     10-1306-cv
     Licci, et al. v. Lebanese Canadian Bank, SAL, et ano.



 1                        UNITED STATES COURT OF APPEALS

 2                            FOR THE SECOND CIRCUIT

 3                               August Term, 2010

 4   (Argued:    February 25, 2011                    Decided:   March 5, 2012)

 5                             Docket No. 10-1306-cv

 6                   -------------------------------------

 7      YAAKOV LICCI, a minor, by his father and natural guardian,
 8    ELIHAV LICCI, and by his mother and natural guardian, YEHUDIT
 9                            LICCI, et al.,

10                            Plaintiffs-Appellants,

11                                      - v -

12       LEBANESE CANADIAN BANK, SAL; AMERICAN EXPRESS BANK LTD.,

13                            Defendants-Appellees.*



14                   -------------------------------------

15   Before:     KEARSE, SACK, and KATZMANN, Circuit Judges.

16               Appeal from a judgment of the United States District

17   Court for the Southern District of New York (George B. Daniels,

18   Judge) dismissing the plaintiffs' complaint against defendant

19   Lebanese Canadian Bank, SAL, for lack of personal jurisdiction.

20   The plaintiffs, all Israeli residents, were allegedly injured,

21   or their family members killed or injured, by rockets fired by



           *
            The Clerk of Court is directed to amend the caption as set
     forth above.
 1   Hizballah, a Lebanese terrorist organization, into northern

 2   Israel in July and August 2006.       The district court concluded

 3   that the bank's use of its New York account was not enough to

 4   permit the exercise of personal jurisdiction over it under the

 5   New York long-arm statute, New York Civil Practice Law and

 6   Rules § 302(a)(1).   Because we are of the view that there is

 7   insufficient New York State authority on the issue for us to

 8   determine with confidence whether the district court's

 9   conclusion was correct, we seek the views of the New York Court

10   of Appeals as to whether the plaintiffs' claims "aris[e] from"

11   a "transact[ion] [of] business" in New York within the meaning

12   of N.Y. C.P.L.R. § 302(a)(1).

13             The district court's dismissal of a separate claim

14   against American Express Bank Ltd. is affirmed by separate

15   opinion filed today.

16             Questions certified.



17   Appearances:              ROBERT J. TOLCHIN, Jaroslawicz &
18                             Jaros, New York, NY, for Plaintiffs-
19                             Appellants.

20                             JONATHAN D. SIEGFRIED (Lawrence S.
21                             Hirsh, on the brief), Dewey & LeBoeuf
22                             LLP, New York, NY, for Defendant-
23                             Appellee Lebanese Canadian Bank, SAL.

24                             MARK P. LADNER (Mark David McPherson,
25                             Michael Gerard, on the brief),
26                             Morrison & Foerster LLP, New York, NY,
27                             for Defendant-Appellee American
28                             Express Bank Ltd.

                                       2
 1   SACK, Circuit Judge:

 2             This appeal presents the question whether a foreign

 3   bank's maintenance and use of a correspondent banking account

 4   in New York to conduct wire transfers on behalf of a foreign

 5   client renders it amenable to personal jurisdiction in New York

 6   under the state's long-arm statute to defend against claims

 7   asserted by victims of terrorist attacks committed abroad.    The

 8   plaintiffs are several dozen American, Canadian, and Israeli

 9   citizens, all of whom reside in Israel, who were injured, or

10   whose family members were killed or injured, in rocket attacks

11   allegedly committed by Hizballah, designated as an Islamic

12   terrorist organization,1 in July and August 2006.   The

13   plaintiffs have brought suit against Lebanese Canadian Bank,

14   SAL ("LCB"),2 a Lebanese bank headquartered in Beirut, alleging


          1
            "Hizballah (Party of God)" has been designated by the
     United States Department of State as a "Foreign Terrorist
     Organization" pursuant to 8 U.S.C. § 1189(a). See U.S. Dep't of
     State, Office of Coordinator for Counterterrorism, Foreign
     Terrorist Organizations (Jan. 27, 2012),
     http://www.state.gov/j/ct/rls/other/des/123085.htm. We use the
     State Department's spelling throughout this opinion unless
     quoting directly from a source that uses different spelling.
          2
            The amended complaint also contains a single claim for
     negligence against defendant American Express Bank ("AmEx") under
     Israeli law. This claim is pleaded on behalf of all plaintiffs.
     The district court, applying New York law, dismissed that claim
     against AmEx on the basis that there was no actual conflict
     between Israeli and New York law, and that under New York law,
     "[b]anks do not owe non-customers a duty to protect them from the
     intentional torts committed by [the banks'] customers." Licci v.
     Am. Express Bank Ltd., 704 F. Supp. 2d 403, 410 (S.D.N.Y. 2010)
     (citing Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir.
     2006)). The plaintiffs' appeal from the dismissal of their
                                     3
 1   that LCB assisted Hizballah by facilitating the international

 2   financial transactions of a Hizballah-affiliated entity.    The

 3   plaintiffs allege that LCB carried out dozens of dollar-

 4   denominated international wire transfers totaling several

 5   million dollars over the course of several years on behalf of

 6   the Hizballah affiliate, with the assistance of another

 7   defendant, American Express Bank, where LCB maintained and used

 8   a correspondent banking account.    According to the plaintiffs,

 9   in carrying out these transactions, LCB acted with the

10   knowledge that they were for the purpose of facilitating

11   Hizballah's ability to carry out acts of terrorism, such as the

12   rocket attacks at issue here.   The plaintiffs assert claims

13   against LCB under the Anti-Terrorism Act, 18 U.S.C. § 2333(a);

14   the Alien Tort Statute, 28 U.S.C. § 1350; and Israeli tort law.

15             The district court (George B. Daniels, Judge) granted

16   LCB's motion to dismiss for lack of personal jurisdiction on

17   the grounds that LCB's maintenance of a correspondent banking

18   account in New York and use of that account to wire funds on

19   behalf of the Hizballah affiliate were insufficient to

20   establish specific personal jurisdiction over LCB under the New

21   York long-arm statute, N.Y. C.P.L.R. § 302(a)(1).   The court

22   concluded both that "[t]he execution of wire transfers . . .



     negligence claim against AmEx is addressed in an accompanying
     opinion.

                                     4
 1   alone is [not] sufficient to confer jurisdiction over a foreign

 2   bank," Licci v. Am. Express Bank Ltd., 704 F. Supp. 2d 403, 407

 3   (S.D.N.Y. 2010), and that there was no "articulable nexus or

 4   substantial relationship . . . between LCB's general use of its

 5   correspondent account for wire transfers through New York and

 6   the specific terrorist activities by Hizbollah underlying

 7   plaintiffs' claims," id. at 408.     The plaintiffs appeal.

 8             The question of whether, and if so to what extent,

 9   personal jurisdiction may be established under N.Y. C.P.L.R.

10   § 302(a)(1) over foreign banks based on their use of

11   correspondent banking accounts in New York remains unsettled.

12   We conclude that New York law is insufficiently developed in

13   this area to enable us to predict with confidence how the New

14   York Court of Appeals would resolve these issues of New York

15   State law presented on appeal.   We therefore certify to the

16   Court of Appeals two questions concerning the application of

17   the New York long-arm statute.

18                             BACKGROUND

19             The facts set forth below are drawn from the

20   plaintiffs' first amended complaint, see Am. Compl., Licci v.

21   Am. Express Bank Ltd., No. 08 Civ. 7253 (GBD) (S.D.N.Y. Mar.

22   31, 2010), ECF No. 23 ("Compl."), and from the district court's

23   opinion dismissing the claims against LCB for lack of personal

24   jurisdiction, see Licci, 704 F. Supp. 2d at 404-06.    All well-


                                      5
 1   pleaded facts are accepted as true at this stage of the

 2   litigation.     See Famous Horse Inc. v. 5th Ave. Photo Inc., 624

 3   F.3d 106, 108 (2d Cir. 2010).     We recite only the facts that we

 4   think necessary for an understanding of our resolution of this

 5   appeal.
 6             Allegations of the Amended Complaint

 7             According to the allegations contained in the Amended

 8   Complaint, between July 12, 2006, and August 14, 2006,

 9   Hizballah, an Islamic terrorist organization, fired thousands

10   of rockets into northern Israel.      The plaintiffs or their

11   family members were injured or killed by these attacks.     See

12   Compl. ¶¶ 58-112.

13             The defendant, LCB, is a Lebanese bank with no

14   branches, offices, or employees in the United States.     LCB

15   does, however, maintain a correspondent banking account at AmEx

16   in New York.3    The plaintiffs allege that LCB used this account


          3
             "Correspondent accounts are accounts in domestic banks
     held in the name of [] foreign financial institutions.
     Typically, foreign banks are unable to maintain branch offices in
     the United States and therefore maintain an account at a United
     States bank to effect dollar transactions." Sigmoil Res., N.V.
     v. Pan Ocean Oil Corp. (Nigeria), 234 A.D.2d 103, 104, 650
     N.Y.S.2d 726, 727 (1st Dep't 1996). "'Without correspondent
     banking . . . it would often be impossible for banks to provide
     comprehensive nationwide and international banking services --
     among them, the vital capability to transfer money by wire with
     amazing speed and accuracy across international boundaries.'"
     United States v. Davidson, 175 F. App'x 399, 401 n.2 (2d Cir.
     2006) (summary order) (quoting Role of U.S. Correspondent Banking
     in International Money Laundering: Hearings Before the Permanent
     Subcomm. on Investigations of the S. Comm. on Gov't Affairs,
     107th Cong. 1-2 (2001) (opening remarks of Senator Susan M.
     Collins)).

                                       6
 1   to conduct dozens of international wire transfers on behalf of

 2   the Shahid (Martyrs) Foundation ("Shahid"), an entity that

 3   maintained bank accounts with LCB and which the plaintiffs

 4   allege to be an "integral part" of Hizballah and "part of [its]

 5   financial arm."    Id. ¶ 46; see also id. ¶ 50 (alleging that the

 6   Shahid-titled bank accounts "belonged to Hizbollah and were

 7   under the control of Hizbollah").     These wire transfers, which

 8   totaled several million dollars, "substantially increased and

 9   facilitated Hizbollah's ability to plan, to prepare for[,] and

10   to carry out" the rocket attacks that injured the plaintiffs.

