1 9-863(L)

W eiss v. National Westminster Bank PLC

1 U NITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2019 5 ( Argued: May 14, 2020 Decided: April 7, 2021) 6 Docket Nos. 19-863(L), 19-1159(XAP) 7

_ ________________________________________________________________________ 8 T ZVI WEISS, LEIB WEISS, MALKE WEISS, YITZCHAK WEISS, 9 Y ERUCHAIM WEISS, ESTHER DEUTSCH, MOSES STRAUSS, PHILIP 10 S TRAUSS, BLUMA STRAUSS, AHRON STRAUSS, ROISIE ENGELMAN, 11 J OSEPH STRAUSS, MATANYA NATHANSEN, CHANA NATHANSEN, 12 M A TANYA AND CHANA NATHANSEN for THE ESTATE OF TEHILLA 13 NATHANSEN, YEHUDIT NATHANSEN, S.N., a minor, HEZEKIEL 14 TO P O ROW I T C H, P E A RL B . T O P O ROW I T C H, Y E HUD A T O P O ROW I T C H, 15 D AVID TOPOROWITC H, SHAINA C HAVA NADEL, B LUMA ROM, 16 RIVKA POLLACK, EUGENE GO L DSTEIN, LORRAINE GOLDSTEIN, 17 B ARBARA GOLDSTEIN INGARDIA, RICHARD GOLDSTEIN, MICHAEL 18 GOLDSTEIN, CHANA F REEDMAN, MICH A L HONICKMAN for T HE 19 E STATE OF HOWARD GOLDSTEIN, MICHAL HONICKMAN, DAVID 20 GOLDSTEIN, HARRY LEONARD BEER AS EXECUTOR OF THE ESTATE 21 OF A LAN BEER, HARRY L E O N ARD BEER, A NNA B EER, PHYLLIS 22 M A ISEL, ESTELLE CARROLL, S ARRI A NNE SINGER, JUDITH SINGER, 23 E RIC M. SINGER, ROBERT SINGER, JULIE AVERBACH for THE ESTATE 24 O F S T E V E N AV E RB A C H, JUL I E AV E RB A C H, TA M I R AV E RB A C H, D E V I R 25 A VERBACH, SEAN AVERBACH, A.A., a minor, MAIDA AVERBACH for 26 T HE ESTATE OF DAVID AVERBACH, MA IDA A VERBACH, MICHAEL1 A VERBACH, EILEEN SAPADIN, D ANIEL ROZENSTEIN, J ULIA 2 R O Z E N S T E I N S C H O N , A L E X A N D E R R O Z E N S T E I N , E S T H E R 3 ROZENSTEIN, JACOB STEINMETZ, DEBORAH STEINMETZ, JACOB 4 S TEINMETZ AND DEBORAH STEINMETZ for THE ESTATE OF 5 A MI C H AI STEINMETZ, NAVA S TEINMETZ, ORIT M AYERSON, 6 NATANEL STEINMETZ, ROBERT L. COULTER, SR. for THE ESTATE OF 7 JA NIS RUTH COULTER, DIANNE COULTER MILLER, ROBERT L . 8 C OULTER, SR., ROBERT L. COULTER, JR., LARRY CARTER for T HE 9 E STATE OF DIANE LESLIE CARTER, LARRY C A RTER, SHAUN 10 C H O F F E L , RICHARD BLUTSTEIN AND KATHERINE BAKER for T HE 11 E S T A T E O F B E N J A M I N B L U T S T E I N , R I C H A R D B L U T S T E I N , 12 KATHERINE BAKER , R E BEKAH BLUTSTEIN, NEVENKA GRITZ for T HE 13 E S T A T E OF D A V ID G RITZ, NE V E NKA GRITZ, NE V E NKA GRITZ fo r T HE 14 E STATE OF NORMAN GRITZ, JACQUELINE C HA MB ERS AS T HE 15 A DMINISTRATOR OF THE ESTATE OF E STHER BABLAR, JACQUELINE 16 C HAMBERS, LEVANA COHEN, ELI COHEN, SARAH E LYAKIM, 17 Y EHUDA A G AB ABA, MENACHE AGABABA, YEHEZKEL AGABABA, 18 GRETA GELER, ILANA E ROPA DORFMAN, R EFAEL KITSIS AND TOVA 19 GUTTMAN AS THE ADMINISTRATOR OF THE ESTATE O F HANNAH 20 ROGEN, AKIVA ANACHOVICH, JOSHUA FAUDEM, ZOHAR FATER, 21 B RUCE MAZER, ORLY ROM, RICHARD COFFEY, GAL GANZMAN, 22 J UDITH B UCHMAN-ZIV, ORA COHEN, MIRAV COHEN, DANIEL 23 C OHEN, O.C., a m i n or, S.C., a minor, E.N.C., a minor, FAIGA ZVIA 24 L IEBERMAN, EINAT NOKED for THE ESTATE OF EYAL NOKED, EINAT 25 NOKED, A .N., a minor, A V I SHAG NOKED, BARUCH ZURI NOKED, 26 B INYAMIN ELKANA NOKED, NETA N E C HA M A C OHE N, T.N., a minor, 27 KAREN GOLDBERG, CHANA WEISS, ESTHER GOLDBERG, YITZHAK 28 GOLDBERG, SHOSHANA GOLDBERG, E LIEZER GOLDBERG, Y .M.G., a 29 minor, T.Y.G., a minor, NIL L Y C H OMAN, TEMIMA SPETNER, JASON 30 K I R S C H E N B A U M , I S A B E L L E K I R S C H E N B A U M , I S A B E L L E 31 KI RSCHENBAUM for THE ESTATE OF MARTIN KIRSCHENBAUM, 32 J O S H U A K I R S C H E N B A U M , S H O S H A N A B U R G E T T , D A V I D 33 KIRSCHENBAUM, DANIELLE TEITELBAUM, NETANEL MILLER, 34 C HAYA MILLER, ARIE MILLER, A L T EA STEINHERZ, JONATHAN

-2-1 S TEINHERZ, BARUCH YEHUDA ZIV BRILL, CHAYA BEILI, AND GILA 2 A LUF, 3 Plaintiffs-Appellants-Cross-Appellees , 4 5 - v. - 6 NATIONAL WESTMINSTER BANK, PLC., 7 Defendant-Appellee-Cross-Appellant

. 8

_ ________________________________________________________________________ 9 TH E ESTATE OF DAVID APPLEBAUM, THE ESTATE OF NAAVA 10 APPLEBAUM, D EBRA APPLEBAUM, T HE ESTATE OF JACQUELINE 11 A PPLEBAUM, NATAN APPLEBAUM, S HIRA APPLEBAUM, YITZCHAK 12 A PPLEBAUM, SHAYNA APPLEBAUM, TOVI BELLE APPLEBAUM, 13 GEELA APPLEBAUM GORDON, CHAYA TZIPORAH COHEN, PHILIP 14 L ITLE, THE ESTATE OF ABIGAIL LITLE, ELISHUA LITL E , H A NNAH 15 L ITLE, HEIDI LITLE, JOSIAH LITLE, NOAH LITLE, ARI HOROVITZ, 16 B ATSHEVA HOROVITZ SADAN, DAVID HOROVITZ, THE ESTATE OF 17 D EBRA RU TH H O ROVITZ, THE ESTATE OF ELI NATAN HOROVITZ, 18 T HE ESTATE OF L EAH HOROVITZ, THE ESTATE MOSHE HOROVITZ, 19 NECHAMA HO RO VITZ, SHULAMITE HOROVITZ, TOVI HOROVITZ, 20 TVI HOROVITZ, URI HOROVI TZ , BERNICE WOLF, BRYAN WOLF, 21 STANLEY WOLF, FRAN STRAUSS BAXTER, WILLIAM J. BAX TE R, 22 A R I E L A F R E I RM A R K, M E N A C H E M F R E I R M A R K, H A D A S S A H 23 FRE I RMARK, PHYLLIS PAM, RIVKA REENA PAM, SHOSHANA T ITA, 24 E ZRA TITA, E PHRA I M TI TA, EPHRIAM TITA for THE ESTATE OF 25 B ERTIN TITA, RACHEL POTOLSKI, OVADIA TOPPOROWITCH, 26 Y ISRAEL TOPPOROWI TCH, YITZCHAK TOPPOROWITCH, M IRIAM 27 E HREN FELD, ROSE J OSEPH, LEIBEL REINITZ, MALVIA REINITZ, 28 M A RGALI REIN I TZ , MENDY REINITZ, MIRIAM REINITZ, RIVKA 29 R EINITZ, SAMUEL REINITZ, S HMUEL REINITZ, YAKOV REINITZ, T HE 30 E STATE OF MORDECHAI R EINITZ, THE ESTATE OF YISSOCHER DOV 31 R EINITZ, YITZCHOK RE I NITZ, RAIZEL SHIMON, LEAH TAUBER, -3-1 HELEN WEIDER, AVROHOM D. RICHTER, BREINA RICHTER, M IRIAM 2 L EAH RIC H TER, MOSHE RICHTER, NECHAMA RICHTER, SARA 3 M A LKA RICHTER, SHLOMO CHAIM RICH TE R, TRANNE RICHTER, 4 Y AKOV Y OSEF RICHTER, YECHIEL RICHTER, YEHUDI S RI CHTER, 5 Y ISROEL RICHTER, Y ITZCHOK RICHTER, PERL BRAILOFSKY, MALKY 6 B REUER, ESTER BUXBAUM, GITTEL COHEN, CHAYA FREISEL, 7 RACHEL ROSNER, ELIZABETH SCHWARTZ, JACOB SCHWARTZ, M AX 8 S C HWA RT Z, M IC HA E L S C HWA RT Z, P HIL L IP S C HWA RT Z, A B RA HA M 9 Z ARKOW S KY, A RON Z A RKOW S KY, BSHAVA ZARKOWSKY RICHTER, 10 T HE E STATE OF ELI ZARKOWSKY, EZRIEL ZARKOWSKY, GITTEL 11 Z ARKOWSKY, THE ESTATE OF GO LDIE ZARKOWSKY, JOSEPH 12 ZARKOWSKY, MENDEL ZARKOWSKY, MIRIAM ZARKOWSKY, 13 S H RA G E Z A RKOW S KY, TRA NY Z A RKOW SK Y , Y E HUD A Z A RKOW S KY, 14 E RIK SCHECTER, SHLOMO TRATNER, THE ESTATE OF T IFERET 15 T RA T NE R

