Opposition Brief — Jesner v. Arab Bank, PLC, 138 S. Ct. 52 (2017) (No. 16-499)

pBCORD

No. 16-499 a

ee eee

In the

Supreme Court of the Anited States

JOSEPH JESNER, et al.,

Petitioners,

Vv.

ARAB BANK, PLC,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

JONATHAN SIEGFRIED. Paul D. CLEMENT

KEVIN WALSH Counsel of Record

DOUGLAS W. JEFFREY M. HARRIS

MATEYASCHUK NICHOLAS T. MATICH

DLA PIPER LLP (US) KIRKLAND & ELLIS LLP

1251 Avenue of the 655 Fifteenth Street, NW

Americas Washington, DC 20005

New York, NY 10020 (202) 879-5000

(212) 335-4500 paul.clement@kirkland.com

Counsel for Respondent

December 14, 2016

Ese

QUESTION PRESENTED

In Kiobel v. Royal Dutch Petroleum. 133 8. Ct.

1659 (2018), this Court initially granted certiorari to

consider whether the Alien Tort Statute. 28 U.S.C.

§1350, provides jurisdiction for claims against

corporations. After full briefing and oral argument,

the Court ultimately dechned to answer that

question, instead holding that the claims in Kiobel

failed under the presumption against extraterritorial

application of U.S. law because the plaintiffs sought

relief for “violations of the law of nations occurring

outside the United States.” 153 S. Ct. at 1669. This

case, like Kiobel, involves an_ effort by foreign

plaintiffs to recover damages from = a foreign

defendant for injuries suffered on foreign soil. Since

Kiobel, a number of parties have sought certiorari on

the original question presented in Aiobel, hut this

Court has uniformly denied those petitions, without

noted dissent.

The question presented is:

Whether the ATS provides jurisdiction over

claims by foreign plaintiffs against a foreign

corporate defendant for injuries suffered in a foreign

country, where the conduct in question does not

violate any established norm of international law, the

plaintiffs failed to adequately allege purpose or

causation, and where plaintiffs chose not to avail

themselves of a well-functioning judicial system in

the foreign country where their injuries occurred.

ll

PARTIES TO THE PROCEEDING

Respondent Arab Bank, PLC was the defendant

in the district court and appellee in the Second

Circuit.

Petitioners were plaintiffs in the district court

and appellants in the “econd Circuit. A full list of

the approximately 6,00U petitioners was filed with

the Clerk’s Office on October 6, 2016.

1]

CORPORATE DISCLOSURE STATEMENT

Arab Bank, PLC certifies that it does not have a

parent corporation and that no publicly held

corporation owns more than ten percent of its stock.

1V

TABLE OF CONTENTS

QUBSTION PRION LGD) ........cccccessceccscseccceccrcesscceeece i

PARTIES TO THE PROCEEDING ....................:e000e il

CORPORATE DISCLOSURE STATEMENT........... ili

BF OIE cseescesesccascessessesesnansencsta vi

I ince sc hocicschaniniiiigbabceminnicinhsneceninencsnrantoniees 1

FRSC RINE GO BEUID GNI 0ncessccceessssosnceccossensesesess 4

A. Arab Bank’s Critical Role in Economic

Development and Anti-Terrorism Efforts ... 4

B. Petitioners’ Fundamentally Foreign

Allegations Against Arab Bank ................... 6

REELS AT MATE OE 9

REASONS FOR DENYING THE PETITION ......... 12

I. The Decision Below Was Correct And Is Of

Minimal Practical Importance........................+. 15

A. This Court Has Recently and Repeatedly

Denied Certiorari on the Exact Question

Sa caiaeeeseinanaibiediod 15

B. The Question Presented Is of Minimal

and Diminishing Practical Importance

Be I oiaithtetectsataavennsbnnenitentenices 17

C. Petitioners’ Claims Are Foreclosed by

RAREST Lal ena ed SOE ENS Oe 20

D. The Decision Below Was Correct and

Will Not Undermine Efforts To Combat

NN a 27

Il. Petitioners’ Claims Fail As A Matter Of Law

For Several Other Independent Reasons ......... 31

Vv

A. The ATS Does Not Confer Jurisdiction

Over Claims Alleging “Terrorism”... 31

B. Petitioners Fail To Plausibly Allege the

Requisite Intent and Causation...........__.. 34

aren Aa oe ats kek eee 36

vl

TABLE OF AUTHORITIES

Cases

Anza v. Ideal Steel Supply Corp.,

csv sdecubetsenoanascivessve 35

Aziz v. Alcolac, Inc.,

668 F.3d 388 (4th Cir. 2011)...............c.cccc.csscccecss0. 34

Baloco v. Drummond Co.,

707 Foe bee (nee Coe. BOTA)...........0..0000......00:.5. 20

Cardona v. Chiquita Brands,

760 F.3d 1185 (11th Cir. 2014)....000 000s 20

Corr. Servs. Corp. v. Malesko,

Sa OES EN Open ne ame a 30

Corrie v. Caterpillar Inc.,

eg 24

Doe I v. Israel,

400 F. Supp. 2d 86 (D.D.C. 2005)..........0.0....0002..... 24

Doe I v. Nestle USA, Inc.,

766 F.3a 1013 (th Cir. 2014)................................ 34

Doe v. Drummond Co.,

Fe ee Oe Gl BB oiccccccccctccsccessccecsesscens 20

EEOC v. Arabian Am. Oil Co..,

nn ocedscocinbovcccdabensseonebucde 23

Gill v. Arab Bank, PLC,

893 F. Supp. 2d 542 (E.D.N.Y. 2012)............ 6, 9, 33

IIT v. Vencap, Ltd.,

Be Lo 7) | es 32

In re Terrorist Attacks on Sept. 11, 2001,

714 F.3d 118 (2d Cir. 2013)................... 3, 32, 33, 36

Kiobel v. Royal Dutch Petroleum Co.,

i Be folie Lo ARG nOeD 1, 28, 29

vl

Kiobel v. Royal Dutch Petroleum Co.,

a ee rae I kike inca ideccansbbdapetascecoinatcetiel 18

Kiobel v. Royal Dutch Petroleum Co.,

Sk ee RR een Estee = Sa passim

Linde v. Arab Bank,

No. 16-2119

(2d Cir. appeal docketed June 22, 2016)............... 26

Mashreqbank PSC

v. Ahmed Hamad Al Gosaibi & Bros. Co.,

Ba ee re Ges Bi Fe coctcecescceeseccincetinceesiiccionns 22

Mastafa v. Chevron Corp.,

Fe re Be CN SD ovine viipncceeticchtbnetechsdestnn 32

Matar v. Dichter,

500 F. Supp. 2d 284 (S.D.N.Y. 2007) .......cccccccce00e: 24

Mohamad v. Palestinian Auth.,

ee a, BE couicningivcacvcucinsesstncdnicmmdbienee 30

Mujica v. AirScan,

reper % 5 Go | Sere 20

Presbyterian Church of Sudan

v. Talisman Energy, Inc.,

582 F.3d 244 (2d Cir. 2009) ......................... 4, 34, 35

RJR Nabisco v. European Cmty.,

Be ee a i crccavecccctccvscscossocdesssonnceestaeen 30

Rothstein v. UBS AG,

TOD tee Be Ge Ce, BED oo. ccnccciccscscccccscecess 4, 35, 36

Sosa v. Alvarez-Machain,

Ee re ee i iicncsiesiccsecrivcsdincsbbosssovnedaenen passim

United States v. Yousef,

SEF Fae We Cee Ce IND os biicecesccitcdececncecepnesshans 32, 33

vill

Wiwa v. Royal Dutch Petroleum Co.,

TE EE MAE, MID cccnccccccoccccccsecececceccecoeeses: 21

Statutes

EE ee %, 30. 31

18 U.S.C. $§2B39A-2339C ................cccececececeescecceees. 30

a ccensmnoorenecess 1,9

Justice Against Sponsors of Terrorism Act,

osc ccnccnanasesncnersnsevesesenees 31

Regulations

ES ER a 30

Other Authorities

Aviv Cohen, Prosecuting Terrorists at the

International Criminal Court:

