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Case number 20-7-57.

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Joshua Ashley Edel at Balance versus Mascara Zuniga UK Limited, Edel.

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Mr. Branson for the at Balance, Ms.

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Palat for the FLEs.

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Good morning.

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I think the last time we were here on this case, we were not here.

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We were by Zoom, so it's nice to see you all in person.

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Thank you, Judge Pillard and may please the court.

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Nearly three years ago, this panel upheld the complaint because it alleges plausibly.

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Wait, can you bring that up a little bit?

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I think it's at its maximum height, unfortunately.

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Can I lean forward maybe?

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Would that help?

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So nearly three years ago, this panel upheld the complaint.

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because it alleges plausibly that the defendants paid bribes in cash and in kind to people they knew were terrorists.

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That stated a claim before Twitter, and it states a claim now.

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The rule from Twitter is that an aider in a better's conduct must reveal conscious, voluntary, and culpable participation in a terrorist attack, and it instructs courts to apply a sliding scale approach.

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that balances three basic inputs, substantiality, cyanter, and nexus.

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Across all three of those dimensions, this unusually detailed complaint is in another universe from the passive inaction claim that Twitter rejected.

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Now for the defendants to come up with a liability rule that would exclude even this complaint, they have to transform Twitter's sliding scale approach into a bright line rule about terroristic intent and a strict nexus to each terrorist attack.

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That bright line rule not only misreads Twitter and the common law tradition that the Supreme Court invoked, but it also would gut the statute by extinguishing liability in virtually all cases involving terrorist financing.

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And if we know anything about the Anti-Terrorism Act, it's that Congress meant to curtail terrorist financing by adopting an unrealistic legal rule

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The defendants would forward Congress's aim that it expressed in the text of the statute to impose the broadest possible basis, quote unquote, for civil liability against those who give material support to terrorists.

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Can I ask you a question?

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Go ahead.

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Question.

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I'll ask about size, but I'd like to hear what your answer is.

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One of the things that you both quote a lot and that the court said in Twitter is,

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Will the defendants consciously, voluntarily, and culpably participate?

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What does culpability mean to you in this context of this case?

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I mean, you're both using it, freewheeling use, but that's not very helpful to me.

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I need to know what you have in mind, because I think it affects a lot how this case is to be decided.

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So like much of Twitter, Judge Edwards, I don't think there's a bright line rule that will tell you what is culpable and what is not in every case.

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I use this case as a starter.

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So in this case, I think there's two things that make the transactions culpable.

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One is... What transactions?

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the transactions that the defendants executed with the Ministry of Health.

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And the first thing about them are the bribes that they paid to obtain the transactions.

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And we've emphasized this quite a lot in our brief, the corrupt structure of those payments.

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Let me follow up right here while it's in my head, thinking about it.

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If these were not bribes, would the case be decided the same way?

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It would be a closer case for sure, Judge Edwards.

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Because?

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Because the common law treats, to go to your culpability question, the common law views atypical transactions as more culpable under the law of aiding and abetting.

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That is in several of the cases I cited.

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The Camp case from the Eighth Circuit is a good example of that.

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The common law courts that Twitter relied on often look to, is this type of transaction routine or not?

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If it's routine, that doesn't mean the plaintiff loses, but that means that they have a higher standard under the sliding scale approach.

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OK, so you know where this is going to take me now.

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I suspected that was your answer.

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Their response to you is, this is routine in dealing with these folks.

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People do bribe, and they pay off, and that's just the way they do business.

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And so if you're saying it matters that there's bribery here to give us an understanding of what culpability means, their response should be, you can't rest on that because bribery is the way we do business, the way they do business.

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There's two answers to that, Judge Edwards.

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First is that you don't define whether conduct is routine by looking at how often does your counterparty do it.

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The common law looks to is the conduct routine within traditional accepted common law principles of behavior and bribery.

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It's not within the relationship between these parties, within the relationship between the defendants and Jaishalmati in control of the health ministry, but across these types of transactions.

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That's correct.

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And I think, Judge Edwards, if you took your logic too far, that would mean that you could avoid aiding and abetting liability by simply doing the conduct a lot.

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And I don't think that's the way the common law works.

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I think if it's across different transactions.

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So does anything in the complaint allege that the defendant's conduct of allegedly giving free goods and cash bribes to Jaishal Mahdi to grow their market share are not the same treatment that pharmaceutical companies ordinarily give to clients?

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Well, certainly not in Iraq, Judge Pillard.

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I think we have alleged that free goods and cash bribes were unfortunately prevalent in Iraq, dating back to oil for food.

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And I would just note, Judge Pillard and Judge Edwards, to your question, this was prosecuted under oil for food.

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Very similar conduct.

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But I'm asking a different question.

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We understand that this is, as in your alleging, that this is sort of the heir to the

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That's correct.

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And sort of gave them the idea of how they could siphon off some extra cash from what might be a legitimate, otherwise legitimate transaction.

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But that's the history of these parties.

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What I'm asking about is to the extent that Twitter

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emphasizes that the services that the platforms gave were given to billions of people in the same way, that they were neutral in that sense with respect to ISIS versus other users.

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I guess my question is, analogously, what's your response based on your complaint that it isn't common practice for providers of medical goods in

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whether it's Gaza or Somalia or Libya to do this kind of conduct.

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Well, I'm not sure even the defendants would claim it is routine.

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We have not alleged in the complaint, Judge Pillard, what the prevalence of these practices are throughout the world.

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I certainly don't think it's standard practice for pharmaceutical companies to pay bribes in, let me give you an example, in France or in England.

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And I think the point my answer to judge Edwards was important because it's not just judge pillar that oil for food gave them the idea, but that this was a criminal scheme under oil for food Johnson Johnson entered a deferred prosecution agreement agreeing.

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that they had acted illegally.

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That's at paragraphs 262 to 265 of the complaint.

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And it surely cannot be that conduct that is criminal in the United States counts as routine under the common law culpability test that we've been applying.

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But the other point, Judge Pillard, that I think is- Why is that so clear?

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Well, if you look at the common law cases, Judge, I would- Is it some authority that says that?

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intuitively correct to me.

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It sounds good, but I don't know.

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There are lots of practices in the world, many of which I find strange, but they're not impermissible in the places where they occur, and they may be impermissible in the United States.

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You're saying that as if it's just a given.

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That is not a given to me.

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Well, if it violates US law.

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OK, that's why I'm trying to understand what you mean by culpability.

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So now you're pinning it down.

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If it violates culpability, you've got to violate US law.

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That's not the test, Judge Edwards.

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That is a factor here.

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And I certainly think that's sufficient.

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I'm not saying it's necessary.

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That's what I'm trying to figure out.

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But if you look at, for example, the Woods case and the Camp case, which are two of the civil aiding and abetting cases that we've cited, they don't prescribe a formulaic test that says, here's how you know whether something is routine.

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And these are the three factors you look at.

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Courts do have to evaluate each case on their facts.

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The criminal scheme that we've articulated about oil for food is one very good indicator.

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The second very good indicator is Judge Piller, to your question, not all of the bribes here were even part of the standard practice with commodity at paragraph 136 of the complaint.

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alleges something called off the books payoffs.

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This court credited that allegation in its last opinion.

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And what was so pernicious about those is it wasn't part of the standard bid instructions.

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It was completely off the books where J. Shalmati comes and says, I want you to make a flat payment of free goods.

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that circumvented inventory controls and gave them something to divert for terrorist ends.

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The third factor, Judge Edwards, I think you can look at here is the nexus to terrorism.

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And I take my friend's point that there will be types of culpability that don't move the needle on this inquiry.

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And they gave the example in the reply brief of an illegal gambling ring.

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If Pfizer had been running an illegal gambling ring in their scientific bureau in Iraq, hard to see how that moves the needle on the substantiality question.

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But here, we've alleged at some length that the corrupt structure of the transactions turbocharged the contribution to terrorism, because by their very nature, bribes and free goods in this particular context were especially easy for J.Shammadi to divert

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for terrorist aims.

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And I think that's why it is an important allegation here.

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It's because it does have that nexus to terrorism.

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Let's suppose that the facts that were alleged were instead that there weren't bribes and free goods that were provided, that it was generally known, reported in the press, government reports, et cetera, et cetera, that J.S.

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Shomadi

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essentially pilfered 10% or more of the goods and sold them to fund their operations, and these defendants knew that.

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Why isn't that culpable, guilty knowledge?

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I think it is, Judge Wilkins.

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It's a closer case.

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That's what I was trying to tell Judge Edwards.

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I think that would still be a case that would satisfy the standard.

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It would be closer.

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So any time someone does business with an organization and it's known that that government entity has been partially captured or compromised by a terrorist organization to the tune of, you know,

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them reaping potentially millions of dollars from that business arrangement, there's culpability under the ATA.

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I think each is going, I think each case is going to turn on facts, Judge Wilkins.

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And I, this court has had three cases after actually, of course, it's had Bernhardt, Education for a Just Peace and OVC and

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So I think there's not always going to be culpability if you transact with some entity that has a link to a terrorist group.

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Well, you know.

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Your dissent was very compelling in Bernhardt.

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My hypo, you know that essentially every dollar that you

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Kind of give or dollar of good worth of goods that that goes to the Ministry of Health 10 cents of it is going to go to jayashomadi spots coffins.

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That's a closer case I think that still states a claim judge Wilkins because of the knowledge you just positive which I think is going to be rare and it is telling this court hasn't had a case like that since actually people have tried.

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Bernhardt judge pillard and judge Edwards you probably remember education for a just peace where.

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The plaintiffs came in and essentially tried to sue on Ms.

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Blatt's hypothetical about a nonprofit doing business in Gaza and providing lawful support.

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And there was some link to Hamas.

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And this court rejected the analogy to this case.

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But Judge Wilkins, in your hypothetical, if you know that your transaction is directly benefiting terrorists, which I understand your hypothetical to pose,

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then yes, I do believe that poses culpability under this.

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Do you think that's consistent with the Supreme Court in Tamna?

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I do.

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And I think this goes back to Judge Pillard's question, which was she was asking me, how are what the pharmaceutical companies doing, how is that different from the social media companies?

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And Judge Pillard, I don't think the key to the social media companies was simply that they offered their services to a lot of people.

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There were really three key things.

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One is there was no front end screening by the social media companies.

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So there wasn't any sort of bespoke negotiation with a terrorist controlled counterparty, which would be present in your hypothetical, Judge Wilkins.

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The second is there was no ongoing monitoring.

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The social media companies did not inspect ISIS accounts.

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In fact, in footnote 13 of the opinion, Twitter and Google and Facebook tried to take down the accounts.

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Um, so there was not a sort of ongoing relationship in the sense that I think there would be in your hypothetical.

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And then the third thing was the lack of nexus in Twitter.

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Uh, and I just want to, I want to focus on that because that was missing from your hypothetical, Judge Wilkins.

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I think it, yes, your set of facts will show culpability, although I acknowledge it's a, it's a closer case.

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The corruption

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in my opinion, makes this a much stronger case for us.

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But you do have to have a definable nexus to a terrorist act.

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And one way to read Bernhardt is that the conduct there was incredibly culpable.

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I don't think anybody disputed that.

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It was deliberate sanctions evasion by HSBC helping terrorist affiliated banks evade US sanctions.

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But the problem for the plaintiffs was there was really no definable nexus to the Camp Chapman Al-Qaeda attack in Afghanistan.

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And here, I think what distinguishes our nexus from cases like that is that there's really three factors you can look at, geography, time, and function.

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Suppose they had books.

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They kept accounts.

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Same scenario, except they had kept accounts.

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This money coming from the defendants should be used for high living, for our leaders, charitable activities for those who are harmed by the war in our area, and other such thing.

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And there's another, they stupidly have books that say terrorist activities are paid for out of this account, not the money coming from the defendants.

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Does that make a difference?

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I think everything makes a difference, Judge Edwards, in the sense that this is a common law test, and I know it's definitely- How much we're pushing the knowledge, and Twitter, of course, gives me some pause because it's taking a little heat, a little steam out of the knowledge piece of it.

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You may know, you certainly can't be talking about a rule that if we support bad guys,

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than this aiding and abetting, especially if you know they're bad guys and there's no real connection between the support that you're giving and the bad stuff they're doing.

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That's why I'm trying to understand this culpable.

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You understand what I'm saying?

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I do.

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There's a mobster that has a cigar store and you know they're mobsters and they kill people and you patronize a cigar store and they live very well because of you and they get really good cigars that they sell.

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You're not intending to be in the business of killing.

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Does that matter?

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Yes, it matters, Judge Edwards.

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I agree that all of these facts that you're changing in your hypotheticals matter.

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But ultimately, let me address the two sets of books hypothetical from a few questions ago.

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I don't think ultimately that would negate culpability because money is fungible.

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The point is, and this is something that this court has long rejected.

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Owens III did it, dating all the way back to the Kilbourne case in 2004.

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We don't require dollars to bonds.

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Because money is fungible and because of accounting artifice could eliminate the causal chain like you just posited.

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I think it is significant, Judge Edwards, that that's not alleged here, that there was a discreet account.

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No, no, no.

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I'm just trying to understand.

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Yeah.

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And let me make a suggestion.

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I'm not surprised I'm getting these hypotheticals, but I do think that Twitter explicitly forswore a bright line rule.

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And it said, we want this area to develop through common law.

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adjudication in which every case is going to intensely turn on its facts.

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And so I do think the court can leave for another day these sorts of hypotheticals rather than trying to craft a rule.

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But I think that the way I read Twitter is that to the extent that you don't have sufficient proof of a nexus to a specific attack,

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then in order to be held liable on a systemic basis, the culpability needs to go up to something that approaches Pinkerton liability, culpability, in that they say association, but they mean association in the sense of not just your

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You have some sort of friends or relationship, but association as far as association with purpose.

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And to Judge Edwards' questions, I mean, I'm surprised that you wouldn't say kind of categorically no with respect to the cigar store patron.

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Oh, I'll come back to that then because I didn't get around to it.

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Just being candid with you, not playing poker here, at least I'm not.

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Some of your responses, especially to the hypothetical of somebody just knows that J.S.

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Schomati siphoning off dollars give me a lot of pause because I don't know how to write, how we write an opinion

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that's going to be true to what I think the Supreme Court was getting at was culpability wise.

