Dana Marie Bernhardt v. Islamic Republic of Iran

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2021 Decided September 6, 2022
No. 21-7018
DANA M ARIE B ERNHARDT, ET AL.,
APPELLANTS
v.
ISLAMIC R EPUBLIC OF IRAN, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02739)
Randy Singer argued the cause for appellants. With him on
the briefs were Kevin A. Hoffman and Rosalyn Singer.
Andrew J. Pincus argued the cause for appellees. With him
on the brief were Mark G. Hanchet and Robert W. Hamburg.
Before: WILKINS and R AO , Circuit Judges, and
R ANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge R AO .
Opinion concurring in part and dissenting in part filed by
Circuit Judge WILKINS .

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R AO , Circuit Judge: An al-Qaeda suicide bomber killed
nine people at Camp Chapman, a secret CIA base in
Afghanistan. Dana Bernhardt and other family members of the
bombing victims (“Bernhardt”) sued HSBC Holdings PLC and
several of its foreign and domestic affiliates under the
Antiterrorism Act. Bernhardt alleges that HSBC helped foreign
banks evade U.S. sanctions and thereby provided material
support to al-Qaeda’s terrorist activities. Bernhardt claims that
HSBC is liable for aiding and abetting and conspiring to bring
about al-Qaeda’s terrorist attack on Camp Chapman.
The district court dismissed the claims against the foreign
HSBC defendants for lack of personal jurisdiction and
dismissed Bernhardt’s aiding and abetting and conspiracy
claims for failure to state a claim. We affirm.
I.
A.
Bernhardt’s claims arise under the Antiterrorism Act of
1990 (“ATA”), Pub. L. No. 101-519, 104 Stat. 2250, as
amended by the Justice Against Sponsors of Terrorism Act
(“JASTA”), Pub. L. No. 114-222, § 4, 130 Stat. 852, 854
(2016) (codified at 18 U.S.C. § 2333(d)). A plaintiff injured by
“an act of international terrorism committed, planned, or
authorized by” a designated foreign terrorist organization can
assert liability against those who aided and abetted the act of
terrorism, or who conspired with the person who committed the
act of terrorism. 18 U.S.C. § 2333(d)(2).1 This liability extends
1 The full text provides:

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to those who “provided material support, directly or indirectly”
to terrorists or terrorist organizations. JASTA § 2(b), 130 Stat.
at 853.2
B.
Since Bernhardt appeals the district court’s dismissal of
her claims, “we accept as true all of the complaint’s factual
allegations and draw all reasonable inferences in favor of the
plaintiffs.” Owens v. BNP Paribas, S.A., 897 F.3d 266, 272
In an action under subsection (a) for an injury
arising from an act of international terrorism
committed, planned, or authorized by an
organization that had been designated as a foreign
terrorist organization under section 219 of the
Immigration and Nationality Act (8 U.S.C. 1189), as
of the date on which such act of international
terrorism was committed, planned, or authorized,
liability may be asserted as to any person who aids
and abets, by knowingly providing substantial
assistance, or who conspires with the person who
committed such an act of international terrorism.
18 U.S.C. § 2333(d)(2).
2 JASTA substantially expanded civil remedies for victims of
international terrorism. Initially, the ATA created a civil cause of
action for the victims of international terrorism. See ATA, § 132(b),
104 Stat. at 2251 (codified as amended at 18 U.S.C. § 2333(a)). The
ATA established principal liability for defendants who proximately
caused a plaintiff’s injury, but not secondary liability for those who
facilitated or aided, yet did not themselves commit, terrorist acts.
Owens v. BNP Paribas, S.A., 897 F.3d 266, 270, 276–78 (D.C. Cir.
2018).

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(D.C. Cir. 2018). The following facts are drawn from the
amended complaint unless otherwise noted.
On December 30, 2009, al-Qaeda operative Humam Khalil
al-Balawi detonated more than thirty pounds of C-4 explosives
and shrapnel strapped to his chest shortly after entering Camp
Chapman, a secret CIA base in Afghanistan. In the months
leading up to the attack, Balawi had been captured and agreed
to infiltrate al-Qaeda and become an informant for the CIA.
The CIA planned to meet with Balawi at Camp Chapman to
strategize about locating and killing al-Qaeda leadership.
Unbeknownst to the CIA, Balawi had continued his allegiance
to al-Qaeda and was feeding information to the CIA while
training to execute the attack. At the direction of al-Qaeda and
donning an al-Qaeda-made suicide vest, Balawi took the lives
of nine people at Camp Chapman, including private security
officers Dane Paresi and Jeremy Wise.
Paresi and Wise were survived by Dana Bernhardt and the
other plaintiffs, who sued under the ATA. Bernhardt alleged
that four HSBC-affiliated financial institutions3 (“HSBC”)
violated U.S. sanctions and thereby provided material support
to al-Qaeda’s terrorist activities. These sanctions restrict the
flow of money to individuals, entities, and countries on the
3 The defendants include HSBC Holdings PLC (“HSBC Holdings”),
a company incorporated in the United Kingdom that owns the U.K.-
based HSBC Bank PLC (“HSBC Bank UK”) and indirectly owns
HSBC North American Holdings Inc. (“HSBC Holdings NA”).
HSBC Holdings NA indirectly owns and controls the fourth
defendant, the U.S.-based HSBC Bank USA, N.A. (“HSBC Bank
US”). Although Bernhardt also named the Islamic Republic of Iran
as a defendant, the claims against Iran are still pending before the
district court and therefore are not before us. See FED. R. CIV. P.
54(b).

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Office of Foreign Assets Control’s (“OFAC”) list of “specially
designated nationals and blocked persons.” The OFAC list
includes state sponsors of terrorism like Iran and “specially
designated global terrorists,” such as al-Qaeda. The list also
includes entities who finance terrorism-related organizations.4
U.S. financial institutions must use this “OFAC filter” to
identify and block financial transactions involving sanctioned
parties. See Exec. Order No. 13,224, §§ 1, 5–7, 66 Fed. Reg.
49,079, 49,079–81 (Sept. 25, 2001) (authorizing the
Department of the Treasury to regulate and designate who
should be sanctioned).
Bernhardt alleges that HSBC evaded the OFAC filter
beginning in the early 1990s and continuing through 2009.
HSBC Bank UK implemented procedures to help sanctioned
entities access and benefit from U.S. financial services. For
instance, such entities would include a “cautionary note” in
their transactions, such as “care sanctioned country,” “do not
mention our name in NY,” or “do not mention Iran.” Based on
these notes, HSBC Bank UK would manually scrub all
references to Iran or a sanctioned entity, which would allow
otherwise illegal transactions to pass through to HSBC Bank
US. This system allowed HSBC Bank US to “process[]
thousands of ‘repaired’ transactions worth billions of dollars.”
HSBC Bank UK would also use “cover payments,” or bank-to-
bank transfers, to avoid disclosing the identity of its customers.
Moreover, HSBC Holdings and HSBC Bank US understaffed
their compliance group and failed to “conduct due diligence on
4 See U.S. Dep’t of State, Terrorism Designations FAQs (Feb. 27,
2018), https://2017-2021.state.gov/terrorism-designations-faqs/
index.html.

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HSBC affiliates.” HSBC continued these practices,
“mesmerized by the potential profits.”
Facing a series of federal investigations, HSBC Bank US
hired an outside auditor, who discovered over 25,000 deceptive
transactions involving Iran that moved more than $19.4 billion
through U.S. financial institutions. HSBC Holdings eventually
settled with the Department of the Treasury for almost $900
million in penalties and admitted it had processed over $164
million “for the benefit of Iran and/or persons in Iran, through
a financial institution located in the United States in apparent
violation of [U.S. sanctions].”5 HSBC also admitted that its
actions had “undermined U.S. national security, foreign policy,
and other objectives of U.S. sanctions programs.” In a separate
deferred prosecution agreement with the Department of Justice,
HSBC Holdings and HSBC Bank US agreed to forfeit over $1
billion dollars and admitted that their conduct caused U.S.
financial institutions “to process payments that otherwise
should have been held for investigation, rejected, or blocked
pursuant to sanctions regulations administered by OFAC.”6
According to Bernhardt, HSBC’s evasion of sanctions
benefitted several HSBC customers with terrorism ties: Bank
5 See U.S. Dep’t of the Treasury, Treasury Department Reaches
Landmark Settlement with HSBC (Dec. 11, 2012),
https://home.treasury.gov/news/press-releases/tg1799.
6 The deferred prosecution agreement focused on drug money
transfers but also mentioned the facilitation of terrorism. See U.S.
Dep’t of Justice, HSBC Holdings Plc. and HSBC Bank USA N.A.
Admit to Anti-Money Laundering and Sanctions Violations (Dec. 11,
2012), https://www.justice.gov/opa/pr/hsbc-holdings-plc-and-hsbc-
bank-usa-na-admit-anti-money-laundering-and-sanctions-
violations.