Reevaluating an Unused Legal Tool

to Combat Terrorism,

20 Mich. St. Int’l L. Rev. 219 (2012) ......0...00..00000. 33

Br. in Opp., Cardona v. Chiquita Brands,

Nos. 14-777, 14-1011 (filed Mar. 6, 2015)............. 17

Br. of Jordan, Arab Bank v. Linde,

No. 12-1485 (filed July 24, 2013) ...........00000000000.... 25

Br. of United States, Arab Bank v. Linde,

No. 12-1485 (filed May 23, 2014) ................ 5, 25, 35

Global Finance, Best Banks By Region 2016

(Mar. 15, 2016), http://bit.ly/1q2z4B7 ..................... 4

Global Finance, Best Banks in Jurdan 2003

(Oct. 1, 2003), http://bit.ly/2htLGOF....................... 4

Mot. to Dismiss, Lev v. Arab Bank,

No. 1:08-cv-3251 (E.D.N.Y. Dec. 15, 2008) ........... 10

ix

Pet. for Cert., Nestle v. Doe,

No. 15-349 (filed Sept. 18, 2015)....................

Pet. for Cert., Nisebeza v. Ford Motor Co.,

No. 15-1020 (filed Feb. 10, 2016)....................

Peter Hay, Conflict of Laws §1.1

EE: SEED ccicticnccencnnssecmsestisesqusorsorsmeerowenseense

Philip J. Stern, The English East India

Company and the Modern Corporation:

Legacies, Lessons, and Limitations,

39 Seattle U. L. Rev. 423 (2016).....................

Salman Masood, India and Pakistan Accuse

Each Other in Deaths of Civilians,

N.Y. Times (Aug. 28, 2015),

PE TIED 0000 0ccccccesscccsesccscsesseeees

Simon Schuster, Ukraine and Russia

Demonize Each Other With Claims of

Terrorism, Time (Apr. 3, 2014),

ET I eicccccveccccosesesescnssscsssscssocees

Stern & Gressman, Supreme Court Practice

CR Gs GID cdecccccencicsesscnnsansvssvenscetevusosserseses

The Nurnberg Trial 1946,

ee SD cscinciscsecccccserccsensvenecsnsoseesocons

U.N. Human Rights Council, Report of the

Special Representative of the Secretary-

General on the Issue of Human Rights and

Transnational Corporations and Other

Business Enterprises, {19,

U.N. Doc. AJHRC/4/35 (Feb. 19, 2007)...........

INTRODUCTION

Arab Bank is a leading financial institution

headquartered in Jordan with operations throughout

the world. The government of Jordan has

emphasized that the Bank is a “pivotal force of

economic stability and security” throughout Jordan

and the Middle East. And the United States

government has described the Bank as a

“constructive partner” in the fight against terrorism

financing and money laundering.

More than a decade ago, the Petitioners in these

consolidated actions sued the Bank under the Alien

Tort Statute (“ATS”), 28 U.S.C. §1350, seeking to

hold the Bank liable for attacks in Israel perpetrated

by Hamas and other groups and individuals over a

ten-year period. There is no allegation that the Bank

was involved in the planning, financing, or

commission of the attacks that caused their injuries.

Instead, Petitioners allege that the Bank provided

financial services, such as holding accounts and

clearing automated electronic wire transfers, for

foreign individuals and charities that allegedly

supported or maintained affiliations with terrorist

organizations.

Although there were multiple grounds on which

Petitioners’ ATS claims could have been dismissed,

the district court held that those claims failed

because corporations are not proper ATS defendants

under the Second Circuit’s decision in Kiobel v. Royal

Dutch Petroleum Co., 621 F.3d 111, 135 (2d Cir.

2010) (“Kiobel I’). The Second Circuit panel affirmed

on that basis. Pet.App.29a.

2

Petitioners now seek this Court's review solely

on the question of whether the ATS “categorically

forecloses corporate liability.” Pet. i. The petition

should be denied. Although this Court initially

granted certiorari on the corporate-liability question

in Kiobel, it subsequently resolved the case on the

ground that the ATS does not reach “violations of the

law of nations occurring outside the United States.”

Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659,

1669 (2013) (“Kiobel JI’) (emphasis added). This case

likewise involves an effort by foreign plaintiffs to

recover damages from a foreign defendant for injuries

suffered abroad. Since this Court’s decision in

Kiobel IT, the Court has denied multiple petitions

raising the exact same question presented here, in

cases arising out of the Second Circuit and

elsewhere. Nothing has changed since those denials

of certiorari that would warrant a different outcome

here. Indeed, as four Second Circuit judges correctly

recognized in their concurrence in the denial of

rehearing, the corporate-liability question is of

“sharply reduced” importance in the wake of Kiobel I/

because most ATS cases against corporations can

now be dismissed on extraterritoriality grounds as

well. Pet.App.42a.

If the Court were to grant certiorari in this case,

it would be Kiobel all over again: the Court would

quickly discover that there is no need to reach the

question of corporate liability because Petitioners’

ATS claims do not have a sufficient nexus to the

United States to be litigated in U.S. court.

Everything about this case is fundamentally

foreign—it involves foreign plaintiffs suing foreign

defendants for injuries that occurred on foreign soil

3

as part of a long-running conflict between foreign

parties. And this case has profound implications for

U.S. foreign policy and U.S. relations with critical

allies such as Jordan. Allowing Petitioners’ claims to

proceed would interfere with the conduct of U.S.

foreign policy and lead to the precise diplomatic

friction that this Court sought to avoid in Kiobel IJ.

As Judges Jacobs, Cabranes, Raggi, and Livingston

correctly recognized in their concurrence in the

denial of rehearing, this case could have been, should

have been, and can be “straightforwardly decided

under Kiobel II.” Pet.App.38a.

In fact, there are even stronger grounds for

dismissal here than in Kiobel Il because it is

undisputed that Petitioners could have sought relief

under Israeli tort law. They chose to litigate in the

U.S. not because the U.S. has any meaningful

connection to this controversy, but solely because of

the lure of punitive damages, which are rarely

awarded in Israeli courts. This Court should not

facilitate such transparent forum-shopping by

reviving Petitioners’ claims. Any further litigation of

this dispute in U.S. court “would serve no purpose

remotely commensurate with the effort it would

entail.” Pet.App.36a.

Even putting aside Kiobel JI, there are multiple

additional grounds on which Plaintiffs would lose

even if corporations could be sued under the ATS.

The ATS does not provide jurisdiction for claims

based on acts of terrorism because there is no

universally accepted definition of “terrorism” under

international law. See In re Terrorist Attacks on

Sept. 11, 2001, 714 F.3d 118, 125 (2d Cir. 2013). Nor

4

can Plaintiffs plausibly allege the specific intent

required for ATS claims, see Presbyterian Church of

Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259

(2d Cir. 2009), or a causal link between their injuries

and any alleged violation of international law by the

Bank, see Rothstein v. UBS AG, 708 F.3d 82, 95 (2d

Cir. 2013).

. _ a”

In sum, after more than 10 years of litigation,

Petitioners remain no closer than they were on day

one to stating a viable claim under the ATS. The

ATS’s inapplicability to corporations is just the tip of

the iceberg in terms of the legal defects of Petitioners’

claims. Petitioners offer no plausible basis to extend

this litigation further in order to address a question

of diminishing importance on which this Court has

repeatedly denied certiorari. The petition should be

denied.

