Case 18-2540, Document 77-1, 08/08/2019, 2627076, Page1 of 21 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 1 The Clerk of Court is directed to amend the official caption to conform with the caption above. Case 18-2540, Document 77-1, 08/08/2019, 2627076, Page2 of 21 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 Case 18-2540, Document 77-1, 08/08/2019, 2627076, Page3 of 21 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 Case 18-2540, Document 77-1, 08/08/2019, 2627076, Page4 of 21 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 Case 18-2540, Document 77-1, 08/08/2019, 2627076, Page5 of 21 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 Case 18-2540, Document 77-1, 08/08/2019, 2627076, Page6 of 21 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 Case 18-2540, Document 77-1, 08/08/2019, 2627076, Page7 of 21 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.