out for the whole thing to be undisputed i understood that parts of it are not disputed for example bank melli is a it's an agency of the iranian government just to take one all the way out to the end of that chain i thought was actually what we're here to discuss well the dispute is whether the bank entered into that conspiracy or engage an entirely separate conspiracy when it engaged in the same concealing and disguising techniques with the sell it almost seems as if you're asking us to reject  where attacks are not caused by a foreign or planned authorized or committed by a foreign terrorist organization for example and here the defendant challenges our view that as a bolo was responsible for the attack it says it was the initiative of the local thugs acting as special groups so this is an instance where the point if would please both the bones three syria primary liability and jass to twenty feet thirty three d depending on  what the fact finder would find with respect to the planning and authorization of the attack by a foreign terrorist organization also congress surely intended to leave primary liability for terrorists now though it's impossible to think that they have completely supplant wanted to make money and they didn't really care what would or rand was doing with the money once they got those dollars in iran's possession so it's i'm i'm worried that we're collapsing to much into your phrasing  conspiracy when i think of it is you know there's there's an agreement somebody joins that agreement it's got a purpose the purpose is to do something that purpose has to be reasonably foreseeable to the party who joined the agreement banks numbers are entirely self reported and have never been confirmed we can only take them you know as their allegation what we can infer from their emails is reflected in the consent order with the new york department financial services is that they weren't worried just about the money being rejected but about it being frozen in the united states the united states only freezes funds that are from specially designated nationals and we also know that when the new york branch of said wait a minute you're dealing with us designated entities and that breaks the law the banks response was to hide the ball from them and basically put them in the dark and these are phrases from the consent order not my phrase individual gems further down the chain of course yes it is but one other bit of evidence that we think makes it plausible to believe that the bank agreed and knew that there was a substantial probability that the money would reach as bo f is that it in gauged in exactly the same deceptive techniques with exactly the same rainy and banks over exactly the same time period that the united states found that those banks gave  hundred fifty million dollars to is bull and the key with which is iran's terror arm in iraq the bank says that's coincidence and it is a separate conspiracy and we say no that's a reasonable basis for a fact finder to infer that the two conspiracies conspiracies interlinked and that the deceptive techniques that the bank use with the same deceptive techniques that it's two counterparts used when they funded a twelve pages mention it rainy and counterparts and the only two banks mention it's an order of banks satirized and bank melli is it a coincidence that the same two banks using stripping and cover transactions in the same time period funded as  f the fact finder would be entitled to determine with that's coincidental but i also think it's plausible that it's not a coincidence i mean obviously two questions one of and they're different one of them is whether in order to rule for you we would need to whichever order you prefer let me start with rusty rustin was not a conspiracy case it was an aiding and abetting case and the focus of causation and aiding abetting case is on the substantial assistance that the better gave to the primary to and therefore using the substantial factor test for causation makes him in the good sense you're measuring is the assistance that the better gives to the tortfeasor the primary tortfeasor substantial in a conspiracy case the focus is on agreement so substantial factor is not the test for a conspiracy case and the other distinction with rusting is that rusting had no non conclusive reallocations than any of the bank's counterparts or that iran had actually transferred money to a foreign terrorist organization we have the united states government finding the one hundred fifty million dollars went by the same two banks that deutsche bank happened to be working with went from them to the foreign terrorist organization so what was not present russian complaint is plausibly played in this complaint based on the united states government finding all in it is a difficult case because as both a district court in the court of appeals observed the complaint was not a model of clarity i went and looked at it it has twenty four counts they're all for assault and battery intentional infliction of motion was yes and loss of consortium so it's hard to know what exactly they were pleading but apparently according to the d c circuit opinion in the case there  briefing and their argument was an aiding and abetting and again if aiding and abetting is your theory a liability under the bottom three primary liability with a character beating abetting then the focus is some substantial assistance and the correct test is was the defendant's x a substantial factor in the natural chain of causation that that court also held that common law aiding and abetting and conspiracy was not available which we don't disagree with we're not three as opposed to considering criminal conspiracy principles any valuating whether it's a violation of international  it is as well but that's not the allegation in the complaint this is strictly a claims under the anti terrorism act and our theory billet he originally pretty jasta was that the bank was primarily one more thing before you sit down and that's really dealing with the tort doctrine of intervening cause that's another thing that comes up here where the district court and other courts have said you know sure you know maybe decision breaks the chain of causation the theory would be if that's the case so why doesn't giving money like giving money to the united states and saying we're a terrorist country because we financed t killing of osama bin laden well the united states has a lot of things it does funny things other than kill osama bin laden although we did that so why is why isn't sending the money to a sovereign state something that's so when they deliberately bypassed that the natural inference is that they are using it to support illicit activities and if you're the your honour's would look at paragraph one thirty eight of the complaint you'll see that that's precisely what the united states treasury concluded when it rescinded u turn regulations said that iran was using deceptive bank techniques to access