Supreme Court of the United States

Transcription

1 No IN THE Supreme Court of the United States IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 (AL RAJHI BANK, et al.) JOHN PATRICK O NEILL, JR., et al., Petitioners, v. AL RAJHI BANK, SAUDI AMERICAN BANK, DAR AL- MAAL AL-ISLAMI TRUST, SALEH ABDULLAH KAMEL, DALLAH AL BARAKA GROUP LLC, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit RULE 12(b)(6) RESPONDENTS BRIEF IN OPPOSITION CHRISTOPHER M. CURRAN* NICOLE ERB MATTHEW S. LEDDICOTTE WHITE & CASE LLP th Street, N.W. Washington, D.C (202) ccurran@whitecase.com Counsel for Respondent Al Rajhi Bank November 12, 2013 *Counsel of Record [Additional Counsel on Inside Cover]

2 HENRY WEISBURG BRIAN H. POLOVOY SHEARMAN & STERLING LLP 599 Lexington Avenue New York, New York (212) Counsel for Respondent Saudi American Bank JAMES J. MCGUIRE TIMOTHY J. MCCARTHY AIMEE R. KAHN DANIEL MANDELL MISHCON DE REYA NEW YORK LLP 750 7th Avenue, 26th Floor New York, New York (212) Counsel for Respondent Dar Al-Maal Al-Islami Trust MARTIN F. MCMAHON MARTIN F. MCMAHON & ASSOCIATES 1150 Connecticut Avenue, N.W. Suite 900 Washington, D.C (202) Counsel for Respondents Dallah Al Baraka and Saleh Abdullah Kamel

3 i QUESTION PRESENTED Only the first of Petitioners Questions Presented relates to the Respondents submitting this Brief in Opposition: Whether the civil remedy provision of the Anti- Terrorism Act, 18 U.S.C. 2333, supports claims against defendants based on theories of secondary liability, and requires plaintiffs to establish that a defendant s support provided to a terrorist organization was a proximate cause of the plaintiffs injury.

4 ii RULE 29.6 STATEMENT Al Rajhi Bank, established in 1957, states that it has no parent corporation, and that no publicly held corporation owns, directly or indirectly, 10% or more of Al Rajhi Bank s stock. Saudi American Bank, now known as Samba Financial Group, states that it is a publicly traded corporation with no parent corporation and that no publicly held corporation owns 10% or more of its stock. Dar Al-Maal Al-Islami Trust ( DMI Trust ) states that it has no parent corporation. Additionally, no publicly-traded corporation owns more than 10% of DMI Trust. Dallah Al Baraka Group LLC states that it has no parent corporation and that no publicly-held corporation owns, directly or indirectly, 10% or more of Dallah Al Baraka Group LLC. Saleh Abdullah Kamel is a natural person.

5 iii TABLE OF CONTENTS QUESTION PRESENTED... i RULE 29.6 STATEMENT... ii TABLE OF AUTHORITIES... iv INTRODUCTION... 1 STATEMENT OF THE CASE... 3 A. District Court Proceedings... 3 B. The Second Circuit s Decision... 6 REASONS FOR DENYING THE PETITION AS TO QUESTION ONE... 7 I. The Second Circuit s Holding Rejecting Aidingand-Abetting Liability Under The ATA Does Not Warrant Review... 7 A. There Is No Circuit Conflict... 8 B. The Second Circuit s Decision Is Consistent With Decisions Of This Court C. The Position Of The United States In Other Cases Is Not A Basis For Review II. The Second Circuit s Holding Requiring Proximate Causation Under The ATA Does Not Warrant Review A. There Is No Circuit Conflict B. The Second Circuit s Decision Is Consistent With Decisions Of This Court C. The Second Circuit s Decision Will Not Undermine Anti-Terrorism Efforts CONCLUSION... 29

6 iv TABLE OF AUTHORITIES Cases Abecassis v. Wyatt, 785 F. Supp. 2d 614 (S.D. Tex. 2011) Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006) Ashcroft v. Iqbal, 556 U.S. 662 (2009)... 3, 19 Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007)... 3 Blue Shield of Va. v. McCready, 457 U.S. 465 (1982) Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (en banc)... passim Bragdon v. Abbott, 524 U.S. 624 (1998) California v. Rooney, 483 U.S. 307 (1987) Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994)... 10, 11, Conley v. Gibson, 355 U.S. 41 (1957)... 3 Crosby v. Nat l Foreign Trade Council, 530 U.S. 363 (2000) Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) Hemi Group, LLC v. City of New York, 559 U.S. 1 (2010)... 23

7 v Holder v. Humanitarian Law Project, 130 S. Ct (2010) Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258 (1992) , 23 Ill. Brick Co. v. Illinois, 431 U.S. 720 (1977) In re Chiquita Brands Int l, Inc. Alien Tort Statute & S holder Derivative Litig., 690 F. Supp. 2d 1296 (S.D. Fla. 2010)... 16, 17 In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005) , 5, 18 In re Terrorist Attacks on Sept. 11, 2001, No. 03-MDL-1570 (S.D.N.Y. May 5, 2005) (dismissal order)... 4 In re Terrorist Attacks on Sept. 11, 2001, 462 F. Supp. 2d 561 (S.D.N.Y. 2006)... 4, 19 In re Terrorist Attacks on Sept. 11, 2001, 464 F. Supp. 2d 335 (S.D.N.Y. 2006)... 5, 19 In re Terrorist Attacks on Sept. 11, 2001, 471 F. Supp. 2d 444 (S.D.N.Y. 2007)... 4 Molzof v. United States, 502 U.S. 301 (1992)... 13, 22 Morissette v. United States, 342 U.S. 246 (1952) Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013)... passim Schindler Elevator Corp. v. U.S. ex rel. Kirk, 131 S. Ct (2011) Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008)... 12