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And it's not going to cause some of the problems that the government and amicus are worried about.

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So let me take those in order.

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I think the answer to the cigar hypothetical, I didn't get around to it, but I think it is a no.

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Judge Wilkins, let me address the nexus issue first.

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Because I think foreseeability is the touchstone of nexus.

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And you're correct.

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You just, I think, gave a fair reading of the Supreme Court's second paragraph when it rejected the defendant's strict nexus test about pervasive systemic and culpable relationship.

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I agree with that.

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But the first point on nexus is that you don't require dollars to trace to bombs.

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you use a foreseeability rubric to decide if there is a definable nexus.

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And here, these attacks were very closely tied to the assistance in really three ways.

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If I could quickly list them, geography, time, and function.

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So geography, there was a spatial proximity between the aid and the attacks.

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They all took place in Iraq.

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Sadr city was less than 10 miles from the Ministry of Health building.

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And I think this is not a case

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Like Kaplan or like owns three where you have to trace a nexus across halfway around the world.

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So that's point one that the time point is easy.

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There's a complete

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Temporal overlap between the aid and the attack.

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So we are not asking the court to draw a nexus out in perpetuity and Function is one thing judge judge Wilkins I hope will give you some comfort in writing this opinion in that the Ministry of Health was awful.

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It was the nerve center operationally for Jaysh al-Mahdi's terrorist attacks in Iraq and I really do think that

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element of culpability in Nexus distinguishes this case from certainly the charity hypotheticals that have been given.

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They are dealing with an entity that is not just a financial pass through for terrorists.

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It is part of the terrorists architecture for committing attacks.

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And to address, let me try one more time on your hypothetical that's giving you some pause about just goods being diverted.

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I think one way to conceive of that, and this is a hypothetical that was given at the Twitter argument by Justice Kagan, where she asked, let's say you're a bank and you're offering routine banking services.

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And Osama bin Laden walks into the bank and says, I'd like to open a checking.

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I think we would all, Judge Edwards would agree that checking accounts are routine.

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There's nothing atypical about them standing in isolation.

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But they become culpable in light of the counterparty there.

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And here, for all the reasons that Your Honor explained in the last opinion, I think that's a fairly close analogy to this case.

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And dealing directly with that counterparty, even if you eliminate the corruption, which is our lead theory, just to be clear.

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But to address your hypothetical, I think that matters.

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And if you abstract away the counterpart and you just say it's just amorphously somebody is doing business in a country and 10% of the goods are making their way to Hamas or some terrorist organization, I think that is a much harder case than this one.

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Do we need allegations that, or do you need

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in order to clear the Tamne hurdle, allegations that the defendants knew of Hezbollah's reliance on Judge Shalmadi's use of the Ministry of Health resources that the defendants provided?

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I don't think so, Judge Pillard.

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That's the place where I part ways with the government's brief.

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I think if you look at the words in the statute, the knowledge element modifies the substantial assistance component of the inquiry, not the preceding plan or authorized element.

[00:24:38] Speaker 06:
State of mind modifies the acts.

[00:24:41] Speaker 06:
I mean, that's something that the Supreme Court in Twitter purports not to really answer, but then does answer.

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It's not aiding the organizations, it's aiding the ultimate acts.

[00:24:53] Speaker 02:
That's correct.

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But the Supreme Court was clear that you don't need to know every facet of the primary actor's plan.

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And this goes back to my colloquy with Judge Wilkins about how foreseeability is really the nexus.

[00:25:05] Speaker 02:
I'm sorry, is the touchstone for nexus.

[00:25:07] Speaker 02:
So I think in defining that very element, Judge Pillard,

[00:25:10] Speaker 02:
the Supreme Court made clear, at least implicitly, that you don't need to know everything about the primary actor or what they're doing in order to have the requisite knowledge.

[00:25:21] Speaker 02:
And if I postulate a hypothetical of, let's take the most culpable conduct you can imagine.

[00:25:26] Speaker 02:
You give an IED to somebody you know is a terrorist, and you know they're going to use the IED to go murder an American.

[00:25:32] Speaker 02:
I think quite plainly.

[00:25:35] Speaker 04:
Well, it's that second part that's not so straightforward.

[00:25:39] Speaker 04:
You know they're going to.

[00:25:41] Speaker 04:
use this for a particular purpose.

[00:25:43] Speaker 04:
I mean, what is it you're assuming in your hypothetical?

[00:25:46] Speaker 04:
How do you know that?

[00:25:48] Speaker 04:
When you hand them the money, do they say, we're going to go use this?

[00:25:52] Speaker 04:
Sure.

[00:25:53] Speaker 04:
In my hypothetical, yes.

[00:25:54] Speaker 04:
Doesn't it matter?

[00:25:56] Speaker 04:
You seem to be saying it really doesn't.

[00:25:57] Speaker 04:
It's just that you know this person is known to be, and you know you're giving them a lot of money.

[00:26:03] Speaker 04:
And that's what, at least I am wondering, does Twitter go that far?

[00:26:08] Speaker 04:
And when the Supreme Court says plaintiffs point to no act of encouraging, soliciting, or advising the commission of the terrorist attack, that's a tough kind of standard depending on how you look at it.

[00:26:23] Speaker 04:
I can give you the money and just say, have a good day, give you the money and say, attack well.

[00:26:28] Speaker 02:
I agree with that, Judge Edwards.

[00:26:30] Speaker 02:
I don't think that was the legal rule, what you just read, that the Supreme Court adopted.

[00:26:34] Speaker 02:
No, no, I understand there's a lot of stuff in this.

[00:26:36] Speaker 02:
And I really think the civil cases are important to focus on because they do not have that sort of culpability in those cases.

[00:26:45] Speaker 02:
I think some of your questions today have been searching for.

[00:26:48] Speaker 02:
The Woods case is an excellent example from the 11th Circuit, where the bank was held liable for aiding and abetting a fraud by its customers.

[00:26:56] Speaker 02:
the bank had no intent to further the fraud.

[00:27:00] Speaker 02:
The 11th Circuit said the bank had an improper motive, but that motive was to curry favor with the bank's corrupt customer.

[00:27:07] Speaker 02:
That is the very motive that we have alleged in this case.

[00:27:10] Speaker 02:
So I think that's how I would work through that language, Judge Edwards.

[00:27:15] Speaker 02:
But Judge Pillard, I was not using that hypothetical to give a test for assigning culpability, but it was just to show why in that hypothetical, of course, knowledge

[00:27:26] Speaker 02:
of that attacker's affiliation with Al-Qaeda, for example, wouldn't be necessary to hold them liable under this statute.

[00:27:34] Speaker 06:
So the defendants argue that Tamne makes clear that the general awareness that this court relied on in our now vacated opinion is inadequate, that conscious and culpable participation in the tortious action is what's required.

[00:27:53] Speaker 06:
So how do we show?

[00:27:55] Speaker 06:
I mean, maybe you've already answered this with your discussion of nexus.

[00:28:00] Speaker 06:
But if you just read Halberstam, the substantial participation on Linda Hamilton's part, ongoing, was one thing I think that the Supreme Court thought was important.

[00:28:22] Speaker 06:
the unusualness of no money going out.

[00:28:27] Speaker 06:
She's keeping books, lots of things of value coming in.

[00:28:30] Speaker 06:
So she knows burglary.

[00:28:31] Speaker 06:
No hint that she knows or intends or even foresees, maybe, murder.

[00:28:38] Speaker 06:
Is your theory that

[00:28:43] Speaker 06:
I guess, sorry, this is a bit rambling.

[00:28:47] Speaker 06:
So Twitter, the facts in Twitter itself are very attenuated nexus, passive, providing a good to all comers in the same way.

[00:28:57] Speaker 06:
Nothing, as you say, bespoke.

[00:29:00] Speaker 06:
And then I take the court in a rather, with broad strokes, to be defining

[00:29:07] Speaker 06:
a range of other circumstances going all the way to very substantial involvement so that effectively the defendant is responsible for all sorts anywhere.

[00:29:20] Speaker 06:
I know you have kind of a fallback argument relying on that, that they're such substantial.

[00:29:25] Speaker 06:
But I take your argument to be more in the middle ground, your primary argument about how your complaint clears the Tom Ney hurdle.

[00:29:34] Speaker 06:
And part of one of the factors there is whether, as with Linda Hamilton, the defendants here engaged in some wrongdoing.

[00:29:45] Speaker 06:
some intermediate wrongdoing that then made it easier to show the culpability with respect to the ultimate wrongdo.

[00:29:53] Speaker 06:
So she knew that there was burglary going on.

[00:29:56] Speaker 06:
That was part of what was sort of the culpability nexus to the ultimate murder.

[00:30:01] Speaker 06:
And then you cite here to material support statute, can you flesh out

[00:30:08] Speaker 06:
the wrongdoing, the intermediate wrongdoing, as kind of more of a legal matter than a factual matter.

[00:30:13] Speaker 06:
I know you talk about the bribes and the free goods, so that we can understand why you're not going all the way to hand-in-glove activities such that the defendants are responsible for anything that Judge Shalmadi or potentially Hezbollah does anywhere in the world.

[00:30:33] Speaker 02:
I think there's there's two theories, Judge Pillard, and this goes back to perhaps my unsatisfying colloquy with Judge Edwards.

[00:30:41] Speaker 02:
The first is, as I said, the bribery and the corruption.

[00:30:44] Speaker 02:
And you asked me to articulate it as a legal matter.

[00:30:47] Speaker 02:
I think the way I would distinguish that sort of wrongdoing from the hypotheticals in my friend's reply brief is that the corruption had a nexus to the terrorism.

[00:30:58] Speaker 02:
There's a reason the Special Inspector General for Iraq Reconstruction called

[00:31:01] Speaker 02:
corruption in Iraq, the second insurgency.

[00:31:04] Speaker 02:
That's a paragraph 172.

[00:31:06] Speaker 02:
It's because corrupt payments are ready made for the terrorists to divert.

[00:31:11] Speaker 02:
A bribe is just by its nature.

[00:31:14] Speaker 02:
It goes to the individual rather than the institution, and it magnifies the link to terrorism.

[00:31:20] Speaker 02:
The same is true for free goods.

[00:31:22] Speaker 02:
I thought

[00:31:23] Speaker 02:
This court's last opinion well explained why that's true.

[00:31:26] Speaker 02:
I think the court understands the thesis that free goods bypass inventory controls and are easier to divert.

[00:31:32] Speaker 02:
So that's the lead theory.

[00:31:33] Speaker 02:
The second theory I was trying to give to Judge Wilkins is the culpability of the counterparty when you have an individually bespoke negotiated transaction.

[00:31:45] Speaker 02:
So this is not passive social media.

[00:31:47] Speaker 02:
This is active negotiations.

[00:31:50] Speaker 02:
I think that in and of itself

[00:31:52] Speaker 02:
gives rise to an inference of culpability here.

[00:31:55] Speaker 02:
Because there's two ways to view the very mushy culpability concept that Judge Edwards, you've been asking me about.

[00:32:03] Speaker 02:
One is, how does the defendant themselves structure the conduct?

[00:32:08] Speaker 02:
The second is, who is your counterpart?

[00:32:11] Speaker 02:
And I think in the context, and this is important, of an active negotiation that is individually bespoke.

[00:32:17] Speaker 02:
This is not a platform that is open to all comers.

[00:32:20] Speaker 02:
I think that second.

[00:32:22] Speaker 02:
uh, fact matters and

[00:32:25] Speaker 02:
Judge Pillard, I think you fairly characterized my theories in your recitation about, yes, we do allege it's pervasive, systemic, and culpable.

[00:32:34] Speaker 02:
That is principally based on the Zobay case from Judge Ammon in the Eastern District of New York, who I think got this opinion exactly right.

[00:32:41] Speaker 02:
But I don't think the court needs to go that far here.

[00:32:44] Speaker 02:
And one reason I think you know that is you just look at the Google section of the Twitter opinion in which that section addressed a funding claim.

[00:32:54] Speaker 02:
So it was not a passive inaction claim.

[00:32:58] Speaker 02:
It was a funding claim.

[00:33:00] Speaker 02:
And when the Supreme Court got there, and this is pages 505 to 506 of the US Reporter, it didn't invoke intent.

[00:33:07] Speaker 02:
It didn't invoke the common law principles, Judge Edwards, that we've been discussing.

[00:33:13] Speaker 02:
It just said the complaint didn't allege that the amount of money was needed.

[00:33:17] Speaker 02:
And that section of the opinion is really hard to make sense of if you credit the defendant's reading of Twitter writ large.

[00:33:26] Speaker 02:
Because, of course, Google already had an undisputed lack of intent to support ISIS.

[00:33:31] Speaker 02:
And I think the fundamental thing that's giving us trouble with some of these hypotheticals is that this is a sliding scale.

[00:33:38] Speaker 02:
So any time you change the input on one of these factors under Twitter, I think it affects the others.

[00:33:45] Speaker 02:
The final point I'd like to make on this, if I could, is that the line drawing problems and look, I acknowledge I'm not drawing perfect lines today, but the line drawing problems in the other directions are worse.

[00:33:57] Speaker 02:
Because if you adopt this legal rule of specific intent and dollars to bombs nexus, which is what I understand the defendants to be arguing,

[00:34:08] Speaker 02:
It is going to gut this statute.

[00:34:11] Speaker 02:
And I am not aware of a case that has been litigated under the aiding and abetting provisions of this statute that would satisfy the legal rule that the defendants are attributing to Twitter.

[00:34:22] Speaker 02:
And I do not think it is a plausible reading of the Supreme Court's opinion to say we are effectively going to overrule every case that has ever let one of these claims go forward.

[00:34:32] Speaker 06:
Well, I know it sounded like wrapping up, but defendants say passive is in the eye of the beholder.

[00:34:40] Speaker 06:
They say we should read this complaint to allege that defendants ignored the ministry's alleged use of their medical goods, not that the defendants actively directed the products to terrorism.

[00:34:54] Speaker 06:
And I think it's easy to imagine that, all things being equal, these defendants have zero interest in promoting terrorism.

[00:35:05] Speaker 02:
I don't think that's what the Supreme Court meant by active-passive, Judge Pillard.

