Jeffrey Siegel v. HSBC North America Holdings, Inc., and HSBC Bank

18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2018
(Argued: March 5, 2019 Decided: August 8, 2019)
Docket No. 18‐2540‐cv
JEFFREY SIEGEL, ADMINISTRATOR OF THE ESTATE OF MOUSTAPHA AKKAD, DECEASED,
AND MOUSTAPHA AKKADʹS HEIRS, SOOHA AKKAD, INDIVIDUALLY, SUSAN GITELSON,
SPECIAL ADMINISTRATOR OF THE ESTATE OF RIMA AKKAD MONLA, DECEASED, AND
RIMA AKKAD MONLAʹS HEIRS, ZIAD MONLA, AND MICHAEL BUTLER,
Plaintiffs‐Appellants,
v.
HSBC NORTH AMERICA HOLDINGS, INC., AND HSBC BANK USA, N.A., HBUS,
Defendants‐Appellees.1
Before: SACK, RAGGI, AND CARNEY, Circuit Judges.
The plaintiffs are victims, or the representatives of victims, of a series of
terrorist attacks on November 9, 2005, in Amman, Jordan. The plaintiffs allege
that the defendants, HSBC North America Holdings, Inc., and HSBC Bank USA,
N.A., aided and abetted the attackers, in violation of the Justice Against Sponsors
1The Clerk of Court is directed to amend the official caption to conform with the
caption above.
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
of Terrorism Act, 18 U.S.C. § 2333(d), by providing banking services to Al Rajhi
Bank, Saudi Arabiaʹs largest commercial bank, which was thought by some to
have ties to al‐Qaeda in Iraq, the terrorist organization responsible for the
November 9 attacks. The district court (Denise L. Cote, Judge) granted the
defendantsʹ motion to dismiss for failure to state a claim, concluding that the
plaintiffs had failed to plausibly allege that the defendants knowingly aided or
abetted the November 9 attacks. We agree. We therefore AFFIRM.
WILLIAM T. GIBBS, Corboy & Demetrio,
Chicago, IL, for Plaintiffs‐Appellants.
ANDREW JOHN PINCUS, Mayer Brown LLP,
Washington, DC (Mark G. Hanchet and
Robert W. Hamburg, Mayer Brown LLP,
New York, NY, on the brief), for Defendants‐
Appellees.
Marc J. Gottridge, Hogan Lovells US LLP,
New York, NY (Lisa J. Fried, Benjamin A.
Fleming, on the brief), filed a brief for The
Institute of International Bankers, et al., as
Amici Curiae.
SACK, Circuit Judge:
The plaintiffs are victims, or representatives of victims, of a series of
terrorist attacks on November 9, 2005, in Amman, Jordan. They sued the
defendants, HSBC Bank USA, N.A. and HSBC North America Holdings, Inc., for
violating the Antiterrorism Act of 1990 (ʺATAʺ), 18 U.S.C. § 2333, as amended by
2
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
the Justice Against State Sponsors of Terrorism Act (ʺJASTAʺ), Pub. L. No. 144‐
222, 130 Stat. 852 (Sept. 28, 2016), by providing financial services to Al Rajhi
Bank, a prominent Saudi bank alleged to have links to terrorist organizations,
including al‐Qaeda in Iraq, the terrorist organization responsible for the
November 9 attacks. The plaintiffs now appeal from a judgment of the United
States District Court for the Southern District of New York (Denise L. Cote, Judge)
dismissing this action for failure to state a claim. The plaintiffs argue that the
defendantsʹ willingness to do business with Al Rajhi Bank despite their
knowledge of its links to terrorism is sufficient to expose the defendants to
aiding‐and‐abetting liability under JASTA. They are wrong. Like the district
court, we conclude that because the plaintiffs did not adequately allege in their
operative pleading, the Third Amended Complaint (the ʺTACʺ), that the
defendants knowingly played a role in the November 9 attacks or provided
substantial assistance to the terrorist organization that perpetrated it, they failed
to state a plausible claim for relief under JASTA. We therefore affirm the
judgment of the district court.
