In re: Arab Bank, PLC Alien Tort Statute Litigation
Plaintiffs-Appellants: Michael E. Elsner and John M. Eubanks,
Motley Rice LLC, Mount Pleasant, South Carolina.
Defendants-Appellees: Stephen M. Shapiro, Timothy S. Bishop,
and Chad M. Clamage, Mayer Brown LLP, Chicago, Illinois;
Kevin Walsh, Douglas W. Mateyaschuk, and Steven J. Young, DLA
Piper LLP (U.S.), New York, New York.
Amicus Curiae-The Hashemite Kingdom of Jordan: Neal Kumar
Katyal and Jessica L. Ellsworth, Hogan Lovells U.S. LLP,
Washington, District of Columbia.
ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, JOSÉ
A. CABRANES, ROSEMARY S. POOLER, REENA RAGGI, RICHARD C.
WESLEY, PETER W. HALL, DEBRA ANN LIVINGSTON, GERARD E. LYNCH,
DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY, Circuit Judges. Dennis Jacobs, Circuit
Judge, joined by José A. Cabranes, Reena Raggi, and
Debra Ann Livingston, Circuit Judges, concurs by opinion in
the denial of rehearing en banc. José A. Cabranes,
Circuit Judge, joined by Dennis Jacobs, Reena Raggi, and
Debra Ann Livingston, Circuit Judges, concurs by opinion in
the denial of rehearing en banc. Rosemary S. Pooler, Circuit
Judge, joined by Denny Chin and Susan L. Carney, Circuit
Judges, dissents by opinion from the denial of rehearing en
banc. Denny Chin, Circuit Judge, joined by Susan L. Carney,
Circuit Judge, dissents by opinion from the denial of
rehearing en banc.
disposition of this appeal, an active judge of the Court
requested a poll on whether to rehear the case en banc. A
poll having been conducted and there being no majority
favoring en banc review, rehearing en banc is hereby DENIED.
JACOBS, joined by JOSÉ A. CABRANES, REENA RAGGI, and
DEBRA ANN LIVINGSTON, Circuit Judges, concurring in the
denial of rehearing in banc.
concur in the denial of in banc review of this case;
rehearing would serve no purpose remotely commensurate with
the effort it would entail.
panel opinion grudgingly rejects plaintiffs' claim as
barred by our decision in Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d 111 (2d Cir. 2010) (" Kiobel I"
), which held that customary international law, as enforced
by the Alien Tort Statute (" ATS" ), does not
regulate corporate conduct. The panel opinion goes on to
attack Kiobel I, and says it is constrained unhappily to
follow it. Hence the in banc poll initiated by the panel
the seven other judges who voted against in banc review do
not necessarily endorse Kiobel I (or reach the merits of it),
there is consensus that intervening developments obviate any
need to go in banc.
* * *
2011, this Court rejected in banc review of this issue. See
Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 379,
380 (2d Cir. 2011). The Supreme Court took up the case, but
(after oral argument) required briefing on an alternative
ground: whether the ATS has extraterritorial effect. The
Supreme Court then held that it does not. Kiobel v. Royal
Dutch Petroleum Co., 133 S.Ct. 1659, 1669, 185 L.Ed.2d
671 (2013) (" Kiobel II" ).
the population of cases dismissible under Kiobel I is largely
coextensive with those dismissible under Kiobel II, several
o The principle of Kiobel I has been largely overtaken, and
its importance for outcomes has been sharply eroded. See
Flomo v. Firestone Nat'l Rubber Co., LLC, 643
F.3d 1013, 1025 (7th Cir. 2011) (Posner, J.) (" Deny
extraterritorial application, and the statute would be
superfluous . . . ." ).
o This present appeal was subject to two easy (alternative)
dispositions: affirm on the basis of Kiobel I (without
lamentation) or remand for the district court to consider the
case under Kiobel II. See Kiobel II, 133 S.Ct. at
o There is no reason to consider or reconsider Kiobel I in
banc in this appeal.
* * *
appeal could have been straightforwardly decided under Kiobel
II, which held that the presumption against
extraterritoriality can be displaced only if the "
claims touch[ed] and concern[ed] the territory of the United
States" ; that they must do so with " sufficient
force" ; and that " mere corporate presence"
(for example) is not enough. Id. Kiobel II
emphasizes that this must be a high hurdle, given the danger
of judicial meddling in the affairs of foreign countries:
[T]he danger of unwarranted judicial interference in the
conduct of foreign policy is magnified in the context of the
ATS, because the question is not what Congress has done but
instead what courts may do . . . These concerns, which are
implicated in any case arising under the ATS, are all the
more pressing when the question is whether a cause of action
under the ATS reaches conduct within the territory of another
sovereign . . . The principles underlying the presumption
against extraterritoriality thus constrain courts exercising
their power under the ATS.
