{"id":8573,"date":"2021-04-02T01:51:06","date_gmt":"2021-04-02T05:51:06","guid":{"rendered":"https:\/\/charityandsecurity.org\/?p=8573"},"modified":"2022-05-11T17:22:26","modified_gmt":"2022-05-11T21:22:26","slug":"keren-kayemeth-leisrael-jewish-national-fund-v-education-for-a-just-peace-in-the-middle-east-d-b-a-us-campaign-for-palestinian-rights","status":"publish","type":"post","link":"https:\/\/charityandsecurity.org\/litigation\/keren-kayemeth-leisrael-jewish-national-fund-v-education-for-a-just-peace-in-the-middle-east-d-b-a-us-campaign-for-palestinian-rights\/","title":{"rendered":"Keren Kayemeth LeIsrael-Jewish National Fund v. Education for a Just Peace in the Middle East d\/b\/a US Campaign for Palestinian Rights"},"content":{"rendered":"
Plaintiffs brought an action against the US Campaign for Palestinian Rights under the Anti-Terrorism Act claiming that, by acting as fiscal sponsor for the Boycott National Committee, a coalition of organizations in Palestine, the USCPR should be held liable for injuries caused by incendiary kites and balloons launched into Israel from Gaza. USCPR\u2019s motion to dismiss for failure to state facts supporting this claim was granted in March 2021.
\n____________________________________________________________________________________________________________________________________________________________________________________________<\/p>\n
In November 2019 the Jewish National Fund and 12 individual Americans living in Israel filed suit<\/a> against Just Peace in the Middle East, a U.S. charity d\/b\/a the US Campaign for Palestinian Rights (USCPR). The suit made claims under the Anti-Terrorism Act for damages caused by incendiary devices launched into Israel from Gaza by unnamed persons. JNF argued that USCPR was liable because it collects funds from U.S. donors for the Boycott National Committee (BNC) in Palestine and one of BNC\u2019s members is a coalition that includes Hamas, which the State Department has designated a Foreign Terrorist Organization (FTO). USCPR\u2019s motion to dismiss<\/a>, filed March 5, 2020, argues that the plaintiffs did not alleged facts to support their conclusions, that USCPR\u2019s activities are lawful, that plaintiffs relied on guilt by association and did not allege facts that would \u201cbridge the gap between these lawful, peaceful and protected acts and the damage caused…\u201d USCPR\u2019s motion to dismiss was granted<\/a> by the United States District Court for the District of Columbia on March 29, 2021. The court said the plaintiff\u2019s arguments \u201care, to say the least, not persuasive.\u201d JNF asked the court to reconsider, and after the court denied that request appealed the case<\/a> to the U.S. Circuit Court for the District of Columbia, where the case is pending<\/a>.<\/p>\n The Anti-Terrorism Act<\/a> (ATA) allows any U.S. national suffering injury due to an act of international terrorism to sue in federal court and, if successful, recover triple damages. (18 USC 2333(a)) The standard to establish liability (18 USC 2333(d)(2)) is for an act of international terrorism to be \u201ccommitted, planned, or authorized\u201d by a designated FTO (direct liability) or \u201cany person who aids and abets, by knowingly providing substantial assistance, or conspires with the person who committed such act of terrorism\u201d (indirect liability).<\/p>\n JNF\u2019s suit was based on three allegations against USCPR:<\/p>\n District (Trial) Court Proceedings<\/strong><\/p>\n JNF filed its opposition to the Motion to Dismiss<\/a> 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\u2019 actions based on a \u201cchain of liability\u201d theory.<\/p>\n USCPR\u2019s Reply<\/a>, filed June 9, 2020, argued that JNF had presented suppositions rather than facts and that, \u201cStripped 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\u2019s acts were a \u2018substantial factor\u2019 \u2013 or any factor at all \u2013 \u201cin the sequence of events that led to Plaintiffs\u2019 injuries….\u201d (p. 8)<\/p>\n The court\u2019s opinion<\/a> dismissing the case rejected plaintiffs\u2019 arguments, stating that \u201cPlaintiffs\u2019 conclusory assertions that the US Campaign directly financed or supported Hamas, lacking in any specific factual basis, cannot save plaintiffs\u2019 direct liability claims\u201d (p. 7), and that \u201cplaintiffs have failed to state claim for aiding-and-abetting liability under the ATA.\u201d (p. 11)<\/p>\n The court explained that plaintiffs\u2019 claims \u201cdo not plausibly allege that defendants cause their injuries.\u201d (p, 4) The plaintiffs did not allege facts to show USPCR\u2019s financial support to the BNC Committee, Great Return March and Stop the JNF Campaign was a \u201csubstantial factor in the sequence of events that led to their injuries\u201d or that the injuries were \u201creasonably foreseeable or anticipated as a natural consequence.\u201d (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\u2019s \u201csupport of the BNC and other groups are simply too removed from a terrorist act or organization to state a claim under the ATA.\u201d (p, 6) The court also found that JNF failed to meet the six-factor test to establish liability for aiding and abetting. The plaintiffs\u2019 state claims were also dismissed.<\/p>\n Court of Appeals Proceedings<\/strong><\/p>\n JNF\u2019s appeal brief<\/a>, 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.<\/p>\n 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 \u201cthere is little to noting that happens on Gaza that Hamas does not know about approve and support,\u201d including launch of incendiary kites and balloons during the Great Return March.<\/p>\n In its response brief<\/a>, filed March 1, 2022, USCPR points out that \u201cPlaintiffs Complaint is replete with suggestions of guilt by association. No allegations link the US Campaign to burning kites and balloons or rockets\u2026\u201d) It then points out that JNF\u2019s allegations \u201cboil 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.<\/p>\n On the issue of indirect liability, JNF relied on the appeal court\u2019s 2022 decision in Athchley<\/a> v. AstraZenica UK Limited in which it set out three elements and six factors needed to establish indirect liability.\u00a0 It argues that USCPR meets the criteria for each one without citing specific facts outside of USCPR\u2019s role as fiscal sponsor for the BNC or its general advocacy in support of the Great Return March.<\/p>\n USCPR\u2019s response brief provides a detailed analysis of JNF\u2019s failure to allege adequate facts to support its claims, concluding that \u201cAtchley 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<\/sup> at 220-21).\u201d<\/p>\n JNF filed its final appellant brief<\/a> on April 26, 2022, and USCPR filed its final appellee brief<\/a> on April 29, 2022. Oral arguments are pending.<\/p>\n Last updated: May 11, 2022<\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div><\/div><\/div><\/div><\/div>\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":8,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[37],"tags":[],"yoast_head":"\n\n