Kaplan v. Lebanese Canadian Bank

19-3522 Kaplan v. Lebanese Canadian Bank 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2020 5 (Argued: November 19, 2020 Decided: June 9, 2021) 6 Docket No. 19-3522 7 _________________________________________________________ 8 CHAIM KAPLAN, RIVKA KAPLAN, BRIAN ERDSTEIN, KARENE 9 ERDSTEIN, MA'AYAN ERDSTEIN, CHAYIM KUMER, NECHAMA 10 KUMER, LAURIE RAPPEPPORT, MARGALIT RAPPEPORT, 11 THEODORE (TED) GREENBERG, MOREEN GREENBERG, JARED 12 SAUTER, DVORA CHANA KASZEMACHER, CHAYA 13 KASZEMACHER ALKAREIF, AVISHAI REUVANE, ELISHEVA 14 ARON, YAIR MOR, and MIKIMI STEINBERG, 15 Plaintiffs-Appellants, 16 - v. - 17 LEBANESE CANADIAN BANK, SAL, 18 Defendant-Appellee.* * The Clerk of Court is instructed to amend the official caption to conform with the above. 1 Before: LIVINGSTON, Chief Judge, KEARSE and WESLEY, Circuit Judges. 2 Appeal from a November 2019 judgment of the United States District 3 Court for the Southern District of New York, George B. Daniels, Judge, dismissing, for 4 failure to state a claim on which relief can be granted, plaintiffs' second amended 5 complaint (or "SAC") seeking (A) to hold defendant bank liable as a principal under 6 the Antiterrorism Act of 1990 ("ATA"), see 18 U.S.C. §§ 2331(1), 2333(a), for providing 7 banking services to affiliates of Hizbollah, a designated Foreign Terrorist 8 Organization alleged to have injured plaintiffs in a series of terroristic rocket attacks 9 in Israel in July and August 2006; and (B) to hold the bank liable as a coconspirator 10 or aider and abettor of Hizbollah under the Justice Against Sponsors of Terrorism Act 11 ("JASTA"), see 18 U.S.C. § 2333(d)(2). The district court granted defendant's motion 12 to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding that the second amended 13 complaint (A) failed to state a claim under the ATA principally because it lacked 14 plausible factual allegations that the bank itself engaged in acts of terrorism, and 15 (B) failed to state a claim under JASTA because it lacked factual, nonconclusory 16 allegations (1) that the bank had entered into a conspiracy or agreement with 17 Hizbollah to commit acts of terrorism or (2) that the Bank had provided substantial 18 assistance to Hizbollah's terrorist activities and was aware that, in providing the -2- 1 services at issue, it was playing a role in acts of terrorism. See Kaplan v. Lebanese 2 Canadian Bank, SAL, 405 F.Supp.3d 525 (2019). 3 On appeal, plaintiffs seek reversal only of the dismissal of their JASTA 4 aiding-and-abetting claims, contending principally that the district court did not 5 correctly apply the analytical framework set out in Halberstam v. Welch, 705 F.2d 472 6 (D.C. Cir. 1983), specified by Congress as the proper legal framework for assessing 7 such claims, and erred in its findings as to the plausibility of, and the permissible 8 inferences that could be drawn from, SAC allegations of the bank's knowledge that 9 the customers it was assisting were affiliated with Hizbollah and that it was aiding 10 Hizbollah's terrorist activities. Plaintiffs having abandoned their …

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