11   Id. ¶ 116.

12                The plaintiffs contend that LCB's role in conducting

13   those wire transfers on Shahid's behalf was actionable.    They

14   allege that LCB had "actual knowledge" that Hizballah was a

15   violent terrorist organization, as reflected on official U.S.

16   government lists,4 and that Shahid was "part of Hizbollah's

17   financial arm."    Id. ¶¶ 130, 135.   Moreover, the plaintiffs

18   allege that the bank, as a matter of "official LCB policy,"

          4
            LCB notes that at all relevant times, Shahid itself was
     not designated as a terrorist organization on official U.S.
     government lists. Shahid was, however, added to the U.S.
     Treasury Department's "Specially Designated Nationals" list in
     July 2007. See U.S. Dep't of Treasury, Press Release, Twin
     Treasury Actions Take Aim at Hizballah's Support Network
     (July 24, 2007). Shahid today remains on that list of
     "individuals, groups, and entities, such as terrorists . . . that
     are not country-specific." See generally U.S. Dep't of Treasury,
     Specially Designated Nationals List (SDN),
     http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/
     default.aspx (last visited Dec. 21, 2011).

                                       7
 1   "continuously supports and supported Hizbollah and its anti-

 2   Israel program, goals and activities."    Id. ¶ 126.    In

 3   particular, the plaintiffs allege that LCB carried out the wire

 4   transfers "in order to assist and advance Hizbollah's goal of

 5   using terrorism to destroy the State of Israel."    Id. ¶ 129.

 6                Procedural History

 7                The plaintiffs began this lawsuit in New York State

 8   Supreme Court, New York County, on July 11, 2008.      On August

 9   15, 2008, AmEx removed the matter to the United States District

10   Court for the Southern District of New York.

11                On January 22, 2009, the plaintiffs filed an amended

12   complaint.    It contains five claims against LCB: (1) primary

13   liability for international terrorism under the Anti-Terrorism

14   Act, 18 U.S.C. § 2333(a) ("the Anti-Terrorism Act"); (2)

15   aiding-and-abetting liability for international terrorism under

16   the Anti-Terrorism Act; (3) aiding-and-abetting liability for

17   genocide, war crimes, and crimes against humanity in violation

18   of international law, as made actionable by the Alien Tort

19   Statute, 28 U.S.C. § 1350 (the "ATS"); (4) negligence, in

20   violation of Israeli Civil Wrongs Ordinance § 35; and (5)

21   breach of statutory duty, in violation of Israeli Civil Wrongs

22   Ordinance § 63.5    The Anti-Terrorism Act claims are brought by


          5
            Substantially the same group of plaintiffs has filed a
     related lawsuit in the Southern District of New York against Al
     Jazeera, a Qatar-based television network. The plaintiffs assert

                                       8
 1   the American plaintiffs alone; the ATS claims are brought by

 2   various Canadian and Israeli plaintiffs; and the Israeli-law

 3   claims are brought by all but four plaintiffs.

 4             On April 17, 2009, LCB moved to dismiss all claims

 5   against it for lack of personal jurisdiction under Rule

 6   12(b)(2) and for failure to state a claim under Rule 12(b)(6).

 7   On July 6, 2009, the plaintiffs filed an opposition to LCB's

 8   motion and submitted, among other material, a declaration by a

 9   former Israeli counter-terrorism official attesting to the fact

10   that Shahid is a financial front for Hizballah.   LCB filed a

11   reply on September 3, 2009.

12             The District Court's Jurisdictional Ruling

13             On March 31, 2010, the district court granted LCB's

14   motion to dismiss pursuant to Rule 12(b)(2), concluding that

15   the plaintiffs had failed to make a prima facie showing of

16   personal jurisdiction over the defendants under N.Y. C.P.L.R.

17   § 302(a)(1).   See Licci, 704 F. Supp. 2d at 406-08.   According

18   to the court, "'[t]o establish personal jurisdiction under


     that Al Jazeera violated the Anti-Terrorism Act by purposefully
     televising the precise impact locations in Israel of Hizballah's
     rockets in order to assist Hizballah with aiming its attacks more
     accurately. That lawsuit was dismissed, with leave to amend the
     complaint, on the grounds that the plaintiffs had failed
     adequately to plead the elements of intent and proximate
     causation. See Kaplan v. Al Jazeera, No. 10 Civ. 5298, 2011 WL
     2314783, 2011 U.S. Dist. LEXIS 61373 (S.D.N.Y. June 7, 2011)
     (Kimba M. Wood, J.). A second amended complaint was filed on
     July 18, 2011, but the plaintiffs voluntarily dismissed the
     action on November 21, 2011.

                                     9
 1   section 302(a)(1), two requirements must be met: (1) The

 2   defendant must have transacted business within the state; and

 3   (2) the claim asserted must arise from that business

 4   activity.'"   Id. at 406 (quoting Sole Resort, S.A. de C.V. v.

 5   Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006)).
 6   The court characterized the plaintiffs' theory of jurisdiction

 7   as depending solely upon LCB's "alleged use of defendant Amex

 8   Bank as its correspondent bank to carry out wire transfers of
 9   funds to and from the Shahid-entitled bank accounts."     Id. at
10   406.   Rejecting that theory, the court appeared to conclude

11   that neither of the two requirements for jurisdiction under

12   N.Y. C.P.L.R. § 302(a)(1) had been satisfied.

13              With respect to the first, "transacted business,"

14   prong, the district court relied upon the general principle

15   that "[t]he mere maintenance of [a] correspondent bank account

16   with a financial institution in New York is not, standing

17   alone, a sufficient basis to subject a foreign defendant to

18   personal jurisdiction under § 302(a)(1)."   Id. at 407.

19   Although the court acknowledged that in some circumstances, a

20   "foreign bank's improper use of a New York correspondent
21   account" may support long-arm jurisdiction, id. (citing cases),
22   the court concluded that "[t]he execution of wire transfers is

23   not a 'use' of a correspondent account which alone is

24   sufficient to confer jurisdiction over a foreign bank," id.,

25   and therefore "no meaningful distinction may be drawn between a

26   foreign bank's maintenance of a correspondent account to effect

                                    10
 1   international wire transfers and its indiscriminate use of that

 2   account for that exact purpose," id. at 407-08.

 3             With respect to the second, "arising from," prong,

 4   the district court concluded that the plaintiffs' claims did

 5   not arise from LCB's wire transfers in New York for the

 6   purposes of N.Y. C.P.L.R. § 302(a)(1).   Id. at 408.   Relying

 7   upon the factually similar case of Tamam v. Fransabank SAL, 677

 8   F. Supp. 2d 720, 726-30 (S.D.N.Y. 2010),6 the district court

 9   ruled that "[n]o articulable nexus or substantial relationship

10   exists between LCB's general use of its correspondent account

11   for wire transfers through New York and the specific terrorist
12   activities by Hizbollah underlying plaintiffs' claims."   Licci,
13   704 F. Supp. 2d at 408.   In reaching that conclusion, the

14   district court observed that the "[p]laintiffs do not allege

15   that the rocket attacks were directly financed with the subject

16   wire transferred funds," but only that those "transferred

17   funds . . . 'substantially increased' Hizbollah's ability to

18   commit rocket attacks," id.   The court further reasoned that

19   "[t]he injuries and death suffered by plaintiffs and their


          6
            In Tamam, a different group of fifty-seven plaintiffs
     brought suit against five Lebanese banks (not including LCB)
     under the ATS for aiding and abetting genocide, and committing
     crimes against humanity, war crimes, and terrorism by providing
     financial services to parties associated with Hizballah. The
     Tamam plaintiffs were, like those in the instant case, either
     themselves injured in the July and August 2006 rocket attacks, or
     the survivors of family members killed in those attacks. See
     Tamam, 677 F. Supp. 2d at 722-24. The district court dismissed
     the Tamam plaintiffs' lawsuit for lack of personal jurisdiction,
     see id. at 725-34, and no appeal was taken.

                                    11
 1   family members were caused by the rockets launched by

 2   Hizbollah, not by the banking services provided by LCB through

 3   its correspondent account."    Id.    The court decided that "LCB's

 4   maintenance or use of its correspondent bank account is

 5   [therefore] too attenuated from Hizbollah's attacks in Israel

 6   to assert personal jurisdiction based solely on wire transfers

 7   through New York."    Id.

 8              After deciding that the requirements of N.Y. C.P.L.R.

 9   § 302(a)(1) had not been satisfied, the district court also

10   concluded, summarily, that "[t]he exercise of personal

11   jurisdiction over LCB on the basis alleged by plaintiffs would

12   not comport with constitutional principles of due process."
13   Id.   The district court also denied the plaintiffs' request for

14   jurisdictional discovery on the ground that such discovery

15   would be "futile."7   Id.   Finally, because the court determined

16   that personal jurisdiction was lacking, the court did not reach

17   the merits of LCB's alternative arguments that dismissal of

18   each of the plaintiffs' claims was warranted under Fed. R. Civ.




           7
            On appeal, the plaintiffs do not challenge the district
     court's denial of jurisdictional discovery. We therefore need
     not decide whether the district court exceeded the bounds of its
     discretion in this respect. See Frontera Res. Azerbaijan Corp.
     v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 401 (2d
     Cir. 2009) (noting that a district court possesses "wide
     latitude" and "typically [acts] within its discretion to deny
     jurisdictional discovery when the plaintiff has not made out a
     prima facie case for jurisdiction") (brackets and internal
     quotation marks omitted).

                                      12
 1   P. 12(b)(6).    See id. at 406-08.    The district court entered

 2   judgment for the defendants on March 31, 2010.

 3              The plaintiffs appeal.

 4                               DISCUSSION

 5              I.    Standard of Review

 6              "We review a district court's dismissal of an action

 7   for want of personal jurisdiction de novo, construing all

 8   pleadings and affidavits in the light most favorable to the

 9   plaintiff[s] and resolving all doubts in the plaintiff[s']

10   favor."   Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34

11   (2d Cir. 2010).    "In order to survive a motion to dismiss for

12   lack of personal jurisdiction, [the] plaintiff[s] must make a

13   prima facie showing that jurisdiction exists."     Id. at 34-35

14   (internal quotation marks omitted).      This prima facie showing

15   "must include an averment of facts that, if credited by the

16   ultimate trier of fact, would suffice to establish jurisdiction

17   over the defendant."    Chloé v. Queen Bee of Beverly Hills, LLC,

18   616 F.3d 158, 163 (2d Cir. 2010) (brackets omitted).     In

19   considering whether the plaintiffs have met this burden, "we

20   will not draw 'argumentative inferences' in the plaintiff's
21   favor," Robinson v. Overseas Military Sales Corp., 21 F.3d 502,
22   507 (2d Cir. 1994), nor are we required "to accept as true a

23   legal conclusion couched as a factual allegation," Jazini v.