3
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
BACKGROUND
Factual Background2
On November 9, 2005, suicide bombers attacked three hotels in Amman,
Jordan, in a series of coordinated attacks (the ʺNovember 9 Attacksʺ or
ʺAttacksʺ). The terrorist organization al‐Qaeda in Iraq (ʺAQIʺ) claimed
responsibility. With support from al‐Qaeda, AQI selected the Attacksʹ targets,
recruited and trained the suicide bombers, constructed the bombs, and
transported the bombs into Jordan.
The plaintiffs are Americans who were injured, or the heirs or
administrators of the estates of those killed, in the Attacks. The defendants,
HSBC North America Holdings, Inc. (ʺHSNAʺ) and HSBC Bank USA, N.A.
(ʺHBUS,ʺ and together with HSNA, ʺHSBCʺ), are financial institutions. Each has
its principal place of business in New York. HSNA is a financial institution
holding‐company and the parent company of HBUS. Unlike HSNA, HBUS
2 The facts set forth in this Opinion are drawn from the TAC, as well as the United
States Senate Permanent Subcommittee on Investigationsʹ 2012 Report entitled, ʺU.S.
Vulnerabilities to Money Laundering, Drugs, and Terrorist Financing,ʺ which the
plaintiffs incorporated into the TAC. ʺFor Rule 12(b)(6) purposes, the complaint
includes any written instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference.ʺ Coalition for Competitive Electricity, Dynergy
Inc. v. Zibelman, 906 F.3d 41, 49 (2d Cir. 2018) (internal quotation marks and brackets
omitted).
4
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
provides banking services directly to individual customers. Until January 2005,
HBUS maintained a commercial relationship with Al Rajhi Bank (ʺARBʺ), Saudi
Arabiaʹs largest bank, with approximately $80 billion in assets and more than 500
branches worldwide.
The plaintiffs allege the following:3
ARB was, at all relevant times, involved in financing terrorist activity. In
2002, one of ARBʹs senior officials appeared on a list of investors who supported
al‐Qaeda, and The Wall Street Journal reported that the government of Saudi
Arabia was monitoring ARB accounts for links to terrorist organizations. In
2003, the United States Central Intelligence Agency referred to ARB as a ʺconduit
for terrorist transactions.ʺ STAFF OF S. PERMANENT SUBCOMM. ON INVESTIGATIONS,
U.S. VULNERABILITIES TO MONEY LAUNDERING, DRUGS, AND TERRORIST
FINANCING: HSBC CASE HISTORY 197 (July 17, 2012) [hereinafter HSBC CASE
HISTORY] (quoting 2003 report by the Central Intelligence Agency entitled, ʺAl
Rajhi Bank: Conduit for Extremist Financeʺ). In 2004, the United States
3 Although the defendants dispute certain allegations, we accept them as true for the
purposes of reviewing the challenged judgment of dismissal, except where wholly
conclusory as noted infra at pp. 16–20. See In re Facebook, Inc., Initial Public Offering
Derivative Litig., 797 F.3d 148, 159 (2d Cir. 2015) (quoting Faber v. Met. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011)).
5
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
government designated several Saudi‐based non‐profit organizations—all clients
of ARB—as terrorist organizations. And in February 2005, two persons
unaffiliated with HSBC were indicted, charged with cashing $130,000 in travelers
checks at an ARB branch in Saudi Arabia and sending the money to suspected
terrorists in Chechnya.
HSBC was aware of ARBʹs links to terrorist organizations. The plaintiffs
quote a 2012 report issued by the United States Senate Permanent Subcommittee
on Investigations. It states in relevant part:
HSBC has been active in Saudi Arabia, conducting
substantial banking activities through affiliates as well
as doing business with Saudi Arabiaʹs largest private
financial institution, Al Rajhi Bank. After the 9/11
terrorist attack in 2001, evidence began to emerge that
Al Rajhi Bank and some of its owners had links to
financing organizations associated with terrorism,
including evidence that the bankʹs key founder was an
early financial benefactor of al Qaeda.