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Melli, Bank Saderat, and Al Rajhi Bank. Bank Melli, a bank
operated and controlled by the government of Iran, was placed
on OFAC’s list for providing banking services to groups in
Iran’s military that supported “terrorist organizations like
Hezbollah and al-Qaeda.” Bank Saderat is also an Iranian
nationalized bank, listed since 2007 as a specially designated
global terrorist for “facilitat[ing] Iran’s transfer of hundreds of
millions of dollars to Hezbollah and other terrorist
organizations each year.”
HSBC also did substantial business with Al Rajhi Bank,
“one of the largest banks in Saudi Arabia” with over “500
branches and assets totaling $59 billion.” It is primarily owned
by the Al Rajhi family, one member of which was a key
financial contributor to al-Qaeda. In 2003, the CIA reported
that “Islamic extremists have used [Al Rajhi Bank] since at
least the mid-1990s as a conduit for terrorist transactions,” and
“[s]enior Al Rajhi family members have long supported
Islamic extremists and probably know that terrorists use their
bank.” HSBC Holdings ended its relationship with Al Rajhi
Bank in 2005 due to Al Rajhi’s connections with the September
11 and other terrorist attacks, but HSBC Bank US reestablished
relations a year later. A database that HSBC Bank US relied on
for its due diligence “identified Al Rajhi Bank’s most senior
official as having links to terrorism.” HSBC Bank US
nonetheless provided “nearly one billion in US dollars” to Al
Rajhi Bank from 2006 to 2010 and “allowed Al Rajhi Bank to
raise funds and launder money for terrorist organizations.” Al
Rajhi Bank also oversaw the accounts of al-Qaeda charity
fronts.
In sum, Bernhardt maintains the Camp Chapman bombing
was orchestrated, authorized, and executed by al-Qaeda, and
that HSBC aided and abetted the attack “by providing

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substantial assistance to al-Qaeda through the countries,
institutions, and entities that formed part of a terrorism
financing and support network.” In addition, HSBC joined a
“group of conspirators” providing material support to a
conspiracy between al-Qaeda, Iran, and others aimed at
harming the United States through terrorist acts.
C.
The district court dismissed the suit. Bernhardt v. Islamic
Republic of Iran, No. 18-2739, 2020 WL 6743066 (D.D.C.
Nov. 16, 2020). It held there was no specific personal
jurisdiction over the foreign HSBC defendants because
Bernhardt’s injuries from the Camp Chapman bombing did not
sufficiently arise out of or relate to the evasion of sanctions.
Bernhardt failed to link HSBC’s financial malfeasance to al-
Qaeda’s suicide attack on Camp Chapman. The district court
also dismissed the ATA claims against HSBC for failure to
state a claim. As to aiding and abetting, Bernhardt had not
adequately alleged that HSBC was “aware [it was] supporting
al-Qaeda, much less ‘assuming a role’ in al-Qaeda’s violent
activities.” Id. at *5. Because HSBC had no “direct relationship
with al-Qaeda or Balawi” and was merely “mesmerized by the
potential profits,” the court could not plausibly infer the
necessary substantial assistance either. Id. at *6. The district
court also held that Bernhardt failed to state a claim for
conspiracy. Bernhardt had alleged at most that HSBC
conspired to evade the OFAC filter, not that it had conspired
with al-Qaeda to perpetuate terrorist acts. Bernhardt appealed.
II.
We first consider whether the district court could exercise
personal jurisdiction over the foreign HSBC defendants. A
dismissal for lack of personal jurisdiction is reviewed de novo.

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Atchley v. AstraZeneca UK Ltd., 22 F.4th 204, 214 (D.C. Cir.
2022).
Bernhardt alleges only specific personal jurisdiction over
the foreign HSBC defendants based on Federal Rule of Civil
Procedure 4(k)(2).7 Such jurisdiction requires: (1) the
defendant has either been served a summons or waived service;
(2) the claim “arises under federal law”; (3) “the defendant is
not subject to jurisdiction in any state’s courts of general
jurisdiction”; and (4) “exercising jurisdiction is consistent with
the United States Constitution and laws.” FED. R. C IV. P.
4(k)(2); see also Mwani v. bin Laden, 417 F.3d 1, 10 (D.C. Cir.
2005). The parties do not dispute that the first three
requirements are met. HSBC Holdings and HSBC Bank UK
were properly served, Bernhardt’s claims arise under the ATA,
and the foreign HSBC defendants are not subject to any state
court’s jurisdiction. The only dispute is whether exercising
jurisdiction would be consistent with the Constitution, namely
whether the foreign HSBC defendants have “sufficient contacts
with the United States as a whole to justify the exercise of
personal jurisdiction under the Due Process Clause of the Fifth
Amendment.” Mwani, 417 F.3d at 11.
Pleading specific personal jurisdiction under Rule 4(k)(2)
requires demonstrating a close nexus between the United
States, the foreign defendant’s conduct, and the plaintiff’s
claim. The plaintiff must show that the foreign defendant “has
7 Bernhardt has not alleged general personal jurisdiction over the
foreign HSBC defendants, which would require demonstrating that
the defendants’ contacts “are so continuous and systematic as to
render them essentially at home in the forum State.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)
(cleaned up).

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purposefully directed his activities at residents of the forum,”
and that the alleged injuries “arise out of or relate to those
activities.” Id. at 12 (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 (1985)) (cleaned up); see also Int’l Shoe Co.
v. Washington, 326 U.S. 310, 319 (1945). This test ensures that
a district court exercises specific personal jurisdiction only
over those foreign defendants who had “fair warning that a
particular activity may subject them” to U.S. jurisdiction.
Mwani, 417 F.3d at 11 (cleaned up). The Supreme Court
recently explained it is not necessary to demonstrate “a strict
causal relationship between the defendant’s [domestic] activity
and the litigation.” Ford Motor Co. v. Mont. Eighth Jud. Dist.
Ct., 141 S. Ct. 1017, 1026 (2021). Because it is sufficient for
the injuries to “relate to” the defendant’s activities, “some
relationships will support jurisdiction without a causal
showing.” Id. (cleaned up).
Bernhardt alleges the foreign HSBC defendants
purposefully directed their conduct at U.S. markets by
coordinating with HSBC domestic affiliates to evade the
OFAC filter and to facilitate financial transactions in violation
of U.S. sanctions. We assume that was enough for the first
prong of the specific personal jurisdiction inquiry.
Bernhardt’s allegations do not, however, support an
inference that the injuries from the Camp Chapman bombing
arose out of or related to the foreign HSBC defendants’
sanctions evasion. See Atchley, 22 F.4th at 233 (a plaintiff must
allege a “relatedness between the contacts and the claim”). As
we further explain below, see infra Part III.A, Bernhardt tries
to connect the Camp Chapman bombing to HSBC’s sanctions
evasion on behalf of several intermediary banks. For Banks
Melli and Saderat, Bernhardt primarily relies on their OFAC
designations and affiliation with Iran. The complaint alleges

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that Bank Melli was listed as a specially designated national
and blocked person in October 2007 because it provided “a
variety of financial services” to a special division of an Iranian
military group “that promotes terrorism abroad.” Bank Saderat
was similarly listed as a specially designated global terrorist
because of its “transfer of hundreds of millions of dollars to
Hezbollah and other terrorist organizations each year.” These
allegations show possible connections between Banks Melli
and Saderat and terrorism generally, yet they are not enough to
allow us to infer the necessary connection to al-Qaeda
specifically, or that the foreign HSBC defendants’ conduct was
related to Bernhardt’s injuries at al-Qaeda’s hand.
The dissent tries to close this gap by emphasizing the
banks’ ties to Iran and Iran’s ties to al-Qaeda. See Dissenting
Op. 3. But neither Iran’s ownership of Bank Melli and Bank
Saderat nor the HSBC transactions connected to Iran and its
entities are enough to connect HSBC’s conduct to Bernhardt’s
injuries. We have made clear in a similar context that “when an
intermediary is a sovereign state with many legitimate
agencies, operations, and programs,” the country’s designation
as a “state sponsor of terrorism does not reduce the need for
evidence of a substantial connection between the defendant and
a terrorist act or organization.” Owens, 897 F.3d at 276
(cleaned up). Pleading Iran’s involvement does not support an
inference that Bernhardt’s injuries sufficiently related to
HSBC’s conduct because aid to Iran could just as plausibly
benefit its otherwise legitimate operations rather than al-
Qaeda.8
8 The dissent emphasizes that Ford treated ‘“isolated or sporadic
transactions differently from continuous ones’ for personal
jurisdiction purposes.” Dissenting Op. 3 (quoting 141 S. Ct. at 1028

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The allegations tying Al Rajhi Bank to al-Qaeda are also
insufficient. Bernhardt alleges that Al Rajhi Bank’s founder
was one of al-Qaeda’s key financial contributors and that the
bank maintained accounts for al-Qaeda’s charity fronts. These
connections show some connection between Al Rajhi Bank and
al-Qaeda. But the bank’s vast and otherwise legitimate
operations make it impossible to infer that HSBC’s conduct
was connected to al-Qaeda’s attack on Camp Chapman through
Al Rajhi Bank. And as we explain below, Bernhardt fails to
allege any aid flowing indirectly through these intermediary
banks to al-Qaeda, further undercutting the necessary
inference. See infra Part III.A.2.
The allegations here thus stand in stark contrast to those in
Atchley, where we found personal jurisdiction over foreign
corporations. The defendants in that case had allegedly
provided goods to a terrorist group that had overrun the Iraqi
Ministry of Health, and the plaintiffs’ injuries directly related
to the monetization of those goods to promote acts of terrorism.
22 F.4th at 234–36; see also id. at 237 (explaining that the
n.4). But Ford did not hold that any pattern of repeated transactions
in the forum is sufficient to establish specific personal jurisdiction:
rather, the repeated transactions must also relate to the specific claim
at issue. In other words, the relatedness inquiry under Ford “does not
mean anything goes.” 141 S. Ct. at 1026. “In the sphere of specific
jurisdiction, the phrase ‘relate to’ incorporates real limits, as it must
to adequately protect defendants foreign to a forum.” Id. Such limits
are necessary to preserve the distinction between specific and general
jurisdiction “since, as many a curbstone philosopher has observed,
everything is related to everything else.” Cal. Div. of Lab. Standards
Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335 (Scalia, J.,
concurring).

