In re Terrorist Attacks on Sept. 11, 2001

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IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001

No. 03 MDL 1570 (GBD) (SN)

United States District Court, S.D. New York

March 9, 2023

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE

This document relates to;

Federal Insurance Co., et al. v. Al Qaida, et al., No 03-CV-06978

Thomas E. Burnett, Sr,, et al. v. Al Baraka Inv. & Dev. Corp., et al., No. 03-cv-09849

Estate of John P. O'Neill, Sr., et al. v. Al Baraka Inv. & Dev, Corp., et al. No. 04-cv-01923

Continental Casualty Co,, et al. v. Al Qaeda, et al., No. 04-cv-05970

Cantor Fitzgerald c& Co., et al. v. Akida Bank Private Ltd, et al., No. 04-cv-07065

Euro Brokers Inc., et al. v. Al Baraka Inv. & Dev. Corp,, et al. No. 04-cv-07279

For the past two decades, Plaintiffs have sought to hold a litany of defendants accountable for losses incurred in the terrorist attacks of September 11, 2001 (“9/11 Attacks”). Many of these defendants allegedly harbored, financed, aided, abetted, or materially supported al Qaeda. It is alleged that Dubai Islamic Bank (“DIB” or the “Bank”) is one such defendant. Plaintiffs assert that DIB laundered money for Osama bin Laden and his terrorist network in the years leading up to the 9/11 Attacks. DIB has consistently denied these allegations as well as this Court's authority to exercise jurisdiction over the Bank. In 2010, this Court rejected DIB's motion to dismiss for lack of personal jurisdiction and held that Plaintiffs had presented sufficient allegations to justify exercising personal jurisdiction over DIB. In re Terrorist Attacks on Sept. 11, 2001, 718 F.Supp.2d 456, 489 (S.D.N.Y. 2010) (“Terrorist Attacks TV”), rev'd in part on other grounds, 714 F.3d 659 (2d Cir. 2013) Terrorist Attacks VII).

Now, after the completion of merits discovery, DIB argues that the facts do not support Plaintiffs' original allegations and instead demonstrate that this Court lacks personal jurisdiction over DIB. (Def.'s Mot. Summ. J., ECF No. 8126.)^[1] DIB seeks summary judgment on the grounds that there is no evidence that DIB purposefully directed its conduct at the United States or that DIB's U.S.-linked conduct related to Plaintiffs' 9/11 claims. Plaintiffs counter that DIB's links to al Qaeda prove that it targeted the United States and, consistent with due process, Plaintiffs can thus seek redress for the tremendous damages they suffered on 9/11. “‘[N]o matter how horrendous the underlying attacks or morally compelling . . . [Plaintiffs' claims' are, this Court cannot exercise jurisdiction ‘beyond the limits prescribed by the due process clause of the Constitution[.]”' In re Terrorist Attacks on Sept. 11, 2001, 295 F.Supp.3d 416, 426 (S.D.N.Y. 2018) (“Terrorist Attacks IX”) (quoting Waldman v Palestine Liberation Org, 835 F.3d 317, 344 (2d Cir. 2016)), rev 'd on other grounds sub nom. Underwriting Members of Lloyd's Syndicate 2 v. Al Rajhi Bank, 779 Fed.Appx. 66 (2d Cir. 2019) (“ARB”). Considering the factual averments of the parties and the limits of due process, this Court GRANTS DIB's motion for summary judgment.

I. BACKGROUND^[2]

A. Procedural History

In 2010, this Court evaluated its jurisdiction over DIB, denying DIB's first motion to dismiss for lack of personal jurisdiction. Terrorist Attacks IV, 718 F.Supp.2d at 495. Jurisdiction over DIB appeared consistent with due process because the Plaintiff s factual allegations, if true, showed that DIB had “the requisite minimal contacts” such that subjecting DIB to suit “would not be unreasonable.” Id. at 490. This Court premised its minimum-contacts analysis on Plaintiffs' allegations that:

• “[l]n 1999, the United States government announced that DIB was laundering money for Osama bin Laden”;

• “United States officials visited the United Arab Emirates to put a halt to such a relationship”;

• DIB “disregard[ed] the warnings,” “refus[ed] to adhere to even minimal banking industry standards,” and “continued to knowingly ............................... provide financial and other forms of material aid to Osama bin Laden and al Qaeda”; and

• Bin Laden's “Chief Financial Officer,” Mustafa Ahmed al-Hawsawi, transferred “thousands of dollars . . . from DIB to two of the hijackers,” who used the money for “training, including flight lessons, and other expenses incurred in preparing for the 9/11 terrorist attacks.”

Id. at 488-89.

Plaintiffs thus alleged a direct line between DIB, support for al Qaeda, and the 9/11 Attacks. They further asserted that DIB “intentional[ly], knowing[ly,] and direct[ly] ... provid[ed] money laundering services to al Qaeda” “in aid of al Qaeda's plan to commit an aggressive terrorist strike against the United States.” Id. at 489. Therefore, it could be inferred that DIB “purposefully directed its activity at the United States and its residents,” creating the minimum contacts necessary to exercise personal jurisdiction. Id. at 489-90.