TAC ¶ 63 (quoting HSBC CASE HISTORY 5‐7 (brackets and internal quotation
marks omitted)). Also, in 2002, the HBUS officer in charge of Commercial and
Institutional Banking stated in an email to a colleague that HBUSʹs relationship
with ARB had become ʺfairly high profileʺ and that compliance officers within
the company were concerned ʺthat Al Rajhiʹs account may have been used by
terrorists,ʺ which, ʺ[i]f true, . . . could potentially open HBUS up to public
6
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
scrutiny and/or regulatory criticism.ʺ Id. at ¶ 110 (quoting email from Douglas
Stolberg, Commercial and Institutional Banking Div., HBUS, to another senior
HBUS official (2002)). In 2003, HSBCʹs Financial Intelligence Group raised
concerns about one of ARBʹs clients that had been linked to al‐Qaeda.
Despite HSBCʹs knowledge of ARBʹs support of terrorist organizations,
HSBC ʺprovided [ARB] with a wide range of banking services,ʺ including ʺwire
transfers, foreign exchange, trade financing, and asset management services.ʺ
TAC ¶ 90. HSBC also ʺagree[d] to alter, falsify, or omit information from
payment messages that involved prohibited countries and institutionsʺ in order
to ʺconceal[] financial activities and transactions from detection . . . by U.S.
regulators, law enforcement, and/or depository institutions.ʺ Id. at ¶ 64. HSBCʹs
compliance officers were aware that ARB ʺstrip[ped] information from wire
transfer documentationʺ but ʺdid not take decisive action to stop the conduct or
inform HBUS of the extent of the activity.ʺ Id. at ¶¶ 80, 83, 84. Instead, HSBC
ʺcontinued to undertake various methods to facilitate payments to prohibited
persons or institutions,ʺ including by ʺcharacteriz[ing] . . . transaction[s] as . . .
transfer[s] between banks in . . . approved jurisdiction[s], while omitting
underlying payment details that would disclose participation of a prohibited
7
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
originator or beneficiary.ʺ Id. at ¶¶ 80, 84. HSBC continued to do business with
ARB until January 2005, approximately ten months before the Attacks, when it
ʺdecided that its U.S.‐based businesses should sever ties with [ARB] due to
terrorist financing concerns.ʺ Id. at ¶¶ 108, 111.
HSBCʹs participation in a ʺschemeʺ to evade U.S. regulators until January
2005 ʺmade it possible for [ARB] and other prohibited financial institutions to
transfer . . . hundreds of millions of dollars in U.S. currency through the U.S. in a
manner designed to . . . circumvent monitoring by U.S. regulatorsʺ and then to
transfer those funds ʺto AQI, al‐Qaeda, and other terrorist organizations actively
engaged in plotting attacks against the United States and its citizens.ʺ TAC ¶ 65.
HSBC ʺprovided [ARB] with the means . . . [to] transfer millions of U.S. dollars to
AQI, which were actively engaged in planning and perpetrating the murder and
maiming of Americans, including the victims of the [November] 2005 bombings
in Amman.ʺ Id. at ¶ 70. By helping to ʺconceal billions of U.S. dollars passing
through the U.S. financial system from detection, scrutiny, or monitoring,ʺ it
participated in a ʺschemeʺ that constituted a ʺsubstantial cause . . . in the chain of
events leading to the Plaintiffsʹ injuries.ʺ Id. at ¶¶ 66, 69.
