A new ruling out of the Eastern District of New York continues the drumbeat of decisions finding that the terroristic intent needed to plead a direct liability claim under the Anti-Terrorism Act (ATA) means actually sharing the terrorist’s motives; knowledge of potential aid to terrorists is not enough. On February 18, the court in Goldman et al. v. Lafarge, S.A. et al and Wilson et al. v. LaFarge, S.A. et al. dismissed with prejudice ATA primary liability claims against the defendants. The court reasoned that “it [was] immaterial if the Defendants knew that their payments to ISIS would inevitably support terrorist operations” because the plaintiffs’ conceded that the defendants did not “support[] the terrorist organizations’ ideology or methods,” were “motivated by the opportunity to make money,” and “acted for the ‘specific purpose of protecting [their] employees, assets, and future economic opportunities.”
What Happened?
In the Goldman and Wilson cases, American victims of global terrorist attacks and their families leveraged a prior criminal plea to allege that Lafarge operated a cement plant in ISIS-controlled Syria, paid the group millions in “protection payments,” and entered into revenue-sharing and market-control arrangements to keep its facility running. This conduct, according to the plaintiffs, established primary liability under the ATA because it allowed ISIS to fund terrorist attacks.
Last week, the court disagreed, ruling that plaintiffs had not plausibly alleged “an act of international terrorism” by the defendants that proximately caused their injuries. Accordingly, the court dismissed the plaintiffs’ primary liability claims.
The Court’s Reasoning
The court found that that the plaintiffs had failed to allege either element of a direct liability claim: (i) that a defendant’s actions qualify as international terrorism; and (ii) that they proximately caused the plaintiffs’ injuries.
Acts of “international terrorism”
The court first held that allegations of generalized economic support to terrorist groups does not qualify as “international terrorism” under the ATA. As an initial matter, the plaintiffs had failed to plead a link between defendants’ alleged support and an identifiable instance of violence that allegedly injured the plaintiffs. Absent such a linkage, the court found that the plaintiffs had not pleaded an act dangerous to human life as is required to establish international terrorism. In particular, the court found the complaints in Goldman and Wilson alleged only that Lafarge had made protection agreements, revenue-sharing agreements, and market-control agreements, none of which could be traced to a specific attack by ISIS.
The court also reiterated what other courts have steadily underscored: allegations that a defendant knew their actions had some potential benefit to terrorists are inadequate to establish the requisite terroristic intent necessary to plead an act of “international terrorism.” Under the meaning of the ATA, acts of “international terrorism” must “appear to be intended to intimidate or coerce a civilian population”—in other words, plaintiffs must allege terrorist intent, and not mere knowledge. The Goldman and Wilson plaintiffs' own complaints admitted that Lafarge paid ISIS not out of ideological sympathy, but to protect its employees and commercial interests, which the court held does not amount to terrorist intent.
Causation
Finally, the court rejected the plaintiffs’ allegations of proximate causation, finding that they were too broad and, if credited, would impose liability for “each and every ISIS terrorist act committed anywhere in the world.” Finding that such “speculative liability” is exactly what proximate cause forbids, the court wrote that allegations concerning aid to a terrorist’s “general capacity to carry out attacks” does not establish proximate cause.
Future Outlook
The court’s rejection of direct liability claims in Goldman and Wilson add to the steady drumbeat of decisions that reinforce both terrorist intent and proximate causation are necessary elements that must be sufficiently pleaded.
While direct liability under the ATA remains fact-intensive, this decision underscores that allegations of generalized financial support—with no direct connection to a particular terrorist plot and no intent by the defendant to further such an act—are unlikely to survive a 12(b)(6) motion to dismiss.
