While countless news outlets have reported the recent Congressional override of President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), few have given much thought to the more nuanced consequences that JASTA could have on private businesses. While the primary goal of JASTA was to allow the families of victims of the September 11, 2001 terrorist attacks to bring suit against the government of Saudi Arabia for its alleged role in financing or otherwise supporting the attacks, JASTA also threatens private businesses with liability through a provision permitting plaintiffs to sue third parties for indirectly supporting terrorist organizations.
Discussions surrounding JASTA have focused primarily on the Act’s erosion of foreign sovereign immunity—which generally protects countries from being sued in the courts of foreign nations—as well as on the effect of the Act on the relationship between the United States and Saudi Arabia and the broader Middle East. But JASTA also has the potential to bring about more subtle, but significant, consequences for private businesses.
JASTA amends the Anti-Terrorism Act (ATA), which was enacted in 1990, to allow American nationals to file civil suits in federal court to recover for injuries resulting from international terrorism. ATA proved an impractical tool for recovering from individual terrorists, however, so after 9/11, victims and their families began suing third-party businesses and institutions for their indirect support—their “aiding and abetting”—of the terrorists who caused the plaintiffs’ injuries. Trial courts split over the issue of whether ATA actually permitted such suits. The U.S. Court of Appeals for the Second Circuit expressly rejected the proposition, but then Congress enacted JASTA.
Section 4 of JASTA provides that “liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” This provision allows a plaintiff damaged by acts of international terrorism to file suit against corporations and other entities that indirectly supported the individual terrorist or terrorist group responsible for the plaintiff’s injuries. Consequently, JASTA opens the door to potential suits against, to name a few, manufacturers of weapons or other materials used in terrorist attacks, communication providers that facilitate coordination among perpetrators of terrorist attacks, and financial institutions that house the coffers used to fund terrorist groups.
The latter category has already fallen prey to litigation under ATA and comparable enactments, such as the Alien Tort Claims Act (ATCA), which vests federal courts with jurisdiction over claims by foreign citizens for violations of international law, including human rights abuses and war crimes. Corporate defendants have found themselves threatened with liability under ATA and ATCA for aiding and abetting human rights violations and acts of terrorism, and JASTA could open yet another avenue of attack.
For instance, in Linde v. Arab Bank, PLC, 353 F. Supp. 2d 327 (E.D.N.Y. 2004), victims and families of victims of terrorist attacks in Israel filed suit under ATA and ATCA against a Jordanian bank (which had a branch office in New York), claiming that the bank had aided and abetted the terrorist group responsible for the attacks by providing financial services and support to the group. Likewise, in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), plaintiffs filed suit under ATCA against dozens of corporate defendants, including American companies, that had done business with South Africa during the country’s apartheid period, alleging that the defendants had collaborated with the South African government in maintaining the repressive and racially based system.
If the jurisprudence surrounding ATA and ATCA is any indication, JASTA presents a new risk of potential liability for corporations and institutions that can be accused of indirectly supporting international acts of terrorism. And the pleading requirements are no more stringent for civil claims under ATA than for run-of-the-mill contract or tort claims. Consequently, although the proliferation of such claims may be an unintended consequence of JASTA, private businesses face the risk of being forced to expend significant resources defending aiding and abetting claims asserted under ATA as amended by JASTA.
Further compounding this problem is the real possibility that foreign nations may enact their own versions of JASTA, allowing their citizens to sue American government officials, members of the military and even American companies based on bare accusations of aiding and abetting terrorism. And there is nothing to say that such foreign statutes would even include a knowledge requirement. JASTA thus opens a door to potential liability for American businesses that may prove difficult to shut.
For now, the legal landscape is unclear and the potential repercussions of JASTA are unknown. Precisely what types of acts qualify as “substantial assistance” and what level of knowledge is sufficient to sustain a finding of liability will be determined over time. However, it is essential that foreign entities, as well as American companies doing business abroad, recognize the risks posed by JASTA and the potential for liability under the newly amended ATA.