STATEMENT OF THE CASE

A. Arab Bank’s Critical Role in Economic

Development and Anti-Terrorism

Efforts

Respondent Arab Bank is the largest bank in the

Kingdom of Jordan, where it is incorporated and

headquartered. It operates in nearly 30 countries,

including the United States. For decades, the Bank

has been recognized as a “best” institution by

industry publications. See Global Finance, Best

Banks By Region 2016 (Mar. 15, 2016),

http://bit.ly/1q2z4B7; Global Finance, Best Banks in

Jordan 2003 (Oct. 1, 2003), http://bit.ly/2htLGOF.

The Kingdom of Jordan has described the Bank as a

“pivotal force of economic stability and security in

5

|Jordan] and the broader region.” C.A.App.1025,

1054-55.!

Arab Bank is also the largest financial

institution in the Palestinian Territories, where it

has been a development partner with the U.S.

Agency for International Development, OXFAM,

Save the Children Fund, Catholic Relief Services,

and many other groups. C.A.App.929-30, 1055.

Indeed, the Bank is “the main vehicle for

payments by the international donor community” to

Palestinian organizations, and is also used by the

Israeli government, which transfers customs and tax

revenues collected for the benefit of the Palestinian

Authority to accounts maintained by the Bank. Jd.

The Bank is deeply committed to fighting the

scourge of terrorism. The United States government

has described the Bank as a “constructive partner” in

“working to prevent terrorist financing,” and has

praised the Bank as a “leading participant” in

“regional forums on anti-money laundering and

combatting the financing of terrorism.” Br. of United

States at 20, Arab Bank v. Linde, No. 12-1485 (U.S.

filed May 23, 2014) (“U.S. Linde Br.”).

For example, outside the U.S., the Bank fully

complies with the legal requirements of the countries

in which it operates. In particular, it performs

necessary due diligence on prospective customers,

and screens account applicants against blacklists

! Unless otherwise noted, citations to C.A.App. refer to the

appendix in the Second Circuit, and citations to Linde.C.A.App.

or Linde.SPA refer to the joint appendix and special appendix in

the parallel Second Circuit case Linde v. Arab Bank, No. 16-

2119.

6

provided by local regulatory authorities. It was one

of the first banks in the Middle East to introduce

technology allowing local branches to _ screen

customer names against the U.S. Office of Foreign

Assets Control (“OFAC”) “blacklist,” even though

OFAC regulations have never required foreign

entities to apply such scrutiny. See Gill v. Arab

Bank, PLC, 893 F. Supp. 2d 542, 565 (E.D.N-Y.

2012).

In the U.S., the Bank operated through its New

York Branch (Arab Bank New York (“ABNY’”)),

whose systems were specifically designed to comply

with regulations prohibiting U.S. branches of foreign

banks from engaging in transactions with individuals

and entities on the OFAC blacklist. In addition to

those computerized safeguards, ABNY also

maintained a dedicated Compliance Department to

oversee compliance with U.S. regulations and to

develop and implement policies designed to curb

money laundering and terrorism financing.

B. Petitioners’ Fundamentally Foreign

Allegations Against Arab Bank

Petitioners are foreign citizens who were victims

of attacks perpetrated in Israel] by Hamas and other

foreign individuals and organizations over a ten-year

period. Yet Petitioners have not sued any terrorists,

terrorist groups, or their financial backers. Nor have

they sought relief in Israel, the location of the

attacks, even though Israel has a well-functioning

tort regime. Instead, they brought claims against

Arab Bank in U.S. court under the ATS seeking relief

for their foreign injuries that occurred on foreign soil.

7

Petitioners do not allege that the Bank was

involved in planning, funding, or committing the

attacks that caused their injuries. At most,

Petitioners allege that the Bank maintained accounts

and processed transactions for foreign persons and

charities affiliated with foreign terrorist

organizations. But they do not allege any link

between the Bank’s activities and the specific attacks

that caused their injuries. They instead contend that

the Bank’s alleged provision of general assistance in

the form of financial services to foreign persons

affiliated with, or related to, foreign terrorists is

sufficient to give rise to liability under the ATS.

None of this has anything to do with the United

States. Every bank account referenced by Petitioners

was held in a foreign country, and every transaction

in question was initiated or received by a foreign

party. No account at issue was held by ABNY.

ABNY performed ministerial dollar’ clearing

services—typical of those performed by all U-S.

correspondent banks—involving transactions that

merely transited the United States while en route

from a foreign sender to a foreign recipient. While

passing through the U.S., those transactions were

processed electronically, without human

intervention, through an automated clearing system

that also screened the names of the parties involved

against the OFAC “blacklist.”2

2 Although Petitioners single out ABNY, many of the

transactions in question also transited through, and passed the

OFAC compliance checks of, other major U.S. financial

institutions. Linde.C.A.App.584, 650, 763, 864, 1189, 1199,

7115-17, 7122.

8

Petitioners’ discussion of the Bank’s conduct

rests on a skewed and highly selective description of

the factual record. For example, Petitioners assert

(at 5-6) that the Bank “maintained accounts for

numerous well-known leaders of Hamas.” But nearly

all of the referenced individuals have never been

designated as terrorists by the U.S. government

(even to this day). And it is undisputed that all of

those accounts were held in foreign countries.

C.A.App.203-07.

Straining to create a U.S. nexus, Petitioners

further assert (at 6-7) that the Bank’s “New York

branch” processed more than $121 million in

transactions “in aid of Palestinian terrorists.” But,

with just four exceptions (out of the approximately

500,000 transactions the branch processes annually),

none of the identified transactions involved

designated terrorists or entities on the OFAC

blacklist. Those transactions were initiated by

foreign parties located in foreign countries, for the

benefit of other foreign parties, and merely passed

through the Bank’s automated electronic funds

clearing facilities in New York as they would through

any correspondent bank. C.A.App.203-07; see also

supra n.2. And Petitioners do not allege that any of

3 In two of the four instances, ABNY’s software automatically

processed the transactions because the names of the transaction

parties did not match the names on any government terrorist

watch-list. See Linde.C.A App.6950, 580-83, 796. The other two

transactions, involving a U.K.-licensed and headquartered

charity, were erroneously released after being mistaken for

false-positive OFAC matches. See Linde.C.A.App.6771-72. The

Bank self-reported this incident to U.S. authorities, which took

no further action against the Bank. Jd.

9

those transactions had any connection to the specific

attacks that caused their injuries.

Petitioners (at 6) also make the misleading

assertion that the Bank “admitted” that it “processed

282 funds transfers” for individuals that the United

States had designated as terrorists. But, with the

exception of the four transfers discussed above, those

282 transfers never transited through the U.S and

did not even involve U.S. currency. Instead, they

occurred entirely outside the United States, in

countries where the individuals in question were nol

designated as terrorists at the time of the transfers.

Linde.C.A.App.7033-34.

Finally, Petitioners assert (at 7-8) that the Office

of the Comptroller of the Currency (“OCC”) and other

regulators found that the Bank’s activities posed a

risk of transferring money to suspected terrorists.

But OCC explicitly found that the Bank did not

engage in any knowing wrongdoing. To the contrary,

OCC found that the Bank “largely complied with the

requirement to cease clearing funds transfers once

the [Treasury Department] designated an entity as a

‘specially designated terrorist,’ ‘specially designated

global terrorist,’ or ‘foreign terrorist organization.”

Gill, 893 F. Supp. 2d at 566.

C. Proceedings Below

1. Multiple sets of plaintiffs filed complaints

against the Bank between 2004 and 2010. Each

complaint made essentially the same allegations

about the Bank’s conduct, and asserted one or both of

(1) claims by foreign nationals under the ATS; or

(2) claims by U.S. nationals under the Anti-Terrorism

Act, 18 U.S.C. §2333 (“ATA”).

10

Beginning in July 2005, the Bank filed motions

to dismiss the foreign plaintiffs’ ATS claims, arguing

that (1) “terrorism” had not been sufficiently defined

by the international community to be cognizable

under the ATS; (2) Plaintiffs had not pled the

requisite mens rea; and (3) Plaintiffs’ claims were

barred as an_ impermissible’ extraterritorial

application of U.S. law. See, e.g., Mot. to Dismiss,

Lev v. Arab Bank, No. 1:08-cv-3251 (E.D.N.Y. Dec.

