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Date: 02-13-2018

Case Style:

Linde, et al. v. Arab Bank, P.C.

Eastern District of New York Courthouse - Brooklyn, New York

Case Number: 16-2119-cv

Judge: Reena Raggi

Court: United States Court of Appeals for the Second Circuit on appeal from the Eastern District of New York (Queen County)

Plaintiff's Attorney: Peter Raven-Hansen, Gary M. Osen, Ari Ungar, Aaron Schlanger, Shawn Naunton, Michael E. Elsner, John M. Eubanks, , James P. Bonner, Noel J. Nudelman, Lee S. Shalov, Mark S. Werbner, Neal Kumar Katyyal, Jessica L. Ellsworth

Defendant's Attorney: Paul D. Clement, Michael H. McGinley, Nicholas T. Matich, Jonathan D. Siegfriend, Kevin Walsh, Douglas W. Mateyaschuk

Description: The sixteen named plaintiffs on this consolidated appeal are
victims, or the relatives of victims, of three terrorist attacks
perpetrated in Israel by Hamas between March 2002 and June 2003.
Together with hundreds of other alleged victims and the surviving
relatives of victims of alleged Hamas attacks, the named plaintiffs
commenced actions in the United States District Court for the
5
Eastern District of New York to recover compensatory damages
from Arab Bank, PLC (“Arab Bank” or “bank”) under that provision
of the Antiterrorism Act of 1990 (“ATA”) affording a civil remedy.
See Pub. L. No. 1‐1‐519, § 132, 104 Stat. 2240 (1990) (codified at 18
U.S.C. § 2333(a)). Plaintiffs charged the bank with facilitating the
attacks at issue by knowingly providing financial services to Hamas,
Hamas‐controlled charities, and the Saudi Committee for the
Support of the Intifada Al‐Quds (“Saudi Committee”), an entity that
made payments to the families of Hamas suicide bombers.
Following trial, at which the jury found Arab Bank liable for injuries
resulting from twenty‐four terrorist attacks, including the three here
at issue, the district court (Brian M. Cogan, Judge) substantially
denied Arab Bank’s motions for judgment notwithstanding the
verdict and for a new trial pursuant to Fed. R. Civ. P. 50 and 59. See
Linde v. Arab Bank, PLC, 97 F. Supp. 3d 287 (E.D.N.Y. 2015).3 Rather
than proceed to a scheduled bellwether trial on damages, however,
the parties stipulated to the entry of a total damages award of
$100,000,000, which the district court certified as final pursuant to
Fed. R. Civ. P. 54(b). At the same time, the parties entered into a
confidential settlement agreement providing for the bellwether
plaintiffs to be paid various total monetary amounts depending on
whether the certified judgment was affirmed, reversed, or vacated
3 The district court granted Arab Bank relief from the jury’s verdict as to
two of the twenty‐four terrorist attacks on which the jury found liability, based
on an absence of sufficient evidence of attribution to Hamas. See Linde v. Arab
Bank, PLC, 97 F. Supp. 3d at 330–31. Neither that ruling nor those attacks are at
issue on this appeal.
6
on direct appeal. The parties agreed to forgo retrial in the event of
vacatur and remand, as well as any further challenges to the
judgment in any event.4
On this appeal, Arab Bank argues that it was wrongfully denied
judgment notwithstanding the verdict or a new trial because (1) the
district court failed correctly to instruct the jury on the ATA’s “act of
international terrorism” element as defined in 18 U.S.C. § 2331(1);
(2) the bank was unfairly prejudiced by discovery sanctions that
affected the presentation of evidence at trial; and (3) the trial
evidence was insufficient as a matter of law to permit a jury finding
that the bank’s provision of financial services was either a proximate
or but‐for cause of the plaintiffs’ injuries, the latter standard of
which Arab Bank insists is in fact required to prove an ATA claim.
For the reasons stated herein, we conclude that instructional
error as to the ATA’s international terrorism element requires
vacatur and remand. We are not persuaded by plaintiffs’ argument
that we can affirm in any event because any instructional error was
rendered harmless by the jury’s causation finding as well as by
Congress’s post‐trial enactment of the Justice Against Terrorism Act
(“JASTA”), Pub. L. No. 144‐222, 130 Stat. 854 (Sept. 28, 2016), which
extends ATA liability from those who themselves commit acts of
international terrorism to those who aid and abet such acts by
others, see 18 U.S.C. § 2333(d)(2). Nor are we persuaded to reverse
4 The Confidential Appendix detailing the parties’ settlement agreement is
unsealed only to the extent referenced in this opinion.
7
by Arab Bank’s sufficiency challenge to the proof of causation
because causation would not be in dispute if the bank is considered
an aider and abettor of Hamas acts of terrorism, as plaintiffs can
now maintain under JASTA. As Arab Bank concedes, our
determination that instructional error warrants vacatur and remand
makes it unnecessary for us to decide whether any of the bank’s
other challenges warrant such relief because the parties have entered
into a settlement agreement that forgoes retrial on vacatur and
remand in lieu of a specified total money payment to the bellwether
plaintiffs.
Accordingly, based on instructional error, we VACATE the
challenged judgment and REMAND this case to the district court
for such further proceedings as are consistent with this opinion.
BACKGROUND
I. Plaintiffs’ ATA Claims
Plaintiffs sue for injuries sustained during three Hamasassociated
attacks in Israel: (1) the March 2002 bombing of Café
Moment, a coffee shop in downtown Jerusalem; (2) the March 2003
bombing of transit bus no. 37 in Haifa; and (3) the June 2003
machine‐gun ambush of a family driving on Route 60 near
Jerusalem. Plaintiffs allege that these attacks arose in the context of
the “Second Intifada,” a period of intensified violence by Palestinian
terrorist groups in the aftermath of failed peace negotiations
between Israel and the Palestinian Authority in September 2000.
Among those carrying out such violence were suicide bombers
8
supported by terrorist and fundamentalist groups, including the
Islamic Resistance Movement, also known as Harakat al‐Muqawama
al‐Islamiya, or “Hamas,” and its affiliates. For more than two
decades, the United States has formally identified Hamas as a
foreign terrorist organization. See 18 U.S.C. § 2339B(g)(6); 8 U.S.C.