24   Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998).      We review

25   any factual findings regarding personal jurisdiction for clear



                                     13
 1   error.   Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d

 2   Cir. 2004).
 3              II.   Principles of Personal Jurisdiction

 4              The lawful exercise of personal jurisdiction by a

 5   federal court requires satisfaction of three primary

 6   requirements.

 7              First, the plaintiff's service of process upon the

 8   defendant must have been procedurally proper.   See Murphy

 9   Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350

10   (1999); In re Kalikow, 602 F.3d 82, 92 (2d Cir. 2010).   LCB

11   does not deny that it was properly served in Lebanon with the

12   plaintiffs' summons and complaint pursuant to Federal Rule of

13   Civil Procedure 4(f)(2)(C)(ii).

14              Second, there must be a statutory basis for personal

15   jurisdiction that renders such service of process effective.

16   The available statutory bases in federal courts are enumerated

17   by Federal Rule of Civil Procedure 4(k).   In this case, the

18   plaintiffs rely solely upon Rule 4(k)(1)(A), which provides

19   that "[s]erving a summons . . . establishes personal

20   jurisdiction over a defendant . . . who is subject to the

21   jurisdiction of a court of general jurisdiction in the state

22   where the district court is located."8   See also Spiegel v.


          8
            At least two other statutory bases for personal
     jurisdiction might be relevant to lawsuits brought under the
     Anti-Terrorism Act: (1) Federal Rule of Civil Procedure 4(k)(2),

                                     14
1   Schulmann, 604 F.3d 72, 76 (2d Cir. 2010) ("A district court's

2   personal jurisdiction is determined by the law of the state in

3   which the court is located.").    We therefore look to New York

4   law in determining whether personal jurisdiction is available

5   in New York over LCB.9




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

                                     15
 1             N.Y. C.P.L.R. § 302(a) provides, in pertinent part,

 2   that a court "may exercise personal jurisdiction over any non-

 3   domiciliary . . . who in person or through an agent . . .

 4   transacts any business within the state," so long as the

 5   plaintiff's "cause of action aris[es] from" that

 6   "transact[ion]."10   Id.   So, in determining whether personal

 7   jurisdiction may be exercised under section 302(a)(1), "a court

 8   must decide (1) whether the defendant 'transacts any business'

 9   in New York and, if so, (2) whether this cause of action

10   'aris[es] from' such a business transaction."    Best Van Lines,

11   Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (citing

12   Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65,

13   71, 818 N.Y.S.2d 164, 166, 850 N.E.2d 1140, 1142 (2006)).

14             Third, the exercise of personal jurisdiction must

15   comport with constitutional due process principles.    In this

16   case, because the plaintiffs' assertion of personal

17   jurisdiction rests upon a state long-arm statute, the relevant

18   constitutional constraints are those imposed by the Due Process

19   Clause of the Fourteenth Amendment.    See Chloé, 616 F.3d at



          10
             Section 302(a)(1) also authorizes personal jurisdiction
     where a defendant "contracts anywhere to supply goods or services
     in the state." That provision is not at issue in this appeal.
     Nor do the plaintiffs rely on sections 302(a)(2) or 302(a)(3),
     which authorize personal jurisdiction for claims arising out of
     torts committed within and without New York State, respectively.



                                      16
 1   164.   The constitutional analysis under the Due Process Clause

 2   consists of two separate components: the "minimum contacts"

 3   inquiry and the "reasonableness" inquiry.   Id.    The "minimum

 4   contacts" inquiry requires us to consider "whether the

 5   defendant has sufficient contacts with the forum state to

 6   justify the court's exercise of personal jurisdiction."    Id.

 7   The "reasonableness" inquiry requires us to decide "whether the

 8   assertion of personal jurisdiction comports with 'traditional

 9   notions of fair play and substantial justice' -- that is,

10   whether it is reasonable to exercise personal jurisdiction

11   under the circumstances of the particular case."    Id.

12              The New York long-arm statute does not extend in all

13   respects to the constitutional limits established by

14   International Shoe Co. v. Washington, 326 U.S. 310 (1945), and

15   its progeny.   The state statutory and federal constitutional

16   standards are thus not co-extensive, as they are in many other

17   states.   See, e.g., Best Van Lines, 490 F.3d at 244-45 & n.8

18   (noting "gaps" between the jurisdiction conferred by the New

19   York long-arm statute and that permissible under the federal

20   Due Process Clause); Banco Ambrosiano, S.p.A. v. Artoc Bank &

21   Trust Ltd., 62 N.Y.2d 65, 71, 476 N.Y.S.2d 64, 67, 464 N.E.2d

22   432, 435 (1984) ("[I]n setting forth certain categories of

23   bases for long-arm jurisdiction, [the New York long-arm

24   statute] does not go as far as is constitutionally


                                    17
 1   permissible."); see also Patrick J. Borchers, The Problem with

 2   General Jurisdiction, 2001 U. Chi. Legal F. 119, 122 & n.17

 3   (collecting examples from other states of long-arm statutes

 4   that extend to constitutional limits).   Where, as here, the

 5   plaintiffs premise their theory of personal jurisdiction upon

 6   the New York long-arm statute, we first consider whether the

 7   requirements of the statute have been satisfied before

 8   proceeding to address whether the exercise of jurisdiction

 9   would comport with the Due Process Clause.   See Chloé, 616 F.3d

10   at 163-64; Am. Buddha, 609 F.3d at 35; Best Van Lines, 490 F.3d

11   at 242, 244.   This reflects our respect for the doctrine of

12   constitutional avoidance.   See Ehrenfeld v. Bin Mahfouz, 489

13   F.3d 542, 547 (2d Cir. 2007); United States v. Magassouba, 544

14   F.3d 387, 404 (2d Cir. 2008) (collecting cases discussing the

15   doctrine).11   We therefore address the statutory bases of




          11
             In many cases, the jurisdictional analysis under the New
     York long-arm statute may closely resemble the analysis under the
     Due Process Clause of the Fourteenth Amendment. See Best Van
     Lines, 490 F.3d at 242 ("[T]he analysis of the state statutory
     and federal constitutional limitations have become somewhat
     entangled in New York jurisprudence . . . ."). This similarity
     of state-law and constitutional standards appears particularly
     evident with respect to N.Y. C.P.L.R. § 302(a)(1), the
     subdivision of the New York long-arm statute under which the
     plaintiffs in this case argue the court has personal jurisdiction
     over LCB. See Chloé, 616 F.3d at 166, 169 (taking note of these
     similarities); Best Van Lines, 490 F.3d at 247 (same); Ehrenfeld
     v. Bin Mahfouz, 9 N.Y.3d 501, 508, 851 N.Y.S.2d 381, 385-86, 881
     N.E.2d 830, 834-45 (2007) (same).


                                     18
 1   personal jurisdiction prior to considering the constitutional

 2   limitations.   See, e.g., Am. Buddha, 609 F.3d at 35.

 3               III.   Long-Arm Jurisdiction Under Section 302(a)(1)

 4   A.   Transaction of Business in New York

 5               The first question we consider is whether a foreign

 6   bank's maintenance of a correspondent banking account in New

 7   York, and use of that account over the course of several years

 8   to effect a succession of wire transfers totaling several

 9   million dollars on behalf of a foreign client, constitutes a

10   transaction of business within New York.    The New York Court of

11   Appeals has explained that "the overriding criterion necessary

12   to establish a transaction of business is some act by which the

13   defendant purposefully avails itself of the privilege of

14   conducting activities within New York," Ehrenfeld, 9 N.Y.3d at

15   508, 851 N.Y.S.2d at 385, 881 N.E.2d at 834 (brackets and

16   internal quotation marks omitted), thereby "invoking the

17   benefits and protections of its laws," Fischbarg v. Doucet, 9

18   N.Y.3d 375, 380, 849 N.Y.S.2d 501, 505, 880 N.E.2d 22, 26

19   (2007).

20               A defendant need not physically enter New York State

21   in order to transact business, "so long as the defendant's

22   activities here were purposeful."     Id. (quoting Deutsche Bank

23   Sec., Inc., 7 N.Y.3d at 71, 818 N.Y.S.2d at 167, 850 N.E.2d at

24   1142).    "Not all purposeful activity, however, constitutes a


                                      19
 1   'transaction of business' within the meaning of [N.Y. C.P.L.R.

 2   § 302(a)(1)]."    Id.   For example, the Court of Appeals has

 3   indicated that "'merely telephon[ing] a single order' to New

 4   York requesting a shipment of goods to another state, [or] the

 5   transitory presence of a corporate official here, [or]

 6   communications and shipments sent here by an out-of-state

 7   doctor serving as a 'consultant' to plaintiff's New York

 8   physician do not support [N.Y. C.P.L.R. §    302(a)(1)]

 9   jurisdiction."    Id. (citations omitted).

10                "Although it is impossible to precisely fix those

11   acts that constitute a transaction of business . . . it is the

12   quality of the defendants' New York contacts that is the

13   primary consideration."    Id.   A single act within New York

14   will, in the proper case, satisfy the requirements of section

15   302(a)(1).    See Deutsche Bank, 7 N.Y.3d at 72, 818 N.Y.S.2d at

16   167, 850 N.E.2d at 1143 ("[W]hen the requirements of due

17   process are met, as they are here, a sophisticated

18   institutional trader knowingly entering our state -– whether

19   electronically or otherwise -– to negotiate and conclude a

20   substantial transaction is within the embrace of the New York

21   long-arm statute.").    Other times, however, when an individual

22   act in New York will not suffice, an ongoing course of conduct

23   or relationship in the state may.     See, e.g., Fischbarg, 9

24   N.Y.3d at 382-83, 849 N.Y.S.2d at 507, 880 N.E.2d 22 at 28


                                      20
 1   (defendants' "substantial ongoing professional commitment"

 2   supported long-arm jurisdiction); Longines-Wittnauer Watch Co.

 3   v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 458, 261 N.Y.S.2d 8,

 4   19, 209 N.E.2d 68, 76 (1965); Grimaldi v. Guinn, 72 A.D.3d 37,

 5   44, 895 N.Y.S.2d 156, 162 (2d Dep't 2010).     A court must have

 6   regard for the "totality of the circumstances."    Farkas v.

