Licci, et al. v. Lebanese Canadian Bank, SAL, et ano.

10-1306-cv
Licci, et al. v. Lebanese Canadian Bank, SAL, et ano.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2010 3
(Argued: February 25, 2011 Decided: March 5, 2012) 4
Docket No. 10-1306-cv 5
------------------------------------- 6
YAAKOV LICCI, a minor, by his father and natural guardian, 7
ELIHAV LICCI, and by his mother and natural guardian, YEHUDIT 8
LICCI, et al., 9
Plaintiffs-Appellants, 10
- v - 11
LEBANESE CANADIAN BANK, SAL; AMERICAN EXPRESS BANK LTD., 12
Defendants-Appellees.*
13
------------------------------------- 14
Before: KEARSE, SACK, and KATZMANN, Circuit Judges. 15
Appeal from a judgment of the United States District 16
Court for the Southern District of New York (George B. Daniels, 17
Judge) dismissing the plaintiffs' complaint against defendant 18
Lebanese Canadian Bank, SAL, for lack of personal jurisdiction. 19
The plaintiffs, all Israeli residents, were allegedly injured, 20
or their family members killed or injured, by rockets fired by 21
* The Clerk of Court is directed to amend the caption as set
forth above.

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Hizballah, a Lebanese terrorist organization, into northern 1
Israel in July and August 2006. The district court concluded 2
that the bank's use of its New York account was not enough to 3
permit the exercise of personal jurisdiction over it under the 4
New York long-arm statute, New York Civil Practice Law and 5
Rules § 302(a)(1). Because we are of the view that there is 6
insufficient New York State authority on the issue for us to 7
determine with confidence whether the district court's 8
conclusion was correct, we seek the views of the New York Court 9
of Appeals as to whether the plaintiffs' claims "aris[e] from" 10
a "transact[ion] [of] business" in New York within the meaning 11
of N.Y. C.P.L.R. § 302(a)(1). 12
The district court's dismissal of a separate claim 13
against American Express Bank Ltd. is affirmed by separate 14
opinion filed today. 15
Questions certified. 16
Appearances: ROBERT J. TOLCHIN, Jaroslawicz & 17
Jaros, New York, NY, for Plaintiffs- 18
Appellants. 19
JONATHAN D. SIEGFRIED (Lawrence S. 20
Hirsh, on the brief), Dewey & LeBoeuf 21
LLP, New York, NY, for Defendant- 22
Appellee Lebanese Canadian Bank, SAL. 23
MARK P. LADNER (Mark David McPherson, 24
Michael Gerard, on the brief), 25
Morrison & Foerster LLP, New York, NY, 26
for Defendant-Appellee American 27
Express Bank Ltd. 28
2

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SACK, Circuit Judge: 1
This appeal presents the question whether a foreign 2
bank's maintenance and use of a correspondent banking account 3
in New York to conduct wire transfers on behalf of a foreign 4
client renders it amenable to personal jurisdiction in New York 5
under the state's long-arm statute to defend against claims 6
asserted by victims of terrorist attacks committed abroad. The 7
plaintiffs are several dozen American, Canadian, and Israeli 8
citizens, all of whom reside in Israel, who were injured, or 9
whose family members were killed or injured, in rocket attacks 10
allegedly committed by Hizballah, designated as an Islamic 11
terrorist organization, 1 in July and August 2006. The 12
plaintiffs have brought suit against Lebanese Canadian Bank, 13
SAL ("LCB"), 2 a Lebanese bank headquartered in Beirut, alleging 14
1 "Hizballah (Party of God)" has been designated by the
United States Department of State as a "Foreign Terrorist
Organization" pursuant to 8 U.S.C. § 1189(a). See U.S. Dep't of
State, Office of Coordinator for Counterterrorism, Foreign
Terrorist Organizations (Jan. 27, 2012),
http://www.state.gov/j/ct/rls/other/des/123085.htm. We use the
State Department's spelling throughout this opinion unless
quoting directly from a source that uses different spelling.
2 The amended complaint also contains a single claim for
negligence against defendant American Express Bank ("AmEx") under
Israeli law. This claim is pleaded on behalf of all plaintiffs.
The district court, applying New York law, dismissed that claim
against AmEx on the basis that there was no actual conflict
between Israeli and New York law, and that under New York law,
"[b]anks do not owe non-customers a duty to protect them from the
intentional torts committed by [the banks'] customers." Licci v.
Am. Express Bank Ltd., 704 F. Supp. 2d 403, 410 (S.D.N.Y. 2010)
(citing Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir.
2006)). The plaintiffs' appeal from the dismissal of their
3

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that LCB assisted Hizballah by facilitating the international 1
financial transactions of a Hizballah-affiliated entity. The 2
plaintiffs allege that LCB carried out dozens of dollar- 3
denominated international wire transfers totaling several 4
million dollars over the course of several years on behalf of 5
the Hizballah affiliate, with the assistance of another 6
defendant, American Express Bank, where LCB maintained and used 7
a correspondent banking account. According to the plaintiffs, 8
in carrying out these transactions, LCB acted with the 9
knowledge that they were for the purpose of facilitating 10
Hizballah's ability to carry out acts of terrorism, such as the 11
rocket attacks at issue here. The plaintiffs assert claims 12
against LCB under the Anti-Terrorism Act, 18 U.S.C. § 2333(a); 13
the Alien Tort Statute, 28 U.S.C. § 1350; and Israeli tort law. 14
The district court (George B. Daniels, Judge) granted 15
LCB's motion to dismiss for lack of personal jurisdiction on 16
the grounds that LCB's maintenance of a correspondent banking 17
account in New York and use of that account to wire funds on 18
behalf of the Hizballah affiliate were insufficient to 19
establish specific personal jurisdiction over LCB under the New 20
York long-arm statute, N.Y. C.P.L.R. § 302(a)(1). The court 21
concluded both that "[t]he execution of wire transfers . . . 22
negligence claim against AmEx is addressed in an accompanying
opinion.
4

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alone is [not] sufficient to confer jurisdiction over a foreign 1
bank," Licci v. Am. Express Bank Ltd., 704 F. Supp. 2d 403, 407 2
(S.D.N.Y. 2010), and that there was no "articulable nexus or 3
substantial relationship . . . between LCB's general use of its 4
correspondent account for wire transfers through New York and 5
the specific terrorist activities by Hizbollah underlying 6
plaintiffs' claims," id. at 408. The plaintiffs appeal. 7
The question of whether, and if so to what extent, 8
personal jurisdiction may be established under N.Y. C.P.L.R. 9
§ 302(a)(1) over foreign banks based on their use of 10
correspondent banking accounts in New York remains unsettled. 11
We conclude that New York law is insufficiently developed in 12
this area to enable us to predict with confidence how the New 13
York Court of Appeals would resolve these issues of New York 14
State law presented on appeal. We therefore certify to the 15
Court of Appeals two questions concerning the application of 16
the New York long-arm statute. 17
BACKGROUND 18
The facts set forth below are drawn from the 19
plaintiffs' first amended complaint, see Am. Compl., Licci v. 20
Am. Express Bank Ltd., No. 08 Civ. 7253 (GBD) (S.D.N.Y. Mar. 21
31, 2010), ECF No. 23 ("Compl."), and from the district court's 22
opinion dismissing the claims against LCB for lack of personal 23
jurisdiction, see Licci, 704 F. Supp. 2d at 404-06. All well- 24
5

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pleaded facts are accepted as true at this stage of the 1
litigation. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 2
F.3d 106, 108 (2d Cir. 2010). We recite only the facts that we 3
think necessary for an understanding of our resolution of this 4
appeal. 5
Allegations of the Amended Complaint 6
According to the allegations contained in the Amended 7
Complaint, between July 12, 2006, and August 14, 2006, 8
Hizballah, an Islamic terrorist organization, fired thousands 9
of rockets into northern Israel. The plaintiffs or their 10
family members were injured or killed by these attacks. See 11
Compl. ¶¶ 58-112. 12
The defendant, LCB, is a Lebanese bank with no 13
branches, offices, or employees in the United States. LCB 14
does, however, maintain a correspondent banking account at AmEx 15
in New York. 3 The plaintiffs allege that LCB used this account 16
3 "Correspondent accounts are accounts in domestic banks
held in the name of [] foreign financial institutions.
Typically, foreign banks are unable to maintain branch offices in
the United States and therefore maintain an account at a United
States bank to effect dollar transactions." Sigmoil Res., N.V.
v. Pan Ocean Oil Corp. (Nigeria), 234 A.D.2d 103, 104, 650
N.Y.S.2d 726, 727 (1st Dep't 1996). "'Without correspondent
banking . . . it would often be impossible for banks to provide
comprehensive nationwide and international banking services --
among them, the vital capability to transfer money by wire with
amazing speed and accuracy across international boundaries.'"
United States v. Davidson, 175 F. App'x 399, 401 n.2 (2d Cir.
2006) (summary order) (quoting Role of U.S. Correspondent Banking
in International Money Laundering: Hearings Before the Permanent
Subcomm. on Investigations of the S. Comm. on Gov't Affairs,
107th Cong. 1-2 (2001) (opening remarks of Senator Susan M.
Collins)).
6

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to conduct dozens of international wire transfers on behalf of 1
the Shahid (Martyrs) Foundation ("Shahid"), an entity that 2
maintained bank accounts with LCB and which the plaintiffs 3
allege to be an "integral part" of Hizballah and "part of [its] 4
financial arm." Id. ¶ 46; see also id. ¶ 50 (alleging that the 5
Shahid-titled bank accounts "belonged to Hizbollah and were 6
under the control of Hizbollah"). These wire transfers, which 7
totaled several million dollars, "substantially increased and 8
facilitated Hizbollah's ability to plan, to prepare for[,] and 9
to carry out" the rocket attacks that injured the plaintiffs. 10
Id. ¶ 116. 11
The plaintiffs contend that LCB's role in conducting 12
those wire transfers on Shahid's behalf was actionable. They 13
allege that LCB had "actual knowledge" that Hizballah was a 14
violent terrorist organization, as reflected on official U.S. 15
government lists, 4 and that Shahid was "part of Hizbollah's 16
financial arm." Id. ¶¶ 130, 135. Moreover, the plaintiffs 17
allege that the bank, as a matter of "official LCB policy," 18
4 LCB notes that at all relevant times, Shahid itself was
not designated as a terrorist organization on official U.S.
government lists. Shahid was, however, added to the U.S.
Treasury Department's "Specially Designated Nationals" list in
July 2007. See U.S. Dep't of Treasury, Press Release, Twin
Treasury Actions Take Aim at Hizballah's Support Network
(July 24, 2007). Shahid today remains on that list of
"individuals, groups, and entities, such as terrorists . . . that
are not country-specific." See generally U.S. Dep't of Treasury,
Specially Designated Nationals List (SDN),
http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/
default.aspx (last visited Dec. 21, 2011).
7