the international financial system for the purposes of financing its illicit activities those being terrorism and  the requirements evidence that the transactions involved an illegitimate purpose and isn't that to liberate removal of identifying information a fairly clear effort to hinder the investigation interception of that honor i would say that it is there's certainly a fair inference here that there was something improper a bank has agreed with banking regulators to a civil consent order that these were not appropriate banking practices and i think you could even take it a step further and reach an inference that that there was some intent to avoid sanctions at the time of this is just would pointed out during the time that the consent order was focused on bank  entities the u s government had not announced to the world that there was a concern about these entities funding terrorism what what president clinton had done in the one nine hundred ninety s is i'm close to general embargo on iran now the u turn exemption was a was a partial category of transactions for example if if the money was was coming through from an iranian company through a bank in the end result was not you turning out but was was ending in the united states that would have violated the u turn exemption and and certainly i think you can infer an intent to avoid that overall sanctions regime but i think it's a step too far too and for an intent essentially to fund terrorism which is what's being alleged here so here's my question  i don't think that the line of causation is necessarily as long as you portray it in your briefs because it seems to me it's just a couple of steps and doing business for iran and we iran whether it's the reigning banks whether it's the shipping line whether it's the i r g c or i r g q f so deutsche bank is dealing with this intermediate step and by the time you get to they are clearly funding hezbollah are which is developing these lethal weapons and the end result is the predictable killing of of of americans they were very upfront about that goal actually wasn't something they thought necessary to hide so so if they want you engaged in that transaction shouldn't we impute to them knowledge to anybody reading the newspapers would have that is not directly giving money to terrorists that is that is supplying resources to a state sponsor of terrorism certainly understanding that that is one of the many things that that state sponsor of terrorism does but that is still a very significant break in the chain or at least a significant step that makes it not a sufficiently direct relationship for purposes of proximate cause i'm just going say does that make sense if it's a government such as the government of iran during this time when which has announced that it's doing this which the president of the united states branded as part of the axis of evil surely this is more than just idle talk on the president's part he you know i don't know all the information he had behind that statement but he lumps together a very small number of countries and iran is one of them and so it's not just such an innocuous act for joy to find a way to pour money into the iranian coffers when iran has said we're going to kill people from the united states your honor i'm certainly not here to maintain that this was an innocuous act the united states imposes very significant three percent i think you know there was a there was a broader settlement with both with banking re the regulators at the new york and the federal level so there was in addition to a significant fine a few hundred million dollars committed to putting processes in place to monitor to it to show that it was it was repairing issues in its compliance system so i don't think this was a this was a minimal slap on the wrist but i think you know the broader point here is there is a difference between nontransparent banking regular violations even ones with a state sponsor of terrorism even where there is some a vision of sanctions and is true there were sort of the face of maneuvers here and you could even stipulate that there was a purpose to evade sanctions which was a very broad based sanctions regime but i think a little bit of the conspiracy claim that that's being alleged here you know that i think there's agreement holding aside whether this conspiracy theory works a point i'd like to get back to because of the difference between subsection  assume that if they can show a conspiracy to fund terrorism a bank can be on the hook for something and if it's conspirator alleged coconspirators have done in the absence of a conspiracy is an agreement not just any agreement claim here can't just be you have the goal of helping iran get around sanctions and you knew for so you believe that that might help them find terrorism you need to show for there to be a conspiracy to find terrorism any participant in that conspiracy needs to have agreed to that objective and there's just nothing there even can be inferred one of the examples i think in the briefs or at least one of the examples that comes to my mind is a drug conspiracy where one person is approached by an individual he knows and say oh we see you have a garage with lots of room in it do you mind if we store large boxes in the garage and we'll pay  that have been found guilty of being part of the drug conspiracy so they and it's because that information was enough in front of them just as i think the argument is here that deutsche bank was perfectly aware of what hezbollah was doing was perfectly aware of what iran's relationship to hezbollah was so i mean that people have criticized the criminal law of conspiracy don't get me wrong but it is what it is and so why are you further away from the conspiracy than my drug storage person is not i think what's important to recognize in these conspiracy cases is that knowledge is is not sort of the be all end all what it is is it's a basis for inferring so i think in your drug case when someone agrees to store these mysterious boxes for a lot of money there's no real there's no real explanation of that other than i think it's very easy to least for a jury to draw an inference there  yeah this is a this is a drug transaction and you have agreed to help out with a drug operation i think you could make a similar argument here in terms of now in terms of an agreement to evade sanctions you know in in the owens case there was a unlike here there's actually a guilty plea to a conspiracy to invade sanctions so i think i think you can get there but these when do it your bank is is agreeing to do as you call  deceptive banking for bank melli and banks are there at a time that those banks are not designated as estee and they're not designated as s g g t's you know the knowledge that iran in general is doing very bad things i don't think coffers and you say well but you know that iran is back you know iran is doing bad things then that then anyone who is doing business with iran anyone who sending