8 vi United States v. Turkette, 452 U.S. 576 (1981) Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1 (D.D.C. 2010) Statutes, Rules, and Public Laws 15 U.S.C. 15(a) U.S.C. 1964(c)... 20, U.S.C. 2333(a)... 7, 22, U.S.C. 2339A U.S.C. 2339B... 12, U.S.C. 2339B note U.S.C. 2339C Fed. R. Civ. P. 12(b)(6)... 1 Fed. R. Civ. P. 54(b)... 5 Pub. L (Oct. 29, 1992)... 21, 23 Pub. L (Sept. 13, 1994) Pub. L (Oct. 31, 1994) Pub. L (Apr. 24, 1996) Pub. L (Sept. 23, 1996) Pub. L (Oct. 11, 1996) Pub. L (Oct. 21, 1998) Pub. L (Oct. 26, 2001) Pub. L (June 12, 2002) Pub. L (June 25, 2002)... 23

9 vii Pub. L (Nov. 2, 2002) Pub. L (Dec. 2, 2002) Pub. L (Dec. 17, 2004) Pub. L (Mar. 9, 2006) Pub. L (Sept. 26, 2008) Pub. L (May 7, 2009) Pub. L (Dec. 22, 2009) Pub. L (Jan. 2, 2013) Sup. Ct. R Other Authorities Administrative Office of the U.S. Courts, Statistical Tables for the Federal Judiciary: December 31, Center on Law and Security, New York University School of Law, Terrorist Trial Report Card: September 11, 2001 September 11, 2011 (2011) S. Rep. No (1992)... 25

10

11 The Petition does not present a genuine conflict among the circuits or any other basis for this Court s review of the Second Circuit s decision under Rule 12(b)(6) of the Federal Rules of Civil Procedure. INTRODUCTION Petitioners, numbering in the thousands, include victims and family members of those killed in the September 11, 2001 attacks, and companies claiming to have suffered a loss resulting from the attacks. Petitioners complaints asserted numerous claims and sought trillions of dollars in damages. Respondents Al Rajhi Bank, Saudi American Bank, Dar Al-Maal Al-Islami Trust ( DMI Trust ), Saleh Abdullah Kamel, and Dallah Al Baraka Group LLC (collectively, the 12(b)(6) Respondents ) are five of more than 400 financial institutions, sovereign states, foreign officials, private individuals, and nonprofit organizations sued by Petitioners for allegedly supporting Al Qaeda and the September 11 attacks. The 12(b)(6) Respondents are well-established, prominent financial institutions (and one individual) that have been unfairly targeted in this overreaching litigation. The claims against these five respondents are based on conclusory and temporally indeterminate allegations that were rightly dismissed by the District Court under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Second Circuit affirmed those dismissals. The 12(b)(6) Respondents unequivocally condemn the unconscionable attacks upon the United States on September 11, 2001, and they fully support the efforts of the victims and their families

12 2 to bring to justice those responsible for the attacks. Nonetheless, the 12(b)(6) Respondents categorically reject Petitioners unfounded and irresponsible claims that the 12(b)(6) Respondents supported Al Qaeda or the September 11 attacks. In over a decade of litigation, multiple judges have uniformly held that Petitioners have failed to allege sufficient facts to state a claim under the Anti-Terrorism Act ( ATA ) or otherwise against the 12(b)(6) Respondents for support of Al Qaeda or the September 11 attacks. The decision below affirming the dismissal of claims against the 12(b)(6) Respondents is faithful to the decisions of this Court and is consistent with the decision of the only other court of appeals to render an opinion on these issues, the Seventh Circuit in Boim v. Holy Land Foundation for Relief and Development ( Boim III ), 549 F.3d 685 (7th Cir. 2008) (en banc), cert. denied, 558 U.S. 981 (2009). Petitioners disagreement with the Second Circuit s application of well-settled principles of statutory construction to the ATA is not a basis for this Court s review. Moreover, this case would be an exceptionally poor vehicle to review the legal issues presented here: Petitioners conclusory allegations against the 12(b)(6) Respondents fall short under any legal standard. This Court s review is therefore not warranted.

13 3 STATEMENT OF THE CASE A. District Court Proceedings Beginning in August 2002, Petitioners (Plaintiffs below) filed some thirteen actions in the district courts. The Judicial Panel on Multidistrict Litigation transferred the lawsuits to the U.S. District Court for the Southern District of New York for coordinated and consolidated pre-trial proceedings. Plaintiffs filed dozens of complaints and amended complaints in addition to numerous more definite statements and RICO statements. These thousands of pages of pleadings contained only the barest, most conclusory often contradictory allegations against the 12(b)(6) Respondents. In January 2005, November 2006, and December 2006, the District Court (then the Honorable Richard C. Casey) issued a series of orders dismissing the claims against Al Rajhi Bank, Saudi American Bank, and Saleh Abdullah Kamel under the then-prevailing standard of Conley v. Gibson, 355 U.S. 41 (1957), as opposed to the more recent standard articulated by Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). With respect to Al Rajhi Bank, Judge Casey held: Even with the opportunity to clarify their claims against Al Rajhi Bank, the Burnett Plaintiffs do not offer facts to support their conclusions that Al Rajhi Bank had to know that Defendant charities... were supporting terrorism.... Even accepting all the allegations against Al Rajhi Bank as true, Plaintiffs have failed to state a claim that