8
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
In December 2012, HBUS entered into a deferred prosecution agreement
with the United States Department of Justice in which it ʺadmitted to [anti
money‐laundering] sanctions violationsʺ and agreed to forfeit $1.256 billion, as
well as pay $665 million in civil penalties. TAC ¶¶ 87, 88 (citing Press Release,
U.S. Depʹt of Justice, HSBC Holdings PLC and HSBC Bank USA N.A. Admit to
Anti‐Money Laundering and Sanctions Violations, Forfeit $1.256 Billion in
Deferred Prosecution Agreement (ʺDOJ Press Releaseʺ) (December 11, 2012),
https://www.justice.gov/opa/pr/hsbc‐holdings‐plc‐and‐hsbc‐bank‐usa‐na‐admit‐
anti‐money‐laundering‐and‐sanctions‐violations). In its press release
announcing the agreement, the government asserted that ʺ[u]sing their scheme to
evade [the Office of Financial Assets Controlʹs] filters by stripping identifying
information from transfers, [HSBC] provided [ARB] with a wide range of
banking services . . . , includ[ing] U.S. Dollars, wire transfers, foreign exchange,
trade financing, and asset management services,ʺ id. at ¶ 90, which ʺflout[ed] . . .
U.S. sanctions laws and regulations,ʺ id. at ¶ 89 (quoting December 11, 2012
statement by Loretta Lynch, then‐United States Attorney for the Eastern District
of New York, in DOJ Press Release).
9
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
Procedural History
The plaintiffs originally filed this action in the United States District Court
for the Northern District of Illinois. They pleaded claims against HBUS, HSNA,
HSBC Holdings, PLC, HSBC Bank Middle East Limited, and ARB. On August
14, 2017, that district court (John Robert Blakey, Judge) dismissed the plaintiffsʹ
claims against defendants HSBC Holdings, PLC, HSBC Bank Middle East
Limited, and ARB without prejudice for lack of personal jurisdiction. See Siegel v.
HSBC Holdings, PLC, 283 F. Supp. 3d 722, 733‐34 (N.D. Ill. 2017).
On January 19, 2018, after the case was transferred to the Southern District
of New York, the district court dismissed with prejudice all claims against HSBC
Holdings, PLC and ARB for lack of personal jurisdiction. See Siegel v. HSBC
Holdings, PLC, No. 17 Civ. 6593 (DLC), 2018 WL 501610, at *4, 2018 U.S. Dist.
LEXIS 8986, at *9‐12 (S.D.N.Y. Jan. 19, 2018). On July 27, 2018, the district court
granted HSBCʹs motion to dismiss the plaintiffsʹ claim against it for failure to
state a claim. See Siegel v. HSBC Bank USA, N.A., No. 17 Civ. 6593 (DLC), 2018
WL 3611967, at *5, 2018 U.S. Dist. LEXIS 126152, at *10‐13 (S.D.N.Y. July 27, 2018).
10
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
DISCUSSION
The plaintiffs assert that the allegations in their TAC suffice to state a claim
against HSBC for aiding and abetting AQI in perpetrating the November 9
Attacks. They contend that the scope of liability under JASTA is broad enough
to include instances, such as the one here, where a defendant provides indirect
support to a terrorist organization. HSBC argues in response that only direct
support to terrorist organizations is actionable under JASTA. It further asserts
that, even if that were not so, the plaintiffsʹ aiding‐and‐abetting claim would still
fail because the plaintiffs have failed adequately to allege the requisite elements
of such a cause of action.
We conclude that the plaintiffsʹ aiding‐and‐abetting claim fails as a matter
of law because the plaintiffs have not plausibly alleged that HSBC assumed a
role in the November 9 Attacks or provided substantial assistance to AQI. We
therefore affirm the judgment of the district court.
I. Standard of Review
ʺWe review de novo a district courtʹs dismissal of a complaint under Rule
12(b)(6), accepting all of the complaintʹs factual allegations as true and drawing
all reasonable inferences in the plaintiffsʹ favor.ʺ Giunta v. Dingman, 893 F.3d 73,
11
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
78‐79 (2d Cir. 2018). However, ʺ[w]e are ʹnot . . . bound to accept conclusory
allegations or legal conclusions masquerading as factual conclusions.ʹʺ In re
Facebook, Inc., Initial Public Offering Derivative Litig., 797 F.3d 148, 159 (2d Cir.
2015) (quoting Faber v. Met. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)).