money to iran is conspiring to fund terrorism and i think that would be a very hypothetical for your opponent about right and no i'm i'm eager to hear that the answer to that hypothetical as well and but i think is a principled matter if the theory is just you are contributing resources to a state sponsor knowing that that state sponsor sponsors terrorism  claims are left in this case in the district court after jasta was passed the plaintiff explained that in that she had a claim under d for the express statutory cause of action for conspiracy the d you need to show first that the it there was an act of terrorism that was planned authorized or committed by a foreign terrorist organization and once you've established that you need to show that there were that defendant conspired with the person who committed the terrorist organization with the district court found was what they said was a was a what they allege was a conspiracy with iran iran was not the person who committed it with the and that and now that is not that has not been ch so this is not that case i suppose because it's been dropped right that has been dropped and so now we have the question that i think george roden are raised at the beginning we know that congress created this express cause of action for conspiracy we also know that it had these limitations it has this planned committed and authorize element that has this conspire with the person who committed aliment and so what the plaintiff is arguing here is even if we can't satisfy the express conspiracy claim we get it anyway you can you can you can read it in through a chain of incorporations by reference into into twenty three thirty three and i just don't think that's a hole in your problem there any because one of the issues and you know we entertain that case a couple  times was since the language of the statues so open ended the question was how far out you go and we did say you know we didn't in that instance that was you know whether holy land was actually finding the people who blew up the defendant or the victim of the terrorism david bowie and and so how much further out in actually it's a pretty loose i complained about this in my descends a pretty loose causation standard in boim and if that's the law then why isn't it met here your honor i think i think it is not so loose that we can go away from you know material support for the terrorists to know it and i think five or six times in the complaint what they call supervisor of terrorism against the united states in that region of the world why doesn't that get close enough to going to survive twenty six your honor i think i don't think that you know calling  a different way i think these are fundamentally different cases but we was it was about support for terrorism for for hamas either directly or through known fronts for osteen owens in this case these are essentially about what the pla i know mr raven hanson is going to come back to this why the conspiracy notion doesn't cure those problems because everybody's in one big agreement to commit terrorist acts against american service people or against americans in general then we can get to the murder of the plane your honor if plaintiff had preserved in complete a claim under subsection d and can meet all those elements and that's exactly where we would go we would apply all of these normal civil conspiracy principles but they're not doing that they're reading it in to a and essentially you know they they call it  in their brief but i don't think that's cause ation that's just conspiracy law this idea that even if you didn't cause it you were essentially liable for what your coconspirators to the way we see a claim under a following boeing three  we agree they're entitled to use a conspiracy to support terrorism conspiracy to commit material support for terrorism that can check one box in their chain of incorporations by reference that is essentially their predi let's say they have they've checked out box the question is still this is primary liability did deutsche bank's actions cause proximately caused the plaintiff's injury and here would submit there are not sufficient allegations to show  because this is a primary liability claim that's not disputed you need to meet all of the elements the congress laid out one is that the defendant itself needs to appear to have intended to intimidate and coerce so even if you accept it because taking the statutory tax seriously in objective observer needs to needs to conclude that it appears that the defendant here at the defend itself intended to intimidate and intended to coerce and involving three that was quite easy to drugs because the planes were used for that purpose and his argument was he had no idea that they were going to be used for that much like the bank's argument that they had no idea how this money would be spent and this court held that if there was a high probability he knew of a higher purchase example here the bank at that point for that example and actually i could even give you another one is that if you are someplace i had to make it in paris because there's been enough of an embargo that raining good old fax safe marketing device for a lucrative fees your pistachio purchaser and your shareholders are not engaged in that course of dealing and it's common drug conspiracy law that we can infer with an assert consent or intent or state of mind  that kind of course deal also i would point out that if you're on his look at joint appendix page sixty nine paragraph twenty five with the consent order you'll see that when the banks new york officers raise questions about what he was doing the questions were not about rejecting sales and kind of complying with the paperwork requirements the questions were about dealing with us sanction customers and having relationships u sanction customers and we think that brings it much closer to an inference that they are knowingly dealing with material support i also know that the statute actually has two alternative standards for conspiracy here one is conspiracy to provide material support knowing that it will be used for certain purposes but the other is a conspiracy to conceal or disguise the source or ownership of material support the district court completely fail to apply that standard and that fits  like a glove what the bank has been doing here finally as to the jasta claim i want to add it is before the court because the mistake the judge reagan made in the drastically was in defining the scope of the conspiracy and that's the first issue that we present in our brief here if the scope of the conspiracy is as we describe it then the lower court was wrong on the jasta claim as well and paragraph one thirty nine of our complaint we allege that one of the co spirators is the i r g c whose terror arm is i r g c q f so they are alleged to be in the conspiracy and of course it's come conspiracy law that the bank doesn't have to deal directly with them as long as they are part of the