United States District Court, E.D. New York
MICHAL HONICKMAN for the ESTATE OF HOWARD GOLDSTEIN, et al., Plaintiffs,
BLOM BANK SAL, Defendant.
MEMORANDUM & ORDER
Kiyo A. Matsumoto, United States District Judge
are victims, or the relatives of victims, of attacks
conducted by Hamas, a designated Foreign Terrorist
Organization (“FTO”),  between December 2001 and
August 2003 in Israel and the Palestinian Territories
(“Plaintiffs”). Plaintiffs commenced this action
pursuant to the Anti-Terrorism Act (“ATA”), as
amended by the Justice Against Sponsors of Terrorism Act
(“JASTA”), 18 U.S.C. § 2333(d), to recover
damages from BLOM Bank SAL (“BLOM, ” or
“Defendant”) for allegedly aiding and abetting
Hamas' commission of terrorist acts by providing
financial services to Hamas through three of BLOM's
customers who are alleged to be Hamas affiliates: the Sanabil
Association for Relief and Development
(“Sanabil”), Subul Al-Khair, and the Union of
Good (collectively, BLOM's “Three
Customers”). These organizations are alleged to have
engaged in non-violent conduct in furtherance of Hamas'
moves to dismiss the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, arguing that Plaintiffs
have not plausibly alleged the elements of JASTA
aiding-and-abetting liability as set forth in Halberstam
v. Welch, 705 F.2d 472 (D.C. Cir. 1983), and adopted by
the Second Circuit in Linde v. Arab Bank, PLC, 882
F.3d 314 (2d Cir. 2018). Specifically, Defendant argues that
the complaint does not plausibly allege that BLOM (1) aided
the persons or entity who carried out the attacks which
caused their injuries, (2) was generally aware that, by
providing financial services to the Three Customers, it was
playing a role in Hamas' violent or life-endangering
activities (the “general awareness” element), or
(3) knowingly provided substantial assistance to Hamas (the
“substantial assistance” element).
reasons set forth below, the Court finds that Plaintiffs'
complaint does not plausibly allege the general awareness or
the substantial assistance elements necessary to plead JASTA
aiding-and-abetting liability. Defendant's motion to
dismiss Plaintiffs' complaint pursuant to Rule 12(b)(6)
for failure to state a claim is GRANTED.
are individuals, or the relatives of individuals, who
suffered injuries in one of twelve violent attacks carried
out by Hamas in Israel and the Palestinian Territories
between December 1, 2001 and August 19, 2003. (See
ECF No. 1, Complaint (“Compl.”), ¶ 1.)
Plaintiffs sue Defendant, a major bank headquartered in
Beirut, Lebanon (id. ¶ 504-05), for allegedly
aiding-and-abetting Hamas' commission of terrorist
attacks, like those which caused Plaintiffs' injuries.
Plaintiffs' complaint is dedicated to describing
Hamas' use of a civil infrastructure, which Plaintiffs
call its “da'wa, ” to compete with
other organizations for support in the areas in which it
operates. (See Compl. ¶ 511, n.6.) It appears
that the complaint's focus on Hamas'
da'wa is predicated on Plaintiffs' theory of
liability, that BLOM is liable because it provided financial
services to its Three Customers, all of which are alleged to
be “da'wa institutions in Lebanon tasked
by Hamas to extend [its] reach into [local] Palestinian
refugee camps” through the provision of charitable
services and financial support to the local populations.
(Id. ¶¶ 526, 610-11, 626.)
The Three Customers
BLOM's alleged liability turns principally on its
knowing conduct, and because its alleged provision
of support to Hamas is indirect, the court reviews in detail
Plaintiffs' allegations regarding the relationship
between each of the three BLOM account holders with Hamas,
Hamas' activities, and BLOM's alleged knowledge or
awareness of the relevant facts.
established [the] Sanabil Association for Relief and
Development” in 1994. (Id. ¶ 574.)