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goods “used to bribe Jaysh al-Mahdi[] were an instrument to
achieve the very wrong alleged”) (cleaned up).
We agree with Bernhardt that she did not need to allege
the OFAC filter evasion caused the Camp Chapman bombing.
See Ford, 141 S. Ct. at 1026. Nor was she required to identify
specific dollars spent on the terrorist attack.9 Nonetheless, she
was required to allege some relation between the sanctions
evasion by the foreign defendants and the injuries suffered in
the terrorist attack. But no such inference is supported by the
complaint. And without allegations supporting a closer
connection between the sanctions evasion and al-Qaeda’s
activities, allowing Bernhardt to sue the foreign HSBC
defendants would collapse the core distinction between general
and specific personal jurisdiction. See Ford, 141 S. Ct. at
1024–25.
The dissent speculates that if the foreign HSBC defendants
“had properly observed the sanctions … it would have
significantly hindered al-Qaeda’s ability to successfully carry
out terrorist attacks like the Camp Chapman bombing.”
Dissenting Op. 5. Yet Bernhardt does not allege that al-Qaeda’s
funding for terrorism depended on transactions with specific
foreign banks who would then work with HSBC to evade U.S.
sanctions. The fact that money is fungible works in both
directions. Given the allegations of al-Qaeda’s extensive access
to foreign banks, a more reasonable inference is that al-Qaeda
9 The Supreme Court has recognized that “[m]oney is fungible” and
that foreign terrorist organizations “do not maintain legitimate
financial firewalls between those funds raised for civil, nonviolent
activities, and those ultimately used to support violent, terrorist
operations.” Holder v. Humanitarian L. Project, 561 U.S. 1, 31
(2010) (cleaned up).

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could have secured terrorism funding from another avenue,
irrespective of whether HSBC evaded U.S. sanctions. Certainly
nothing in the complaint supports the dissent’s conjecture.
Because it would exceed the limits of specific personal
jurisdiction to conclude the foreign HSBC defendants had “fair
warning” that evading the OFAC filter would subject them to
liability under the ATA for aiding and abetting or conspiring
with al-Qaeda to bomb a secret CIA base in Afghanistan,
Mwani, 417 F.3d at 12, we affirm the district court’s dismissal
of claims against the foreign HSBC defendants for lack of
personal jurisdiction.
III.
The district court also dismissed Bernhardt’s ATA aiding
and abetting and conspiracy claims against the remaining
HSBC defendants for failure to state a claim. We review the
district court’s dismissal de novo. Atchley, 22 F.4th at 214.
Assuming the truth of Bernhardt’s factual allegations, we
consider whether she has stated a “plausible claim”—that is,
whether the allegations lead to “the reasonable inference that
the defendant is liable for the misconduct alleged.” Owens, 897
F.3d at 272 (cleaned up). A plaintiff’s claim must rise “above
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A claim cannot survive a motion to dismiss if
based on inferences “unsupported by facts” or legal
conclusions disguised as factual allegations. Owens, 897 F.3d
at 272 (cleaned up). We affirm the dismissal of both claims.
A.
To adequately plead an ATA aiding and abetting claim, a
plaintiff must allege: (1) “an injury arising from an act of
international terrorism”; (2) the act was “committed, planned,

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or authorized by” a designated foreign terrorist organization;
and (3) the defendant “aid[ed] and abet[ted], by knowingly
providing substantial assistance” to an “act of international
terrorism. 18 U.S.C. § 2333(d)(2); see also Atchley, 22 F.4th at
216. The parties do not dispute that the Camp Chapman
bombing was an act of international terrorism; that Bernhardt
and the other plaintiffs were injured by the bombing; or that al-
Qaeda, a designated foreign terrorist organization, was
responsible for the attack.10 Therefore, we evaluate whether
Bernhardt’s allegations demonstrate that HSBC aided and
abetted the bombing by providing substantial assistance to al-
Qaeda.
The ATA does not provide a definition of aiding and
abetting liability, but instead incorporates the analysis in
Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), as
“provid[ing] the proper legal framework for how such liability
should function.” JASTA § 2(a)(5), 130 Stat. at 852.
Halberstam stated that aiding and abetting includes 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 477. It is undisputed that
the Camp Chapman bombing caused Bernhardt’s injuries. We
consider whether the allegations in the complaint allow us to
infer that HSBC was generally aware it played a role in al-
10 Although Balawi detonated the suicide vest, no one disputes he
was acting as an agent of al-Qaeda and that al-Qaeda is “the person
who committed” the Camp Chapman bombing. See Atchley, 22 F.4th
at 217 (explaining that a foreign terrorist organization often “stands
behind the fighters who pull the trigger or detonate the device”).

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Qaeda’s terrorist activities and that HSBC knowingly and
substantially assisted those activities.
1.
In the ATA context, aiding and abetting liability requires
a defendant be “generally aware of its role in an overall illegal
activity from which an act of international terrorism was a
foreseeable risk.” Atchley, 22 F.4th at 220 (cleaned up). To
allege that defendants had such awareness, plaintiffs “must
plead … allegations of the facts or events they claim give rise
to an inference that defendants acted with the requisite mental
state.” Id. at 220–21 (cleaned up). Knowledge and other mental
states may be alleged generally but must at least support a
plausible inference of general awareness. See Ashcroft v. Iqbal,
556 U.S. 662, 686–87 (2009) (citing F ED. R. C IV. P. 8, 9(b)).
Because there is rarely direct evidence of a defendant’s mental
state, the fact finder often must draw inferences from
circumstantial evidence.11 See Halberstam, 705 F.2d at 486
(inferring knowledge absent direct evidence because “it
defie[d] credulity that [the defendant] did not know that
something illegal was afoot”); see also Huddleston v. United
States, 485 U.S. 681, 685 (1988) (explaining that “[e]xtrinsic
acts evidence may be critical to the establishment of” a
defendant’s mental state).
Bernhardt alleges HSBC aided and abetted the Camp
Chapman bombing through its relationship with intermediary
banks that facilitated al-Qaeda’s terrorist activities. When a
plaintiff’s ATA aiding and abetting claim depends on aid
11 We reject Bernhardt’s argument that “extreme recklessness”
satisfies the standard. Because actual awareness is required, the
inquiry is not whether a defendant should have been aware of its role.

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flowing through an intermediary, the general awareness
requirement is satisfied if (1) the defendant was aware of the
intermediary’s connection to the terrorist organization, and (2)
the intermediary is “so closely intertwined” with the terrorist
organization’s illegal activities as to give rise to an inference
that the defendant was generally aware of its role in the
organization’s terrorist activities.12 Honickman v. BLOM Bank
SAL, 6 F.4th 487, 501 (2d Cir. 2021).
Applying these standards, Bernhardt fails to plausibly
allege HSBC was generally aware that its financial dealings
with intermediary banks supported al-Qaeda’s terrorist acts.
With respect to Bank Melli and Bank Saderat, Bernhardt
alleges neither that HSBC was aware of their connections to al-
Qaeda nor that these banks were so closely intertwined with al-
Qaeda to infer HSBC’s general awareness. The complaint
focuses on the fact that these banks were on OFAC’s list of
sanctioned entities. But that alone is insufficient. “[A]iding and
abetting an act of international terrorism requires more than the
provision of material support to a designated terrorist
organization.” Linde v. Arab Bank, PLC, 882 F.3d 314, 329 (2d
Cir. 2018); see also Honickman, 6 F.4th at 491–92, 501
(finding no general awareness despite defendant bank having
clients who were specially designated global terrorists).
According to the complaint, Bank Melli was listed in 2007 for
providing banking services to a terrorist-affiliated group of
12 There is no requirement of specific intent, and a defendant does
not have to “wish[] to bring about” an act of terrorism or “kn[ow] of
the specific attacks at issue.” Linde v. Arab Bank, PLC, 882 F.3d 314,
329 (2d Cir. 2018); see also Atchley, 22 F.4th at 220. Contrary to
Bernhardt’s contentions, the district court applied the correct
standard and did not require a heightened standard of specific intent.

