Krishanthi v. Rajaratnam

Full title: KARUNAMUNIGE CHAMILA KRISHANTHI, et al., Plaintiffs, v. RAJ RAJARATNAM, et…

Court: United States District Court, D. New Jersey

Date published: Dec 18, 2024

2:09-cv-05395 (BRM) (JSA) (D.N.J. Dec. 18, 2024)

Opinion

2:09-cv-05395 (BRM) (JSA)

12-18-2024

KARUNAMUNIGE CHAMILA KRISHANTHI, et al., Plaintiffs, v. RAJ RAJARATNAM, et al., Defendants.

HON. BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE

NOT FOR PUBLICATION

OPINION TEMPORARILY FILED UNDER SEAL

HON. BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants Raj Rajaratnam (“Raj”) and the Estate of Jesuthasan M. Rajaratnam's (“Jesuthasan” or the “Estate”)¹(collectively, “Defendants”) Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 547 (the “Motion”).) Plaintiffs² filed an opposition to the Motion (ECF No. 549), and Defendants filed a reply in support of the Motion (ECF No. 556). Having reviewed and considered the submissions filed in connection with the Motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and for good cause having been shown, Defendants' Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART.

1 The Court refers to Jesuthasan when discussing this individual's activities as relevant to the material facts at issue in this Motion, and to the Estate when referring to the party currently in the litigation.

2 Plaintiffs in this matter are 151 Sri Lankan nationals, some of whom represent minor children, family members, or the estates of the deceased. (ECF Nos. 1, 163, 285, 384.) These individuals are collectively referred to as “Plaintiffs.”

I. Background

A. Factual Background ³

3 The background facts are taken from the parties' admitted statements of material fact and accompanying exhibits. The Court deems supported factual contentions to be admitted, unless sufficiently disputed by reference to record evidence, and similarly construes as undisputed all facts in Defendants' Statement of Material Fact to which Plaintiffs object without citing to any record evidence. See L. Civ. R. 56.1(a); Ullrich v. U.S. Sec'y of Veterans Affs., 457 Fed.Appx. 132, 136-37 (3d Cir. 2012) (“[T]he party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record.... A plaintiff's mere belief or contention . . . is not enough to create a dispute of material fact sufficient to survive summary judgment....Federal Rule 56 explicitly requires the party asserting the absence or existence of a genuinely disputed fact to support that assertion by citing to specific parts of the record. A court may consider other materials in the record, but need only consider cited materials and may consider undisputed any fact not properly addressed by the party opposing it.” (citations omitted)); Stouch v. Twp. of Irvington, Civ. A. No. 03-06048, 2008 WL 2783338, at *2 n.1 (D.N.J. July 16, 2008) (“deem[ing] [d]efendants' uncontested facts as admitted, unless disputed by [p]laintiffs in their brief and supported by the evidence”). Although the parties “aim to create the appearance of factual disputes,” in some instances, the parties either do not cite to relevant record evidence or the cited evidence does not actually refute the relevant fact(s). See Rau v. Allstate Fire & Cas. Ins. Co., 793 Fed.Appx. 84, 87 (3d Cir. 2019). Similarly, the Court notes several exhibits cited in Plaintiffs' Supplemental Statement of Material Facts in Dispute are missing from the record evidence (in particular, Exhibits 134-59). (ECF No. 552-11.) The Court considers as unsupported any statements of fact supported solely by those missing exhibits and not otherwise admitted by Defendants and has therefore excluded them from the background facts and analysis. Additionally, discovery in this phase of litigation focused on issues related to Defendants' liability, rather than Plaintiffs' harms and potential damages, as discussed infra Section I.B. Therefore, the factual background does not address facts related to individual Plaintiffs.

At the core of this case, Plaintiffs allege Defendants, through donations made in the United States to a U.S.-based arm of the Tamil Relief Organization (“TRO-USA”), supported terrorist activities by the Liberation Tigers of Tamil Eelam (“LTTE”) in Sri Lanka, which harmed Plaintiffs and/or injured or killed their family members. (ECF No. 384 (Third Amended Complaint) ¶¶ 24200; ECF No. 549 (Pls. Response to Defs. Statement of Material Facts (“SOMF”) ¶¶ 12-20.) Plaintiffs are all citizens of Sri Lanka. (ECF No. 49 ¶ 50.) In their surviving claims, Plaintiffs allege Defendants' actions constitute aiding and abetting crimes against humanity, in violation the laws of nations, actionable in this Court under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and create common law liability for intentional infliction of emotional distress (“IIED”). (ECF No. 384 ¶¶ 333-49; 398-405.)