14 4 would entitle them to relief. Accordingly, Al Rajhi Bank s motion to dismiss the Burnett complaint is granted in its entirety. In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, (S.D.N.Y. 2005); see also Order of Dismissal, In re Terrorist Attacks on Sept. 11, 2001, No. 03-MDL-1570, at 3 (S.D.N.Y. May 5, 2005) (extending dismissal to all remaining cases consolidated before the District Court and stating that the parties agree and the Court finds that the allegations and evidence presented against these Defendants [including Al Rajhi Bank] in the cases still pending against them do not materially differ from the allegations and evidence presented in the cases already dismissed ). Similarly, Judge Casey held that Saudi American Bank is not alleged to have known that anything relating to terrorism was occurring through the services it provided and that the complaint provided Saudi American Bank with no notice of Plaintiffs claims or grounds for relief. In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d at 834; see also In re Terrorist Attacks on Sept. 11, 2001, 462 F. Supp. 2d 561, 564 (S.D.N.Y. 2006) (holding that allegations against Saudi American Bank were nothing more than legal conclusions couched as fact and dismissing claims); In re Terrorist Attacks on Sept. 11, 2001, 471 F. Supp. 2d 444, (S.D.N.Y. 2007) (describing new allegations proffered in Petitioners motion for reconsideration as calculated circumlocution ). Likewise, Judge Casey found that Plaintiffs complaints against Saleh Abdullah Kamel did not contain any factual allegations concerning the

15 5 provision of material support to terrorism (In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d at 836) and that Plaintiffs factual allegations allegedly connecting Mr. Kamel to Al Qaeda were insufficient to state any claim (In re Terrorist Attacks on Sept. 11, 2001, 464 F. Supp. 2d 335, (S.D.N.Y. 2006)). Following Judge Casey s death in March 2007, the consolidated actions were assigned to the Honorable George B. Daniels. In September 2010 Judge Daniels dismissed the claims against DMI Trust, Mr. Kamel, and Dallah Al Baraka Group LLC. With respect to DMI Trust, Judge Daniels held: Mere allegations that defendant provided routine banking services, and of wrongful conduct committed by independent subsidiaries, are insufficient to subject [DMI] Trust to liability in this litigation. Pet. App. 108a. Judge Daniels also held that alleged support provided by an employee of a subsidiary of Dallah Al Baraka Group was too attenuated a connection to hold Dallah Al Baraka Group liable. Id. at 109a 10a. Similarly, he explained that the alleged wrongdoing of Mr. Kamel occurred in the early 1990s before Plaintiffs allege that the United States had even been targeted by Al Qaeda, making the alleged provision of material support too remote from the 9/11 terrorist attacks to establish the requisite causal connection. Id. On July 13, 2011, the District Court issued partial final judgments under Rule 54(b) of the Federal Rules of Civil Procedure from which

16 6 Plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. B. The Second Circuit s Decision The U.S. Court of Appeals for the Second Circuit (Circuit Judge José A. Cabranes, joined by Circuit Judge Reena Raggi and District Judge Jed S. Rakoff of the Southern District of New York, sitting by designation) unanimously affirmed Judge Casey s and Judge Daniels s dismissals of all claims against the 12(b)(6) Respondents. Pet. App. 1a 15a. Three aspects of the decision are relevant here. 1. The Second Circuit held that defendants cannot be liable under the ATA on an aiding-andabetting theory of liability. Id. at 6a 7a. In so holding, the Second Circuit cited both Boim v. Holy Land Foundation for Relief and Development ( Boim III ), 549 F.3d 685 (7th Cir. 2008) (en banc), and the Second Circuit s recently decided opinion in the strikingly similar (Pet. App. 7a) case of Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013). 2. The Second Circuit held as it had in Rothstein and consistent with Supreme Court precedent interpreting the language by reason of in multiple federal statutes that, under the ATA, Plaintiffs were required to allege facts showing that Defendants actions were a proximate cause of Plaintiffs injury. Pet. App. 7a. 3. The Second Circuit held that Plaintiffs factual allegations were not sufficient to satisfy the by reason of statutory causation requirement of

17 7 18 U.S.C. 2333(a). Id. at 7a 10a. As to this aspect of its decision, the Second Circuit concluded: Simply put, plaintiffs do not allege that the Rule 12(b)(6) defendants participated in the September 11, 2001 attacks or that they provided money directly to al Qaeda; nor are there factual allegations that the money allegedly donated by the Rule 12(b)(6) defendants to the purported charities actually was transferred to al Qaeda and aided in the September 11, 2001 attacks. We also are not persuaded that providing routine banking services to organizations and individuals said to be affiliated with al Qaeda as alleged by plaintiffs proximately caused the September 11, 2001 attacks or plaintiffs injuries. The allegations, moreover, against the Rule 12(b)(6) defendants on this score are conclusory, and similar to the allegations rejected in Rothstein. Id. at 8a 9a (internal citations omitted). REASONS FOR DENYING THE PETITION AS TO QUESTION ONE I. The Second Circuit s Holding Rejecting Aiding-and-Abetting Liability Under The ATA Does Not Warrant Review Petitioners seek review of the Second Circuit s unanimous conclusion that the ATA does not provide for aiding-and-abetting liability. Pet That

