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This column generally focuses on federal-state forum-shopping issues: Should mass tort cases be litigated in state or federal courts? Should class actions be litigated in state and federal courts? How are the federal courts dealing with the Class Action Fairness Act? The jurisdictional rules can be mind-boggling. Lawyers seeking the best forum for litigating their clients’ claims must bob and weave as the statutes, rules and court opinions change the litigation landscape. Increasingly, attention needs to be paid to a different form of forum shopping: Cases in which generally foreign plaintiffs seek to obtain relief for human rights violations from U.S. companies or their affiliates for injuries sustained in foreign countries (“human rights cases”) and cases in which U.S. and foreign citizens seek redress for injuries resulting from terrorist activity (“terrorism cases”). In each type of case, the deepest and most accessible pocket will be a corporate entity, even though the company may not have directly caused injury. Recently, courts have been exploring the availability of aiding-and-abetting liability as a vehicle for attempting to reach those pockets. This column will focus on how the issue can arise in the terrorism context, and the next will focus on human rights cases. Sept. 11 created a vast range of personal injury plaintiffs The terrorist attacks on Sept. 11, 2001, created a vast range of personal injury plaintiffs: people killed in the four jet crashes, people working at or visiting the World Trade Center and the Pentagon, police officers, firefighters and other “first responder” rescue workers who were injured or died as a result of the attacks. Additionally, many of the workers working on cleanup of the site in the aftermath of the attacks developed the “WTC cough” and a host of other health problems. The September 11th Victims Compensation Fund, set up by Congress in the wake of Sept. 11, provided payments to many of these plaintiffs. But, Sept. 11 was not the first terrorist attack. As we all know, both before and since Sept. 11, the use of suicide bombs and other methods of terror in various foreign countries has resulted in the deaths and injuries of thousands of people, mostly citizens of foreign states. During the past few decades, U.S. and foreign citizens have filed suits in United States federal courts seeking compensation. Who do these plaintiffs sue and will these cases remain in federal court? There are the obvious defendants: the terrorists who carried out the attacks, the entities that planned and ordered the attacks, and the states that harbor non-governmental terrorist organizations. For various reasons, it is difficult to obtain monetary relief from such defendants. Recently, plaintiffs have started to sue private entities � banks, for example � that they claim are liable for personal injuries. There are a host of difficulties in suing such defendants. A current key issue is whether “aiding and abetting” theories can be used against such defendants. This column will discuss Almong v. Arab Bank PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007), which approved of the aiding-and-abetting theory. First, a review of the jurisdictional statutes: There are several avenues available to victims of terrorism, both U.S. citizens and foreign citizens, for seeking damages for personal injuries suffered either in the United States or in other countries. The Alien Tort Claims Act (ATCA), enacted in the first Judiciary Act of 1789, provides for federal subject-matter jurisdiction over civil actions “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. 1350 (1994). The ATCA was little used for almost 200 years after its enactment until the 2d U.S. Circuit Court of Appeals’s landmark case, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). That court held that the federal courts had jurisdiction over a suit against a former Paraguayan police officer for the alleged torture and murder of the plaintiff’s deceased Paraguayan relative. According to the court, the customary international law prohibits official torture, and � 1350 provides subject-matter jurisdiction for tort claims based on violations of that law. Filartiga thus opened the U.S. courts’ doors for suits by aliens against aliens for violations of international law. Not all courts were as receptive as the Filartiga court to the use of U.S. courts in cases where the claims arise in a foreign country. In another important case, Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), the U.S. Circuit Court of Appeals for the District of Columbia held that the ATCA did not provide federal subject-matter jurisdiction over a case brought by citizens of Israel, the United States and the Netherlands against the Palestine Liberation Army and Libya for allegedly murdering a number of civilians during a terrorist attack in Israel. Although the three-member panel so held on different grounds, they were unanimous that the Alien Tort Claims Act could not reach such claims. Partially in response, Congress enacted the Torture Victim Protection Act (TVPA). Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. 1350 (1993) (note)). TVPA provides a federal cause of action in favor of any persons tortured or extrajudicially killed, and therefore jurisdiction under � 1350, against any individuals acting under the actual or apparent authority or color of law of any foreign state. Directly combating the growing problem of terrorism, Congress enacted the Anti-Terrorism Act (ATA) in 1990. 18 U.S.C. 2331-39. Primarily a criminal statute, the ATA also provides a potent civil remedy tool. Section 2333 of the ATA allows U.S. nationals injured or killed as a result of an international terrorist act to sue for treble damages and attorney fees. International terrorism was defined as acts that occur primarily outside of the United States. The Patriot Act of 2001 expanded the definition of the types of terrorism that would give rise to a claim under � 2333 to include acts of domestic terrorism as well. To the extent that victims of terrorism seek a remedy from sovereign nations listed as a sponsor of terrorism, the Foreign Sovereign Immunities Act generally provides an exception to the assertion of sovereign immunity in cases against a foreign sovereign for personal injuries caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act. When the � 1605 exception is satisfied, the federal courts will have jurisdiction over the foreign sovereign pursuant to 28 U.S.C. 1330. More than 1,600 U.S. and foreign plaintiffs brought personal injury claims against the Arab Bank PLC, for knowingly providing banking and administrative services to various terrorist organizations that sponsored systematic suicide attacks and others acts of terrorism against civilians in Israel. Among the key allegations were that the Arab Bank was aware of the organizations’ plans to destroy Israel through a widespread terror campaign, and that the Arab Bank “knowingly and intentionally, both directly and indirectly, aided and abetted and intentionally facilitated” the attacks, by, among other things, facilitating the payments of benefits to the families of the suicide bombers. The U.S. nationals sued under the ATA, and the foreign nationals sued under the ATCA. Because the plaintiffs did not plead a violation of a treaty of the United States, the bank moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim on the theories. First, the bank argued that the U.S. plaintiffs did not sufficiently allege claims under the ATA. The court easily dispatched that argument, finding that the plaintiffs had sufficiently alleged that the bank had provided material support to terrorists and terrorist organizations, and had financed terrorism. Such conduct is criminal conduct under the ATA that serve as predicates for civil liability under the ATA. ‘Almong’ court easily dispatches an argument The Almong court also relatively easily dispatched the argument that the foreign plaintiffs’ claims were not violations of the law of nations cognizable under the ATCA. Because the plaintiffs did not allege that the bank violated a treaty of the United States, they had to allege violations of the “law of nations.” Although the Supreme Court ruled that the number of claims cognizable under the ATCA is limited (see Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)), the claims of genocide and terrorist bombings are clearly cognizable under the ATCA as violations of customary international law, as well as numerous specific international conventions, proscribing genocide and the use of bombings against civilians. Because the bank had not directly engaged in the bombings and other acts of terror that resulted in the deaths and injuries, the court then turned to the crucial question of whether the bank could be liable for aiding and abetting such conduct. With respect to the U.S. plaintiffs and their ATA claims, the court, citing Boim v. Quranic Literacy Inst. And Holy Land Found. For Relief and Dev., 291 F.3d 1000 (7th Cir. 2002), and Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), ruled that civil aiding and abetting, as well as conspiracy liability, is available under the ATA. With respect to the ATA, the court looked to various provisions within the genocide and bombing conventions, as well as other international law sources, that point to the availability of aiding-and-abetting liability. For example, the Genocide Convention provides for liability for actors who are complicit in acts of genocide. And, the Bombing Convention provides for liability for anyone who intentionally contributes to the bombing of a public place. Georgene M. Vairo is a professor of law and William M. Rains fellow at Loyola Law School, Los Angeles. She can be reached by e-mail at [email protected]. Vairo is on the Board of Editors of Moore’s Federal Practice, and writes the Moore’s chapters on removal and venue problems.

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