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Iran’s military. Bank Saderat was designated for “facilitat[ing]
Iran’s transfer of hundreds of millions of dollars to Hezbollah
and other terrorist organizations.” These allegations connect
the intermediary banks to terrorism generally but fail to support
an inference that HSBC had general awareness it was playing
a role in al-Qaeda’s terrorist acts.13
Bernhardt also relies on the fact that Bank Melli and Bank
Saderat are nationalized Iranian banks and that Iran has
historically supported terrorist groups, including al-Qaeda. But
as explained above, sovereign nations invariably maintain
legitimate government activities. Iran’s support for terrorism is
not enough to demonstrate HSBC’s general awareness that its
transactions with Iranian banks would support al-Qaeda’s
terrorist acts without some “additional allegations” more
closely connecting these intermediary banks to the “terrorist act
or organization.” Owens, 897 F.3d at 276.
Bernhardt’s allegations regarding Al Rajhi Bank come
closer to demonstrating general awareness but still fall short.
Bernhardt alleges that Al Rajhi Bank was founded by a key
financial contributor to al-Qaeda; “maintained accounts for
many of al-Qaeda’s charity fronts”; advertised the existence of
those accounts to provide al-Qaeda a fundraising mechanism;
and facilitated transactions for terrorists who “provided the al-
Qaeda cell of 9/11 hijackers with financial and logistical
support.” Bernhardt also alleged that members of the Al Rajhi
13 For the same reasons, Bernhardt’s vague allegation that HSBC
Bank US “supplied U.S. dollars to … Islami Bank Bangladesh Ltd.
and Social Islami Bank, despite evidence linking those banks to
terrorism” is not enough to connect HSBC to al-Qaeda. Nor is the
allegation of Al Rajhi Bank smuggling money to Chechnian
extremists relevant to HSBC’s al-Qaeda connections.

-- 18 of 43 --

19
family were aware their bank served as a conduit for al-Qaeda
to move its money around. Taken together, we can plausibly
infer that Al Rajhi Bank maintained connections to al-Qaeda.
Nevertheless, the complaint falls short because Bernhardt
does not allege that HSBC was aware of these connections. The
complaint states that an HSBC senior manager in 2002
expressed concern that “Al Rajhi Bank’s account may have
been used by terrorists,” and that HSBC Bank US in 2006
flagged “Al Rajhi Bank’s most senior official as having links
to terrorism.” These statements are not sufficient to show
HSBC’s awareness because they express only the possibility of
a terrorist connection, say nothing about al-Qaeda specifically,
and focus on conduct occurring years before the bombing.
Therefore, they cannot support the dissent’s inference that
HSBC “had actual knowledge” of any connection between Al
Rajhi Bank and al-Qaeda. Dissenting Op. 8.
Even if we could infer that HSBC was aware of Al Rajhi
Bank’s connections to al-Qaeda, Bernhardt fails to allege that
those connections were so close that HSBC had to be aware it
was assuming a role in al-Qaeda’s terrorist activities by
working with Al Rajhi Bank. See Honickman, 6 F.4th at 501;
see also Siegel, 933 F.3d at 224 (explaining that even when
defendants were “aware that [Al Rajhi Bank] was believed by
some to have links to [al-Qaeda] and other terrorist
organizations,” plaintiffs still had to allege defendants’
awareness that they were “assuming a role in terrorist
activities”) (cleaned up). As the complaint notes, Al Rajhi
Bank has substantial operations and “is one of the largest banks
in Saudi Arabia, with more than 8,400 employees, 500
branches and assets totaling $59 billion.”

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20
Given the extensive legitimate operations of Al Rajhi
Bank—with assets totaling $59 billion—and the absence of any
allegation that a substantial part of these operations involved
al-Qaeda, “HSBC had little reason to suspect that it was
assuming a role in [al-Qaeda’s] terrorist activities.” Siegel, 933
F.3d at 224; cf. Kemper v. Deutsche Bank AG, 911 F.3d 383,
390 (7th Cir. 2018) (“While giving fungible dollars to a
terrorist organization may be dangerous to human life, doing
business with companies and countries that have significant
legitimate operations is not necessarily so. That these business
dealings may violate U.S. sanctions does not convert them into
terrorist acts.”) (cleaned up). The pleadings do not adequately
allege that Al Rajhi Bank was so closely intertwined with al-
Qaeda that we can infer HSBC was aware it was assuming a
role in al-Qaeda’s terrorist activities simply by doing business
with Al Rajhi Bank.14
Bernhardt’s allegations also fall far short of what we have
previously found adequate in the ATA context. In Atchley, for
instance, the plaintiffs alleged the defendants knew the Iraqi
Ministry of Health was “notoriously corrupt” and “under the
control of a terrorist group.” 22 F.4th at 221. Aside from
ubiquitous media reports, the defendants finalized deals with
the Ministry in offices where “armed terrorist fighters
circulated openly and anyone who entered could see [the
14 This conclusion is not affected by the fact that Al Rajhi Bank
publicly advertised its connections to Al-Qaeda charity fronts. Cf.
Dissenting Op. 9. The question of HSBC’s general awareness is
context dependent and turns on the identity of Al Rajhi Bank
considered in the round. Bernhardt alleges some public connection
between Al Rajhi Bank and Al-Qaeda, but her allegations are not
sufficient to demonstrate that Al Rajhi Bank’s transactions with Al-
Qaeda were so pervasive that HSBC should have known that by
doing business with Al Rajhi Bank it was financing terrorism.

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21
terrorist group’s] distinctive flag, weapons, Sadr posters, and
‘Death to America’ slogans on display.” Id. We inferred
general awareness by the defendants because the plaintiffs
plausibly alleged the Ministry was controlled by the terrorist
group and so closely intertwined with it that they were
effectively the same entity. Id. at 224.
Finding general awareness on the facts here would mark
an extension of aiding and abetting liability not supported by
the ATA or our precedent. The general awareness element is
particularly important in indirect aiding and abetting claims to
“avoid subjecting … incidental participants to harsh penalties
or damages.” Halberstam, 705 F.2d at 485 n.14. Under the
ATA, liability is cabined to defendants who aid and abet “an
act of international terrorism.” 18 U.S.C. § 2333(d)(2). HSBC
had client banks with ties to terrorist organizations and has
admitted to helping those banks evade U.S. sanctions. But that
is not sufficient for aiding and abetting liability under the ATA.
While the amendments to the ATA expanded liability for
indirect aid to terrorism, they did not equate the evasion of
sanctions with terrorism liability.15 Bernhardt’s allegations
failed to make the necessary connection to support an inference
that HSBC was generally aware it was playing a role in al-
Qaeda’s terrorist activities.
15 Under the dissent’s expansive interpretation, virtually any bank
that violates U.S. sanctions against an entity with some ties to
terrorism will be liable under the ATA for any subsequent acts of
terrorism. The government has already prosecuted HSBC for
evading sanctions in its transactions with banks having terrorist ties.
But simply alleging knowledge of a bank’s ties to terrorism is not
sufficient to make out liability under the ATA.

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22
2.
Bernhardt’s aiding and abetting claim also fails because
she did not plausibly allege that HSBC “knowingly and
substantially assist[ed] the principal violation.” Halberstam,
705 F.2d at 477.
The ATA states that a defendant “aids and abets” by
“knowingly providing substantial assistance.” 18 U.S.C.
§ 2333(d)(2) (emphasis added). There is significant overlap
between the requirement that the assistance be “knowing” and
the general awareness required by Halberstam. A defendant
who lacks general awareness cannot be said to have knowingly
assisted a foreign terrorist organization. See Honickman, 6
F.4th at 500 (explaining that a defendant need not “know
anything more … than what she knew for the general
awareness element”). Thus, having failed to allege the requisite
general awareness, Bernhardt’s complaint also fails to allege
knowing assistance. Because HSBC’s assistance must be
knowing and substantial, lack of knowing assistance is
sufficient to dismiss Bernhardt’s claim.
It is an independent and alternative ground for affirming
the dismissal that Bernhardt also failed to allege that HSBC
provided “substantial assistance.” Six factors are relevant in
determining substantiality: (1) “the nature of the act
encouraged”; (2) “the amount and kind of assistance given”;
(3) “the defendant’s absence or presence at the time of the tort”;
(4) the defendant’s “relationship to the tortious actor”; (5) “the
defendant’s state of mind”; and (6) the “length of time an
alleged aider-abettor has been involved.” Halberstam, 705 F.2d
at 483–84 (cleaned up); see also Atchley, 22 F.4th at 221. “No
factor alone is dispositive, and the weight of each varies with
the circumstances of the particular claim. What is required is