§ 1189(a)(1), (d)(4); Designation of Foreign Terrorist Organizations,
62 Fed. Reg. 52,650 (Oct. 8, 1997).
The ATA affords a civil action for damages to United States
nationals injured by acts of international terrorism. Specifically, it
states that,
[a]ny 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 therefor 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.
18 U.S.C. § 2333(a).
The ATA defines “international terrorism” to mean,
activities that‐‐
(A) involve violent acts or acts dangerous to human life
that are a violation of the criminal laws of the United
States or of any State, or that would be a criminal
violation if committed within the jurisdiction of the
United States or of any State;
9
(B) appear to be intended‐‐
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by
intimidation or coercion; or
(iii) to affect the conduct of a government by mass
destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of
the United States, or transcend national boundaries in
terms of the means by which they are accomplished, the
persons they appear intended to intimidate or coerce, or
the locale in which their perpetrators operate or seek
asylum.
Id. § 2331(1).
Initially, the ATA afforded civil relief only against the
principals perpetrating acts of international terrorism. It provided
no civil action against secondary actors who, while not committing
international terrorist acts themselves, facilitated such acts by others.
See Rothstein v. UBS AG, 708 F.3d 82, 97 (2d Cir. 2013) (holding that
ATA’s “statutory silence on the subject of secondary liability means
there is none”); accord In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d
118, 123–24 (2d Cir. 2013). On September 28, 2016, however,
Congress enacted JASTA, which expands ATA civil liability to reach
“any person who aids and abets, by knowingly providing
substantial assistance [to], or who conspires with the person who
committed such an act of international terrorism.” 18 U.S.C.
§ 2333(d)(2). JASTA expressly states that such secondary liability
10
claims are not temporally limited to terrorist acts occurring after that
statute’s enactment. Rather, aiding and abetting and conspiracy
claims can be asserted “as of the date on which such act of
international terrorism was committed, planned, or authorized.” Id.
An accompanying statutory note further states that JASTA’s
amendment to the ATA applies to any civil action, “(1) pending on,
or commenced after the date” of JASTA’s enactment; and
“(2) arising out of an injury . . . on or after September 11, 2001.” Id.
at Statutory Note (Effective and Applicability Provisions).
Plaintiffs commenced their ATA actions against Arab Bank in
July 2004, i.e., before JASTA’s enactment. Accordingly, so much of
their claim as charged Arab Bank as an aider and abettor of Hamas
acts of terrorism was dismissed. Nevertheless, plaintiffs pursued
their claim on a theory that the bank’s provision of financial services
to Hamas, its leaders, operatives, and affiliated charities itself
constituted an act of international terrorism. In support, they relied
on 18 U.S.C. § 2339B, which makes it a felony knowingly to provide
material support to a designated foreign terrorist organization and
recognizes the provision of financial services to such an organization
as a form of material support, see id. § 2339A(b)(1), B(g)(4).5
5 Soon after these actions were filed, the Office of the Comptroller of the
Currency and the Financial Crimes Enforcement Network investigated Arab
Bank’s New York branch for alleged failures to monitor or report suspected
terror financing, resulting in a $24 million fine and the cessation of U.S.‐dollar
clearing by the bank.
11
II. Procedural History
A. Discovery Sanction
Ensuing discovery was protracted in part by Arab Bank’s
refusal to produce certain requested account records and documents
on grounds that such production would require it to violate the
bank‐secrecy laws of other countries, including Lebanon and Egypt.6
This prompted supervising Magistrate Judge Viktor V. Pohorelsky,
in 2009, to recommend a permissive inference sanction against Arab
Bank that would allow a jury to infer that the bank had provided
financial services to terrorists between 1994 and 2004, and that
would preclude the bank from offering into evidence any
documents that the bank had withheld on bank‐secrecy law
grounds.
Over Arab Bank’s objection, District Judge Nina Gershon, to
whom the case was then assigned, adopted the sanction
recommendation, approving a further jury inference that Arab
Bank’s provision of services to terrorists was knowing, and
prohibiting the bank from making any argument or offering any
evidence of mens rea that might be contained in the withheld
documents. This court declined to conduct either collateral or
mandamus review of the sanction order, see Linde v. Arab Bank, PLC,
6 The bank’s efforts to secure waivers of its bank secrecy obligations from
such countries proved unsuccessful.
12
706 F.3d 92 (2d Cir. 2013), after which the Supreme Court denied a
writ of certiorari, see Arab Bank, PLC v. Linde, 134 S. Ct. 2869 (2014).7
In July 2013, the case was reassigned to Judge Cogan, who
declined to reconsider Judge Gershon’s sanction order and who
ruled that Arab Bank would not be permitted to offer evidence or
arguments as to which it had failed to produce account records,
specifically, evidence that it had adhered generally to counterterrorism
financing standards or that it ultimately had closed the
accounts of designated terrorists.
B. Trial
Prior to trial, Arab Bank moved for summary judgment,
arguing, inter alia, that the ATA required proof of but‐for causation,
which plaintiffs could not provide. The district court denied the
motion, concluding that the ATA required proof only of proximate
causation for which the evidence was not insufficient as a matter of
law.
In the ensuing six‐week trial, which began on August 14, 2014,
evidence showed that Arab Bank is a major international financial
institution headquartered in Jordan and with branches throughout
the world, including in New York, London, Dubai, Singapore,
7 In responding to a Supreme Court request for his views, the Solicitor
General faulted the district court’s sanction order but opined that the matter was
not properly reviewed on a mandamus petition. The Solicitor General has not
sought to be heard on this appeal.
13
Geneva, Paris, Frankfurt, Sydney, and Bahrain. The evidence
further showed that, during the Second Intifada, Arab Bank held
accounts, or processed wire transfers, for known Hamas leaders and
operatives.
For example, plaintiffs adduced evidence that Arab Bank
executed wire transfers for Osama Hamdan, a senior Hamas
spokesman, who held an account at the bank’s Lebanon branch.8
Evidence also showed Arab Bank’s execution of wire transfers for
Ismail Abd Al Salam Haniyeh, who operated at various times as
Hamas’s “prime minister” and head of its political branches. Special
App’x 179. It did the same for Sheik Ahmed Yassin, a founder and
spiritual leader of Hamas, and his wife. Bank employees admitted
their awareness of these persons’ affiliation with Hamas. Moreover,
in response to interrogatories, Arab Bank admitted that, during the
period relevant to this action, it processed 282 fund transfers,
totaling $2,563,275, for relevant foreign terrorist entities and
individuals.