15, 2008). The district court initially denied the

Bank’s motions. See, e.g., C.A.App.783-84.

After the Second Circuit’s 2010 decision in

Kiobel I, the Bank attempted to renew its motion to

dismiss, but the district court stayed that motion

pending this Court’s decision. After this Court’s

decision in Kiobel IT, the Bank filed a renewed motion

to dismiss, arguing that Petitioners’ claims were

subject to dismissal under both Kiobel I and Kiobel

II. In August 2013, the district court granted the

Bank’s renewed motion and dismissed the ATS

claims on the basis of Kiobel I.

2. Petitioners appealed. The Bank argued to the

Second Circuit that the judgment should be affirmed

for any or all of the reasons pressed below, including

the lack of corporate liability under the ATS, the fact

that Petitioners allege purely extraterritorial conduct

in violation of this Court’s holding in Kiobel JI, and

the absence of any universal international norm

against “terrorism.” Indeed, even Petitioners’

counsel acknowledged at oral argument that the

record was sufficiently complete to allow the court to

rule on the extraterritoriality issue under Kiobel IJ.

See Tr. of Oral Arg. at 4-5 (“[T]here’s sufficient

11

evidence in the record for this Court to” decide the

Kiobel IT issue, and “this Court has ... taken the

opportunity to reach that question when it’s been

posed, irrespective of the question of corporate

hiability.”). The Second Circuit panel found it

“tempting to ... affirm|] the district court’s judgments

on the basis of Kiobel II{’s|” rule’ against

extraterritorial application of the ATS, but

ultimately affirmed on the basis of Kiobel I’s no-

corporate liability rule. Pet.App.28a-29a.

Petitioners sought rehearing en banc, urging the

full Second Circuit to address an alleged circuit split

over whether corporations can be held liable under

the ATS. The court denied the petition.

In an opinion concurring in the denial of

rehearing, Judge Jacobs (joined by Judges Cabranes,

Raggi, and Livingston) faulted the panel for

“steer[ing] deliberately into controversy” by affirming

solely on the basis of Kiobel J in an effort to have that

precedent overruled en banc or by this Court.

Pet.App.40a-42a. The concurring judges explained

that the importance of the no-corporate-liability rule

set forth in Kiobel I has been “sharply eroded”

because many ATS claims against corporations can

now be dismissed under Kiobel IIs holding that the

ATS does not apply to conduct that occurred in a

foreign country. Pet.App.37a. According to those

judges, this appeal “could have been

straightforwardly decided under Kiobel II’ because

this case involves foreign plaintiffs suing a foreign

defendant for foreign torts, and Arab Bank’s “mere

corporate presence” in New York is insufficient to

rebut the presumption against extraterritoriality.

12

Pet.App.38a-39a. Finally, even in the “(unlikely)

event that plaintiffs could somehow plead around

Kiobel IJ,” the concurring judges concluded that

Petitioners had failed to adequately allege that the

Bank acted with the purpose of violating

international law. Pet.App.39a.

REASONS FOR DENYING THE PETITION

I. Petitioners argue that it is “crucial” for this

Court to resolve a “firmly entrenched” circuit split on

the question of whether corporations can be sued

under the ATS. But since declining to address that

question in Kiobel, this Court has had at least three

opportunities to address the exact question presented

here—in petitions filed by both plaintiffs and

defendants, and in cases from both the Second

Circuit and other circuits—yet has denied each of

those petitions, without noted dissent. Petitioners

identify no intervening development or unique

feature of this case that has suddenly made this issue

become certworthy.

This Court’s repeated denial of certiorari on the

ATS corporate-liability issue is unsurprising, as that

question is of significantly diminished importance in

the wake of this Court’s decision in Kiobel JJ. As in

Kiobel itself, many ATS claims against corporations

can now be, and have been, dismissed on

extraterritoriality grounds regardless of whether the

ATS reaches corporations.

That is precisely the case here. Petitioners’ ATS

claims are paradigmatic “foreign-cubed” claims in

which foreign plaintiffs have sued a _ foreign

defendant for injuries that occurred on foreign soil.

And sensitive foreign policy considerations pervade

13

every aspect of this case. Petitioners’ ATS claims

arise out of the Israeli-Palestinian conflict, and ask

the U.S. federal courts to wade into that fraught and

diplomatically sensitive dispute. This case has

already led to significant diplomatic friction between

the U.S. government and close allies such as Jordan

over the plaintiffs’ request for confidential records

located in foreign countries whose disclosure would

violate those countries’ banking laws. Allowing

Petitioners’ ATS claims to proceed would invite the

precise diplomatic and foreign policy harms that

Kiobel II and _ the - ~presumption against

extraterritoriality seek to avoid.

Any interest in having U.S. courts adjudicate

these claims is also de minimis because Petitioners

failed to exhaust legal remedies in Israel, the country

where they resided and their injuries actually

occurred. Rather than bringing suit in that obvious

forum, Petitioners chose to litigate in the United

States in an attempt to obtain punitive damages

(which are rarely awarded under Israeli law). This

Court should not facilitate Petitioners’ use of the ATS

for such blatant forum-shopping.

This Court's review is also unnecessary because

the secision below is correct. There is currently no

consensus that corporations can be found liable

under international law, which is fatal to Petitioners’

ATS claims. No less an authority than the U.N.

Council on Human Rights has recognized that

international law does not currently impose any

direct legal responsibilities on corporations.

Petitioners and their amici are also wrong to suggest

that the decision below will make it more difficult to

14

combat terrorism. Regardless of any potential ATS

claims, corporations will remain subject to an

exhaustive array of statutes and _ regulations

designed to prevent the flow of money to terrorist

groups, including the material support statute, the

Patriot Act, the OFAC sanctions regime, the Anti-

Terrorism Act, and countless regulations imposed by

foreign and domestic banking regulators.

II. This Court’s review would also be an exercise

in futility because—in addition to being barred by

Kiobel I1—Petitioners’ ATS claims fail as a matter of

law for several other independent reasons.

The ATS provides jurisdiction only for claims

alleging “violations of international law norms that

are ‘specific, universal, and obligatory.” Aizobel IJ,

133 S. Ct. at 1665. Petitioners seek to advance ATS

claims based on the Bank’s alleged facilitation of

“terrorism,” but there is nothing remotely resembling

a universal international consensus about the

meaning of that term. Even preeminent

international organizations such as the U.N. and

NATO have struggled to define that term with any

consistency. This case well-illustrates that ongoing

ambiguity. Several of the Palestinian organizations

and charities that Petitioners have labeled as

“terrorists fronts” receive funding or support from the

U.S. government. And the vast majority of Bank

customers whom Petitioners claim are terrorists were

never designated as such by any country or

organization, including the U.S., E.U., and U.N. The

inherent difficulty in defining “terrorism”’—and the

fact that any such determination is fraught with

sensitive foreign-policy implications—only

15

undersccres why the ATS should not be dramatically

expanded to encompass Petitioners’ claims.

Finally, Petitioners’ ATS claims fail as a matter

of law because they do not plausibly allege the

critical elements of purpose and causation. It strains

credulity to suggest that a major international

financial institution that the U.S. government has

described as a “leader” and “constructive partner” in

combatting terrorist financing, and that Israel uses

to make payments of the customs and tax revenue it

collects, acted with the purpose of assisting terrorist

attacks. And Petitioners’ complaints are wholly

devoid of any allegations establishing a causal

connection between the Bank’s activities and the

attacks that caused their injuries. Each of these

omissions provides yet another independent basis on

which Petitioners ATS claims can be dismissed

regardless of how this Court would answer the

question presented.

I. The Decision Below Was Correct And Is Of

Minimal Practical Importance.

A. This Court Has _ Recently and

Repeatedly Denied Certiorari on the

Exact Question Presented Here.