 7   Farkas, 36 A.D.3d 852, 853, 830 N.Y.S.2d 220, 221 (2d Dep't

 8   2007); accord Best Van Lines, 490 F.3d at 246.

 9             The plaintiffs assert that LCB's maintenance and use

10   of its correspondent banking account in New York was

11   sufficiently purposeful to constitute a transaction of business

12   within New York State.   They emphasize that they rely not only

13   on the fact that LCB owned a correspondent banking account in

14   New York, but also on the fact that LCB allegedly used that

15   account "dozens" of times to execute international wire

16   transfers on Shahid's behalf.   Compl. ¶ 53.

17             The district court rejected the plaintiffs' proffered

18   distinction.    Relying upon a line of Second Circuit district-

19   court cases, the court stated that "[t]he mere maintenance of

20   [a] correspondent bank account with a financial institution in

21   New York is not, standing alone, a sufficient basis to subject

22   a foreign defendant to personal jurisdiction under

23   § 302(a)(1)."   Licci, 704 F. Supp. 2d at 407 (citing Tamam, 677

24   F. Supp. 2d at 727; Daventree Ltd. v. Republic of Azerbaijan,


                                     21
 1   349 F. Supp. 2d 736, 762 (S.D.N.Y. 2004); and Leema Enters.,

 2   Inc. v. Willi, 575 F. Supp. 1533, 1537 (S.D.N.Y. 1983)).

 3   Although the district court acknowledged the plaintiffs'

 4   attempt to distinguish between the "'mere maintenance of

 5   correspondent banking accounts'" and "'the active execution

 6   . . . of dozens of wire transfers totaling millions of dollars

 7   over a multi-year period,'" Licci, 704 F. Supp. 2d at 407

 8   (emphasis omitted), the court concluded that "no meaningful

 9   distinction may be drawn between a foreign bank's maintenance

10   of a correspondent account to effect international wire

11   transfers and its indiscriminate use of that account for that

12   exact purpose," id. at 407-08.

13               The New York Court of Appeals has apparently not yet

14   addressed the precise question before the district court and

15   now before us: whether a foreign bank's frequent use of a

16   correspondent account in New York to effect international wire

17   transfers on behalf of an overseas client is an act directed

18   with sufficient purposefulness at New York to constitute a

19   transaction of business in that state under the long-arm

20   statute.    And, of course, the district court did not itself

21   have the ability to ask the New York Court of Appeals for

22   guidance.   See N.Y. Comp. Codes R. & Regs. tit. 22,

23   § 500.27(a).




                                      22
 1             New York courts have, however, considered several

 2   similar sets of circumstances.    In perhaps the most prominent

 3   case concerning a similar issue, Amigo Foods Corp. v. Marine

 4   Midland Bank-N.Y., 39 N.Y.2d 391, 384 N.Y.S.2d 124, 348 N.E.2d

 5   581 (1976), the Court of Appeals addressed the question

 6   "whether, under the governing long-arm jurisdiction statute

 7   [N.Y. C.P.L.R. § 302(a)(1), also invoked here], a showing that

 8   a New York bank is the correspondent of an out-of-State bank

 9   provides a sufficient basis upon which New York courts may

10   exercise jurisdiction over the out-of-State bank."    Id. at 393,

11   384 N.Y.S.2d at 125, 348 N.E.2d at 582.

12             The plaintiff, a New York wholesaler, had contracted

13   to buy several truckloads of potatoes from a Maine distributor.

14   After the plaintiff made payment, its letter of credit passed

15   through a New York correspondent account owned by one of the

16   defendants, Aroostook Trust Company, a Maine bank.    Id. at 394,

17   384 N.Y.S.2d at 126, 348 N.E.2d at 582.

18             The Appellate Division dismissed the plaintiff's

19   claims against Aroostook, "holding that a correspondent bank

20   relationship was an insufficient basis upon which to predicate

21   long-arm jurisdiction."   Id. at 395, 384 N.Y.S.2d at 126, 348

22   N.E.2d at 583.   And the Court of Appeals declined to hold that

23   a correspondent bank relationship in New York "suffic[ed], in

24   and of itself," to support the exercise of personal


                                      23
 1   jurisdiction.    Id. at 395, 384 N.Y.S.2d at 127, 348 N.E.2d at

 2   583.   The court announced a general rule that "standing by

 3   itself, a correspondent bank relationship, without any other

 4   indicia or evidence to explain its essence, may not form the

 5   basis for long-arm jurisdiction under [N.Y. C.P.L.R.

 6   § 302(a)(1)]."   Id. at 396, 384 N.Y.S.2d at 127, 348 N.E.2d at

 7   584.   The court then remanded for jurisdictional discovery to

 8   permit the plaintiff to establish that the general rule did not

 9   apply.   Discovery would allow the plaintiff to inquire into,

10   among other things, "the precise nature of [Aroostook's]

11   relationship with [its correspondent bank in New York]

12   vis-à-vis the handling of [the plaintiff's] letters of credit."

13   Id.

14              Several years later, in Ehrlich-Bober & Co. v. Univ.

15   of Houston, 49 N.Y.2d 574, 427 N.Y.S.2d 604, 404 N.E.2d 726

16   (1980), the Court of Appeals upheld the exercise of personal

17   jurisdiction over a public university located in Texas based

18   upon the fact that the university -- which had contracted to

19   sell securities to the plaintiff, a New York securities dealer

20   – employed the services of a correspondent bank in New York to

21   carry out the transaction.   Id. at 577, 427 N.Y.S.2d at 606,

22   404 N.E.2d at 728.   The Court of Appeals concluded that

23   "[a]lthough 'standing by itself, a correspondent bank

24   relationship . . . may not form the basis for long-arm


                                     24
 1   jurisdiction under [N.Y. C.P.L.R. § 302(a)(1)],' the facts

 2   alleged here, which we accept as true for this purpose, show

 3   substantially more."   Id. at 579, 427 N.Y.S.2d at 607, 404

 4   N.E.2d at 729 (quoting Amigo Foods, 39 N.Y.2d at 396, 384

 5   N.Y.S.2d at 127, 348 N.E.2d at 584) (citation omitted).     The

 6   court appeared to regard as relevant the fact that the

 7   contractual transactions at issue had been "centered" in New

 8   York.12   Id. at 581-82, 427 N.Y.S.2d at 609, 404 N.E.2d at 731

 9   ("[T]he transactions in question . . . were initiated by an

10   employee of the defendant university in a phone call to the

11   plaintiff's New York offices.   They were accepted in New York

12   by the plaintiff.   The money was paid in New York.   The

13   securities were delivered in New York.").

14              In Banco Ambrosiano v. Artoc Bank & Trust, 62 N.Y.2d

15   65, 476 N.Y.S.2d 64, 464 N.E.2d 432 (1984), a decision applying

16   due process standards rather than the long-arm statute, the

17   Court of Appeals upheld the exercise of quasi-in-rem

18   jurisdiction over a Bahamian bank based upon its use of a

19   correspondent account in New York to conduct a loan transaction



          12
            The principal issue on appeal in Ehrlich-Bober & Co. was
     not the scope of N.Y. C.P.L.R. § 302(a)(1), but whether the trial
     court should have declined jurisdiction over the plaintiff's suit
     against the defendant university as a matter of comity based upon
     a Texas statute limiting the jurisdictions in which the
     university is subject to suit. Id. at 577-79, 427 N.Y.S.2d at
     606-07, 404 N.E.2d at 728-29.


                                     25
 1   with the plaintiff, id. at 72-73, 476 N.Y.S.2d at     67-68, 464

 2   N.E.2d at 435-36.   The court, emphasizing the "quality of this

 3   contact and its significance in the context of this

 4   litigation," viewed the bank's correspondent account as

 5   "closely related to plaintiff's claim" because it was "the very

 6   account through which [the bank] effectuated the transaction at

 7   issue."   Id. at 72, 476 N.Y.S.2d at 67-68, 464 N.E.2d at 435-

 8   36.   The court also appeared to rely on the fact that "this

 9   transaction [was not] an isolated one" inasmuch as the bank had

10   "utilize[d] this account regularly to accomplish its

11   international banking business."     Id. at 72-73, 476 N.Y.S.2d at

12   68, 464 N.E.2d at 436.    Although the court's decision rested

13   not on a determination that the New York long-arm statute was

14   satisfied, but on a conclusion that the exercise of quasi-in-

15   rem jurisdiction under the circumstances would not violate due

16   process standards, see generally id. at 71-73, 476 N.Y.S.2d at

17   66-68, 464 N.E.2d at 434-36, the decision may be relevant

18   insofar as the statutory and constitutional inquiries "have

19   become . . . entangled in New York jurisprudence."    Best Van

20   Lines, 490 F.3d at 242.

21              In Indosuez International Finance B.V. v. National

22   Reserve Bank, 98 N.Y.2d 238, 746 N.Y.S.2d 631, 774 N.E.2d 696

23   (2002), the Court of Appeals upheld the exercise of personal

24   jurisdiction in New York over a Russian bank that had


                                     26
 1   maintained a bank account in New York and used it in connection

 2   with currency-exchange options transactions with the plaintiff.