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"continuously supports and supported Hizbollah and its anti- 1
Israel program, goals and activities." Id. ¶ 126. In 2
particular, the plaintiffs allege that LCB carried out the wire 3
transfers "in order to assist and advance Hizbollah's goal of 4
using terrorism to destroy the State of Israel." Id. ¶ 129. 5
Procedural History 6
The plaintiffs began this lawsuit in New York State 7
Supreme Court, New York County, on July 11, 2008. On August 8
15, 2008, AmEx removed the matter to the United States District 9
Court for the Southern District of New York. 10
On January 22, 2009, the plaintiffs filed an amended 11
complaint. It contains five claims against LCB: (1) primary 12
liability for international terrorism under the Anti-Terrorism 13
Act, 18 U.S.C. § 2333(a) ("the Anti-Terrorism Act"); (2) 14
aiding-and-abetting liability for international terrorism under 15
the Anti-Terrorism Act; (3) aiding-and-abetting liability for 16
genocide, war crimes, and crimes against humanity in violation 17
of international law, as made actionable by the Alien Tort 18
Statute, 28 U.S.C. § 1350 (the "ATS"); (4) negligence, in 19
violation of Israeli Civil Wrongs Ordinance § 35; and (5) 20
breach of statutory duty, in violation of Israeli Civil Wrongs 21
Ordinance § 63. 5 The Anti-Terrorism Act claims are brought by 22
5 Substantially the same group of plaintiffs has filed a
related lawsuit in the Southern District of New York against Al
Jazeera, a Qatar-based television network. The plaintiffs assert
8

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the American plaintiffs alone; the ATS claims are brought by 1
various Canadian and Israeli plaintiffs; and the Israeli-law 2
claims are brought by all but four plaintiffs. 3
On April 17, 2009, LCB moved to dismiss all claims 4
against it for lack of personal jurisdiction under Rule 5
12(b)(2) and for failure to state a claim under Rule 12(b)(6). 6
On July 6, 2009, the plaintiffs filed an opposition to LCB's 7
motion and submitted, among other material, a declaration by a 8
former Israeli counter-terrorism official attesting to the fact 9
that Shahid is a financial front for Hizballah. LCB filed a 10
reply on September 3, 2009. 11
The District Court's Jurisdictional Ruling 12
On March 31, 2010, the district court granted LCB's 13
motion to dismiss pursuant to Rule 12(b)(2), concluding that 14
the plaintiffs had failed to make a prima facie showing of 15
personal jurisdiction over the defendants under N.Y. C.P.L.R. 16
§ 302(a)(1). See Licci, 704 F. Supp. 2d at 406-08. According 17
to the court, "'[t]o establish personal jurisdiction under 18
that Al Jazeera violated the Anti-Terrorism Act by purposefully
televising the precise impact locations in Israel of Hizballah's
rockets in order to assist Hizballah with aiming its attacks more
accurately. That lawsuit was dismissed, with leave to amend the
complaint, on the grounds that the plaintiffs had failed
adequately to plead the elements of intent and proximate
causation. See Kaplan v. Al Jazeera, No. 10 Civ. 5298, 2011 WL
2314783, 2011 U.S. Dist. LEXIS 61373 (S.D.N.Y. June 7, 2011)
(Kimba M. Wood, J.). A second amended complaint was filed on
July 18, 2011, but the plaintiffs voluntarily dismissed the
action on November 21, 2011.
9

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section 302(a)(1), two requirements must be met: (1) The 1
defendant must have transacted business within the state; and 2
(2) the claim asserted must arise from that business 3
activity.'" Id. at 406 (quoting Sole Resort, S.A. de C.V. v. 4
Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006)). 5
The court characterized the plaintiffs' theory of jurisdiction 6
as depending solely upon LCB's "alleged use of defendant Amex 7
Bank as its correspondent bank to carry out wire transfers of 8
funds to and from the Shahid-entitled bank accounts." Id. at 9
406. Rejecting that theory, the court appeared to conclude 10
that neither of the two requirements for jurisdiction under 11
N.Y. C.P.L.R. § 302(a)(1) had been satisfied. 12
With respect to the first, "transacted business," 13
prong, the district court relied upon the general principle 14
that "[t]he mere maintenance of [a] correspondent bank account 15
with a financial institution in New York is not, standing 16
alone, a sufficient basis to subject a foreign defendant to 17
personal jurisdiction under § 302(a)(1)." Id. at 407. 18
Although the court acknowledged that in some circumstances, a 19
"foreign bank's improper use of a New York correspondent 20
account" may support long-arm jurisdiction, id. (citing cases), 21
the court concluded that "[t]he execution of wire transfers is 22
not a 'use' of a correspondent account which alone is 23
sufficient to confer jurisdiction over a foreign bank," id., 24
and therefore "no meaningful distinction may be drawn between a 25
foreign bank's maintenance of a correspondent account to effect 26
10

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international wire transfers and its indiscriminate use of that 1
account for that exact purpose," id. at 407-08. 2
With respect to the second, "arising from," prong, 3
the district court concluded that the plaintiffs' claims did 4
not arise from LCB's wire transfers in New York for the 5
purposes of N.Y. C.P.L.R. § 302(a)(1). Id. at 408. Relying 6
upon the factually similar case of Tamam v. Fransabank SAL, 677 7
F. Supp. 2d 720, 726-30 (S.D.N.Y. 2010), 6 the district court 8
ruled that "[n]o articulable nexus or substantial relationship 9
exists between LCB's general use of its correspondent account 10
for wire transfers through New York and the specific terrorist 11
activities by Hizbollah underlying plaintiffs' claims." Licci, 12
704 F. Supp. 2d at 408. In reaching that conclusion, the 13
district court observed that the "[p]laintiffs do not allege 14
that the rocket attacks were directly financed with the subject 15
wire transferred funds," but only that those "transferred 16
funds . . . 'substantially increased' Hizbollah's ability to 17
commit rocket attacks," id. The court further reasoned that 18
"[t]he injuries and death suffered by plaintiffs and their 19
6 In Tamam, a different group of fifty-seven plaintiffs
brought suit against five Lebanese banks (not including LCB)
under the ATS for aiding and abetting genocide, and committing
crimes against humanity, war crimes, and terrorism by providing
financial services to parties associated with Hizballah. The
Tamam plaintiffs were, like those in the instant case, either
themselves injured in the July and August 2006 rocket attacks, or
the survivors of family members killed in those attacks. See
Tamam, 677 F. Supp. 2d at 722-24. The district court dismissed
the Tamam plaintiffs' lawsuit for lack of personal jurisdiction,
see id. at 725-34, and no appeal was taken.
11

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family members were caused by the rockets launched by 1
Hizbollah, not by the banking services provided by LCB through 2
its correspondent account." Id. The court decided that "LCB's 3
maintenance or use of its correspondent bank account is 4
[therefore] too attenuated from Hizbollah's attacks in Israel 5
to assert personal jurisdiction based solely on wire transfers 6
through New York." Id. 7
After deciding that the requirements of N.Y. C.P.L.R. 8
§ 302(a)(1) had not been satisfied, the district court also 9
concluded, summarily, that "[t]he exercise of personal 10
jurisdiction over LCB on the basis alleged by plaintiffs would 11
not comport with constitutional principles of due process." 12
Id. The district court also denied the plaintiffs' request for 13
jurisdictional discovery on the ground that such discovery 14
would be "futile." 7 Id. Finally, because the court determined 15
that personal jurisdiction was lacking, the court did not reach 16
the merits of LCB's alternative arguments that dismissal of 17
each of the plaintiffs' claims was warranted under Fed. R. Civ. 18
7 On appeal, the plaintiffs do not challenge the district
court's denial of jurisdictional discovery. We therefore need
not decide whether the district court exceeded the bounds of its
discretion in this respect. See Frontera Res. Azerbaijan Corp.
v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 401 (2d
Cir. 2009) (noting that a district court possesses "wide
latitude" and "typically [acts] within its discretion to deny
jurisdictional discovery when the plaintiff has not made out a
prima facie case for jurisdiction") (brackets and internal
quotation marks omitted).
12

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P. 12(b)(6). See id. at 406-08. The district court entered 1
judgment for the defendants on March 31, 2010. 2
The plaintiffs appeal. 3
DISCUSSION 4
I. Standard of Review 5
"We review a district court's dismissal of an action 6
for want of personal jurisdiction de novo, construing all 7
pleadings and affidavits in the light most favorable to the 8
plaintiff[s] and resolving all doubts in the plaintiff[s'] 9
favor." Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 10
(2d Cir. 2010). "In order to survive a motion to dismiss for 11
lack of personal jurisdiction, [the] plaintiff[s] must make a 12
prima facie showing that jurisdiction exists." Id. at 34-35 13
(internal quotation marks omitted). This prima facie showing 14
"must include an averment of facts that, if credited by the 15
ultimate trier of fact, would suffice to establish jurisdiction 16
over the defendant." Chloé v. Queen Bee of Beverly Hills, LLC, 17
616 F.3d 158, 163 (2d Cir. 2010) (brackets omitted). In 18
considering whether the plaintiffs have met this burden, "we 19
will not draw 'argumentative inferences' in the plaintiff's 20
favor," Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 21
507 (2d Cir. 1994), nor are we required "to accept as true a 22
legal conclusion couched as a factual allegation," Jazini v. 23
Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998). We review 24
any factual findings regarding personal jurisdiction for clear 25
13

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error. Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d 1
Cir. 2004). 2
II. Principles of Personal Jurisdiction 3
The lawful exercise of personal jurisdiction by a 4
federal court requires satisfaction of three primary 5
requirements. 6
First, the plaintiff's service of process upon the 7
defendant must have been procedurally proper. See Murphy 8
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 9
(1999); In re Kalikow, 602 F.3d 82, 92 (2d Cir. 2010). LCB 10
does not deny that it was properly served in Lebanon with the 11
plaintiffs' summons and complaint pursuant to Federal Rule of 12
Civil Procedure 4(f)(2)(C)(ii). 13
Second, there must be a statutory basis for personal 14
jurisdiction that renders such service of process effective. 15
The available statutory bases in federal courts are enumerated 16
by Federal Rule of Civil Procedure 4(k). In this case, the 17
plaintiffs rely solely upon Rule 4(k)(1)(A), which provides 18
that "[s]erving a summons . . . establishes personal 19
jurisdiction over a defendant . . . who is subject to the 20
jurisdiction of a court of general jurisdiction in the state 21
where the district court is located." 8 See also Spiegel v. 22
8 At least two other statutory bases for personal
jurisdiction might be relevant to lawsuits brought under the
Anti-Terrorism Act: (1) Federal Rule of Civil Procedure 4(k)(2),
14