, A V E RHA M GROS S M A N, D E VO RA H C H E C H A N OW L E I F E R , 16 J OSEPH L E IFER, BRACHA M ILSTEIN, SHIFRA MILLER, CHAYA 17 ROSE N B E RG, ABRAHAM WAXLER, ARTHUR WAXLER, BARUCH 18 W AXLER, CHANA WAXLER, DINA WAXLER, EZEKIEL WAXLE R, 19 GEDALIA WAXLER, HAGGI WAXLER, NACHUM WAXLER, OBADIAH 20 W AXLER, YAAKOV WAXLER, Y OEL WAXLER, ZACHARIA WAXLER, 21 NE THANIEL BLUTH, MOSHE NAIMI, FAYE CHANA BENJAMINSON, 22 T HE ESTATE OF MOSHE GOTTLI E B , SEYMOUR GOTTLIEB, SHEILA 23 GOTTLIEB, 24 Plaintiffs-Appellants-Cross-Appellees , 25 26 - v. - 27 NATIONAL WESTMINSTER BANK, PLC., 28 Defendant-Appellee-Cross-Appellant

. * 29

_

________________________________________________________________________

* The Clerk of the Court is directed to am end the official caption to conformwith the above captions of the two cases, which were consolidated for pretrial proceedings in the district court. -4-1 B efore: KEARSE, JACOBS, and CABRANES, Circuit Judges

. 2 Joint appeal from judgments entered o n March 3 1, 2019, in th e U n i ted 3 S tates District Court for the E astern District of New York, Dora L. Irizarry, then- Chief 4 Judge, (A) dismissing the operative amended compl a int s in the se tw o a c ti o ns that seek 5 t o hold defendan t bank liable under the Antiterrorism Act of 1990 ("ATA"), s ee 18 6 U .S.C. §§ 2333(a), 2331(1), and 2339B, for providing banking services to a charitable 7 o rganization with alleged ties to Hamas, a designated Foreign Terrorist Organization 8 ( "FTO") alleged to have committed a series of terrorist a ttacks in Israel in 2001-2004; 9 and (B) denying leave to amend the c omplaints t o allege aiding-and-abetting c l aims 10 u nder the Justice Aga inst Sponsors of T errorism Act ("JASTA"), see 18 U.S.C. 11 § 2333(d). The district court granted summary judgment dismissing the ATA c l aims 12 in light of this Court's decision in Linde v . A rab Bank, P LC , 882 F.3d 314 (2d Cir. 2018), 13 o n the ground that plaintiffs failed to a dduce sufficient evidence that the bank i tself 14 c ommitted an act of i ntern ational terrorism within the meaning of § § 2333(a) and 15 2331(1); it denied leave t o amend on the g round that amendment asserti n g J A STA 16 c laims would be futile because plaintiffs did not point to evidence sufficient t o 17 support an inference that the bank had the requisite awareness that it was aiding and 18 abetting the violent or life-endangering activities of th e F TO Hamas. See Weiss v.

-5-1 N

ational Westminster B a n k P LC , 381 F.Supp.3d 2 23 (2019). On appeal, plaintiffs 2 c ontend principally that the district court misap pl i ed L inde and imposed unduly 3 stringent standards (a) in requiring that the material support p ro v i d ed by the bank 4 b e traceable t o the a ttacks o n plaintiffs in order to hold the bank liable as a principal 5 for the attacks, and (b) in concluding that plaintiffs' e v i dence of the bank's violation 6 o f § 2339B w as insufficient to permit an inference that the bank was generally aware 7 that it w as playing a role in terrorism by Hamas, as r equired to make the bank liable 8 a s an aider and abetter. 9 C r o ss- a p pe a l b y d e fend ant r e qu e stin g, in the e v e nt the j u d gm ent s a r eno t 10 t o be affirmed, that w e reverse the district court' s d en ial of defendant's motion t o 11 d ismiss the actions for lack of personal jurisdiction. 12 Concludi n g th a t the district c ourt properly assessed the record and 13 a pplied the principles articulated in Linde, we affirm the judgments. Defendant's 14 c onditional cross-appeal is dismissed as moot. 15 Judgment affirmed; cross-appeal dismissed. 16 PETER RAVEN-HANSEN, Hackensack, New Jersey (Gary M. 17 Osen, Ari Ungar, Michael R adine, Aaron Schlanger, Osen, 18 Hackensack, New Jersey; S teven M. Steingard, Stephen H. 19 Schwartz, Kohn, Swift & Graf, Philadelphia, Pennsylvania; 20 Shawn P. Naunton, Zuckerman Spaeder, New York, New 21 York; C. Tab Turner, Turner & Associates, North Little

-6-1 Rock, Arkansas, on the brief),for Plaintiffs-Appellants-Cross2 Appellees in Weiss v. National Westminster Bank, PLC

. 3 FLEISCHMAN BONNER & ROCCO, New Y ork, New York 4 (James P. Bonner, P atrick L. Rocco, Susan M. Davies, New 5 York, New York, of counsel; Richard D. Heideman, Noel J. 6 Nudelman, Tracy R. Kalik, Heideman Nudelman & Kalik, 7 W a shingt o n, D . C . , o f c o u nse l ) , f o r P l a i n t i f f s -App e l l a n ts - Cro s s 8 Appellees in Applebaum v. National Westminster Bank, PLC

. 9 JONATHAN I. BLACKMAN, New York, New York (Mark E. 10 McDonald, Katherine R. Lynch, Rathna R amamurthi, New 11 York, New York, Cleary Gottlieb S teen & Hamilton, on the 12 brief), for Defendant-Appellee-Cross-Appellant

. 13 MAYER BROWN, Washington D.C. (Andrew J. Pincus, A lex C. 14 Lakatos, Marc R. C ohen, of counsel ) , f iled a brieffor Amici 15 Curiae Institute of International B ankers and European Banking 16 Federation, in support of Defendant-Appellee-Cross-Appellant

.

-7-1 KEARSE, Circuit Judg e. 2 Plaintiffs Tzvi Weiss, et al. , United States c itizens who were, or represent, 3 v ictims of more than a dozen alleged Hamas terrorist a ttacks in Israel in 2001-2004, 4 a ppeal from judgments entered on March 31, 2019, in the United States District Court 5 for the Eastern District of New York, Dora L. Irizarry, Chief Judge, (A) dismissing their 6 a mended complaints in these two actions seeking to rec ov er damages under the 7 Antiterrorism Act of 1990 ("ATA") , s e e 1 8 U .S.C. §§ 2333(a), 2331(1), and 2339B, 8 a gainst defendant National Westminster Bank PLC ("NatWest" or the " B a n k " ) for 9 providing banking services to a charitable organization that a l l eg edly had ties t o 10 Hamas; and ( B) denying leave to amend the complaints to allege aiding-and-abetting 11 c laims against the Bank un der the Justice Against Sponsors of T errorism Act 12 ( "JASTA"), s ee id

. § 2 333(d). The district court, in light of this Court's decision in Linde 13 v . Arab Bank, PLC , 882 F.3d 314 (2d Cir. 2018) (" Linde " ), granted summary judgment 14 d ismissing plaintiffs' claims under §§ 2 333(a), 2331(1), and 2 339B on the ground that 15 plaintiffs failed to adduce sufficient evidence to hold the Bank liable as a principal for 16 a cts of international terrorism; the court denied plaintiffs' motion for leave to amend 17 the complaints, c oncluding that amendment asserting JA STA a iding-and-abetting 18 c laims would be futile because plaintiffs did not point to evidence sufficient t o

-8-1 support an inference that NatWest had the requisite knowledge-- i.e. , a t least a general 2 a wareness--that i t played a role in Hamas's alleg ed vi o l ent or life-endangering 3 a ctivities. On appeal, plaintiffs contend principally that the district court misapplied 4 L indeand (a) unduly credited evidence proffered by NatWest and imposed unduly 5 stringent sta n d ards in requiring that the Bank's provision of banking services be 6 traceable to specific terrorist attacks in order to make the Bank liable for the attacks 7 a s a principal, and (b) erred in concluding that p l a i n ti ffs' evidence o f NatWest's 8 v iolation of § 2 3 39B w as insufficient to permit an inferen c e th a t the Bank was 9 g enerally aware that it was playing a role in terrorism. 10 NatWest, while urging affirmance of the d ismissals, cross-appeals t o 11 c ontend that if we do not affirm, we should reverse the district court's denial o f 12 NatWest's motion to d ismiss these actions for lack of personal jurisdiction. 13 For the r easons that follow, we conclude that summary judgment was 14 properly granted and that leave to amend the complaints w as properly denied. W e 15 thus affirm the judgments, and we dismiss the cross-appeal as moot.