[00:35:08] Speaker 02:
And you can just read this as at principally page 500 of the US Reporter.

[00:35:13] Speaker 02:
The factors the Supreme Court looked at in defining active versus passive

[00:35:17] Speaker 02:
First, it proceeded from the assumption that these are general communications platforms.

[00:35:21] Speaker 02:
And there, of course, is a long common law.

[00:35:24] Speaker 02:
The Brophy case is one.

[00:35:25] Speaker 02:
The GTE case from Judge Easterbrook in the Seventh Circuit is another.

[00:35:29] Speaker 02:
We've long viewed communications platforms a bit differently.

[00:35:32] Speaker 02:
But even leaving that aside, there's really three facets that I think I identified earlier.

[00:35:37] Speaker 02:
First, there was no front-end screening.

[00:35:39] Speaker 02:
of the customers.

[00:35:40] Speaker 02:
It was a purely you set up the platform and then the platform operator doesn't do anything else.

[00:35:45] Speaker 02:
People just sign up for the platform and the algorithms work automatically.

[00:35:50] Speaker 02:
The second is there was no ongoing inspection of content.

[00:35:54] Speaker 02:
And that was really pivotal to the Supreme Court in that it wasn't monitoring ISIS's use of the platforms.

[00:36:02] Speaker 02:
It didn't have any sort of ongoing interaction with the customers.

[00:36:06] Speaker 02:
It was all mediated through the passive operation of technology.

[00:36:10] Speaker 02:
And then the third, Judge Pillard, goes to your point about the scale of the platforms, which was it served, I think the word was billions of users worldwide.

[00:36:19] Speaker 02:
And that is just not a credible analogy to bespoke pharmaceutical contracts that are being negotiated with this ministry because the defendants want to make more money to prop up

[00:36:32] Speaker 02:
their reference prices.

[00:36:33] Speaker 02:
And so I certainly, I expect after Twitter that every defendant is now going to say, my conduct is passive.

[00:36:40] Speaker 02:
Of course, that's a move they're going to make.

[00:36:42] Speaker 02:
Every bank is going to say what we did is passive.

[00:36:45] Speaker 02:
But if you look at those guide posts I just articulated, I don't think this is, not even close.

[00:36:51] Speaker 05:
But going back to, I think, earlier question by one of my colleagues, don't you at least have to allege

[00:37:01] Speaker 05:
that these contracts with the Ministry of Health were different than the types of contracts that these defendants negotiated and entered into with Ministries of Health or similar types of government entities in other countries.

[00:37:25] Speaker 02:
No, I don't.

[00:37:26] Speaker 02:
I don't agree with that, Judge Wilkins.

[00:37:27] Speaker 02:
And this goes back to a very early colloquy with Judge Edwards.

[00:37:31] Speaker 02:
I don't think you define routine by just asking, how often does the defendant do it?

[00:37:37] Speaker 02:
Because if that were to.

[00:37:39] Speaker 05:
That's not.

[00:37:40] Speaker 05:
I'm just saying it's not routine in the sense of this isn't the way we do it with anybody else.

[00:37:51] Speaker 05:
I mean, you haven't alleged that they've

[00:37:55] Speaker 05:
They have.

[00:37:59] Speaker 05:
done business with this Ministry of Health any differently than they do with France's or Jamaica's or whomever's, right?

[00:38:09] Speaker 02:
We did not do a catalog in the complaint of the way they do business in other countries in the world.

[00:38:13] Speaker 02:
That's true.

[00:38:14] Speaker 02:
I doubt that is a disputed question.

[00:38:17] Speaker 02:
I don't think the defendant's position here is going to be we pay bribes in every market we operate in.

[00:38:22] Speaker 02:
Of course, that would be a huge criminal problem for them.

[00:38:27] Speaker 02:
I don't think this is really a disputed question, Judge Wilkins.

[00:38:30] Speaker 02:
Now, is it true that they've paid similar bribes in other regions?

[00:38:34] Speaker 02:
It is.

[00:38:35] Speaker 02:
But again, the question of routineness, as I read the common law, it doesn't hinge on that.

[00:38:44] Speaker 02:
And to go back to an early answer, there's two ways I think in which this was not routine.

[00:38:50] Speaker 02:
One is in this particular context,

[00:38:53] Speaker 02:
the corruption had an extremely tight nexus to terrorism.

[00:38:57] Speaker 02:
So that is why we structured the complaint the way we did and spent so much detail alleging the bribes is because those magnify the causal link to terrorist attacks.

[00:39:07] Speaker 02:
So that's one point.

[00:39:11] Speaker 02:
The other point is that in this market, there's some things they did that were certainly not routine, even by the Ministry of Health's absurdly corrupt standards.

[00:39:22] Speaker 02:
The off the books payoffs allegation that identified to Judge Pillard earlier is one example.

[00:39:29] Speaker 02:
But it can't be, I think, as this court looks at, how do we define routine conduct under the common law

[00:39:37] Speaker 02:
that it says conduct that one of these defendants entered a deferred prosecution agreement and effectively pleaded guilty to under oil for food is routine because they do it a lot.

[00:39:47] Speaker 05:
I mean, there are, you know, lots of law firms in town and I got lots of friends that have become very wealthy because this type of activity is very routine and they have very robust FCPA practices.

[00:40:03] Speaker 06:
How does Foreign Court Practices Act liability relate to what you're alleging was there?

[00:40:11] Speaker 06:
I don't remember.

[00:40:12] Speaker 06:
I know this was mentioned at least somewhere, either in the last briefs or these briefs.

[00:40:19] Speaker 06:
Relationship there?

[00:40:20] Speaker 02:
I think there is a relationship in that, the one that I posited to Judge Wilkins.

[00:40:26] Speaker 02:
Now, we're not

[00:40:27] Speaker 02:
attempting to prove a violation of the FCPA and all of its elements.

[00:40:31] Speaker 02:
But the principle of the FCPA.

[00:40:34] Speaker 06:
Why not?

[00:40:35] Speaker 02:
Well, first of all, there's obviously no civil cause of action under the FCPA.

[00:40:40] Speaker 02:
So that's one reason.

[00:40:41] Speaker 02:
I think one of the things you and I discussed, Judge Pillard, last time is that the statute of limitations also creates an issue with the FCPA.

[00:40:52] Speaker 02:
It doesn't go back as far as the Anti-Terrorism Act.

[00:40:55] Speaker 02:
But I don't want to confuse the inquiry in that I'm saying there's an identity of interest between the FCPA and the Anti-Terrorism Act.

[00:41:05] Speaker 02:
But Judge Wilkins, you're undoubtedly right.

[00:41:07] Speaker 02:
I have a lot of friends too that have bustling FCPA practices.

[00:41:11] Speaker 02:
But I think all of these questions are going to, does the word routine, does it describe purely the frequency with which it happens?

[00:41:21] Speaker 02:
Or does it describe something else under the common law of is this within the accepted norms of legitimate business activity?

[00:41:28] Speaker 02:
And it's really the latter point that I think the routine this inquiry is going to under the common law.

[00:41:36] Speaker 02:
And in that respect, I think that this case, if Judge Wilkins, if you don't want to answer

[00:41:44] Speaker 02:
your difficult hypothetical about an ordinary course transaction that removes the bribes, I don't think you have to.

[00:41:50] Speaker 02:
But I do think that for the reasons I said, even if you take it away, it would still state a claim.

[00:41:56] Speaker 02:
And the reason is the point I was trying to communicate, which is if you draw the line where the defendants are saying you should draw it, the Anti-Terrorism Act will not be able to fulfill Congress's purpose.

[00:42:11] Speaker 02:
of interdicting terrorist financing as codified in the text of the statute.

[00:42:16] Speaker 02:
And virtually every case I'm aware of has involved corporations acting for profit in troubled regions where they give material support to terrorists to make a buck.

[00:42:27] Speaker 02:
And as this court has long pointed out, you typically can't trace fungible dollars

[00:42:33] Speaker 02:
to individual bombs.

[00:42:34] Speaker 06:
And so if that's... The Supreme Court granted cert on that issue, I know in the Foreign Services Act area, and also they granted cert on that Estados Unidos Mexicanos case.

[00:42:45] Speaker 06:
What should we make of that?

[00:42:46] Speaker 06:
I mean, that's close to home here.

[00:42:50] Speaker 02:
That case is obviously different, Judge Pillard.

[00:42:53] Speaker 02:
There's a strong Second Amendment overlay or feel you get to that case.

[00:42:58] Speaker 02:
I don't think merits briefing has happened yet, so it's a little hard to say.

[00:43:02] Speaker 02:
how the merits briefing is going to take place in the Supreme Court.

[00:43:04] Speaker 02:
But it's a different statute, of course.

[00:43:06] Speaker 02:
I think the facts are different.

[00:43:08] Speaker 02:
And there is this notion, I believe.

[00:43:10] Speaker 06:
It's aiding and abetting liability.

[00:43:11] Speaker 02:
It is under a different statute, but it is.

[00:43:14] Speaker 02:
But I believe one of the things that the plaintiffs were asking for there was an injunction effectively trying to implement gun control in the United States to stop the flow of guns across the border.

[00:43:25] Speaker 02:
And that raises a host of issues

[00:43:28] Speaker 02:
I don't think you need to get into here.

[00:43:30] Speaker 02:
And one of the reasons is the answer I was just giving to Judge Wilkins, where you have here a specific cause of action that Congress codified.

[00:43:38] Speaker 02:
And it identified Judge Wilkins only one type of material support, only one modality of material support is called out by name in the statute.

[00:43:47] Speaker 02:
And that is terrorist funding.

[00:43:49] Speaker 02:
That is Section 2A3 of JASTA.

[00:43:53] Speaker 02:
That, I think, should give us great pause to read Twitter in a way that would say every decision that has ever allowed a Harris funding case to go forward was wrongly decided.

[00:44:05] Speaker 02:
I don't think the Supreme Court was going that far, nor did they need to, because that theory in Twitter was miles apart from this one.

[00:44:13] Speaker 02:
It was passive in action for all the reasons that I've explained.

[00:44:17] Speaker 06:
You cite in your reply brief at page nine for the notion that helping Jaishal Mahdi collect money was itself criminal, 18 USC 2339A little a and 2339C little a one.

[00:44:39] Speaker 06:
Those statutes, why those statutes?

[00:44:43] Speaker 06:
What work are they doing here?

[00:44:47] Speaker 02:
So the work those were doing was attempting to answer Judge Wilkins' question about Nexus.

[00:44:53] Speaker 02:
So the question with Nexus, in our view, foreseeability is the touchstone.

[00:44:59] Speaker 02:
And again, one of the reasons the Supreme Court says the word foreseeable seven times in its opinion.

[00:45:06] Speaker 02:
But the question is,

[00:45:08] Speaker 02:
foreseeable from what?

[00:45:09] Speaker 02:
And if you want to draw Judge Pillard a precise analogy to Halberstam, which perhaps we're not doing anymore, but that's the reason I did it, because there, the principal crime being aided was Bernard Welch's burglaries.

[00:45:26] Speaker 02:
And what this court did, what Judge Wald did, was she said that the murder was foreseeable from the burglaries.

[00:45:35] Speaker 02:
And so if you want to adopt that same rubric here and hew tightly to that formulation, the equivalent of the burglary is J. Shalmadi's violation of those criminal statutes raising money for terrorism.

[00:45:47] Speaker 02:
And we have cited Owens III and Boehm for the proposition that these terrorist attacks are foreseeable from that.

[00:45:53] Speaker 02:
I don't think you need to go there.

[00:45:55] Speaker 06:
Why not?

[00:45:57] Speaker 06:
Because given the court in Tom Ney saying foreseeability in those circumstances wasn't enough,

[00:46:06] Speaker 06:
I'm just trying to understand your middle range theory, not going all the way to every terrorism tort that Judge Almaty commits and not going all the way to passive and neutral.

[00:46:23] Speaker 02:
So just one clarification on your question.

[00:46:26] Speaker 02:
I don't think the Supreme Court said that there was foreseeability.

[00:46:31] Speaker 02:
in Twitter.

[00:46:32] Speaker 02:
I don't think that the Ryna nightclub attack was a foreseeable consequence of what the platforms were doing.

[00:46:39] Speaker 02:
So I would push back on that premise, but I do take your broader point, Judge Pillard, and I think it goes back to the three answers I gave to Judge Wilkins.

[00:46:51] Speaker 02:
Which was, this is not a case where our theory is anytime you give a dollar to terrorists, you're liable for any attack anywhere in the world.

[00:46:59] Speaker 02:
That's not the theory.

[00:47:00] Speaker 02:
There's geography, there's time, and there's function here that really make this theory of nexus much tighter than in the cases that I don't understand my friends to be quarreling with, like the Kaplan case.

[00:47:12] Speaker 02:
In the Second Circuit.

[00:47:13] Speaker 02:
I remember discussing that with you, Judge Edwards, three years ago, the nexus in Kaplan was much more attenuated than the nexus here.

[00:47:22] Speaker 02:
It involved payments in Lebanon that stretched across sovereign borders from

[00:47:27] Speaker 02:
a nominal Hezbollah charity front to Hezbollah and then into Israel to cause a rocket attack.

[00:47:33] Speaker 02:
And there was no direct showing of nexus there.

[00:47:36] Speaker 02:
So I think those three factors really limit this case in a way that were not susceptible to the criticism that Twitter leveled.

[00:47:45] Speaker 02:
And one of the reasons, Judge Pillard, is that Jaysh al-Mahdi, it's not

[00:47:50] Speaker 02:
the same sort of terrorist group as ISIS.

[00:47:52] Speaker 02:
And this is one point I think is worth stressing.

[00:47:55] Speaker 02:
It is not, it doesn't have ambitions to build a global caliphate where it may well attack somebody in East Asia because it's trying to expand its caliphate.

[00:48:05] Speaker 02:
It was a localized insurgent terrorist group whose founding mission was to kill Americans who drive them out of Iraq.

[00:48:13] Speaker 02:
So by the very nature of the group we're dealing with here,

[00:48:17] Speaker 02:
I think the nexus is already tighter than the nexus in Twitter.