Over the last two years, this Court has denied

multiple petitions for certiorari raising the exact

question presented here. Petitioners offer no reason

for a different result this time around.

In Ntsebeza v. Ford Motor Co., No. 15-1020, a

case arising out of the Second Circuit, the petitioners

raised the question of “[wjhether corporations are

immune from tort liability under the ATS...” Pet. for

Cert. at iu, No. 15-1020 (filed Feb. 10, 2016).

16

According to the petitioners, the Second Circuit

“stands alone amongst all circuits to have considered

the issue of corporate liability under the ATS.” Jd. at

37. Citing the exact same cases that Petitioners cite

here, the Ntsebeza petitioners argued that four other

circuits “have each independently concluded that

corporate liability exists,” and that “[rjeview is

warranted to resolve this conflict among the

appellate courts regarding corporate liability under

the ATS.” Jd. at 38. In other words, Ntsebeza arose

out of the same circuit as this case; raised the same

question presented; and cited the same cases in

support of an alleged split. This Court denied

certiorari on June 20, 2016, without noted dissent.

Petitioners do not even acknowledge this recent

denial of certiorari on the same question presented

here, much less attempt to explain why this issue has

suddenly become certworthy just six months later.

Ntsebeza was not an outlier, as this Court also

recently denied certiorari in a case arising out of the

Ninth Circuit that raised the same question. In that

case, the petitioners (corporate defendants rather

than individual plaintiffs) sought certiorari on the

question of “whether there is a_ well-defined

international-law consensus that corporations are

subject to liability for violations of the law of

nations.” Pet. for Cert. at i, Nestle v. Doe, No. 15-349

(filed Sept. 18, 2015). Citing the same court of

appeals cases cited by Petitioners here, the

petitioners in that case urged the Court to “resolve

the persistent conflict among the courts of appeals

regarding corporate liability under the ATS.” Id. at

34. This Court denied certiorari on January 11,

2016, again without noted dissent.

17

The Court has also denied certiorari in cases in

which respondents raised this issue as a potential

defense to liability. In Cardona v. Chiquita Brands,

Nos. 14-777, 14-1011, the _ petitioners sought

certiorari on a question about the extraterritorial

scope of the ATS. The respondents argued that if the

Court were to grant certiorari, it should add a

question presented to “consider the issue of corporate

liability” under the ATS and thereby “resolve the

circuit split” between the Second Circuit and three

other courts of appeals. Br. in Opp. at 28-30, Nos.

14-777, 14-1011 (filed Mar. 6, 2015). This Court

denied certiorari on April 20, 2015, without noted

dissent.

In sum, over the last two years, this Court has

declined at least three invitations to consider the

exact same question presented here, in petitions filed

by plaintiffs and defendants, and in cases arising out

of the Second Circuit and other courts of appeals.

That is hardly surprising given that this Court

previously went out of its way to avoid deciding the

question in Kiobel even after full briefing and

argument on the merits. Nothing has changed since

Kiobel and the subsequent denials of certiorari that

would warrant a different outcome here, and

petitioners do not even attempt to argue otherwise.

B. The Question Presented Is of Minimal

and Diminishing Practical Importance

in Light of Kiobel I.

1. As Petitioners repeatedly note, this Court

initially granted certiorari in Kiobel to address the

question of whether corporations can be sued under

the ATS, before ultimately resolving the case on

18

other grounds. But, far from suggesting a lingering

need for this Court’s review of the corporate-liability

issue, this Court’ decision in AKAtobel I/ only

underscores why that issue is now a question of

minimal and diminishing importance that does not

warrant this Court’s intervention.

This Court initially granted certiorari in Kiobel

to address whether the law of nations recognized

corporate liability and, in turn, whether the ATS

provided jurisdiction for claims against corporations.

After full merits briefing and argument on that

question, the Court requested supplemental briefing

and argument to address an additional questiou:

“[w|hether and under what circumstances the [ATS]

allows courts to recognize a cause of action for

violations of the law of nations occurring within the

territory of a sovereign other than the United

States.” 132 S. Ct. 1738 (2012).

The Court ultimately resolved the case “based on

our answer to the second question.” 133 S. Ct. at

1663. As the Court explained, the longstanding

presumption against extraterritorial application of

U.S. law “helps ensure that the Judiciary does not

erroneously adopt an interpretation of U.S. law that

carries foreign policy consequences not clearly

intended by the political branches.” Jd. at 1664. And

those concerns about interfering with U.S. foreign

policy were only “magnified” in the context of the

ATS, as “many attempts by federal courts to craft

remedies for the violation of new norms of

international law would raise risks of adverse foreign

policy consequences.” Jd. (quoting Sosa v. Alvarez-

Machain, 542 U.S. 692, 727-28 (2004)); see id. at

19

1673-74 (Breyer, J., concurring) (“Sosa’s basic

caution” is “to avoid international friction....”).

The Court further held that nothing in the

sparse text of the ATS rebutted the presumption

against extraterritoriality. The concerns that led the

First Congress to enact the ATS involved purely

domestic torts and “provide[d] no support for the

proposition that Congress expected causes of action

to be brought under the statute for violations of the

law of nations occurring abroad.” Id. at 1667.

The Court thus concluded that the ATS does not

provide jurisdiction over claims “seeking relief for

violations of the law of nations occurring outside the

United States.” Jd. at 1669. And even where claims

“touch and concern the territory of the United States,

they must do so with sufficient force to displace the

presumption against extraterritorial application.” /d.

(emphasis added). Corporations are “often present in

many countries,” and “it would reach too far to say

that mere corporate presence suffices.” Id.

2. Petitioners suggest (at 14) that this Court's

previous grant of certiorari on the corporate-liability

question shows that this issue is “extraordinarily

significant.” But the Court’s ultimate disposition of

Kiobel shows exactly the opposite: that it is

unnecessary to address questions of corporate

liability when an ATS suit can easily be dismissed on

extraterritoriality grounds. As Judges Jacobs,

Cabranes, Raggi, and Livingston recognized in their

concurrence in the denial of rehearing, the question

of corporate liability under the ATS “has been largely

overtaken” in light of this Court’s decision in Kiobel

Il. Pet.App.37a. Given that many ATS claims are

20

both brought against corporations and involve

extraterritorial conduct, “the population of cases

dismissible under Kiobel J is largely coextensive with

those dismissible under Kiobel LI.” Id.

For the same reason, the circuit split alleged in

the Petition—which is “illusory,” as Judge Jacobs

explained, Pet.App.4la—is of minimal = and

diminishing practical importance. Since Kiobel II,

even the courts that purportedly allow corporate

liability under the ATS have routinely dismissed ATS

claims against corporations on extraterritoriality

grounds, including ATS claims brought against U.S.

corporations accused of providing support to

terrorists from their U.S. offices. See, e.g., Doe v.

Drummond Co., 782 F.3d 576, 593-601 (11th Cir.

2015), cert. denied 136 S. Ct. 1168 (2016); Baloco v.

Drummond Co., 767 F.3d 1229, 1236-39 (llth Cir.

2014), cert. denied 136 S. Ct. 410 (2015); Cardona ov.

Chiquita Brands, 760 F.3d 1185 (11th Cir. 2014),

cert. denied, 135 S. Ct. 1842 (2015); see also Mujica v.

AirScan, 771 F.3d 580, 591-96 (9th Cir. 2014), cert.

denied 136 S. Ct. 690 (2015). Indeed, Petitioners

have not identified a single post-Kiobel case in any

circuit in which a corporation has actually been

found liable for violating the ATS, thereby

underscoring that the corporate-liability question is

having little, if any, practical impact on the lower

courts.

C. Petitioners’ Claims Are Foreclosed by

Kiobel I].

1. Just as in Kiobel itself, even though this case

involves an ATS claim against a corporation, it can

also be “straightforwardly decided” under the

21

presumption against extraterritoriality.