-9-1 I. BACKGROUND

2 The first of these two actions was commenced in 2005 under the ATA by 3 the W e i ss pl a intiffs against NatWest (the " Weiss action") following numerous terr o r i s t 4 a ttacks in Israel between M arch 27, 2002, and September 24, 2004. The A p p l ebaum 5 plaintiffs commenced their ATA action a gainst NatWest in 2 007 (the " Applebaum 6 a ction"), and the two cases were soon consolidated for pretrial proceedings. 7 NatWest i s a financial institution incorporated and headquartered in the 8 United Kingdom. From at least 1994 to 2 007, NatWest provided banking services t o 9 the Palestine Relief & Development Fund, c ommonly known as "Interpal." Interpal 10 i s a Londo n -based nonprofit entity founded in 1994 and registered with the United 11 King d o m' s Charity Commission for E ngland & Wales ("UK Regulatory Authorities"). 12 Hamas has b een officially designated a Foreign Terrorist Organization 13 ( "FTO") b y the United States since 1997. In August 2 003, the United States officially 14 d e si gna te d Inte r pa l a S pe c i a l ly D e si gna te d Gl ob a l T e r r o r i s t ( " SD G T " ) b a se d o n r e po r t s 15 that it was o perated as a major fundraiser for Hamas. Plaintiffs contend that NatWest 16 provided material support to Interpal between 1 996 and 2003 by processing a t least 17 4 57 w ire transfers of f unds from Interpal to 13 charities that NatWest allegedly knew,

-10-1 o r willfully ignored, were controlled by, or were a lter egos o f, Hamas (the "13 2 Charities"). " It i s undisputed that e a ch of the attacks by which Plaintiffs w ere injured 3 w as 'an act of international terrorism'" within the meaning of 18 U.S.C. §§ 2333(a) and 4 2 331(1). (NatWest brief on appeal at 4.)

5 A . The Course of This Litigation 6 The procedural history of the present actions has been tracked through 7 several opinions of the district court and this Court, i n cluding the following, 8 f amiliarity w ith which is assumed. See Weiss v. Nationa l W e stminster Bank PLC

, 453 9 F .Supp.2d 609 (E.D.N.Y. 2 006) (" Weiss I "); W eiss v. National W

estminster Bank PLC

, 936 10 F .Supp.2d 100 (E.D.N.Y. 2013) ( " Weiss II "), vacated a n d remanded by Weiss v. National 11 We s tm i n s t e r Bank PLC , 768 F.3d 2 02 (2d Cir. 2014) (" Weiss I II "); Weiss v. National 12 W

es tminster Bank PLC

, 278 F.Supp.3d 636 (E.D.N.Y. 2017) (" Weiss IV "); and Weiss v. 13 N

ational Westminster Bank PLC , 381 F.Supp.3d 223 (E.D.N.Y. 2019) (" Weiss V "). 14 The o riginal complaint in the Weiss action alleged that NatWest a ided 15 and abetted the murder o r a ttempted murder of, or physical violence to, United States 16 c itizens in violation of 18 U.S.C. §§ 2332(a), 2332(b), 2332(c), and 2333(a), and that as 17 a principal it committed acts of internation a l terrorism in violation of 18 U.S.C.

-11-1 § § 2 339B(a)(1) and 2333(a). In 2006, the aiding-and-abetting c a uses of action were 2 d ismissed, without prejudice, for failure to state a claim. See W eiss I , 4 53 F.Supp.2d 3 a t 622. The plaintiffs in the A pplebaum action, whose original complaint also included 4 a iding-and-abetting claims, thereafter agreed to the dismissal of those claims without 5 prejudice. 6 In 2013, the di s tri c t court granted a motion by NatWest for summary 7 judgment ( "First Summary Judgment Motion") d ismissing the actions. The court 8 found that plaintiffs could not show that NatWest acted w ith the requisite scienter t o 9 support their claims. See Weiss II , 936 F.Supp.2d at 114. In 2014, this Court vacated 10 the judgments, concluding that plaintiffs had proffered evidence "sufficient to c r eate 11 a triable issue o f fact as t o whether NatWest's knowledge and behavior in response 12 satisfied the statutory scienter requirements." Weiss I I I , 768 F .3d a t 212. W e 13 r emanded for further proceedings, including consideration o f o the r g r o u nd s asserted 14 b yNatWest in its motion for summary judgment. 15 In June 20 1 6, plaintiffs filed their present complaints--an amended 16 A pplebaum a ction complaint and the sixth amended Weiss action complaint--adding 17 c laims arising fr om three additional attacks. NatWest promptly moved for summary 18 judgment dismissing the new claims and renewed i ts motion for summary judgment

-12-1 o n grounds the district court had not rea c h ed in Weiss II . In S eptember 2017, in 2 Weiss IV

, the district court granted the motion in part, but found there were tri abl e 3 i ssues of fact with respect to 16 of the 18 a lleged attacks. See Weiss IV , 278 F.Supp.3d 4 a t 650. 5 In September 2016, in the interim between plaintiffs' filing of the current 6 c omplaints and the district court's decision in Weiss IV , the ATA was amended by the 7 e nactment o f JASTA t o provid e th a t a civil ATA action under § 2333(a) may be 8 maintained on theories of aiding and abetting or conspiracy. S ee 18 U.S.C. § 2333(d). 9 C ongress made JASTA retroactively a pplicable t o actions such as these ( see Part II.B. 10 b e low). 11 A few months after the decision in Weiss IV , this Court decided Linde, an 12 a ppeal from an ATA judg m en t in favor of the Linde plaintiffs after a jury trial. The 13 jury had been in s tructed that if it found that the defendant, Arab Bank PLC ("Arab 14 B ank"), provided material support to Hamas in v i olation of § 2339B--which makes it 15 a crime t o knowingly provide, or attempt or conspire to provide, material support or 16 r esources to an FTO --that finding was sufficient to establish Arab Bank's own 17 c ommission of an act of international terrorism under § 2333(a). As discussed further 18 in Part II.A. b elow, w e vacated the judgment, concluding that that instruction was

-13-1 e rro neous because a bank's provision of material support to a known terrorist 2 o rganization is not, by itself, sufficient to establish the bank's liability under the ATA. 3 S ee Linde, 882 F.3d at 326. Rather, in order to satisfy the ATA's requirements for civil 4 l i ability as a principal, the "defendant's act must," inter a l ia, " a lso involve violence or 5 e ndanger human life. See [ 18 U.S.C.] § 2331(1)(A). Further, the a ct must appear to be 6 intended to intimidate or coerce a civilian po p ul ation or to influence or affect a 7 g overnment. See id . § 2331(1)(B)." Linde, 882 F.3d at 326 (emphasis in original). 8 In addition, L inde noted that in order to hold a defendant liable for an 9 A TA violation on a JASTA theory of aiding and abetting, a plaintiff must show that 10 the entity the defendant aided-- i.e. , the principal--performed a wrongful a c t that 11 c aused an injury, that the defendant must have been "generally aware of his role as 12 part of an o verall illegal o r tortious activity at the time that he provide[d] the 13 a ssistance," and th a t "the defendant must [have] knowingly and substantially 14 a ssist[ed] the principal violation." Id

. at 329 (internal quotation marks omitted).

15 B . NatWest's Renewed Summary Judgment Motion Based on Linde 16 I n th e wake of Linde, NatWest sought and received permission to file 17 ano the r r e ne w e d mo ti o n fo r s u m m a ry j u d gm ent ( " 2 0 1 8 Su m m a ry Ju d gm ent M o ti o n" ) .

-14-1 NatWest contended that plaintiffs could not adduce evidence sufficient to permit an 2 inference that its financial services of transmitting Interpal moneys to the 13 Charities 3 inv o l ved violence, or endangered human life, or appeared to be intended t o 4 intimidate or coerce a civilian population or to influence or affect a government. 5 In support of its 2018 Summary Judgment M o tion, NatWest cited, inter 6 a lia, facts that w ere undisputed as revealed in statements that had been submitted by 7 the parties pursuant to Local Rule 5 6 . 1 ( "Rule 56.1 Statement" or "Rule 56.1 Response") 8 in connection with the Bank's First Summary Judgment Mo tion; and i t submitted a 9 Rule 56.1 Supplemental S t atement as to additional facts it asserted were undisputed. 10 NatWest's Rule 56.1 Supplemental Statement principally quoted Interpal documents 11 and quoted declarations or d eposition testimony of the Bank's managerial employees 12 a s to the policies and practices o f N atW est and their institutional knowledge of the 13 o perations and affairs of Interpal. It included the following assertions. 14 In 1998, NatWest' s Relationship Manager for the accounts of Interpal 15 " completed a c us to mer appraisal form for Interpal describing it as an organization 16 that ' [p]rovides charitable relief' in Palestine and Lebanon, usually involving 'food or 17 a llowances for children's education.' The form further noted [ Interpal's sta tement] 18 that the '[t]wo major times of the year for receipts are Ramadan

. . . a nd a t E a s ter

-15-1 time.'" (NatWest Rule 56.1 Supplemental Statement ¶ 1.) Plaintiffs' response to this 2 w as as follows: 3 RESPONSE: Admit the qu o ted statements were made, but 4 note that the Second Circuit has expressly held that: 5 The requirement t o "appear to be intended

. . . " does 6 not d e pend on the actor's beliefs, but imposes on the actor 7 an objective standard t o recognize the apparent intentions 8 of a ctions. Cf