II. Applicable Law
The ATA creates a cause of action for United States nationals who are
ʺinjured in [their] person, property, or business by reason of an act of
international terrorism.ʺ 18 U.S.C. § 2333(a). For purposes of and according to
the ATA, ʺinternational terrorismʺ includes ʺactivities that (A) involve violent
acts or acts dangerous to human life that . . . would be a criminal violation if
committed within the jurisdiction of the United States or of any Stateʺ and that
ʺ(B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to
influence the policy of a government by intimidation; or (iii) to affect the conduct
of a government by mass destruction, assassination, or kidnapping.ʺ Id.
§ 2331(1)(A)–(B). In its original form, the ATA afforded relief only against the
perpetrators of the terrorist attacks, not against secondary, supporting actors. See
Linde v. Arab Bank, PLC, 882 F.3d 314, 319 (2d Cir. 2018).
12
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
In 2016, Congress enacted JASTA, which expanded the ATAʹs reach to
apply not only to those who perpetrate terrorist attacks but also to those who aid
and abet, or conspire with, the principals. See id. at 320. By its terms, JASTA
applies to ʺany person who aids and abets, by knowingly providing substantial
assistance [to], or who conspires with the person who committed[,] such an act of
international terrorism.ʺ 18 U.S.C. § 2333(d)(2). JASTAʹs secondary‐liability
provision applies to any civil action ʺ(1) pending on, or commenced on or after,
the dateʺ of JASTAʹs enactment, and ʺ(2) arising out of an injury . . . on or after
September 11, 2001.ʺ Id. at Statutory Notes (quoting JASTA, § 7, 130 Stat. at 855).
Congressʹs purpose in enacting JASTA was ʺto provide civil litigants with the
broadest possible basis, consistent with the Constitution of the United States, to
seek relief against persons, entities, and foreign countriesʺ that ʺhave provided
material support, directly or indirectly, to foreign organizations or persons that
engage in terrorist activities against the United States.ʺ Id. (quoting JASTA,
§ 2(b), 130 Stat. at 853).
JASTA further states that Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983),
provides ʺthe proper legal frameworkʺ for ʺ[f]ederal civil aiding and abetting and
conspiracy liability.ʺ Id. (quoting JASTA, § 2(a)(5), 130 Stat. at 852). In
13
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
Halberstam, the D.C. Circuit concluded that aiding‐and‐abetting includes three
elements: (1) ʺthe party whom the defendant aids must perform a wrongful act
that causes an injury;ʺ (2) ʺthe defendant must be generally aware of his role as
part of an overall illegal or tortious activity at the time that he provides the
assistance;ʺ and (3) ʺthe defendant must knowingly and substantially assist the
principal violation.ʺ 705 F.2d at 477.
III. Application
The parties do not dispute that the November 9 Attacks constitute acts of
ʺinternational terrorism,ʺ as defined by the ATA, or that AQI perpetrated the
Attacks. They similarly do not dispute that congressional and media reports
issued before November 2005 stated that ARB supported terrorist organizations,
including AQI, and that HSBC had provided banking services to ARB for more
than twenty‐five years before terminating its relationship with ARB in January
2005, ten months before the November 9 Attacks.
Rather, the parties dispute the scope of JASTA liability. Plaintiffs advance
an expansive theory of JASTA liability under which indirect support to a terrorist
organization is actionable—including where, as alleged here, a bank provides
routine banking services to a foreign, unaffiliated financial institution that
14
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
provides support to a terrorist organization. By contrast, HSBC contends that
JASTA applies only to the provision of direct support to terrorist organizations.4
We need not here decide whether JASTAʹs reach is as limited as HSBC
suggests5 because the plaintiffsʹ claim fails even under their more expansive
interpretation of the statute. Specifically, the plaintiffs have failed to allege
adequately two of the three Halberstam elements of civil aiding‐and‐abetting:
(1) that HSBC was ʺgenerally awareʺ of its role as part of an ʺoverall illegal or
tortious activity at the time that [it] provide[d] the assistance,ʺ and (2) that HSBC
ʺknowingly and substantially assist[ed] the principal violation.ʺ Halberstam, 705
F.2d at 477.
