District (Trial) Court Proceedings
JNF filed its opposition to the Motion to Dismiss on May 19, 2020. It repeatedly claimed, without factual support, that the BNC is comprised of listed Foreign Terrorist Organizations. It makes extensive claims against Hamas and then argues that USCPR should be held liable for Hamas’ actions based on a “chain of liability” theory.
USCPR’s Reply, filed June 9, 2020, argued that JNF had presented suppositions rather than facts and that, “Stripped of conclusory and unfounded assertions, the Opposition would be forced to confront the issue actually before this Court: that the allegation that the US Campaign served as a fiscal sponsor of the BNC and made statements in support of the protesters at the Great Return March are insufficient to state a plausible claim that the US Campaign’s acts were a ‘substantial factor’ – or any factor at all – “in the sequence of events that led to Plaintiffs’ injuries….” (p. 8)
The court’s opinion dismissing the case rejected plaintiffs’ arguments, stating that “Plaintiffs’ conclusory assertions that the US Campaign directly financed or supported Hamas, lacking in any specific factual basis, cannot save plaintiffs’ direct liability claims” (p. 7), and that “plaintiffs have failed to state claim for aiding-and-abetting liability under the ATA.” (p. 11)
The court explained that plaintiffs’ claims “do not plausibly allege that defendants cause their injuries.” (p, 4) The plaintiffs did not allege facts to show USPCR’s financial support to the BNC Committee, Great Return March and Stop the JNF Campaign was a “substantial factor in the sequence of events that led to their injuries” or that the injuries were “reasonably foreseeable or anticipated as a natural consequence.” (p. 5) It noted that the presence of an intermediary (here the BNC Committee) attenuates the chain of causation. Since plaintiffs did not allege USCPR gave direct support Hamas. The court found that USCPR’s “support of the BNC and other groups are simply too removed from a terrorist act or organization to state a claim under the ATA.” (p, 6) The court also found that JNF failed to meet the six-factor test to establish liability for aiding and abetting. The plaintiffs’ state claims were also dismissed.
Court of Appeals Proceedings
JNF’s appeal brief, filed on Jan. 24, 2022, argued that its factual allegations are sufficient to meet the legal test for the case to proceed as to both direct and indirect (aiding and abetting) liability. JNF notes that case law requires the Court of Appeals to treat its allegations a true and give it the benefit of all inferences in deciding whether its complaint is adequate.
It then argues that its claim for direct liability is adequate because the BNC is controlled by Hamas, basing this on the broad allegation that “there is little to noting that happens on Gaza that Hamas does not know about approve and support,” including launch of incendiary kites and balloons during the Great Return March.
In its response brief, filed March 1, 2022, USCPR points out that “Plaintiffs Complaint is replete with suggestions of guilt by association. No allegations link the US Campaign to burning kites and balloons or rockets…”) It then points out that JNF’s allegations “boil down to three actions it took as part of its advocacy for Palestinian rights. These are 1) serving as the U.S, fiscal sponsor for the BNC, 2) posting social media comments about the Great Return March and urging supporters to contact Congressional representatives and 3) participating in the Stop the JNF Campaign. USCPR points out that there are no allegations its funds went to Hamas or that it had ties to any group other than the BNC. The remaining activities alleged all involve speech protected by the First Amendment.
On the issue of indirect liability, JNF relied on the appeal court’s 2022 decision in Athchley v. AstraZenica UK Limited in which it set out three elements and six factors needed to establish indirect liability. It argues that USCPR meets the criteria for each one without citing specific facts outside of USCPR’s role as fiscal sponsor for the BNC or its general advocacy in support of the Great Return March.
USCPR’s response brief provides a detailed analysis of JNF’s failure to allege adequate facts to support its claims, concluding that “Atchley did not, of course, exempt Anti-Terrorism Act claims from the requirement that pleadings must rely on factual allegations, not conclusory statements. See Atchley, 22 F.4th at 220-21).”
JNF filed its final appellant brief on April 26, 2022, and USCPR filed its final appellee brief on April 29, 2022. Oral arguments are pending.
Last updated: May 11, 2022