. Boim v. Holy Land Foun d. for Relief and Dev. , 9 549 F .3d 685, 693-94 (7th C i r. 2 008) ( en banc) (Posner, J .) 10 (describing the appearance-of-intention requirement "not 11 [as] a state-of- m i n d requirement" and stating that "it is a 12 matter of external appearance r ather than subjective intent 13 . . . ."). 14 Weiss v. Nat'l Westminster Ban k P L C, 7 6 8 F.3d 202, 207 (2d Cir. 15 2014). Therefore, the customer appraisal form for Interpal is 16 irrelevant to the subject o f the pending motio n . The "external 17 appearance" relev a n t t o 18 U.S.C. § 2 331 is not the "external 18 appearance" presented by a terrorist group or its funders. If that 19 were the case, Hamas's description o f its terror campaign as 20 "legitimate resistance to occupation" would i tself nullify the ATA. 21 Instead, the ques ti o n f or the jury is whether the Defendant's 22 conduct presents the "external appearance." That i s to be 23 determined by assessing the Bank's culpability in contributing t o 24 the acts of terrorism at issue. 25 (Pl a i n tiffs' Response to Rule 56.1 Supplemental Statement ¶ 1 ) (Plaintiffs' "External 26 A ppearance Caveat"). 27 Na tW e st ' s p r o ffe r of supplemental facts it b elieved to be undisputed a l so 28 included the following: NatWest's internal inquiries in 2002 with regard to "'details

-16-1 o f the most recent d ue d iligence underta k en i n respect of the B ank's knowledge o f 2 d ealings in [Interpal's] US$ account,'" and Interpal's characterizations of its charitable 3 o perations (NatWest Rule 5 6.1 Supplemental Statement ¶¶ 2 -3); a 2 003 record from 4 U K Regulatory Authori ti e s--which NatWest maintained in its files--listing among 5 Interpal's objectives "the provision of aid and assistance, support[,] guidance[,] and 6 co m f ort to poor[,] needy[,] sick children and widows" ( id

. ¶ 4); and Interpal a nnua l 7 r eports for 1999-2003 (al s o maintained in NatWest's files) detailing Interpal's 8 spending allocations--a planned 5% for fundraising, 5% for administration, and 10% 9 for future distribution, and actual yearly e xpenditures of 87.3% t o 94.7% directly o n 10 charitable projects ( id

. ¶ 5). NatWest also asserted that "[b]etween November 8, 1996 11 and S eptember 25, 2003, at the request of its customer Interpal, NatWest processed 12 4 57 wire transfers ( the 'Relevant Transfers') to the 13 charities that plaintiffs contend 13 a re a l ter egos of or controlled by Hamas," and that the "stated purposes for these 14 transfers included" programs for orphans, a maternity clinic, student aid, emergency 15 medical aid, food parcels, w inter clothes, and other community projects ( id

. ¶ 7); that 16 In terp al on its website stated that it felt an obligation "'to ensure that the funds' i t 17 r eceived were 'used for charitable purposes as spec i fied,'" "stated that it allowed 18 transfers only to 'bona fide organis ati o ns,'" and stated that it insisted on--and sent

-17-1 d elegations to verify--the charities' adherence to "'the proper charitable use o f funds 2 a s specified'" ( id

. ¶¶ 9-12); and that "[n]one of the Re l evant Transfers was identified 3 a s being for any violent or terroristic purpose" ( id . ¶ 8). 4 As to each of these NatWest Rule 56.1 Supplemental Statements other 5 than ¶ ¶ 7 a n d 8 , plaintiffs' response was to state that they "[a]dmit[ted]" that the 6 statement d e scribed was made by the speaker cited or was contained in the document 7 c ited, but t o incorporate by ref erence their (above quoted) External Appearance 8 Ca veat. Plaintiffs g ave a qualified r esponse to ¶ 7 by admitting that th ere w ere " at 9 l east " 457 wire transfers, and by asserting that the transfers w ere " for Hamas" and 10 t otaled approximately $12,000,000; and as to ¶ 8, plaintiffs " [a]dmit[ted] that Interpal 11 d id not identify any o f th e Relevant Transfers as being for any violent or terroristic 12 purpose." (Plaintiffs' Rule 56.1 Respon s e to Supplemental Statement ¶¶ 7 , 8 13 ( emphasis in Response).) 14 NatWest also quoted testimony and d eclarations from the managers o f 15 i t s customer-relations, fraud-prevention, and anti-money-laundering groups stating 16 th a t th e Bank was aware of Interpal's " alleged " links to Hamas (NatWest Rule 56. 1 17 Supplemental Statement ¶ 1 6 (emphasis in Statement)), but that the Bank had no 18 t olerance for the funding of terrorism, did not want t o be related in any way to such

-18-1 a ctivities, and would have taken quick action to terminate its r elationship with 2 Interpal "if the bank believed that Interpal was funding terrorism" ( i d

. ¶ 15; see, e.g. , 3 i d

. ¶¶ 14-19). Plaintiffs' response to each of these NatWest assertions was to "[a]dmit" 4 th a t each cited speaker had so testified, but to add, by incorporation, their Extern a l 5 A ppearance Caveat. 6 I n addition, NatWest cited facts that plaintiffs had conceded in 7 r esponding to the Bank's Fi rs t Sum mary Judgment Motion (made when the then8 o perative Weiss actio n c o mpl a int a l l e g e d 1 5 te r r o r i s t attacks), including the following. 9 • Plaintiffs "admit[ted] they ' do not contend that any of the funds 10 Interpal transferred from the accounts it mainta i ned w i th NatWest t o 11 HAMAS w as used specifically to finance any of the terrorist a ttacks that 12 injured Plaintiffs and/or killed their loved o nes.'" (First Summary 13 Judgment Rule 56.1 Statement and Res p o n se ¶ 248 (quoting Plaintiffs' 14 r esponse to an interrogatory)); 15 • Plaintiffs' expert Dr. Levitt " offers no evidence that any funds 16 transferred by Interpal through its NatWest accoun ts w a s u sed t o 17 perpetrate the 15 attacks" ( id . ¶ 253); 18 • Nor did Dr. L ev i tt "opine that any of the 12 Charities [that he 19 a ddressed] participated in" or "recruited" "any o f the perpetrators of the 20 1 5 attacks"; he did not offer any opinion as to what individuals or 21 e ntities planned and executed the attacks at issue ( i d . ¶¶ 254, 261); 22 • Plaintiffs' expert "Spitzen does not opine th a t a ny of the 23 1 3 Charities r equested that someone carry o ut any of the 1 5 attacks" ( id

. 24 ¶ 272).

-19-1 C . The District Court's Decision in Weiss V 2 Th e district court concluded, in light of the decision in Linde and th e 3 u ndisputed facts in the present actions, that the evidence adduced by plaintiffs was 4 insufficient to establish all of the elements necessary to hold NatWest liable under the 5 A TA either as a principal or as an aider and abetter.

6 1 . Liability as a Principal 7 First, the district court a d d ressed plaintiffs' claims seeking to hold 8 NatWest liable as a principal: 9 Plaintiffs bring their claims under 18 U .S.C. § 2339B as the 10 predicate c riminal violation to satisfy the

. . . require[ment] that 11 the [defendant's] act violate federa l c ri minal law. Section 2339B 12 makes it a felony to "knowingly provide[] material support or 13 resources to a [F]oreign [T]errorist [O]rganization," or a ttempting 14 or conspiring to do so. 18 U.S.C. § 2339B; See also , Weiss [III], 768 15 F.3d at 207. Under § 2339B, " a defendan t may be l iable for civil 16 remedi es under § 2333(a) for providing material support to an 17 organization that solicits funds for an FTO," even if that support 18 is not provided directl y to the F TO itself. Weiss [III], 768 F.3d 19 at 209. 20 W

e iss V , 381 F.Supp.3d at 229. The court noted, however, that 21 [i]n L inde, the Sec o n d C ircuit rejected the argument that 22 providing material support to a known FTO in violation o f 23 § 2 339B invariably constitutes a violent act or act dangerous t o 24 human life. Linde, 882 F.3d a t 3 2 6 . (" [T]he provision of material

-20-1 s u p port to a terrorist organization does n ot invariably equate to an a ct 2 of international terrorism . Specifically,

. . . providing financial 3 services to a known terrorist orga nization may afford material 4 suppo rt to the organization even if the services do not involve 5 violence or endanger l i fe a nd do not manifest the apparent intent 6 req uired b y § 2331(1)(B) ."). The Second Circuit e x plained that, 7 " c onduct that violates a material support statute can also satisfy 8 the § 2331(1) d efinition r equirements of international terrorism in 9 some circumstances ." Id

. (emphasis added). However, the Second 10 Circuit found that it w as "incorrect [for the trial court in Linde ] t o 11 instruct the jury that a finding that Arab Bank provided material 12 sup p o rt to Hamas in violation of § 2339(B) was alone sufficient t o 13 prove the bank's own co m m is si o n of an act of international 14 terrorism under § 2333(a)." Id

. Instea d , the jury "needed to be 15 i n s tructed on and to find proved a l l of § 2331(1)'s definit i o n a l 16 requirements for an act of international terrorism, inclu d ing those 17 pertaining to violence or danger and the apparent intent to intimidate or 18 influence ." Id

. 19 W

e iss V , 381 F.Supp.3d at 229 (emphases ours, e x cept as indicated); see id

. at 230 20 ( "Thus, the Second Circuit determined that the provision of material s up p o rt t o a 21 terrorist organization alone is not enough to constitute international terrorism."). 22 The district court noted that in Weiss II , i t had ruled on only one of the 23 several grounds argued by NatWest for summary judgment. However, it then 24 e xplained that: 25 the ATA sets forth four separate requi rements for an act t o 26 constitute international terrorism. The act at issue must: ( 1) involve 27 violence or endanger human life; (2) v i olate federal or state criminal 28 law if c o m m i tted in the United States; (3) appear i ntended to 29 intimidate or coerce civilian p opulation, influence government policy, or -21-1 affect government conduct by specified means ; and (4) occur primarily 2 outside the United States o r transcend national boundaries. S e e, 3 Licci [ex rel. Licci v. Lebanese Canadian Bank, SAL], 673 F.3d [50,] 68 4 [(2d Cir. 2012)]. 5 W

e iss V , 381 F.Supp.3d at 2 31 ( emphases added). Taking into a ccount that in order 6 t o prevail, plaintiffs were required to e stablish all four of thos e el em ents, the court 7 found merit in NatWest's contention that sum m a ry judgment dismissing the 8 c omplaints was required because plaintiffs had not adduced sufficient evid en c e t o 9 prove the first and third elements, i.e. , t o permit an inference that NatWest's conduct 10 involved violence or danger to human life or to permit an inference that its conduct 11 a ppeared to be intended to intimidate o r coerc e a civilian population, influence 12 g overnment policy, or affect government conduct by statutorily prohibited means. 13 The court noted that "[i]n Linde, the e v i dence demonstrated that 14 d efendant Arab Bank p rocessed b ank transfers that 'were explicitly identified as payments 15 f or suicide bombings ,'" id