18 8 ruling does not implicate any circuit conflict and is fully consistent with this Court s precedents. A. There Is No Circuit Conflict Petitioners attempt to manufacture a conflict between the Second and Seventh Circuits where none exists. Id. at Contrary to Petitioners suggestion, both the Second and Seventh Circuits have held that a defendant cannot be liable under the ATA on an aiding-and-abetting theory of liability, and no other circuits have addressed this issue. 1. In Boim III, the Seventh Circuit (en banc) overruled a panel decision and held that the ATA s statutory silence on the subject of secondary liability means there is none; and section 2333(a) authorizes awards of damages to private parties but does not mention aiders and abettors or other secondary actors. 549 F.3d at 689. Strikingly, Petitioners do not address this language from the Boim III decision. Similarly, in Rothstein the Second Circuit stated: We are not persuaded that the district court erred in concluding that plaintiffs had not stated a claim on which relief could be granted against UBS on an aiding-and-abetting theory, because it does not appear to us that Congress intended 2333(a) to permit recovery on such a theory. 708 F.3d at 97. In the decision below, the Second Circuit cited both Boim III and Rothstein in holding that there is no aiding-and-abetting liability under the ATA, and did not identify any conflict with the Seventh Circuit in reaching that conclusion. See Pet. App. 6a 7a. 2. In their attempt to manufacture a circuit split, Petitioners conflate the Seventh Circuit s

19 9 holdings in Boim III on primary liability and aidingand-abetting liability. See Pet. 13. Petitioners incorrectly suggest that because the Seventh Circuit would allow primary liability against certain secondary actors a point unaddressed by the Second Circuit the Seventh Circuit also would allow aiding-and-abetting liability under the ATA. Id. To the contrary, as the Seventh Circuit explained: Primary liability in the form of material support to terrorism has the character of secondary liability. Through a chain of incorporations by reference, Congress has expressly imposed liability on a class of aiders and abettors. Boim III, 549 F.3d at The Seventh Circuit was clear, however, that Section 2333 does not say that someone who assists in an act of international terrorism is liable; that is, it does not mention secondary liability.... Id. at 689 (emphasis added). Yet Petitioners do not even address the Seventh Circuit s clear pronouncement that the statute s silence on secondary (or aiding-and-abetting) liability means there is none. Id. 3. To further obscure the absence of a circuit split, Petitioners reference numerous district court opinions purportedly in conflict with the Second Circuit. See Pet. 12. Those opinions which predate Rothstein do not evidence a circuit split, as, again, the Seventh and Second Circuits are the only two circuits to address the question. Indeed, at least three of those cases remain pending in the district courts and have not been addressed on this issue by courts of appeals. See Estate of Parsons v. Palestinian Auth., No. 07-cv (D.D.C.); In re

20 10 Chiquita Brands Int l, Inc., Alien Tort Statute & S holder Derivative Litig., No , No , No , No (S.D. Fla.); Abecassis v. Wyatt, No. H (S.D. Tex.). In any event, a mere conflict among district courts is not a basis for this Court s review. See Sup. Ct. R Even if this Court ruled that aiding-andabetting liability is available under Section 2333(a), Petitioners claims still would fail because Petitioners do not allege that the 12(b)(6) Respondents knowingly provided substantial assistance to a terrorist organization. See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181 (1994) (describing civil law aiding and abetting as know[ing] that the other s conduct constitutes a breach of duty and giv[ing] substantial assistance or encouragement to the other ); see also Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983) (explaining that civil aiding and abetting liability depends on a showing that, inter alia, the defendant must knowingly and substantially assist the principal violation ). The Second Circuit held, as already noted, that Petitioners allegations of support are conclusory: [P]laintiffs do not allege that the Rule 12(b)(6) defendants participated in the September 11, 2001 attacks or that they provided money directly to al Qaeda; nor are there factual allegations that the money allegedly donated by the Rule 12(b)(6) defendants to the purported charities

21 11 actually was transferred to Al Qaeda and aided in the September 11, 2001 attacks. Pet. App. 8a; see also id. at 8a 9a (holding that Petitioners allegations that 12(b)(6) Respondents provided routine banking services to organizations and individuals alleged to be affiliated with Al Qaeda are conclusory). This Court s review of whether the ATA provides for aiding-and-abetting liability thus would not affect the ultimate outcome of this case. B. The Second Circuit s Decision Is Consistent With Decisions Of This Court Petitioners argue that the Second Circuit s review of the statutory language failed to consider the background common law principles that Congress intended to incorporate. Pet. 14. The Second Circuit, however, faithfully applied this Court s well-established rules of statutory construction regarding statutory silence. See Cent. Bank, 511 U.S. at Both the Second Circuit (in the decision below and in Rothstein) and the Seventh Circuit (in Boim III) followed this Court s decision in Central Bank, that an implicit congressional intent to impose... aiding and abetting liability could not plausibly be inferred from [] statutory silence. Pet. App. 6a 7a (alteration in original) (quoting Cent. Bank, 511 U.S. at 185); see also Rothstein, 708 F.3d at 97 (same); Boim III, 549 F.3d at 689 (same). Contrary to Petitioners argument, Central Bank did not establish[], at most, that in the absence of