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23
that, on balance, the relevant considerations show that
defendants substantially assisted the acts of terrorism.”
Atchley, 22 F.4th at 221. Taken together, these factors lead us
to conclude that Bernhardt failed to adequately plead that
HSBC substantially assisted al-Qaeda’s terrorist acts.
The first factor identifies the “nature of the act
encouraged” and “dictates what aid might matter.”
Halberstam, 705 F.2d at 483, 484. Greater access to capital—
the alleged aid—is important to al-Qaeda’s terrorist efforts,
which depend on depositing, transferring, and expending
money. See Gonzalez v. Google LLC, 2 F.4th 871, 905 (9th Cir.
2021) (“Financial support is indisputably important to the
operation of a terrorist organization, and any money provided
to the organization may aid its unlawful goals.”) (cleaned up).
This factor weighs in favor of finding substantial assistance.
The second factor is “significant” and requires considering
the quantity and quality of aid. Halberstam, 705 F.2d at 484. A
plaintiff need not allege that a defendant assisted a foreign
terrorist organization directly. See JASTA § 2(b), 130 Stat. at
853; Atchley, 22 F.4th at 225 (“The statute imposes no
directness requirement.”). It is enough to provide “[f]actual
allegations that permit a reasonable inference that the
defendant recognized the money it transferred to its customers
would be received by the [foreign terrorist organization].”
Honickman, 6 F.4th at 500. The district court thus erred in
requiring Bernhardt to allege that assistance was directed to the
Camp Chapman attack or that HSBC was involved in
transactions that directly benefitted al-Qaeda. See Bernhardt,
2020 WL 6743066, at *6.
The district court’s error was harmless, however, because
even applying the correct standard, the aid was not significant.

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24
Bernhardt alleged that HSBC facilitated over $19 billion in
transactions with Iranian institutions and provided almost $1
billion in currency sales to Al Rajhi Bank. Yet she fails to
allege how much (if any) of that money indirectly flowed to al-
Qaeda. Cf. Siegel, 933 F.3d at 225 (although plaintiffs alleged
the provision of “hundreds of millions of dollars” to an
intermediary, “they did not advance any non-conclusory
allegation that [al-Qaeda] received any of those funds”);
Gonzalez, 2 F.4th at 907 (explaining that the substantiality of
assistance is indeterminable when a complaint is “devoid of
any allegations about how much assistance [the defendant]
provided”). In light of Bernhardt’s failure to allege a close
connection between the foreign banks and al-Qaeda, we cannot
reasonably infer that HSBC provided any aid to al-Qaeda.16
This factor thus severely undermines a finding of
substantiality.
The third factor looks at the defendant’s presence at the
time of the plaintiff’s injury. Halberstam focused on a person’s
16 We are in accord with the dissent regarding the proper legal
standard, although we disagree about whether Bernhardt’s
allegations were sufficient. See Dissenting Op. 11 (citing
Honickman). Bernhardt had to allege “[f]actual allegations that
permit a reasonable inference” that the “money … transferred to [an
intermediary] would be received by” al-Qaeda. Honickman, 6 F.4th
at 500; see also 18 U.S.C. § 2333(d)(2) (requiring a plaintiff to show
a defendant, in fact, “provid[ed] substantial assistance” to a terrorist
organization). “[A]lleg[ing] the general awareness element” can
support that inference, but only if a plaintiff alleges that the
intermediary was “so closely intertwined” with a terrorist
organization that doing business with one was like doing business
with the other. Honickman, 6 F.4th at 499, 500. Bernhardt has not
alleged this closeness or any other form of aid “received by” al-
Qaeda, and thus this factor weighs against Bernhardt.

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25
physical presence in the murder and burglary context. See
Halberstam, 705 F.2d at 488. HSBC was not physically present
at the terrorist attack on Camp Chapman, which may be
sufficient for this factor to weigh against Bernhardt. See
Atchley, 22 F.4th at 223.
Other courts, however, have read Halberstam’s presence
requirement more broadly in light of the ATA’s context, which
attaches liability to all “persons,” including “corporations,
companies, associations, firms, partnerships, societies, and
joint stock companies.” 18 U.S.C. § 2333(d)(1); 1 U.S.C. § 1.
These entities cannot be physically present for an act of
international terrorism, and so presence may be understood in
a transactional sense, such as a bank’s business relations with
a terrorist organization. See Siegel, 933 F.3d at 225 (finding
“presence” to cut against liability when the defendant banks
had cut ties with the intermediary bank ten months before the
relevant terrorist attack). Even from a transactional
perspective, however, we are unable to infer from Bernhardt’s
complaint any HSBC involvement with al-Qaeda before and
leading up to the Camp Chapman bombing.
The fourth factor considers the closeness of any
relationship between the defendant and the terrorist
organization. Bernhardt does not allege a connection between
the foreign banks and al-Qaeda sufficient to infer any
relationship, much less a close one, between HSBC and al-
Qaeda. Cf. Brill v. Chevron Corp., 804 F. App’x 630, 632 (9th
Cir. 2020) (per curiam) (no relationship where Chevron had
only “a contractual relationship with a third party that sold Iraqi
crude oil on the open market,” but did not know “its kickbacks
would be used to provide financial support to the terrorist
organization perpetrating the terrorist activity in Israel”). This
factor also cuts against finding substantiality.

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26
The fifth factor looks to the defendant’s state of mind,
which requires “[k]nowledge of one’s own actions and general
awareness of their foreseeable results.” Atchley, 22 F.4th at
223. While “this factor more powerfully supports aiding-and-
abetting liability of defendants who share the same goals as the
principal or specifically intend the principal’s tort, … such
intent is not required.” Id. The district court thus erred in
requiring Bernhardt to show that HSBC and al-Qaeda were
“one in spirit.” Bernhardt, 2020 WL 6743066, at *6; see also
Atchley, 22 F.4th at 223–224 (explaining that a specific intent
or “one in spirit” requirement is contrary to Halberstam). Even
applying the correct standard, however, this factor cuts against
Bernhardt because, as already discussed, Bernhardt fails to
allege that HSBC provided knowing assistance or was
generally aware that acts of terrorism were the foreseeable
result of its actions.
The final factor looks to the duration of a defendant’s
assistance, which can influence the quality and quantity of aid
and “may afford evidence of the defendant’s state of mind.”
Halberstam, 705 F.2d at 484. Bernhardt alleges a years-long
relationship between HSBC and the foreign banks. But a
lengthy financial relationship does not terrorism assistance
make. Cf. Siegel, 933 F.3d at 225. Because the foreign banks
are global financial institutions with legitimate operations and
uncertain ties to al-Qaeda, we cannot infer substantial
assistance to al-Qaeda from HSBC’s lengthy business
relationships with the foreign banks.
Considering the relevant factors, only the type of monetary
aid alleged supports Bernhardt’s claims, and therefore, “on
balance,” Bernhardt did not adequately plead that HSBC
substantially assisted al-Qaeda’s terrorist acts. Atchley, 22
F.4th at 221.

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27
* * *
While Bernhardt alleges financial wrongdoing and serious
violations of U.S. sanctions, she fails to plausibly allege that
HSBC was generally aware of its role in, or knowingly and
substantially assisted, al-Qaeda’s overall terrorist activities.
We therefore affirm the district court’s dismissal of
Bernhardt’s aiding and abetting claim.
B.
We next analyze the sufficiency of Bernhardt’s ATA
conspiracy claim. To plead a civil conspiracy, a plaintiff must
allege: “(1) an agreement between two or more persons; (2) to
participate in an unlawful act”; “(3) an injury caused by an
unlawful overt act performed by one of the parties to the
agreement; (4) which overt act was done pursuant to and in
furtherance of the common scheme.” Halberstam, 705 F.2d at
477. Bernhardt’s conspiracy claim fails because she has not
adequately alleged an agreement between HSBC and al-Qaeda,
nor a relevant overt act.
An “agreement” in the context of an ATA conspiracy
requires that the defendant “conspire[] with the person who
committed” the terrorist act. 18 U.S.C. § 2333(d)(2).
Therefore, Bernhardt had to allege that HSBC was “pursuing
the same object” as al-Qaeda. Halberstam, 705 F.2d at 487; cf.
United States v. Tarantino, 846 F.2d 1384, 1392 (D.C. Cir.
1988) (proving a conspiracy requires evidence “each
conspirator had the specific intent to further the common
unlawful objective”). The shared objective can be “inferred
from circumstantial evidence,” but the inference must still
“reveal[] a common intent.” Halberstam, 705 F.2d at 480.