[00:48:21] Speaker 02:
And Judge Pillard, I think the middle ground formulation you're using is exactly right.

[00:48:27] Speaker 02:
We are not saying that any time you give culpable support to a terrorist group, you're on the hook for anything that group does anywhere in the world for all time.

[00:48:36] Speaker 02:
And I think the court should not go that far.

[00:48:39] Speaker 02:
I don't think this court ever has gone that far, because foreseeability, of course, is a well-established tort principle in the law.

[00:48:47] Speaker 02:
This court has decades of experience administering it in terrorist funding cases.

[00:48:52] Speaker 02:
And it is a broad concept, to be sure, but it's not limitless.

[00:48:57] Speaker 02:
And Judge Wilkins, I know I've mentioned this case several times today, but the Bernhardt case is a great example, I think, notwithstanding your dissent,

[00:49:07] Speaker 02:
But if you take the majority opinion as the law of the circuit, that's a case I think that the court can still put on the other side of the line.

[00:49:14] Speaker 02:
And that to me gives this case less of a feel of opening the floodgates, because we know we've had three years with this opinion already, and Pandora's box is not open.

[00:49:30] Speaker 02:
So I think the court can adhere to many of those same distinctions.

[00:49:34] Speaker 02:
when it writes the opinion here.

[00:49:36] Speaker 02:
But in doing so, it will avoid the worst problem that my friends have in the other direction, which is if you ratchet up the line to where they want, this statute is not really doing anything.

[00:49:48] Speaker 02:
And I take their position to be that I should tell my families that I represent that they should go file a pointless lawsuit against Muqtada al-Sadr.

[00:49:58] Speaker 02:
And that's what the Anti-Terrorism Act was designed to stop.

[00:50:00] Speaker 02:
And I just knowing

[00:50:04] Speaker 05:
mean the same thing in 2333A, I'm sorry, deed to the dating and abetting statute?

[00:50:17] Speaker 05:
Is that the same knowing as the knowing in providing material support to terrorist statute 2339A?

[00:50:27] Speaker 05:
Is there any daylight between what knowing means in those two statutes?

[00:50:36] Speaker 02:
I don't, after Twitter, your honor, I think, if I recall the knowing element of 2339A, so there obviously is a different with 2339B, but that wasn't your question.

[00:50:47] Speaker 02:
With A, I believe the knowing is pretty specific textually and that you have to know the material support will be used for essentially a terrorist attack.

[00:51:00] Speaker 05:
Preparation, carrying out,

[00:51:04] Speaker 05:
violation of laundry list of statutes, essentially terrorist attack?

[00:51:09] Speaker 02:
I think the standard in Twitter is not quite that strict.

[00:51:13] Speaker 02:
And one of the things that I think the Supreme Court preserved in the Nexus discussion was that a defendant's knowledge does not need to extend to every part of the primary actor's plan.

[00:51:26] Speaker 02:
And so I don't think it's the rule.

[00:51:28] Speaker 02:
Certainly not.

[00:51:29] Speaker 02:
I think this was even disclaimed by the defendants in Twitter.

[00:51:32] Speaker 02:
that you have to know, for example, who the target is.

[00:51:35] Speaker 02:
And I certainly don't think it's knowledge that your individual dollar you've given will be traced to a specific IFP, or a specific EFP, I should say.

[00:51:45] Speaker 02:
But what I do think, Judge Wilkins, is that this is a sliding scale under Twitter.

[00:51:50] Speaker 02:
And the Supreme Court was pretty clear about that.

[00:51:54] Speaker 02:
and substantiality work in tandem.

[00:51:56] Speaker 02:
And so the more substantial the aid, the less knowledge you need, the less substantial the aid, the more knowledge you need.

[00:52:03] Speaker 02:
That is also a case that comes straight from the Camp case in the Eighth Circuit that they cited four times.

[00:52:08] Speaker 05:
I mean, if that's the case, then going back to my hypo, and 10% or more of the goods are siphoned off by Jay Shomadi and sold to the tune of tens of millions of dollars, that's pretty substantial aid.

[00:52:22] Speaker 05:
Then on your sliding scale, then knowledge can be a lot less.

[00:52:28] Speaker 05:
So you know that that's happening.

[00:52:31] Speaker 05:
Maybe you don't want it to happen.

[00:52:33] Speaker 05:
In that sense, it's not guilty knowledge, but you know that it's happened.

[00:52:38] Speaker 05:
So why isn't there liability?

[00:52:43] Speaker 05:
Well, Judge Wilkins.

[00:52:45] Speaker 02:
You said yes, there is.

[00:52:46] Speaker 02:
Maybe that's the answer.

[00:52:48] Speaker 02:
That has been my answer today.

[00:52:50] Speaker 02:
I've acknowledged it's a closer case, obviously, and the court doesn't need to go that far.

[00:52:53] Speaker 02:
But that's the reason why I've said, yes, there is.

[00:52:57] Speaker 02:
Now, I think Twitter is clear, Judge Wilkins, in your formulation, that we don't judge substantiality just by how much it is.

[00:53:05] Speaker 02:
This goes back to Judge Edwards' question about culpability.

[00:53:08] Speaker 02:
That is one of the lessons from Twitter.

[00:53:11] Speaker 02:
In your hypothetical, the aid is less substantial than what we've alleged here, even if it involved the same quantity of goods, because I think the culpability is somewhat less.

[00:53:24] Speaker 02:
So I'm not sure I would agree.

[00:53:26] Speaker 05:
I thought that your point about what they said about Google was that because there was no allegation that it was a substantial amount of money, then, you know,

[00:53:38] Speaker 05:
that that precluded liability for them.

[00:53:41] Speaker 05:
And they didn't even really have to reach state of mind.

[00:53:46] Speaker 02:
I agree with that.

[00:53:46] Speaker 02:
And and and I think, well, I'm not sure that they didn't have to reach state of mind, but they that was the ground they chose to dismiss it on.

[00:53:53] Speaker 02:
And I'm

[00:53:54] Speaker 02:
not saying judge wilkins on the revenue sharing correct on the revenue sharing piece notion of bespoke or that's specific arguably specific contract less bespoke than we have here but but yes not entirely passive and standard per billion yes exactly um judge wilkins i didn't mean to suggest that the amount of money is irrelevant that that's not what i was saying but but what i was saying is there's other things you look at too and then

[00:54:19] Speaker 02:
This is one of the reasons that these hypotheticals are so different.

[00:54:23] Speaker 02:
It's because this sliding scale test, you need to know a lot of facts to know how to weigh the various factors.

[00:54:28] Speaker 02:
And my point was, if you just tell me the amount of money alone, that certainly bears on the substantiality inquiry.

[00:54:36] Speaker 02:
I'm not contesting that, of course.

[00:54:38] Speaker 02:
And we've alleged many millions of dollars a year here.

[00:54:41] Speaker 02:
But you need to know more than that.

[00:54:43] Speaker 02:
And the reason I think your hypothetical is closer, although I think it still does state a claim, is because those other features of substantiality are less present in that case than they are in our case.

[00:54:59] Speaker 06:
I have to say, just as a court, we apply the standards that are in the law.

[00:55:05] Speaker 06:
And there's a lot of balls in the air here

[00:55:11] Speaker 06:
Halberstam, the statutory language, Halberstam, three elements that are incorporated, the six factors in Halberstam that the court now tells us to view more holistically, and then along comes Nexus.

[00:55:30] Speaker 06:
I mean, nexus is sort of, it's a new thing.

[00:55:33] Speaker 06:
I mean, it's in the common law, so it's an old thing.

[00:55:35] Speaker 06:
But how do we understand the relationship of, I mean, you've said this, but the relationship of nexus to the factors that, I mean, I don't think we ever talked about it before.

[00:55:49] Speaker 06:
I don't think the word was used in the briefing in the Supreme Court in Twitter, except in the government's brief.

[00:55:57] Speaker 06:
Is it replacing something?

[00:55:58] Speaker 06:
Is it an overarching?

[00:56:00] Speaker 06:
Is it a gestalt?

[00:56:03] Speaker 06:
I mean, how do we really get that right?

[00:56:07] Speaker 02:
I think it's the, as I said in my opening, I think there's three inputs into the sliding scale, substantiality and science, which we focused on a lot.

[00:56:16] Speaker 02:
I think Nexus is the third and

[00:56:19] Speaker 02:
It's your question, Judge Pillard, is one of the reasons the hypotheticals are hard and why I keep giving perhaps the unsatisfying answer that the Supreme Court said we're not going to prescribe bright line rules, that we want common law adjudication on the facts.

[00:56:33] Speaker 06:
That's about how we work with it, but more about like, where does it come from?

[00:56:41] Speaker 02:
I think it comes from the text, according to the Supreme Court, and the Supreme Court declined to resolve the syntactical dispute about whether the object of the assistance needed to be the individual act or the person committing the act.

[00:56:56] Speaker 02:
But as I read the Supreme Court's opinion, they're saying this is a tort law concept.

[00:57:01] Speaker 02:
And in torts, you have to aid individual acts.

[00:57:04] Speaker 02:
And here, the individual act is the act of international terrorism.

[00:57:08] Speaker 02:
So I credit all of that, I think,

[00:57:11] Speaker 02:
I think that is true.

[00:57:12] Speaker 02:
I don't think, though, Judge Pillard, that that requires that significant of a change to your last analysis here.

[00:57:20] Speaker 02:
Because, of course, the court was looking at aid to the individual attacks.

[00:57:26] Speaker 02:
The question is just, how do you get there?

[00:57:28] Speaker 02:
And for the defendants, what they are doing here, I think, is they are reproposing the strict nexus test that the defense bar proposed in Twitter and that the Supreme Court directly said no to.

[00:57:41] Speaker 02:
So the question is, now that we've established that there does need to be a definable nexus.

[00:57:47] Speaker 02:
I think that is the word that the Supreme Court used in saying what it thought Twitter lacked.

[00:57:54] Speaker 02:
How do we trace that nexus?

[00:57:56] Speaker 02:
And if it doesn't have to be individual dollars to individual bombs, which it can't be.

[00:58:01] Speaker 02:
Did the defense bar use it?

[00:58:02] Speaker 06:
They didn't use the term nexus, but you're saying effectively they were asking?

[00:58:06] Speaker 02:
Yeah.

[00:58:06] Speaker 02:
I mean, you can, the line from Justice Thomas's opinion, I would start with Judge Pillard is neither side is quite right.

[00:58:12] Speaker 06:
Yeah.

[00:58:12] Speaker 02:
And then they reject the plaintiff's theory of nexus, which was completely unlimited.

[00:58:18] Speaker 02:
But then they go to what I understand, the test that may not have used the word nexus, but it was the same test that you have to trace the literal act of assistance to the specific

[00:58:31] Speaker 02:
attack at issue in some sort of one-to-one way.

[00:58:34] Speaker 02:
And the Supreme Court said no to that.

[00:58:36] Speaker 02:
And I think that's really the rub.

[00:58:38] Speaker 02:
And as I read the opinion, Justice Thomas and the unanimous court had two reasons that strict nexus test was flawed.

[00:58:46] Speaker 02:
The second of the two is what Judge Wilkins, you asked me about with the near common enterprise and pervasive systemic and culpable, Judge Pillard, what you characterized as my fallback theory.

[00:58:56] Speaker 02:
That's the second.

[00:58:57] Speaker 02:
But the first reason that the strict nexus test failed

[00:59:01] Speaker 02:
is because it didn't give any role for foreseeability in the analysis.

[00:59:07] Speaker 02:
And I think that is the court's north star in terms of how it should apply Nexus Hue.

[00:59:14] Speaker 02:
And the reason I came back to the sliding scale, Judge Pillard, is I think it's not an on-off switch on Nexus.

[00:59:23] Speaker 02:
I think the Supreme Court was pretty clear that the more Nexus you have, the less you need on the other two,

[00:59:28] Speaker 02:
And conversely, the less you have, the more you need.

[00:59:30] Speaker 02:
And so I'm not going to be able, I don't think, to give you a clear line that says in every case, this Nexus is good, this Nexus is bad.

[00:59:39] Speaker 02:
But here, the important point is this is not the Twitter theory.

[00:59:44] Speaker 02:
This is not

[00:59:45] Speaker 02:
you did something to aid a terrorist group, and you're liable with really no other argument for everything they did for all time.

[00:59:52] Speaker 02:
And the problem with the plaintiff's theory legally was they didn't even make an argument, I don't think, trying to trace a nexus to the Ryna nightclub attack.

[01:00:01] Speaker 02:
They made a legal argument that says, we don't have to, because instead you're aiding the enterprise, and the court said, no, no, no, that's not good enough.

[01:00:10] Speaker 02:
You have to at least try to trace a nexus to the individual act.

[01:00:16] Speaker 02:
But, and here I think I've explained why the court should be able to do that.

[01:00:37] Speaker 03:
Good morning.

[01:00:38] Speaker 03:
Good morning, may it please the court, Lisa Blatt for the defendants.

[01:00:42] Speaker 03:
Does my sound okay?

[01:00:45] Speaker 03:
Tomda requires that Tomda requires that each defendant consciously and culpably participated in each attack in such a way as to make those specific attacks succeed.

[01:01:00] Speaker 03:
The other side talks about it has two axes and we agree it works in tandem on a sliding scale but I think we have very different definitions of what those axes are.

[01:01:09] Speaker 03:
The first is culpability with respect to terrorism.

[01:01:12] Speaker 03:
and not just culpability.

[01:01:13] Speaker 03:
And the second is a nexus between the defendant's aid and the actual specific attacks injuring the plaintiffs.

[01:01:20] Speaker 03:
And we agree when there's a higher showing on one axis, a lesser showing is required on the other.

[01:01:26] Speaker 03:
But TOMNA is a demanding standard, and it requires at least some of both to ensure that aiding and abetting liability extends to only those defendants who are blameworthy participants in these specific attacks.

[01:01:39] Speaker 03:
This court previously held that it was enough that the defendants allegedly knew of a link between their alleged corrupt provision of cash and free goods and Josh Almighty's operations.

[01:01:50] Speaker 03:
Although we strongly deny those allegations, they are simply not enough under TOMNA under either axis.

