On May 8, 2013, the Bank filed a motion for reconsideration of the Court’s ruling to permit the plaintiffs to proceed to trial on their claims that the Bank provided financial services to Palestinian and Saudi charities and individuals that they allege served as “fronts” for Hamas. The Bank believes that the Court’s decision to permit any claim to proceed to trial conflicts with recent and controlling Second Circuit authority, including Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) and In re Terrorist Attacks on Sept. 11, 2001 (Al Rajhi Bank), 2013 WL 1591883 (2d Cir. Apr. 17, 2013).
In Rothstein and Al Rajhi Bank the Court of Appeals affirmed the dismissal of Anti-Terrorism Act (ATA) claims brought against foreign financial institutions, holding that terror victims could not adequately allege that banking services were a proximate cause of the terrorist attacks in which they were injured. In denying, in part, the Bank’s motion for summary judgment, the District Court relied on Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), a decision involving a constitutional challenge to the ATA which the District Court in Rothstein described as being “likely irrelevant” to the proximate causation element of a civil liability ATA claim. Applying Humanitarian Law Project to civil ATA claims, according to the District Court in Rothstein, “would be like applying the rules of hockey to a game of lacrosse, on the theory that they both involve big sticks.” Nonetheless, the Linde Court relied almost exclusively on Humanitarian Law Project in rejecting the Bank’s argument that the plaintiffs could not prove the proximate causation element of their claims.
If the District Court decides not to reconsider its ruling, the Bank has asked it to certify its decision to the Second Circuit, so that it can immediately decide whether the District Court correctly applied its holdings in Rothstein and Al Rajhi Bank.
On June 18, 2013 the District Court denied the Bank’s motion for reconsideration.