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28
Bernhardt alleges no common objective between HSBC
and al-Qaeda. The complaint states that HSBC was trying to
make “substantial profits” by evading sanctions, whereas al-
Qaeda sought to “terrorize the U.S. into retreating from the
world stage”; “use long wars to financially bleed the U.S. while
inflaming anti-American sentiment”; “defend the rights of
Muslims”; and “obtain global domination through a violent
Islamic caliphate.” These objectives are wholly orthogonal to
one another. Bernhardt’s allegations similarly do not support
an inference that HSBC evaded sanctions with the object of
funding terrorism. In the absence of any alleged concordance
between HSBC’s and al-Qaeda’s objectives, Bernhardt’s
conspiracy claim is inadequate. Cf. Gonzalez, 2 F.4th at 881–
82, 907 (rejecting conspiracy claim absent allegations that
“Google tacitly agreed to commit homicidal terrorist acts with
ISIS”).
Bernhardt also fails to allege an overt act in furtherance of
a conspiracy. Under the ATA, the overt act must be the act of
international terrorism that injures the plaintiff. See 18 U.S.C.
§ 2333(d)(2) (providing a cause of action “for an injury arising
from an act of international terrorism”); Halberstam, 705 F.2d
at 477 (explaining that civil conspiracy liability requires “an
unlawful overt act” to have “produced an injury and
damages”). Bernhardt’s injury arose from the Camp Chapman
bombing, and therefore Bernhardt had to allege the bombing
was the overt act that furthered a conspiracy between HSBC
and al-Qaeda. But Bernhardt makes no such allegation, nor is
it plausible to infer that an attack on a secret CIA base in
Afghanistan would further HSBC’s alleged objective of
maximizing profits through the evasion of U.S. sanctions. Cf.
Adams v. Alcolac, Inc., 974 F.3d 540, 545–46 (5th Cir. 2020)
(per curiam) (plaintiffs failed to allege a conspiracy where the
overt act—the use of mustard gas—was not done in furtherance

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29
of a broader conspiracy to evade U.S. export controls for a
profit motive). Instead, Bernhardt’s complaint consistently
identifies HSBC’s sanctions evasion as the relevant overt acts.
That conduct is not, however, an overt act of international
terrorism or the source of Bernhardt’s injury under the ATA.
Because Bernhardt fails to allege an agreement between
HSBC and al-Qaeda or an overt act in furtherance thereof, we
affirm the dismissal of Bernhardt’s ATA conspiracy claim.17
* * *
Bernhardt and the other plaintiffs lost family members in
an al-Qaeda suicide bombing. They seek to recover damages
from HSBC, which has admitted to evading sanctions to benefit
foreign banks with ties to terrorist organizations. While the
ATA creates liability for those who materially assist acts of
terrorism, a successful claim requires a plausible connection
between HSBC and al-Qaeda. We cannot infer from the
complaint the necessary connection to maintain the ATA
aiding and abetting and conspiracy claims. Therefore, we
affirm the decision of the district court.
So ordered.
17 Bernhardt’s arguments that a jury should have the opportunity to
identify single or multiple conspiracies is beside the point. The
burden of pleading a plausible conspiracy rests squarely on
Bernhardt, and that burden is not met here. Claims “shy of a plausible
entitlement to relief” cannot avoid dismissal simply because a jury
could rely on evidence deduced at later stages of trial. Twombly, 550
U.S. at 559.

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WILKINS, Circuit Judge, concurring in part and dissenting
in part: Although I concur in the dismissal of the conspiracy
claim,1 I respectfully dissent from the majority’s affirmance of
the dismissal of the foreign HSBC defendants for lack of
personal jurisdiction as well as the dismissal of the aiding-and-
abetting claim. When reviewing the dismissal of a complaint
under the Federal Rule of Civil Procedure 12(b)(6), we must
“accept all the well-pleaded factual allegations of the complaint
as true and draw all reasonable inferences from those
allegations in the plaintiff’s favor.” Banneker Ventures, LLC
v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). The
majority acts in contravention of this standard by failing to
grapple sufficiently with all of the facts alleged in the
complaint, which support exercising personal jurisdiction over
the foreign HSBC defendants and upholding the aiding-and-
abetting claim.
I.
Turning first to the issue of personal jurisdiction over the
foreign HSBC defendants, the essential foundation of specific
jurisdiction is a “relationship among the defendant, the forum,
and the litigation.” Ford Motor Co. v. Mont. Eighth Jud. Dist.
Ct., 141 S. Ct. 1017, 1028 (2021) (internal quotation marks and
citation omitted). Such a relationship is present here. The
majority seems to acknowledge that the Plaintiffs adequately
pled that “the foreign HSBC defendants purposefully directed
their conduct at U.S. markets by coordinating with HSBC
domestic affiliates to evade the OFAC filter and to facilitate
financial transactions in violation of U.S. sanctions.” Maj. Slip
Op. at 10–11. Yet the majority opines that the Plaintiffs failed
to allege that this conduct related to al-Qaeda’s terrorist
activities. Nor did they, in the majority’s view, allege that this
1 In my view, because the Plaintiffs have not adequately pled an
unlawful agreement, we need not decide whether the Plaintiffs
adequately pled an overt act in furtherance of the conspiracy.

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2
sanction evasion “benefited or even impacted al-Qaeda.” Id. at
11. This contention ignores specific facts that were alleged in
the Amended Complaint.
Specifically, the Plaintiffs pled that Bank Saderat, Bank
Melli, and Al Rajhi Bank were all subject to strict economic
sanctions due to their ties to terrorism and their provision of
financial support to terrorist organizations. Am. Compl. ¶¶
102–26. For example, the U.S. Under-Secretary for Terrorism
and Financial Intelligence found in 2006 that Bank Saderat was
responsible for facilitating Iran’s transfer of hundreds of
millions of dollars to terrorist organizations each year and
announced sanctions against Bank Saderat, which was also
designated as a specially designed global terrorist. Id. ¶¶ 103–
04. Accordingly, the U.S. Under-Secretary announced that the
U.S. would “no longer allow a bank like Saderat to do business
in the American financial system, even indirectly.” Id. ¶ 103
(internal quotation marks omitted). Likewise, the Amended
Complaint provides that Bank Melli was designated as a
Specially Designated Nationals and Blocked Persons after
being found to have provided financial services to terrorist
groups in Iran. Id. ¶ 109. “From 2002 to 2006, Bank Melli was
used [by terrorist organizations] to send at least $100 million
to the [Iranian-based terrorist organizations].” Id.
The Plaintiffs further allege that the founder of Al Rajhi
Bank was identified as a key financial contributor to al-Qaeda
in the “Golden Chain Document,” an authenticated al-Qaeda
document that identifies al-Qaeda’s most important financial
benefactors. Id. ¶¶ 115–19. Al Rajhi Bank maintained
accounts for many of al-Qaeda’s charity fronts and as early as
2003, the CIA warned that Al Rajhi Bank served as a conduit
for terrorist transactions. Id. ¶¶ 119–23. Indeed, HSBC’s
internal compliance officials raised concerns about Al Rajhi
Bank being used by terrorists and this prompted HSBC to

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3
temporarily end its relationship with Al Rajhi Bank. Id. ¶¶
175–77. All in all, the HSBC Defendants conducted nearly
25,000 transactions with Iran and Iranian entities (including
Bank Melli and Bank Saderat) valued at approximately $19.4
billion. Id. ¶ 161. Additionally, one of the HSBC Defendants’
largest Banknotes’ customers was Al Rajhi Bank, whom the
HSBC Defendants provided with nearly $1 billion U.S. dollars.
Id. ¶¶ 172, 182.
Drawing all reasonable inferences from the allegations in
the Plaintiffs’ favor, they are sufficient to show that the
activities of the HSBC Defendants related to al-Qaeda and
benefited al-Qaeda. Iran is cited by the State Department as
the most active state sponsor of terrorism in the world, and
since the 1990s “has been operating under an alliance with al
Qaeda . . . by which Iran provides material support for
terrorism including financing, facilitation of travel, training,
safe havens and operational support.” Id. ¶¶ 98–100. Under
this alliance, Iran is a “critical transit point for funding” al-
Qaeda activities and Iran’s network “serves as the core pipeline
through which [al-Qaeda] moves money.” Id. ¶ 95; see also id.
¶ 93 (letter from Osama bin Laden, founder of al-Qaeda,
describing Iran as al-Qaeda’s “main artery for funds”). The
majority contends these allegations are insufficient to show
relatedness, “because aid to Iran could just as plausibly benefit
its otherwise legitimate operations rather than al-Qaeda.” Maj.
Slip Op. at 11. In so ruling, the majority effectively backtracks
from its concession that Ford does not equate relatedness with
causation, and it ignores Ford’s admonition that “[w]e have
long treated isolated or sporadic transactions differently from
continuous ones” for personal jurisdiction purposes. 141 S. Ct.
at 1028 n.4.
Additionally, according to a report from the Treasury
Department, the terrorist who engineered the Camp Chapman