In order to plead adequately the ʺgeneral‐awarenessʺ element, a plaintiff
must plausibly allege that the defendant was ʺaware that, by assisting the
4See Appellees Br. 2 (ʺBy its plain language, JASTA aiding and abetting lies only
where a defendant knowingly provides substantial assistance to the person who
committed such an act of international terrorism. Here, that is terrorist operatives from
AQI.ʺ); see also id. at 20 (ʺAbsent a direct connection between the defendant and the
person who committed the terrorist act, there is no liability under JASTA.ʺ).
5 We note, however, that the statute does not, by its terms, limit aiding‐and‐abetting
liability to those who provide direct support to terrorist organizations, and Congress
wrote that its purpose in enacting the statute was ʺto provide civil litigants with the
broadest possible basisʺ to seek relief against those who ʺhave provided material support,
directly or indirectly, to foreign organizations or persons that engage in terrorist activities
against the United States.ʺ 18 U.S.C. § 2333 Statutory Notes (quoting JASTA, § 2(b), 130
Stat. at 853) (emphases added).
15
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
principal, it is itself assuming a role in terrorist activities.ʺ See Linde, 882 F.3d at
329 (internal quotation marks omitted). In Linde, we explained that although
ʺ[s]uch awareness does not require proof of . . . specific intentʺ or knowledge ʺof
the specific attacks at issue,ʺ it does require that ʺthe bank was generally aware
that[, by providing financial services to a client,] it was thereby playing a ʹroleʹ in
[the] violent or life‐endangering activities.ʺ Id. We contrasted this with ʺthe mens
rea required to establish material support in violation of 18 U.S.C. § 2339B, which
requires only knowledge of the organizationʹs connection to terrorism, not intent
to further its terrorist activities or awareness that one is playing a role in those
activities.ʺ Id. at 329‐30.
Here, the plaintiffs have failed to allege that HSBC was aware that by
providing banking services to ARB, it was supporting AQI, much less assuming
a role in AQIʹs violent activities. At most, the allegations, even when viewed in
the light most favorable to the plaintiffs, assert that HSBC was aware that ARB
was believed by some to have links to AQI and other terrorist organizations.6
Without further allegations that would support a conclusion that HSBC
6See, e.g., TAC ¶¶ 34‐35 (identifying various public reports that ARB and some of its
senior officials supported terrorist organizations, including al‐Qaeda); id. at ¶ 63
(quoted supra at p. 6); id. at ¶ 110 (quoted supra at pp. 6–7).
16
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
knowingly played a role in the terrorist activities, the TAC pleadings are
insufficient to state a claim for aiding‐and‐abetting liability under JASTA. See
Linde, 882 F.3d at 329 (stating that ʺaiding and abetting an act of international
terrorism requires more than the provision of material support to a designated
terrorist organizationʺ (emphasis in original)).
Instead, the plaintiffsʹ allegations themselves suggest that in providing
banking services to ARB, HSBC had little reason to suspect that it was assuming
a role in AQIʹs terrorist activities. The plaintiffs acknowledge that ARB is a large
bank with vast operations. See TAC ¶ 33 (ARB is ʺSaudi Arabiaʹs largest private
bank, holding $80 billion in assets . . . [with] over 500 branches—mostly in Saudi
Arabia, but also in Malaysia, Kuwait, and Jordanʺ). They do not allege that most,
or even many, of ARBʹs banking activities are linked to terrorists. Nor do they
offer any non‐conclusory allegations that HSBC provided banking services for
any transactions relating to the November 9 Attacks.
And crucially, the plaintiffs concede that, in January 2005—ten months
before the November 9 Attacks—HSBC ceased doing business with ARB
altogether. HSBCʹs decision not to provide banking services to ARB for the ten
months preceding the November 9 Attacks makes it implausible under the
17
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
circumstances that HSBC had knowingly assumed a role in the Attacks.