1. History of Ethnic Conflict in Sri Lanka and U.S. Government Response

Sri Lanka is an island nation off the southern tip of India made up of multiple ethnic groups, including the majority Sinhalese population (roughly three-quarters of the nation's population) and Sri Lankan Tamils (the “Tamils”), who comprise around 11.2% of the population. (ECF No. 5471 (Defs. SOMF) ¶ 1; ECF No. 549 ¶ 1.) In 1956, a predominantly Sinhalese government came to power in Sri Lanka (“GoSL”) and enacted laws many in the Tamil population perceived as discriminatory, including government-sponsored resettlement of Sinhalese into primarily Tamil areas in the north and east of the country. (ECF No. 547-1 ¶ 2; ECF No. 549 ¶ 2.)

The LTTE was formed in or around 1976, and in the mid-1980s, a civil war began between the LTTE and the GoSL. (ECF No. 547-1 ¶¶ 3-4; ECF No. 549 ¶¶ 3-4.) During the civil war, the LTTE attacked GoSL forces through military operations but also conducted terrorist attacks, including suicide bombings on non-military targets. (ECF No. 547-1 ¶ 4 (citing ECF No. 547-4 Ex. 3 (“Gunaratna Report”) at 3).) The civil war continued through the mid-2000s, with the LTTE exercising control over parts of the north and east of Sri Lanka. (Id. at ¶ 7 (citing Gunaratna Report at 14-16, ECF No. 547-4 Ex. 7 (“Gunaratna Deposition”) at 81:25-83:8); ECF No. 549 ¶ 7.) While the LTTE and GoSL signed a ceasefire agreement on February 22, 2002, fighting resumed several years later, culminating in GoSL's ultimate defeat of the LTTE in 2009. (ECF No. 547-1 ¶¶ 8-9; ECF No. 549 ¶¶ 8-9 (citing to Gunaratna Report at 16).) During its period of activity, the LTTE provided some services usually performed by governments to residents of the controlled territories, such as public health, education, and economic development, though the parties dispute the extent and duration of this role by the LTTE. (ECF No. 547-1 ¶ 10; ECF No. 549 ¶ 10.) Plaintiffs' expert characterized the LTTE's humanitarian activities as both a means to raise funds that were then diverted to terrorism, as well as a way garner support from the local population who benefitted from the aid. (ECF No. 552, Ex. 60 at 48 (“Gunaratna Report”).)

The LTTE maintained a multi-branch military during its war with the GoSL, as well as a cadre of suicide bombers known as the “Black Tigers.” (ECF No. 557 ¶¶ 82-83, 86-87.) Members of the Black Tigers who carried out suicide attacks were celebrated by LTTE supporters, and certain videos of terrorist activities were turned into propaganda for the LTTE. (Id. at ¶¶ 88-90.)

The LTTE's leader, Velupillai Prabhakaran (“Prabhakaran”), exercised tight control over the group and publicly advocated for violent resistance to the GoSL. (ECF No. 557 (Defs. Response to Pls. Supplemental SOMF in Dispute) ¶¶ 62-69.) Another prominent LTTE leader was Anton Balasingham (“Balasingham”), who served a spokesperson and political strategist for the organization, along with his wife, Adele Balasingham. (Id. at ¶¶ 71-74.) In his deposition, Defendant Raj claimed Balasingham is a “family member.” (ECF No. 547-1 ¶ 44.) The LTTE's “political” wing was led by Saippah Param Tamilselvan (“Tamilselvan”). (ECF No. 557 ¶ 170.)

In 1996, Congress amended the Immigration and Nationality Act to authorize the Secretary of State “to designate an organization as a foreign terrorist organization” if certain factors were met. (Id. at ¶ 6 (citing 8 U.S.C. § 1989).) On October 8, 1997, the Secretary of State designated the LTTE as a Foreign Terrorist Organization (“FTO”). (Id.; ECF No. 547-1 ¶ 6.) Designating a group as an FTO allows the United States to impose legal consequences on the organization itself as well as its associates, including criminal penalties for knowingly providing financial or other material support to the FTO. See Krishanthi v. Rajaratnam, Civ. A. No. 09-05395, 2010 WL 3429529, at *1 (D.N.J. Aug. 26, 2010). Defendants were aware the LTTE was designated an FTO. (ECF No. 557 ¶ 62.)

Nonetheless, LTTE allies outside of Sri Lanka created means of supporting the LTTE, including in the United States. A prominent LTTE member, Veerakathi Manivannan, also known as “Castro,” was the head of the LTTE's International Communications Office. (Id. at ¶ 96.) Castro was responsible for coordinating with LTTE branches around the world, collecting and transferring funds to the LTTE, and distributing LTTE propaganda. (Id. at ¶ 96.) One such branch, the World Tamil Coordinating Committee (“WTCC”), was headquartered in Queens County, New York. (Id. at ¶¶ 34-36.) The head of the WTCC, Karunakaran Kandasamy (“Karuna”), was arrested by the United States in 2006 and later pled guilty to providing material support to the LTTE by transferring funds from the TRO-USA. (Id. at ¶¶ 37-38.) Vijayshanthar Patpanathan (“Chandru”), another eventual target of federal law enforcement, was the secretary of the WTCC and a major fundraiser for it and the TRO-USA. (Id. at ¶ 41.)