22 12 any express cause of action in a statute, a rebuttable presumption against aiding and abetting liability applies. Pet. 15 (emphasis in original). This Court in Central Bank expressly stated: Congress has not enacted a general civil aiding and abetting statute.... Thus, 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. 511 U.S. at 182. Instead, Congress has taken a statute-by-statute approach to civil aiding and abetting liability. Id.; see also Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, (2008) (reaffirming Central Bank and repeating that the earlier decision had not been limited to private suits under section 10(b) of the Securities Exchange Act) (cited in Boim III, 549 F.3d at 689). The Seventh Circuit in Boim III also rejected Petitioners argument. See 549 F.3d at 689 (refusing to distinguish[] Central Bank of Denver as having involved an implied private right of action ). Boim III, Rothstein, and the decision below correctly applied the same reasoning to the ATA: Congress enacted Section 2333(a) under which a person may sue and recover damages from a private defendant for the defendant s violation of the statutory norms set forth in the criminal statutes incorporated by reference, e.g., Sections 2339A, 2339B, and 2339C. Therefore, there is no general presumption that the plaintiff may also sue aiders and abettors, and Congress has not provided expressly for such liability in the ATA. See Cent. Bank, 511 U.S. at 184 ( Aiding and abetting is a

23 13 method by which courts create secondary liability in persons other than the violator of the statute. The fact that Congress chose to impose some forms of secondary liability, but not others, indicates a deliberate congressional choice with which the courts should not interfere. ) (internal quotation and citation omitted); accord Rothstein, 708 F.3d at 98 ( We doubt that Congress, having included in the ATA several express provisions with respect to aiding and abetting in connection with the criminal provisions, can have intended 2333 to authorize civil liability for aiding and abetting through its silence. ). Because the conclusions of the court below properly follow this Court s precedents, review by this Court is unnecessary. 2. Petitioners reliance (see Pet. 14) on Molzof v. United States, 502 U.S. 301, (1992), in which this Court dealt with the interpretation of a legal term of art that has a widely accepted common-law meaning, in no way undermines the Second and Seventh Circuits proper reliance on this Court s decision in Central Bank. Specifically, Molzof dealt with the proper interpretation and application of an express term, i.e., punitive damages, in the Federal Tort Claims Act. Id. at 303, In contrast, here there is no express term or term[] of art in which are accumulated the legal tradition and meaning of centuries of practice. Id. at 307 (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). Rather, as both the Second and Seventh Circuits note, there is statutory silence and the imposition of liability cannot be inferred from such silence. Pet. App. 6a 7a. Thus, the reasoning in Molzof is inapplicable.

24 14 C. The Position Of The United States In Other Cases Is Not A Basis For Review Petitioners urge review on the basis that the Second Circuit s decision conflicts with the position of the United States as expressed in other lowercourt cases. Pet. 14. Review by this Court is not warranted merely because in the past the United States may have expressed views in other cases. As outlined above, both the Seventh and Second Circuits faithfully applied this Court s ruling in Central Bank such that there is no disagreement between the courts of appeals on the issue of aidingand-abetting liability under the ATA. Views of the United States as expressed in other cases that may be inconsistent with these precedents do not warrant this Court s review. Moreover, of the three Statements of Interest that the Petitioners cite (see id.), two were filed in the Boim cases in which the Seventh Circuit held that there is no aiding-and-abetting liability under the ATA. The third Statement of Interest was filed in a Fifth Circuit case regarding criminal forfeiture of assets involved in a money laundering offense. That Statement does not address the issue of aidingand-abetting liability under the ATA and merely cites in passing to the panel decision overturned by the Seventh Circuit (en banc) in Boim III. II. The Second Circuit s Holding Requiring Proximate Causation Under The ATA Does Not Warrant Review Petitioners seek review of the Second Circuit s holding that civil liability under the ATA requires

25 15 proximate causation. Pet The Second Circuit s ruling, however, does not implicate any circuit conflict and is fully consonant with this Court s precedents regarding statutory construction. It does not warrant review. A. There Is No Circuit Conflict Contrary to Petitioners assertion (id. at 16 17), there is no conflict between the Second Circuit s unanimous decision below and the Seventh Circuit s decision in Boim III the only other court of appeals that has addressed the ATA s causation requirement. 1. The Second Circuit, in the decision below and in Rothstein, did not identify any split with the Seventh Circuit s decision in Boim III regarding the requirement to show proximate cause; indeed, as noted above, the Second Circuit cited Boim III in both the decision below and in Rothstein. 2. Petitioners incorrectly assert that the Seventh Circuit in Boim III held that, in stating an ATA claim, plaintiffs are not required to prove but for causation and need not establish proximate causation. Pet. 16 (quoting Boim III, 549 F.3d at 696). The cited passage of Boim III does not address proximate causation at all indeed, the term appears nowhere in the majority opinion. In fact, the Seventh Circuit expressly declined to decide whether temporal remoteness might at some point cut off liability[.] Boim III, 549 F.3d at 700. And the cited passage does not state that ATA plaintiffs are categorically relieved of proving but for causation. Instead, the passage merely notes one hypothetical scenario (the multiple-fire case ) in which courts

