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2nd Circuit Rules in September 11 Litigation

By Robyn Hagan Cain on April 16, 2013 | Last updated on March 21, 2019

More than 11 years after the September 11 attacks, victims and survivors are still trying to find a way to hold those affiliated with the guilty parties accountable.

On Tuesday, the Second Circuit Court of Appeals issued a trio of opinions detailing the deficiencies in some of those claims.

The victims in the In re Terrorist Attacks on September 11, 2001 appeals asserted claims under the Anti-Terrorism Act, the Alien Tort Statute, and the Torture Victim Protection Act -- as well as various common law tort claims -- against purported charities, financial institutions, and other individuals who allegedly provided support and resources to Osama Bin Laden and al Qaeda.

The district court granted judgment in favor of 76 defendants on various grounds, including lack of personal jurisdiction, failure to state a claim, and immunity pursuant to the Foreign Sovereign Immunities Act (FSIA).

Asat Trust Reg., et al.

The Asat Trust opinion addresses only the claims dismissed for lack of personal jurisdiction.

The Second Circuit agreed with the district court that it lacked personal jurisdiction over most of the defendants pursuant to its decision in In re Terrorist Attacks III because the plaintiffs failed to plead facts sufficient to show that most of the defendants expressly aimed their allegedly tortious conduct at the U.S. The appellate court, however, partially remanded the case, finding that jurisdictional discovery was warranted with regard to 12 of the defendants.

Saudi Joint Relief Committee and the Saudi Red Crescent Society

This opinion involves only two defendants that were dismissed from this action pursuant to the FSIA.

Here, the question was whether the actions of the SJRC and SRC satisfied the requirements of the noncommercial tort exception, which provides an exception to FSIA immunity when money damages are sought against a foreign state or its instrumentalities personal injuries or losses in the U.S. "caused by the tortious act or omission" of a foreign state or of any official or employee of that state while acting within the scope of his office or employment.

The alleged "torts" committed by the SJRC and the SRC occurred outside the United States, so the appellate court agreed that the noncommercial tort exception didn't apply.

Al Rajhi Bank, et al.

This opinion involves the defendants who prevailed on a Rule 12(b)(6) argument. The appellate court, again, affirmed, noting that the ATA claims were properly dismissed in light of Rothstein v. UBS AG because plaintiffs cannot allege aiding-and-abetting claims under the ATA, and didn't make the necessary allegation under the ATA that the actions of the Rule 12(b)(6) defendants proximately caused their injuries.

The appellate court also reasoned that the ATS claims were without merit because there's no universal norm against "terrorism" under customary international law, as is required by the ATS, and the TVPA claims failed in light of Mohamad v. Palestinian Authority (holding TVPA only imposes liability on natural persons). Finally, the court ruled that the plaintiffs failed to allege that the Rule 12(b)(6) defendants owed them a duty or that they proximately caused their injuries.

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