2. History of the Tamil Rehabilitation Organization and TRO-USA

The Tamil Rehabilitation Organization (“TRO”) was formed around 1985, though the parties dispute the motivation behind its founding. A source cited by both Plaintiffs and Defendants explains “[t]he origins of the TRO are controversial, with some claiming that the organization was founded by Tamil refugees and members of the Tamil diaspora, and others alleging that the TRO was founded by the LTTE as its relief and rehabilitation wing, and as TEEDO's [Tamil Eelam Economic Development Organization] external arm.” (ECF No. 549 ¶ 12 (citing ECF No. 548, Ex. 61 (“An Institutional History of the LTTE”) at 47); ECF No. 547-1 ¶ 12 (also citing to An Institutional History of the LTTE at 47, ECF No. 547-3, Ex. 2).) As of 2007, the TRO's stated mission was “to provide immediate relief and short term and long term rehabilitation for the people of Srilanka.” (ECF No. 547-1 ¶ 13 (quoting ECF No. 547-3, Ex. 11 at 1); ECF No. 549 ¶ 13.) The TRO was registered as a non-governmental organization in Sri Lanka from around 2002 to around 2007. (ECF No. 547-1 ¶ 14; ECF No. 549 ¶ 14.) The TRO had offices throughout Sri Lanka, at least following the 2002 ceasefire (ECF No. 547-1 ¶ 15; ECF No. 549 ¶ 15), and in other countries, including in the United States (the TRO-USA)⁴ (ECF No. 547-1 ¶ 16). In Sri Lanka, the TRO performed at least some aid work; the parties agree the TRO built schools in certain areas of the country. (ECF No. 547-1 ¶ 18 (citing ECF No. 547-3 Ex. 4 at 1029; Gunaratna Report at 51; Gunaratna Deposition at 246:17-248:20); ECF No. 549 ¶ 18.) Defendants also assert the TRO played an active role in rehabilitating Sri Lanka after the nation was struck by a tsunami in December 2004, though Plaintiffs generally deny these statements as unverifiable and improper statements of opinion. (ECF No. 547-1 ¶¶ 21-27; ECF No. 549 ¶¶ 21-27.) The Executive Director of the TRO in Sri Lanka was Kanthalingam Permaragi (“K.P. Regi”), a former LTTE member. (ECF No. 557 ¶ 169.) Other former LTTE members held positions within the TRO in Sri Lanka. (Id. at ¶ 174.)

4 Per the Articles of Incorporation submitted into evidence by Defendants, the TRO-USA was incorporated in Maryland on December 12, 1994. (ECF No. 547-3 Ex. 28.)

The parties also dispute the TRO-USA's purpose for raising funds in the United States, for how long it maintained 501(c)(3) tax status in the United States, and how it distributed U.S.-raised funds in Sri Lanka. (ECF No. 547-1 ¶¶ 28-31; ECF No. 549 ¶¶ 28-31.) For the purposes of this motion, the parties agree the TRO-USA facilitated procurement operations for the LTTE in the United States, including “the purchase of munitions, equipment, communication devices, and other technology.” (ECF No. 557 ¶ 54 (quoting ECF No. 552-8, Ex. 111 at 1).) An affidavit from a TRO accountant states the Rajaratnam Family Foundation was “the largest private contributors [sic] to the TRO in Sri Lanka,” (Id. at ¶ 309 (quoting ECF No. 552-8, Ex. 115 ¶ 12)), and the TRO in turn diverted “roughly 50%” of its funds to the LTTE (Ex. 115 ¶ 16).

Following an investigation by the U.K. Charity Commission, the TRO office in the United Kingdom (“TRO-UK”) was shut down by authorities in 2002 for transferring funds to the LTTE. (Id. at ¶ 186.) Previously, some TRO-USA funds had been transferred to the TRO in Sri Lanka through the TRO-UK. (Id. at ¶¶ 151-52.) The organizers of the TRO-UK then began using another group, known as White Pigeon, to transfer funds to the TRO in Sri Lanka. (Id. at ¶¶ 188-91.)

On November 15, 2007, the United States Department of Treasury designated the TRO-USA as a Specially Designated Global Terrorist Organization (“SDGT”) because of its ties to the LTTE, noting in its press release the TRO raised funds for the LTTE “through a network of individual representatives” and was “the preferred conduit of funds from the United States to the LTTE in Sri Lanka.” (ECF No. 550 (Pls. Supplemental SOMF in Dispute) ¶¶ 44-45, 180, 321; ECF No. 547-1 ¶ 45.)