Trial evidence also showed that in the same general period
Arab Bank processed transfers totaling approximately $32,000,000
on behalf of purported charities known to funnel money to Hamas,
including the Al Salah Islamic Society, the Nablus Zakat Committee,
the Al‐Tadamun Islamic Charitable Society, the Union of Good, and
8 A more detailed discussion of the evidence supporting the jury’s liability
verdict can be found in the district court’s thorough post‐trial opinion. See Linde
v. Arab Bank, PLC, 97 F. Supp. 3d at 299–310.
14
subsidiary organizations such as the Saudi Committee. Such
charities used funds to disseminate Hamas propaganda; support
Hamas‐affiliated terrorists; and make payments to the families of
Hamas suicide bombers, prisoners, and operatives. Some bank
transfers were explicitly identified as payments for suicide
bombings. See Linde v. Arab Bank, PLC, 97 F. Supp. 3d at 304–05
(citing letter to bank from Saudi Committee appending “lists of
payments to the families of deceased individuals, whose cause of
death” was “martyrdom operations,” as well as reference to
payment for “family of the martyr Ibrahim Abdul Karim Bani
Awdah”).
At the close of trial, Arab Bank requested that the district court
instruct the jury on (1) the particular requirements of an “act of
international terrorism” under the ATA, see 18 U.S.C. § 2333(a), as
specified in id. § 2331(1); and (2) the need for plaintiffs to prove butfor
causation. In denying the first request, the district court
concluded that the knowing provision of financial services to
terrorists in violation of the material‐support statute, id. § 2339B, is
inherently “an act of international terrorism,” Joint App’x 7068, or at
least an alternative means of proving the ATA’s internationalterrorism
requirement, see infra at n.9 (quoting jury charge). The
district court also reiterated its earlier rejection of a but‐for causation
requirement, and, accordingly, charged only on proximate cause.
On September 22, 2014, the second day of deliberations, the jury
found Arab Bank liable under the ATA for the three terrorist attacks
supporting plaintiffs’ claims, among other attacks not here at issue.
15
C. Post‐Trial Proceedings
Arab Bank reiterated its jury‐instruction and sanction
challenges in unsuccessfully moving for a new trial, judgment
notwithstanding the verdict, or certification of an interlocutory
appeal. See Fed. R. Civ. P. 50, 59; 28 U.S.C. § 1292(b). The district
court proceeded to schedule a bellwether‐damages trial for August
2015. At the parties’ request, that trial was adjourned to May 2016 to
permit settlement discussions.
On May 24, 2016, the parties agreed to, and the district court
entered, a judgment in the total amount of $100,000,000, which was
designated final under Fed. R. Civ. P. 54(b). Arab Bank timely
appealed. Meanwhile, the parties executed a confidential settlement
agreement providing for the bellwether plaintiffs to be paid various
total monetary amounts depending on whether the appeal resulted
in affirmance, reversal, or vacatur of the judgment, but with no new
trial to follow vacatur, and no further review of the judgment in any
event.
DISCUSSION
I. Jurisdiction
Preliminary to discussing the merits of Arab Bank’s appeal, we
consider how, if at all, the parties’ settlement agreement affects our
jurisdiction. Although no party challenges that jurisdiction, we have
an “independent obligation” to determine its existence. In re TPG
Troy, LLC, 793 F.3d 228, 232 (2d Cir. 2015). For the reasons stated
16
herein, we conclude that we possess both statutory and
constitutional authority to decide this appeal.
A. Statutory Authority
We first address the statutory basis for our jurisdiction, as its
absence would obviate the need to determine whether the exercise
of jurisdiction would be constitutional. See Microsoft Corp. v. Baker,
137 S. Ct. 1702, 1712 (2017) (declining to reach constitutional
jurisdictional inquiry where no statutory basis for appellate
jurisdiction existed).
Title 28 U.S.C. § 1291 affords federal courts “jurisdiction to hear
timely appeals from final judgments or from partial final judgments
entered pursuant to Fed. R. Civ. P. 54(b).” Petrello v. White, 533 F.3d
110, 113 (2d Cir. 2008). Rule 54(b) authorizes a district court to enter
partial final judgment “when three requirements have been satisfied:
(1) there are multiple claims or parties, (2) at least one claim or the
rights and liabilities of at least one party has been finally
determined, and (3) the court makes an ‘express[] determin[ation]
that there is no just reason for delay’” of entry of final judgment as
to fewer than all of the claims or parties involved in the action.
Acumen Re Mgmt. Corp. v. Gen. Sec. Nat’l Ins. Co., 769 F.3d 135, 140
(2d Cir. 2014) (alterations in original) (quoting Fed. R. Civ. P. 54(b)).
As relevant here, Rule 54(b) authorizes entry of judgment in favor of
a plaintiff’s damages claims only where there has been a finding of
liability and the court has “fixed the damages.” Western Geophysical
Co. of Am. v. Bolt Assocs., Inc., 463 F.2d 101, 102 (2d Cir. 1972). A
17
grant of “partial summary judgment limited to the issue of liability,
which reserves the issue of damages and other relief is not ‘final’
within the meaning of 28 U.S.C. § 1291,” and, therefore, “not
certifiable pursuant to Rule 54(b),” Acha v. Beame, 570 F.2d 57, 62 (2d
Cir. 1978) (citing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 (1976));
accord Mead v. Reliastar Life Ins. Co., 768 F.3d 102, 110 (2d Cir. 2014).
Here, the district court expressly declined to certify an
interlocutory appeal from a non‐final order reflecting only the jury’s
liability verdict. See 28 U.S.C. § 1292(b) (authorizing district court to
certify otherwise unappealable order that involves “controlling
question of law as to which there is substantial ground for difference
of opinion” and resolution of which “may materially advance the
ultimate termination of the litigation”). Only after the parties
stipulated to a total $100,000,000 damages award did the district
court enter judgment “fix[ing] the damages” in that meaningful
amount. Western Geophysical Co. of Am. v. Bolt Assocs., Inc., 463 F.2d
at 102. The entry of that partial final judgment under Rule 54(b)
confers on us the statutory authority to decide this appeal.