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Schulmann, 604 F.3d 72, 76 (2d Cir. 2010) ("A district court's 1
personal jurisdiction is determined by the law of the state in 2
which the court is located."). We therefore look to New York 3
law in determining whether personal jurisdiction is available 4
in New York over LCB. 9
5
which provides for personal jurisdiction in federal-question
cases where a defendant is "not subject to jurisdiction in any
state's courts of general jurisdiction," but "exercising
jurisdiction [would be] consistent with the United States
Constitution and laws," Fed. R. Civ. P. 4(k)(2); and (2) the
Anti-Terrorism Act's nationwide service of process provision,
which provides that a defendant "may be served in any district
where the defendant resides, is found, or has an agent." 18
U.S.C. § 2334(a); see also Fed. R. Civ. P. 4(k)(1)(C). Because
the plaintiffs in the instant litigation have relied only upon
Rule 4(k)(1)(A), however, we do not consider these alternative
bases for jurisdiction here.
9 There are two types of personal jurisdiction: general and
specific. General jurisdiction is authorized where the
defendant's "affiliations with the State are so 'continuous and
systematic' as to render [it] essentially at home in the forum
State." Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.
Ct. 2846, 2851 (2011). A court asserts "general jurisdiction"
over a defendant when the court is permitted to "hear any and all
claims against" that defendant. Id.
"Specific jurisdiction," however, "depends on an
'affiliation between the forum and the underlying controversy,'
principally, activity or an occurrence that takes place in the
forum State and is therefore subject to the State's regulation."
Id. (brackets omitted). Such jurisdiction is "confined to
adjudication of 'issues deriving from, or connected with, the
very controversy that establishes jurisdiction.'" Id.; see also
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414 nn.8-9 (1984) (discussing the terms).
The plaintiffs do not allege that LCB is subject to general
personal jurisdiction in New York. See N.Y. C.P.L.R. § 301.
They argue only that LCB is subject to specific personal
jurisdiction under the first subdivision of the New York long-arm
statute, N.Y. C.P.L.R. § 302(a)(1).
15

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N.Y. C.P.L.R. § 302(a) provides, in pertinent part, 1
that a court "may exercise personal jurisdiction over any non- 2
domiciliary . . . who in person or through an agent . . . 3
transacts any business within the state," so long as the 4
plaintiff's "cause of action aris[es] from" that 5
"transact[ion]." 10 Id. So, in determining whether personal 6
jurisdiction may be exercised under section 302(a)(1), "a court 7
must decide (1) whether the defendant 'transacts any business' 8
in New York and, if so, (2) whether this cause of action 9
'aris[es] from' such a business transaction." Best Van Lines, 10
Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (citing 11
Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 12
71, 818 N.Y.S.2d 164, 166, 850 N.E.2d 1140, 1142 (2006)). 13
Third, the exercise of personal jurisdiction must 14
comport with constitutional due process principles. In this 15
case, because the plaintiffs' assertion of personal 16
jurisdiction rests upon a state long-arm statute, the relevant 17
constitutional constraints are those imposed by the Due Process 18
Clause of the Fourteenth Amendment. See Chloé, 616 F.3d at 19
10 Section 302(a)(1) also authorizes personal jurisdiction
where a defendant "contracts anywhere to supply goods or services
in the state." That provision is not at issue in this appeal.
Nor do the plaintiffs rely on sections 302(a)(2) or 302(a)(3),
which authorize personal jurisdiction for claims arising out of
torts committed within and without New York State, respectively.
16

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164. The constitutional analysis under the Due Process Clause 1
consists of two separate components: the "minimum contacts" 2
inquiry and the "reasonableness" inquiry. Id. The "minimum 3
contacts" inquiry requires us to consider "whether the 4
defendant has sufficient contacts with the forum state to 5
justify the court's exercise of personal jurisdiction." Id. 6
The "reasonableness" inquiry requires us to decide "whether the 7
assertion of personal jurisdiction comports with 'traditional 8
notions of fair play and substantial justice' -- that is, 9
whether it is reasonable to exercise personal jurisdiction 10
under the circumstances of the particular case." Id. 11
The New York long-arm statute does not extend in all 12
respects to the constitutional limits established by 13
International Shoe Co. v. Washington, 326 U.S. 310 (1945), and 14
its progeny. The state statutory and federal constitutional 15
standards are thus not co-extensive, as they are in many other 16
states. See, e.g., Best Van Lines, 490 F.3d at 244-45 & n.8 17
(noting "gaps" between the jurisdiction conferred by the New 18
York long-arm statute and that permissible under the federal 19
Due Process Clause); Banco Ambrosiano, S.p.A. v. Artoc Bank & 20
Trust Ltd., 62 N.Y.2d 65, 71, 476 N.Y.S.2d 64, 67, 464 N.E.2d 21
432, 435 (1984) ("[I]n setting forth certain categories of 22
bases for long-arm jurisdiction, [the New York long-arm 23
statute] does not go as far as is constitutionally 24
17

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permissible."); see also Patrick J. Borchers, The Problem with 1
General Jurisdiction, 2001 U. Chi. Legal F. 119, 122 & n.17 2
(collecting examples from other states of long-arm statutes 3
that extend to constitutional limits). Where, as here, the 4
plaintiffs premise their theory of personal jurisdiction upon 5
the New York long-arm statute, we first consider whether the 6
requirements of the statute have been satisfied before 7
proceeding to address whether the exercise of jurisdiction 8
would comport with the Due Process Clause. See Chloé, 616 F.3d 9
at 163-64; Am. Buddha, 609 F.3d at 35; Best Van Lines, 490 F.3d 10
at 242, 244. This reflects our respect for the doctrine of 11
constitutional avoidance. See Ehrenfeld v. Bin Mahfouz, 489 12
F.3d 542, 547 (2d Cir. 2007); United States v. Magassouba, 544 13
F.3d 387, 404 (2d Cir. 2008) (collecting cases discussing the 14
doctrine). 11 We therefore address the statutory bases of 15
11 In many cases, the jurisdictional analysis under the New
York long-arm statute may closely resemble the analysis under the
Due Process Clause of the Fourteenth Amendment. See Best Van
Lines, 490 F.3d at 242 ("[T]he analysis of the state statutory
and federal constitutional limitations have become somewhat
entangled in New York jurisprudence . . . ."). This similarity
of state-law and constitutional standards appears particularly
evident with respect to N.Y. C.P.L.R. § 302(a)(1), the
subdivision of the New York long-arm statute under which the
plaintiffs in this case argue the court has personal jurisdiction
over LCB. See Chloé, 616 F.3d at 166, 169 (taking note of these
similarities); Best Van Lines, 490 F.3d at 247 (same); Ehrenfeld
v. Bin Mahfouz, 9 N.Y.3d 501, 508, 851 N.Y.S.2d 381, 385-86, 881
N.E.2d 830, 834-45 (2007) (same).
18

-- 18 of 55 --

personal jurisdiction prior to considering the constitutional 1
limitations. See, e.g., Am. Buddha, 609 F.3d at 35. 2
III. Long-Arm Jurisdiction Under Section 302(a)(1) 3
A. Transaction of Business in New York 4
The first question we consider is whether a foreign 5
bank's maintenance of a correspondent banking account in New 6
York, and use of that account over the course of several years 7
to effect a succession of wire transfers totaling several 8
million dollars on behalf of a foreign client, constitutes a 9
transaction of business within New York. The New York Court of 10
Appeals has explained that "the overriding criterion necessary 11
to establish a transaction of business is some act by which the 12
defendant purposefully avails itself of the privilege of 13
conducting activities within New York," Ehrenfeld, 9 N.Y.3d at 14
508, 851 N.Y.S.2d at 385, 881 N.E.2d at 834 (brackets and 15
internal quotation marks omitted), thereby "invoking the 16
benefits and protections of its laws," Fischbarg v. Doucet, 9 17
N.Y.3d 375, 380, 849 N.Y.S.2d 501, 505, 880 N.E.2d 22, 26 18
(2007). 19
A defendant need not physically enter New York State 20
in order to transact business, "so long as the defendant's 21
activities here were purposeful." Id. (quoting Deutsche Bank 22
Sec., Inc., 7 N.Y.3d at 71, 818 N.Y.S.2d at 167, 850 N.E.2d at 23
1142). "Not all purposeful activity, however, constitutes a 24
19

-- 19 of 55 --

'transaction of business' within the meaning of [N.Y. C.P.L.R. 1
§ 302(a)(1)]." Id. For example, the Court of Appeals has 2
indicated that "'merely telephon[ing] a single order' to New 3
York requesting a shipment of goods to another state, [or] the 4
transitory presence of a corporate official here, [or] 5
communications and shipments sent here by an out-of-state 6
doctor serving as a 'consultant' to plaintiff's New York 7
physician do not support [N.Y. C.P.L.R. § 302(a)(1)] 8
jurisdiction." Id. (citations omitted). 9
"Although it is impossible to precisely fix those 10
acts that constitute a transaction of business . . . it is the 11
quality of the defendants' New York contacts that is the 12
primary consideration." Id. A single act within New York 13
will, in the proper case, satisfy the requirements of section 14
302(a)(1). See Deutsche Bank, 7 N.Y.3d at 72, 818 N.Y.S.2d at 15
167, 850 N.E.2d at 1143 ("[W]hen the requirements of due 16
process are met, as they are here, a sophisticated 17
institutional trader knowingly entering our state -– whether 18
electronically or otherwise -– to negotiate and conclude a 19
substantial transaction is within the embrace of the New York 20
long-arm statute."). Other times, however, when an individual 21
act in New York will not suffice, an ongoing course of conduct 22
or relationship in the state may. See, e.g., Fischbarg, 9 23
N.Y.3d at 382-83, 849 N.Y.S.2d at 507, 880 N.E.2d 22 at 28 24
20

-- 20 of 55 --

(defendants' "substantial ongoing professional commitment" 1
supported long-arm jurisdiction); Longines-Wittnauer Watch Co. 2
v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 458, 261 N.Y.S.2d 8, 3
19, 209 N.E.2d 68, 76 (1965); Grimaldi v. Guinn, 72 A.D.3d 37, 4
44, 895 N.Y.S.2d 156, 162 (2d Dep't 2010). A court must have 5
regard for the "totality of the circumstances." Farkas v. 6
Farkas, 36 A.D.3d 852, 853, 830 N.Y.S.2d 220, 221 (2d Dep't 7
2007); accord Best Van Lines, 490 F.3d at 246. 8
The plaintiffs assert that LCB's maintenance and use 9
of its correspondent banking account in New York was 10
sufficiently purposeful to constitute a transaction of business 11
within New York State. They emphasize that they rely not only 12
on the fact that LCB owned a correspondent banking account in 13
New York, but also on the fact that LCB allegedly used that 14
account "dozens" of times to execute international wire 15
transfers on Shahid's behalf. Compl. ¶ 53. 16
The district court rejected the plaintiffs' proffered 17
distinction. Relying upon a line of Second Circuit district- 18
court cases, the court stated that "[t]he mere maintenance of 19
[a] correspondent bank account with a financial institution in 20
New York is not, standing alone, a sufficient basis to subject 21
a foreign defendant to personal jurisdiction under 22
§ 302(a)(1)." Licci, 704 F. Supp. 2d at 407 (citing Tamam, 677 23
F. Supp. 2d at 727; Daventree Ltd. v. Republic of Azerbaijan, 24
21