Pet.App.38a. Every pertinent aspect of this case is

foreign. Petitioners are foreign citizens—including

soldiers in a foreign nation’s military—whose injuries

occurred on foreign soil at the hands of the foreign

individuals and organizations that perpetrated the

attacks. The defendant, Arab Bank, is a Jordanian-

headquartered financial institution. Although the

Bank has an office in the U.S. (like Royal Dutch Shell

in Kiobel), its headquarters and virtually all of its

operations are located abroad. In short, just like

Kiobel I, this is a paradigmatic “foreign-cubed” case

in which a foreign plaintiff is suing a foreign

defendant for injuries suffered on foreign soil.

Indeed, the Bank’s connections to the U.S. are

even more attenuated than those in Kiobel. There,

the defendant raised funds in the United States, its

shares were traded on the New York Stock Exchange,

and the company maintained such _ extensive

operations in New York that it was found to be

subject to the general jurisdiction of the U.S. courts.

133 S. Ct. at 1662-63, 1677-78 (Breyer, J.,

concurring); see Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88, 93-99 (2d Cir. 2000). None of that is

true here. Arab Bank’s shares are not traded in the

U.S.; the company has never sought to raise funds in

the U.S.; only a handful of its approximately 6,000

employees are located in the U.S.; and it has never

been deemed subject to genera] jurisdiction here.

The Second Circuit panel found it “tempting” to

decide this case on extraterritoriality grounds but

ultimately declined to do so. Pet.App.28a. In

particular, the panel stated that it would be “unwise”

22

to decide “the difficult and sensitive question” of

whether Kiobel IJ applied here given that the Bank

allegedly ‘“clearfed] foreign dollar-denominated

payments through a branch in New York.” Id.

In fact, that issue is neither “difficult” nor

“sensitive.” As this Court emphasized in Kiobel II,

even where claims “touch and concern the territory of

the United States, they must do so with sufficient

force to displace the presumption against

extraterritorial application.” 133 S. Ct. at 1669

(emphasis added). The fact that a wire transfer of

funds between a foreign sender and foreign

recipient—the “kind of transaction that can be done

at an automated airport kiosk,” Pet.App.40a—may

have transited the automated clearing system of a

New York bank branch (without human intervention)

at some point on its journey between those foreign

countries does nothing to change the fundamentally

foreign character of such a transaction.

Indeed, it would be nothing short of radical to

hold that this highly attenuated link to the U.S. can

provide jurisdiction over an otherwise-impermissible

foreign-cubed ATS claim. The dollar is the world’s

reserve currency, and dollar-denominated

transactions are cleared through the U.S. at a rate of

more than $1.5 trillion each day. If that alone were

sufficient to displace the presumption against

extraterritoriality and trigger ATS jurisdiction in the

United States, then any alleged violation of

international law anywhere in the word “in which

dollars are involved” would “belongf] in ... New York

courts.” Mashreqbank PSC v. Ahmed Hamad Al

Gosaibi & Bros. Co., 12 N.E.3d 456, 460 (N.Y. 2014).

23

Under that sweeping view of ATS jurisdiction, this

Court’s extraterritoriality doctrine would be a dead

letter in any case involving a wire transfer that

happened to be denominated in dollars.

In all events, Petitioners have never alleged that

any of the transactions that passed through ABNY’s

automated clearing system were connected to the

specific attacks that caused their injuries. Thus, even

if dollar clearing through a bank’s New York branch

could give rise to an ATS claim under some

hypothetical set of circumstances, it emphatically

cannot do so here.

2. This Court further emphasized in both

Kiobel II and Sosa that ATS claims should not be

recognized by the courts where doing so would “raise

risks of adverse foreign policy consequences.” Sosa,

542 U.S. at 727-28. The risk of interfering with

sensitive foreign policy judgments or causing

international friction is especially severe in cases,

like this one, that involve “conduct within the

territory of another sovereign.” Kiobel lI, 133 S. Ct.

at 1665; EEOC v. Arabian Am. Oil Co., 499 U.S. 244,

248 (1991) (presumption against extraterritoriality

“protect[s] against unintended clashes between our

laws and those of other nations which could result in

international discord”). Here, Petitioners’ ATS

claims implicate an abundance of sensitive foreign

policy concerns and have already interfered with

diplomatic relations between the U.S. and its critical

allies in the Middle East.

At the outset, allowing Petitioners’ ATS claims to

proceed would result in U.S. federal courts becoming

the next battlefield in the Israeli-Palestinian

24

conflict—a role the courts are manifestly unsuited to

play. Due in large part to the sensitive foreign policy

interests at stake, U.S. courts have wisely steered

clear of adjudicating disputes arising out of the

Israeli-Palestinian conflict. See, e.g., Corrie v.

Caterpillar Inc., 503 F.3d 974, 982-84 (9th Cir. 2007)

(affirming dismissal where adjudicating the case

could “undermine foreign policy decisions in the

sensitive context of the Israeli-Palestinian conflict”);

Doe I v. Israel, 400 F. Supp. 2d 86, 112 (D.D.C. 2005)

(affirming dismissal after concluding that a

determination of whether violence perpetrated by

Israeli settlors constituted “genocide” was a

“predicate policy determination” that “is plainly

reserved to the political branches of government’);

Matar v. Dichter, 500 F. Supp. 2d 284, 295 (S.D.N.Y.

2007) (dismissing claims after observing that ATS

plaintiffs were injured in a “uniquely volatile region”

and stating that the court could not “ignore the

potential impact of this litigation on the Middle

East’s delicate diplomacy’), affd 563 F.3d 9 (2d Cir.

2009).

Moreover, if Petitioners’ ATS claims were

allowed to proceed, the discovery process would lead

to a host of cross-border conflicts over access to the

Bank’s records. This is not speculation. During the

discovery process (which was consolidated in the ATA

and ATS cases), Petitioners and other plaintiffs made

a stunningly broad request for essentially all

documents related to tens of thousands of the Bank’s

foreign accounts, without regard to whether those

accounts had any alleged links to _ terrorism.

Linde.C.A.App.3294. The Bank secured permission

to lawfully produce approximately 200,000 foreign

25

account records. But complying with Petitioners’

additional discovery requests would have forced the

Bank to violate the laws and express directives of the

many other jurisdictions in which it does business.

Yet, remarkably, the district court in the ATA

case imposed a draconian sanction on the Bank for

its failure to fully comply with the plaintiffs’

discovery requests, even after the sanction order

prompted a petition to this Court, an amicus brief by

the Kingdom of Jordan, a call for the views of the

Solicitor General, and a U.S. government brief

explaining that the sanctions order was legally

erroneous and diplomatically prejudicial.« None of

that impressed the district court (which also has

jurisdiction over these proceedings). The sanction

effectively crippled the Bank’s ability to mount a

meaningful defense to the ATA claims by gagging it

from explaining why it was unable to produce

additional records, and instructing the jury that it

could infer that the Bank “provided financial services

to Hamas, and to individuals affiliated with Hamas,”

and that the Bank “did these acts knowingly.”

Linde.SPA143.6

4 See Br. of Jordan at 2-4, Arab Bank v. Linde, No. 12-1485

(filed July 24, 2013) (sanction order was a “grave affront to

[Jordan’s} sovereignty” that undermines its “right to prescribe

and enforce laws within its territory”); U.S. Linde Br. at 8, 19

(sanction order “failjed] adequately to consider the broad range

of United States foreign-relations and anti-terrorism interests”

implicated by this case).

5 In the face of this instruction and the exclusion of evidence

of the Bank’s compliance efforts and lawful intent, the jury

unsurprisingly returned a verdict finding the Bank liable under

the ATA for all 24 attacks at issue in the trial. Linde.SPA161-

26

In short, adjudication of Petitioners’ ATS claims

would inject U.S. courts squarely into the middle of

the Israeli-Palestinian conflict, would interfere with

U.S. relations with critical allies in the Middle East,

and would risk forcing the Bank to violate the local

laws of the many foreign countries in which it

operates. Those are precisely the types of harms that.

this Court sought to prevent in its decisions in

Kiobel IT and Sosa. Allowing Petitioners’ ATS claims

to proceed has nothing to recommend it, and further

review “would serve no_ purpose remotely

commensurate with the effort it would entail.”