The finality of that judgment is evident from the fact that, if this
court were to affirm, the bellwether plaintiffs would be entitled to
the $100,000,000 damages identified in the judgment and could sue
for enforcement. Arab Bank’s obligations under the settlement
agreement to pay different amounts, depending on the outcome of
this appeal, would have to be enforced in a contract action. See, e.g.,
Hendrickson v. United States, 791 F.3d 354, 358 (2d Cir. 2015)
(explaining that motion to enforce settlement agreement is
18
“fundamentally a claim for breach of a contract”). But that
agreement does not affect the $100,000,000 judgment. Indeed, the
agreement states that, in the event of affirmance, the $100,000,000
final judgment is subsumed within its stated obligation to pay the
bellwether plaintiffs a still higher amount.
In short, this is not a case in which the $100,000,000 damages
award identified in the Rule 54(b) judgment is merely illusory,
securing access only to our opinion on liability while retaining the
option to litigate damages anew on remand. See Rabbi Jacob Joseph
Sch. v. Province of Mendoza, 425 F.3d 207, 210–11 (2d Cir. 2005)
(holding that parties may not engage in “end‐run around the final
judgment rule” by appealing voluntary dismissal without prejudice
(internal quotation marks omitted)); see also Microsoft Corp. v. Baker,
137 S. Ct. at 1712, 1715 (reaching same conclusion where parties
voluntarily dismissed action with prejudice but reserved right to
“revive” claims on reversal). Rather, plaintiffs will be entitled to no
less than $100,000,000 if we affirm the challenged judgment. The
parties’ provision for plaintiffs to recover different, even greater,
amounts depending on the outcome of this appeal thus bears not so
much on the statutory requirement of finality as on the
constitutional requirement of adversity, which we next address.
B. Constitutional Authority
Article III’s limitation of federal court jurisdiction to “Cases”
and “Controversies,” U.S. Const. art. III, § 2, has been interpreted to
require that an “actual controversy” between the parties “be extant
19
at all stages of review, not merely at the time the complaint is filed,”
Campbell‐Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (internal
quotation marks omitted); see ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d
Cir. 2004) (holding that where intervening circumstance deprives
plaintiff of personal stake in outcome of lawsuit at any point during
litigation, action can no longer proceed). Ordinarily, a case is
mooted by settlement, as the “losing party has voluntarily forfeited
his legal remedy by the ordinary processes of appeal or certiorari.”
LaForest v. Honeywell, Int’l Inc., 569 F.3d 69, 73 (2d Cir. 2009) (internal
quotation marks omitted). Although the losing party may seek to
appeal so much of a consent judgment as to which he “expressly
preserved” an objection, our jurisdiction over the dispute remains
limited by the case‐or‐controversy requirement, and “may not be
cured by consent of the parties.” Id. at 74 (internal quotation marks
omitted).
Applying these principles here, we conclude that we possess
constitutional authority to address this appeal because the parties
continue to dispute the legal basis for the jury’s liability
determination and retain a significant financial stake in this appeal
regardless of its outcome as reflected in the considerable variances
in recovery provided in the parties’ settlement agreement. Under
similar circumstances, the Supreme Court has concluded that an
agreement “liquidat[ing]” the damages to which a party is entitled
based upon the decision to grant or deny certiorari, affirm, or
reverse, precluded a mootness determination because the
respondents’ “continued active pursuit of monetary relief,”
20
demonstrated a “definite and concrete [case], touching the legal
relations of parties having adverse legal interests.” Havens Realty
Corp. v. Coleman, 455 U.S. 363, 371 (1982) (internal quotation marks
omitted); see Nixon v. Fitzgerald, 457 U.S. 731, 744 (1982) (same,
where agreement entered after certiorari petition left parties with
“considerable financial stake” in resolution of issue on appeal). Our
sister circuits are in accord on the effects of similar high‐low
settlement agreements. See In re Odes Ho Kim, 748 F.3d 647, 652 (5th
Cir. 2014) (holding dispute not moot where value of promissory note
would be “adjusted” based on resolution of appeal); United States ex
rel. Roby v. Boeing Co., 302 F.3d 637, 641 (6th Cir. 2002) (same, where
parties settled $25 million of disputed value, but agreed to payment
of additional $15 million contingent upon outcome of appeal); Keefe
v. Prudential Prop. & Cas. Ins. Co., 203 F.3d 218, 224 (3d Cir. 2000)
(same, where parties remained “truly adverse with respect to the
critical legal issue that they ask us to resolve” and review of private
settlement agreement demonstrated “significant stake in the
outcome”). We identify no material difference between those
settlements and the parties’ agreement here.
In so ruling, we distinguish this case from those in which
parties, having settled a disputed legal issue, retain only a minimal
stake in the litigation, and proceed on appeal solely as a means of
“gambling.” For example, in Gator.com Corp. v. L.L. Bean, Inc., 398
F.3d 1125, 1132 (9th Cir. 2005), the creator of online pop‐up discount
advertisements appealed from the dismissal on personal jurisdiction
grounds of its complaint, which sought a declaratory judgment that
21
the presentation of pop‐up advertising on L.L. Bean’s website did
not infringe, dilute, or interfere with L.L. Bean’s trademark. See id.
at 1127–28. The Ninth Circuit concluded that the appeal was
mooted by Gator.com’s agreement permanently to discontinue such
advertisements on the website, notwithstanding Gator.com’s
agreement to pay $10,000 if the dismissal was affirmed. See id. at
1131–32. The court reasoned that the parties had settled the issues
presented in the district court—personal jurisdiction and entitlement
to declaratory relief—and appealed solely to bet on the circuit
court’s views on the settled matters. See id. at 1132.
That is not this case. Arab Bank actively disputes liability, and
we are satisfied, upon review of the settlement agreement, that the
contingent monetary obligations presented therein represent the
parties’ efforts reasonably to estimate the plaintiffs’ ability
ultimately to procure the “relief upon which this suit was initially
premised” (as well as the value of avoiding retrial or further
review), not a mere “side bet” as to our views on a settled matter.
Id.; see Allflex USA, Inc. v. Avid Identification Sys., Inc., 704 F.3d 1362,
1367–68 (Fed. Cir. 2013) (contrasting agreement providing for
“rebate” of less than 1% of settlement’s value for prevailing on
appeal with agreement providing “reasonable estimate” of value of
disputed issues).