Although the plaintiffs allege generally that HSBC ʺparticipated in [a] schemeʺ to
assist ARB in ʺcircumvent[ing] monitoring by U.S. regulators,ʺ TAC ¶¶ 65‐66,
and thereby ʺprovided nearly $1 billion in U.S. dollars to [ARB],ʺ id. at ¶ 114,
they fail to advance any plausible, factual, non‐conclusory allegations that HSBC
knew or intended that those funds would be sent to AQI or to any other terrorist
organizations. This forecloses their JASTA claim. Cf. Rothstein v. UBS AG, 708
F.3d 82, 94 (2d Cir. 2013) (ʺʹA claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.ʹʺ (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009))).
The plaintiffs have also failed adequately to plead the ʺsubstantial
assistanceʺ element of aiding‐and‐abetting liability under JASTA. Six factors are
relevant to demonstrating ʺsubstantial assistanceʺ: ʺ(1) the nature of the act
encouraged, (2) the amount of assistance given by defendant, (3) defendantʹs
presence or absence at the time of the tort, (4) defendantʹs relation to the
principal, (5) defendantʹs state of mind, and (6) the period of defendantʹs
assistance.ʺ Linde, 882 F.3d at 329 (citing Halberstam, 705 F.2d at 483‐84).
18
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
The plaintiffs here have not plausibly alleged that HSBC encouraged the
heinous November 9 Attacks or provided any funds to AQI. To be sure, the
plaintiffs did allege that HSBC provided hundreds of millions of dollars to ARB,
but they did not advance any non‐conclusory allegation that AQI received any of
those funds or that HSBC knew or intended that AQI would receive the funds.
As for the third factor, as the plaintiffs themselves allege, HSBC was not
ʺpresentʺ at the time of the November 9 Attacks. Indeed, HSBC had ceased
transacting any business with ARB ten months prior. On the fourth factor—
defendantʹs relation to the principal—the plaintiffs do not plead any non‐
conclusory allegations that HSBC had any relationship with AQI. Similarly, on
the fifth factor—defendantʹs state of mind—the plaintiffs do not plausibly allege
that HSBC knowingly assumed a role in AQIʹs terrorist activities or otherwise
knowingly or intentionally supported AQI.
Finally, on the sixth factor—the duration of defendantʹs assistance—the
plaintiffs allege that HSBC provided banking services to ARB for twenty‐five
years. That certainly bespeaks a lengthy relationship but not necessarily of
assistance in terrorism. Cf. Halberstam, 705 F.2d at 484 (ʺThe length of time an
alleged aider‐abettor has been involved with a tortfeasor almost certainly affects
19
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
the quality and extent of their relationship and probably influences the amount
of aid provided as well; additionally, it may afford evidence of the defendantʹs
state of mind.ʺ). As already noted, ARB is a large bank with vast operations, and
the plaintiffs do not allege—even conclusorily—that most, or even many, of
HSBCʹs services to ARB assisted terrorism. Further, the plaintiffsʹ pleadings
acknowledge that HSBC terminated its relationship with ARB in January 2005,
ten months before the November 9 Attacks. In these circumstances, the length of
the relationship alone does not admit an inference of aiding and abetting
terrorism. That fact, together with the plaintiffsʹ failure adequately to allege that
HSBC funds ever reached AQI, or any of the other factors relevant to aiding and
abetting, compel the conclusion that the plaintiffs fail plausibly to plead a claim
against HSBC even on their expansive view of JASTA.
Taken as true and viewed in the light most favorable to the plaintiffs, the
allegations establish, at most, that, up until January 2005, HSBC helped ARB
violate banking regulations despite knowing that ARB supported terrorist
organizations. Even were that proven, however, it would be an insufficient basis
for liability under JASTA because the plaintiffs have failed to allege that HSBC
knowingly assumed a role in AQIʹs terrorist activities or substantially assisted
20
18‐2540‐cv
Jeffrey Siegel, et al. v. HSBC North America Holdings, Inc., and HSBC Bank USA, N.A.
AQI in those activities, specifically the November 9 Attacks. We therefore
conclude that the plaintiffsʹ aiding‐and‐abetting claim fails.
CONCLUSION
We have considered the plaintiffsʹ remaining arguments on appeal and
conclude that they are without merit. We therefore AFFIRM the judgment of the
district court.
21