EDWARD M. CHEN, United States District Judge.
Plaintiffs are relatives of Nawras Alassaf, a citizen of Jordan who was killed on January 7, 2017, when Abdulkadir Masharipov, an individual affiliated with ISIS, attacked the Reina nightclub in Istanbul, Turkey. Plaintiffs have sued three social media companies, namely, Twitter, Inc.; Google, Inc. (for its YouTube product); and Facebook, Inc. According to Plaintiffs, Defendants have, e.g., provided material support to a terrorist or terrorist organization in violation of the Antiterrorism Act ("ATA"), see 18 U.S.C. §§ 2333(a), 2339A, 2339B, 2339C, and aided and abetted and/or conspired with a person who committed an act of international terrorism in violation of the Justice Against Sponsors of Terrorism Act ("JASTA"), which amended the ATA. See id. § 2333(d); see also 130 Stat. 852 (2016). Currently pending before the Court is Defendants' motion to dismiss Plaintiffs' first amended complaint ("FAC").
Having considered the parties' briefs and the oral argument of counsel, the Court hereby
In their FAC, Plaintiffs allege as follows.
ISIS uses Defendants' social media platforms "to promote and carry out its terrorist activities." FAC ¶ 11. For example, ISIS uses Defendants' platforms to do the following. See FAC ¶ 12.
According to Plaintiffs, prior to the Reina attack, "Defendants refused to actively monitor [their] online social media networks" and "generally only reviewed ISIS's use of [their] services in response to third party complaints." FAC ¶ 402; see also FAC ¶¶ 410, 414. In some instances, even after being alerted, Defendants found that ISIS did not violate their policies and allowed the ISIS-affiliated accounts to remain active. See FAC ¶ 403. In other instances, after Defendants blocked or suspended ISIS-affiliated accounts, they "did not make substantial or sustained efforts to ensure that ISIS would not reestablish the accounts using new identifiers." FAC ¶ 404; see also FAC ¶ 469 (providing an example of a reestablished account).
Plaintiffs maintain that "Defendants have tools by which [they] can [easily] identify, flag, review, and remove ISIS accounts." FAC ¶ 463. See, e.g., FAC ¶ 479 (alleging that "a content-neutral algorithm could be easily developed that would prohibit" reestablished accounts where the account holder's name was only minimally changed).
On January 1, 2017, ISIS engaged in a terrorist attack at the Reina nightclub in Istanbul, Turkey. Dozens of people were injured or killed. Plaintiffs' family member, Mr. Alassaf, was one of the persons who was killed. See FAC ¶ 325.
ISIS's use of Defendants' social media platforms to, e.g., recruit, raise funds, spread propaganda, and plan and execute terror attacks, "has enabled [ISIS] to carry out or cause to be carried out, numerous terrorist attacks," including that on the Reina nightclub. FAC ¶ 12; see also FAC ¶ 331 (alleging that "[t]he stated goal of ISIS to use social media, including Defendants' platforms, services, computers, and communications equipment, to assist in carrying out their terrorist attacks throughout the world"); FAC ¶ 333 (alleging that "Defendants' services allow ISIS to carry out its terrorist activities, including recruiting, radicalizing, and instructing terrorists, raising funds, and creating fear").
The Reina attack was carried out by Abdulkadir Masharipov. See FAC ¶ 334. Mr. Masharipov was radicalized in the years leading up to the attack. See FAC ¶ 341. He was "radicalized by ISIS's use of social media." FAC ¶ 493.
Prior to the attack, there was a year-long coordination and communication between Mr. Masharipov and "Islamic State emir Abu Shuhada." FAC ¶ 334; see also FAC ¶ 339 (alleging that, during his interrogation, Mr. Masharipov stated that he was given orders by an Islamic State emir "to travel to Turkey to establish himself, along with his wife and two children, and await further orders"). Approximately a week before the attack, Mr. Shuhada directed Mr. Masharipov to launch the attack. See FAC ¶ 343. At some point, ISIS gave Mr. Masharipov footage from inside the Reina nightclub which he "viewed `over and over' to memorize the floor plan ... and plan his attack." FAC ¶ 371.