Accordingly, because we are satisfied as to both our statutory
and constitutional authority to adjudicate this appeal, we proceed to
the merits of Arab Bank’s challenges.
22
II. The Error in Charging the “Act of International Terrorism”
Element of an ATA Claim
We review an urged charging error de novo, but we will vacate
judgment and order a new trial only where (1) the charge “misleads
the jury as to the correct legal standard or does not adequately
inform the jury on the law,” and (2) that error was “prejudicial in
light of the charge as a whole.” Sheng v. M&T Bank Corp., 848 F.3d
78, 86 (2d Cir. 2017) (internal quotation marks omitted). Despite the
obvious care and attention given by the district court to the many
challenges presented by this case, we are obliged to identify
charging error in its instruction on the ATA’s “act of international
terrorism” element and to order vacatur and remand.
The ATA affords a civil remedy to persons injured “by reason
of an act of international terrorism.” 18 U.S.C. § 2333(a). The district
court charged the jury that, as a matter of law, proof that Arab Bank
had violated 18 U.S.C. § 2339B—which criminalizes the provision of
material support to a designated foreign terrorist organization—
necessarily proved the bank’s commission of an act of international
terrorism.9 This was error.
9 The district court charged as follows:
Plaintiffs must also prove that the defendant committed an act of
international terrorism. Plaintiffs allege that the defendant
committed an act of international terrorism by violating 18 U.S.C.,
that is, United States Code, Section 2339B.
23
As we have already observed, “international terrorism” is
statutorily defined in 18 U.S.C. § 2331(1). See supra at Point I
(quoting statute). That text states that for an act to constitute
“international terrorism,” it must violate federal or state law if
committed within this country. See 18 U.S.C. § 2331(1)(A). The
provision of material support to a designated terrorist organization
in violation of § 2339B can certainly satisfy that part of the statutory
definition. But, to qualify as international terrorism, a defendant’s
act must also involve violence or endanger human life. See id.
§ 2331(1)(A). Further, the act must appear to be intended to
intimidate or coerce a civilian population or to influence or affect a
government. See id. § 2331(1)(B). And it must have occurred
primarily outside the territorial jurisdiction of the United States or
transcend national boundaries. See id. § 2331(1)(C); Licci ex rel. Licci
v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 68 (2d Cir. 2012)
(identifying as “separate requirements” of § 2331(1) definition of
international terrorism that act at issue (1) involve violence or
endanger human life; (2) violate federal or state criminal law if
committed in the United States; (3) appear intended to intimidate or
A violation of 18 U.S.C. § 2339B is itself an act of international
terrorism. Therefore, I instruct you as a matter of law, if you find
the plaintiffs have proved by a preponderance of the evidence, that
the defendant violated section 2339B of Title 18, you must find that
plaintiffs have proved that defendant committed an act of
international terrorism.
Special App’x 146.
24
coerce civilian population, influence government policy, or affect
government conduct by specified means; and (4) occur primarily
outside the United States or transcend national boundaries).
We recognize that the ATA’s legislative history references
Congress’s intent to authorize the “imposition of liability at any
point along the causal chain of terrorism,” including by
“interrupt[ing] or at least imperil[ing] the flow of money” to
terrorist groups. S. Rep. No. 102‐342, at 22 (1992); see In re Terrorist
Attacks on Sept. 11, 2001, 714 F.3d at 125 (quoting same).
Nevertheless, legislative history cannot alter plain text that, as here,
expressly defines the acts giving rise to liability. See Connecticut
Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“We have stated
time and again that courts must presume that a legislature says in a
statute what it means and means in a statute what it says there.”);
accord Whitfield v. United States, 543 U.S. 209, 215–16 (2005); United
States v. Marcus, 628 F.3d 36, 44 (2d Cir. 2010). Thus, the court was
required to charge, and the jury obliged to find proved, the
definitional requirements of § 2331(1) to find Arab Bank liable as a
principal under § 2333(a).
To be sure, conduct that violates a material support statute can
also satisfy the § 2331(1) definitional requirements of international
terrorism in some circumstances. Most obviously, a person who
voluntarily acts as a suicide bomber for Hamas in Israel can thereby
provide material support to that terrorist organization while also
committing an act of terrorism himself. The suicide bombing is
unquestionably a violent act whose apparent intent is to intimidate
25
civilians or to influence governments. But the provision of material
support to a terrorist organization does not invariably equate to an
act of international terrorism. Specifically, and as relevant here,
providing financial services to a known terrorist organization may
afford material support to the organization even if the services do
not involve violence or endanger life and do not manifest the
apparent intent required by § 2331(1)(B).
Thus, it was incorrect to instruct the jury that a finding that
Arab Bank provided material support to Hamas in violation of
§ 2339(B) was alone sufficient to prove the bank’s own commission
of an act of international terrorism under § 2333(a). To make that
finding, the jury needed to be instructed on and to find proved all of
§ 2331(1)’s definitional requirements for an act of international
terrorism, including those pertaining to violence or danger and the
apparent intent to intimidate or influence.
Boim v. Holy Land Foundation for Relief and Development, 549 F.3d
685 (7th Cir. 2008) (en banc), relied on by plaintiffs, is not to the
contrary. In Boim, the issue was not whether material support for
terrorism invariably equates to an act of international terrorism.
Rather, the issue was whether a jury could find defendants who had
donated money to Hamas and Hamas‐affiliated charities, knowing
that Hamas used such money to finance the killing of Israeli Jews,
some of whom were American citizens, liable under the ATA for the
1994 Hamas murder in Israel of an American teenager. See id. at 690.
The Boim defendants argued that such financial donations, as a
matter of law, could not be found to be an act of international
26
terrorism subject to ATA liability. The Seventh Circuit rejected that
argument, but not by holding that material support of terrorism is
always an act of international terrorism. See id. Rather, Boim
acknowledged that to succeed on an ATA claim, a plaintiff had to
satisfy the definitional requirements of an act of international
terrorism by proving that the conduct violating a material support
statute also involved violence or endangered human life and
manifested an apparent intent to coerce or intimidate civilians or to
influence or affect governments. See id.