Pet.App.36a.

3. Finally, further underscoring that this case

does not belong in U.S. court, Petitioners

unquestionably had legal remedies availahle to them

in lsrael—the site of the attacks—which they

strategically chose not to pursue. Israel has a

modern, well-functioning tort regime, and it is

undisputed that Petitioners could have sued Arab

Bank (or any other individual or corporation

allegedly connected to the attacks) in an Israeli court.

Yet Petitioners instead chose to litigate 5,000

miles away, in U.S. federal district court. In

response to questions about why they did not sue the

Bank (or their attackers) in Israel, Petitioners’

counsel candidly stated:

The answer is simple: ... [YJou cannot

compare the amounts that could be awarded

in America in tort cases to anything we

64. The Bank’s appeal from that judgment is pending in the

Second Circuit. See Linde v. Arab Bank, No. 16-2119 (2d Cir.).

27

know here [in Israel]. In the US., ... in

addition to the damage compensation, there

are also enormous punitive awards, and I am

talking millions.

C.A.App.310 (emphasis added). In other words,

Petitioners chose to pursue their claims in the US.

not because of some nexus between their allegations

and the U.S., but because U.S. tort law is more

generous than Israeli tort law in providing for

punitive damages.

Petitioners’ failure to pursue available remedies

in Israel is yet another reason why their ATS claims

fail. In Sosa, this Court cited with apparent approval

an amicus brief and international law treatise

arguing that “basic principles of international law

require that before asserting a claim in a foreign

forum, the claimant must have exhausted any

remedies available in the domestic legal system.”

Sosa, 542 U.S. at 732 n.21 (emphasis added); accord

Kiobel IT, 133 S. Ct. at 1677 (Breyer, J. concurring)

(noting availability in ATS cases of doctrines of

“comity, exhaustion, and forum non conveniens’).

The mere fact that the remedies available in Israel—

Petitioners’ home country—are less generous than

those available in the U.S. is no reason to allow them

to seek relief in the U.S. under the ATS for

fundamentally foreign claims.

D. The Decision Below Was Correct and

Will Not Undermine Efforts To Combat

Terrorism.

1. To succeed on their ATS claims against the

Bank, Petitioners would bear a heavy burden to show

that corporate liability is universally recognized in

28

international law. See Sosa, 542 U.S. at 733 n.20.

Yet Petitioners fail to point the Court to a single

instance of a corporation being held liable by an

international tribunal under customary international

law. There is none. As the U.N. Council on Human

Rights has recognized, “[i]Jndividuals have long been

subject to direct responsibility for ... international]

crimes [such as] piracy and slavery....”"° But, within

the world’s various legal systems there is “enormous

diversity in the scope and content of corporate legal

responsibilities regarding human rights.” Id. 434.

Thus, international law does not “currently impose

direct legal responsibilities on corporations.” Id. at

144.

Historical practice confirms the lack of any

universal norm recognizing corporate liability. At

the Nuremberg Trials, the Allies “declinfed] to

impose corporate liability under international law in

the case of the most nefarious corporate enterprise

known to the civilized world, while [nevertheless]

prosecuting the men who led” it. Kiobel J, 621 F.3d

at 135. As the Nuremberg Tribunal emphasized,

“{clrimes against international law are committed by

men, not by abstract entities, and only by punishing

individuals who commit such crimes can _ the

provisions of international law be enforced.” The

Nurnberg Trial 1946, 6 F.R.D. 69, 110 (1947). All

subsequent international tribunals have followed

that example. The jurisdiction of the International

6 U.N. Human Rights Council, Report of the Special

Representative of the Secretary-General on the lasue of Human

Rights and Transnational Corporations and Other Business

Enterprises. 919. U.N. Doe. AAHRO/4/35 (Feb. 19. 2007).

29

Criminal Tribunal for the Former Yugoslavia, the

International Criminal Tribunal for Rwanda, and the

International Criminal Court are all limited to

“natural persons.” Kiobel J, 621 F.3d at 136.

Petitioners assert (at 26) that Skinner v. East

India Co., a 17th-century suit against the British

East India Company, demonstrates that corporations

could be sued under international law at the time the

ATS was enacted in 1789. But the East India

Company was much more like a modern sovereign,

complete with the power “to wage war and conduct

diplomacy, govern over people and places, [and] coin

money,” than to a purely private corporation. See

Philip J. Stern, The English East India Company and

the Modern Corporation: Legacies, Lessons, and

Limitations, 39 Seattle U. L. Rev. 423, 433 (2016).

Petitioners argument (at 27-29) that once a

violation of international law has been established,

U.S. domestic law can provide the remedy of

corporate liability for that violation is wrong. Under

normal choice-of-law rules, the types of defendants

who may be held liable for violating a legal rule is a

question of substance, not procedure. See, e.g., Peter

Hay, Conflict of Laws §1.1 (5th ed. 2010). Here, the

ATS selects the “law of nations” to provide the

substance, including the answer to who may be found

liable. See Sosa, 542 U.S. at 733 n.20.

Regardless, U.S. law does not permit corporate

hability in several analogous contexts, and

Petitioners offer no plausible basis for recognizing a

broader cause of action under the ATS. For example,

this Court has held that corporations cannot be found

liable in a Bivens action for claims arising from the

30

violation of domestic civil rights. See Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 63 (2001). And the

Torture Victim Protection Act—which is codified as a

note to the ATS and provides a specific remedy for

“torture” and “extrajudicial killing”—bars liability for

corporations. See Mohamad v. Palestinian Auth., 132

S. Ct. 1702, 1706 (2012).

2. Amici’s suggestion that the decision below

will “create a troubling gap in US. global

counterterrorism efforts,” Whitehouse Br.18-20, is

pure hyperbole. Federal criminal law separately

forbids providing material support to _ terrorist

groups. See, e.g., 18 U.S.C. §§2339A-2339C. The

Patriot Act, sanctions programs administered by

OFAC, and other banking regulations also prevent

the use of the U.S. financial system by terrorists, and

punish banks that fail to comply. See e.g., 31 C.F.R.

§§595-597. Critically, each of those governmental

remedies allows for prosecutorial or regulatory

discretion in an area fraught with foreign policy

considerations to which the plaintiffs’ bar in a private

suit will pay no heed. See RJR Nabisco v. European

Community, 136 S. Ct. 2090, 2106 (2016); Sosa, 542

U.S. at 727.

The civil Anti-Terrorism Act also creates liability

for anyone—including corporations—who commits

“acts of international terrorism.” 18 U.S.C. §2333.

Indeed, Petitioners’ co-plaintiffs are currently suing

the Bank under the ATA for some of the very same

attacks at issue here. The Bank continues to mount

a vigorous defense to those claims, but its status as a

corporation is no defense in that action. The only

reason Petitioners are suing under the ATS is

31

because Congress has permitted only “national[s] of

the United States” to sue under the ATA. Even

though Congress recently expanded the scope of the

ATA, see Justice Against Sponsors of Terrorism Act,

Pub. L. 114-222 (2016), those amendments did not

allow foreign plaintiffs (such as Petitioners) to bring

claims in U.S. courts. Allowing ATS claims brought

by foreign plaintiffs arising out of acts of

international terrorism to proceed in U.S. court

would thus directly contravene Congress’ judgment

that only U.S. nationals may seek relief for “act[s} of

international terrorism” in U.S. courts. 18 U.S.C.

§2333.

II. Petitioners’ Claims Fail As A Matter Of Law

For Several Other Independent Reasons.