-- 21 of 55 --

349 F. Supp. 2d 736, 762 (S.D.N.Y. 2004); and Leema Enters., 1
Inc. v. Willi, 575 F. Supp. 1533, 1537 (S.D.N.Y. 1983)). 2
Although the district court acknowledged the plaintiffs' 3
attempt to distinguish between the "'mere maintenance of 4
correspondent banking accounts'" and "'the active execution 5
. . . of dozens of wire transfers totaling millions of dollars 6
over a multi-year period,'" Licci, 704 F. Supp. 2d at 407 7
(emphasis omitted), the court concluded that "no meaningful 8
distinction may be drawn between a foreign bank's maintenance 9
of a correspondent account to effect international wire 10
transfers and its indiscriminate use of that account for that 11
exact purpose," id. at 407-08. 12
The New York Court of Appeals has apparently not yet 13
addressed the precise question before the district court and 14
now before us: whether a foreign bank's frequent use of a 15
correspondent account in New York to effect international wire 16
transfers on behalf of an overseas client is an act directed 17
with sufficient purposefulness at New York to constitute a 18
transaction of business in that state under the long-arm 19
statute. And, of course, the district court did not itself 20
have the ability to ask the New York Court of Appeals for 21
guidance. See N.Y. Comp. Codes R. & Regs. tit. 22, 22
§ 500.27(a). 23
22

-- 22 of 55 --

New York courts have, however, considered several 1
similar sets of circumstances. In perhaps the most prominent 2
case concerning a similar issue, Amigo Foods Corp. v. Marine 3
Midland Bank-N.Y., 39 N.Y.2d 391, 384 N.Y.S.2d 124, 348 N.E.2d 4
581 (1976), the Court of Appeals addressed the question 5
"whether, under the governing long-arm jurisdiction statute 6
[N.Y. C.P.L.R. § 302(a)(1), also invoked here], a showing that 7
a New York bank is the correspondent of an out-of-State bank 8
provides a sufficient basis upon which New York courts may 9
exercise jurisdiction over the out-of-State bank." Id. at 393, 10
384 N.Y.S.2d at 125, 348 N.E.2d at 582. 11
The plaintiff, a New York wholesaler, had contracted 12
to buy several truckloads of potatoes from a Maine distributor. 13
After the plaintiff made payment, its letter of credit passed 14
through a New York correspondent account owned by one of the 15
defendants, Aroostook Trust Company, a Maine bank. Id. at 394, 16
384 N.Y.S.2d at 126, 348 N.E.2d at 582. 17
The Appellate Division dismissed the plaintiff's 18
claims against Aroostook, "holding that a correspondent bank 19
relationship was an insufficient basis upon which to predicate 20
long-arm jurisdiction." Id. at 395, 384 N.Y.S.2d at 126, 348 21
N.E.2d at 583. And the Court of Appeals declined to hold that 22
a correspondent bank relationship in New York "suffic[ed], in 23
and of itself," to support the exercise of personal 24
23

-- 23 of 55 --

jurisdiction. Id. at 395, 384 N.Y.S.2d at 127, 348 N.E.2d at 1
583. The court announced a general rule that "standing by 2
itself, a correspondent bank relationship, without any other 3
indicia or evidence to explain its essence, may not form the 4
basis for long-arm jurisdiction under [N.Y. C.P.L.R. 5
§ 302(a)(1)]." Id. at 396, 384 N.Y.S.2d at 127, 348 N.E.2d at 6
584. The court then remanded for jurisdictional discovery to 7
permit the plaintiff to establish that the general rule did not 8
apply. Discovery would allow the plaintiff to inquire into, 9
among other things, "the precise nature of [Aroostook's] 10
relationship with [its correspondent bank in New York] 11
vis-à-vis the handling of [the plaintiff's] letters of credit." 12
Id. 13
Several years later, in Ehrlich-Bober & Co. v. Univ. 14
of Houston, 49 N.Y.2d 574, 427 N.Y.S.2d 604, 404 N.E.2d 726 15
(1980), the Court of Appeals upheld the exercise of personal 16
jurisdiction over a public university located in Texas based 17
upon the fact that the university -- which had contracted to 18
sell securities to the plaintiff, a New York securities dealer 19
– employed the services of a correspondent bank in New York to 20
carry out the transaction. Id. at 577, 427 N.Y.S.2d at 606, 21
404 N.E.2d at 728. The Court of Appeals concluded that 22
"[a]lthough 'standing by itself, a correspondent bank 23
relationship . . . may not form the basis for long-arm 24
24

-- 24 of 55 --

jurisdiction under [N.Y. C.P.L.R. § 302(a)(1)],' the facts 1
alleged here, which we accept as true for this purpose, show 2
substantially more." Id. at 579, 427 N.Y.S.2d at 607, 404 3
N.E.2d at 729 (quoting Amigo Foods, 39 N.Y.2d at 396, 384 4
N.Y.S.2d at 127, 348 N.E.2d at 584) (citation omitted). The 5
court appeared to regard as relevant the fact that the 6
contractual transactions at issue had been "centered" in New 7
York. 12 Id. at 581-82, 427 N.Y.S.2d at 609, 404 N.E.2d at 731 8
("[T]he transactions in question . . . were initiated by an 9
employee of the defendant university in a phone call to the 10
plaintiff's New York offices. They were accepted in New York 11
by the plaintiff. The money was paid in New York. The 12
securities were delivered in New York."). 13
In Banco Ambrosiano v. Artoc Bank & Trust, 62 N.Y.2d 14
65, 476 N.Y.S.2d 64, 464 N.E.2d 432 (1984), a decision applying 15
due process standards rather than the long-arm statute, the 16
Court of Appeals upheld the exercise of quasi-in-rem 17
jurisdiction over a Bahamian bank based upon its use of a 18
correspondent account in New York to conduct a loan transaction 19
12 The principal issue on appeal in Ehrlich-Bober & Co. was
not the scope of N.Y. C.P.L.R. § 302(a)(1), but whether the trial
court should have declined jurisdiction over the plaintiff's suit
against the defendant university as a matter of comity based upon
a Texas statute limiting the jurisdictions in which the
university is subject to suit. Id. at 577-79, 427 N.Y.S.2d at
606-07, 404 N.E.2d at 728-29.
25

-- 25 of 55 --

with the plaintiff, id. at 72-73, 476 N.Y.S.2d at 67-68, 464 1
N.E.2d at 435-36. The court, emphasizing the "quality of this 2
contact and its significance in the context of this 3
litigation," viewed the bank's correspondent account as 4
"closely related to plaintiff's claim" because it was "the very 5
account through which [the bank] effectuated the transaction at 6
issue." Id. at 72, 476 N.Y.S.2d at 67-68, 464 N.E.2d at 435- 7
36. The court also appeared to rely on the fact that "this 8
transaction [was not] an isolated one" inasmuch as the bank had 9
"utilize[d] this account regularly to accomplish its 10
international banking business." Id. at 72-73, 476 N.Y.S.2d at 11
68, 464 N.E.2d at 436. Although the court's decision rested 12
not on a determination that the New York long-arm statute was 13
satisfied, but on a conclusion that the exercise of quasi-in- 14
rem jurisdiction under the circumstances would not violate due 15
process standards, see generally id. at 71-73, 476 N.Y.S.2d at 16
66-68, 464 N.E.2d at 434-36, the decision may be relevant 17
insofar as the statutory and constitutional inquiries "have 18
become . . . entangled in New York jurisprudence." Best Van 19
Lines, 490 F.3d at 242. 20
In Indosuez International Finance B.V. v. National 21
Reserve Bank, 98 N.Y.2d 238, 746 N.Y.S.2d 631, 774 N.E.2d 696 22
(2002), the Court of Appeals upheld the exercise of personal 23
jurisdiction in New York over a Russian bank that had 24
26

-- 26 of 55 --

maintained a bank account in New York and used it in connection 1
with currency-exchange options transactions with the plaintiff. 2
The court ruled that the bank's "course of dealing" in making 3
and accepting payments through a New York bank "constitute[d] 4
purposeful exercise . . . of the privilege of conducting 5
business in New York State sufficient to subject it to personal 6
jurisdiction" under N.Y. C.P.L.R. § 302(a)(1). Id. at 247, 746 7
N.Y.S.2d at 636, 774 N.E.2d at 701. 8
Those four decisions suggest to us that the 9
"transaction of business" prong of the test for jurisdiction 10
under section 302(a)(1) may, in appropriate cases, be satisfied 11
by a showing that the defendant maintained and used a 12
correspondent bank account in New York. Some New York State 13
courts nonetheless seem to regard a nondomiciliary defendant's 14
maintenance and use of such an account in New York, standing 15
alone, as ipso facto insufficient to support personal 16
jurisdiction under the New York long-arm statute. See 17
Faravelli v. Bankers Trust Co., 85 A.D.2d 335, 339, 447 18
N.Y.S.2d 962, 964-65 (1st Dep't 1982) ("[T]he fact that Punjab 19
had correspondent banks in New York in and of itself [does not] 20
provide sufficient contacts for longarm jurisdiction under 21
[N.Y. C.P.L.R. § 302]."), aff'd for the reasons stated by the 22
Appellate Division, 59 N.Y.2d 615, 618, 463 N.Y.S.2d 194, 449 23
N.E.2d 1272 (1983); Nemetsky v. Banque de Developpement de la 24
27

-- 27 of 55 --

Republique du Niger, 65 A.D.2d 748, 748-49, 407 N.Y.S.2d 556, 1
557 (2d Dep't 1978) ("Even if the trade acceptance [upon which 2
plaintiff brought suit] were shown to be part of the 3
[defendant's] correspondent bank relationship [with a New York 4
bank], that relationship does not itself provide the basis for 5
long arm jurisdiction under [N.Y. C.P.L.R. § 302(a)(1)]."), 6
aff'd mem., 48 N.Y.2d 962, 964, 425 N.Y.S.2d 277, 401 N.E.2d 7
388 (1979) ("All that appears is a correspondent bank 8
relationship between defendant and Credit Lyonnais and the 9
trade acceptance connected to that relationship. These factors 10
standing alone are insufficient to support an exercise of in 11
personam jurisdiction . . . ."); Taub v. Colonial Coated 12
Textile Corp., 54 A.D.2d 660, 661, 387 N.Y.S.2d 869, 870 (1st 13
Dep't 1976) (depending on Amigo Foods for the conclusion that 14
an Israeli bank's use of a correspondent account in New York 15
does not suffice to establish long-arm jurisdiction). And 16
federal district court decisions in this Circuit have relied 17
upon these state-court decisions and Amigo Foods' statement 18
that a correspondent banking relationship "standing by itself" 19
does not suffice, Amigo Foods, 39 N.Y.2d at 396, 384 N.Y.S.2d 20
at 127, 348 N.E.2d at 584, to conclude that the "mere 21
28