There is no indication, however, that ISIS used a social media platform to give Mr. Masharipov that footage. Nor do
Plaintiffs assert that Defendants provide material support to ISIS, or aid and abet ISIS, in the following ways.
Based on, inter alia, the above allegations, Plaintiffs assert the following causes of action:
Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th Cir. 2014).
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
The ATA makes it a crime to, inter alia:
While §§ 2339A, 2339B, and 2339C make it a crime to engage in the conduct so described, civil liability is provided for in § 2333. More specifically, § 2333(a) provides as follows:
18 U.S.C. § 2333(a). A violation of the above criminal provisions "can provide the basis for a [civil] cause of action under § 2333(a)." Fields v. Twitter, Inc., 881 F.3d 739, 743 (9th Cir. 2018).
Section 2333(a) of the ATA provides only for primary or direct liability. See, e.g., Rothstein v. UBS AG, 708 F.3d 82, 97 (2d Cir. 2013) (stating that "it does not appear to us that Congress intended § 2333(a) to permit recovery on such a theory [i.e., aiding and abetting]"). However, the ATA does provide for indirect liability, as reflected by § 2333(d)(2). This was part of the JASTA amendment to the ATA.
Id. § 2333(d)(2) (emphasis added).
Finally, independent of the ATA and JASTA, 50 U.S.C. § 1705 provides that "[i]t shall be unlawful for a person to violate, attempt to violate, conspire to violate, or cause a violation of any license, order, regulation, or prohibition issued under this chapter," and "[a] civil penalty may be
FAC ¶ 64. In addition, 31 C.F.R. § 594.204 provides in relevant part as follows:
31 C.F.R. § 594.204(a).
As Defendants note, Plaintiffs' federal claims assert both direct liability and indirect liability. The direct liability claims are as follows:
The first three claims above are all predicated on the ATA (i.e., § 2333(a)). Although the last claim is predicated on a different federal law (§ 1705), Defendants argue — and Plaintiffs do not disagree — that the same analysis applies to all of the claims with respect to the issues addressed herein. Therefore, the Court focuses on the ATA claims.
Defendants argue for dismissal of the ATA claims on two grounds: (1) Plaintiffs have not plausibly alleged proximate causation, and (2) Plaintiffs have not plausibly alleged that Defendants committed an "act of international terrorism." The Court need only address the first argument.
The ATA's direct liability provision states as follows: "Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor... and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees." 18 U.S.C. § 2333(a) (emphasis added).
The court noted that the "by reason of" language has been used in other contexts, e.g., the Sherman and Clayton Acts and RICO, and inferred that "Congress intended these words to `have the same meaning that courts had already given them' in those contexts." Id. Proximate cause under those statutes have been construed to require some direct relationship. See id. (citing, e.g., Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (RICO)). In addition,
Id. at 746; cf. Bank of Am. Corp. v. City of Miami, ___ U.S. ___, 137 S.Ct. 1296, 197 L.Ed.2d 678, 690 (2017) (holding that "proximate cause under the [Fair Housing Act] requires `some direct relation between the injury asserted and the injurious conduct alleged'"; quoting Holmes).
The Ninth Circuit noted that it was not "hold[ing] that a consideration of foreseeability is irrelevant to, or never required, in a proximate cause analysis"; "foreseeability is another of the `judicial tools' in the proximate cause toolshed." Fields, 881 F.3d at 747. But, "for purposes of the ATA, it is a direct relationship, rather than foreseeability, that is required." Id. at 748. The court was "troubled by the seemingly boundless litigation risks that would be posed by extending the ATA's bounds as far as foreseeability may reach," especially as "[c]ommunication services and equipment are highly interconnected with modern economic and social life, such that the provision of these services and equipment to terrorists could be expected to cause
Turning to the facts of the case before it, the Ninth Circuit held that the plaintiffs failed to adequately plead proximate causation.
Id. at 749-50 (emphasis added).