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4
attack was al-Qaeda’s emissary in Iran, was provided safe
haven in Iran, and was allowed to travel freely in and out of the
country with the permission of Iranian officials. Id. ¶ 96–97.
Balawi, the al-Qaeda agent who committed the Camp
Chapman suicide bombing, trained for his mission at a training
camp in Pakistan, which “existed, in large part, through the
funding and material support provided by Iran.” Id. ¶ 229–31;
see also generally id. ¶¶ 65–101 (describing the various ways
Iran has materially supported al-Qaeda). Additionally, and
perhaps most importantly, Al Rajhi Bank has documented ties
with al-Qaeda and the HSBC Defendants were aware of these
ties. Id. ¶¶ 115–26, 175–77.
The Plaintiffs have also pled allegations plausibly
demonstrating that al-Qaeda’s ability to secure funding
impacted the success of its terrorist attacks. Specifically, the
Plaintiffs allege that al-Qaeda’s ability to plan and commit
terrorist attacks required the use of a “global financing and
logistics infrastructure,” and that the Camp Chapman bombing
in particular was a sophisticated attack requiring significant
amounts of time, money, and logistics in order to be successful.
Id. ¶¶ 50–53. The U.S. Under-Secretary of Terrorism and
Financial Intelligence stated:
The maintenance of those terrorist
networks, like al Qaeda, which threaten our
national security, is expensive – even if a
particular attack does not cost much to carry
out. As the 9/11 Commission explained, groups
like al Qaeda must spend money for many
purposes – to recruit, train, plan operations and
bribe corrupt officials for example. If we can
eliminate or even reduce their sources and
conduits of money, we can degrade their ability

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5
to do all of these things, and thus can make them
less dangerous. Id. ¶ 54.
As the majority concedes—a point which bears
repeating—the Plaintiffs are not “required to identify specific
dollars spent on the [Camp Chapman] terrorist attack.” Maj.
Slip Op. at 13. Nor could they. Because as the majority notes,
“‘[m]oney is fungible[,]’” Maj. Slip Op. at 13 n.9 (quoting
Holder v. Humanitarian L. Project, 561 U.S. 1, 31 (2010)), and
“there is reason to believe that foreign terrorist organizations
do not maintain legitimate financial firewalls between those
funds raised for civil, nonviolent activities, and those
ultimately used to support violent, terrorist operations.”
Humanitarian L. Project, 561 U.S. at 31 (internal quotation
marks, citation, and emphasis omitted).
Simply put, the Plaintiffs’ factual allegations are entitled
to a reasonable inference that there is a sufficient relatedness
between the foreign HSBC Defendants’ contacts with the
United States and the Camp Chapman terrorist attack. If the
foreign HSBC Defendants had properly observed the sanctions
against these banks, it would have significantly hindered al-
Qaeda’s ability to successfully carry out terrorist attacks like
the Camp Chapman bombing. Let this sink in for a moment:
the majority holds that where HSBC regularly did business
with a bank founded and run by one of al-Qaeda’s largest
financial supporters, Am. Compl. ¶¶ 114-120, and where the
9/11 Commission found that al-Qaeda hijackers used this same
bank to facilitate their terrorist attacks, id. ¶ 121, and where this
bank advertised how people could deposit funds into al-Qaeda-
front charity accounts held at the bank, id. ¶ 120, we cannot
conclude that doing business with this bank “relates to” any of
al-Qaeda’s subsequent terrorist acts, including at Camp
Chapman. Maj. Op. at 11-12. This is supposedly because the
bank has “vast and otherwise legitimate operations,” id. at 12,

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6
but this reasoning ignores the conceded fungibility of money,
the role that financial support and access to U.S. banknotes play
in supporting terrorist activities, and this bank’s specific record
of funneling money to al-Qaeda.
As such, the foreign HSBC Defendants indeed had “fair
warning” that evading U.S. sanctions and allowing sanctioned
entities that funded terrorist organizations to access the U.S.
financial markets and procure funds to carry out terrorist
attacks would subject them to liability in the United States for
attacks committed against its citizens. Mwani v. bin Ladin, 417
F.3d 1, 11 (D.C. Cir. 2005) (internal quotation marks and
citation omitted).
Accordingly, I would find that the Plaintiffs sufficiently
pled a basis for exercising personal jurisdiction over the foreign
HSBC Defendants.
II.
Now turning to the ATA aiding-and-abetting claim, the
only relevant issues in dispute are whether the complaint would
allow us to infer that the HSBC Defendants were generally
aware that they played a role in al-Qaeda’s terrorist activities
and that the HSBC Defendants knowingly and substantially
assisted those activities. I would find that it does.
In Atchley v. AstraZeneca UK Ltd., we explained that a
“‘defendant need not be generally aware of its role in the
specific act that caused the plaintiff's injury; instead, it must be
generally aware of its role in an overall illegal activity from
which the act that caused the plaintiff's injury
was foreseeable.’” 22 F.4th 204, 220 (D.C. Cir. 2022) (quoting
Honickman v. BLOM Bank SAL, 6 F.4th 487, 496 (2d Cir.
2021)). “[B]ear[ing] in mind the challenges of establishing a

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defendant’s state of mind without the benefit of discovery[,]”
Atchley, 22 F.4th at 220, the Plaintiffs have sufficiently pled
allegations that give rise to an inference that the HSBC
Defendants were generally aware of their role in al-Qaeda’s
terrorist activities.
It cannot be disputed that the complaint sufficiently pleads
that at least one of the sanctioned entities, Al Rajhi Bank, had
extensive, documented ties to al-Qaeda. The Final Report of
the National Commission on Terrorist Attacks Upon the United
States (“9/11 Commission Report”), which was published in
2004,2 revealed the existence of a “Golden Chain” document
that identified al-Qaeda’s most important financial benefactors,
one of which was Sulaiman bin Abdulaziz Al Rajhi
(“Sulaiman”), a founder of Al Rajhi Bank and former Chief
Executive Officer and Chairman of the Board. Am. Compl. ¶¶
114–18. Under the leadership of Sulaiman, Al Rajhi Bank
“maintained accounts for many of al-Qaeda’s charity fronts”
thereby “providing a mechanism for al-Qaeda supporters to
deposit funds directly into those accounts.” Id. ¶¶ 119–20; see
also id. ¶ 122 (CIA detailing Sulaiman’s control over “the
bank’s most important decisions”). The complaint went on to
allege specific examples of Al Rajhi Bank funneling money to
members of al-Qaeda that committed terrorist attacks:
2 While the complaint does not contain this publication date, we may
take judicial notice of such date pursuant to FED. R. EVID. 201. See
Kaspersky Lab, Inc. v. U.S. Dep’t of Homeland Sec., 909 F.3d 446,
464 (D.C. Cir. 2018) (“Among the information a court may consider
on a motion to dismiss are public records subject to judicial notice.”)
(internal quotation marks and citation omitted); see also National
Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report (2004), https://www.ojp.gov/ncjrs/virtual-
library/abstracts/911-commission-report (last visited July 11, 2022).

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For example, money was funneled through Al
Rajhi Bank to an al-Qaeda cell in Hamburg,
Germany, through businessmen Mahmood
Darkazanli and Abdul Fattah Zammar, who in
turn provided the al-Qaeda cell of 9/11 hijackers
with financial and logistical support. One of the
9/11 hijackers, Abdul Aziz al Omari, utilized a
credit card drawn on Al Rajhi Bank when
planning the attacks and, just four days before
the attacks, received a wire transfer from Al
Rajhi Bank into a SunTrust bank account.
Id. ¶ 121. The majority concedes that these allegations allow
us to “plausibly infer that Al Rajhi Bank maintained
connections to al-Qaeda,” yet holds that the complaint does not
allege that the HSBC Defendants were aware of these
connections. Maj. Slip Op. at 18. This contention ignores
altogether the allegations in the complaint from which we can
reasonably infer that the HSBC Defendants had actual
knowledge of these connections. For instance, the Golden
Chain document, which established Al Rajhi Bank’s ties to al-
Qaeda, became public in 2004. Further information about
these ties came to light in the 9/11 Commission Report and
Congressional hearings. Am. Compl. ¶¶ 174–77. We can infer
that the HSBC Defendants were aware of this information
because “public sources such as media articles . . . plausibly
suggest a defendant’s knowledge which can be confirmed
during discovery.” Honickman, 6 F.4th at 502 n.18.
Undaunted by these allegations, the majority maintains
that even if the HSBC Defendants were aware of these
connections, the Plaintiffs “fail[] to allege that those
connections were so close that HSBC had to be aware it was
assuming a role in al-Qaeda’s terrorist activities by working
with Al Rajhi Bank.” Maj. Slip Op. at 19. In the majority’s

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view, because Al Rajhi Bank engaged in “extensive legitimate
operations,” the Plaintiffs had to allege “that a substantial part
of these operations involved al-Qaeda” and that “Al Rajhi Bank
was so closely intertwined with al-Qaeda that we can infer
HSBC was aware it was assuming a role in al-Qaeda’s terrorist
activities simply by doing business with Al Rajhi Bank.” Id. at
20. The Plaintiffs alleged that “Al Rajhi Bank advertised the
existence and numerical designation of the accounts it
maintained for [al-Qaeda-front charities] throughout the
Muslim world, providing a mechanism for al-Qaeda supporters
to deposit funds directly into those accounts.” Am. Compl. ¶
120. The majority therefore holds that a bank that literally
advertises how members of the public can give money to al-
Qaeda (and enables them to do so) is not sufficiently “closely
intertwined” with al-Qaeda to satisfy the general awareness
requirement. The majority’s reasoning appears to be that the
HSBC defendants were only generally aware that its customer,
Al Rahji Bank, supported al-Qaeda’s “legitimate” charitable
activities, rather than al-Qaeda’s terrorism. As we have said in
a different context, “[t]his finding is quite extraordinary,
because it totally defies both logic and common sense.”
Georgetown Hotel v. N.L.R.B., 835 F.2d 1467, 1471 (D.C. Cir.
1987).
Turning to the last element for aiding-and-abetting
liability, the Plaintiffs must allege that the HSBC Defendants
knowingly provided substantial assistance to the Camp
Chapman attack. The knowledge component is satisfied “[i]f
the defendant knowingly—and not innocently or
inadvertently—gave assistance, directly or indirectly.”
Atchley, 22 F.4th at 222 (internal quotation marks and citation
omitted). It cannot be disputed that the HSBC Defendants
knowingly assisted sanctioned entities Bank Melli and Bank
Saderat in evading U.S. sanctions and providing Al Rajhi Bank
with access to U.S. Banknotes despite its knowledge of Al