[01:01:57] Speaker 03:
Where the US pre-TOMNA thought that this complaint was sufficient, after TOMNA they said, this is Supreme Court, TOMNA did not support

[01:02:05] Speaker 03:
or approve imposing liability just because a plaintiff can identify an atypical transaction with an organization affiliated with terrorists.

[01:02:13] Speaker 03:
So I want to start with Nexus, where we're obviously our strongest.

[01:02:17] Speaker 03:
The complaint nowhere alleges that any defendant, much less all defendants, aided any attack on any plaintiff, much less all of the attacks.

[01:02:26] Speaker 03:
Tomna holds that it is not enough as the other side spent, I don't know, an hour saying that defendant gives substantial assistance to a transcendent enterprise.

[01:02:35] Speaker 03:
It's exactly what he said his middle ground was.

[01:02:37] Speaker 03:
It's enough if you aid Josh Almaty.

[01:02:39] Speaker 03:
He has to abet the commission of the act of international terrorism.

[01:02:44] Speaker 03:
Now, Josh Almaty had way too many sources of other funding and spent its money on way too many other things, pulling violent operations to conclude that any defendant, and there are 21 of them here,

[01:02:54] Speaker 03:
contributed to any specific attack on the plaintiff.

[01:02:58] Speaker 03:
At paragraphs 172 and 173, the complaint says that this ministry took in two billion in total corrupt payments.

[01:03:07] Speaker 03:
But this, and as the complaint elsewhere in this panel's opinion pointed out, that each defendant allegedly only gave several million in aid.

[01:03:15] Speaker 03:
And in the complaint in paragraphs 1362 and 351,

[01:03:19] Speaker 03:
alleged that Josh Almighty engaged in countless attacks on Iraqi citizens that don't involve plaintiffs.

[01:03:25] Speaker 03:
Again, this panel's opinion talked about the murdering innocent Iraqi civilians and their enemies in addition to Americans.

[01:03:33] Speaker 03:
So it's not enough that they say it happened in the same country around the same time.

[01:03:37] Speaker 03:
That's just not a nexus.

[01:03:40] Speaker 03:
It's just not.

[01:03:43] Speaker 03:
At a minimum, any a nexus would be so attenuated, as I think Judge Wilkins said, you would have to have a high showing on the intent axes.

[01:03:50] Speaker 06:
So when you say that there's no definable nexus and that between your client's contributions to Judge Alamadi and any specific attack injuring any plaintiff,

[01:04:07] Speaker 06:
I thought the Supreme Court disavowed necessarily.

[01:04:11] Speaker 06:
You would have to have specific intent to injure the plaintiff.

[01:04:16] Speaker 06:
And that seems to flow from Halberstam.

[01:04:20] Speaker 03:
Well, there are two examples where the nexus could be excused, and that's the pervasive and systemic.

[01:04:26] Speaker 03:
So if you're basically that blurs with conspiracy liability and Pinkerton liability, but if you are at one with the terrorists, then yes, you're liable for each and every act.

[01:04:35] Speaker 03:
And Linda Hamilton was a conspirator.

[01:04:37] Speaker 03:
She was so

[01:04:38] Speaker 03:
invested in her boyfriend's burglary that she assisted each and every burglary and the foreseeable torts carried out.

[01:04:45] Speaker 03:
The other example, which I think the other side placed heavily reliance on, the court in Tomna cited the Grimm case, and that's talking about when you tend to carry out one tort, you are liable for foreseeable torts that further the original tort.

[01:05:02] Speaker 03:
And in that case, the example is some boys broke into a church,

[01:05:05] Speaker 03:
and they lit a match to see their way through.

[01:05:08] Speaker 03:
That set the church on fire and the burglar was reliable for the fire.

[01:05:12] Speaker 03:
But here, of course, there's no allegations that these.

[01:05:16] Speaker 06:
How does the building burning down further the original torrent of breaking in?

[01:05:22] Speaker 03:
The fire, starting the fire.

[01:05:23] Speaker 03:
The lighters breaking in?

[01:05:26] Speaker 03:
Lighting the match to see.

[01:05:27] Speaker 03:
They couldn't see, it was at night, so they lit the match.

[01:05:29] Speaker 06:
The other way around.

[01:05:29] Speaker 06:
The first one furthered, the second one.

[01:05:31] Speaker 03:
Sorry, the lighting the match furthered the burglary.

[01:05:37] Speaker 06:
Lighting match was one of the means of the burglary.

[01:05:39] Speaker 06:
And it caused a second.

[01:05:42] Speaker 03:
Just like Welch, too, when he killed the victim.

[01:05:45] Speaker 06:
So I think your friend on the other side would say, well, the giving of the money to the irregular, as they allege, giving of the money to Judge Al-Mahdi furthers the attacks on their clients.

[01:06:00] Speaker 03:
Right, but it has to be reversed.

[01:06:01] Speaker 03:
They'd have to show the terrorism was done in furtherance of the bribery, which it obviously wasn't.

[01:06:06] Speaker 06:
using them, how the fire, the ultimate harm in Grimm is furthering the original more limited.

[01:06:16] Speaker 03:
Sorry, in furtherance of, it's part of the bribery.

[01:06:19] Speaker 03:
Hamilton is the best.

[01:06:21] Speaker 03:
You didn't have to murder him to steal the goods, but it was still part of the, you know, in order to get out, the victim got in the way and he murdered him in order to get out of the church.

[01:06:30] Speaker 03:
They needed to see they lit a fire.

[01:06:32] Speaker 03:
You know, the other side can't be right because they basically saying any dollar given to that makes its way into terrorist hands foreseeably.

[01:06:41] Speaker 06:
They're saying in a much more sort of case specific way, you know, whether they're right or wrong about it, but I'd be interested in your response.

[01:06:49] Speaker 06:
They're saying this was Iraq specific.

[01:06:53] Speaker 06:
Jaisal Mahdi was completely known to them.

[01:06:56] Speaker 06:
They went, their agents went and met with people in the ministry.

[01:07:00] Speaker 06:
It was widely reported that this ministry was not a legitimate government agency.

[01:07:06] Speaker 06:
It was overrun by terrorists, that they were using it as a headquarters, that they were diverting whatever they could get their hands on.

[01:07:14] Speaker 06:
But with all due respect, you're- And that that's different from any dollar that falls into- Yeah, that just, but-

[01:07:21] Speaker 03:
You're bleeding into culpability.

[01:07:23] Speaker 03:
There's still no nexus.

[01:07:24] Speaker 03:
You can talk till we're blue in the face how much they were.

[01:07:26] Speaker 04:
There is a place.

[01:07:29] Speaker 04:
All of you have places to point to in the Supreme Court.

[01:07:32] Speaker 04:
That's what's making it so difficult.

[01:07:34] Speaker 04:
You're ignoring the place, which makes your side very vulnerable.

[01:07:39] Speaker 04:
The Supreme Court said we can't rule out the possibility that some set of allegations involving aid to a known terrorist group would justify holding a secondary defendant liable

[01:07:51] Speaker 04:
for all of the group's actions or perhaps some definable subset of terrorist acts.

[01:07:56] Speaker 04:
I mean, that is clearly refuting what you're overstating.

[01:07:59] Speaker 04:
The Supreme Court was not buying your position.

[01:08:02] Speaker 04:
The problem for us is there's a whole lot of middle ground here from both sides.

[01:08:08] Speaker 04:
I mean, I can find ways to understand what your opponent is saying, and I can find ways to understand what you're saying, but I can see the counter on both sides.

[01:08:16] Speaker 04:
And this is the critical passage for you.

[01:08:18] Speaker 03:
I think that's the worst language.

[01:08:20] Speaker 03:
The critical passage in the opinion, I think is at the end where explains that you either have to have high intent, a high nexus or pervasive and systemic.

[01:08:29] Speaker 03:
And the other side, their middle ground is just nowhere.

[01:08:32] Speaker 03:
It basically says all you need is foreseeability.

[01:08:36] Speaker 04:
The Supreme Court is saying we're not ruling out situations involving a set of allegations involving aid to a known terrorist group.

[01:08:45] Speaker 04:
that would justify holding a secondary defendant alive for all of the group's actions.

[01:08:50] Speaker 03:
Yes, and I think that the examples we're talking about are only two.

[01:08:55] Speaker 03:
Linda Halverson's, where she's basically a co-conspirator and is fairly said to aid and abet each and every burglary that her boyfriend carried out.

[01:09:05] Speaker 03:
And the other example

[01:09:06] Speaker 03:
is the morphine case the Supreme Court case is called direct sales and that morphine distribution case which the court is citing I think around that same passage the the defendant actually was aligned with the illegal distributors objectives and that both of them were profiting from

[01:09:23] Speaker 03:
illegal distribution.

[01:09:25] Speaker 03:
Same way with Linda Hamilton.

[01:09:26] Speaker 03:
In other words, the terrorist and the alleged aider and better had aligned motives.

[01:09:31] Speaker 03:
And here's I think you recognized early on in your questions.

[01:09:33] Speaker 03:
They're completely disparate.

[01:09:35] Speaker 03:
No matter how bad of people these procurement officials were.

[01:09:40] Speaker 03:
And yes, they were affiliated with the violent militia, but they're still procurement officials.

[01:09:43] Speaker 03:
And these are still bribes to alleged bribes to get mammograms, antidepressants and cancer

[01:09:49] Speaker 03:
cancer prevention or cancer curing drugs into the lives of Iraqis.

[01:09:54] Speaker 03:
And that's just not instruments of terrorism.

[01:09:56] Speaker 03:
It's not morphine distribution.

[01:09:57] Speaker 03:
And it's certainly not Linda Hamilton.

[01:09:59] Speaker 03:
And you just cannot divorce this case from the common sense reality that I think the government did change its position.

[01:10:06] Speaker 03:
and said this is, whether or not you want to call them illegitimate or legitimate, it is a procurement department that is giving drugs both to, they're stealing drugs and giving them to Josh Almighty, but they're also giving them to the Iraqi people.

[01:10:20] Speaker 03:
And these are 21 medical companies that in no way could be said

[01:10:25] Speaker 03:
to share the objectives, or I'll put it this way.

[01:10:28] Speaker 03:
The drug companies didn't profit the more Josh Al-Maidy killed people.

[01:10:31] Speaker 03:
They profited the more mammogram machines that were being sold and the more birth control that was being sold and the more chemo drugs that were being sold.

[01:10:40] Speaker 04:
What does culpability mean to you?

[01:10:42] Speaker 03:
Culpability means to me, culpability with respect to terrorism.

[01:10:45] Speaker 03:
And I think that's where they misalign it.

[01:10:46] Speaker 03:
They say, well, culpability means, and I have to call out this opinion said twice that these were illegal bribes.

[01:10:53] Speaker 03:
without citation, the complaint on page 179 disavows any intent to show they were illegal.

[01:11:00] Speaker 03:
So at most, the complaint says this is corruption and they're commercially unreasonable terms.

[01:11:05] Speaker 03:
And you can call that culpable.

[01:11:06] Speaker 03:
You can even call it illegal.

[01:11:08] Speaker 03:
Illegal under what?

[01:11:09] Speaker 03:
I don't know.

[01:11:09] Speaker 03:
He didn't answer.

[01:11:10] Speaker 03:
You asked him what it violated.

[01:11:12] Speaker 03:
He disclaimed, I think honestly, that it was, he will not and cannot.

[01:11:16] Speaker 05:
Why does it have to violate a law if the theory of the liability is

[01:11:22] Speaker 05:
Um, you're essentially giving over, you know, additional free goods off the books, knowing that it's going to be sold in the proceeds provided to Josh Almaty.

[01:11:35] Speaker 05:
Why isn't that culpable?

[01:11:37] Speaker 03:
So it's certainly knowledge and you could call it culpable knowledge, but it's not sufficient culpable knowledge with respect to terrorism because the bribery of the officials is not to help Josh Almaty's violent objective succeed.

[01:11:50] Speaker 03:
is to help get drugs into the hands of Iraqi people to be sure with knowledge that these drugs imputed knowledge.

[01:12:00] Speaker 06:
Sorry.

[01:12:01] Speaker 06:
Isn't that true of Linda Hamilton?

[01:12:02] Speaker 06:
We disavowed any notion that she had an intent for Welsh to go out and murder anyone.

[01:12:09] Speaker 06:
She just wanted to make money and live a good life with him.

[01:12:11] Speaker 06:
And she was doing... Oh no, she wanted him to burglarize.

[01:12:15] Speaker 06:
Right.

[01:12:16] Speaker 06:
She was going up that far.

[01:12:18] Speaker 06:
And so here, it's like, OK.

[01:12:19] Speaker 03:
The defendants clearly didn't want them to do anything other than buy their drugs, didn't want them to share zero, zero any illegal objectives with Josh Almaty, obviously.

[01:12:28] Speaker 06:
Well, according to their allegations, the bribery.

[01:12:31] Speaker 06:
And the giving of the free goods, they say, which has nothing to do with material support is giving currency that they know is going to hit the black market and enrich that somebody.

[01:12:42] Speaker 06:
And they think this is something that they have to do in order to be the ones who get this segment of business.

[01:12:48] Speaker 06:
No.

[01:12:49] Speaker 03:
The only way, yes, that there's knowledge.

[01:12:52] Speaker 03:
The difference is critical between Linda Hamilton and the drug, the morphine distributor, and that the profit motive was completely aligned with the terrorist motives.

[01:13:01] Speaker 03:
The only way for either Linda Hamilton or the morphine distributor to profit was the illegal conduct by the wrongdoer.

[01:13:11] Speaker 03:
We profited only because they bought drugs.

[01:13:14] Speaker 03:
We didn't profit because they were out killing people.

[01:13:17] Speaker 03:
In other words, there was just there's a complete mismatch and a disconnect between how culpable, whether or not it's illegal, that you're bad, you're corrupt, you're willing to bribe.

[01:13:26] Speaker 03:
Again, these are obviously deny the allegations, but the allegation is we really wanted these contracts.

[01:13:32] Speaker 03:
But there's nothing that says like the doctor and the morphine and Linda Hamilton, I'm going to do everything I can to help my husband, excuse me, live in partner, rip everyone off, break into their homes and the morphine distributor, the court, Supreme Court held you had an intent to share the intent to sell the drugs.