In concluding that a jury could find defendants’ donations to
satisfy these definitional requirements, Boim analogized “[g]iving
money to Hamas” to “giving a loaded gun to a child,” explaining
that, while neither transfer is a violent act, both are acts “dangerous
to human life.” Id. Further, Boim observed that “donations to
Hamas, by augmenting Hamas’s resources, would enable Hamas to
kill or wound, or try to kill” more people in Israel. Id. at 694. And
given such foreseeable consequences, those donations would
“appear to be intended to intimidate or coerce a civilian population
or to affect the conduct of a government by assassination, as
required by section 2331(1) in order to distinguish terrorist acts from
other violent crimes . . . .” Id. (internal quotation marks omitted).
We need not here decide whether we would similarly conclude
that a jury could find that direct monetary donations to a known
terrorist organization satisfy § 2331(1)’s definitional requirements for
an act of terrorism. See Licci ex rel Licci v. Lebanese Canadian Bank,
SAL, 673 F.3d at 68–69 (acknowledging Boim decision without
27
commenting on its reasoning). We conclude only that providing
routine financial services to members and associates of terrorist
organizations is not so akin to providing a loaded gun to a child as
to excuse the charging error here and compel a finding that as a
matter of law, the services were violent or life‐endangering acts that
appeared intended to intimidate or coerce civilians or to influence or
affect governments. That conclusion is only reinforced by our
holding, in the context of a challenge to proof of the causation
element of an ATA claim, that the mere provision of “routine
banking services to organizations and individuals said to be
affiliated with” terrorists does not necessarily establish causation. In
re Terrorist Attacks on Sept. 11, 2001, 714 F.3d at 124. To be sure, the
ATA’s causation and terrorist act elements are distinct, and plaintiffs
argue that Arab Bank’s financial services to Hamas should not be
viewed as routine. But that raises questions of fact for a jury to
decide. Because we cannot conclude that a jury properly instructed
as to all definitional requirements of § 2331(1) would have to find
Arab Bank’s financial services to constitute acts of international
terrorism supporting ATA liability, we adhere to our conclusion that
the identified charging error requires vacatur and remand. See
Morse/Diesel, Inc. v. Trinity Indus., Inc., 67 F.3d 435, 439 (2d Cir. 1995)
(holding charging error required retrial because court could not
know what jury would have done “had it received a correct
instruction”); cf. United States v. Silver, 864 F.3d 102, 119 (2d Cir.
2017) (holding instructional error in criminal trial not harmless
because it was not “clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error”
28
(internal quotation marks omitted)); Renz v. Grey Advert., Inc., 135
F.3d 217, 224 (2d Cir. 1997) (identifying instructional error as
harmless in civil case because prevailing party’s evidence was “so
strong that a correct charge . . . would not have made a difference to
the verdict”).
III. The Instructional Error Was Not Harmless so as to Permit
Affirmance
Plaintiffs offer two further arguments in urging us to affirm
despite such instructional error. First, they submit that the jury’s
causation determination was the functional equivalent of a finding
that Arab Bank’s actions endangered human life and appeared
intended to further terrorist intimidation or coercion. Second, they
maintain that Congress’s post‐trial enactment of JASTA to provide
for “aiding and abetting” ATA liability eliminates the need to prove
that Arab Bank’s own actions involved violence or danger and
appeared intended to intimidate or coerce civilians or to influence or
affect governments. Neither argument persuades us that vacatur
can be avoided.
A charging error can be deemed harmless if the court’s
instructions “amounted to the functional equivalent of the
instruction that should have been given.” Rasanen v. Doe, 723 F.3d
325, 335 (2d Cir. 2013) (emphasis in original). That is not this case.
The proximate cause instruction given told the jury that it had to
find that (1) Arab Bank’s “unlawful acts were a substantial factor in
the sequence of events . . . causing plaintiffs’ injuries,” and (2) those
29
“injuries were reasonably foreseeable or anticipated as a natural
consequence of such acts.” Special App’x 150. The instruction did
not require the jury to find that the services themselves involved
violence or danger to life and that they had the apparent intent to
intimidate, coerce, influence, or affect stated in § 2331(1)(B).
Plaintiffs submit that we required no showing of apparent intent in
Weiss v. National Westminster Bank PLC, 768 F.3d 202, 207 n.6 (2d Cir.
2014). The argument merits little discussion because in Weiss we
addressed the “scienter requirement” of the predicate material
support violation, not the definitional requirements of the ATA. Id.
at 207–08. Thus, the jury’s finding of causation was not the
equivalent of a finding that Arab Bank committed an act of
international terrorism as defined in § 2331(1) so as to render the
identified charging error harmless.
Plaintiffs’ JASTA argument requires a somewhat different
analysis. We agree that plaintiffs are entitled to the benefits of
JASTA’s expansion of ATA liability to aiders and abettors on this
appeal. See Rasanen v. Doe, 723 F.3d at 338 (holding that jury
instructions are properly reviewed in light of law as it stands at time
of appeal rather than at trial). We further agree that, under an
aiding and abetting theory of ATA liability, plaintiffs would not
have to prove that the bank’s own acts constitute international
terrorism satisfying all the definitional requirements of § 2331(1).
Nevertheless, we cannot conclude that the identified error in
charging Arab Bank as a principal is harmless because, in the
absence of any aiding and abetting charge here, we cannot conclude
30
that Arab Bank’s secondary liability on that theory was proved as a
matter of law. See Morse/Diesel, Inc. v. Trinity Indus., Inc., 67 F.3d at
439; cf. United States v. Silver, 864 F.3d at 119. The possibility of
liability on that theory would have to be pursued at a retrial on
remand.
In reaching that conclusion, we are mindful that Congress, in
enacting JASTA, instructed that the “proper legal framework for
how [aiding and abetting] liability should function” under the ATA
is that identified in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983).
18 U.S.C. § 2333 Statutory Note (Findings and Purpose § 5). In
Halberstam, the District of Columbia Circuit observed that, in the
civil context, aiding and abetting liability requires proof of three
elements: (1) “the party whom the defendant aids must perform a
wrongful act that causes an injury,” (2) “the defendant must be
generally aware of his role as part of an overall illegal or tortious
activity at the time that he provides the assistance,” and (3) “the
defendant must knowingly and substantially assist the principal
violation.” 705 F.2d at 487. Halberstam further identified six factors
relevant to determining “how much encouragement or assistance is
substantial enough” to satisfy the third element: (1) the nature of the
act encouraged, (2) the amount of assistance given by defendant,
(3) defendant’s presence or absence at the time of the tort,
(4) defendant’s relation to the principal, (5) defendant’s state of
mind, and (6) the period of defendant’s assistance. Id. at 483–84.