3. Defendants and their Contributions to the TRO-USA and TRO in Sri Lanka

Defendant Jesuthasan and his son, Defendant Raj, were both born in Sri Lanka and later emigrated to the United States, where they became citizens. (ECF No. 547-1 ¶¶ 32-33; ECF No. 557 (Defs. Response to Pls. Supplemental SOMF in Dispute) ¶¶ 1-5.) In the 1990s, Defendant Raj founded a hedge fund and affiliated companies known as the Galleon Group, through which he amassed sufficient wealth to be included on the Forbes magazine's list of the world's wealthiest people in 2007. (ECF No. 547-1 ¶ 34; ECF No. 549 ¶ 34; ECF No. 557 ¶ 8.)

Generally, the parties agree Defendants gave millions of dollars to the TRO-USA before it was designated an SDGT, and Defendants admit the TRO-USA received this designation because the Department of Treasury determined the TRO-USA served as a “conduit of funds from the United States to the LTTE in Sri Lanka.” (ECF No. 557 ¶¶ 44-45.) However, the parties dispute whether Defendants knew the TRO and TRO-USA funneled money to the LTTE, whether Defendants intended to contribute to the LTTE, and whether the funds provided in fact aided and abetted the LTTE's terrorist activities.

It is undisputed that, between 1996 and 2006, Defendant Raj gave large sums personally to the TRO in Sri Lanka and the TRO-USA, totaling in the millions of dollars. (ECF No. 549 ¶ 36; ECF No. 557 ¶¶ 47-51.) Defendant Jesuthasan personally gave around $43,150 to the TRO-USA between 1998 and 2004. (ECF No. 557 ¶ 51.)

Included among Defendant Raj's contributions were three checks to the TRO-USA between July 3 and September 1, 2000, one for $300,000 and two for $350,000, totaling $1 million. (ECF No. 557 ¶ 149.) In a sentencing submission from the U.S. Attorney's Office for the Eastern District of New York, the Government described how the funds supplied by Defendant Raj, identified as “Individual B,” were transferred from the TRO-USA's account to an account controlled by the TRO's office in London, where they were withdrawn in cash as British Pounds. (Id. at ¶¶ 151-52 (quoting Ex. 163, U.S. v. Vinayagamoorthy, et al., 1:06-cr-00616, The Government's Sentencing Submission, at 17 n.7).) Defendant Raj admitted to being Individual B. (Id. at ¶ 152.) While the Government characterized these payments as a donation to the LTTE motivated by the group's attack on the GoSL at Elephant Pass in 2000, Defendants dispute these checks were intended as a donation to the LTTE. (Id. at ¶ 150.)

In November 2000, Defendant Jesuthasan and his wife incorporated The Rajaratnam Family Foundation, Inc. (“RFF”) in the state of New Jersey; it received tax-exempt 501(c)(3) status from the Internal Revenue Service in February 2001. (ECF No. 557 ¶¶ 25-26.) Defendant Jesuthasan was the RFF's President, and Defendant Raj was its treasurer. (Id. at 28.) Defendants contributed $7,468,767.00 to the RFF between tax years 2002 and 2008, or 99% of its total contributions. (Id. at ¶ 27.) In that timeframe, the RFF made payments to the TRO in Sri Lanka and TRO-USA of just over $6 million. (Id. at ¶¶ 29, 52-53.)

The parties also agree Defendant Raj created a Delaware corporation called Tsunami Relief, Inc. (“Tsunami Relief”) in December 2004. (Id. at ¶ 30.) Defendant Raj donated $2.5 million to Tsunami Relief in January 2005. (Id. at ¶ 31.) Between 2005 and 2006, Tsunami Relief donated $2.5 million to the TRO in Sri Lanka, and $1 million to the TRO-USA. (Id. at ¶ 33.) Between personal contributions and those made through their foundations, Defendants contributed approximately $11 million to the TRO. (Id. at ¶ 300.)

a. Plaintiffs' Version of Defendants' Involvement ⁵

5 Defendants dispute some elements of the following account but admit to others, at least for the purposes of this Motion. (ECF No. 557.)

Plaintiffs contend Defendants were among the largest contributors to both the TRO-USA and TRO in Sri Lanka and intended the funds they gave to support the LTTE, pointing primarily to Defendants' personal ties to those affiliated with the LTTE and Defendants' statements or activities. For example, Defendant Jesuthasan published materials justifying the LTTE's violent activities. (Id. at ¶¶ 81, 211, 235.) On trips to Sri Lanka, both Defendants met with leaders of the LTTE, including Castro (id. at ¶¶ 97, 225), Prabhakaran (id. at ¶¶ 223-26, 231 (admitting Defendant Jesuthasan met with Prabhakaran), 288-90 (disputing Defendant Raj met with Prabhakaran)), and Tamilselvan (id. at ¶ 232 (admitting Defendant Jesuthasan met with Tamilselvan)). Defendants knew Balasingham and his wife, and Defendant Raj purchased a home for the Balasinghams in London in 2003. (Id. at ¶¶ 76-77.) Defendant Raj also told a journalist writing a book of interviews with prominent LTTE members in 2008 that Balasingham had shared with him that the LTTE never intended to agree to a ceasefire with the GoSL. (Id. at ¶¶ 290-91.) In a letter written by the WTCC leader Karuna to Balasingham in 2002 requesting a meeting for Defendant Jesuthasan with Prabhakaran, Karuna described Defendants “operating at the forefront in providing financial support to our freedom struggle.”⁶ (Id. at ¶¶ 221-22.)