 3   The court ruled that the bank's "course of dealing" in making

 4   and accepting payments through a New York bank "constitute[d]

 5   purposeful exercise . . . of the privilege of conducting

 6   business in New York State sufficient to subject it to personal

 7   jurisdiction" under N.Y. C.P.L.R. § 302(a)(1).   Id. at 247, 746

 8   N.Y.S.2d at 636, 774 N.E.2d at 701.

 9             Those four decisions suggest to us that the

10   "transaction of business" prong of the test for jurisdiction

11   under section 302(a)(1) may, in appropriate cases, be satisfied

12   by a showing that the defendant maintained and used a

13   correspondent bank account in New York.   Some New York State

14   courts nonetheless seem to regard a nondomiciliary defendant's

15   maintenance and use of such an account in New York, standing

16   alone, as ipso facto insufficient to support personal

17   jurisdiction under the New York long-arm statute.   See

18   Faravelli v. Bankers Trust Co., 85 A.D.2d 335, 339, 447

19   N.Y.S.2d 962, 964-65 (1st Dep't 1982) ("[T]he fact that Punjab

20   had correspondent banks in New York in and of itself [does not]

21   provide sufficient contacts for longarm jurisdiction under

22   [N.Y. C.P.L.R. § 302]."), aff'd for the reasons stated by the

23   Appellate Division, 59 N.Y.2d 615, 618, 463 N.Y.S.2d 194, 449

24   N.E.2d 1272 (1983); Nemetsky v. Banque de Developpement de la


                                   27
 1   Republique du Niger, 65 A.D.2d 748, 748-49, 407 N.Y.S.2d 556,

 2   557 (2d Dep't 1978) ("Even if the trade acceptance [upon which

 3   plaintiff brought suit] were shown to be part of the

 4   [defendant's] correspondent bank relationship [with a New York

 5   bank], that relationship does not itself provide the basis for

 6   long arm jurisdiction under [N.Y. C.P.L.R. § 302(a)(1)]."),

 7   aff'd mem., 48 N.Y.2d 962, 964, 425 N.Y.S.2d 277, 401 N.E.2d

 8   388 (1979) ("All that appears is a correspondent bank

 9   relationship between defendant and Credit Lyonnais and the

10   trade acceptance connected to that relationship.   These factors

11   standing alone are insufficient to support an exercise of in

12   personam jurisdiction . . . ."); Taub v. Colonial Coated

13   Textile Corp., 54 A.D.2d 660, 661, 387 N.Y.S.2d 869, 870 (1st

14   Dep't 1976) (depending on Amigo Foods for the conclusion that

15   an Israeli bank's use of a correspondent account in New York

16   does not suffice to establish long-arm jurisdiction).   And

17   federal district court decisions in this Circuit have relied

18   upon these state-court decisions and Amigo Foods' statement

19   that a correspondent banking relationship "standing by itself"

20   does not suffice, Amigo Foods, 39 N.Y.2d at 396, 384 N.Y.S.2d

21   at 127, 348 N.E.2d at 584, to conclude that the "mere




                                   28
 1   maintenance" of a correspondent bank account in New York does

 2   not suffice to establish personal jurisdiction there.13

 3             Assuming for present purposes that this "mere

 4   maintenance" principle is a faithful articulation of the Court

 5   of Appeals' decision in Amigo Foods, it is unclear to us how to

 6   apply it to the facts of this case:   What role is the word

 7   "mere" intended to play?   It may be, as the plaintiffs suggest,

 8   that it is intended to distinguish the "maintenance" of an

 9   account from its active use.   See Licci, 704 F. Supp. 2d at 407

10   (describing this argument).    But perhaps it is intended to

11   suggest that other types of contacts with the forum -- such as

12   borrowing money in New York, signing notes payable in New York,

13   or negotiating agreements in New York -- are also required in


          13
            See, e.g., Tamam, 677 F. Supp. 2d at 727 ("[M]erely
     maintaining a New York correspondent bank account is insufficient
     to subject a foreign bank to personal jurisdiction."); Neewra,
     Inc. v. Manakh Al Khaleej Gen. Trading & Contracting Co., No. 03
     Civ. 2936, 2004 WL 1620874, at *3, 2004 U.S. Dist. LEXIS 13556,
     at *10 (S.D.N.Y. July 20, 2004); Societe Generale v. Fla. Health
     Scis. Ctr., Inc., No. 03 Civ. 5615, 2003 WL 22852656, at *4, 2003
     U.S. Dist. LEXIS 21502, at *11 (S.D.N.Y. Dec. 1, 2003) (merely
     maintaining correspondent bank account is not sufficient); Globex
     Int'l Inc. v. Commercial Bank of Namibia Ltd., No. 99 Civ. 4789,
     1999 WL 529538, at *1, 1999 U.S. Dist. LEXIS 11321, at *2
     (S.D.N.Y. July 23, 1999) (same); Semi Conductor Materials, Inc.
     v. Citibank Int'l PLC, 969 F. Supp. 243, 246-47 (S.D.N.Y. 1997)
     (same); Johnson Elec. N. Am., Inc. v. Bank of Wales, PLC, No. 90
     Civ. 6683, 1991 WL 20006, at *2, 1991 U.S. Dist. LEXIS 1596, at
     *5 (S.D.N.Y. Feb. 8, 1991) (same); Celton Man Trade, Inc. v. UTEX
     S.A., No. 84 Civ. 8179, 1986 WL 6788, at *4, 1986 U.S. Dist.
     LEXIS 24280, at *12 (S.D.N.Y. June 12, 1986) (same); Exchange
     Nat'l Bank of Chicago v. Empresa Minera del Centro del Peru S.A.,
     595 F. Supp. 502, 505 (S.D.N.Y. 1984) (same).


                                     29
 1   order to permit jurisdiction over the defendant to be

 2   exercised.   See, e.g., DirecTV Latin Am., LLC v. Park 610, LLC,

 3   691 F. Supp. 2d 405, 423 (S.D.N.Y. 2010).   Or it may be that

 4   the term means that a transaction of business in New York will

 5   not suffice unless the plaintiff's cause of action also

 6   "arise[s] from" that transaction -- in other words, that the

 7   second prong of the test must also be satisfied.14   See Neewra,

 8   Inc., 2004 WL 1620874, at *3, 2004 U.S. Dist. LEXIS 13556, at

 9   *10 ("A foreign bank's mere maintenance of a correspondent

10   account . . . is not enough . . . .   On the other hand, 'a

11   cause of action arising out of a transaction involving the use

12   of a correspondent account may confer jurisdiction over [the]

13   defendant in New York.'") (citation omitted; emphasis in

14   original).



          14
            District courts in this Circuit have upheld personal
     jurisdiction based upon a defendant's use of a correspondent bank
     account in New York where the use of that account was held to lay
     at the "very root of the [plaintiff's] action." Correspondent
     Servs. Corp. v. J.V.W. Invs. Ltd., 120 F. Supp. 2d 401, 4005
     (S.D.N.Y. 2000); see also, e.g., Dale v. Banque SCS Alliance
     S.A., No. 02 Civ. 3592, 2005 WL 2347853, at *3, 2005 U.S. Dist.
     LEXIS 20967, at *12-*13 (S.D.N.Y. Sept. 22, 2005) (upholding
     jurisdiction based on defendant's use of "several correspondent
     bank accounts in New York . . . to effect a number of the funds
     transfers that are the subject of this action"); Chase Manhattan
     Bank v. Banque Generale du Commerce, No. 96 Civ. 5184, 1997 WL
     266968, at *2 (S.D.N.Y. May 20, 1997) (finding personal
     jurisdiction proper based on the defendant's use of a
     correspondent account in New York because "the [plaintiff's]
     cause of action arises out of [that] use").



                                    30
 1             Were we required to decide ourselves, we might

 2   conclude -- in light of the Court of Appeals' post-Amigo Foods

 3   decisions in Ehrlich-Bober & Co., Banco Ambrosiano, and

 4   Indosuez -- that Amigo Foods is best read as standing for the

 5   proposition that the first prong of the long-arm jurisdiction

 6   test under N.Y. C.P.L.R. § 302(a)(1) – whether the defendant

 7   has transacted business within New York – may be satisfied by

 8   the defendant's use of a correspondent bank account in New

 9   York, even if no other contacts between the defendant and New

10   York can be established, if the defendant's use of that account

11   was purposeful.   Whether or not we would think it necessary to

12   certify that question to the New York Court of Appeals were it

13   the only one that challenged us, in light of the fact that we

14   are asking the court to address the second, "arising from,"

15   prong of the test for long-arm jurisdiction, we consider it

16   prudent to ask that court also to address the first prong of

17   the test, and to further explicate its guidance in Amigo Foods

18   -- if, of course, it chooses to do so.   Accordingly, we certify

19   the following question to the New York Court of Appeals for its

20   consideration:

21             (1) Does a foreign bank's maintenance of a
22             correspondent bank account at a financial
23             institution in New York, and use of that
24             account to effect "dozens" of wire
25             transfers on behalf of a foreign client,
26             constitute a "transact[ion]" of business in



                                    31
 1             New York within the meaning of N.Y.
 2             C.P.L.R. § 302(a)(1)?

 3   B.   Nexus Between Plaintiffs' Claims
 4        and Defendant's Transaction in New York

 5             If the first prong of the test for jurisdiction under

 6   N.Y. C.P.L.R. § 302(a)(1) has been satisfied, a question as to

 7   which we are asking the New York Court of Appeals for help, we

 8   must then inquire whether the plaintiffs' claims arise from

 9   that transaction.   We have explained, with respect to this

10   "nexus" requirement, that "'[a] suit will be deemed to have

11   arisen out of a party's activities in New York if there is an

12   articulable nexus, or a substantial relationship, between the

13   claim asserted and the actions that occurred in New York.'"

14   Best Van Lines, 490 F.3d at 246 (quoting Henderson v. INS, 157

15   F.3d 106, 123 (2d Cir. 1998)); see also Kreutter v. McFadden

16   Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 198, 522

17   N.E.2d 40, 43 (1988) (employing a "substantial relationship"

18   test); McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643,

19   645, 419 N.E.2d 321, 323 (1981) (employing an "articulable

20   nexus" test).   "[J]urisdiction is not justified [under N.Y.

21   C.P.L.R. § 302(a)(1)] where the relationship between the claim

22   and transaction is too attenuated," Johnson v. Ward, 4 N.Y.3d

23   516, 520, 797 N.Y.S.2d 33, 35, 829 N.E.2d 1201, 1203 (2005),

24   and "[a] connection that is 'merely coincidental' is

25   insufficient to support jurisdiction," Sole Resort, 450 F.3d at


                                    32
 1   103 (quoting Johnson, 4 N.Y.3d at 520, 797 N.Y.S.2d at 35, 829

 2   N.E.2d at 1203); see also Fischbarg, 9 N.Y.3d at 384, 849

 3   N.Y.S.2d at 508–09, 880 N.E.2d at 29-30 (a contact's

 4   "tangential relationship to the present case" will not

 5   suffice).

 6               There is no bright-line test for determining whether

 7   the "nexus" is present in a particular case.    "This inquiry is

 8   a fact-specific one, and [the point at which] the connection

 9   between the parties' activities in New York and the

10   [plaintiffs'] claim crosses the line from 'substantially

11   related' to 'mere coincidence' is not always self-evident."

12   Sole Resort, 450 F.3d at 103.    We observed:

13               In cases where claims have been dismissed on
14               jurisdictional grounds for lack of a sufficient
15               nexus between the parties' New York contacts and
16               the claim asserted, the event giving rise to the
17               plaintiff's injury had, at best, a tangential
18               relationship to any contacts the defendant had
19               with New York. In fact, in those cases, the
20               injuries sustained and the resulting disputes
21               bore such an attenuated connection to the New
22               York activity upon which the plaintiffs
23               attempted to premise jurisdiction that the
24               disputes could not be characterized as having
25               "arisen from" the New York activity.
26
27   Id. at 104.