-- 28 of 55 --

maintenance" of a correspondent bank account in New York does 1
not suffice to establish personal jurisdiction there. 13
2
Assuming for present purposes that this "mere 3
maintenance" principle is a faithful articulation of the Court 4
of Appeals' decision in Amigo Foods, it is unclear to us how to 5
apply it to the facts of this case: What role is the word 6
"mere" intended to play? It may be, as the plaintiffs suggest, 7
that it is intended to distinguish the "maintenance" of an 8
account from its active use. See Licci, 704 F. Supp. 2d at 407 9
(describing this argument). But perhaps it is intended to 10
suggest that other types of contacts with the forum -- such as 11
borrowing money in New York, signing notes payable in New York, 12
or negotiating agreements in New York -- are also required in 13
13 See, e.g., Tamam, 677 F. Supp. 2d at 727 ("[M]erely
maintaining a New York correspondent bank account is insufficient
to subject a foreign bank to personal jurisdiction."); Neewra,
Inc. v. Manakh Al Khaleej Gen. Trading & Contracting Co., No. 03
Civ. 2936, 2004 WL 1620874, at *3, 2004 U.S. Dist. LEXIS 13556,
at *10 (S.D.N.Y. July 20, 2004); Societe Generale v. Fla. Health
Scis. Ctr., Inc., No. 03 Civ. 5615, 2003 WL 22852656, at *4, 2003
U.S. Dist. LEXIS 21502, at *11 (S.D.N.Y. Dec. 1, 2003) (merely
maintaining correspondent bank account is not sufficient); Globex
Int'l Inc. v. Commercial Bank of Namibia Ltd., No. 99 Civ. 4789,
1999 WL 529538, at *1, 1999 U.S. Dist. LEXIS 11321, at *2
(S.D.N.Y. July 23, 1999) (same); Semi Conductor Materials, Inc.
v. Citibank Int'l PLC, 969 F. Supp. 243, 246-47 (S.D.N.Y. 1997)
(same); Johnson Elec. N. Am., Inc. v. Bank of Wales, PLC, No. 90
Civ. 6683, 1991 WL 20006, at *2, 1991 U.S. Dist. LEXIS 1596, at
*5 (S.D.N.Y. Feb. 8, 1991) (same); Celton Man Trade, Inc. v. UTEX
S.A., No. 84 Civ. 8179, 1986 WL 6788, at *4, 1986 U.S. Dist.
LEXIS 24280, at *12 (S.D.N.Y. June 12, 1986) (same); Exchange
Nat'l Bank of Chicago v. Empresa Minera del Centro del Peru S.A.,
595 F. Supp. 502, 505 (S.D.N.Y. 1984) (same).
29

-- 29 of 55 --

order to permit jurisdiction over the defendant to be 1
exercised. See, e.g., DirecTV Latin Am., LLC v. Park 610, LLC, 2
691 F. Supp. 2d 405, 423 (S.D.N.Y. 2010). Or it may be that 3
the term means that a transaction of business in New York will 4
not suffice unless the plaintiff's cause of action also 5
"arise[s] from" that transaction -- in other words, that the 6
second prong of the test must also be satisfied. 14 See Neewra, 7
Inc., 2004 WL 1620874, at *3, 2004 U.S. Dist. LEXIS 13556, at 8
*10 ("A foreign bank's mere maintenance of a correspondent 9
account . . . is not enough . . . . On the other hand, 'a 10
cause of action arising out of a transaction involving the use 11
of a correspondent account may confer jurisdiction over [the] 12
defendant in New York.'") (citation omitted; emphasis in 13
original). 14
14 District courts in this Circuit have upheld personal
jurisdiction based upon a defendant's use of a correspondent bank
account in New York where the use of that account was held to lay
at the "very root of the [plaintiff's] action." Correspondent
Servs. Corp. v. J.V.W. Invs. Ltd., 120 F. Supp. 2d 401, 4005
(S.D.N.Y. 2000); see also, e.g., Dale v. Banque SCS Alliance
S.A., No. 02 Civ. 3592, 2005 WL 2347853, at *3, 2005 U.S. Dist.
LEXIS 20967, at *12-*13 (S.D.N.Y. Sept. 22, 2005) (upholding
jurisdiction based on defendant's use of "several correspondent
bank accounts in New York . . . to effect a number of the funds
transfers that are the subject of this action"); Chase Manhattan
Bank v. Banque Generale du Commerce, No. 96 Civ. 5184, 1997 WL
266968, at *2 (S.D.N.Y. May 20, 1997) (finding personal
jurisdiction proper based on the defendant's use of a
correspondent account in New York because "the [plaintiff's]
cause of action arises out of [that] use").
30

-- 30 of 55 --

Were we required to decide ourselves, we might 1
conclude -- in light of the Court of Appeals' post-Amigo Foods 2
decisions in Ehrlich-Bober & Co., Banco Ambrosiano, and 3
Indosuez -- that Amigo Foods is best read as standing for the 4
proposition that the first prong of the long-arm jurisdiction 5
test under N.Y. C.P.L.R. § 302(a)(1) – whether the defendant 6
has transacted business within New York – may be satisfied by 7
the defendant's use of a correspondent bank account in New 8
York, even if no other contacts between the defendant and New 9
York can be established, if the defendant's use of that account 10
was purposeful. Whether or not we would think it necessary to 11
certify that question to the New York Court of Appeals were it 12
the only one that challenged us, in light of the fact that we 13
are asking the court to address the second, "arising from," 14
prong of the test for long-arm jurisdiction, we consider it 15
prudent to ask that court also to address the first prong of 16
the test, and to further explicate its guidance in Amigo Foods 17
-- if, of course, it chooses to do so. Accordingly, we certify 18
the following question to the New York Court of Appeals for its 19
consideration: 20
(1) Does a foreign bank's maintenance of a 21
correspondent bank account at a financial 22
institution in New York, and use of that 23
account to effect "dozens" of wire 24
transfers on behalf of a foreign client, 25
constitute a "transact[ion]" of business in 26
31

-- 31 of 55 --

New York within the meaning of N.Y. 1
C.P.L.R. § 302(a)(1)? 2
B. Nexus Between Plaintiffs' Claims 3
and Defendant's Transaction in New York 4
If the first prong of the test for jurisdiction under 5
N.Y. C.P.L.R. § 302(a)(1) has been satisfied, a question as to 6
which we are asking the New York Court of Appeals for help, we 7
must then inquire whether the plaintiffs' claims arise from 8
that transaction. We have explained, with respect to this 9
"nexus" requirement, that "'[a] suit will be deemed to have 10
arisen out of a party's activities in New York if there is an 11
articulable nexus, or a substantial relationship, between the 12
claim asserted and the actions that occurred in New York.'" 13
Best Van Lines, 490 F.3d at 246 (quoting Henderson v. INS, 157 14
F.3d 106, 123 (2d Cir. 1998)); see also Kreutter v. McFadden 15
Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 198, 522 16
N.E.2d 40, 43 (1988) (employing a "substantial relationship" 17
test); McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 18
645, 419 N.E.2d 321, 323 (1981) (employing an "articulable 19
nexus" test). "[J]urisdiction is not justified [under N.Y. 20
C.P.L.R. § 302(a)(1)] where the relationship between the claim 21
and transaction is too attenuated," Johnson v. Ward, 4 N.Y.3d 22
516, 520, 797 N.Y.S.2d 33, 35, 829 N.E.2d 1201, 1203 (2005), 23
and "[a] connection that is 'merely coincidental' is 24
insufficient to support jurisdiction," Sole Resort, 450 F.3d at 25
32

-- 32 of 55 --

103 (quoting Johnson, 4 N.Y.3d at 520, 797 N.Y.S.2d at 35, 829 1
N.E.2d at 1203); see also Fischbarg, 9 N.Y.3d at 384, 849 2
N.Y.S.2d at 508–09, 880 N.E.2d at 29-30 (a contact's 3
"tangential relationship to the present case" will not 4
suffice). 5
There is no bright-line test for determining whether 6
the "nexus" is present in a particular case. "This inquiry is 7
a fact-specific one, and [the point at which] the connection 8
between the parties' activities in New York and the 9
[plaintiffs'] claim crosses the line from 'substantially 10
related' to 'mere coincidence' is not always self-evident." 11
Sole Resort, 450 F.3d at 103. We observed: 12
In cases where claims have been dismissed on 13
jurisdictional grounds for lack of a sufficient 14
nexus between the parties' New York contacts and 15
the claim asserted, the event giving rise to the 16
plaintiff's injury had, at best, a tangential 17
relationship to any contacts the defendant had 18
with New York. In fact, in those cases, the 19
injuries sustained and the resulting disputes 20
bore such an attenuated connection to the New 21
York activity upon which the plaintiffs 22
attempted to premise jurisdiction that the 23
disputes could not be characterized as having 24
"arisen from" the New York activity. 25
26
Id. at 104. 27
The district court, deciding that the nexus 28
requirement was not satisfied in this case, concluded that 29
"[n]o articulable nexus or substantial relationship exists 30
between LCB's general use of its correspondent account for wire 31
33

-- 33 of 55 --

transfers through New York and the specific terrorist 1
activities by Hizbollah underlying plaintiffs' claims." 15
2
Licci, 704 F. Supp. 2d at 408. In reaching that conclusion, 3
the court relied principally upon two observations. First, the 4
court noted that the "[p]laintiffs themselves are not customers 5
of . . . [LCB], nor did they have any financial interest in the 6
wired funds," id., thereby distinguishing several cases that 7
had upheld personal jurisdiction based upon a defendant's use 8
of a correspondent banking account in New York. 16 Second, the 9
court concluded that "[t]he injuries and death[s] suffered by 10
plaintiffs and their family members were caused by the rockets 11
launched by Hizbollah, not by the banking services provided by 12
LCB through its correspondent account or wire transfers with 13
Amex Bank via New York." 17 Id. Based on this assertion, the 14
15 In conducting its analysis into whether the plaintiffs'
claims "aris[e] from" LCB's transaction of business in New York
for the purposes of section 302(a)(1), the district court did not
separately evaluate the plaintiffs' Anti-Terrorism Act, ATS, and
Israeli-law claims.
16 See Dale, 2005 WL 2347853, at *3, 2005 U.S. Dist. LEXIS
20967, at *12-*13; Correspondent Servs. Corp., 120 F. Supp. 2d at
405; Chase Manhattan Bank, 1997 WL 266968, at *2, 1997 U.S. Dist.
LEXIS 7020, at *4-*7.
17 This conclusion echoed the one reached in the factually
similar Tamam case, in which the court stated: "It is clear that
the events giving rise to the physical injuries and deaths for
which Plaintiffs seek redress are missile attacks in Israel, not
funds transfers in New York." Tamam, 677 F. Supp. 2d at 728.
Indeed, there, as here, the district court concluded that the
plaintiffs had failed to demonstrate a "'substantial
34