Sanabil served as “Hamas' da'wa
headquarters in Lebanon until late 2003.” (Id.
¶ 588.) “Between 1998 and 2001, [Sanabil] received
millions of dollars in support from Hamas' fundraising
network” and “channeled those funds to the
Palestinian refugee camps in Lebanon to build Hamas'
support within that community.” (Id.)
allege that Sanabil is, in sum and substance, an alter ego of
Hamas and, thus, BLOM is liable. As noted above, because
knowledge is an integral component of a claim for civil
aiding-and-abetting liability, the court considers which, if
any, of Plaintiffs' allegations support the position that
BLOM knew of Sanabil's alleged relationship with Hamas or
Sanabil's alleged involvement in Hamas' violent acts
at the time BLOM provided financial services to Sanabil.
Sanabil's Connection to Hamas
do not allege that BLOM knew or was aware of a relationship
between Sanabil and Hamas. Instead, Plaintiffs cite to
several public statements and developments, or facts alleged
to be within the public knowledge, from which Plaintiffs
assert it could be plausibly inferred that BLOM was aware of
a nexus between Sanabil and Hamas. These include:
• The August 22, 2003 designation of Sanabil as a
Specially Designated Global Terrorist
(“SDGT”) by the U.S. Treasury Department and
accompanying press release, which stated that Sanabil
“receives large quantities of funds raised by major
Hamas-affiliated charities . . . and, in turn, provides
funding to Hamas” (id. ¶ 590);
• An August 23, 2003 report published by a Lebanese
newspaper, Al-Saffir, stating that in August 2001,
following an order given by an unspecified Hamas leader,
Sanabil opened offices in Palestinian refugee camps in
Lebanon to “increase its activity” (id.
• Undated “reports” that in 2003, following
a ruling from the Lebanese judiciary, the Sanabil
organization in the town of Sidon closed, which closure was
attributed to Sanabil's links to Hamas (id.
¶ 609), with the only example of such a report being an
August 27, 2004 article published by a Lebanese newspaper,
The Daily Star (id. ¶ 610).
do not allege that BLOM knew of the aforementioned facts.
Moreover, none of the public statements cited in the
complaint was published until after the last attack.
also allege that BLOM's knowledge of a nexus between
Sanabil and Hamas could be inferred from the fact that
Sanabil received payments from organizations later revealed
to be affiliated with Hamas. The following provides a brief
overview of the payments Sanabil received from organizations
with alleged affiliations with Hamas:
• Holy Land Foundation (“HLF”). HLF
was a U.S.-based charitable organization founded in October
1993. (Id. ¶ 555, 560.) BLOM processed roughly
$1 million in payments in 2000 and $350, 000 in 2001 from HLF
to Sanabil through BLOM's New York correspondent
accounts. (Id. ¶¶ 596-99.) The date of the
last payment was September 7, 2001. (Id. ¶
599.) The U.S. Treasury Department designated HLF as an SDGT
on December 4, 2001. (Id. ¶ 567.) BLOM is not
alleged to have processed any transactions from HLF to
Sanabil following HLF's designation as an SDGT.
• KindHearts. Kindhearts was a U.S.-based
charitable organization founded in January 2002.
(Id. ¶ 615.) Sanabil received $250, 000 from
KindHearts between July 2002 and July 2003 (id.
¶ 603). The U.S. Treasury Department first took action
against Kindhearts on February 19, 2006, when it froze the
organization's accounts (id. ¶ 619), well
after the last of the attacks at issue in this action on
August 19, 2003 (id. ¶ 76).
• Al-Aqsa Foundation (“Al-Aqsa”).
Al-Aqsa was a Germany-based charitable organization founded
in July 1991. (Id. ¶ 549.) Sanabil received at
least $50, 000 from Al-Aqsa between April and May 2003.