. at 235-36 (quoting Linde, 882 F.3d at 321 (em p h a s i s o urs)). 16 " Here," however, the court found that "Plaintiffs provide no such e v i dence," Weiss V , 17 3 81 F.Supp.3d at 236-- i.e. , "[t]here is no evidence that the transfers Defendant 18 processed on behalf of the 13 charities were used exp l i c i tl y f or purposes similar t o 19 those describe[d] in Linde, " id

. at 234. Rather, the court noted that " Plaintiffs' e xperts

-22-1 . . . admitted that the 1 3 Charities performed charitable work," id

. a t 232 (citing First 2 Summary Judgment Rule 56.1 Statement and Response), and that 3 Plaintiffs c oncede that there is n o evidence that any of Interpal's 4 transfers t o t h e 13 Charities processed b y D efendant were i dentified as 5 being for a n y s p ecific v iolent or terroristic purpose . . . . "Plaintiffs 6 admit they do not contend that any of the funds I n terpal 7 transferred from the accounts it m a intained with NatWest t o 8 Hamas was used specifically to finance any of the terrorist attacks 9 th at injured P laintiffs and/or killed their loved ones."

. . . 10 " [Pl a i n ti ffs a ]dmit th at Interpal did not identify any of the Relevant 11 Transfers as being for any violent or terroristic purpose ." 12 W

e iss V , 381 F.Supp.3d at 2 3 2 (quoting First Summary Judgment Rule 5 6.1 Response 13 ¶¶ 248 and 8 (emphas es ours)). 14 The c o u r t thu s c o n c lu d e d th a t N a tW e st ' s " mo ti o n fo r su mma ry ju d gme nt 15 a s to the violent acts and acts dangerous to human life prong of § 2331(1) is granted 16 bec ause Plaintiffs f ail to present evidence sufficient t o create a jury question as to 17 whether Defendant's activities involved violent acts or acts dangerous to human life." 18 W

e iss V , 381 F.Supp.3d at 235; see id

. at 233 ("a reasonable juror cannot conclude that 19 D efendant's alleged conduct involves violence or endangers human life"). 20 In a d dition, given that plaintiffs "adduce[d] no e vidence" from which t o 21 infer that NatWest "had the apparent intent to intimidate or c o erce a civilian 22 p o pu l a ti o n, influence the policy o f a government by intimidation or coerc i o n, o r a ffe c t

-23-1 the conduct of a government by mass d estruction, assassination, o r kidnapping," id

. 2 a t 236, the court concluded that NatWest's motion for summary judgment should be 3 g ranted for lack o f a triable issue o n the appearance-of-intent-to-intimidate-or-coerce 4 e lement of plaintiffs' ATA claim against the Bank as a principal.

5 2 . Plaintiffs' Attempt To Raise Claims of Aiding and Abetting 6 With respect to the matter of second ary l iability under the ATA, the 7 d istrict court faced the preliminary ques ti on of whether such claims were 8 procedurally f o rec lo s ed

. The original c l aims o f aiding and abetting, based o n 9 c ommon-law principles, had been dismissed in Weiss I in 2 0 0 6 f or f a i l ure to state a 10 c laim. See 453 F.Supp.2d at 622. In opposition to NatWest's 2018 Summary Judgment 11 M o tion, plaintiffs argued that there w as sufficient evidence t o warrant a trial as t o 12 whether NatWest aided and abetted the terro ri st attacks, and they urged the court 13 e ither to allow them to further amend their complaints t o state such c laims under 14 J ASTA or to construe the action as it stood to include such claims because they were 15 a dvocated by plaintiffs in the parties' July 2016 joint pretrial order ("Pretrial Order"). 16 The court rejected plaintiffs' contention that they could pursue aiding-and-abetting

-24-1 c laims merely on the basis of thei r mention in the P retrial Order. See Weiss V , 381 2 F .Supp.3d at 237. 3 However, the court also rejected NatWest's c ontention that Weiss I had 4 precluded any f u tu r e a i d ing- and

- ab e ttin g c l a i ms. The c o u r t determined that the mere 5 passage of time should not preclud e p l ai n tiffs' proposed amendment (a) because 6 p l a inti ffs c o u l d no t h a v e a me nd e d the i r p l e a d in g t o a ssert JASTA aiding-and-abetting 7 c laims prior to the filing of the Pretrial Order as that order was entered months before 8 J ASTA was enacted, and (b) because Congress made JASTA retroactively applicable 9 in pending actions such a s those here, with respect t o an organization that had been 10 d esignated an FTO at the time it committed, planned, or authorized a terrorist attack. 11 I

d . at 238. 12 Ultimately, however, the d istrict c ourt decided to deny leave to amend 13 the complaints to assert aiding-and-abetting claims under JASTA, holding that such 14 an amendment would be futile. The court noted that while the mens rea element o f 15 a § 2339B claim of providing material support can b e satisfied by p ro o f o f the 16 d e fe nd ant ' s " kno w l e d g e o f the o r g ani zation's connection to terrorism," a JASTA claim 17 o f aiding a nd abetti ng has a different mens r ea element, requiring proof that the 18 d efendant be "'aware' that, b y assisting the princip a l, i t is itself assuming a 'role' in

-25-1 terrorist activities.'" Id

. at 238-39 ( quoting Linde, 882 F. 3 d at 329 (other internal 2 quotation marks omitted)). Thus, while Weiss III established that there was sufficient 3 e vidence in the present case to create a triable issue as to NatWest's mens rea on the 4 " ma te r i a l su ppo rt" claim, the addition of an aiding-and-abetting claim would be futi l e 5 b e cause plaintiffs had adduced 6 no evidence that creates a jury question as to whether Defendant 7 generally was a ware that it played a role i n a ny o f Hamas's or 8 even Interpal's

. . . v i olent or life-endangering a ctivities. Evidence 9 tha t D e fend ant knowingly provide d b ankin g se rv i c e s t o a te r r o r i s t 10 organization, without more, is insufficient to s atisfy JASTA's 11 scienter requirement. 12 I

d . at 239. 13 Accordingly, final judgments were e ntered in the W e i s s a ction and the 14 A pplebaum action, dismissing the complaints in their entirety. A joint notice of appeal 15 w as filed in the two actions, challenging Weiss V 's grant of summary judgment and 16 d enial of leave to amend the complaints.

17 II. DISCUSSION

18 On appeal, plaintiffs conten d p rincipally that the district court ( 1) in 19 d ismissing their claims to hold NatWest liable a s a principal, e rred by cred i ting

-26-1 Interp a l's "ostensibly charitable purposes" (Plaintiffs' brief on appeal at 43 (internal 2 quotation marks omitted)) and requiring evidence tracing the B ank's transactions for 3 Interpal to spec i fic terrorist attacks; and (2) in denying their motion to amend the 4 c omplaints to assert claims against NatWest as an a ider and abetter, erred by 5 a pplying an e rroneous standard in assessing the e v i dence proffered as to the Bank's 6 g eneral awareness that its services to Interpal were aiding and abetting terrorism by 7 Hamas. 8 NatWest has cross-appealed to request, in th e e vent the judgments are 9 not to be affirmed, that we reverse the district court's denial of NatWest's motion t o 10 d ismiss the actions for lack of pers o na l j urisdiction. But it urges that "[g]iven the 11 number of years during which these cases have already b een pending, this Court can 12 and should ' assume jurisdiction' and affirm on the

. . . meri ts . . . as a means o f 13 preventing waste of judicial resources." (NatWest brief on appeal at 62 ( other internal 14 quotation marks omitted).) 15 When a c ross-appeal is conditional, asking that it be "reached only if and 16 when the a ppellate court decides to reverse or modify the main judgment," and "the 17 d irect a ppeal fails and the judgment is affirmed, the usual procedure is to dismiss the 18 c ross-appeal as moot." Trust for Certificate H olders of Merrill Lynch Mo r tgage Investors,

-27-1 Inc. Mo rtgage Pass-Through Certificates, Series 1999-C1, ex rel. Orix Capital Markets, LLC 2 v . Love F unding Corp. , 496 F .3d 171, 174 (2d Cir. 2007 ) (internal quotation marks 3 o mitted). We follow that procedure here. 4 F o r th e rea so ns th a t f o l lo w, v i ew i ng th e rec o rd i n th e l i gh t m o st 5 f avorable to plaintiffs as the non-moving parties, see, e.g. , Longman v. Wachovia Bank, 6 N.A. , 702 F.3d 148, 150 (2d Cir. 2012), we conclude that the district court did not err 7 in granting summary judgment or in denying plaintiffs' motion for leave to amend. 8 A ccordingly, we affirm the judgments; and we dismiss the cross-appeal as moot.