Because this case was tried prior to JASTA’s enactment, the jury
was not instructed, and made no findings, as to the Halberstam
31
elements of civil aiding and abetting, or the factors relevant to the
substantial assistance element. We do not understand the first
element to be in dispute: Hamas operatives carried out the three
attacks underlying plaintiffs’ ATA claims, and those attacks satisfy
all the definitional requirements of international terrorism stated in
§ 2331(1). From the charge given and the verdict returned, we can
also assume that the jury found Arab Bank to have provided
material support in the form of financial services to what it knew
was a designated terrorist organization. See Special App’x 146–48,
161–64. But aiding and abetting an act of international terrorism
requires more than the provision of material support to a designated
terrorist organization. Aiding and abetting requires the secondary
actor to be “aware” that, by assisting the principal, it is itself
assuming a “role” in terrorist activities. Halberstam v. Welch, 705
F.2d at 477. Such awareness may not require proof of the specific
intent demanded for criminal aiding and abetting culpability, i.e.,
defendant’s intent to participate in a criminal scheme as “something
that he wishes to bring about and seek by his action to make it
succeed.” Rosemond v. United States, 134 S. Ct. 1240, 1248 (2014)
(internal quotation marks omitted).10 Nor does awareness require
proof that Arab Bank knew of the specific attacks at issue when it
provided financial services for Hamas. What the jury did have to
10 This is not to say that evidence of intent is irrelevant to an ATA aiding
and abetting claim. Rather, evidence of the secondary actor’s intent can bear on
his state of mind, one of the factors properly considered in deciding whether the
defendant’s assistance was sufficiently knowing and substantial to qualify as
aiding and abetting. See Halberstam v. Welch, 705 F.2d at 484.
32
find was that, in providing such services, the bank was “generally
aware” that it was thereby playing a “role” in Hamas’s violent or
life‐endangering activities. Halberstam v. Welch, 705 F.2d at 477. This
is different from the mens rea required to establish material support
in violation of 18 U.S.C. § 2339B, which requires only knowledge of
the organization’s connection to terrorism, not intent to further its
terrorist activities or awareness that one is playing a role in those
activities. See Holder v. Humanitarian Law Project, 561 U.S. 1, 16–17
(2010).11
There is some record evidence that might permit a jury,
properly instructed as to aiding and abetting, to infer the requisite
awareness. For example, certain communications dating from as
early as 2001, i.e., before the attacks here at issue, could have alerted
the bank that the transfers being requested therein were payments
for suicide bombings. See Linde v. Arab Bank, PLC, 97 F. Supp. 3d at
304. But we cannot conclude that such evidence, as a matter of law,
compels a finding that the bank was aware that by processing future
transfers it was playing a role in violent or life‐endangering acts
whose apparent intent was to intimidate or coerce civilians or to
affect a government. Thus, we are obliged to vacate and remand for
11 Other material support statutes require proof of different mens rea. See 18
U.S.C. § 2339A (requiring proof of knowledge or intent that material support be
used in preparation for or in carrying out specified crimes); id. § 2339C (requiring
proof of unlawful and willful collection or provision of funds with knowledge
funds to be used, at least in part, to carry out terrorist activities). Neither of these
statutes was charged to the jury here and, thus, we consider harmlessness only
by reference to § 2339B.
33
a jury to decide that question. See Catanzaro v. Weiden, 140 F.3d 91,
95 (2d Cir. 1998) (noting that “traditionally a jury resolves questions
about a tortfeasor’s state of mind”); Harrison v. Mo. Pac. R. Co., 372
U.S. 248, 249 (1963) (holding trial court “improperly invaded the
function and province of the jury” in resolving, as a matter of law,
question of whether defendant possessed requisite knowledge).
We reach the same conclusion as to the substantial assistance
element of aiding and abetting. As already noted, Halberstam
explains that whether a defendant’s assistance is “substantial
enough” to constitute aiding and abetting requires consideration of
multiple factors: (1) the nature of the act encouraged, (2) the amount
of assistance given by defendant, (3) defendant’s presence or
absence at the time of the tort, (4) defendant’s relation to the
principal, (5) defendant’s state of mind, and (6) the period of
defendant’s assistance. 705 F.2d at 484–85. Disputed facts pertinent
to these factors and the weight to assign such facts are not matters
that can be determined as a matter of law from the record in this
case. See United States v. Norman, 776 F.3d 67, 79 (2d Cir. 2015)
(“[T]he weight [evidence] is to be accorded is a matter for argument
to the factfinder, not a ground for reversal on appeal.”); Catanzaro v.
Weiden, 140 F.3d at 95. Thus, even if a properly charged jury could
conclude that Arab Bank’s financial services provided substantial
assistance to Hamas’s murderous activities so as to support aiding
and abetting liability, we cannot conclude that such a finding is
compelled as a matter of law, thereby avoiding the need for vacatur
and remand.
34
Nor is a different conclusion warranted because the jury, in
finding causation, was instructed that it had to find that Arab Bank’s
provision of financial services to Hamas was a “substantial and
identifiable cause of the injury that plaintiffs claim.” Special App’x
150. Even if we assume arguendo the correctness of this instruction—
which Arab Bank challenges, see infra at Point IV—the substantiality
inquiry for causation is not identical to the substantiality inquiry for
aiding and abetting. Causation focuses on the relationship between
an alleged act of international terrorism and a plaintiff’s injury. See
Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992) (explaining
that, at common law, proximate causation demands “some direct
relation between the injury asserted and the injurious conduct
alleged”). By contrast, aiding and abetting focuses on the
relationship between the act of international terrorism and the
secondary actor’s alleged supportive conduct. See Halberstam v.
Welch, 705 F.2d at 488 (explaining that aiding and abetting requires
proof that defendant “knowingly and substantially assist the
principal violation”). While some evidence may bear on both
questions, because the inquiries are thus different, we are not
persuaded that the jury’s causation finding means it would have to
have found aiding and abetting liability if properly charged on that
theory. That conclusion is only reinforced by the fact that the
causation finding at trial rested on a predicate finding that Arab
Bank had itself committed an act of international terrorism, which,
as we have already explained supra at Point III, cannot stand because
it is based on instructional error.