The instant case is somewhat different from Fields in that, here, Plaintiffs have made one allegation suggesting that Mr. Masharipov's attack was in one way causally affected by ISIS's presence on the social platforms. Specifically, Plaintiffs allege that Mr. Masharipov was "radicalized by ISIS's use of social media." FAC ¶ 493. However, this conclusory allegation is insufficient to support a plausible claim of proximate causation. See Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (noting that conclusory allegations are not entitled to be assumed true).
Plaintiffs do not allege that Mr. Masharipov ever saw any specific content on social media related to ISIS. Nor are there even any factual allegations that Mr. Masharipov maintained a Facebook, YouTube, and/or Twitter account. Furthermore, there are allegations in the complaint suggesting that there were other sources of radicalization for Mr. Masharipov. See, e.g., FAC ¶ 337 (alleging that Mr. Masharipov "had previously received military training with al-Qaeda in Afghanistan in 2011"); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (stating that, "[w]here a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of "entitlement to relief"'"). Finally, a direct relationship is highly questionable in light of allegations suggestive of intervening or superseding causes — in particular, Plaintiffs have alleged that, after becoming radicalized, Mr. Masharipov would have a "year-long communication and coordination [with] Islamic State emir Abu Shuhada" to carry out the Reina attack. FAC ¶ 334. Moreover, Plaintiffs fail to allege any clear or direct linkage between Defendants' platforms and the Reina attack.
Judge Spero held that the above allegation was
Id. at 887 n.8. Significantly, Judge Spero reached this conclusion even applying the plaintiffs' broad definition of proximate cause (i.e., substantial factor), see id. at 886, and not the more limited definition of proximate cause endorsed by the Ninth Circuit in Fields.
Judge Spero also noted that "[t]he only specific organizations that Plaintiffs allege [the shooter] interacted with using Defendants' services are [non-Hamas] groups whose Facebook pages he `liked' — the New Black Panther Party, the Nation of Islam, the Black Riders Liberation Army, and the African American Defense League." Id. at 887.
Finally, Judge Spero held that the plaintiffs could not cure the proximate cause deficiency through an amendment:
Id. at 888.
The Court agrees with Judge Spero's analysis and finds it equally applicable to the direct liability claims in the instant case. Accordingly, Defendants' motion to dismiss the direct liability claims is granted. The dismissal is with prejudice. Previously, the Court stayed proceedings in the instant case because the Ninth Circuit was deciding Fields; after Fields was decided, Defendants moved to dismiss, arguing, inter alia, a failure to adequately plead proximate cause based on Fields. Plaintiffs responded by filing their FAC, which was their opportunity to address any deficiency in proximate cause. At the hearing, Plaintiffs rested their argument on their legal interpretation of proximate cause and did not suggest they could amend the complaint to allege materially different facts. Plaintiffs did not contend, for instance, that they could allege Mr. Masharipov viewed ISIS materials or communicated with ISIS through any of Defendants' social platforms. Because Plaintiffs' FAC still does not adequately plead proximate cause for the direct liability claims, dismissal with prejudice is warranted. See Crosby v. Twitter, Inc., 303 F.Supp.3d 564, 580 (E.D. Mich. 2018) (dismissing all claims with prejudice).
In addition to federal direct liability claims, Plaintiffs also bring federal indirect liability claims — i.e., JASTA claims. As noted above, § 2333(d)(2) provides as follows:
18 U.S.C. § 2333(d)(2) (emphasis added). Plaintiffs' JASTA claims are as follows:
Plaintiffs have expressly tied their aiding/abetting and conspiracy claims to ISIS, and not Mr. Masharipov — i.e., Defendants allegedly aided/abetted ISIS's acts of international terrorism and/or conspired with ISIS who committed acts of international terrorism, both in violation of JASTA. See Opp'n at 15-16.
