2nd Circuit Vacates Verdict in ATA Case against Arab Bank Due to Improper Jury Instructions

The U.S. Court of Appeals for the Second Circuit Friday reversed a 2014 verdict that found the Jordan-based Arab Bank liable under the Anti-Terrorism Act for three separate Hamas-associated attacks in Israel between 2002 and 2003.  The court, in Linde v. Arab Bank, PLC, found that the jury instructions had incorrectly allowed for a guilty verdict simply because the Arab Bank handled financial transactions for Hamas and its supporters.   At the trial, the Arab Bank was found to have been used by Hamas to send payments to families of suicide bombers.

In reversing the verdict, the Second Circuit panel found that “the provision of material support to a terrorist organization does not invariably equate to an act of international terrorism,” and that in order to be found liable under the ATA, the person or entity providing the support must also be found to be involved in an act that constitutes international terrorism.

Although the Second Circuit remanded the case for a retrial, the parties had reached a settlement agreement before the decision was handed down.  According to the settlement agreement, the amount of the payout turned on whether the Second Circuit affirmed or reversed the verdict.  Thus, even with the reversal, the 597 plaintiffs are still set to receive payment from the Arab Bank.  While the specific terms of the agreement remain secret, media accounts relate that the Arab Bank has set aside at least $1 billion to cover its obligations under the settlement.


Dismissal of Anti-Terrorism Act Lawsuit against Twitter is Affirmed by the Ninth Circuit … but not on Section 230 Immunity Grounds

On January 31, 2018, the Ninth Circuit Court of Appeals in Fields v. Twitter, Inc. ruled unanimously to uphold a lower court’s dismissal of an Anti-Terrorism Act lawsuit that had been brought against Twitter after two American contractors were killed in Jordan in 2015 in an ISIS-related attack.  The plaintiffs in the case — the families of the victims — alleged that Twitter was responsible for the deaths because it had provided “material support” to the Islamic State by “knowingly and recklessly provid[ing] ISIS with accounts on its social network” and that “[t]hrough this provision of material support, Twitter enabled ISIS to acquire the resources needed to carry out numerous terrorist attacks.”  Under federal law, “material support”  is defined statutorily to include, among other things, any “service” and “communications equipment.” 18 U.S.C. §§ 2339A(b), 2339B(g)(4).

Specifically, the plaintiffs argued that ISIS used Twitter’s Direct Messaging feature to communicate with potential recruits and “for fundraising and operational purposes.”  Also, Twitter’s platform allowed ISIS to recruit publicly, by posting “instructional guidelines and promotional videos, referred to as ‘mujatweets.’”  According to the plaintiffs, within the year preceding August 2016, Twitter allowed ISIS to attract “more than 30,000 foreign recruits,” and that ISIS used Twitter to fundraise and to “spread propaganda and incite fear by posting graphic photos and videos of its terrorist feats.”

The lower court dismissed the action on the basis that Section 230 of the Communications Decency Act provides immunity from civil liability to operators of internet sites that host user-generated content.  Although the plaintiffs had contended that Twitter “materially supported” ISIS by permitting ISIS members to sign up for Twitter accounts — conduct that had nothing to do with the content that ISIS members published on the site —  the lower court rejected this argument, stating:

“[P]laintiffs attempt to plead around the CDA by asserting that Twitter provided ISIS with material support by allowing ISIS members to sign up for accounts, not by allowing them to publish content. But no amount of careful pleading can change the fact that, in substance, plaintiffs aim to hold Twitter liable as a publisher or speaker of ISIS’s hateful rhetoric, and that such liability is barred by the CDA.”

The Ninth Circuit affirmed the dismissal of the case, but did so without reaching the question of whether Section 230 protects Twitter from liability.  Instead, the Ninth Circuit found that the plaintiffs had not pleaded that Twitter’s provision of communication equipment to ISIS, in the form of Twitter accounts and direct messaging services, had any direct relationship with the injuries that the plaintiffs suffered.  The court held that the plaintiff’s complaint

“At most … establishe[d] that Twitter’s alleged provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts. But [it did] not articulate any connection between Twitter’s provision of this aid and Plaintiffs–Appellants’ injuries.”

Thus, outside of the  it still remains an open question whether Section 230 of the the CDA protects operators of internet sites that host user-generated content from liability for materially supporting terrorist activity by providing terrorist organizations with a social media platform through which they can recruit members, raise money, and spread their hateful messages.

The Fields plaintiffs have not indicated whether they will petition the Ninth Circuit for a rehearing or whether they will seek review by the Supreme Court.

Chiquita Trial Set to Start in Colombian Terror Case Brought Under Anti-Terrorism Act

Trial is set to begin next month in the case of six Americans killed in the 1990s by the Columbian terrorist group Fuerzas Armadas Revolucionarias de Colombia, or FARC.  The plaintiffs are seeking to hold banana company Chiquita Brands International liable for the deaths because it allegedly paid the terrorist group about $288,000 over the course of nine years.  The lawsuit alleges that the payments constituted material support to the terrorist group, which is prohibited under the federal Anti-Terrorism Act.  The plaintiffs claim that Chiquita made the payments because it to assist it in expanding banana operations in Colombia.

U.S. District Judge Kenneth Marra declared that “[g]iven the widely reported news relating to the decades-long civil war in Colombia, and emergence of notoriously violent guerrilla groups in the context of that war, a reasonable juror could conclude that giving money to Colombian guerrillas, having no function other than the perpetration of violence, would enhance the terror capabilities of the guerrillas and lead to more violence,” and that the facts as alleged support the idea that Chiquita knew its payments would be used to fund kidnappings and murders.

In addition to the Anti-Terrorism Act claims of the six murdered Americans, families of Colombian nationals also filed suit against Chiquita under the Alien Tort Statute.  Those claims are in the discovery stage, however, and are not likely to go to trial for at least another year.

Notably, Chiquita pleaded guilty in 2007 to funding a different Colombian guerrilla group, the Autodefensas Unidas de Colombia, and paid a $25 million fine.

The trial is scheduled to begin on February 5, and to last six weeks.

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