35
In sum, because at trial, on a theory that Arab Bank had itself
committed an act of international terrorism injuring plaintiffs, the
jury was incorrectly instructed as to the statutory requirements of
such an act, its verdict finding Arab Bank liable under the ATA
cannot stand. The error was not rendered harmless by either (1) the
jury’s causation finding, which did not require consideration of all
elements of an act of international terrorism; or (2) JASTA’s
amendment of the ATA to authorize aiding and abetting liability
because, even if the record would permit a jury finding of aiding
and abetting, in the absence of any aiding and abetting instruction or
finding, we cannot conclude that secondary liability is compelled as
a matter of law. Accordingly, we vacate the challenged judgment
and remand the case to the district court.
IV. Sufficiency Challenge to Causation Finding
Arab Bank argues that, rather than vacate and remand, we
should reverse the challenged judgment because the trial evidence
was legally insufficient to prove causation under either the
proximate cause standard charged to the jury or the but‐for
causation standard that (the bank contends) should have been
charged. The argument merits little discussion in light of JASTA.
The bank’s causation challenge is based on plaintiffs’ trial
theory that Arab Bank had itself committed an act of international
terrorism by providing material support to Hamas in the form of
financial services, which support was a proximate cause of plaintiffs’
injuries. We need not decide whether the facts here can support
36
such a finding despite In re Terrorist Attacks on Sept. 11, 2001, 714
F.3d at 124 (holding that mere provision of routine banking services
to terrorists does not necessarily support causation). After JASTA,
plaintiffs are not limited to proving their ATA claim on a theory of
Arab Bank’s primary liability. They can now urge Arab Bank’s
liability on the alternative theory that it aided and abetted acts of
terrorism by others, which acts caused plaintiffs’ injuries. See 18
U.S.C. § 2333(d)(2), Statutory Note (Effective and Applicability
Provisions). Arab Bank does not—and cannot—dispute the
sufficiency of the evidence to prove that the Hamas terrorists who
committed the three attacks at issue caused plaintiffs’ injuries,
whether as a matter of proximate or but‐for causation. Thus,
causation provides no ground for reversal.
Rather, vacatur and remand are warranted for the reasons
stated in the preceding points: (1) instructional error precludes
affirming judgment on a primary theory of liability against Arab
Bank; and (2) to the extent plaintiffs can now rely on JASTA, Arab
Bank’s liability as an aider and abettor cannot here be determined as
a matter of law but must be decided by a jury on remand.
If this case were, in fact, to be retried on remand, it might be
appropriate for us to address Arab Bank’s argument as to the
standard of causation required for ATA liability, although, as we
have noted, it appears undisputed that, on a theory of aiding and
abetting liability, there can be no question that Hamas acts of
terrorism satisfy both the proximate and but‐for causation
standards. But, as Arab Bank concedes, once we vacate the
37
judgment and remand on any ground supporting a new trial, we
need not consider its other arguments urging that relief because the
parties’ settlement agreement specifies that there will be no retrial in
any event. Rather, vacatur and remand will result in a specified
monetary payment. Thus, having determined that charging error on
the ATA’s international terrorism element warrants vacatur and
remand, we do not further consider the bank’s challenges as to
either the causation standard charged or the imposition of discovery
sanctions.
CONCLUSION
To summarize, we hold as follows:
1. We have jurisdiction to hear this appeal from a partial final
judgment entered pursuant to Fed. R. Civ. P. 54(b), and the parties’
settlement agreement providing for Arab Bank to pay plaintiffs
different amounts depending on the outcome of this appeal, does
not upset the finality of that judgment or deprive us of a case or
controversy.
2. To constitute an act of international terrorism supporting
civil liability under the ATA, see 18 U.S.C. § 2333(a), a jury must find
that the charged act satisfies the definitional requirements of
international terrorism stated in id. § 2331(1).
3. In this ATA action, it was prejudicial error requiring
vacatur and remand to charge the jury that proof of Arab Bank’s
material support to a known terrorist organization in violation of id.
§ 2339B was by itself sufficient to prove the bank’s own commission
38
of an act of international terrorism as a matter of law. Conduct such
as the provision of financial services can provide material support in
violation of § 2339B without necessarily (a) involving violence or
endangering human life and (b) appearing intended to intimidate or
coerce civilian populations or to influence or affect governments,
both statutory requirements for an ATA act of international
terrorism, see id. § 2331(1).
4. The identified charging error was not rendered harmless
by the jury’s finding of causation because that determination did not
require the jury to find that the bank’s provision of financial services
to Hamas involved the violence or danger to human life or
manifested the apparent intent statutorily required for an act of
international terrorism.
5. The identified charging error was also not rendered
harmless by Congress’s post‐trial amendment of the ATA through
JASTA to authorize civil claims against aiders and abettors as well as
principals. Even if the evidence is sufficient to permit a jury, on
remand, to find that Arab Bank aided and abetted the Hamas acts of
international terrorism that injured plaintiffs, it does not compel that
conclusion as a matter of law.
6. Arab Bank’s sufficiency challenge to the evidence of
causation does not warrant reversal because the challenge is
directed at plaintiffs’ trial theory that the bank itself committed an
act of international terrorism. After JASTA, plaintiffs can defend
against this challenge on an aiding and abetting theory of bank
liability. There is no dispute that the Hamas attacks that Arab Bank
39
is supposed to have aided and abetted caused plaintiffs’ injuries,
both as a matter of proximate and but‐for causation.
7. We need not here decide whether, on remand, the district
court should charge the jury as to proximate or but‐for causation as
such a decision would only be necessary in the event of a new trial,
which the parties, in a settlement agreement, have agreed to forgo in
lieu of a specified money payment.
8. The parties’ agreement to forgo a new trial also makes it
unnecessary to decide whether the district court acted within its
discretion in imposing the challenged discovery sanction. As the
parties concede, a decision by this court to vacate and remand on
any one ground triggers their settlement agreement, thus avoiding
the need to decide whether other grounds also warrant this relief.

Outcome: Accordingly, we VACATE the district court’s judgment and
REMAND the case to the district court for further proceedings
consistent with this opinion.

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