Multi-national companies doing business in high-risk jurisdictions need to put a date on their calendar: September 28. Why? That is the anniversary of the Justice Against Sponsors of Terrorism Act (JASTA or the Act). This date is going to drive the behavior of plaintiffs’ counsel in Anti-Terrorism Act cases in the coming year.
Looking back on it, JASTA has turned out to be the big change many thought it would be. The Act fundamentally transformed terrorism-related litigation in the United States. Seeking to provide “litigants with the broadest possible basis” to assert claims against those who provide material support to terrorists, Congress authorized new theories of civil liability sounding in aiding-and-abetting and conspiracy.
In the nine years since, JASTA has unleashed a wave of litigation that frequently ensnares legitimate commercial enterprises. As a result, the risk landscape for multinational corporations and financial institutions, particularly those operating in conflict zones, has fundamentally shifted. Companies must navigate direct compliance with anti-terrorism financing regulations while guarding against conduct (and passive nonfeasance) that might be deemed substantial assistance to terrorist organizations. And because of the novel way Congress addressed JASTA’s effective date to provide retroactive application (discussed below), defendants often are forced to defend events that that occurred up to twenty years ago when their risk and compliance practices may not have been as developed as they are today.[1]
A Critical Juncture Approaches: The Tenth Anniversary
As we reflect back on JASTA’s ninth anniversary, we stand exactly one year away from a critical legal milestone. September 28, 2026 will mark both the tenth anniversary of JASTA's enactment and the first date on which the 10-year statute of limitations will begin to run out on certain claims authorized by the Act. That statute of limitations, pursuant to 18 U.S.C. § 2335(a), applies to all claims arising under the U.S. Anti-Terrorism Act (ATA), with the time running from “the date the cause of action accrued.” When a claim under JASTA “accrued” is therefore critically relevant for purposes of asserting a statute of limitations defense.
Typically, a cause of action under the ATA accrues on the date of the respective terrorist attack. But Section 7 of JASTA purports to create an exception: the Act as written applies to civil lawsuits pending on or commenced on or after September 28, 2016, arising out of injuries occurring on or after September 11, 2001. In other words, a claim brought under JASTA is intended by Congress to have accrued on September 28, 2016 even if the terrorist attack giving rise to the claim occurred months or years earlier. This means that plaintiffs asserting secondary liability claims based on injuries suffered on or before September 28, 2016 will face their first statute of limitations deadline in 2026. And the statute of limitations will apply to an ever growing number of potential claims each day after that.
Thus, the approaching tenth anniversary represents more than a symbolic milestone—it marks the beginning of a new phase in JASTA litigation where time-based limitations will start to affect case filings. Because JASTA claims arising from pre-2016 injuries will soon face time bars, it is possible we will see an influx of new cases filed in the months leading up to JASTA’s tenth anniversary. Additionally, one can expect the focus of new cases to begin shifting away from historical injuries in favor of more recent incidents.
Conclusion
JASTA ushered in a new era of sweeping civil litigation, much of which would have been time-barred but for Congress’s action. As a result, a subset of current JASTA litigation is focused on events that happened a decade or longer ago, presenting substantial evidentiary and testimonial issues. As we look toward JASTA’s tenth anniversary, we expect a possible uptick in the number of filings as plaintiffs rush to bring claims that may soon become time barred. Companies operating in conflict zones and other areas in which terrorist activity is present should start thinking now about what can be learned from the prior nine years of JASTA litigation. Those earlier cases provide important lessons regarding how to minimize risks going forward and how to defend effectively against cases alleging historical harm.
The ninth anniversary of JASTA also presents a time to reflect on how the Act’s scope has been defined by the courts. The Supreme Court has already weighed in once in the Twitter case, finding that defendants cannot be held liable without consciously and culpably participating in the alleged terrorist activity. That decision placed an important cap on the otherwise possibly unlimited scope of liability under JASTA. It is only a matter of time before the Court is called upon again to consider important issues regarding possible liability under the Act. One such issue is likely to revolve around the ATA’s yet-to-be-tested at the appellate level statute of limitations as applied to JASTA.
JASTA was enacted with noble ideals in mind—to compensate victims of horrible and violent terrorist acts. The Act’s purposefully broad scope, however, sometimes leads to claims being filed against legitimate companies and organizations which had no intention of aiding and abetting terrorism, including those that provide important benefits to historically underserved populations. Those claims have precipitated active litigation that has shaped JASTA’s reach through judicial interpretation. The coming year undoubtedly will bring new developments as we approach the significant tenth anniversary of JASTA’.
For a collection of related previous posts, please click this link.
[1] It remains an open question that has yet to be reviewed by an appellate court whether JASTA’s intended retroactive application violates the Ex Post Facto Clause of the United States Constitution and/or the Due Process Clause of the Fifth Amendment. Whether or not the retroactive application of JASTA is struck down, the tenth anniversary will mark the first deadline for bringing claims for an ever increasing number of potential plaintiffs.