6 Defendants contest that this language refers to them. (Id. at ¶ 222.) The subject line of the letter indicates the entirety of the letter relates to Defendant Jesuthasan and his wife's upcoming visit to Sri Lanka. (ECF No. 552-12, Ex. 171.)

Plaintiffs point to record evidence indicating Defendants coordinated closely with leadership in the TRO in Sri Lanka and the TRO-USA. Plaintiffs cite several sources indicating Defendant Raj's three contributions to the TRO-USA between June and September 2000 were made in response to the LTTE's successful attack on the GoSL at Elephant Pass (the “Elephant Pass Attack”). (Id. at ¶¶ 146 (citing ECF No. 552-12, Ex. 185 at 50 (transcript of recording where WTCC secretary Chandru says, “when [the LTTE] attacked the Elephant Pass . . . Rajaratnam gave one million”)); 150 (Ex. 163, U.S. v. Vinayagamoorthy, et al., 1:06-cr-00616, The Government's Sentencing Submission, at 16-17); 153 (admitting Chandru invoked his Fifth Amendment Right against self-incrimination when asked to confirm Defendant Raj gave $1 million to the LTTE following the Elephant Pass attack); 327 (citing Ex. 97 at 1013:20-1014:11).) The TRO in Sri Lanka's accountant, formerly a member of the LTTE, also described the RFF as “the largest private contributors [sic] to the TRO in Sri Lanka,” and stated Defendants were well-known and respected among the LTTE leadership. (552-9, Ex. 115 at ¶¶ 12-13.) The accountant's affidavit describes how the TRO's charitable projects “were inflated . . . to divert money to the LTTE,” with roughly 50% of TRO funds being so diverted from 2003 to 2006. (Id. at ¶ 16.)

Also in evidence are several emails between Defendants and K.P. Regi, the leader of the TRO in Sri Lanka and a member of the LTTE, discussing how and when to send funds to Sri Lanka. (Id. ¶¶ 301-05; 318-20; 323-25.) In November 2005, Defendant Raj emailed K.P. Regi to confirm receipt of $1 million sent to the TRO and requesting a progress report and a receipt. (ECF No. 552-13, Ex. 179 at 171.) In May 2006, K.P. Regi exchanged emails with a Galleon Group employee, Jogalingam Yogakumar (“Yogakumar”), where K.P. Regi asked that Defendant Raj send $450,000 to the TRO-USA because $450,000 had already been transferred from White Pigeon, the U.K.-based group, and another Malaysian group. (ECF No. 557 ¶ 303.) In June 2006, K.P. Regi sent follow up emails to both Defendant Raj and Yogakumar to further coordinate where to send funds and to confirm the receipt of $1 million. (ECF No. 552-13, Ex. 179 at 175-76.) Several months later, after the GoSL froze the accounts of the TRO in Sri Lanka, K.P. Regi sent an email containing an appeal for aid to Defendant Jesuthasan, which acknowledged the TRO's accounts in Sri Lanka were frozen. (ECF No. 557 at ¶ 318.) Defendant Jesuthasan asked how funds could be sent in those circumstances, and K.P. Regi responded that the TRO in Sri Lanka was continuing to collect money overseas and funneling it through other organizations, including White Pigeon. (Id. at ¶¶ 318-20.) K.P. Regi sent Defendants several emails following the TRO's SDGT designation requesting Defendants send funds to the TRO and providing account information for banks in the United Kingdom and Norway. (Id. at ¶¶ 324-25.)

Documents seized by the Federal Bureau of Investigation (“FBI”) at the WTCC headquarters also indicate a high degree of coordination between the WTCC (the LTTE's U.S.based arm) and the TRO-USA, including that WTCC and TRO-USA leaders would meet monthly and send meeting minutes to the LTTE, and that WTCC leaders should avoid going to TRO offices. (ECF No. 557 at ¶¶ 162-64.) FBI photos from the WTCC office in New York show a donation box that instructed donors to make checks payable to the TRO. (Id. at ¶ 166.) Documents seized by the FBI of the TRO-USA's offices also referenced military weapons the TRO attempted to procure for the LTTE. (Id. at ¶ 204.) At a WTCC event, Defendant Jesuthasan asked attendees to donate to the legal defense fund for LTTE members imprisoned for assassinating the former Prime Minister of India, Rajiv Ghandi. (Id. at ¶ 108.) The WTCC organized an annual event called “Heroes' Day,” or “Maaveerar Naal” in Tamil, honoring those who died in support of the LTTE cause, including LTTE combatants and suicide bombers. (Id. at ¶¶ 109-10, 114.) On November 23, 2004, Defendant Raj wrote a check to the WTCC for $1,000, with “Maaveerar Naal” in the memo line. (Id. at ¶¶ 137-38.) Defendant Raj testified he wrote the check at the request of Defendant Jesuthasan. (Id. at ¶ 137.)