-- 34 of 55 --

district court concluded that "LCB's maintenance or use of its 1
correspondent bank account is too attenuated from Hizbollah's 2
attacks in Israel to assert personal jurisdiction based solely 3
on wire transfers through New York." Id. 4
The district court was of course correct in observing 5
that the rockets launched by Hizballah were the alleged 6
immediate cause of the plaintiffs' injuries or their relatives' 7
deaths. But the plaintiffs bring their claims against LCB for 8
its role in the transfer of funds to Hizballah. And the 9
jurisdictional nexus analysis directs us to consider the 10
relationship between the plaintiffs' claims and LCB's alleged 11
transactions in New York. It may be that the district court, 12
in concluding that "[t]he injuries and death[s] suffered by 13
plaintiffs" were caused by Hizballah rather than LCB, id., was 14
reaching a conclusion that properly bears upon the ultimate 15
merits of plaintiffs' claims, which seek to hold LCB liable for 16
damages allegedly inflicted by Hizballah. 18 And while we may 17
relationship' between the correspondent bank accounts and
Hizbollah's terrorist activity." Id. at 727-30.
18 As discussed below, the parties vigorously dispute
whether the plaintiffs, to state a claim against LCB under the
Anti-Terrorism Act, must demonstrate a causal connection between
LCB's provision of banking services and Hizballah's rocket
attacks. Because this case reaches us solely on appeal from a
Rule 12(b)(2) dismissal, however, we need not and do not address
the parties' arguments concerning the existence vel non of such a
causation requirement under the Anti-Terrorism Act at this time.
35

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eventually be required to address the merits, such merits 1
determinations do not bear on the pure state-law question of 2
whether the plaintiffs can show that the facts alleged in the 3
complaint in support of their claims are sufficient to 4
establish personal jurisdiction under the New York long-arm 5
statute. 6
On appeal from the district court's judgment in this 7
regard, the plaintiffs make several arguments directed solely 8
to their Anti-Terrorism Act claims, and others that appear 9
directed primarily to their other claims. 10
1. The Anti-Terrorism Act Claims. On appeal, the 11
plaintiffs focus their arguments primarily on the district 12
court's treatment of their Anti-Terrorism Act claims. 13
The Anti-Terrorism Act, enacted in 1990, 19 provides 14
that "[a]ny national of the United States injured in his or her 15
person, property, or business by reason of an act of 16
international terrorism, or his or her estate, survivors, or 17
heirs, may sue therefor in any appropriate district court of 18
the United States." 18 U.S.C. § 2333(a). For an act to 19
19 The Anti-Terrorism Act was originally enacted in 1990.
Due to a procedural error, however, the Anti-Terrorism Act was
repealed in April 1991 and later re-introduced and reenacted in
substantially the same form. The current text of the Anti-
Terrorism Act, codified at 18 U.S.C. § 2333, was enacted in 1992.
See Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 19 n.1
(D.D.C. 2010) (summarizing this history); Strauss v. Credit
Lyonnais, S.A., 249 F.R.D. 429, 444 (E.D.N.Y. 2008) (same).
36

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constitute "international terrorism," it must satisfy four 1
separate requirements: (1) it must "involve violent acts or 2
acts dangerous to human life"; (2) it must qualify as "a 3
violation of the criminal laws of the United States or of any 4
State" if it were committed within a United States 5
jurisdiction; (3) it must "appear to be intended" to intimidate 6
a civilian population, influence government policy, or affect 7
the conduct of government by certain specified means; and (4) 8
it must occur primarily outside the United States or transcend 9
national boundaries. Id. § 2331(1)(A)-(C). The Seventh 10
Circuit, and several district courts in this Circuit, have 11
concluded that a defendant's violation of the criminal 12
material-support statutes, see 18 U.S.C. §§ 2339A, 2339B & 13
2339C, 20 constitutes an act of "international terrorism" within 14
the meaning of section 2331(1). According to these courts, 15
victims of terrorism therefore may bring civil suits against 16
20 Those three statutes criminalize, respectively: (1)
"provid[ing] material support or resources . . . knowing or
intending that they are to be used in preparation for[] or in
carrying out" certain identified criminal offenses, 18 U.S.C.
§ 2339A(a); (2) "knowingly provid[ing] material support or
resources to a foreign terrorist organization," id.
§ 2339B(a)(1); and (3) "directly or indirectly . . . provid[ing]
or collect[ing] funds with the intention that such funds be used,
or with the knowledge that such funds are to be used, in full or
in part, in order to carry out . . . any [] act intended to cause
death or serious bodily injury to a civilian," id. § 2339C(a)(1).
Each of the three statutes contain further provisions defining or
limiting their terms.
37

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violators of those statutes under section 2333(a), see, e.g., 1
Boim v. Holy Land Found. for Relief and Dev. (Boim II), 549 2
F.3d 685, 690-91 (7th Cir. 2008) (en banc), cert. denied, 130 3
S. Ct. 458 (2009); Boim v. Quranic Literacy Inst. (Boim I), 291 4
F.3d 1000, 1012-16 (7th Cir. 2002). 5
The plaintiffs contend that the district court's 6
decision reflects a mistaken understanding about the elements 7
of an Anti-Terrorism Act cause of action -- in particular, the 8
extent to which proof of causation is required to sustain such 9
a claim. See Pls.' Br. at 16-25 (citing Holder v. Humanitarian 10
Law Project, 130 S. Ct. 2705, 2720, 2729 (2010) (concluding 11
that Congress could lawfully criminalize the provision of 12
"training" or "expert advice or assistance" to terrorist 13
groups, even when the assistance was intended to further non- 14
violent or humanitarian ends, because the recipients of such 15
assistance could nonetheless use it "as part of a broader 16
strategy to promote terrorism"); Boim II, 549 F.3d at 695 17
(concluding that a charity which donates money to a terrorist 18
organization may be held liable under the Anti-Terrorism Act -- 19
even if a plaintiff is unable to prove that the money the 20
charity donated actually helped finance the attacks that 21
injured the plaintiff -- if a plaintiff proves that the charity 22
"kn[ew] the [terrorist] character of that [donee] 23
organization.")). However, the plaintiffs' contentions 24
38

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regarding the scope of the Anti-Terrorism Act bear upon the 1
merits of this case. The question we confront here, and the 2
question we ask the Court of Appeals to consider, is an 3
antecedent question of state law: whether the plaintiffs' 4
claims, as supported by the facts alleged, see Chloé, 616 F.3d 5
at 163 (determining whether plaintiff alleged "facts that, if 6
credited by the ultimate trier of fact, would suffice to 7
establish jurisdiction over the defendant" under the New York 8
long-arm statute) (brackets omitted), arise from LCB's 9
transaction of business in New York, thereby giving rise to 10
personal jurisdiction over LCB under the New York long-arm 11
statute. 12
As an initial matter, we conclude that the district 13
court was mistaken about what alleged conduct by LCB is being 14
relied upon by the plaintiffs as giving rise to the their 15
claims. The plaintiffs' claims are not premised on allegations 16
that LCB played a direct role in committing or facilitating the 17
particular rocket attacks that injured the plaintiffs. They 18
are based upon the assertion that LCB knowingly wired money on 19
behalf of a Hizballah affiliate through New York; that LCB 20
purposefully did so in order to assist Hizballah (irrespective 21
of how it intended the money would be used by Hizballah, or how 22
it was in fact used); that these services constituted material 23
support to a terrorist organization; and that LCB therefore 24
39

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violated the Anti-Terrorism Act. It would appear, then, that 1
LCB's transactions in New York are among the operative facts 2
underpinning the plaintiffs' Anti-Terrorism Act claims as 3
alleged. Cf. Pls.' Br. at 20 (asserting that "the entire actus 4
reus of the torts attributed to LCB in the [amended complaint] 5
is none other than LCB's transfers to Hezbollah via its account 6
at Amex Bank in New York"). We nonetheless conclude that we 7
are without sufficient guidance to permit us to resolve the 8
state-law question authoritatively. 9
Once again, the question is whether, as a matter of 10
New York law, the plaintiffs' Anti-Terrorism Act claims, as 11
they are alleged by the plaintiffs, "aris[e] from" the 12
defendants' transaction of business in New York within the 13
meaning of N.Y. C.P.L.R. § 302(a)(1). But two ambiguities are 14
present in the New York Court of Appeals' statement that a 15
sufficient nexus exists where "there is a substantial 16
relationship between [a New York] transaction and the claim 17
asserted," Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 198, 522 18
N.E.2d at 43 (emphases added) –- what is a "substantial 19
relationship"? And, what is a "claim"? 20
a. What is a "substantial relationship" for purposes 21
of N.Y. C.P.L.R. § 302(a)(1)? 22
23
First, it remains unclear to us what sort of causal 24
connection, if any, must be demonstrated between a defendant's 25
40

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New York activities and a plaintiff's "claim" under the New 1
York long-arm statute's nexus requirement. Some courts have 2
interpreted the Court of Appeals' decisions in McGowan v. 3
Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981), 4
and similar cases, as holding that N.Y. C.P.L.R. § 302(a)(1) 5
contains a nexus requirement that is considerably stricter than 6
its constitutional analogue. See Graphic Controls Corp. v. 7
Utah Med. Prods., Inc., 149 F.3d 1382, 1386-87 (Fed. Cir. 1998) 8
(concluding that the statutory nexus requirement has been 9
"interpreted very narrowly" by the New York Court of Appeals); 10
Beacon Enters, Inc. v. Menzies, 715 F.2d 757, 764-65 & n.6 (2d 11
Cir. 1983) (stating that N.Y. C.P.L.R. § 302(a)(1) requires 12
proof of "a strong nexus," meaning "'a direct relation between 13
the cause of action and the in-state conduct'" (quoting 14
Fontanetta v. Am. Bd. of Internal Med., 421 F.2d 355, 357 (2d 15
Cir. 1970))); Talbot v. Johnson Newspaper Corp., 123 A.D.2d 16
147, 149, 511 N.Y.S.2d 152, 154 (3d Dep't 1987) ("A defendant 17
may not be subject to personal jurisdiction under [N.Y. 18
C.P.L.R. § 302(a)(1)] simply because her contact with New York 19
was a link in the chain of events giving rise to the cause of 20
action[.]"), aff'd, 71 N.Y.2d 827, 527 N.Y.S.2d 729, 522 N.E.2d 21
1027 (1988). Those interpretations appear to be consistent 22
with the view that the New York long-arm statute requires that 23
the defendant's contacts with New York be the "proximate cause" 24
41