In the intervening thirteen years, the parties completed merits discovery. Last year, the Central Intelligence Agency (“CIA”) declassified intelligence reports previously withheld from the parties during discovery. The declassified materials include reports written both before and after the 9/11 Attacks and reference DIB and its former Chairman Saeed Ahmed Lootah.

B. Factual Evidence^[3]

1. DIB's Structure and Organization

DIB is a “publicly traded banking company organized under the laws of the United Arab Emirates” (“UAE”). (Pls.' Resp. Def.'s Rule 56.1 Statement, ECF No. 8316, ¶ 1.) It is headquartered in and operates its business from Dubai. (Id. ¶¶ 2, 3.) Other than keeping “correspondent banking accounts,” DIB does not conduct business or provide services in the United States, nor has it sought qualifications to do so. (Id. ¶¶ 4-6.) It has eight foreign branches but none in the United States. (See Def.'s Resp. Pls.' Rule 56.1 Counterstatement, ECF No. 8533-1,¶87.)

DIB's largest shareholder is the Dubai Government, followed by the Government of Kuwait and the Board of Directors of DIB. (Def.'s Resp. Pls.' Rule 56.1 Counterstatement ¶ 88; see Dr. Hussein Hamid Hassan Aug. 1, 2017 Dep., ECF No. 8317-32, at 59:18-60:7 (estimating the UAE Government's stake at approximately 30%).) The Board of Directors manages DIB and appoints members of its Fatwa and Shariah Supervisory Board, which, at the request of the Bank, evaluates investments to determine whether they comport with Islamic laws. (Def.'s Resp. Pls.' Rule 56.1 Counterstatement ¶ 147; see Hassan Aug. 3, 2017 Dep., ECF No. 8317-33, at 292:1025, 293:13-294:6.) Lootah sat on the Board of Directors along with other members of his family and served as DIB's chairman until at least 1998. (See Def.'s Resp. Pls.' Rule 56.1 Counterstatement ¶ 88.)

2. Al Qaeda's Mission

Between 1992 and 1998, al Qaeda publicly called for jihad against the United States. (Id. ¶¶ 161-67.) In 1996, Khalid Sheikh Mohammed presented Osama bin Laden with the idea of attacking the United States using hijacked planes. (Id. ¶ 165.) Bin Laden approved the 9/11 plot in “late 1998 or early 1999.” (Pls.' Resp. Def.'s Rule 56.1 Statement ¶ 34.) Al Qaeda attacked U.S. interests abroad beginning in 1998, when it bombed the U.S. Embassies in Kenya and Tanzania. (Def.'s Resp. Pls.' Rule 56.1 Counterstatement ¶ 167.) Three years later, members of al Qaeda carried out the 9/11 Attacks.

3. Pre-9/11 Activities

In 1998, DIB discovered a fraud against the Bank unrelated to al Qaeda or terrorism. (Pls.' Resp. Def.'s Rule 56.1 Statement ¶¶ 19, 23.) In response, the Bank hired an investigator and the Dubai Government intervened to alter the Bank's management structure. (Id. ¶ 19.) With the input of the government, DIB appointed a new board of directors in early 1999. (Id. ¶¶ 20-21.) The then-UAE Minister of Financial Affairs and Industry Mohammed Khalfan bin Kharbash became DIB's new chairman. (Id. ¶ 21.)

In July 1999, the New York Times published an article that “described a diplomatic mission from the U.S. to the [UAE] ‘to lobby for a halt to a suspected financial relationship between a Government-controlled bank and Osama bin Laden.'” (Def.'s Resp. Pls.' Rule 56.1 Counterstatement ¶ 125 (quoting James Risen & Benjamin Weiser, U.S. Officials Say Aid for Terrorists Came Through Two Persian Gulf Nations, N.Y. Times, Jul. 8,1999, ECF No. 8317-22, at 1).) The article alleged that the CIA had evidence bin Laden had “funnel[ed] money through” DIB with the “approval” of officials at the Bank, “which the [UAE] Government effectively control [led].” (Id. ¶ 126 (quoting Risen & Weiser, U.S. Officials Say Aid for Terrorists Came Through Two Persian Gulf Nations at 1-2).) U.S. State Department spokesperson James Foley faced questions about the article's contents. (Id. ¶ 127.) Foley “confirmed that the U.S. government was working with the [UAE] to strengthen cooperation against terrorism, including terrorist finance, and was told by the UAE government that the Dubai Emirati government ‘ha[d] taken steps to clean up the bank, the Dubai Islamic Bank, and to restore its reputation.'” (Id. (quoting State Department Regular Briefing, FED.NEWS SERV., JUL. 8, 1999, ECF NO, 8317-24, AT 2).)

In response, DIB instructed outside counsel based in the United States, the Honorable Alan Fine, who was then in private practice, to seek additional information about the article's allegations. (Pls.' Resp. Def.'s Rule 56.1 Statement ¶¶ 24 25.) Fine offered “DIB's full cooperation” and asked the State Department for information that would help DIB investigate “any suspected relationship” with bin Laden. (Id. ¶ 25.) The State Department told Fine that DIB “wouldn't find anything in the name of Osama bin Laden”-that the activity “was either in domestic wire transfers or withdrawals from accounts, through...