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In re Arab Bank, PLC Alien Tort Statute Litigation

United States Court of Appeals, Second Circuit

December 8, 2015

In Re: Arab Bank, PLC Alien Tort Statute Litigation [1]

Argued: December 2, 2014.

As Amended December 17, 2015.

Page 145

The plaintiffs seek compensation for damages allegedly incurred as a result of armed attacks that took place in Israel, the West Bank, and the Gaza Strip between January 1995 and July 2005. They appeal from the dismissal of claims they made under the Alien Tort Statute (the " ATS" ), 28 U.S.C. § 1350, by the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge). The basis for the dismissal was this Court's decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010) (" Kiobel I" ), aff'd on other grounds, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) (" Kiobel II" ), which construed the ATS as not permitting suits against corporate entities. We conclude that Kiobel II did not overrule Kiobel I on the issue of corporate liability under the ATS. We note nonetheless that Kiobel II appears to suggest that the ATS may indeed allow for corporate liability--a reading of the statute that several of our sister circuits have adopted. Even were we to agree with that view, however, as a three-judge panel, we would not be free to overrule the law established by the previous decision of the Kiobel I panel. The order of the district court is therefore.

AFFIRMED.

MICHAEL E. ELSNER (John M. Eubanks, on the brief), Motley Rice LLC, Mount Pleasant, South Carolina, for Plaintiffs-Appellants.

Mark Werbner and Joel Israel, Sayles Werbner, PC, Dallas, Texas, (on the brief), for Plaintiffs-Appellants.

KEVIN WALSH (Douglas W. Mateyaschuk, II, Steven J. Young, on the brief), DLA Piper LLP, New York, New York, for Defendant-Appellee.

Stephen M. Shapiro, Timothy S. Bishop, Chad M. Clamage, Mayer Brown LLP, Chicago, Illinois, (on the brief), for Defendant-Appellee.

Richard L. Herz, EarthRights International, Washington, D.C., for Amici Curiae--Human Rights Organizations.

Tyler R. Giannini, Harvard Law School, International Human Rights Clinic, Cambridge, Massachusetts, for Amici Curiae--Professors of Legal History Barbara Aronstein Black, William R. Casto, Martin S. Flaherty, Nasser Hussain, Stanley N. Katz, John V. Orth, and Anne-Marie Slaughter.

Neal Kumar Katyal and Jessica L. Ellsworth, Hogan Lovells U.S. LLP, Washington, D.C., for Amicus Curiae--The Hashemite Kingdom of Jordan.

Douglas Hallward-Driemeier, Ropes & Gray LLP, Washington, D.C., for Amicus Curiae--Union of Arab Banks.

Jeffrey B. Wall, Sullivan & Cromwell LLP, Washington D.C., for Amicus Curiae--Institute of International Bankers.

Before: Sack, Chin, and Carney, Circuit Judges.

OPINION

Page 146

Sack, Circuit Judge.

The plaintiffs in this case filed five separate lawsuits between 2004 and 2010 in the United States District Court for the Eastern District of New York against the defendant, Arab Bank, PLC. Oran Almog, et

Page 147

al. v. Arab Bank, PLC, No. 04-CV-5564 (E.D.N.Y. filed Dec. 21, 2004)[2]; Gila Afriat-Kurtzer, et al., v. Arab Bank, PLC, No. 05-CV-0388 (E.D.N.Y. filed Jan. 21, 2005)[3]; Joseph Jesner, et al. v. Arab Bank, PLC, No. 06-CV-3869 (E.D.N.Y. filed Aug. 9, 2006); Yaffa Lev, et al. v. Arab Bank, PLC, No. 08-CV-3251 (E.D.N.Y. filed Aug. 11, 2008); Viktoria Agurenko, et al. v. Arab Bank, PLC, No. 10-CV-0626 (E.D.N.Y. filed Feb. 11, 2010).

The plaintiffs are aliens who were injured or captured by terrorists overseas, or family members and estate representatives of those who were injured, captured, or killed. The plaintiffs seek judgments against Arab Bank, PLC -- a bank headquartered in Jordan with branches in various places around the world--for allegedly financing and facilitating the activities of organizations that committed the attacks that caused the plaintiffs' injuries. It is undisputed that, as a PLC,[4] Arab Bank is a corporation for purposes of this appeal.

The plaintiffs allege violations by Arab Bank of the Anti-Terrorism Act (the " ATA" ), 18 U.S.C. § 2333(a) (providing that " [a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States" ), the Alien Tort Statute, 28 U.S.C. § 1350 (the " ATS" )[5] (providing that " [t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States" ), and federal common law.[6] The ATS differs from the ATA in that, among other things, it provides jurisdiction only with respect to suits by " aliens," while the ATA provides jurisdiction only for suits by " national[s] of the United States." [7]

Between 2007 and 2010, the plaintiffs' federal common-law claims were dismissed as redundant and lacking what the district

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court called a " sound basis." [8] On May 24, 2013, the defendant also moved to dismiss the plaintiffs' ATS claims, arguing that the law of this Circuit prohibits ATS suits against corporate entities. In their briefing in the district court, the plaintiffs responded to the defendant's arguments on their merits but also argued, in the alternative, that if the district court granted the defendant's motion, it should also reinstate the plaintiffs' federal common-law claims or permit the plaintiffs to plead related non-federal common-law claims.

On August 23, 2013, the district court issued the following order:

The law of this Circuit is that plaintiffs cannot bring claims against corporations under the ATS. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), aff'd, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). A decision by a panel of the Second Circuit " is binding unless and until it is overruled by the Court en banc or by the Supreme Court." Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011). Because the Supreme Court affirmed [this Circuit's Kiobel decision] on other grounds, the Second Circuit's holding on corporate liability under the ATS remains intact. Nothing in the Supreme Court's affirmance undercuts the authority of the Second Circuit's decision. Plaintiffs' request to reinstate their federal common law claims or, in the alternative, assert non-federal common law claims is denied. The federal common law claims were dismissed not only as redundant, but also because Plaintiffs offered " no sound basis" for them. Almog v. Arab Bank, PLC, 471 F.Supp.2d 257 (E.D.N.Y. 2007). Plaintiffs also offer no sound basis for repackaging these claims under unidentified " non-federal common law" theories.

Jesner v. Arab Bank, 06-CV-3869, Unnumbered Dkt. Entry on Aug. 23, 2013. Soon thereafter, judgments on the pleadings were entered in each of the individual cases as to the ATS claims. The plaintiffs filed timely appeals as to these claims.[9]

On appeal, the plaintiffs argue principally that this Circuit's opinion in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010) (" Kiobel I " ), aff'd on other grounds, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) (" Kiobel II " ), when analyzed in light of the Supreme Court's decision in Kiobel II, is no longer " good law," or at least, does not control this case. The plaintiffs also contend that the facts alleged sufficiently touch and concern the territory of the United States as required under Kiobel II to support jurisdiction, although they request that we remand to the district court for an initial decision on this issue. Finally, and in the alternative,

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the plaintiffs request the opportunity either to reinstate their federal common-law claims or to amend their pleadings in order to ...


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