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Rajhi Bank’s ties to al-Qaeda. See Am. Compl. ¶¶ 37, 200–02
(the HSBC Defendants accepting criminal responsibility for its
conduct in the Deferred Prosecution Agreement); see also
Honickman, 6 F.4th at 500 (noting that the “knowledge”
component does “not require [a defendant] to ‘know’ anything
more . . . than what she knew for the general awareness
element”).
The Plaintiffs have also sufficiently pled that the HSBC
Defendants provided substantial assistance. In determining
whether a defendant has provided substantial assistance, we
consider six factors: “(i) the nature of the act assisted, (ii) the
amount and kind of assistance, (iii) the defendants' presence at
the time of the tort, (iv) the defendants’ relationship to the
tortious actor, (v) the defendants’ state of mind, and (vi) the
duration of assistance.” Atchley, 22 F.4th at 221. Bearing in
mind that “[n]o factor alone is dispositive, and the weight of
each varies with the circumstances of the particular claim[,]”
id., I address each of these factors in turn.
Factors 1 and 2: Nature of Act & Amount and Kind of
Assistance. The Halberstam Court noted that “the nature of the
act involved dictates what aid might matter, i.e., be
substantial.” Halberstam v. Welch, 705 F.2d 472, 484 (D.C.
Cir. 1983) (first emphasis omitted). Therefore, a court may
“apply a proportionality test to particularly bad or opprobrious
acts, i.e., a defendant’s responsibility for the same amount of
assistance increases with the blameworthiness of the tortious
act or the seriousness of the foreseeable consequences.” Id. at
484 n.13. “The particularly offensive nature of an underlying
offense might also factor” on the defendant’s state of mind. Id.
The nature of the act alleged here is terrorism that resulted
in the deaths of nine people. There can be no dispute as to the
severity and heinous nature of terrorist attacks. See Pub. L. No.
114-122, 130 Stat. 852 § 2(a)(1) (“International terrorism is a

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serious and deadly problem that threatens the vital interests of
the United States.”). The amount and kind of assistance that
was provided is also significant. As we already noted in
Atchley, “[f]inancial support is indisputably important to the
operation of a terrorist organization, and any money provided
to the organization may aid its unlawful goals.” 22 F.4th at 222
(internal quotation marks and citations omitted). As
aforementioned, here, the Plaintiffs allege that the HSBC
Defendants devised fraudulent schemes to evade U.S.
sanctions and processed 25,000 deceptive transactions for
sanctioned banks connected to Iran, valued at more than $19.4
billion. Am. Compl. ¶¶ 148–50. The Plaintiffs also allege that
despite actual knowledge of Al Rajhi Bank’s ties to al-Qaeda,
the HSBC Defendants provided nearly $1 billion in U.S.
Banknotes to Al Rajhi Bank leading up to the Camp Chapman
attack. Id. ¶¶ 178–82.
Nevertheless, the majority contends that these allegations
are insufficient because the Plaintiffs failed “to allege how
much (if any) of that money indirectly flowed to al-Qaeda.”
Maj. Slip Op. at 22. The majority’s position contradicts well-
reasoned authority, including our own precedent. “[I]f a
plaintiff plausibly alleges the general awareness element, she
does not need to also allege the [foreign terrorist organization]
actually received the funds.” Honickman, 6 F.4th at 500.
Rather, “[f]actual allegations that permit a reasonable inference
that the defendant recognized the money it transferred to its
customers would be received by the [foreign terrorist
organization] would suffice.” Id. As already outlined above,
the Plaintiffs have pled that the HSBC Defendants provided Al
Rajhi Bank—despite actual knowledge of its ties to al-Qaeda—
with nearly one billion U.S. dollars leading up to the time of
the Camp Chapman attack. As such, the complaint plausibly
alleges that the HSBC Defendants recognized this money
would be used to fund, at least in part, al-Qaeda operations.

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Moreover, even if one considers this assistance to be
relatively trivial, compared to the “extraordinary
blameworthiness” of al-Qaeda’s terrorist attacks, “even
relatively trivial aid could count as substantial.” Atchley, 22
F.4th at 222 (internal quotation marks and citation omitted); see
also Halberstam, 705 F.2d at 488 (explaining the importance
of evaluating acts of assistance “in the context of the enterprise
they aided” rather than in isolation because although the
defendant’s assistance “may not have been overwhelming as to
any given” act in the “five-year life of this criminal operation,”
such assistance “added up over time to an essential part of the
pattern”); Restatement (Third) of Torts § 28 cmt. d (2020)
(“[A] clear understanding of wrongdoing can make a small act
of assistance more blameworthy than it would seem if the
defendant’s knowledge were less certain or precise.”); id.
(“[T]he enormity of a wrong . . . or the intimacy of a
defendant’s knowledge of it may appropriately cause such
lesser acts to be considered aiding and abetting.”). Therefore,
these factors support substantiality.
Factor 3: Presence or Absence at the Time of the Tort.
Because the HSBC Defendants were not physically present at
the scene, this factor may undermine the Plaintiffs’ position.
See Atchley, 22 F.4th at 223 (noting that because the
“defendants were not physically present at the attacks on
plaintiffs[,] [t]his factor cuts against counting” the defendants’
assistance as substantial). However, as the majority notes,
presence could be understood in a transactional sense and the
HSBC Defendants were alleged to have ongoing business
relations with sanctioned entities, particularly Al Rajhi Bank,
before and leading up to the Camp Chapman attack. See Am.
Compl. ¶¶ 161, 182. Thus, I would find that this factor neither
supports nor weighs against substantiality.

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Factor 4: Relationship to Principal. Because “there is no
special relationship here between [the HSBC] defendants and
the principal tortfeasors” I would also “treat this factor as
neither supporting nor detracting from substantiality.” Atchley,
22 F4th at 223.
Factor 5: State of Mind. This factor favors finding
substantiality because Plaintiffs have sufficiently alleged that
the HSBC Defendants provided knowing assistance and such
assistance “evidences a deliberate long-term intention to
participate in an ongoing illicit enterprise.” Halberstam, 705
F.2d at 488. As we have explained, “[a]iding-and-abetting
liability reaches actors . . . who may seek only financial gain
but pursue it with a general awareness of aiding some type of
tort or crime.” Atchley, 22 F.4th at 224. Here, the Plaintiffs
allege the HSBC Defendants wanted to increase its business
and purposefully devised a scheme to evade U.S. sanctions and
engage in illicit transactions with entities that were sanctioned
explicitly for their ties to terrorism. Therefore, the HSBC
Defendants’ alleged state of mind supports a finding of
substantiality.
Factor 6: Duration of Assistance. The Halberstam Court
considered this factor to be particularly “important” because
“[t]he length of time an alleged aider-abettor has been involved
with a tortfeasor almost certainly affects the quality and extent
of their relationship and probably influences the amount of aid
provided as well; additionally, it may afford evidence of the
defendant’s state of mind.” Halberstam, 705 F.2d at 484.
Here, the HSBC Defendants’ alleged aid spanned more than a
decade. Am. Compl. ¶¶ 31–36. Accordingly, this factor
weighs strongly in favor of substantiality.

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In sum, four of the six Halberstam factors weigh strongly
in favor of finding substantial assistance, and the majority errs
by concluding otherwise.
* * *
When Congress amended the ATA in 2016, its purpose
was:
to provide civil litigants with the broadest
possible basis, consistent with the Constitution
of the United States, to seek relief against
persons, entities, and foreign countries,
wherever acting and wherever they may be
found, that have provided material support,
directly or indirectly, to foreign organizations or
persons that engage in terrorist activities against
the United States.
Justice Against Sponsors of Terrorism Act, Pub. L. No. 114-
222, § 2(b), 130 Stat. 852, 853 (2016) (Amendment). Through
its combination of “too stingy a reading of the complaint,”
Maljack Prods., Inc. v. Motion Picture Ass’n of Am., Inc., 52
F.3d 373, 376 (D.C. Cir. 1995) (reversing dismissal), and too
stingy a reading of precedent and relevant authorities, the
majority has frustrated Congress’s intent. Just as importantly,
the majority has unfairly deprived these Plaintiffs of their
rightful opportunity to prove their well-pleaded allegations in
court. I respectfully dissent.

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