[01:13:48] Speaker 06:
I'm going to I'm going to look the other way at burglary.

[01:13:51] Speaker 06:
But then it's a foreseeable risk of burglary.

[01:13:54] Speaker 06:
So it's enough there that once she's in for the penny, then they say, even though we were willing, in that opinion, to assume that she had no intention, she wasn't aligned with him on actually murdering someone, it's a foreseeable risk.

[01:14:11] Speaker 06:
So help me out here.

[01:14:14] Speaker 06:
So if it's unlawful for your clients to bribe

[01:14:22] Speaker 06:
an entity that they know is run by terrorists.

[01:14:28] Speaker 06:
And you may think the allegations that it's other than government officials aren't adequate, but just for the purposes of the hypothetical, if they've adequately alleged that this is not legitimate government contracting officials, or if they are, they're also known to be terrorists,

[01:14:45] Speaker 06:
and they're being bribed, not just given goods at fair market value, which I think is their theory, then I guess the question is, is that not an illegal either bribe or material support to terrorists?

[01:15:03] Speaker 06:
And if so, then don't we get into the Halberstam framework, where if that's substantial, if the nexus is tight,

[01:15:12] Speaker 06:
then they're also in for the foreseeable risk that that money is diverted to do the very thing that Josh Almaty exists to do, which is kill Americans and drive them out of Iraq.

[01:15:25] Speaker 03:
No, because not only is there no intent to further Josh Almaty's violent objectives, no even alleged intent, there's still no nexus.

[01:15:32] Speaker 03:
And in the Hamilton case, you have pervasive

[01:15:34] Speaker 03:
and systemic and intentional assistance.

[01:15:37] Speaker 03:
It'd be no different if they were giving them whiskey or some other automotive manufacturers were saying, let's go out and hire prostitutes.

[01:15:46] Speaker 03:
I'll bribe you that way.

[01:15:47] Speaker 03:
It's just disconnected.

[01:15:49] Speaker 03:
It's wrongdoing.

[01:15:50] Speaker 03:
And surely it violates the laws in the Middle East to give them alcohol and cigarettes.

[01:15:54] Speaker 03:
And maybe they knew that the alcohol and cigarettes were going to be sold on the black market.

[01:15:59] Speaker 03:
But that still doesn't get you a nexus.

[01:16:02] Speaker 03:
It doesn't even argue a nexus.

[01:16:03] Speaker 03:
All that gets you is exactly what the Supreme Court said is not enough.

[01:16:07] Speaker 03:
It's not enough to just give money to the organization.

[01:16:09] Speaker 03:
You have to tie it to the attack.

[01:16:11] Speaker 03:
And the only way to get around that is pervasive and systemic.

[01:16:15] Speaker 06:
Not necessarily.

[01:16:16] Speaker 06:
I mean, they're saying,

[01:16:18] Speaker 06:
I think that their primary claim is that they're responsible for what Jaishal Mahdi is doing as they put it down the street, but not necessarily for anything anywhere in the world.

[01:16:30] Speaker 06:
So their primary theory is not that they're really tantamount to co-conspirators, but that the nexus was so close factually

[01:16:42] Speaker 03:
in terms of- No, that's not, the court did not think, as long as you murder someone in the same country around the same time period, that's enough.

[01:16:49] Speaker 03:
If ISIS had just been limited, I guess there it was Turkey, but if the attack had been limited to wherever ISIS, I don't know, was headed out of, or if Hamas just is committed in, I guess Hamas is other places too, but just in Gaza, that can't be right.

[01:17:02] Speaker 03:
Even Gaza is a big place and there are a lot of attacks going on.

[01:17:06] Speaker 03:
So it can't just be that,

[01:17:09] Speaker 03:
you know, if there was a government in Gaza that you gave a bribe and that some attack down the line made its way into Hamas, even if you knew it, that that's enough for all in each and every attack.

[01:17:20] Speaker 03:
Because the only way to accept their view, you want to call it a fallback, is the extreme position is that these would be liable for each and every attack carried out by Josh Almighty in Iraq during 2004 through 2013.

[01:17:35] Speaker 03:
which I think, or they say, and beyond, there's no in between.

[01:17:39] Speaker 03:
And they say, well, this would render the statute of death lighter.

[01:17:41] Speaker 03:
That's just not true.

[01:17:43] Speaker 03:
In the 9-11 case, which I think was the instigator for this, the financing, you don't have to show dollars to dollars, but Saudi Arabia, you have to show a link to the specific attackers or the specific attacks.

[01:17:55] Speaker 03:
And Saudi Arabia financed the training camps where the hijackers went, and they gave a certain large check to Al-Qaeda.

[01:18:02] Speaker 03:
At the very same time, Al-Qaeda cut the check to the mastermind.

[01:18:06] Speaker 06:
Which case are you referring to?

[01:18:08] Speaker 03:
It's the famous Saudi Arabia case out of, I think it's Ashton out of Southern District in New York.

[01:18:12] Speaker 03:
It's the 9-11 complaint that the victims of 9-11 filed and Congress was upset because

[01:18:19] Speaker 03:
you know, there was no secondary liability.

[01:18:22] Speaker 03:
And in the October 7th cases that are now being filed in Iran, there are statements about how involved Iran was with the attack on October 7th.

[01:18:32] Speaker 03:
It's not just you were giving money to Hamas and Hezbollah, it's you knew about October 7th, maybe you didn't know the particulars, which

[01:18:40] Speaker 03:
you know, which place they were gonna kill or how many people, but there was a lot of evidence that links the assistance to the attack that was going to happen on Israel.

[01:18:50] Speaker 03:
Obviously you don't have to know the certain date.

[01:18:53] Speaker 05:
Isn't it kind of foreseeable that like your money might be used to attack Americans when there's like death to America flags all over the facility?

[01:19:06] Speaker 03:
We're not fighting foreseeability for that reason.

[01:19:08] Speaker 03:
And this court already said it was foreseeable.

[01:19:10] Speaker 03:
I do think foreseeability was the same issue that was raised in the Twitter case.

[01:19:14] Speaker 03:
It was obviously foreseeable that ISIS was running all its propaganda training, recruitment, fundraising videos off YouTube.

[01:19:22] Speaker 03:
Yes, it was foreseeable, but foreseeable is just not enough.

[01:19:25] Speaker 06:
Forseeability is not enough in the facts of the Twitter case with the attenuated nexus there.

[01:19:30] Speaker 06:
And I guess I'm interested in, to the extent that if we set aside the passive provision of goods in the same way,

[01:19:40] Speaker 06:
to billions of people, which we had in Twitter.

[01:19:44] Speaker 06:
And that's mainly what that case illuminates, but it gives some tea leaves about other things.

[01:19:49] Speaker 06:
And let's say we bracket for the moment the notion of to hand them out to conspiracy, really hand in glove with the direct tortfeasor.

[01:20:01] Speaker 06:
And we're talking about something in between.

[01:20:03] Speaker 06:
I mean, to take off from Twitter, let's say

[01:20:05] Speaker 06:
that you run an electronic billboard company and you erect billboards in wherever ISIS is fighting and that have ISIS recruitment ads on them.

[01:20:21] Speaker 06:
It seems to me that would be

[01:20:25] Speaker 06:
That would really bolster the nexus.

[01:20:28] Speaker 03:
I think it bolsters culpability.

[01:20:29] Speaker 03:
It's not clear it would bolster the nexus at all unless they tie it to a specific attack.

[01:20:33] Speaker 03:
Come join ISIS?

[01:20:34] Speaker 03:
That's not a nexus.

[01:20:36] Speaker 03:
It's just not.

[01:20:37] Speaker 06:
But if they say right there on the street, come join ISIS, and you know that everyone who joins is going to increase the probability that the mission of ISIS is going to be carried out and a core part of the mission of ISIS,

[01:20:49] Speaker 03:
I think this is completely ignoring all of, I think it's part four of the opinion.

[01:20:53] Speaker 03:
The court said five times the focus has to remain on the act of international terrorism.

[01:20:58] Speaker 03:
I do think Tomnet, maybe not be a sea change, but it is a big change.

[01:21:02] Speaker 03:
I think as this court recognized in Amazon, it goes back to a conceptual core.

[01:21:06] Speaker 03:
There is a nexus requirement.

[01:21:07] Speaker 03:
And to say that just, I'll just keep reading the sentence.

[01:21:11] Speaker 03:
It's not enough to give substantial assistance to a transcendent enterprise floating above and over and above.

[01:21:17] Speaker 03:
the commission of the act of international terrorism that injures the planet.

[01:21:20] Speaker 05:
Let's look at the facts here, which are that you're saying that you're not really disputing foreseeability.

[01:21:30] Speaker 05:
And here you have a situation where Josh and Ladi is active right, essentially, down the street, right where Americans are.

[01:21:46] Speaker 05:
right during this time.

[01:21:48] Speaker 05:
This insurgency is a problem in killing Americans right during that time.

[01:21:55] Speaker 00:
Yeah.

[01:21:55] Speaker 05:
So why isn't it that sufficient enough to be to meet the nexus test with respect to

[01:22:05] Speaker 05:
Well, we may not be able to, may not have been kind of nexus and foreseeable with respect to these particular attacks, but that some attacks on Americans are likely to result by this group that you are providing funding to.

[01:22:22] Speaker 03:
I think this goes a little bit also to the US brief too, and that the problem with this argument is that any aid in any war-torn country, and this is what the charity brief is saying, if it's foreseeable that it could

[01:22:35] Speaker 03:
lead to an attack, that's the substitute for the specific nexus to the act of terrorism.

[01:22:41] Speaker 03:
And you're basically saying, do not enter any war-torn country if the organization has any ties with bad guys.

[01:22:47] Speaker 03:
The US was giving millions of aides, and I think the government's brief cites the Court of Appeals Appendix, page 686, it's the best site for that, and says it gave $300 million to build out the capacity of the ministry and delivered seven truckloads of medical supplies and medicine.

[01:23:04] Speaker 03:
I don't, that's not terroristic aid.

[01:23:07] Speaker 03:
It's just not.

[01:23:08] Speaker 03:
And it's not tied to an attack.

[01:23:10] Speaker 03:
It doesn't matter how many, I suppose if you had evidence that the terrorist took the drugs off that truckload and then converted them to cash and then there were some indication that it was supposed to be used for an attack.

[01:23:22] Speaker 03:
But when you have zero, zero intent with respect to an attack and zero factual nexus to an attack, it cannot be foreseeability.

[01:23:30] Speaker 03:
Or you just might as well wipe the nexus requirement.

[01:23:33] Speaker 05:
That support wasn't in the form of a bribe or something that was essentially outside the scope of what was going to be aid to civilians.

[01:23:46] Speaker 03:
Totally fair point that the government, but to me more direct, it was actually, you could say it was worse.

[01:23:50] Speaker 03:
At least we were trying to sell something.

[01:23:52] Speaker 03:
The US was just handing it over in a truck and saying, here's money.

[01:23:55] Speaker 03:
And they may have put safeguards, but ours was actually selling medical supplies to a

[01:24:02] Speaker 03:
government that was giving some of its drugs to people that were dying in the Civil War, even though obviously there's the allegations of extreme corruption.

[01:24:11] Speaker 03:
But again, if it's just foreseeability, I'm not sure the bribe turns on it.

[01:24:16] Speaker 03:
Nothing in their theory then turns on the bribes.

[01:24:18] Speaker 03:
It's just, oh, well, you did something bad.

[01:24:21] Speaker 03:
And the fact that your bribe, i.e.

[01:24:23] Speaker 03:
the commissions and the rebates, or your aid, you knew it was being stolen or siphoned off.

[01:24:28] Speaker 03:
I mean, the $2 billion the complaint cites is theft.

[01:24:32] Speaker 03:
And this court's opinion talked about it, too.

[01:24:34] Speaker 03:
They took general revenue stream.

[01:24:36] Speaker 03:
They took the hospitals.

[01:24:36] Speaker 03:
They took the ambulances, used them for death squads to kill Iraqi civilians.

[01:24:41] Speaker 03:
So I just think, again, we're back to what the panel opinion said.

[01:24:44] Speaker 03:
It would be enough just to have general awareness and foreseeability.

[01:24:48] Speaker 03:
And yeah, if you don't think Tomna changes that, then we're in trouble.

[01:24:52] Speaker 03:
But I do think Tomna resets the clock on how the court was thinking about aiding and abetting liability.

[01:24:57] Speaker 04:
You seem to be, I don't know if I'm hearing you correctly,

[01:25:02] Speaker 04:
in stating your theory, it's almost like the thesis that comes from Igball.

[01:25:08] Speaker 04:
There's an obvious alternative explanation here.

[01:25:12] Speaker 04:
That is, they want to make money.

[01:25:14] Speaker 04:
then the burden becomes tougher on those who are trying to get into court under Igual.

[01:25:19] Speaker 04:
I mean, it's almost, that's almost what you seem to be arguing.

[01:25:22] Speaker 04:
Not, yes, tell me.

[01:25:24] Speaker 03:
Because obviously making money is completely consistent with ATA life.

[01:25:28] Speaker 04:
No, no, no, I'm on the same.

[01:25:29] Speaker 04:
And you're saying that is the obvious alternative explanation to an investment foreseeability.

[01:25:37] Speaker 04:
clean the foreseeability is this is so foreseeable and you say no, but there's an obvious alternative explanation.

[01:25:42] Speaker 04:
You can't refute it.

[01:25:43] Speaker 03:
I see.

[01:25:44] Speaker 03:
Well, yes, I was just saying, I think it's fair that the Linda Hamilton had a profit motive and it's fair to say that the morphine distributors, they were acting at a profit.

[01:25:52] Speaker 03:
They were still aiding and abetting the principal tort because they shared.

[01:25:57] Speaker 04:
No obvious alternative explanation.

[01:25:58] Speaker 03:
Oh, yes.

[01:25:59] Speaker 03:
Yes.

[01:25:59] Speaker 03:
Yes.

[01:26:00] Speaker 03:
Thank you.

[01:26:00] Speaker 03:
That took me a minute.

[01:26:01] Speaker 03:
Yes.

[01:26:02] Speaker 04:
You're with me now?

[01:26:03] Speaker 03:
Oh, yeah.

[01:26:03] Speaker 03:
Yeah.

