66 [1994],

translated in and filed as

Loughlin Decl. Ex. 9, ECF No. 15-10. Rather, the presumption of notional duty can be “negated when there are reasons to do so as a matter of legal policy.”

Id.

(internal quotation marks omitted). Such reasons may be split into two categories: “the ‘neighborhood’ principle” and general principles of fairness and justice.

Id.

The neighborhood principle “negates the existence of a duty of care when the parties are ‘remote’ from one another.”

Id.

Among the factors a court must consider when determining remoteness are whether the act is one of omission, whether the plaintiffs loss is directly attributable to some third-party act, and whether the plaintiffs loss is purely economic.

Levy,

48(3) PD at 67. When even one such factor is present, “and especially if they appear cumulativelyf,] the existence of neighborhood may not be derived from the existence of [technical] foreseeability.” The Israeli Supreme Court has made clear, however, that the presence of these factors “does not mean that ... a duty of care will never be found.”

Id.

Rather, a court must “conduct a more precise study of the existence of neighborhood between the parties,” which, though no longer presumptively derived from technical foreseeability, may still be found to exist.

Id.

For example, despite a finding of one or more of the aforementioned factors, neighborhood may be found to exist “where the risk to the injured party increased as a result of the conduct of the defendant.”

Id.

at 68.

Concerning general principles of fairness and justice, relevant legal policy considerations made by courts include

the freedom of activity of potential defendants; the protection of both the personal integrity and the property of potential plaintiffs; the financial burden that would be imposed upon potential defendants if a duty of care were to be imposed; the possible influence of the court’s decision on social behaviour; the extent to which the risk that resulted in the damage was unusual and unreasonable; the relative ability of the parties to spread the losses; the fear of burdening the courts with excessive litigation; and the fear of groundless or fraudulent claims.

Porat,

supra,

at 130;