Other sources indicate the TRO's ties to the LTTE were known by the international community, even if not formally acknowledged by the U.S. government until 2007. In 1997, Dr. Gunaratna published a book describing the TRO as the “rehabilitation wing of the LTTE,” which TRO donors understood was also used “to procure weapons.” (Id. at ¶ 196.) “In 1995, 1997, and 2006, the Canadian Government denied the Canadian TRO charity tax exempt status due to its close relationship with Tamil rebels with the Canada Revenue Agency noting, ‘TRO Canada appears to operate within the overall structure of the LTTE.'” (Id. at ¶ 197 (quoting Gunaratna Report at 57).)

Defendants also engaged with LTTE supporters during and after an attempt to facilitate the removal of the LTTE's FTO designation, which resulted in criminal charges for certain individuals. In 2004, Father Gaspar Raj, an LTTE supporter, came to the United States with instructions to explore the possibility of getting the FTO designation lifted. (Id. at ¶ 264-65.) Speaking with a confidential informant working for the FBI (the “CI”), Gaspar Raj indicated Defendant Jesuthasan would provide the funds to bribe a U.S. State Department official. (Id. at ¶ 268.) Gaspar Raj called Defendant Jesuthasan on June 29, 2004, and planned to visit him at his home. (Id. at ¶¶ 269-71.) At Defendant Jesuthasan's home, Defendant Jesuthasan, Gaspar Raj, and the CI discussed their desire to see the FTO designation lifted. (Id. at ¶ 273.) Gaspar Raj stated Defendant Jesuthasan would discuss the plan to get the LTTE ban lifted directly with Prabakharan. (Id. at ¶ 275.) The FBI's CI subsequently arranged several meetings between an undercover law enforcement officer posing as State Department official and LTTE supporters, including Nachimuthu Socrates, in the United States between September 17, 2004 (the “September 17 Meeting”), and April 19, 2005. (Id. at ¶¶ 276-77.) Following the September 17 Meeting, where the undercover law enforcement officer suggested a payment around $6 or $7 million would be necessary to remove the LTTE's FTO status, Mr. Socrates called Defendant Jesuthasan and requested directions to his home in New Jersey. (Id. at ¶¶ 277-78.) In 2006, Gaspar Raj was included in a criminal complaint filed by the U.S. Attorney for the Eastern District of New York for attempting to bribe a U.S. Government employee on behalf of the LTTE. (Id. at ¶ 280.) In December 2007, Gaspar Raj requested a charity contribution toward a carnival fundraiser event and/or a pediatric ambulance from Defendant Raj. (Id.; ECF No. 552-12, Ex. 170 at 1-2.) Defendant Raj wired $25,000 to the account. (ECF No. 552-12, Ex. 170 at 1.)

b. Defendants' Version of Defendants' Involvement

Defendants contend their contributions to the TRO-USA and TRO in Sri Lanka were intended as charitable gifts to provide humanitarian aid in Sri Lanka to victims of the civil war and the December 2004 tsunami. (ECF No. 547-1.) Defendants point to reports by the TRO, UNICEF, journalists, and academics indicating the TRO partnered with prominent non-governmental organizations to deliver humanitarian aid in Sri Lanka, particularly in the wake of the tsunami. (Id. at ¶¶ 23-26.) Defendants list some of the contributions they made to the TRO-USA, TRO in Sri Lanka, WTCC, and other organizations with ties to the Tamil community in Sri Lanka and note all these organizations were legally registered charities or universities at the time Defendants contributed. (Id. at ¶¶ 35-37.) Defendant Raj described in his deposition that he donated to the TRO for humanitarian purposes and attempted to evaluate how the funds were being spent, including by involving his sister, who had experience in development work, through trips to Sri Lanka to see TRO's efforts on the ground, and by requesting progress reports from TRO leaders like K.P. Regi. (Id. at ¶¶ 38-39.) Defendant Raj also gave money to the GoSL in 2003 to fund land mine detection efforts and the construction of housing. (Id. at ¶ 42.) Defendants' Tsunami Relief organization received over $7 million in donations from the public, and about $2 million was sent to the TRO. (Id. at ¶ 40.) After the Treasury Department designated the TRO-USA as an SDGT, Defendants did not contribute further to the TRO, per Defendant Raj's deposition. (Id. at ¶ 46.)