28               The district court, deciding that the nexus

29   requirement was not satisfied in this case, concluded that

30   "[n]o articulable nexus or substantial relationship exists

31   between LCB's general use of its correspondent account for wire


                                     33
 1   transfers through New York and the specific terrorist

 2   activities by Hizbollah underlying plaintiffs' claims."15

 3   Licci, 704 F. Supp. 2d at 408.      In reaching that conclusion,

 4   the court relied principally upon two observations.     First, the

 5   court noted that the "[p]laintiffs themselves are not customers

 6   of . . . [LCB], nor did they have any financial interest in the

 7   wired funds," id., thereby distinguishing several cases that

 8   had upheld personal jurisdiction based upon a defendant's use

 9   of a correspondent banking account in New York.16     Second, the

10   court concluded that "[t]he injuries and death[s] suffered by

11   plaintiffs and their family members were caused by the rockets

12   launched by Hizbollah, not by the banking services provided by

13   LCB through its correspondent account or wire transfers with

14   Amex Bank via New York."17   Id.    Based on this assertion, the


          15
            In conducting its analysis into whether the plaintiffs'
     claims "aris[e] from" LCB's transaction of business in New York
     for the purposes of section 302(a)(1), the district court did not
     separately evaluate the plaintiffs' Anti-Terrorism Act, ATS, and
     Israeli-law claims.
          16
            See Dale, 2005 WL 2347853, at *3, 2005 U.S. Dist. LEXIS
     20967, at *12-*13; Correspondent Servs. Corp., 120 F. Supp. 2d at
     405; Chase Manhattan Bank, 1997 WL 266968, at *2, 1997 U.S. Dist.
     LEXIS 7020, at *4-*7.
          17
            This conclusion echoed the one reached in the factually
     similar Tamam case, in which the court stated: "It is clear that
     the events giving rise to the physical injuries and deaths for
     which Plaintiffs seek redress are missile attacks in Israel, not
     funds transfers in New York." Tamam, 677 F. Supp. 2d at 728.
     Indeed, there, as here, the district court concluded that the
     plaintiffs had failed to demonstrate a "'substantial


                                        34
 1   district court concluded that "LCB's maintenance or use of its

 2   correspondent bank account is too attenuated from Hizbollah's

 3   attacks in Israel to assert personal jurisdiction based solely

 4   on wire transfers through New York."   Id.

 5              The district court was of course correct in observing

 6   that the rockets launched by Hizballah were the alleged

 7   immediate cause of the plaintiffs' injuries or their relatives'

 8   deaths.   But the plaintiffs bring their claims against LCB for

 9   its role in the transfer of funds to Hizballah.   And the

10   jurisdictional nexus analysis directs us to consider the

11   relationship between the plaintiffs' claims and LCB's alleged

12   transactions in New York.   It may be that the district court,

13   in concluding that "[t]he injuries and death[s] suffered by

14   plaintiffs" were caused by Hizballah rather than LCB, id., was

15   reaching a conclusion that properly bears upon the ultimate

16   merits of plaintiffs' claims, which seek to hold LCB liable for

17   damages allegedly inflicted by Hizballah.18   And while we may



     relationship' between the correspondent bank accounts and
     Hizbollah's terrorist activity." Id. at 727-30.
          18
            As discussed below, the parties vigorously dispute
     whether the plaintiffs, to state a claim against LCB under the
     Anti-Terrorism Act, must demonstrate a causal connection between
     LCB's provision of banking services and Hizballah's rocket
     attacks. Because this case reaches us solely on appeal from a
     Rule 12(b)(2) dismissal, however, we need not and do not address
     the parties' arguments concerning the existence vel non of such a
     causation requirement under the Anti-Terrorism Act at this time.


                                    35
 1   eventually be required to address the merits, such merits

 2   determinations do not bear on the pure state-law question of

 3   whether the plaintiffs can show that the facts alleged in the

 4   complaint in support of their claims are sufficient to

 5   establish personal jurisdiction under the New York long-arm

 6   statute.

 7               On appeal from the district court's judgment in this

 8   regard, the plaintiffs make several arguments directed solely

 9   to their Anti-Terrorism Act claims, and others that appear

10   directed primarily to their other claims.

11              1.   The Anti-Terrorism Act Claims.   On appeal, the

12   plaintiffs focus their arguments primarily on the district

13   court's treatment of their Anti-Terrorism Act claims.

14              The Anti-Terrorism Act, enacted in 1990,19 provides

15   that "[a]ny national of the United States injured in his or her

16   person, property, or business by reason of an act of

17   international terrorism, or his or her estate, survivors, or

18   heirs, may sue therefor in any appropriate district court of

19   the United States."   18 U.S.C. § 2333(a).   For an act to


          19
            The Anti-Terrorism Act was originally enacted in 1990.
     Due to a procedural error, however, the Anti-Terrorism Act was
     repealed in April 1991 and later re-introduced and reenacted in
     substantially the same form. The current text of the Anti-
     Terrorism Act, codified at 18 U.S.C. § 2333, was enacted in 1992.
     See Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 19 n.1
     (D.D.C. 2010) (summarizing this history); Strauss v. Credit
     Lyonnais, S.A., 249 F.R.D. 429, 444 (E.D.N.Y. 2008) (same).


                                     36
 1   constitute "international terrorism," it must satisfy four

 2   separate requirements: (1) it must "involve violent acts or

 3   acts dangerous to human life"; (2) it must qualify as "a

 4   violation of the criminal laws of the United States or of any

 5   State" if it were committed within a United States

 6   jurisdiction; (3) it must "appear to be intended" to intimidate

 7   a civilian population, influence government policy, or affect

 8   the conduct of government by certain specified means; and (4)

 9   it must occur primarily outside the United States or transcend

10   national boundaries.   Id. § 2331(1)(A)-(C).    The Seventh

11   Circuit, and several district courts in this Circuit, have

12   concluded that a defendant's violation of the criminal

13   material-support statutes, see 18 U.S.C. §§ 2339A, 2339B &

14   2339C,20 constitutes an act of "international terrorism" within

15   the meaning of section 2331(1).     According to these courts,

16   victims of terrorism therefore may bring civil suits against



          20
            Those three statutes criminalize, respectively: (1)
     "provid[ing] material support or resources . . . knowing or
     intending that they are to be used in preparation for[] or in
     carrying out" certain identified criminal offenses, 18 U.S.C.
     § 2339A(a); (2) "knowingly provid[ing] material support or
     resources to a foreign terrorist organization," id.
     § 2339B(a)(1); and (3) "directly or indirectly . . . provid[ing]
     or collect[ing] funds with the intention that such funds be used,
     or with the knowledge that such funds are to be used, in full or
     in part, in order to carry out . . . any [] act intended to cause
     death or serious bodily injury to a civilian," id. § 2339C(a)(1).
     Each of the three statutes contain further provisions defining or
     limiting their terms.


                                    37
 1   violators of those statutes under section 2333(a), see, e.g.,

 2   Boim v. Holy Land Found. for Relief and Dev. (Boim II), 549

 3   F.3d 685, 690-91 (7th Cir. 2008) (en banc), cert. denied, 130

 4   S. Ct. 458 (2009); Boim v. Quranic Literacy Inst. (Boim I), 291

 5   F.3d 1000, 1012-16 (7th Cir. 2002).

 6              The plaintiffs contend that the district court's

 7   decision reflects a mistaken understanding about the elements

 8   of an Anti-Terrorism Act cause of action -- in particular, the

 9   extent to which proof of causation is required to sustain such
10   a claim.   See Pls.' Br. at 16-25 (citing Holder v. Humanitarian

11   Law Project, 130 S. Ct. 2705, 2720, 2729 (2010) (concluding

12   that Congress could lawfully criminalize the provision of

13   "training" or "expert advice or assistance" to terrorist

14   groups, even when the assistance was intended to further non-

15   violent or humanitarian ends, because the recipients of such

16   assistance could nonetheless use it "as part of a broader

17   strategy to promote terrorism"); Boim II, 549 F.3d at 695

18   (concluding that a charity which donates money to a terrorist

19   organization may be held liable under the Anti-Terrorism Act --

20   even if a plaintiff is unable to prove that the money the

21   charity donated actually helped finance the attacks that

22   injured the plaintiff -- if a plaintiff proves that the charity

23   "kn[ew] the [terrorist] character of that [donee]

24   organization.")).   However, the plaintiffs' contentions




                                    38
 1   regarding the scope of the Anti-Terrorism Act bear upon the

 2   merits of this case.   The question we confront here, and the

 3   question we ask the Court of Appeals to consider, is an

 4   antecedent question of state law: whether the plaintiffs'

 5   claims, as supported by the facts alleged, see Chloé, 616 F.3d

 6   at 163 (determining whether plaintiff alleged "facts that, if

 7   credited by the ultimate trier of fact, would suffice to

 8   establish jurisdiction over the defendant" under the New York

 9   long-arm statute) (brackets omitted), arise from LCB's

10   transaction of business in New York, thereby giving rise to

11   personal jurisdiction over LCB under the New York long-arm

12   statute.

13               As an initial matter, we conclude that the district

14   court was mistaken about what alleged conduct by LCB is being

15   relied upon by the plaintiffs as giving rise to the their

16   claims.    The plaintiffs' claims are not premised on allegations

17   that LCB played a direct role in committing or facilitating the

18   particular rocket attacks that injured the plaintiffs.    They

19   are based upon the assertion that LCB knowingly wired money on

20   behalf of a Hizballah affiliate through New York; that LCB

21   purposefully did so in order to assist Hizballah (irrespective

22   of how it intended the money would be used by Hizballah, or how

23   it was in fact used); that these services constituted material

24   support to a terrorist organization; and that LCB therefore



                                     39
 1   violated the Anti-Terrorism Act.    It would appear, then, that

 2   LCB's transactions in New York are among the operative facts

 3   underpinning the plaintiffs' Anti-Terrorism Act claims as

 4   alleged.   Cf. Pls.' Br. at 20 (asserting that "the entire actus

 5   reus of the torts attributed to LCB in the [amended complaint]

 6   is none other than LCB's transfers to Hezbollah via its account

 7   at Amex Bank in New York").   We nonetheless conclude that we

 8   are without sufficient guidance to permit us to resolve the

 9   state-law question authoritatively.