(Id. ¶ 604.) The U.S. Treasury Department
designated Al-Aqsa an SDGT on May 29, 2003 due to its
connection with Hamas. (Id. ¶ 553-54.) BLOM
processed one transfer from Al-Aqsa to Sanabil the day after
its designation, but Plaintiffs do not allege any later
transfers from Al-Aqsa to Sanabil's account at BLOM.
(Id. ¶ 605.)
one exception, BLOM did not process any payments from the
aforementioned organizations to Sanabil after the U.S.
Treasury Department took action against them, including by
designating two of them as SDGTs.
Sanabil's Connection to Hamas' Violent Acts
do not allege that BLOM knew of a nexus between Sanabil and
Hamas' violent acts, or that Sanabil itself played a role
in Hamas' violent activities. Rather, the allegations in
the complaint suggest that Sanabil engaged in charitable acts
rather than any acts related to terrorism:
• An August 27, 2004 article published by The Daily
Star stated that Sanabil “had sponsored 1, 200
Palestinian families and spent around $800, 000 on orphans
and $55, 000 on needy patients” (id. ¶
• “Records seized from HLF show that Sanabil
regularly distributed small sums in cash from its accounts to
hundreds (if not thousands) of individual dependents in the
Palestinian refugee camps under the categories of
‘Orphan Sponsorships,' ‘Student
Sponsorships,' ‘Needy Sponsorships' and
‘Family Sponsorships'” (id. ¶
• The only invoice attached to Plaintiffs' complaint
which indicates a “purpose” for a payment Sanabil
received from the aforementioned organizations states that it
was for “help concerning orphan children”
(id. Ex. D).
only portion of the complaint connecting Sanabil's funds
to Hamas' activities is Plaintiffs' allegation that
Sanabil operated on Hamas' behalf “in a manner of
an old-style political machine, buying loyalty in periodic
stipends of $40-50 per quarter.” (Id. ¶
612.) But Sanabil is not alleged to have engaged in any
violent acts, either on its own or in conjunction with Hamas.
allege fewer details regarding Subul Al-Khair. Subul Al-Khair
“is a small Hamas institution founded in Beirut,
Lebanon in 1998.” (Id. ¶ 621.) Defendant
maintained an account for Subul Al-Khair at its Rawsheh
branch in Beirut and “deposited [over $500, 000] in
transfers sent by HLF to Subul Al-Khair” between 1999
and 2001. (Id. ¶¶ 623, 625.) Plaintiffs do
not specify the date of the last HLF payment to Subul
Al-Khair in 2001, but there is no allegation that it occurred
after the December 4, 2001 designation of HLF as an SDGT by
the U.S. Treasury Department (id. ¶ 567).
Subul Al-Khair's Connection to Hamas
do not allege that BLOM knew of Subul Al-Khair's nexus to
Hamas, nor do Plaintiffs cite any public statements regarding
Subul Al-Khair's relationship with Hamas. Plaintiffs'
only allegation suggesting that BLOM was aware of a nexus
between Subul Al-Khair and Hamas is that “Subul
al-Khair was identified as an unindicted co-conspirator in
HLF's criminal trial” (id. ¶ 622),
but this trial did not begin until sometime in 2004
(id. ¶ 567), well after the transactions BLOM
processed on behalf of Subul Al-Khair.
Subul Al-Khair's Connection to Hamas' Violent
similarly do not allege that BLOM was aware of a connection
between Subul Al-Khair and Hamas' violent activities, or
that any such nexus existed. The complaint states that
“Subul al-Khair functioned much like Sanabil, but was
more focused on Hamas supporters in the Beirut area.”
(Id. ¶ 624.) Subul Al-Khair “regularly
distributed small sums in cash from its accounts to
individual[s] under the categories of ‘Orphan
Sponsorships' and ‘Student
Sponsorships.'” (Id. ¶ 626.) And,
like Sanabil, Subul Al-Khair “paid small amounts
individually in a manner of an old-style political machine,