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of the plaintiff's injuries. Cf., e.g., Mass. Sch. of Law at 1
Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 35 (1st Cir. 1998) 2
(concluding that, to comport with the Due Process Clause, the 3
exercise of specific jurisdiction requires proof that the 4
defendant's forum contacts were the proximate cause of the 5
plaintiff's injury); see generally Dudnikov v. Chalk & 6
Vermilion Fine Arts, Inc., 514 F.3d 1063, 1078-79 (10th Cir. 7
2008) (describing "proximate cause" approach and comparing it 8
to other approaches); O'Connor v. Sandy Lane Hotel Co., 496 9
F.3d 312, 318-19 (3d Cir. 2007) (same). This view may find 10
support in the text of the long-arm statute itself, insofar as 11
it provides jurisdiction only for a plaintiff's "cause of 12
action arising from" an enumerated act by the defendant. N.Y. 13
C.P.L.R. § 302(a). 14
Other courts have assumed or suggested, however, that 15
the nexus requirement of the New York long-arm statute is 16
relatively permissive. See, e.g., Sole Resort, 450 F.3d at 104 17
(implying that the nexus requirement is met unless "the event 18
giving rise to the plaintiff's injury had, at best, a 19
tangential relationship to any contacts the defendant had with 20
New York"); PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1109 21
(2d Cir. 1997) ("A cause of action arises out of a defendant's 22
New York transactions when it is 'sufficiently related to the 23
business transacted that it would not be unfair to deem it to 24
42

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arise out of the transacted business.'" (quoting Hoffritz for 1
Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 59 (2d Cir. 2
1985))). These interpretations evoke the "substantial 3
connection" or "discernible relationship" approaches, O'Connor, 4
496 F.3d at 319-20, and reflect the view that the proper test 5
for satisfaction of the nexus requirement should not be 6
causally based. See, e.g., Vons Cos., Inc. v. Seabest Foods, 7
Inc., 14 Cal. 4th 434, 456, 475, 926 P.2d 1085, 1099, 1112 8
(1996) (adopting a "substantial nexus or connection" approach 9
in applying the California long-arm statute and, in rejecting 10
other approaches, questioning the wisdom "of importing a 11
causation test from tort law to measure a matter that is 12
fundamentally one of relationship and fairness rather than 13
causation"). But cf. Chew v. Dietrich, 143 F.3d 24, 29-30 (2d 14
Cir.) (suggesting in dicta that the "relatedness" test under 15
the Due Process Clause may require proof of either but-for or 16
proximate causation), cert. denied, 525 U.S. 948 (1998). To 17
the extent that the Court of Appeals determined in Kreutter and 18
McGowan that the nexus requirement may be satisfied by a 19
showing of a "substantial relationship" or an "articulable 20
nexus," respectively, see Kreutter, 71 N.Y.2d at 467, 527 21
N.Y.S.2d at 198, 522 N.E.2d at 43; McGowan, 52 N.Y.2d at 272, 22
437 N.Y.S.2d at 645, 419 N.E.2d at 323, it would appear as 23
though no showing of causation is required by N.Y. C.P.L.R. 24
43

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§ 302(a)(1). Cf. Thomason v. Chem. Bank, 234 Conn. 281, 290, 1
661 A.2d 595, 600-01 (1995) (concluding, as to Connecticut's 2
long-arm statute providing specific jurisdiction over cases 3
that "arise out of" a defendant's forum contacts, that the 4
statute "does not require a causal connection between the 5
defendant's forum-directed activities and the plaintiffs' 6
lawsuit"). 21 But we think the New York Court of Appeals is in a 7
better position to respond to that question than are we. 8
b. What is a "claim" for purposes of N.Y. C.P.L.R. 9
§ 302(a)(1)? 10
Further complicating the analysis is a lack of 11
clarity regarding what must "aris[e] from" a defendant's New 12
York contacts. Although it is well-established that the nexus 13
inquiry requires us to decide whether "there is a substantial 14
21 Complicating matters, an approach has begun to emerge in
the federal district courts that a plaintiff's claim may only
arise from a defendant's use of a correspondent banking account
in New York where the defendant's use of such an account was
"clearly 'at the very root' of the action." Tamam, 677 F. Supp.
2d at 727-29; see also Licci, 704 F. Supp. 2d at 407; Daventree,
349 F. Supp. 2d at 762; Correspondent Servs. Corp., 120 F. Supp.
2d at 405. It is not clear to us whether this "very root of the
action" formulation is consistent with the constructions of the
nexus requirement under N.Y. C.P.L.R. § 302(a)(1) elaborated by
Kreutter and McGowan.
It also remains unclear whether it is possible that a
plaintiff's cause of action might bear an "articulable nexus" but
not a "substantial relationship" (or vice versa) to a defendant's
New York-based contacts. Cf. Helicopteros, 466 U.S. at 415 n.10
(reserving the question "whether the terms 'arising out of' and
'related to' describe different connections between a cause of
action and a defendant's contacts with a forum").
44

-- 44 of 55 --

relationship between the transaction and the claim asserted," 1
Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 198, 522 N.E.2d at 2
43 (emphasis added), it is not clear whether the plaintiffs' 3
"claim" is to be understood more loosely as the factual 4
circumstances surrounding the harm suffered by a plaintiff, or 5
more strictly as the doctrinal elements of a particular theory 6
of recovery. Cf., e.g., Agency Rent A Car System, Inc. v. 7
Grand Rent A Car Corp., 98 F.3d 25, 31 (2d Cir. 1996) 8
(comparing the elements of plaintiff's cause of action to 9
defendant's forum contacts). And if a "claim" refers to the 10
elements of a cause of action, it is unclear whether the 11
relevant element here is the plaintiffs' "injuries" or the 12
defendant's wrongful act (referred to in the tort context as a 13
"breach of duty") –- or perhaps both. See, e.g., Consol. Rail 14
Corp. v. Gottshall, 512 U.S. 532, 550-51 (1994) (noting that 15
"traditional tort concepts" include "injury" and "breach of 16
duty"). In other words, for sufficient nexus to exist, must 17
the plaintiffs' injuries –- the deaths and injuries in Israel 18
–- "aris[e] from" the defendant's use of a New York 19
correspondent bank account, or must the defendant's alleged 20
wrongful act -- LCB's transfer of funds -- "aris[e] from" the 21
use of that account? 22 This distinction is of potential 22
22 Some cases have placed a greater emphasis on the
connection between the plaintiff's injury and the defendant's New
45

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relevance because under plaintiffs' theory of recovery, the 1
injury suffered is causally decoupled from the defendant's 2
wrongful act, 23 and LCB's alleged wrongful act bears a closer 3
relationship to its New York contacts than do the plaintiffs' 4
injuries. This ambiguity regarding the meaning of the term 5
"claim" compounds the previously noted uncertainty as to the 6
meaning of "substantial relationship" for purposes of N.Y. 7
C.P.L.R. § 302(a)(1). 8
York contacts. See Sole Resort, 450 F.3d at 104 (discussing the
"nexus between the parties' New York contacts and the . . . event
giving rise to the plaintiff's injury"); Holness v. Maritime
Overseas Corp., 251 A.D.2d 220, 224, 676 N.Y.S.2d 540, 544 (1st
Dep't 1998) ("[P]laintiff's alleged injury and the tort action
based on it cannot be said to have arisen directly out of
this . . . transaction . . . ."); Chamberlain v. Peak, 155 A.D.2d
768, 769, 547 N.Y.S.2d 706, 707 (3d Dep't 1989) ("[N.Y. C.P.L.R.
§ 302(a)(1)] requires an articulable nexus . . . between the New
York activity . . . and the asserted claim and injury."). Other
cases have focused instead on the link between the defendant's
breach of duty and its New York activities. See Best Van Lines,
490 F.3d at 254 (discussing the "nexus . . . between allegedly
tortious conduct" and New York activity); Hoffritz for Cutlery,
763 F.2d at 60 (finding "a substantial nexus between these [New
York] activities . . . and the alleged breach of the franchise
agreement"); Hugeclick.com, Inc. v. Vanderpol, No. 00 Civ. 1976,
2001 WL 170803, at *2, 2001 U.S. Dist. LEXIS 1619, at *4-*5
(S.D.N.Y. Feb 21, 2001) ("[T]here is a 'substantial relationship'
between these activities and defendant's alleged torts and other
breaches of duty . . . .").
23 See Pls.' Br. at 21 ("[A] [section] 2333 plaintiff need
only show that the defendant knowingly gave material support to
the terrorist group that harmed him, and need not allege or prove
that the specific material support provided by the defendant
caused the harm." (citing Boim II, 594 F.3d at 695-700)).
46

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To be sure, there have been several relatively recent 1
decisions by the New York Court of Appeals and by our Court 2
applying the nexus requirement. These decisions, however, have 3
generally undertaken fact-bound analyses that shed little light 4
on how the nexus requirement should be applied in the instant 5
case. 24 In light of the foregoing, we cannot confidently say 6
whether the New York Court of Appeals would conclude that the 7
24 See, e.g., Sole Resort, 450 F.3d at 104 (nexus
requirement satisfied, in petitioner's action to vacate an
arbitral award, where respondent had New York contacts
"underlying [the] contract that [had] provide[d] for [the]
arbitration"); Grand River Enters. Six Nations, Ltd. v. Pryor,
425 F.3d 158, 167 (2d Cir. 2005) (nexus requirement satisfied, in
plaintiff's antitrust suit, where parties had negotiated and
signed relevant contract in New York), cert. denied, 549 U.S. 951
(2006); Kronisch v. United States, 150 F.3d 112, 130-32 (2d Cir.
1998) (nexus requirement satisfied, in plaintiff's Bivens action,
where defendant drugged plaintiff in Paris but regularly visited
New York in connection with clandestine LSD-testing scheme);
Fischbarg, 9 N.Y.3d at 384, 849 N.Y.S.2d at 508-09, 880 N.E.2d at
29-30 (nexus requirement satisfied, in plaintiff's action to
recover legal fees accrued, where defendants solicited plaintiff
in New York to perform legal services in Oregon); Johnson, 4
N.Y.3d at 520, 797 N.Y.S.2d at 35, 829 N.E.2d at 1203 (nexus
requirement not satisfied because "[p]laintiffs' cause of action
arose out of defendant's allegedly negligent driving in New
Jersey, not from the issuance of a New York driver's license or
vehicle registration [to the defendant]"); see also Copp v.
Ramirez, 62 A.D.3d 23, 30, 874 N.Y.S.2d 52, 58-59 (1st Dep't
2009) (nexus requirement not satisfied, in defamation action,
where defamatory statements were made in New Mexico concerning
events in New York that defendants had witnessed during a one-day
visit to New York three years prior); Opticare Acquisition Corp.
v. Castillo, 25 A.D.3d 238, 246-47, 806 N.Y.S.2d 84, 91 (2d Dep't
2005) (nexus requirement satisfied, in plaintiff's contract and
misappropriation action, where contracts were executed and other
business activities were transacted in New York).
47

