Civil Remedies for Terror Victims

As the phenomenon of international terrorism has expanded and evolved in recent years, the range of legal tools available to help compensate victims of terrorism for their injuries and help deter people and corporations from assisting terrorists has also developed. In 1992, Congress enacted a civil remedy provision in the Anti-Terrorism Act, 18 U.S.C. § 2333(a).  Testifying before Congress that year regarding this law’s importance, U.S. State Department Deputy General Counsel Alan Kreczko explained:

This bill … will provide general jurisdiction to our Federal courts and a cause of action for cases in which an American has been injured by an act of terrorism overseas. This bill is a welcome addition to our arsenal against terrorists.

Section 2333(a) states:

Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefore in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.

Section 2333(a) is a critical component of the U.S.’s counter-terrorism arsenal.  As Judge Richard Posner explained in Boim v. Holy Land Foundation for Relief & Development – a landmark case brought by the surviving family members of a victim of a Hamas roadside shooting who alleged that the Texas-based Holy Land Foundation’s fundraising efforts for Hamas rendered it civilly liable to them:

[I]t would not be enough to impose liability on a donor for violating section 2333, even if there were no state-of-mind requirements in sections 2339A and 2332, that the average person or a reasonable person would realize that the organization he was supporting was a terrorist organization, if the actual defendant did not realize it. That would just be negligence. But if you give a gun you know is loaded to a child, you know you are creating a substantial risk of injury and therefore your doing so is reckless and if the child shoots someone you will be liable to the victim. . . . A knowing donor to Hamas-that is, a donor who knew the aims and activities of the organization-would know that Hamas was gunning for Israelis  . . . that Americans are frequent visitors to and sojourners in Israel, that many U.S. citizens live in Israel . . . and that donations to Hamas, by augmenting Hamas's resources, would enable Hamas to kill or wound, or try to kill, or conspire to kill more people in Israel.

In the years since § 2333(a)’s passage, Osen LLC has played a leading role in developing and clarifying the law of civil terrorism, in landmark cases which include Linde v. Arab Bank plc, Strauss v. Crédit Lyonnais S.A., and Julin v. Chiquita Brands International, Inc.  

 

As one district court recently noted, “this case … [is] unusually complex in terms of facts, law, and case management; and the plaintiffs' lawyers have demonstrated their unusual qualifications and experience to handle them.”

 

The Firm has not only helped develop the substantive law, but also impacted the way civil terrorism cases are litigated. These not only include litigating the substantive elements of the claims, but also nuts-and-bolts litigation issues, ranging from how courts deal with foreign bank secrecy issues to the proper scope of expert testimony in terrorism cases, to whether claims should be litigated in U.S. or foreign courts.

 

In a March 29, 2008 editorial discussing parallel criminal and civil litigation against Chiquita Brands for its acknowledged transmission of funds to Colombian terrorist organizations, the Los Angeles Times highlighted the difference between the criminal and civil legal frameworks, including the civil claims against Chiquita brought under § 2333(a) that Osen LLC is presently litigating:

[W]hen the government caught Chiquita in violation, it graciously agreed to fine the company $25 million -- the precise amount the company had suggested. None of that money, however, will reach the victims of the terrorists that Chiquita's money helped arm. That's why a lawsuit filed this month by the widows of five men killed by the FARC gives such grim satisfaction. It joins several others, also in federal district court in Miami, accusing Chiquita of complicity in the deaths of Colombians killed by the two paramilitary groups. This most recent suit seeks unspecified damages, but we can only hope the company is punished severely for a business strategy that enabled terrorists in order to protect Chiquita's people and profits.

Finally, it is important to keep in mind that Section 2333(a) is only one potential legal avenue. Depending on the injury, the nationality or circumstances of the plaintiff, and the unique facts and circumstances of the case, other theories of recovery may be viable, ranging from state or common law claims to claims brought under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA). For example, Osen LLC successfully litigated a case against North Korea under the terrorism exception to the FSIA. Civil RICO claims brought for economic injuries resulting from terrorism and/or terror financing are also potentially viable.

 

The landscape of terrorism and terror financing is constantly changing. For victims of terrorism, retaining a law firm with a depth of knowledge, creativity, contacts, resources, experience, and, most importantly, the commitment and tenacity to litigate against some of the biggest corporations in the world is critical. Dozens of law firms world-wide boast of litigating on behalf of terror victims, but often attach their names to cases fought and won by others. Osen LLC doesn’t just collect clients or issue press releases. We litigate cases against some of the largest corporations in the world, which are typically represented by blue-chip “Big Law” defense firms. Our track record of consistent success speaks for itself.