9 A . Liability under the ATA as a Principal: 18 U.S.C. § 2333(a) 10 The ATA (or the "Act") authorizes a private right of action by providing, 11 i nter alia, that 12 [a]ny national o f th e U n i ted States injured in his or her person, 13 property, or b usiness by reason o f an act of international terrorism , or 14 his or her estate, survivors, o r heirs, may sue therefor in any 15 appropri a te d istrict court of the United S tates and shall recover 16 threefold the damages he or she sustains and the cost o f the suit, 17 including attorney's fees. 18 18 U . S.C. § 2333(a) (emphases added). The Act defines acts of "internationa l 19 terrorism" as follows: 20 As used in this chapter--

-28-1 (1) the term "international terrorism" means activities that-- 2 (A) involve violent acts or acts dangerous to human life 3 that are a violation of the criminal laws of the United States 4 or of any State, o r th at w ould be a c riminal violation if 5 committed within the jurisdiction of the United S tates or o f 6 any State; 7 (B) appear to be intended

-- 8 (i) to intimidate or coerce a civilian population ; 9 (ii) to i nfluence the policy of a g o v ernment by 10 intimidation or coercion ; or 11 (iii) to affect th e c on d uct of a government by 12 mass destruction , assassination , or kidnapping; a nd 13 (C) occur primarily outside the territorial jurisdiction of the 14 United States, or transcend national boundaries in terms of the 15 means by which they are accomplished, the persons they appear 16 intended to intimidate or coerce, or the locale in which their 17 perpetrators operate or seek asylum . . . . 18 1 8 U.S.C. § 2331(1) (emphases added). 19 The Act also defines as crimes the homicide of a United States national 20 who is outside the United States, an attempt or conspiracy from outside the United 21 S tates to kill a United Sta tes national, and other "physical violence" by a person 22 o utside the U n i ted States that either did o r was intended to c ause serious bodily 23 injury to a United States national. See 18 U .S.C. § § 2332(a), (b), and ( c). However, it

-29-1 provides that there is to be no prosecution under § 2 332 without a proper certification 2 that the "offense was intended to coerce, intimidate, or retaliate against a government 3 o r a civilian population." Id . § 2332(d) (emphasis added). 4 The A c t furth er m a k es i t a crime to provide, or attempt or conspire t o 5 provide, "material support or resources to a foreign terrorist organization ," punishable 6 b y a fine and/or up to 2 0 years' imprisonment, or up to life imprisonment if a death 7 has resulted. 18 U .S.C. § 2339B(a)(1) (emphasis added). The term "material support 8 o r resources" is defined t o include "financial services . " Id

. §§ 2 339B(g)(4) and 9 2 339A(b)(1). 10 Section 2339B (a ) ( 1 ) also provides, inter alia, that "to violate" its 11 prohibition against providing "material support or resources to" an FTO, " a pers on 12 m ust have knowledge that the organization is a designated terrorist organization (as defined 13 in subsection (g)(6)), [or] that the organization has engaged or engages i n terrorist activity 14 ( as defined in section 212(a)(3)(B) of the Immigration and Nationality Act[, 8 U.S.C. 15 § 1182(a)(3)(B)]). " 1 8 U.S.C. § 2339B(a)(1) (emphases added). The definitions 16 e xpressly referred to in § 2339B(a)(1) themselves import additional definitions from 17 o ther statutes. See id

. § 2339B(g)(6) ("the term 'terrorist o rg an i za ti o n' means an 18 o rganization designated as a terro ri s t o rg anization under section 219 o f the

-30-1 Immigration and Nationality Act[, 8 U.S.C. § 1189] " ) ; 8 U.S.C. § 1189(a) (such 2 d esignation is authorized with respect to "a foreign organiz a ti o n " that "engages in 3 terrorist activity (as defined in [8 U.S.C. §] 1182(a)(3)(B)[)] . . . or terrorism (as defined 4 in section 2 656f(d)(2) of T itle 22), or retains the capability and intent to eng a g e in 5 terrorist activity or terrorism)" and whose "terrorist activity or terrorism . . . threatens 6 the security of" the United S t ates or its nationals); see also 8 U.S.C. § 1182(a)(3)(B)(iii) 7 ( defining "terrorist activity" to include criminal activity that "involves" "threatening 8 t o kill" a person in order to coerce a government to do or refrain from doing an act); 9 2 2 U.S.C. § 2656f(d)(2) (defining "terrorism" to "mean[] p rem ed itated, politically 10 motivated v iolence perpetrated a gainst noncombatant targets by subnational groups 11 o r clandestine agents"). 12 Thus, a s we have noted, if a d efen d a nt "provid[es] material support t o 13 an organization that solicits funds for an FTO" in violation of § 2339B, the defendant, 14 " through this complex series of statutory incorporation-

- 18 U . S. C. § 2333(a) t o 15 18 U.S.C. § 2331(1) to 1 8 U.S.C. § 2339B(a)(1) to 8 U.S.C. § 1182(a)(3)(B)-- . . . may be 16 l iable for ci v i l r e medies under § 2333(a) ." W eiss III , 768 F.3d at 209. Section § 2339B, 17 while making the provision of material support or r esources t o an FTO a crime, does 18 not itself provide a private right of a ction; the civil action is authorized by § 2333(a).

-31-1 As L inde held, and as shown in the statutory language quo ted above, 2 § 2333 allows a civil action by a person in j ured " by r eason of an act o f international 3 terrorism," 28 U.S.C. § 2333(a); that section specifies what elements must be proven 4 in order f o r the private plaintiff to recover; and the definitions provided, whether 5 spelled out in A TA § 2331 or imported from other statutes, inform the nature of those 6 e lements. See Linde, 882 F .3d at 319-20. Thus, given that th e ATA allows a United 7 S tates national to recover for injury suffered "by r eason of an act of international 8 terrori sm," 18 U.S.C. § 2333(a), the definition of international terrorism in § 2331(1) 9 means that such a plaintiff must prove that the defendant's act n o t only violated 10 United States law or a State law (or would be a criminal violation if c o mmitted within 11 the United States or a State), but that the act " also involve[d] violence or endanger[ed] 12 human life," and " [f]urther

. . . appear[ed] to be intended to intimidate or coerce a civilian 13 populati o n o r to i nfluence or affect a government," Linde, 882 F.3d at 326 (citing 14 1 8 U.S.C. §§ 2331( 1 ) (A ) a n d (1)(B)) (first emphasis in original; second emphasis 15 a dded). 16 Whether a defendant "appear[ed]" to have intended its ac ti v i ties t o 17 intimidate or coerce is not a question of the defendant's subj ec ti ve i n tent but rather 18 a question of what its intent objectively appeared to be. S e e, e .g. , Weiss III , 768 F.3d

-32-1 a t 207 n.6. Assessment o f what an observer could reasonably fi nd " a p p e a r [ed] to be 2 i ntended " d ep en ds on whether the consequences o f the defendant's activities were 3 r easonably foreseeable, see, e.g. , Boim v. Holy L and Foundation for Relief & Development, 4 5 49 F.3d 685, 693-94 (7th C ir. 2008), and r easonable foreseeability d epends largely o n 5 what the defendant knew, see id . ("A knowingdonor" to an FTO--"that is a donor who 6 knew " the terroristic "aims and activities" d irected at a particular territory--"would 7 know . . . that donations to" the entity would e nable it t o "kill more people in" the 8 territory. "And given such foreseeable consequences , such donations would appear to be 9 i ntended

. . . to intimidate o r coerce a civilian population or to affect the conduct of a 10 g overnment by

. . . assassination, as required by section 2331(1) in order to distinguish 11 terrorist acts from other v iolent crimes." (i n tern a l quotation marks omitted) 12 ( emphases ours)). 13 We see no merit in plaintiffs' contention that the district court found the 14 e vidence a s t o whether NatWest a pp ea red to intend intimidation or coercion 15 insu ffi cient by "crediting Interpal's ostensibly cha r i t ab l e pu r po se s" ( P l a inti ffs' b r i e f o n 16 a ppeal at 3 8 (internal quotation marks omitted)). The court did not find that Interpal 17 in fact had only charitable purposes; rather, it observed that plain ti ff s ' o w n e xperts 18 said the 1 3 charities performed charitable work, and that plaintiffs a dmitted they had

-33-1 no evidence that those charities had funded terrorist attacks or recruited persons t o 2 c arry out such a ttacks. It also noted plaintiffs' admission that Interpal had not 3 i d entified any of the moneys it instructed NatWest to transfer to the charities as being 4 fo r any violent o r terroristic purpose. The absence of evidence to show that th e 5 charities themselves were engaged i n terrorism--or to show that the transfers were 6 d esignated f o r that purpose by Interpal--was material to an assessment of what a 7 r ational juror could find NatWest kn ew . Given that dearth of evidence, the court 8 c oncluded that a rational juror could not find that NatWest's processing of Interpal's 9 money transfers to the charities objectively exhibited th e a pp ea rance that NatWest 10 intended to intimidate or coerce a population or a government. 11 Plaintiffs also contend that the d istrict court misapplied the holdings o f 12 L inde, arguing that " Lindeheld that where evidence establishes a knowing violation 13 o f § 2339B that proximately causes injuries in terrorist a ttacks, § 2331(1)'s elements 14 m ust b e submitted to the jury ." (Plaintiffs' brief on appeal a t 39 (emphasis added).) W e 15 d isagree with pla i n ti ff s ' characterization of Linde, in part because it disregards the 16 procedural posture in which the c ase arrived in this Court and the substantive r ecord 17 that had been developed in the district court. The procedural issue before Linde was 18 not, a s in the present case, whether summary judgment had been properly granted