26 16 traditionally have dispensed with that requirement. Furthermore, the Seventh Circuit recognized that [i]t is black letter law that tort liability requires proof of causation (id. at 695) and held that there was causation when a defendant gave to a terror organization knowing what that organization does. Id. at 691 ( [A] donor to terrorism, to be liable under section 2333, must have known that the money would be used in preparation for or in carrying out the killing or attempted killing of, conspiring to kill, or inflicting bodily injury on, an American citizen abroad. ); see also id. at 698 ( [I]f you give money to an organization that you know to be engaged in terrorism, the fact that you earmark it for the organization s nonterrorist activities does not get you off the liability hook. ). Moreover, Petitioners point only to dicta in the Seventh Circuit s lengthy discussion of various multi-tortfeasor cases to support their contention that plaintiffs need not establish proximate causation. See Pet (citing Boim III, 549 F.3d at 696 & 697). These selective quotations from cases not involving the ATA are not the Seventh Circuit s holdings with regard to the standard of causation required under the ATA. Indeed, at least three district courts relying on Boim III (prior to the Second Circuit s decisions below and in Rothstein) concluded that Boim III required a showing of proximate causation under the ATA. See, e.g., In re Chiquita Brands Int l, Inc. Alien Tort Statute & S holder Derivative Litig., 690 F. Supp. 2d 1296, (S.D. Fla. 2010) (collecting cases, including Boim III); Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 50, 53 (D.D.C. 2010) ( To satisfy the

27 17 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. ) (citing, inter alia, Boim III, 549 F.3d at ); Abecassis v. Wyatt, 785 F. Supp. 2d 614, 634 (S.D. Tex. 2011) ( In re Chiquita Brands concluded that proximate cause could be sufficient and that Boim III provided an example of proximate causation. ) (citing In re Chiquita Brands, 690 F. Supp. 2d at ). 3. Petitioners also incorrectly assert a conflict between the Second and Seventh Circuits regarding whether contributions through a front group can give rise to ATA liability. Pet. 16, 18. The Second Circuit did not hold that the use of intermediaries broke the chain of causation. Rather, the Second Circuit stated only that [w]e also are not persuaded that providing routine banking services to organizations and individuals said to be affiliated with al Qaeda as alleged by plaintiffs proximately caused the September 11, 2001 attacks or plaintiffs injuries. Pet. App. 8a (emphasis added). Similarly, the Second Circuit, contrary to Petitioners argument (see Pet. 13), simply did not address much less rule in conflict with the holding of the Seventh Circuit that provision of material support to a terrorist organization in violation of the ATA criminal statutes could constitute an act of international terrorism potentially giving rise to liability under Section 2333(a). Boim III, 549 F.3d at 690.

28 18 4. This case is a poor vehicle to review the causation standard required by the ATA. Even if the Seventh Circuit articulated a lower or more relaxed standard of causation under the ATA, the claims against the 12(b)(6) Respondents still fail under that standard. The Seventh Circuit stated: anyone who provides material support to [a terrorist organization], knowing the organization s character, is punishable (provided he is enchained by the chain of statutory incorporations necessary to impose liability under section 2333)[.] Boim III, 549 F.3d at 700 (emphasis omitted). Yet Petitioners allegations against the 12(b)(6) Respondents here are insufficient to show material support to a terrorist organization or knowledge of that organization s character. The Second Circuit held that Petitioners do not allege that the 12(b)(6) Respondents provided money directly to al Qaeda; nor are there factual allegations that the money allegedly donated by the Rule 12(b)(6) defendants to the purported charities was actually transferred to al Qaeda.... Pet. App. 8a. The Second Circuit further concluded that the Petitioners allegations, moreover, against the Rule 12(b)(6) defendants on this score are conclusory... and similar to the allegations rejected in Rothstein. Id. at 9a (internal citations omitted). Furthermore, the District Court s orders, which were affirmed by the Second Circuit, held that Petitioners allegations of knowledge were conclusory and unsupported by factual allegations. See In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d at 833 (holding allegations of knowledge conclusory

29 19 with respect to Al Rajhi Bank); In re Terrorist Attacks on Sept. 11, 2001, 462 F. Supp. 2d at 565 (same with respect to Saudi American Bank); In re Terrorist Attacks on Sept. 11, 2001, 464 F. Supp. 2d at 340 (same with respect to Saleh Abdullah Kamel); see also Pet. App. 110a (holding with respect to Saleh Abdullah Kamel and Dallah Al Baraka Group LLC: The United States had not even been targeted by al Qaeda, when the claimed wrongdoing occurred. Thus, the alleged provision of material support is too remote from the 9/11 terrorist attacks to establish the requisite causal connection ); id. at 108a (holding with respect to Dar Al-Maal Al-Islami Trust, [m]ere allegations that [a] defendant provided routine banking services, and of wrongful conduct committed by independent subsidiaries, are insufficient ). It is undisputed that mere conclusions must be disregarded when evaluating a motion to dismiss for failure to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see also Rothstein, 708 F.3d at 97 (holding that conclusory allegations [] do not meet Twombly s plausibility standard with the respect to the need for a proximate causal relationship between [the alleged acts of the defendant] and the terrorist attacks... that injured plaintiffs ). Further, it is well settled that this Court reviews judgments, not statements in opinions. California v. Rooney, 483 U.S. 307, 311 (1987). Because further review in this case would not alter its outcome, regardless of the causation standard, review is unwarranted.