B. Procedural History

This litigation has a lengthy procedural history, the relevant parts of which are summarized here. Plaintiffs filed their initial complaint on October 22, 2009, against Defendants⁷and TRO-USA.⁸(ECF No. 1.) The initial complaint included claims under the ATS for aiding and abetting crimes against humanity (Count I), aiding and abetting acts of terrorism (Count II), common-law reckless disregard (Count III), negligence (Count IV), wrongful death (Count V), survival (Count VI), and negligent or intentional infliction of emotional distress (Count VII). (Id.) Defendants filed a Motion to Dismiss all claims on December 15, 2009. (ECF Nos. 19, 23.) After briefing by the parties (ECF Nos. 39, 40), the Court dismissed Counts II through VI and parts of Counts I and VII but allowed Plaintiffs to move forward with their claims for aiding and abetting crimes against humanity, in violation of the ATS (Count I) and IIED (Count VII). (ECF No. 48.)

7 Plaintiffs originally filed suit against Jesuthasan in his individual capacity. When he passed away on June 16, 2014, Plaintiffs moved to substitute the Estate as a defendant, and the Court granted the substitution. (ECF Nos. 173, 189, 192.)

8 TRO-USA filed a Motion to Dismiss on March 12, 2010, for lack of personal jurisdiction. (ECF No. 35.) In the Court's August 26, 2010 Order granting in part and denying in part TRO-USA's and Defendants' Motions to Dismiss, the Court reserved on the question of personal jurisdiction. (ECF No. 49.) TRO-USA then filed a Second Motion to Dismiss on November 23, 2010. (ECF No. 60.) Following jurisdictional discovery ordered by the Court (ECF Nos. 71, 81), and the announcement of the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (ECF No. 141), the Court dismissed the Complaint as to TRO-USA without prejudice on April 28, 2014 (ECF No. 162). Plaintiffs filed an Amended Complaint on June 13, 2014. (ECF No. 163.) TRO-USA moved to dismiss the Amended Complaint on August 1, 2014 (ECF No. 174), and the Court granted the motion (ECF No. 186). While the dismissal was without prejudice, Plaintiffs did not further amend the Complaint to cure the jurisdictional defects as to TRO-USA. (Id.) As a result, TRO-USA is no longer a party to this matter.

Plaintiffs then amended their complaint on June 13, 2014 (“First Amended Complaint” or “FAC”). (ECF No. 163.) Defendant Raj filed an Answer to Plaintiffs' Amended Complaint on August 1, 2014 (ECF No. 178), and Defendant Estate filed its Answer on December 23, 2014 (ECF No. 194). The parties agreed to proceed with bifurcated discovery, with Phase I to focus on the issue of Defendants' liability, “other than discovery regarding circumstances specific to each individual Plaintiff.” (ECF No. 193 ¶ 2.) Phase II discovery would concern “circumstances specific to each individual Plaintiff, including Plaintiffs' damages, and discovery as to who carried out the underlying terrorist acts alleged in Plaintiffs' Complaint.” (Id.) Phase I discovery was initially scheduled to be completed by July 15, 2015 (id. at ¶ 3) but was extended multiple times over the course of this litigation and finally completed in early 2024 (ECF No. 544). In the interim, Plaintiffs sought and received leave to amend the complaint twice. (ECF Nos. 225, 384.) Plaintiffs' Second Amended Complaint (ECF No. 225) and Third Amended Complaint (ECF No. 384) added new individual Plaintiffs. Defendants filed their Amended Answers to the Third Amended Complaint on November 20, 2018. (ECF Nos. 385, 386.) On May 22, 2019, this action was assigned to the undersigned from the Honorable Jose L. Linares, U.S.D.J. (ECF No. 413.)

Following the close of discovery, Defendants filed their Motion for Summary Judgment. (ECF No. 547.) Plaintiffs filed an opposition to the Motion (ECF No. 549), and Defendants filed a reply in support of the Motion (ECF No. 556).

II. Legal Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “On motions for summary judgment, the movant shall furnish a statement which sets forth material facts as to which there does not exist a genuine issue, in separately numbered paragraphs citing to the affidavits and other documents submitted in support of the motion.” L. Civ. R. 56.1(a). A party asserting a genuine dispute of material fact must support the assertion by either “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). A factual dispute “is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party,” and “is material only if it might affect the outcome of the suit under governing law.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Unsupported allegations, subjective beliefs, or argument alone, however, cannot forestall summary judgment.” Read v. Profeta, 397 F.Supp.3d 597, 625 (D.N.J. 2019) (citations omitted). Irrelevant or unnecessary factual disputes will also not preclude a grant of summary judgment. See Anderson, 477 U.S. at 248. Additionally, “mere speculation does not create genuine issues of material fact.” Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 Fed.Appx. 209, 215-16 (3d Cir. 2011) (citing Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990)).