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plaintiffs have demonstrated an "articulable nexus" or 1
"substantial relationship" on these facts. 2
2. The ATS and Israeli-Law Claims. The Canadian 3
and Israeli plaintiffs bring claims against LCB under the ATS. 4
The plaintiffs also assert claims against LCB under Israeli law 5
for negligence and breach of statutory duty. LCB moved 6
pursuant to Rule 12(b)(6) to dismiss each of these claims as 7
insufficient as a matter of law. 25 The district court did not 8
reach their merits, dismissing them on jurisdictional grounds 9
alone. Therefore, as with the Anti-Terrorism Act claims, we 10
ask only whether those claims bear an "articulable nexus" to, 11
or a "substantial relationship" with, the business allegedly 12
transacted by LCB in New York. Best Van Lines, 490 F.3d at 246 13
(internal quotation marks omitted). For the reasons already 14
discussed with respect to the plaintiffs' Anti-Terrorism Act 15
claims, however, we find that inquiry difficult. 16
It must be noted that under the current law of this 17
Circuit, as established after the district court decided this 18
25 Before the district court, LCB did not express a view as
to whether New York or Israeli law governed the plaintiffs' tort
claims, but instead argued that the claims would fail regardless
of which law governs. The district court, in dismissing these
claims for lack of personal jurisdiction, did not reach the
choice-of-law question, and the parties have not briefed it on
appeal. Therefore, insofar as we refer to these claims as
"Israeli law" claims, we do not intend to signal any view
regarding the choice-of-law question.
48

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case, the ATS claims against LCB cannot be maintained in any 1
event because the ATS does not provide subject matter 2
jurisdiction to enable us to entertain civil actions against 3
corporations for violations of customary international law. 4
Kiobel v. Royal Dutch Petro. Co., 621 F.3d 111 (2d Cir. 2010), 5
cert. granted, 132 S. Ct. 472 (2011). Based on the imminence 6
of the Supreme Court's review of Kiobel, however, and the fact 7
that the jurisdictional inquiry applicable to all of 8
plaintiffs' claims appears to be similar, we reserve decision 9
as to the ATS claims. We think it the more prudent course to 10
allow the Court of Appeals first to address whether personal 11
jurisdiction exists over each of the plaintiffs' claims, 12
including the ATS claim. 13
Should the Supreme Court reverse our decision in 14
Kiobel, and the Court of Appeals decision (if any) indicate 15
that we have personal jurisdiction over LCB in this case, the 16
ATS claims will likely require further proceedings in the 17
district court. If the Supreme Court affirms in Kiobel or the 18
Court of Appeals indicates that we do not have personal 19
jurisdiction over LCB, we will likely be required to affirm the 20
dismissal of the ATS claims against it on either or both 21
grounds. We will therefore await the decisions of one or both 22
of those courts before reaching a conclusion as to the ATS 23
claims against LCB. 24
49

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* * * 1
In light of the foregoing, we certify the following 2
second question to the Court of Appeals: 3
(2) Do the plaintiffs' claims under the 4
Anti-Terrorism Act, the ATS, or for 5
negligence or breach of statutory duty in 6
violation of Israeli law, "aris[e] from" 7
LCB's transaction of business in New York 8
within the meaning of N.Y. C.P.L.R. 9
§ 302(a)(1)? 10
IV. Certification 11
The rules of this Court provide that "[i]f state law 12
permits, the court may certify a question of state law to that 13
state's highest court." 2d Cir. Local R. 27.2(a); see also Am. 14
Buddha, 609 F.3d at 41–42. Although the parties have not 15
requested certification, we are empowered to pursue it on our 16
own motion. See 10 Ellicott Square Court Corp. v. Mtn. Valley 17
Indem. Co., 634 F.3d 112, 125 (2d Cir. 2011); Kuhne v. Cohen & 18
Slamowitz, LLP, 579 F.3d 189, 198 (2d Cir. 2009). Our decision 19
whether to certify is discretionary. Am. Buddha, 609 F.3d at 20
41. In determining whether to pursue it, we are guided 21
principally by three factors. 22
First, "certification may be appropriate if the New 23
York Court of Appeals has not squarely addressed an issue and 24
other decisions by New York courts are insufficient to predict 25
how the Court of Appeals would resolve it." Id. at 42; see 26
50

-- 50 of 55 --

also 10 Ellicott Square Court Corp., 634 F.3d at 125-26 1
(collecting cases); N.Y. Comp. Codes R. & Regs. tit. 22, 2
§ 500.27(a). Second, "the question on which we certify must be 3
of importance to the state," 10 Ellicott Square Court Corp., 4
634 F.3d at 126 (internal quotation marks and ellipsis 5
omitted), and "its resolution must 'require[] value judgments 6
and important public policy choices that the New York Court of 7
Appeals is better situated than we to make,'" id. (quoting Am. 8
Buddha, 609 F.3d at 42). Third, "we may certify if the 9
question is 'determinative' of a claim before us." Id. (citing 10
N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a)) (other 11
internal quotation marks omitted); see also O'Mara v. Town of 12
Wappinger, 485 F.3d 693, 698 (2d Cir. 2007). 13
Although we need not certify if we are confident that 14
we can correctly resolve the matter at issue ourselves, see, 15
e.g., Best Van Lines, 490 F.3d at 242 n.3, we conclude that the 16
standards for certification are met in the case before us. 17
First, the New York Court of Appeals does not appear to have 18
squarely addressed the jurisdictional questions presented by 19
this case, and we conclude that the decisions of other New York 20
state courts do not enable us to predict with confidence how 21
the Court of Appeals would resolve them. Second, determining 22
the scope of the New York long-arm statute is -- as we have 23
previously noted in certifying other jurisdictional questions, 24
51

-- 51 of 55 --

see, e.g., Am. Buddha, 609 F.3d at 32 -- a task that requires 1
the exercise of "value judgments and important public policy 2
choices," 10 Ellicott Square Court Corp., 634 F.3d at 126, best 3
left to New York's highest court, if possible. Finally, the 4
answers to these questions will be determinative if the Court 5
of Appeals decides that long-arm jurisdiction is lacking in 6
this instance, as all of the plaintiffs' claims against LCB 7
would have to be dismissed. 8
Accordingly, we certify to the New York Court of 9
Appeals the following two questions: 10
(1) Does a foreign bank's maintenance of a 11
correspondent bank account at a financial 12
institution in New York, and use of that 13
account to effect "dozens" of wire 14
transfers on behalf of a foreign client, 15
constitute a "transact[ion]" of business in 16
New York within the meaning of N.Y. 17
C.P.L.R. § 302(a)(1)? 18
(2) If so, do the plaintiffs' claims under 19
the Anti-Terrorism Act, the ATS, or for 20
negligence or breach of statutory duty in 21
violation of Israeli law, "aris[e] from" 22
LCB's transaction of business in New York 23
within the meaning of N.Y. C.P.L.R. 24
§ 302(a)(1)? 25
"As is our practice, we do not intend to limit the 26
scope of the Court of Appeals' analysis through the formulation 27
of our question[s], and we invite the Court of Appeals to 28
expand upon or alter th[ese] question[s] as it should deem 29
appropriate." 10 Ellicott Square Court Corp., 634 F.3d at 126. 30
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V. Constitutional Due Process Limits to Personal 1
Jurisdiction 2
3
For personal jurisdiction over LCB to be permissible, 4
federal constitutional due process standards must also be 5
satisfied. See Chloé, 616 F.3d at 164 ("If the long-arm 6
statute permits personal jurisdiction, the second step is to 7
analyze whether personal jurisdiction comports with the Due 8
Process Clause of the United States Constitution."); accord 9
LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 216, 713 N.Y.S.2d 10
304, 308, 735 N.E.2d 883, 887 (2000). But see D.H. Blair & Co. 11
v. Gottdiener, 462 F.3d 95, 105 (2d Cir. 2006) (suggesting that 12
the application of section 302(a) automatically "meets 13
[constitutional] due process requirements"). Because the 14
district court determined that exercising personal jurisdiction 15
was not authorized by the New York long-arm statute, it was not 16
required to reach the question of whether exercising 17
jurisdiction would comport with the Due Process Clause. 18
Nonetheless, the district court concluded similarly that "[t]he 19
exercise of personal jurisdiction over LCB on the basis alleged 20
by plaintiffs would not comport with constitutional principles 21
of due process." Licci, 704 F. Supp. 2d at 408. 26 We reserve 22
26 On appeal, the plaintiffs do not expressly challenge
that conclusion. Under the circumstances, however, and in light
of the substantial similarity between the statutory and
constitutional inquiries, we do not think that the plaintiffs
have forfeited their argument in this respect -- nor does LCB
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decision on this issue. We will address it, if necessary, when 1
this case returns to us following the New York Court of 2
Appeals' disposition of our certification request. See 3
Ehrenfeld, 489 F.3d at 547. Accordingly, nothing in this 4
opinion is intended, or should be read, to indicate our view as 5
to whether jurisdiction in this case would pass Fourteenth 6
Amendment muster. 7
CONCLUSION 8
For the foregoing reasons and pursuant to New York 9
Court of Appeals Rule 500.27 and Local Rule 27.2 of this court, 10
we certify the following two questions to the New York Court of 11
Appeals: 12
(1) Does a foreign bank's maintenance of a 13
correspondent bank account at a financial 14
institution in New York, and use of that 15
account to effect "dozens" of multimillion 16
dollar wire transfers on behalf of a 17
foreign client, constitute a 18
"transact[ion]" of business in New York 19
within the meaning of N.Y. C.P.L.R. 20
§ 302(a)(1)? 21
(2) If so, do the plaintiffs' claims under 22
the Anti-Terrorism Act, the ATS, or for 23
negligence or breach of statutory duty in 24
violation of Israeli law, "aris[e] from" 25
LCB's transaction of business in New York 26
within the meaning of N.Y. C.P.L.R. 27
§ 302(a)(1)? 28
29
argue that they have.
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It is hereby ORDERED that the Clerk of this Court 1
transmit to the Clerk of the New York Court of Appeals this 2
opinion as our certificate, together with a complete set of the 3
briefs, the appendix, and the record filed in this Court by the 4
parties. The parties shall bear equally any fees and costs 5
that may be imposed by the New York Court of Appeals in 6
connection with this certification. This panel will resume its 7
consideration of this appeal after the disposition of this 8
certification by the New York Court of Appeals. 9
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