[01:26:03] Speaker 03:
I miss that one big time.

[01:26:05] Speaker 04:
I'm trying to understand.

[01:26:06] Speaker 03:
Yeah.

[01:26:06] Speaker 03:
There was no other explanation for what Linda Hamilton was doing.

[01:26:09] Speaker 03:
No other explanation for what that morphine distributor was other than to aid and abet the principal tort.

[01:26:14] Speaker 03:
Here, there is not only an obvious explanation, it is so glaring that drug companies are not trying to aid terrorism that it's almost embarrassing.

[01:26:22] Speaker 03:
I feel sorry for the other sides, the families, but not the plaintiff's lawyers bringing this case.

[01:26:27] Speaker 03:
This is the wrong defendants.

[01:26:29] Speaker 03:
This is to even call them direct, direct liability case, direct said they were, they're actually terrorists.

[01:26:35] Speaker 03:
That's a, that's an allegation in this case that this court upheld that they were

[01:26:39] Speaker 03:
terrorist, carrying out direct directly causing the attacks and a did uphold that.

[01:26:44] Speaker 06:
I think we rejected one theory on a pine.

[01:26:46] Speaker 06:
No further.

[01:26:47] Speaker 03:
Okay, fair, fair.

[01:26:49] Speaker 03:
But from terms of where we're sitting, Justice Pillard, this is because these facts are so bad.

[01:26:55] Speaker 03:
It is that highlights just how outrageous we see these complaints are on our reputation.

[01:27:01] Speaker 03:
And one other thing I want to say about the Middle East, not that we go around bribing people, but

[01:27:06] Speaker 03:
Paragraphs 118 does allege that this form of bribery was popular throughout the Middle East.

[01:27:12] Speaker 03:
We don't think it's bribery.

[01:27:13] Speaker 03:
Obviously, we think especially the free goods or rebates that occur in the United States, but we obviously contest the bribery allegations.

[01:27:21] Speaker 03:
But I think that was why the other side got a little cagey when asked about did this happen anywhere else because there is that allegation on 118.

[01:27:30] Speaker 03:
It does say this is just popular form of bribery.

[01:27:34] Speaker 03:
But back to stepping out in terms of common sense about foreseeability, I get that foreseeability.

[01:27:39] Speaker 03:
Yeah, sorry.

[01:27:40] Speaker 06:
On that point, you do argue in your brief that what the plaintiffs call bribes and say is unusual, the valuable giving of resellable free goods, you characterize that as government mandated discounts?

[01:27:55] Speaker 06:
Is there an allegation in the complaint that says these are government mandated discounts?

[01:28:00] Speaker 03:
I think there are 22 allegations that say the government required them as a condition of doing business, just like Saddam Hussein did before and just like the government did after.

[01:28:09] Speaker 03:
So we know that this was the only way to get drugs into Iraq was to pay the commissions and pay the bribes.

[01:28:16] Speaker 03:
And I know those allegations are, um, uh, well, I guess the U S brief at 18.19 says that they were required as part of the service.

[01:28:30] Speaker 03:
and they're at our brief, but.

[01:28:32] Speaker 03:
All right, that's good enough.

[01:28:34] Speaker 03:
Yeah, there's a lot of paragraphs.

[01:28:35] Speaker 03:
In our brief, sorry, 14 through 15, or maybe it's 18 through 19, but I think when.

[01:28:41] Speaker 03:
It's at the US brief or your brief?

[01:28:43] Speaker 03:
Our brief, cites how many times did they say they were standard and required.

[01:28:46] Speaker 03:
I don't think there's any dispute.

[01:28:48] Speaker 03:
This I know for sure.

[01:28:50] Speaker 03:
The whole theory of the complaint is the way that we had to pay the bribes, the only reason the bribes were being paid is because we wanted to be in Iraq selling for this market.

[01:29:00] Speaker 03:
Now, again, we obviously deny the allegations, but there's no question that as the only way to get drugs into the country, and this gets back to your alternative explanation, the only way Western medicine was going to get into Iraq was these drug companies showing up.

[01:29:17] Speaker 03:
And we do feel strongly that if you affirm, you've put up a giant sign that says, do not enter ever any country that needs humanitarian assistance that's going to be war torn, because there usually is certainly

[01:29:29] Speaker 03:
Middle East, but maybe even other countries, there's usually, where there's civil war, there's bad people doing business with the government.

[01:29:36] Speaker 03:
And I get it that here it's an extreme takeover and there's the death squads and all that.

[01:29:41] Speaker 03:
But I think the government's brief here is really helpful when it says, these were standard conditions and express contracts with the ministry in service of the ministry's legitimate purpose.

[01:29:50] Speaker 03:
The United States actively supported that same ministry and encouraged private companies to do the same.

[01:29:56] Speaker 06:
You say that the defendants

[01:30:00] Speaker 06:
interacted only with ministry officials, not Hezbollah.

[01:30:07] Speaker 06:
But the plaintiffs allege in minute detail that they did interact with Ghaish al-Mahdi and that Ghaish al-Mahdi was openly and notoriously running the ministry and was known to be a Hezbollah proxy.

[01:30:22] Speaker 03:
It's accurate that the complaint alleges that every Josh Almaty official that the companies dealt with was a ministry official.

[01:30:32] Speaker 03:
So it's just another way of saying, yes, we were actively engaged with doing business with ministry officials who were also Josh Almaty officials.

[01:30:42] Speaker 03:
So there's no question that Josh Almaty, we're not saying it hadn't infiltrated, but there's also no question that we're doing, the only reason we're there is to do business with the ministry in its official capacity.

[01:30:52] Speaker 03:
And that's, I think that's where I know we cite the 22 places in the complaint that are specific.

[01:30:58] Speaker 03:
I do think just to be fair to your honor, there was one allegation that came up in the complaint that dealt with a straight alleged bribe by just one of the defendants at a restaurant.

[01:31:09] Speaker 03:
that doesn't relate to a government official.

[01:31:12] Speaker 03:
But that's one transaction out of five corporate families, 21 defendants.

[01:31:16] Speaker 03:
But all the other allegations are in connection with ministry officials who also are in the, they're in the political wing, validly elected, and then they're also violent militia people.

[01:31:31] Speaker 05:
The government brief could have easily said, right, affirm the dismissal

[01:31:39] Speaker 05:
and taken a position on that, right?

[01:31:44] Speaker 03:
I'm sorry, the government this time around?

[01:31:46] Speaker 05:
Yeah.

[01:31:46] Speaker 03:
Post-Tamna?

[01:31:47] Speaker 05:
Yeah, but they did.

[01:31:50] Speaker 05:
Absolutely.

[01:31:50] Speaker 05:
What should we take of that?

[01:31:52] Speaker 03:
Oh, it's government.

[01:31:54] Speaker 03:
I mean, I think it's typical government.

[01:31:55] Speaker 03:
I think the government said they were very much against and said that this case was to post your child for aiding and abetting liability or at least close to it five times in the oral argument.

[01:32:04] Speaker 03:
And then after Tomna did not an about face, but it, you know, I'd say at least 160, 170 degrees and came pretty far saying, you got to take another look.

[01:32:14] Speaker 03:
Now it didn't say, because it says a couple of times,

[01:32:17] Speaker 03:
you just need to go back and relook at it.

[01:32:19] Speaker 03:
But it says foreseeability is not the test.

[01:32:22] Speaker 03:
It said we encourage these companies, we there were supporting, and it said these were legitimate programs.

[01:32:26] Speaker 03:
And I think it also said, you know, that there is something to be said for the proxy by proxy that we're in there doing business with a government that's a proxy for Josh Almaty.

[01:32:38] Speaker 03:
Josh Almaty is a proxy for Hezbollah, who's the actual foreign designated

[01:32:43] Speaker 03:
uh, foreign designated terrorist organization and all that's just a piece.

[01:32:48] Speaker 03:
I don't think it's so much on nexus, but it's certainly a piece on culpability.

[01:32:52] Speaker 03:
It is very different than saying walking up to a designated terrorist and saying here's aid.

[01:33:00] Speaker 03:
I mean, there is a material support statute that is

[01:33:03] Speaker 03:
you know, is there for no nexus requirement.

[01:33:06] Speaker 03:
If you give an aid to a terrorist, you go to jail, and that's a statute.

[01:33:10] Speaker 03:
And ATA is about, you know, it's an actual tort.

[01:33:13] Speaker 03:
You have to have the nexus and the requisite culpability.

[01:33:21] Speaker 06:
It seems like a lot of the citations to Twitter in your briefing

[01:33:30] Speaker 06:
really equate the allegations of what the defendants here did with the allegations of what the platforms.

[01:33:38] Speaker 03:
Yeah, and that's obviously not correct.

[01:33:40] Speaker 06:
I mean, it just feels like it's either shoehorning something different.

[01:33:45] Speaker 06:
It doesn't help us analytically.

[01:33:47] Speaker 03:
Well, Judge Pellett, I do think the fact that Tomna was a super easy, almost frivolous case doesn't make this a hard case.

[01:33:53] Speaker 03:
But there's no question that Tomna was

[01:33:56] Speaker 03:
joke of an ATA case.

[01:33:57] Speaker 03:
There was no allegation that anyone from ISIS even used these videos that carried out the attacks.

[01:34:03] Speaker 03:
So it was, you know, a 90 frivolous case, but the court still spent 13 pages saying we're going to kind of rein in Halberstam and get it back to this conceptual core.

[01:34:13] Speaker 03:
Instead of talking about six factors, we're going to talk about the two and pervasive and systemic.

[01:34:18] Speaker 03:
And it kept saying over and over and over

[01:34:20] Speaker 03:
You have to consciously and culpably participate in the attack in such a way as to make the attack succeed.

[01:34:26] Speaker 06:
But the consciously and culpably really shifts depending on the now all-important nexus.

[01:34:33] Speaker 06:
And mental state.

[01:34:35] Speaker 06:
I think both.

[01:34:36] Speaker 06:
Well, nexus.

[01:34:37] Speaker 06:
And then they talk about the mental state and the substantiality.

[01:34:42] Speaker 06:
But just the degree of those two things in combination changing depending on the nexus.

[01:34:47] Speaker 03:
Yeah, but just in just Amazon, this case, the court just said that lack of an intent, terrorist intent carries significant weight.

[01:34:55] Speaker 06:
But Amazon, like Twitter, is a case of passively providing a uniform service to all comers in the same way.

[01:35:05] Speaker 06:
And this is not that case.

[01:35:06] Speaker 06:
What I'm saying is I think Amazon is wholly consistent with Twitter, but doesn't shed much more light.

[01:35:13] Speaker 06:
So what you're saying here is, for me, it's difficult in the same way that I found your brief difficult, which is that if there's no nexus,

[01:35:23] Speaker 06:
than the combined and sort of

[01:35:30] Speaker 06:
mutually with one's grade or the other, it could be less, of substantiality and scienter, the total of those has to be greater where you have the attenuated nexus.

[01:35:46] Speaker 06:
If you have more nexus than the whole analysis of what's provided by substantiality and scienter, it's like less work to do.

[01:35:55] Speaker 06:
There's less distance to cover.

[01:35:57] Speaker 03:
A hundred percent.

[01:35:58] Speaker 03:
A hundred percent.

[01:35:59] Speaker 03:
But there's no way you can convince me that this complaint doesn't allege enough under either.

[01:36:05] Speaker 03:
Because you have to at least take into account there's absolutely no terrorist intent.

[01:36:10] Speaker 03:
No way, no how.

[01:36:12] Speaker 06:
But you don't have to have a terrorist intent.

[01:36:14] Speaker 06:
Agreed.

[01:36:14] Speaker 06:
You have to have

[01:36:15] Speaker 06:
say enter and I take the court to be saying that where there's a closer nexus it would be enough to participate in something substantially with the court with the and have it be uh with the awareness that it's

[01:36:32] Speaker 03:
Yeah, I'm trying to I'm trying to get out the rest of the sentence.

[01:36:34] Speaker 03:
There's no specific intent.

[01:36:37] Speaker 03:
And at the end, there's no nexus either.

[01:36:39] Speaker 03:
There's no strict nexus.

[01:36:40] Speaker 03:
So they don't have a very strong showing on either axis.

[01:36:44] Speaker 03:
And I don't think they have much in the middle.

[01:36:46] Speaker 03:
There's no nexus.

[01:36:47] Speaker 03:
Absolutely zero nexus to any attack.

[01:36:49] Speaker 03:
There's a nexus to Josh Almighty's violent operations in the main, which all could have been to been killing

[01:36:55] Speaker 06:
their enemies and Sunnis there is not a single out and this complaint was written before Tom and I just think it shows they did they wrote this complaint without Tom in mind that you think the nexus here is as to an attack lacking as the nexus in Twitter is I find not plausible and

[01:37:16] Speaker 06:
And it's not really helping us.

[01:37:20] Speaker 03:
OK, it's different than Tomna, to be sure, because there's no allegation that ISIS, well, ISIS was using the platforms, to be sure.

[01:37:28] Speaker 06:
Well, they weren't, and the court points this out.

[01:37:30] Speaker 06:
Planets never alleged that ISIS used defendants' platforms to plan or coordinate the rain attack.

[01:37:34] Speaker 00:
That's right.

[01:37:35] Speaker 06:
And there's no allegation that he ever even used.

[01:37:37] Speaker 06:
Facebook or YouTube, whereas we know Jaish al-Mahdi spent the money.

[01:37:40] Speaker 06:
Not on these attacks?

[01:37:42] Speaker 06:
We know Jaish al-Mahdi is, at least as alleged, its mission in the world is to kill Americans.

[01:37:52] Speaker 03:
But now we're just talking global on ISIS.

[01:37:55] Speaker 03:
I read that, the sentence you just read, ISIS was

[01:37:58] Speaker 03:
ISIS was all over YouTube and Facebook and Twitter.

[01:38:03] Speaker 03:
There was just no allegation that any of the attackers on the Rana nightclub ever used those services.

[01:38:08] Speaker 06:
There has to be the specific attacks on Americans in your view.

[01:38:11] Speaker 06:
100% No matter whether there's a closer nexus or not.

[01:38:15] Speaker 03:
There's no nexus.