Even if the Court were interested in considering

the ATS corporate-liability issue despite having

denied certiorari on that issue three times in the last

two years, and even if Petitioners’ claims were not

barred by Kiobel IJ, the petition should still be denied

as there are multiple additional grounds on which

Petitioners’ claims fail as a matter of law. See Stern

& Gressman, Supreme Court Practice 362 (10th ed.

2013) (citing dismissals as improvidently granted

where the judgment was “clearly correct on another

ground”).

A. The ATS Does Not Confer Jurisdiction

Over Claims Alleging “Terrorism.”

ATS claims are cognizable only for “violations of

international law norms that are ‘specific, universal,

and obligatory.” Kiobel IJ, 133 S. Ct. at 1665.

By way of example, Judge Friendly rejected

the notion that “the Eighth Commandment

32

‘Thou shalt not steal’ is part of the law of

nations,” because, “[w]hile every civilized

nation doubtless has this as a part of its

legal system,” that is insufficient to establish

it as a norm of the law of nations; rather, [to

be part of international law, a norm] must

affect the relationship between states or

between an individual and a foreign state,

and must relate to the practice of states in

their relationships inter se.

Mastafa v. Chevron Corp., 770 F.3d 170, 180 (2d Cir.

2014) (quoting WT v. Vencap, Lid., 519 F.2d 1001,

1015 (2d Cir. 1975) (Friendly, J.)). It is thus

irrelevant whether the alleged acts are universally

condemned or even universally illegal under domestic

law. The pertinent question is instead whether an

action is universally condemned tn international law.

That is a threshold question of law about whether the

alleged cause of action is “subject to jurisdiction”

under the ATS. Sosa, 542 U.S. at 732.

Petitioners assert (at 21) that “the financing and

rewarding of terrorism ... lie[s] at the core of the

ATS’s concerns.” But, to the contrary, ATS claims

based on “terrorism” “fail ... because no universal

norm against ‘terrorism’ exist[s] under customary

international law.” Jn re Terrorist Attacks on Sept.

11, 2001, 714 F.3d 118, 125 (2d Cir. 2013). Even

NATO and the U.N. have struggled to define

terrorism, and have failed to do so with any

consistency. See United States v. Yousef, 327 F.3d 56,

108 n.42 (2d Cir. 2003). The U.S. code contains at

least three different definitions of terrorism. Jd. And

the parties to the Rome Conference expressly

33

withheld jurisdiction over “terrorism” from the

International Criminal Court because they failed to

agree on a definition of that term. See Aviv Cohen,

Prosecuting Terrorists at the International Criminal

Court: Reevaluating an Unused Legal Tool to Combat

Terrorism, 20 Mich. St. Int’l L. Rev. 219, 223 (2012).

As the Second Circuit explained in another case

involving financial services provided to alleged

terrorists, “we [have not yet] shaken ourselves free of

the cliché that ‘one man’s terrorist is another man’s

freedom fighter.’ ... [And] terrorism—unlike piracy,

war crimes, and crimes against humanity—does not

provide a basis for universal jurisdiction [under

customary international law].” Terrorist Attacks, 714

F.3d at 125. This case proves the point. Both sides

in the Israeli-Palestinian conflict refer to the other as

terrorists. See Yousef, 327 F.3d at 106 n.41. And

several of the Palestinian organizations and charities

that Petitioners have labeled as “terrorist fronts”

“received grants from the United States government”

through USAID, Gill, 893 F. Supp. 2d at 561

(emphasis added), and the international donor

community.

Nor is the [sraeli-Palestinian conflict likely to be

the only source of “terrorism” claims under the ATS.

Both sides in numerous conflicts around the globe

accuse the other of terrorism, including India and

Pakistan in their dispute over Kashmir,’ and Russia

7 Salman Masood, Jndia and Pakistan Accuse Eaclh Other in

Deaths of Cwilians, N.Y. Times (Aug. 28, 2015),

http://nyti.ms/2hcATaY.

34

and Ukraine in their ongoing conflict. Opening up

U.S. courts to “terrorism” claims under the ATS

would create a new front for belligerents worldwide,

even in cases where U.S. interests are de minimis or

non-existent.

B. Petitioners Fail To Plausibly Allege the

Reguisite Intent and Causation.

1. Since there is no allegation that the Bank has

ever directly engaged in terrorism, Petitioners allege

that the Bank aided and abetted the attacks that

injured them. To prevail on such a claim, Petitioners

must show that the Bank acted with the purpose of

supporting recognized violations of the law of

nations, such as genocide and crimes against

humanity. See Presbyterian Church of Sudan v.

Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir.

2009); Aziz v. Alcolac, Inc., 658 F.3d 388, 398 (4th

Cir. 2011). An allegation that a company knowingly

“{did] business with [Hamas or a charity allegedly

affilhated with Hamas] ... does not by itself

demonstrate a purpose to support [genocide or crimes

against humanity].” Doe I v. Nestle USA, Inc., 766

F.3d 1013, 1025 (9th Cir. 2014) (emphasis added),

cert. denied, 136 S. Ct. 798 (2016).

Here, any allegation that the Bank acted with

the purpose of facilitating crimes against humanity

or genocide would be implausible in the extreme.

Indeed, the U.S. government has described the Bank

as “a constructive partner” and “a lead[er] ... on anti-

8 Simon Schuster, Ukraine and Russia Demonize Each Other

With Claims of Terrorism, Time (Apr. 3, 2014),

http://ti.me/lowuokj.

35

money laundering and combatting the financing of

terrorism.” U.S. Linde Br.20. There can be no

plausible allegation that the Bank acted with the

purpose of supporting genocide or crimes against

humanity when it was working closely with both the

U.S. and other governments to fight terrorism and

terrorist financing.

2. Finally, Petitioners cannot prevail unless they

prove proximate causation—that the Bank’s actions

“led directly to the plaintiffs injuries.” Anza v. Ideal

Steel Supply Corp., 547 U.S. 451, 461 (2006). But

simply providing financial services to persons or

charities allegedly affiliated with a terrorist group or

related to a terrorist does not proximately cause

injuries resulting from terrorist attacks. See, e.g.,

Rothstein v. UBS AG, 708 F.3d 82, 95 (2d Cir. 2013);

Terrorist Attacks, 714 F.3d at 124. Nor does it

demonstrate assistance that “has a substantial effect

on the perpetration of the crime.” Presbyterian

Church, 582 F.3d at 257.

For example, in Rothstein, the plaintiffs alleged

that a defendant bank had provided material support

to Hamas and Hezbollah by performing currency

exchange services for the government of [ran (which

was a designated state sponsor of terrorism). The

Second Circuit dismissed those claims for failure to

adequately plead either proximate or but-for

causation. The court emphasized that Iran also had

“many legitimate agencies, operations, and programs

to fund,” and that there was no plausible allegation

that “the moneys UBS transferred to Iran were in

fact sent to Hizbollah or Hamas” or that “Iran would

36

have been unable to fund the attacks ... without the

cash provided by UBS.” 708 F.3d at 97.

Petitioners causation theories are even more

attenuated. In particular, there are no allegations

that any funds that flowed through the Bank were

connected in any way to the spectfie attacks that

injured Petitioners. Nor do Petitioners make any

serious attempt to show that the attacks in question

would not have occurred but for the Bank’s actions.

Plaintiffs theorv of causation thus fails as a matter

of law.

CONCLUSION

For the foregoing reasons. this Court should

deny the petition for certiorari.

Respectfully submitted,

JONATHAN SIEGFRLED PAUL D. CLEMENT

KXeVIN WALSH Counsel of Record

DoUGLAS W. JrrPREY M. HARIUS

MATEYASCHU K NicHoLas T. MATICH

DLA PIPER LLP (US) KIRKLAND & ELLIS LLP

1251 Avenue of the 655 Fifteenth Street. NW

Americas Washington. DC 20005

New York, NY 10020 (202) 879-5000

(212) 355-4000 paul.clementekirkland.com

Counsel for Respondent

December 14. 2016