Id. at 1664-65.
case, the underlying offense against the law of nations is
terrorism against citizens of Israel by four Palestinian
terrorist groups. Arab Bank, PLC, which is headquartered in
Jordan, is named as defendant because funds allegedly passed
through its branches to other countries for distribution to
only contact with the United States mentioned in the Arab
Bank opinion is that terrorist groups used branches of Arab
Bank in a score of countries (including a single U.S. branch,
in Manhattan) for, among other ordinary transactions, the
conversion of funds from one currency to another. See In
re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d
144, 149-50 (2d Cir. 2015) (" Arab Bank then created
individual bank accounts . . . often routing the transfers
through its New York branch in order to convert Saudi
currency into Israeli currency." ). The New York branch
is not differentiated in any way from Arab Bank's
numerous other branches. This is no more than the " mere
corporate presence" that is insufficient to displace the
presumption against extraterritoriality. Kiobel II,
133 S.Ct. at 1669.
(unlikely) event that plaintiffs could somehow plead around
Kiobel II, they would face a separate formidable barrier: the
mens rea requirement. See Presbyterian Church of Sudan v.
Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009).
As the panel opinion emphasizes, plaintiffs do allege
knowledge. See Arab Bank, 808 F.3d
at 150 (" According to the plaintiffs, Arab Bank
knew that the donations were being collected for
terrorist attacks . . . Again, responsible officials at Arab
Bank purportedly knew that the accounts of these
various organizations and individuals were being used to fund
the suicide bombings and other attacks sponsored by the
terrorist organizations." ) (emphasis added). However,
the standard " for aiding and abetting liability in ATS
actions is purpose rather than knowledge alone."
Presbyterian Church, 582 F.3d at
* * *
thus evident that the Arab Bank panel opinion steered
deliberately into controversy. That impression is confirmed
by the slender pretexts advanced by the panel for refusing to
panel considers it " unwise to decide the difficult and
sensitive issue of whether the clearing of foreign
dollar-denominated payments [in simpler terms, money] through
a branch in New York could, under these circumstances,
displace the presumption against the extraterritorial
application of the ATS . . . ." Arab
Bank, 808 F.3d at 158. But it would have
been simpler to remand for the district court to decide that
easy question (as other circuit courts are doing) than to go
in banc to decide a question that produced dueling opinions
in Kiobel I. It is as though Sisyphus, seeing the hill,
elected to push upward instead of just going around.
panel decision notes that Kiobel II was " not the focus
of either the district court's decision or the briefing
on appeal." Id. But this need not boggle
judicial ingenuity: the panel could have remanded in light of
Kiobel II, or it could have asked for supplemental briefing.
It is not recommended appellate craft to avoid so easy a
disposition and instead strain to revisit Circuit precedent
* * *
circuit split that so worries the Arab Bank panel is
illusory. The panel opinion conjures up a circuit split from
o Two of the decisions pre-date Kiobel II; so those panels
did not have the option of dismissal or remand on the ground
of extraterritoriality. See Flomo,
643 F.3d at 1021 (issued almost two years before Kiobel II);
Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315
(11th Cir. 2008) (issued more than four years before Kiobel
o The rest were decided on the basis of Kiobel II. See
Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1027-28
(9th Cir. 2014) (" We decline to resolve the
extraterritoriality issue, and instead remand to allow the
plaintiffs to amend their complaint in light of Kiobel
II. . . It is common practice to allow plaintiffs to
amend their pleadings to accommodate changes in the law . . .
." ); Doe VIII v. Exxon Mobil
Corp., 527 Fed.Appx. 7 (D.C. Cir. 2013) ("
[I]n light of intervening changes in governing law regarding
the extraterritorial reach of the Alien Tort Statute,
see [Kiobel II], . . . the Alien Tort Statute claims
[are] remanded to the District Court for further
o As to Al Shimari v. CACI Premier Tech., Inc., 758
F.3d 516, 530 (4th Cir. 2014), cited by the Arab Bank panel
as " see also" : the case was decided solely on the
basis of Kiobel II: " [P]laintiffs' ATS claims
'touch and concern' the territory of the United
States with sufficient force to displace the presumption
against extraterritorial application . . . ." .
this is by way of saying that this appeal is insufficiently
important or ...