As an initial matter, the Court notes that it has concerns about Plaintiffs' JASTA claims because Plaintiffs seem to take the position that, in the instant case, ISIS's "act of international terrorism" encompasses all of ISIS's terrorist operations, and not the Reina attack specifically. But it is questionable that this is what Congress intended because that could effectively transform JASTA, § 2333(d)(2), into a statute that provides for liability for aiding/abetting or conspiring with a foreign terrorist organization generally. See Docket No. 74 (Tr. at 21) (Plaintiffs' counsel arguing that, with JASTA, Congress intended "to make it that anybody who helps a terrorist organization should be
Instead, Congress chose to refer to aiding/abetting or conspiring with a person who committed "an act of international terrorism," not aiding and abetting or conspiring with a foreign terrorist organization. Cf. Linde v. Arab Bank, PLC, 882 F.3d 314, 329 (2d Cir. 2018) (noting that "aiding and abetting an act of international terrorism [JASTA, § 2332(d)(2)] requires more than the provision of material support to a designated terrorist organization [ATA, § 2339B]") (emphasis in original). As noted above, JASTA provides:
18 U.S.C. § 2333(d)(2) (emphasis added). This language indicates that the injury at issue must have arisen from "an act of international terrorism" and that the secondary tortfeasor assisted the principal tortfeasor in committing "such an act of international terrorism" (emphasis added). JASTA does not refer to assisting a foreign terrorist organization generally or such an organization's general course of conduct. Notably, this understanding of JASTA is consistent with both Crosby, 303 F.Supp.3d at 564, and Siegel v. HSBC Bank USA, N.A., No. 17cv6593(DLC), 2018 WL 3611967, 2018 U.S. Dist. LEXIS 126152 (S.D.N.Y. July 27, 2018). See Crosby, 303 F.Supp.3d at 573 (stating that plaintiffs "have not alleged any facts that plausibly suggest that any of the defendants [alleged secondary tortfeasors] `aided or abetted' the person (Mateen) who committed the night club attack") (emphasis added); Siegel, 2018 WL 3611967, at *5, 2018 U.S. Dist. LEXIS at *12 (stating that, "[e]ven if the TAC [third amended complaint] alleged that services the defendants [alleged secondary tortfeasors] provided to ARB directly supported AQI and al-Qaeda, ... that would be insufficient[;] [t]he TAC does not allege that the defendants were generally aware that they were playing a role in the November 9 Attack") (emphasis added). And requiring secondary liability to be connected with a specific crime would be consistent with the common law's understanding of aiding and abetting. See, e.g., United States v. Hernandez-Orellana, 539 F.3d 994, 1006-07 (9th Cir. 2008) (discussing "the classic common law elements of aiding and abetting"; "[a]iding and abetting the commission of a specific crime, we have held, includes four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent to commit the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that the principal committed the underlying offense").
But even if Plaintiffs were correct that a JASTA claim is viable based on a defendant's assistance of a foreign terrorist organization or such an organization's general course of conduct, the specific allegations made in the complaint fail to establish
Linde, 882 F.3d at 329. In the instant case, Plaintiffs have failed to adequately allege the second and third elements above.
Regarding the second element — i.e., the intent element — the Linde court explained that a plaintiff does not have to show that the defendant knew of the specific attack at issue, but that the plaintiff does have to show more than just a defendant's knowledge of the foreign terrorist organization's connection to terrorism. See id. at 329-30. More specifically, the plaintiff must show that the defendant intended to further the organization's terrorist activities or at least was "`generally aware'" that, through its actions, the defendant "was thereby playing a `role' in [the organization's] violent or life-endangering activities." Id. at 329. And, the court underscored, playing a role in a foreign terrorist organization's activities is more than just providing material support to such an organization. See id. (noting that "aiding and abetting an act of international terrorism requires more than the provision of material support to a designated terrorist organization[;] [a]iding and abetting requires the secondary actor to be `aware' that, by assisting the principal, it is itself assuming a `role' in terrorist activities") (emphasis in original). For example, if a defendant bank were to learn that transfers it had been asked to make constituted payments for suicide bombings, that could support a finding that "the bank was aware that by processing future transfers it was playing a role in violent or life-endangering acts whose apparent intent was to intimidate or coerce civilians or to affect a government." Id. at 330.