-34-1 a gainst the plaintiffs for lack of proof as to certain § 2331(1) elements (on which they 2 had the burden of proof), b ut rather whether an instruction that resulted in judgment 3 in f avor of the plaintiffs h ad improperly removed consideration of some of those 4 e lements from the jury. The jury had b een instructed that if i t found "that Arab Bank 5 provided material support to Hamas in violation of § 2339B," that finding "was alone 6 sufficient t o prove the bank's own com m i ssion of an act of international terrorism 7 u nder 2333(a)"; that instruction w as error, relieving the plaintiffs of their burden o f 8 proving one of the elements of their claim. Linde, 882 F.3d at 326. 9 And while Linde did indeed say that questions as t o the satisfaction of the 10 § 2333(a) e lements were to be resolved by the jury, we in no way intimated that the 11 e xis ten c e of a genuine issue as to o ne element--whether § 2339B was violated-- 12 r equires a trial in a case where there is not sufficient evidence a s to another element. 13 In stating that the § 2 333(a) elements of whether the d efendant Arab B ank's provision 14 o f materi a l s upport involved "violence or endanger[ed] life" and "manifest[ed] the 15 a pparent inten t required by § 2331(1)(B)" w ere issues to be submitted to the jury, 16 L inde, 882 F.3d at 326, we not only were dealing w i th th e p rocedural posture of the 17 c ase a s indicated above, but also were considering the record before us, in which there 18 w as "eviden c e" th a t transfers were made to "purported charities known to funnel

-35-1 money to Hamas," and that some of those transfers were "explicitly identified as 2 p ayments f

or suicide bombings ," id

. at 321 (emphases a dded). A suicide bombing is an 3 a ct that inherently involves violence and objectively would appear intended t o 4 in ti m id a te a population or government. The evidence in L inde thus sufficed t o 5 present a triable issue as to whether Arab Bank had committed an act of international 6 terrorism by processing transfers that "involve" violence and that " appear" to intend 7 intimidation or coercio n of a population or government. 8 The district court in the present c a se granted summary judgment to 9 NatWest because i t found that plaintiffs had not presented any such evidence as t o 10 the transfers made for Interpal by NatWest--or any other evidence that the transfers 11 b y NatWest involved violence, o r danger to human life, or h a d the appearance o f 12 intending to intimidate or coerce a population o r government. Plaintiffs have n o t 13 c alled to our attention anything in the record to contradict that finding. 14 Plainti ffs' reliance on this Court's decision in Weiss III , v acating the 15 d istrict court's prior grant of summary judgment, is misplaced. On that appeal, we 16 ruled o n l y o n th e issue of scienter, the sole element on which the district court in 17 We iss II had granted summary judgment. See, e.g. , Linde, 8 82 F.3d a t 328 ("[ I ] n 18 W

e iss [III] w e addressed the 'scienter r equirement' o f the predicate material support

-36-1 v iolation, not the definitional requi rements of the ATA."). The fact that Weiss III 2 c oncluded that there w as sufficient evidence to present a genuine dispute as to that 3 e lement is of no moment here. Where the undisputed facts reveal that there is an 4 absence of sufficient proof as to one essential element of a claim, any f actual disputes 5 w ith respec t to other elements of the claim become immaterial and cannot defeat a 6 motion for summary judgment. See, e .g. , Celotex Corp. v. Catrett, 4 77 U.S. 317, 322-23 7 ( 1986). 8 In sum, the § 2333(a) principles announced in Linde were properly 9 a pplied in the present case: In order for a plaintiff to prevail o n an ATA claim against 10 a d efendant as a principal, the elements listed in § 2333(a) must be proven; an element 11 i s not proven u nless the evidence comports w ith the ATA's definition of the element; 12 and proof o f the provision of banking services, in and of itself, is insufficient either 13 t o show that the services involved an act of violence or threat t o human life or to give 14 the a ppeara n ce that such services were intended to intimidate or coerce a civilian 15 population or governm ent. 16 In order to establish NatWes t' s liability under the ATA a s a principal, 17 plaintiffs were required to present evidence sufficient to support all of § 2331(1)'s 18 d efinitional requirements for an act of international terrorism. We see no error in the

-37-1 d is trict court's conclusion that plaintiffs failed to proffer such e vidence, and that 2 NatWest was entitledto summary judgment dismissing those claims.

3 B . The Denial of Leave To Amend To Allege Aiding and Abetting 4 "We review a district court's den i a l of l e a ve to a mend for abuse o f 5 d iscretion, unless the denial was based on an interpretation of l aw, such as futility, 6 in which case we review the legal conclusion de novo ." Panther Partners Inc. v. Ikanos 7 Communications, Inc. , 681 F.3d 114, 119 (2d Cir. 2012). Normally, a moti on for leave 8 t o amend is assessed on the basis of a plaintiff's proposed new pleading on its face; 9 however, where, a s here, the request is made in response t o a motion for summary 10 judgment, it is well within the court's discretion to consider the e v i denc e i n the 11 e x i s ting r e cord in assessing whether the plaintiff's ne w a l l e g a ti o ns w o u l d, " a s a ma tte r 12 o f law,

. . . withstand [a] motion for summary judgment," Milanese v. Rust- Oleum 13 Corp. , 244 F.3d 104, 110 ( 2 d Cir. 2001) (internal quotation marks omitted). For the 14 r easons that follow, we affirm the district court's denial of plaintiffs' request to assert 15 J ASTA claims of aiding and abetting. 16 JASTA was enacted in 2016, amending § 2333 by a dd ing a new 17 subsection (d) to allow a person injured by an act of international terrorism to recover

-38-1 from a person who aided and abetted or conspired in that act. It provides, in relevant 2 part as follows: 3 (2) Liability.-- In an action under s ubsection (a) f or an injury 4 arising from an act of international terrorism committed, planned, or 5 authorized by an organization that had been d esigna t e d a s a foreign 6 terrorist organization under sec tion 219 of the Immigration and 7 Nationality Act (8 U.S.C. 1189), as of the d ate on which such act o f 8 international terrori s m was committed, planned, or authorized, 9 liability may b e asserted as to any person who aids and a b ets, by 10 knowingly providing substantial assista n ce, or who conspires with 11 the person who committed such an act of international terrorism

. 12 1 8 U.S.C. § 2 333(d)(2) ( em p h a s es added). Congress gave JASTA a measure o f 13 r etroactivity by providing that such a secondary liability theory would be available 14 in any action pending o n or commenced after its enactment, arising out of an injury 15 o ccurring on or afte r S e pte mber 11, 2001, w ith r espect to any organization responsible 16 for a terrorist attack if the organization had b een designated an FTO at the time of its 17 c ommission, planning, or authorization of that attack. S e e id

. ; JASTA, Pub. L. No. 18 1 14-222, § 7, 130 Stat. at 855 (Sept. 28, 2016) ("Effective Date"). 19 Con g res s's stated purpose in enacting JASTA was "to provide civil 20 l i tigants with the b roadest possible b asis, consistent wi th th e Constitution of the 21 United States, to seek relief a gainst persons [and] entities . . . that have provided 22 material support . . . to foreign organizations o r pers o ns that engage in terrorist

-39-1 a ctivities against the United States," whether "directly or indirectly." JASTA, Pub. L. 2 No. 114-222, § 2(b), 13 0 Stat. at 853 ("Purpose"). Under JASTA, therefore, a plaintiff 3 w ill "not have to prove that the [ defendant's] o wn a cts con stitute[d] international 4 terrorism satisfying all the definitional r equi rem en ts of § 2331(1)." L inde, 882 F.3d 5 a t 328. 6 As to what a plaintiff w ill be required t o prove, Congress, in its JASTA 7 " Findings," stated that the decision in H alberstam v. Welch, 705 F.2d 472 ( D. C . Cir. 8 1 9 8 3 ) ( " H

a l b e rstam "), "which has been widely recognized as the l eading ca se r e g a r d ing 9 F ederal civil aiding and abetting and c onspiracy liability, including by the Supreme 10 C ourt o f the United States, provides the proper l egal framework for how such liability 11 should f

unction in the context of c h a p ter 1 1 3 B of title 18 United States Code [, 12 1 8 U.S.C. § 2331 et seq . ]." Pub. L. No. 114-222, § 2(a)(5), 130 Stat. at 852 ( "Findings"). 13 A s set out in H a lberstam , 14 [a]iding-abetting includes the following elemen ts : (1) the 15 party whom the defendant aids must perform a w rongful act that 16 causes an injury; (2) the d efendant m ust be generally aware of his role 17 as part of an overall illegal or tortious activity at t he t i me that he 18 provides the assistance ; [and] (3) the d efendant must knowingly and 19 substantially assist the principal violation

. 20 7 05 F.2d at 477 (" H alberstam elements") ( emphases added). And as to "how much aid 21 i s 'substantial a i d,'" which may d ep en d o n "many variables," id

. at 483, Halberstam , -40-1 a fter e xploring caselaw, concluded that that element is appropriately evaluated in 2 terms o f the following five factors suggested by the Restatement (Second) of Torts (1979) 3 ( " Restatement "), to wit, 4 [1] the nature of the act encouraged; [ 2] the a mount [and kind] o f 5 assistance g iven; [3] the defendant's absence or presence at the 6 time of the t ort; [4] his relation to the tortious actor; [ 5] a n d th e 7 defendant's state of mind, 8 H

alberstam , 705 F.2d at 483-84 (citing Restatement § 876(b), comment d ), along with 9 asixth factor, the "duration of the assistance provided," Halberstam , 705 F.2d at 484. 10 The first Ha l berstam element itself has multiple parts. The person the 11 d efendant is alleged to have aided is the principal; the principal itself must have 12 performed a wrongful a c t; a n d the principal's act must have caused an injury. See, 13 e .g. , id

. at 478 ( "[a]n aider-abettor is liable for d amages c aused by the main 14 perpetrator"); id