10              Once again, the question is whether, as a matter of

11   New York law, the plaintiffs' Anti-Terrorism Act claims, as

12   they are alleged by the plaintiffs, "aris[e] from" the

13   defendants' transaction of business in New York within the

14   meaning of N.Y. C.P.L.R. § 302(a)(1).   But two ambiguities are

15   present in the New York Court of Appeals' statement that a

16   sufficient nexus exists where "there is a substantial

17   relationship between [a New York] transaction and the claim

18   asserted," Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 198, 522

19   N.E.2d at 43 (emphases added) –- what is a "substantial

20   relationship"?   And, what is a "claim"?

21              a. What is a "substantial relationship" for purposes
22              of N.Y. C.P.L.R. § 302(a)(1)?
23
24              First, it remains unclear to us what sort of causal

25   connection, if any, must be demonstrated between a defendant's



                                    40
 1   New York activities and a plaintiff's "claim" under the New

 2   York long-arm statute's nexus requirement.   Some courts have

 3   interpreted the Court of Appeals' decisions in McGowan v.

 4   Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981),

 5   and similar cases, as holding that N.Y. C.P.L.R. § 302(a)(1)

 6   contains a nexus requirement that is considerably stricter than

 7   its constitutional analogue.   See Graphic Controls Corp. v.

 8   Utah Med. Prods., Inc., 149 F.3d 1382, 1386-87 (Fed. Cir. 1998)

 9   (concluding that the statutory nexus requirement has been

10   "interpreted very narrowly" by the New York Court of Appeals);

11   Beacon Enters, Inc. v. Menzies, 715 F.2d 757, 764-65 & n.6 (2d

12   Cir. 1983) (stating that N.Y. C.P.L.R. § 302(a)(1) requires

13   proof of "a strong nexus," meaning "'a direct relation between

14   the cause of action and the in-state conduct'" (quoting

15   Fontanetta v. Am. Bd. of Internal Med., 421 F.2d 355, 357 (2d

16   Cir. 1970))); Talbot v. Johnson Newspaper Corp., 123 A.D.2d

17   147, 149, 511 N.Y.S.2d 152, 154 (3d Dep't 1987) ("A defendant

18   may not be subject to personal jurisdiction under [N.Y.

19   C.P.L.R. § 302(a)(1)] simply because her contact with New York

20   was a link in the chain of events giving rise to the cause of

21   action[.]"), aff'd, 71 N.Y.2d 827, 527 N.Y.S.2d 729, 522 N.E.2d

22   1027 (1988).   Those interpretations appear to be consistent

23   with the view that the New York long-arm statute requires that

24   the defendant's contacts with New York be the "proximate cause"


                                    41
 1   of the plaintiff's injuries.   Cf., e.g., Mass. Sch. of Law at

 2   Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 35 (1st Cir. 1998)

 3   (concluding that, to comport with the Due Process Clause, the

 4   exercise of specific jurisdiction requires proof that the

 5   defendant's forum contacts were the proximate cause of the

 6   plaintiff's injury); see generally Dudnikov v. Chalk &

 7   Vermilion Fine Arts, Inc., 514 F.3d 1063, 1078-79 (10th Cir.

 8   2008) (describing "proximate cause" approach and comparing it

 9   to other approaches); O'Connor v. Sandy Lane Hotel Co., 496

10   F.3d 312, 318-19 (3d Cir. 2007) (same).   This view may find

11   support in the text of the long-arm statute itself, insofar as

12   it provides jurisdiction only for a plaintiff's "cause of

13   action arising from" an enumerated act by the defendant.    N.Y.

14   C.P.L.R. § 302(a).

15             Other courts have assumed or suggested, however, that

16   the nexus requirement of the New York long-arm statute is

17   relatively permissive.   See, e.g., Sole Resort, 450 F.3d at 104

18   (implying that the nexus requirement is met unless "the event

19   giving rise to the plaintiff's injury had, at best, a

20   tangential relationship to any contacts the defendant had with

21   New York"); PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1109

22   (2d Cir. 1997) ("A cause of action arises out of a defendant's

23   New York transactions when it is 'sufficiently related to the

24   business transacted that it would not be unfair to deem it to


                                    42
 1   arise out of the transacted business.'" (quoting Hoffritz for

 2   Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 59 (2d Cir.

 3   1985))).   These interpretations evoke the "substantial

 4   connection" or "discernible relationship" approaches, O'Connor,

 5   496 F.3d at 319-20, and reflect the view that the proper test

 6   for satisfaction of the nexus requirement should not be

 7   causally based.   See, e.g., Vons Cos., Inc. v. Seabest Foods,

 8   Inc., 14 Cal. 4th 434, 456, 475, 926 P.2d 1085, 1099, 1112

 9   (1996) (adopting a "substantial nexus or connection" approach

10   in applying the California long-arm statute and, in rejecting

11   other approaches, questioning the wisdom "of importing a

12   causation test from tort law to measure a matter that is

13   fundamentally one of relationship and fairness rather than

14   causation").   But cf. Chew v. Dietrich, 143 F.3d 24, 29-30 (2d

15   Cir.) (suggesting in dicta that the "relatedness" test under

16   the Due Process Clause may require proof of either but-for or

17   proximate causation), cert. denied, 525 U.S. 948 (1998).     To

18   the extent that the Court of Appeals determined in Kreutter and

19   McGowan that the nexus requirement may be satisfied by a

20   showing of a "substantial relationship" or an "articulable

21   nexus," respectively, see Kreutter, 71 N.Y.2d at 467, 527

22   N.Y.S.2d at 198, 522 N.E.2d at 43; McGowan, 52 N.Y.2d at 272,

23   437 N.Y.S.2d at 645, 419 N.E.2d at 323, it would appear as

24   though no showing of causation is required by N.Y. C.P.L.R.


                                    43
 1   § 302(a)(1).   Cf. Thomason v. Chem. Bank, 234 Conn. 281, 290,

 2   661 A.2d 595, 600-01 (1995) (concluding, as to Connecticut's

 3   long-arm statute providing specific jurisdiction over cases

 4   that "arise out of" a defendant's forum contacts, that the

 5   statute "does not require a causal connection between the

 6   defendant's forum-directed activities and the plaintiffs'

 7   lawsuit").21   But we think the New York Court of Appeals is in a

 8   better position to respond to that question than are we.

 9             b. What is a "claim" for purposes of N.Y. C.P.L.R.
10             § 302(a)(1)?

11             Further complicating the analysis is a lack of

12   clarity regarding what must "aris[e] from" a defendant's New

13   York contacts.   Although it is well-established that the nexus

14   inquiry requires us to decide whether "there is a substantial


          21
             Complicating matters, an approach has begun to emerge in
     the federal district courts that a plaintiff's claim may only
     arise from a defendant's use of a correspondent banking account
     in New York where the defendant's use of such an account was
     "clearly 'at the very root' of the action." Tamam, 677 F. Supp.
     2d at 727-29; see also Licci, 704 F. Supp. 2d at 407; Daventree,
     349 F. Supp. 2d at 762; Correspondent Servs. Corp., 120 F. Supp.
     2d at 405. It is not clear to us whether this "very root of the
     action" formulation is consistent with the constructions of the
     nexus requirement under N.Y. C.P.L.R. § 302(a)(1) elaborated by
     Kreutter and McGowan.
               It also remains unclear whether it is possible that a
     plaintiff's cause of action might bear an "articulable nexus" but
     not a "substantial relationship" (or vice versa) to a defendant's
     New York-based contacts. Cf. Helicopteros, 466 U.S. at 415 n.10
     (reserving the question "whether the terms 'arising out of' and
     'related to' describe different connections between a cause of
     action and a defendant's contacts with a forum").


                                     44
 1   relationship between the transaction and the claim asserted,"

 2   Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 198, 522 N.E.2d at

 3   43 (emphasis added), it is not clear whether the plaintiffs'

 4   "claim" is to be understood more loosely as the factual

 5   circumstances surrounding the harm suffered by a plaintiff, or

 6   more strictly as the doctrinal elements of a particular theory

 7   of recovery.   Cf., e.g., Agency Rent A Car System, Inc. v.

 8   Grand Rent A Car Corp., 98 F.3d 25, 31 (2d Cir. 1996)

 9   (comparing the elements of plaintiff's cause of action to

10   defendant's forum contacts).   And if a "claim" refers to the

11   elements of a cause of action, it is unclear whether the

12   relevant element here is the plaintiffs' "injuries" or the

13   defendant's wrongful act (referred to in the tort context as a

14   "breach of duty") –- or perhaps both.   See, e.g., Consol. Rail

15   Corp. v. Gottshall, 512 U.S. 532, 550-51 (1994) (noting that

16   "traditional tort concepts" include "injury" and "breach of

17   duty").   In other words, for sufficient nexus to exist, must

18   the plaintiffs' injuries –- the deaths and injuries in Israel

19   –- "aris[e] from" the defendant's use of a New York

20   correspondent bank account, or must the defendant's alleged

21   wrongful act -- LCB's transfer of funds -- "aris[e] from" the

22   use of that account?22   This distinction is of potential


          22
            Some cases have placed a greater emphasis on the
     connection between the plaintiff's injury and the defendant's New


                                     45
1   relevance because under plaintiffs' theory of recovery, the

2   injury suffered is causally decoupled from the defendant's

3   wrongful act,23 and LCB's alleged wrongful act bears a closer

4   relationship to its New York contacts than do the plaintiffs'

5   injuries.   This ambiguity regarding the meaning of the term

6   "claim" compounds the previously noted uncertainty as to the

7   meaning of "substantial relationship" for purposes of N.Y.

8   C.P.L.R. § 302(a)(1).




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


                                   46
1              To be sure, there have been several relatively recent

2   decisions by the New York Court of Appeals and by our Court

3   applying the nexus requirement.      These decisions, however, have

4   generally undertaken fact-bound analyses that shed little light

5   on how the nexus requirement should be applied in the instant

6   case.24   In light of the foregoing, we cannot confidently say

7   whether the New York Court of Appeals would conclude that the




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


                                    47
 1   plaintiffs have demonstrated an "articulable nexus" or

 2   "substantial relationship" on these facts.

 3               2.   The ATS and Israeli-Law Claims.   The Canadian

 4   and Israeli plaintiffs bring claims against LCB under the ATS.