Here, Plaintiffs have failed to adequately allege that Defendants were generally aware that, through their actions, they were playing or assuming a "role" (as required in Linde) in ISIS's terrorist activities. There is no allegation, for example, that Defendants knew that ISIS members had previously used Defendants' platforms to communicate specific plans to carry out terrorist attacks. Defendants' purported knowledge that ISIS previously recruited, raised funds, or spread propaganda through Defendants' platforms that is more akin to providing material support to a foreign terrorist organization than assuming a role in terrorist activities.
Finally, even if the intent element were satisfied, the third element of aiding and abetting liability requires "substantial assistance" on the part of the defendant.
Id. at 329; see also id. at 330-31 (noting that, while "[c]ausation focuses on the relationship between an alleged act of international terrorism and a plaintiff's injury," "aiding and abetting focuses on the relationship between the act of international
In the instant case, there are insufficient allegations of substantial assistance given that, as discussed above, there are insufficient allegations that Defendants played a role in any particular terrorist activities. And no reasonable jury could find substantial assistance taking into account the six factors above. For example, in Halberstam, the D.C. Circuit indicated that, for factor (2), i.e., the amount and kind of assistance given the principal wrongdoer, the assistance given by the defendant should play a "major part in prompting the tort" or be "integral" to the tort in order to be considered substantial assistance. Halberstam, 705 F.2d at 484. Here, Plaintiffs have failed to allege that Defendants played a major or integral part in ISIS's terrorist attacks; for example, there are no allegations that ISIS has regularly used Defendants' platforms to communicate in support of terrorist attacks. Also, for factor (4), i.e., the defendant's relation to the principal wrongdoer, the Halberstam court indicated that a close relationship or a relationship where the defendant had a position of authority could weigh in favor of substantial assistance. See id. Here, there is no real dispute that the relationship between Defendants and ISIS is an arms'-length one — a market relationship at best. Rather than providing targeted financial support, cf. Linde, 882 F.3d at 330 (indicating that a jury might be able to find substantial assistance where bank provided financial services and there was some evidence that, before the attacks at issue, the bank that "the transfers being requested therein were payments for suicide bombings"), Defendants provided routine services generally available to members of the public. Cf. Crosby, 303 F.Supp.3d at 577 (in analyzing ATA claim pursuant to § 2339B for material support, stating that "the failure to allege facts to show knowledge of a foreseeable connection to terrorist acts is fatal to the material support claims, particularly where the only allegations of the amended complaint are that defendants provided `routine' services knowingly only generally that some (unidentified) users could be affiliated with terrorism"). As to factor (5), i.e., the defendant's state of mind, the Halberstam court indicated that, where the defendant "showed he was one in spirit" with the principal wrongdoer, id., that could also weigh in favor of substantial assistance. Cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (noting that, "[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims"). But here there is no allegation that Defendants have any intent to further ISIS's terrorism.
For all of the foregoing reasons, the Court dismisses the JASTA claims. As above, the dismissal is with prejudice as Plaintiffs did not indicate that they could plead additional allegations to support the aiding-and-abetting or conspiracy claims.
This leave only Plaintiffs' state claims, which are negligent infliction of emotional distress and wrongful death. As with the federal direct liability claims, Defendants argue that Plaintiffs have failed to adequately allege proximate cause.
The state claims are therefore dismissed, and with prejudice. At the hearing, Plaintiffs made no attempt to argue that they could make additional allegations that would cure the proximate cause deficiency.
For the foregoing reasons, the Court grants Defendants' motion in its entirety and orders the Clerk of the Court to enter a final judgment in Defendants' favor in accordance with this opinion. The Clerk of the Court shall also close the file in this case.
This order disposes of Docket No. 62.
Moreover, JASTA's amendment to the ATA is immaterial because Defendants are simply making a proximate cause argument on Plaintiffs' direct liability claims, and not their indirect liability claims (with only the latter being covered by JASTA).