30 20 B. The Second Circuit s Decision Is Consistent With Decisions Of This Court 1. The Second Circuit faithfully followed this Court s instructions on statutory construction, applied those instructions to the by reason of language in the ATA, and held that the causation standard required by that language is the same as found in other federal statutes using that language over the last 100 years namely proximate cause. As this Court has explained: The language of the statute... [is] the most reliable evidence of its intent. United States v. Turkette, 452 U.S. 576, 593 (1981); see also Crosby v. Nat l Foreign Trade Council, 530 U.S. 363, (2000) (Scalia, J., concurring in the judgment) ( The only reliable indication of [congressional] intent the only thing we know for sure can be attributed to all of them is the words of the bill that they voted to make law. ) (emphasis in original). Accordingly, the Second Circuit s holding focused on the language of Section 2333(a) providing that the only compensable injuries are those suffered by reason of an act of international terrorism. Pet. App. 7a. Relying on Rothstein, the Second Circuit concluded that this Court s interpretation of the well-understood meaning of the phrase by reason of across multiple statutes compelled application of the same interpretation to the ATA. Id. As the Second Circuit held in Rothstein: In [Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992)], interpreting the RICO provision [18 U.S.C. 1964(c)], the

31 21 Court held that the by reason of language required a showing of proximate cause, saying [w]e may fairly credit the 91st Congress, which enacted RICO, with knowing the interpretation federal courts had given the words earlier Congresses had used first in 7 of the Sherman Act, and later in the Clayton Act s It used the same words, and we can only assume it intended them to have the same meaning that courts had already given them. 503 U.S. at 268, 112 S. Ct We reach the same conclusion here with respect to the ATA. Rothstein, 708 F.3d at 95 (emphasis added) (third and fourth alterations in original). This Court decided Holmes seven months before Congress enacted the ATA civil liability provision in Section 2333(a). See Holmes, 503 U.S. 258 (decided March 24, 1992); Pub. L , title X, 1003(a)(4) (Oct. 29, 1992) (adding the ATA civil remedy, 2333(a)). In doing so, this Court provided clear guidance to Congress that the by reason of language mandates proximate causation, which was already well-established under the Sherman and Clayton Acts. See Holmes, 503 U.S. at 268. Petitioners incorrectly argue that the Second Circuit erred in relying on this Court s decision in Holmes. Pet n.9 (asserting, without support or citation, that Congress did not model the ATA on the Clayton Act ). To the contrary, in relying on Holmes and applying its reasoning to the ATA, the Second Circuit faithfully and correctly applied this Court s well-settled instructions regarding statutory construction: When administrative and judicial

32 22 interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well. Bragdon v. Abbott, 524 U.S. 624, 645 (1998); cf. Molzof, 502 U.S. at 302 (holding that [w]here Congress borrows terms of art, absence of contrary direction may be taken as satisfaction with widely accepted definitions ) (quotation marks and citation omitted). Like the provisions compared in Bragdon (see 524 U.S. at 645), the ATA civil liability provision is drawn almost verbatim from the RICO civil liability provision and Section 4 of the Clayton Act. Compare 18 U.S.C. 2333(a) ( 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. ) (emphasis added), with 18 U.S.C. 1964(c) ( Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney s fee.... ) (emphasis added), and 15 U.S.C. 15(a) ( [A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent,

33 23 without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney s fee. ) (emphasis added). Moreover, this Court s rulings since Holmes have confirmed that the by reason of standard requires proximate cause. See, e.g., Hemi Group, LLC v. City of New York, 559 U.S. 1, 9 (2010) (holding that proximate cause thus requires some direct relation between the injury asserted and the injurious conduct alleged. A link that is too remote, purely contingent, or indirect is insufficient ) (quoting Holmes, 503 U.S. at 268, 271, 274) (internal citations omitted); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006) (The central question to proximate causation is whether the alleged violation led directly to the plaintiff s injuries. ). Congress has amended the ATA eighteen times subsequent to Holmes including one amendment to Section 2333 itself without modifying the causation standard. 1 1 Pub. L (Oct. 29, 1992); Pub. L (Sept. 13, 1994); Pub. L (Oct. 31, 1994) (amending 2333(b)); Pub. L (Apr. 24, 1996); Pub. L (Sept. 23, 1996); Pub. L (Oct. 11, 1996); Pub. L (Oct. 21, 1998); Pub. L (Oct. 26, 2001); Pub. L (June 12, 2002); Pub. L (June 25, 2002); Pub. L (Nov. 2, 2002); Pub. L (Dec. 2, 2002); Pub. L (Dec. 17, 2004); Pub. L (Mar. 9, 2006); Pub. L (Sept. 26, 2008); Pub. L (May 7, 2009); Pub. L (Dec. 22, 2009); Pub. L (Jan. 2, 2013).

34 24 2. The Second Circuit in Rothstein, relied upon by the decision below, further concluded that the statutory scheme of the ATA did not evidence congressional intent to require less than adequate allegations of proximate cause. Pet. App. 7a; Rothstein, 708 F.3d at 96 (holding that the statutory scheme does not suggest that Congress intended a presumption of proximate causation to be read into 2333(a) with respect to a defendant who had not been found guilty of a terrorism offense in a criminal proceeding ). As this Court held in Schindler Elevator Corp. v U.S. ex rel. Kirk, this ends the inquiry. 131 S. Ct. 1885, 1893 (2011) ( In interpreting a statute, [o]ur inquiry must cease if the statutory language is unambiguous,... and the statutory scheme is coherent and consistent. ) (citations omitted). Petitioners fail to mention the causation standard set forth in the by reason of language of the statutory text, much less address its well-settled meaning. Petitioners instead argue for review largely based on their interpretation of Congress s legislative intent in enacting the ATA. Pet This is improper. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) ( Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose ) (internal quotation marks omitted). Further, the Congressional findings Petitioners cite to in support of their argument that Congress clearly rejected a strict proximate causation requirement (Pet. 19 (quoting 18 U.S.C. 2339B note)) are, in fact, Congressional findings relating to