. a t 481 ("an a ider-abettor is liable for injuries caused by the principal 15 t ortfeasor"). For an A TA a i d i n g-and-abetting claim, JASTA identifies the principal 16 a s "an organization that had been designated as a foreign terrori s t organization," 17 1 8 U.S.C. § 2333(d)(2). The aid the defendant provided need not be have been given 18 t o the principal directly; as quoted above, C ongress exp res sly so declared in its 19 statement o f " Purpose " in e na cting JASTA. However, the second and third Halberstam 20 e lements require proof that at the time the defendant (directly or indirectly) aided the

-41-1 principal, the defenda nt was "generally aware" of the overall wrongful activity and 2 w as "knowingly" assisting the principal violation. Halberstam , 705 F.2d at 477. 3 In Linde, which had been tried before the enactm en t o f JASTA, we 4 d i scu sse d the se c o n d H a l b e rs ta m e l e me nt in the course of c onsidering whether the tria l 5 c ourt's instruction error ( see Part II. A . abo v e) could be considered harmless. W e 6 c oncluded that the error was n o t ha rmless in part because the mens rea element o f 7 a iding and ab etting is "different from the mens rea requi red to establish material 8 sup po rt i n violation of 18 U.S.C. § 2 339B, which requires" proof only of the 9 d e fe nd ant ' s " kno w l edge of the organization's c onnection to terrorism. " L i n d e, 8 8 2 F . 3 d 10 a t 329-30; see generally Holder v. Humanitarian L aw Project, 561 U.S. 1, 16-17 (2010) 11 ( "Congress plainly spoke to the necessary mental state for a v iolation of § 2339B, and 12 i t chose knowledge about the organization's connection to terrorism, not specific intent 13 to further the organization's terrorist activities ." (emphasis added)). 14 In contrast to what is needed to show a violation of § 2339B, the second 15 H

alberstam element of aiding and abetting requires a plaintiff to show the defendant's 16 " general[] aware[ness] of his role as part of an overall illegal or tortious activity at the time 17 that he pro v i d e s the assistance ." Linde, 8 82 F.3d at 329 (emphasis added) (internal 18 quotation marks omitted).

-42-1 [A]iding and abetting an act o f international terrorism requires 2 more th a n the provision of material support to a designated 3 terrorist organization . Aiding and abetting requires the secondary 4 actor to be "aware" that, by assisting the principal, i t is itself 5 ass uming a "role" in terrorist a ctivities. Halberstam v. Welch, 705 6 F.2d at 477. 7 I d . at 329 (emphases in original). 8 The issue of the mens rea requirements for a JASTA claim of aiding and 9 abetting acts of international terrorism was presented more directly in Siegel v. HSBC 10 N

orth Ame r i c a Holdings, Inc. , 933 F.3d 217 (2d Cir. 2019) (" Siegel "), in which we 11 c onsidered the district court's dismissal o f such an action pursuant to Fed. R. Civ. P. 12 12 (b) ( 6) for f ailure t o state a claim. The Siegel plaintiffs were victims, o r 13 r epresentatives of victims, of a series of terrorist attacks in Jordan on November 9, 14 2 005. They brought suit u nder JASTA against HSBC Bank USA, N.A. ("HSBC"), and 15 o the r d e fe nd ant s, a l l e g ing th a t HSB C h a d provided financ i a l se rv i c e s t o the d e fe nd ant 16 A l Rajhi Bank (or "ARB"), a prominent Saudi bank. 17 The Siegel complaint included the following allegations: that al-Qaeda 18 in Iraq ("AQI") was the terrorist organization responsible for the a tt a c k s; tha t A RB ha d 19 l inks to terrorist organizations including AQI; that HSBC was aware of ARB's links 20 t o terrorist organizations; that ARB was, at all relevant times, involved in financing 21 terrorist activity; that the g overnment of S audi Arabia was monitoring ARB accounts

-43-1 for links to terrorist organizations; that in 2003, the United States C entral Intelligence 2 A gency referred to A RB as a conduit for terrorist transactions; that in 2004, the United 3 S tates government d esignated several Saudi-based non-profit orga n izations--all o f 4 which were clients of ARB--as terrorist organiz ations; that HSBC internal 5 c ommunications in 2 002 and 2003 revealed that senior officers within the company 6 w ere con c ern ed that ARB's account may have been used by terrorists, and that one 7 o f ARB's clients had been l i nk ed to AQI; that d espite HSBC's knowledge of ARB's 8 support of terrorist o rganizations, HSBC provided ARB with a wide range of banking 9 services, including w ire transfers, foreign e x change, trade financin g, and asset 10 management services; and that HSBC helped ARB to conceal the passage of billions 11 o f U .S. dollars through the U nited States, and provided A RB with the means t o 12 transfer millions of U .S. dollars to AQI which was actively engaged in planning and 13 perpetrating the murder and maiming of Americans, including the v icti ms of the 14 November 2005 bombings in Jordan. S ee Siegel, 933 F.3d at 2 20-21. ARB was an HSBC 15 customer for some 25 years, until January 2005 when HSBC decided to sever ties with 16 A RB due to its concerns about possible terrorist financing. See i d . at 221. 17 After other d e fendants had been di s m i s sed for lack of personal 18 jurisdiction, the district court dismissed the complaint against HSB C f o r failure t o

-44-1 state a claim under JASTA. This Court affirmed, "conclud[ing ] th at the plaintiffs' 2 a iding-and-abetting c laim fail[ed] as a matter of law because the plaintiffs ha[d] not 3 plausibly alleged that HSBC assumed a role in the November 9 Attacks or provided 4 substantial assistance to AQI." Id . at 222. 5 We observed first that the S ieg e l plaintiffs "fail[ed] to a dvance any 6 plausible, factual, non-conclusory allegations that HSBC knew or intended that" the 7 f unds they forwarded for A RB " w ould be sent to AQI o r to any other terrorist 8 o rganizations"; w e found that failure alone sufficient to "foreclose[] their JASTA 9 c laim." Id

. at 224-25. In the absence of factual "alleg a ti o n s that would support a 10 c onclusion that HSBC knowingly played a role in the terrorist activities," the plaintiffs' 11 a llegatio n s that HSBC " was aware," b ased on "public reports," that its banking 12 customer " was believed b y s o me to have links to . . . terrori s t o rg a n i zations" "are 13 insufficient to state a claim for aiding-and-abetting liability under JASTA." Id

. at 224 14 &n.6 (emphases added). 15 In addition, applying th e s i x "factors" that Linde and H a lberstam found 16 r elevant t o a determination as to what may constitute " 'substantial a ssistance,'" we 17 noted that "[t]he plaintiffs have also failed adequately t o plead the 'substantial

-45-1 a ssistance' element of aiding-and -abetting liability under JASTA." Siegel, 933 F.3d 2 a t 225. We stated, inter alia, that 3 plaintiffs here have not plausibly alleged that HSBC encouraged 4 the heinous November 9 A ttacks o r provided any funds to AQI. 5 To be sure, the plaintiffs did allege that HSBC provided hundreds 6 of mill io ns o f dollars to A RB, but they did n ot advance any non7 conclusory allegation that A QI received any of thosefunds or that HSBC 8 knew or intended that AQI would receive the funds

. . . . Similarly, on 9 the fifth f a ctor--defendant's state of min d

-- the plaintiffs do not 10 plausibly allege that HSBC knowingly assumed a role i n AQI's terrorist 11 activities or otherwise knowingly or intentionally supported AQI

. 12 I

d . (emphases added). We concluded that 13 [t]aken as true and viewed in the light most favorable to the 14 plaintiffs, the a llegations establish, at most, that, up until January 15 2005, HSB C h el ped ARB violate banking regulations despite 16 knowing that ARB s up ported terrorist organizations. Even were 17 that proven, however, it would b e an i nsufficient basis for liability under 18 JASTA because the plaintiffs have failed to allege that HSBC knowingly 19 assumed a role in AQI's terrorist activities or s ubstan t ia l ly assisted 20 AQI in those activiti e s , specifically the November 9 Attacks

. We 21 therefore conclude that the plaintiffs' aiding-and- ab etting claim 22 fails. 23 I

d . at 225-26 (emphases added). 24 Thus, in the present case, plaintiff s ' a rgument that the relevant JASTA 25 men s rea element-- i .e. , whether NatWest was generally aware it was providing 26 material assistance to Hamas--was established by evidence that NatWest w a s 27 a ssisting Interpal is contrary to Lindeand foreclosed by Siegel

. -46-1 The d i strict court appropr i a te ly a sse sse d pl a inti ffs' r e qu e st t o a d d J A S T A 2 c laims, given the undisputed evidence adduced , in connection with the summary 3 judgment motions, as t o the state of NatWest's knowledge. As discussed in Part II.A. 4 above, the record included evidence that plaintiffs' experts said the charities to which 5 NatWest transferred funds as instructed by Interpal performed charitable work and 6 that, as plai ntiffs admitted, Interpal did not indicate to NatWest that the transfers 7 w e r e fo r any te r r o r i stic purpose; and plaintiffs proffered no evidence tha t the cha r i ti e s 8 f unded terrorist attacks o r recruited persons to carry out such attacks. On this record, 9 the district court did not err in denying leave to amend the complaints as futile on the 10 ground that plaintiffs could not show that NatWest was knowingly p ro v i d in g 11 substantial assistance to Ha m a s , o r that NatWest was generally aware that it was 12 playing a role in Ham a s's acts of terrorism.

13 CONCLUSION

14 We have considered all of plaintiffs' arguments on this appeal and have 15 fo u nd them to be without merit. The judgments are affirmed. Defend a n t' s 16 c onditional cross-appeal is dismissed as moot.

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