[01:38:16] Speaker 03:
There's zero nexus.

[01:38:17] Speaker 03:
The only way they can get around it is with pervasive and systemic, or they don't have to trace dollars for bombs, but there's a way to get, you know, just like they'd have to look at the bank accounts.

[01:38:28] Speaker 03:
Who were doing these attacks?

[01:38:32] Speaker 03:
Were there cells?

[01:38:33] Speaker 03:
I mean, at least in 9-11, money was going to the specific cell at ISIS that carry, or al-Qaeda rather, excuse me.

[01:38:39] Speaker 03:
Sorry for saying ISIS carried out 9-11.

[01:38:42] Speaker 03:
Al Qaeda.

[01:38:43] Speaker 06:
You don't have to trace dollars for bombs.

[01:38:45] Speaker 06:
That seems pretty clear.

[01:38:47] Speaker 06:
So what is the showing if funds are being given?

[01:38:52] Speaker 03:
To the attackers or for the attacks?

[01:38:55] Speaker 03:
The attackers.

[01:38:57] Speaker 03:
The attackers, i.e.

[01:38:58] Speaker 03:
the names of the attackers or the cell or the actual attacks.

[01:39:02] Speaker 03:
Yes, and if someone if they had earmarked it or said purpose, you would have an easy case.

[01:39:07] Speaker 03:
But when they say that it's a dead letter, the plaintiff should not be bringing cases unless they've got a nexus.

[01:39:12] Speaker 06:
You say the attacks, the attackers or the cell?

[01:39:15] Speaker 06:
I'm not sure.

[01:39:16] Speaker 03:
Well, if it was a well, in other words, the hijackers for 9 11, if there was, you know,

[01:39:22] Speaker 03:
whatever, they were 11 or nine, if it was just for those hijackers, they don't have to know their exact names.

[01:39:27] Speaker 03:
I mean, again, when you have- How would that be proved when you're talking about money other than with some kind of- Like the 9-11 complaints, Saudi Arabia was giving money to the training camps where they trained and gave money at a specific check that was, I think, 400,000 and then 300,000 went the next week to the mastermind.

[01:39:45] Speaker 03:
But they don't try to do that here.

[01:39:47] Speaker 03:
So yes, you can write an opinion that on a different complaint, if it was ever filed,

[01:39:52] Speaker 03:
or if they tried to amend that said, here's, we're going to try to prove that somehow.

[01:39:55] Speaker 03:
And again, there are 21 defendants here.

[01:39:58] Speaker 03:
They don't even try to lump anyone's money to any attack.

[01:40:02] Speaker 03:
They just say, you gave money and there were some attacks.

[01:40:04] Speaker 03:
And we know they all happened in the same country around the same five-year period.

[01:40:07] Speaker 03:
That's clearly not enough under Tomna.

[01:40:10] Speaker 03:
It's just not.

[01:40:10] Speaker 03:
And no question, Tomna is a much easier case on all the prongs, because Tomna was a very easy case.

[01:40:17] Speaker 06:
And the weakest thing

[01:40:18] Speaker 03:
you think about it is what the weakest thing in this case?

[01:40:22] Speaker 03:
Yeah, well, lack of nexus.

[01:40:24] Speaker 03:
And then we have the best thing going for us is there's no allegations that the culpability was aligned with the terrorist, the terrorist intent.

[01:40:32] Speaker 03:
But there's no question we're the strongest on just nexus.

[01:40:35] Speaker 03:
But we do think we're very strong with the context of again, common sense.

[01:40:39] Speaker 03:
These are drug companies that are there providing life saving their entire they wake up every day to save lives, not in the hopes that their drugs will be used to kill people.

[01:40:49] Speaker 05:
The Supreme Court cited favorably US v. Peoni, a decision written by Judge Leonard Tan.

[01:40:58] Speaker 05:
And then Peoni.

[01:40:59] Speaker 05:
That the counterfeit case?

[01:41:02] Speaker 05:
Yeah, Peoni possessed counterfeit bills and he sells them to person A with the knowledge that they're going to sell them further to someone else.

[01:41:17] Speaker 05:
Person B, we'll call it.

[01:41:19] Speaker 05:
Um, and so the question peony is, is there criminal criminal aiding and abetting liability of person B's possession?

[01:41:28] Speaker 05:
And Second Circuit says no, but they say if this had been a civil case, there would be.

[01:41:36] Speaker 03:
I thought it might be different.

[01:41:37] Speaker 03:
I wasn't sure it said they would.

[01:41:38] Speaker 03:
They would be liable.

[01:41:39] Speaker 05:
It said if this were a civil case, that would be true.

[01:41:43] Speaker 05:
An innocent buyer from

[01:41:47] Speaker 05:
the first person could sue Paoni and get judgment against him for his loss.

[01:41:56] Speaker 05:
Actually, an innocent buyer from the second person.

[01:42:03] Speaker 05:
So he only gives it to person A, they sell them to person B, and then they say if this were a civil case where person B had transferred the counterfeit drugs to some innocent buyer, that innocent buyer kind of two steps removed could recover on an aiding and abetting theory because civil,

[01:42:32] Speaker 05:
is different criminal.

[01:42:35] Speaker 05:
And so kind of knowledge and natural consequence there is foreseeability, et cetera, is sufficient to both be the substantial assistance and or the culpable.

[01:42:50] Speaker 03:
Yeah, so just I would say a couple of things.

[01:42:52] Speaker 03:
The first is, you know, the Supreme Court mixed and matched a lot of criminal and civil and then said, but we're not going to talk about today how much

[01:43:00] Speaker 03:
the civil has to overlap with criminal so obviously it's not citing that part of the second circuit's opinion but more to the point direct are you saying second circuit got it wrong no because i'm about to get my second point which is at least that's counterfeit and i think this does go to like the morphing distributor where there's no alternative explanation what's he doing counterfeiting here there's a lot of good innocent explanations for what

[01:43:21] Speaker 03:
the companies were doing in Iraq in the middle of the Civil War.

[01:43:24] Speaker 03:
In other words, it's the mismatch of culpability.

[01:43:26] Speaker 03:
You can't just take the fact that these were unreasonable transactions or corrupt in the sense of they wanted to grow their market share and somehow equate that to the type of tort that the counterfeiter was talking about.

[01:43:40] Speaker 05:
But what other purpose is there for providing, you know, missions, free goods that you know are going to be sold other than

[01:43:52] Speaker 05:
To put drugs in the hands of Iraqi women and children.

[01:44:01] Speaker 03:
Iraq would not have Western medicine unless they were there.

[01:44:04] Speaker 05:
Iraq doesn't have its own drug companies.

[01:44:09] Speaker 05:
We're going to provide it, but we're not going to provide you with any of the free stuff or any commission.

[01:44:13] Speaker 03:
And the complaint alleges six ways to Sunday that that was not an option.

[01:44:17] Speaker 03:
It says you could not.

[01:44:18] Speaker 03:
That's why the bribes were given.

[01:44:19] Speaker 03:
The bribes were given for the sole purpose of getting the contract.

[01:44:23] Speaker 03:
I mean, there's no allegation that we could have negotiated the level of bribes down.

[01:44:28] Speaker 03:
That's the pre-Saddam stuff, that this was required by Saddam before them.

[01:44:32] Speaker 03:
And then they said, this is popular in the Middle East.

[01:44:35] Speaker 03:
And then it continued after.

[01:44:36] Speaker 03:
Josh Almaty left the scene.

[01:44:39] Speaker 03:
It's a, now again, I agree that it can't just be, well, everyone's doing it or it just was routine, but just the context of this is a country that needs drugs or medicine and x-ray machines and EKGs.

[01:44:51] Speaker 03:
That's the only way to get them.

[01:44:52] Speaker 03:
And you just, I don't think the other side disputes, there would have been no medical, a Western medicine in Iraq, but for these drug companies being there and the bribes and commissions being paid or complaint, just complain is completely inconsistent with that.

[01:45:11] Speaker 03:
Thank you.

[01:45:22] Speaker 02:
I'll start with the last point.

[01:45:23] Speaker 02:
It's a great illustration of why this court should not draw factual inferences on a motion to dismiss.

[01:45:29] Speaker 02:
It is not true that the only way for Western medicine to get into this country was by them paying bribes and commissions to Iraq's Ministry of Health.

[01:45:37] Speaker 02:
We allege at paragraph 76 and 113 of the complaint that there were

[01:45:41] Speaker 02:
for alternate procurement mechanisms available.

[01:45:44] Speaker 02:
The U.S.

[01:45:45] Speaker 02:
government in the sources Ms.

[01:45:46] Speaker 02:
Blatt cited was not selling to the ministry.

[01:45:50] Speaker 02:
The U.S.

[01:45:51] Speaker 02:
government was running its own procurement process for this reason because selling medicine to the J. Shalmati controlled Ministry of Health was the worst conceivable way to get drugs to anybody who needed them.

[01:46:05] Speaker 02:
Their conduct

[01:46:06] Speaker 02:
As we alleged, the complaint made Iraq's health care structure worse, not better.

[01:46:11] Speaker 02:
And they did not do it, certainly not on a motion to dismiss, because they were trying to save Iraqi lives.

[01:46:17] Speaker 02:
They did it because they wanted to profit.

[01:46:19] Speaker 02:
That is why they paid the bribes.

[01:46:22] Speaker 02:
This is at paragraph 139 of the complaint.

[01:46:24] Speaker 02:
They were willing to go along with it because it jacked up their reference prices and they made more money than they would have had they worked with what the U.S.

[01:46:33] Speaker 02:
government was doing, which was trying to clean up Iraq's health care system, not make it worse like they did.

[01:46:39] Speaker 02:
Second point is that Ms.

[01:46:40] Speaker 02:
Blatt's theory of nexus would overrule essentially every case that has addressed an aiding and abetting theory under the Anti-Terrorism Act.

[01:46:50] Speaker 02:
And Judge Edwards, I think what's really notable about it is that there was no mention of Judge Kearse's Kaplan

[01:46:55] Speaker 02:
opinion in the Second Circuit.

[01:46:57] Speaker 02:
That opinion was wrongly decided under Miss Black's theory of nexus.

[01:47:01] Speaker 02:
The nexus theory there was much more attenuated than what we have here.

[01:47:06] Speaker 02:
And indeed, the nexus theory I just heard her articulate is more demanding than what courts require for proximate cause.

[01:47:14] Speaker 02:
Under Owens III, which is this court's canonical proximate cause case in a material support of terrorism case, there wouldn't be a quote unquote nexus because Sudan

[01:47:24] Speaker 02:
gave support to Al-Qaeda in Sudan.

[01:47:26] Speaker 02:
And this court held that it proximately caused both foreseeability and substantial factor, Al-Qaeda attacks two countries over in Tanzania and Kenya.

[01:47:36] Speaker 02:
And that is one of the real problems here.

[01:47:39] Speaker 02:
And I didn't hear a real answer other than Ms.

[01:47:41] Speaker 02:
Blatt identified two cases that she claims would satisfy the Nexus test.

[01:47:46] Speaker 02:
Let's address them both.

[01:47:47] Speaker 02:
Ashton was, I'm not exactly sure what the case site was.

[01:47:51] Speaker 06:
Before you get in there, you've mentioned Kaplan, you've mentioned Owens.

[01:47:54] Speaker 06:
And you say a whole body of cases would fall under her theory that have recognized aiding and abetting liability.

[01:48:00] Speaker 06:
Is there any others you'd want us to consider?

[01:48:02] Speaker 02:
Zobay, for sure, Judge Pillard.

[01:48:04] Speaker 02:
I think Judge Ammon's analysis of Twitter was very correct and persuasive.

[01:48:10] Speaker 02:
And yes, there may be some words you could change here or there.

[01:48:13] Speaker 02:
But her analysis of the Nexus question from Twitter, this was a post

[01:48:17] Speaker 02:
Twitter opinion was quite compelling.

[01:48:19] Speaker 02:
King and Bonacasa are two others, and I think it is notable.

[01:48:23] Speaker 06:
But other pre-Twitter Court of Appeals cases where aiding and abetting possibly would be on the chopping block?

[01:48:33] Speaker 02:
It's just Kaplan, Judge Peeler.

[01:48:35] Speaker 02:
You may remember this from our last appeal when you decided actually there had only been two.

[01:48:39] Speaker 02:
There had been Gonzalez and there had been Kaplan.

[01:48:42] Speaker 02:
Now, Honickman from the Second Circuit dismissed the claims, but we agree with its legal reasoning.

[01:48:48] Speaker 02:
I take it under Ms.

[01:48:49] Speaker 02:
Blatt's formulation that case was also wrongly decided.

[01:48:53] Speaker 02:
She is trying

[01:48:54] Speaker 02:
Their theory would take a sledgehammer to essentially every case that has been decided under the Anti-Terrorism Act.

[01:49:00] Speaker 02:
And on the two cases she identified, Ashton and the cases against Iran for October 7th.

[01:49:07] Speaker 02:
OK, the latter is an easy one to explain.

[01:49:10] Speaker 02:
That is exactly what they are asking us to do.

[01:49:13] Speaker 02:
I agree.

[01:49:14] Speaker 02:
Iran is going to default in that case.

[01:49:17] Speaker 02:
It's going to be a lawsuit under the Foreign Sovereign Immunities Act, not the Anti-Terrorism Act.

[01:49:21] Speaker 02:
And they're going to get a default judgment that is not worth anything.

[01:49:25] Speaker 02:
That is, I think, the rubric they are trying to put us in.

[01:49:28] Speaker 02:
They want us to go sue Muqtada al-Sadr, a pointless lawsuit that would accomplish nothing.

[01:49:33] Speaker 02:
My clients would certainly find it cold comfort.

[01:49:35] Speaker 02:
The Ashton case, I'm not exactly sure if that caption is correct, but the case against Saudi Arabia

[01:49:42] Speaker 02:
is also not brought under 2333 D2.

[01:49:44] Speaker 02:
It is another FSIA case that is about a waiver of sovereign immunity.

[01:49:50] Speaker 02:
And if you look at the text of the Anti-Terrorism Act, Saudi Arabia is immune under section 23372.

[01:49:56] Speaker 02:
So I think it is telling, and I can't stress this point enough, there are no realistic cases that surmount the