35 25 a criminal statute, 18 U.S.C. 2339B, not findings concerning the causation standard under the civil liability provision of Section 2333(a). Requiring proximate causation is fully consistent with the expressed legislative intent of Section 2333(a). As the Second Circuit concluded: Although Congress clearly intended to create impediments to terrorism by the imposition of liability at any point along the causal chain of terrorism, S. Rep. No , at 22 (1992), the by reason of language of the statute restricts the imposition of such liability to situations where plaintiffs plausibly allege that defendants[ ] actions proximately caused their injuries, Rothstein, 708 F.3d at 95 ( [H]ad [Congress] intended to allow recovery upon a showing lower than proximate cause, we think it either would have so stated expressly or would at least have chosen language that had not commonly been interpreted to require proximate cause for the prior 100 years. ). Pet. App. 9a 10a (emphasis added). In short, the Second Circuit held that Congress s legislative intent in enacting the civil liability provision was to impos[e] [] liability at any point along the causal chain of terrorism, (S. Rep. No , at 22 (1992) (emphasis added)) defined by the chosen statutory language as reaching to the extent of any proximate cause. See Pet. App. 9a 10a. 3. Petitioners citation (see Pet. 18) to Blue Shield of Virginia v. McCready, 457 U.S. 465, 478 n.13 (1982), in asserting that legislative intent is

36 26 the controlling consideration in determining the proper standard of causation reinforces the Second Circuit s holding that the ATA requires proximate causation. McCready analyzed standing under Section 4 of the Clayton Act which, like the ATA, employs the by reason of causation language and recognized that despite the broad wording of 4 there is a point beyond which the wrongdoer should not be held liable. Id. at 477 (emphasis added) (quoting Ill. Brick Co. v. Illinois, 431 U.S. 720, 760 (1977) (Brennan, J., dissenting)). The McCready Court held: In the absence of direct guidance from Congress, and faced with the claim that a particular injury is too remote from the alleged violation to warrant 4 standing, the courts are thus forced to resort to an analysis no less elusive than that employed traditionally by courts at common law with respect to the matter of proximate cause. Id. at 477 (emphasis added). 4. Petitioners also incorrectly contend that the Second Circuit s decision conflicts with this Court s ruling in Holder v. Humanitarian Law Project, 130 S. Ct (2010). Pet Humanitarian Law Project simply did not address the standard of causation required for civil liability under Section 2333(a); it addressed the extent of criminal liability under Section 2339B. Nor does Humanitarian Law Project establish strict civil liability for the provision of any material support, as Petitioners suggest. Id. at 20. Rather, Humanitarian Law Project clarified that [t]he [criminal] statute reaches only material support

37 27 coordinated with or under the direction of a designated foreign terrorist organization. 130 S. Ct. at C. The Second Circuit s Decision Will Not Undermine Anti-Terrorism Efforts Petitioners argue that this case presents an issue of fundamental importance because any robust causation requirement makes the ATA practically a dead letter. Pet Petitioners hyperbole grossly overstates the implications of the Second Circuit s opinion. The Second Circuit s decision below sustains the dismissal for failure to state a claim against only the five 12(b)(6) Respondents here. In doing so, it simply prevents cases going forward against defendants as to whom there are no genuine factual allegations of wrongdoing. Petitioners case is proceeding against other defendants as to which the District Court found that Petitioners had stated a claim. See, e.g., Pet. App. 115a & 184a (denying Rule 12(b)(6) motions made by various defendants). Future claims under the civil liability provisions of the ATA can be sustained in cases in which the pleadings properly identify, by non-conclusory, factual allegations, conduct of defendants that proximately caused a terrorist act resulting in plaintiffs injuries. Further, the Second Circuit s decision applies only to the civil liability provisions of the ATA. It does not affect the extensive criminal liability provisions of the statute. Far from a dead letter, the Government is relying increasingly on the criminal

38 28 provisions of the ATA as key tools in the fight against terror. During the years 2008 through 2012, the Government prosecuted an average of 57 terrorism cases per year. See Administrative Office of the U.S. Courts, Statistical Tables for the Federal Judiciary: December 31, 2012, Table D-2, available at StatisticalTablesForTheFederalJudiciary/2012/dece mber/d02ddec12.pdf. Prosecutions involving charges of violating a material support provision of the ATA increased from 11.6% of cases brought in 2007 to 87.5% of cases through September 11, See Center on Law and Security, New York University School of Law, Terrorist Trial Report Card: September 11, 2001 September 11, 2011 (2011), at 7 n.1, (examining the 578 prosecutions related to jihadist terror or national security threats from September 11, 2001 to September 11, 2011) available at m-trial-report-card. As the Center on Law and Security concludes, Over time, the strategy of federal terrorism prosecutions has become more confident and focused[.] Id. at 5. The ATA remains a viable tool to deter material support of terrorism. The Second Circuit s decision below does not alter that. This Court s review is unwarranted.

39 29 CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be denied. Respectfully submitted, CHRISTOPHER M. CURRAN Counsel of Record NICOLE ERB MATTHEW S. LEDDICOTTE WHITE & CASE LLP th Street, N.W. Washington, D.C (202) ccurran@whitecase.com Counsel for Respondent Al Rajhi Bank HENRY WEISBURG BRIAN H. POLOVOY SHEARMAN & STERLING LLP 599 Lexington Avenue New York, New York (212) Counsel for Respondent Saudi American Bank