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Extracted Text (OCR)
In re Terrorist Attacks on September 11, 2001, 392 F.Supp.2d 539 (2005)
10 A.L.R. Fed. 2d 789
Conspiracy and aiding and abetting
are varieties of concerted-action
liability: conspiracy requires an
agreement to commit a tortious act
..., aiding and abetting requires that
the defendant have given
substantial assistance or
encouragement to the primary
wrongdoer.... In order to be liable
for acting in concert with the
primary tortfeasor under either
theory, the defendant must know
the wrongful nature of the primary
actor’s conduct.
Pittman v. Grayson, 149 F.3d 111, 122—23 (2d Cir.1998).
Accordingly, to survive these Rule 12(b)(1) motions to
dismiss, Plaintiffs must plead facts from which it
reasonably can be inferred that the Defendants knew or
should have known that their tortious actions were
supporting terrorists or terrorist fronts. Terrorist Attacks [,
349 F.Supp.2d at 800-01; see also Boim v. Quranic
Literacy Inst., 291 F.3d 1000, 1023 (7th Cir.2002) (“Boim
IT” ) (explaining elements of concerted-action civil
liability under ATA); Virtual Countries, 300 F.3d at 241
(“Determining whether [Plaintiffs have demonstrated that
one of the FSIA’s exceptions applies] involves a review
of the allegations in the complaint, the undisputed facts, if
any, placed before *555 the court by the parties, and—if
the plaintiff comes forward with sufficient evidence to
carry its burden of production on this issue—resolution of
disputed issues of fact.””) (internal quotations omitted).
1. SHC
101 Even if Plaintiffs alleged that SHC was tortiously
liable for the attacks of September 11, such allegations
could not overcome the discretionary function exception.
SHC offers undisputed evidence that all decisions
regarding the distribution of humanitarian relief funds
were within the sole discretion of its Chairman Prince
Salman and the advisors he selected. (See Al—Nafissa
Decl. § 8.) Further, SHC was guided by the Kingdom’s
policies regarding Bosnia—Herzegovina in making its
funding determinations. Ud. § 3.) Accordingly, SHC’s
alleged misuse of funds and/or inadequate
record-keeping—even if it resulted in the funds going to
terrorists—was the result of a discretionary function and
cannot be the basis for overcoming SHC’s immunity. See
U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense
WESTLAW
(Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81
L.Ed.2d 660 (1984) (explaining FTCA discretionary
function exception is designed to “prevent judicial
‘second-guessing’ of ... decisions grounded in social,
economic, and political policy through the medium of an
action in tort”); Marchisella, 2004 WL 307248, at *2
(explaming the FSIA’s discretionary function exception
replicates that found in the FTCA and that courts rely on
the FTCA for guidance in interpreting the scope of the
FSIA’s exception); Kline v. Kaneko, 685 F.Supp. 386,
392 (S.D.N.Y.1988) (explaining sovereign’s decisions
regarding formation and enforcement of national policies
are discretionary functions); 28 U.S.C. § 1605(a)(5)(A)
(stating torts exception is not applicable to claims based
discretionary actions, even when that discretion is
abused). Accordingly, the Court finds SHC is immune
from suit in this litigation. Its motions to dismiss the
Ashton, Burnett, and Federal complaints for lack subject
matter jurisdiction are granted.
2. Prince Salman and Prince Naif
1111 Similarly, even if Plaintiffs adequately plead a tort
against Prince Salman and Prince Naif, the discretionary
function exception prevents this Court from exercising
jurisdiction over them in their official capacities.
Plaintiffs take issue with Prince Salman’s management of
SHC and its funding decisions. Prince Salman’s direction
of SHC, however, is discretionary. He was appointed
President of SHC by King Fahd to carry out the
Kingdom’s policy toward the refugees of the Bosnian
war. (Al-Roshood Decl. § 6; Al-Nafissa Decl. § 5.)
Plaintiffs claim that as Chairman of the General Donation
Committee for Afghanistan he assisted the Afghanistan
mujahideen in the 1980s. To the extent Prince Salman
held this position as a member of the Saudi government,
this was also a policy decision made at the operational
level of government. Plaintiffs claim Yasser Arafat
complained to Prince Salman as Governor of Riyadh
regarding Saudi funding of extremists in Palestine.
Plaintiffs do not allege, however, what relation that
complaint has to the al Qaeda terrorists or this litigation.
They argue that Prince Salman, who did not attend the
meeting with the former French Minister of Interior,
should have known from Saudi officials who did meet
with him that unnamed terrorists were receiving funding
from largely unidentified Saudi charities.* See *556
Terrorist Attacks [ 349 F.Supp.2d at 799. The Saudi
attendees’ decisions concerning with whom the French
Minister’s warnings should be shared and what the Saudi
response would be, are surely grounded in social,
economic, and political policy, and are, therefore, not
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| Filename | HOUSE_OVERSIGHT_017919.jpg |
| File Size | 0.0 KB |
| OCR Confidence | 85.0% |
| Has Readable Text | Yes |
| Text Length | 5,013 characters |
| Indexed | 2026-02-04T16:33:29.700450 |