 5   The plaintiffs also assert claims against LCB under Israeli law

 6   for negligence and breach of statutory duty.    LCB moved

 7   pursuant to Rule 12(b)(6) to dismiss each of these claims as

 8   insufficient as a matter of law.25    The district court did not

 9   reach their merits, dismissing them on jurisdictional grounds

10   alone.    Therefore, as with the Anti-Terrorism Act claims, we

11   ask only whether those claims bear an "articulable nexus" to,

12   or a "substantial relationship" with, the business allegedly

13   transacted by LCB in New York.    Best Van Lines, 490 F.3d at 246

14   (internal quotation marks omitted).    For the reasons already

15   discussed with respect to the plaintiffs' Anti-Terrorism Act

16   claims, however, we find that inquiry difficult.

17               It must be noted that under the current law of this

18   Circuit, as established after the district court decided this



          25
            Before the district court, LCB did not express a view as
     to whether New York or Israeli law governed the plaintiffs' tort
     claims, but instead argued that the claims would fail regardless
     of which law governs. The district court, in dismissing these
     claims for lack of personal jurisdiction, did not reach the
     choice-of-law question, and the parties have not briefed it on
     appeal. Therefore, insofar as we refer to these claims as
     "Israeli law" claims, we do not intend to signal any view
     regarding the choice-of-law question.


                                      48
 1   case, the ATS claims against LCB cannot be maintained in any

 2   event because the ATS does not provide subject matter

 3   jurisdiction to enable us to entertain civil actions against

 4   corporations for violations of customary international law.

 5   Kiobel v. Royal Dutch Petro. Co., 621 F.3d 111 (2d Cir. 2010),

 6   cert. granted, 132 S. Ct. 472 (2011).   Based on the imminence

 7   of the Supreme Court's review of Kiobel, however, and the fact

 8   that the jurisdictional inquiry applicable to all of

 9   plaintiffs' claims appears to be similar, we reserve decision

10   as to the ATS claims.   We think it the more prudent course to

11   allow the Court of Appeals first to address whether personal

12   jurisdiction exists over each of the plaintiffs' claims,

13   including the ATS claim.

14              Should the Supreme Court reverse our decision in

15   Kiobel, and the Court of Appeals decision (if any) indicate

16   that we have personal jurisdiction over LCB in this case, the

17   ATS claims will likely require further proceedings in the

18   district court.   If the Supreme Court affirms in Kiobel or the

19   Court of Appeals indicates that we do not have personal

20   jurisdiction over LCB, we will likely be required to affirm the

21   dismissal of the ATS claims against it on either or both

22   grounds.   We will therefore await the decisions of one or both

23   of those courts before reaching a conclusion as to the ATS

24   claims against LCB.


                                    49
 1                                    * * *

 2              In light of the foregoing, we certify the following

 3   second question to the Court of Appeals:

 4              (2) Do the plaintiffs' claims under the
 5              Anti-Terrorism Act, the ATS, or for
 6              negligence or breach of statutory duty in
 7              violation of Israeli law, "aris[e] from"
 8              LCB's transaction of business in New York
 9              within the meaning of N.Y. C.P.L.R.
10              § 302(a)(1)?


11              IV.   Certification

12              The rules of this Court provide that "[i]f state law

13   permits, the court may certify a question of state law to that

14   state's highest court."   2d Cir. Local R. 27.2(a); see also Am.

15   Buddha, 609 F.3d at 41–42.   Although the parties have not

16   requested certification, we are empowered to pursue it on our

17   own motion.   See 10 Ellicott Square Court Corp. v. Mtn. Valley

18   Indem. Co., 634 F.3d 112, 125 (2d Cir. 2011); Kuhne v. Cohen &

19   Slamowitz, LLP, 579 F.3d 189, 198 (2d Cir. 2009).      Our decision

20   whether to certify is discretionary.     Am. Buddha, 609 F.3d at

21   41.   In determining whether to pursue it, we are guided

22   principally by three factors.

23              First, "certification may be appropriate if the New

24   York Court of Appeals has not squarely addressed an issue and

25   other decisions by New York courts are insufficient to predict

26   how the Court of Appeals would resolve it."    Id. at 42; see




                                       50
 1   also 10 Ellicott Square Court Corp., 634 F.3d at 125-26

 2   (collecting cases); N.Y. Comp. Codes R. & Regs. tit. 22,

 3   § 500.27(a).   Second, "the question on which we certify must be

 4   of importance to the state," 10 Ellicott Square Court Corp.,

 5   634 F.3d at 126 (internal quotation marks and ellipsis

 6   omitted), and "its resolution must 'require[] value judgments

 7   and important public policy choices that the New York Court of

 8   Appeals is better situated than we to make,'" id. (quoting Am.

 9   Buddha, 609 F.3d at 42).   Third, "we may certify if the

10   question is 'determinative' of a claim before us."   Id. (citing

11   N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a)) (other

12   internal quotation marks omitted); see also O'Mara v. Town of

13   Wappinger, 485 F.3d 693, 698 (2d Cir. 2007).

14             Although we need not certify if we are confident that

15   we can correctly resolve the matter at issue ourselves, see,

16   e.g., Best Van Lines, 490 F.3d at 242 n.3, we conclude that the

17   standards for certification are met in the case before us.

18   First, the New York Court of Appeals does not appear to have

19   squarely addressed the jurisdictional questions presented by

20   this case, and we conclude that the decisions of other New York

21   state courts do not enable us to predict with confidence how

22   the Court of Appeals would resolve them.   Second, determining

23   the scope of the New York long-arm statute is -- as we have

24   previously noted in certifying other jurisdictional questions,


                                    51
 1   see, e.g., Am. Buddha, 609 F.3d at 32 -- a task that requires

 2   the exercise of "value judgments and important public policy

 3   choices," 10 Ellicott Square Court Corp., 634 F.3d at 126, best

 4   left to New York's highest court, if possible.   Finally, the

 5   answers to these questions will be determinative if the Court

 6   of Appeals decides that long-arm jurisdiction is lacking in

 7   this instance, as all of the plaintiffs' claims against LCB

 8   would have to be dismissed.

 9              Accordingly, we certify to the New York Court of

10   Appeals the following two questions:

11             (1) Does a foreign bank's maintenance of a
12             correspondent bank account at a financial
13             institution in New York, and use of that
14             account to effect "dozens" of wire
15             transfers on behalf of a foreign client,
16             constitute a "transact[ion]" of business in
17             New York within the meaning of N.Y.
18             C.P.L.R. § 302(a)(1)?

19             (2) If so, do the plaintiffs' claims under
20             the Anti-Terrorism Act, the ATS, or for
21             negligence or breach of statutory duty in
22             violation of Israeli law, "aris[e] from"
23             LCB's transaction of business in New York
24             within the meaning of N.Y. C.P.L.R.
25             § 302(a)(1)?

26             "As is our practice, we do not intend to limit the

27   scope of the Court of Appeals' analysis through the formulation

28   of our question[s], and we invite the Court of Appeals to

29   expand upon or alter th[ese] question[s] as it should deem

30   appropriate."   10 Ellicott Square Court Corp., 634 F.3d at 126.



                                    52
 1                V.   Constitutional Due Process Limits to Personal
 2                     Jurisdiction
 3
 4                For personal jurisdiction over LCB to be permissible,

 5   federal constitutional due process standards must also be

 6   satisfied.    See Chloé, 616 F.3d at 164 ("If the long-arm

 7   statute permits personal jurisdiction, the second step is to

 8   analyze whether personal jurisdiction comports with the Due

 9   Process Clause of the United States Constitution."); accord

10   LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 216, 713 N.Y.S.2d

11   304, 308, 735 N.E.2d 883, 887 (2000).    But see D.H. Blair & Co.

12   v. Gottdiener, 462 F.3d 95, 105 (2d Cir. 2006) (suggesting that

13   the application of section 302(a) automatically "meets

14   [constitutional] due process requirements").    Because the

15   district court determined that exercising personal jurisdiction

16   was not authorized by the New York long-arm statute, it was not

17   required to reach the question of whether exercising

18   jurisdiction would comport with the Due Process Clause.

19   Nonetheless, the district court concluded similarly that "[t]he

20   exercise of personal jurisdiction over LCB on the basis alleged

21   by plaintiffs would not comport with constitutional principles

22   of due process."    Licci, 704 F. Supp. 2d at 408.26   We reserve


          26
             On appeal, the plaintiffs do not expressly challenge
     that conclusion. Under the circumstances, however, and in light
     of the substantial similarity between the statutory and
     constitutional inquiries, we do not think that the plaintiffs
     have forfeited their argument in this respect -- nor does LCB


                                      53
 1   decision on this issue.   We will address it, if necessary, when

 2   this case returns to us following the New York Court of

 3   Appeals' disposition of our certification request.   See

 4   Ehrenfeld, 489 F.3d at 547.   Accordingly, nothing in this

 5   opinion is intended, or should be read, to indicate our view as

 6   to whether jurisdiction in this case would pass Fourteenth

 7   Amendment muster.

 8                              CONCLUSION

 9              For the foregoing reasons and pursuant to New York

10   Court of Appeals Rule 500.27 and Local Rule 27.2 of this court,

11   we certify the following two questions to the New York Court of

12   Appeals:

13              (1) Does a foreign bank's maintenance of a
14              correspondent bank account at a financial
15              institution in New York, and use of that
16              account to effect "dozens" of multimillion
17              dollar wire transfers on behalf of a
18              foreign client, constitute a
19              "transact[ion]" of business in New York
20              within the meaning of N.Y. C.P.L.R.
21              § 302(a)(1)?

22              (2) If so, do the plaintiffs' claims under
23              the Anti-Terrorism Act, the ATS, or for
24              negligence or breach of statutory duty in
25              violation of Israeli law, "aris[e] from"
26              LCB's transaction of business in New York
27              within the meaning of N.Y. C.P.L.R.
28              § 302(a)(1)?
29




     argue that they have.


                                    54
1              It is hereby ORDERED that the Clerk of this Court

2   transmit to the Clerk of the New York Court of Appeals this

3   opinion as our certificate, together with a complete set of the

4   briefs, the appendix, and the record filed in this Court by the

5   parties.   The parties shall bear equally any fees and costs

6   that may be imposed by the New York Court of Appeals in

7   connection with this certification.   This panel will resume its

8   consideration of this appeal after the disposition of this

9   certification by the New York Court of Appeals.




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