The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a movant adequately supports its summary judgment motion, the burden shifts to the nonmovant to “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial.” Id. at 324. “In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.'” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (quoting Anderson, 477 U.S. at 255). In other words, in deciding a party's summary judgment motion, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 255. “Summary judgment is appropriate only when there are no genuine issues of material fact, drawing all justifiable inferences in favor of the nonmovant.” Adams v. Fayette Home Care & Hospice, 452 Fed.Appx. 137, 139 (3d Cir. 2011) (citing Anderson, 477 U.S. at 248, 255).

If the moving party bears the burden of proof at trial, summary judgment is not appropriate if the evidence is susceptible to different interpretations or inferences by the trier of fact. Hunt v. Cromartie, 526 U.S. 541, 553 (1999); see also id. at 553 n.9 (noting “summary judgment is rarely granted in a plaintiff's favor in cases where the issue is a defendant's racial motivation, such as disparate treatment suits under Title VII or racial discrimination claims under 42 U.S.C. § 1981”). On the other hand, if the non-moving party bears the burden of proof at trial, “summary judgment is warranted if the nonmovant fails to ‘make a showing sufficient to establish the existence of an element essential to [its] case.'” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (alteration in original) (quoting Celotex Corp., 477 U.S. at 322). A “genuine issue as to any material fact” cannot exist if a party fails “to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322-23. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323. A material fact raises a “genuine” dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Borough of W. Chester, 891 F.2d 458, 459 (3d Cir. 1989) (quoting Anderson, 477 U.S. at 248).

III. Decision

Defendants ask this Court to grant summary judgment in their favor and dismiss both the ATS and IIED claims. Defendants contend Plaintiffs' ATS claim is both impermissibly extraterritorial and not cognizable based on jurisprudential developments since the Court last evaluated this issue. (ECF No. 547-2 at 21-34.) Defendants also argue Plaintiffs have not put forth sufficient evidence to create a genuine dispute of material fact as to any of the elements of aiding and abetting crimes against humanity or IIED. (Id. at 34-42.) Alternatively, Defendants assert IIED claims by Plaintiffs added in the Amended Complaints are time-barred. (Id. at 42-46.)

For their part, Plaintiffs maintain there are genuine issues of material fact that preclude summary judgment in Defendants' favor and ask the Court to allow Phase II discovery and an eventual trial to proceed. Plaintiffs view the Court's prior rulings as establishing the law of the case on the ATS issues Defendants raise here and assert there is no basis to diverge from them. (ECF No. 551 at 6-26.) Plaintiffs also contend the evidence produced at this stage creates genuine issues of material fact on the aiding and abetting and IIED claims. (Id. at 27-43.) Among other things, Plaintiffs argue both claims require determinations of witness credibility and intent, tasks which the Third Circuit has cautioned are best left to a jury. (Id. at 31-36; 38.) Plaintiffs also contend Defendants waived any statute of limitations defense they had to the IIED claims added via amendment. (Id. at 42-49.) In the alternative, Plaintiffs ask the Court to reserve ruling on the statute of limitations issues until Phase II discovery is completed. (Id. at 49-50.)

Before considering the parties' arguments regarding the two claims, the Court briefly addresses challenges Defendants raise in reply to the admissibility of Plaintiffs' record evidence (ECF No. 556), as questions of admissibility necessarily influences the Court's determination on the existence or absence of material disputes of fact. See Celotex Corp., 477 U.S. at 324; Fraternal Ord. of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016).

A. Admissibility of Evidence

In their reply brief, Defendants challenge numerous statements in Plaintiffs' Supplemental Statement of Material Facts in Dispute⁹ as based on inadmissible evidence, including statements where Defendants acknowledge the materiality but dispute their veracity. (ECF No. 556 at 28-29; ECF No. 557 ¶¶ 146, 150, 153, 172, 219, 226, 268, 327.) Plaintiffs support many of the disputed statements with deposition testimony and transcripts of recordings from the CI who participated in federal prosecutions of LTTE supporters in the United States. (ECF No. 552-7, Ex. 96; ECF No. 552-12, Ex. 166.) Other statements relate to the expert report by Dr. Gunaratna. (ECF No. 552-7, Ex. 60.)

9 Defendants also complain of statements within Plaintiffs' Supplemental Statement of Material Facts in Dispute that are unsupported, “wholly or partly unintelligible,” and blur the line between argument, opinion, and fact. (ECF No. 556 at 27-28.) To the extent the Court agrees with this characterization, it has not included such statements in its review of the facts and analysis.

Defendants argue many of the factual statements supported by these sources relate to facts not material to the Motion. (ECF No. 556 at 28.) Regarding the CI's testimony, Defendants note they previously moved to preclude any testimony from the CI for improper payment, which this Court denied without prejudice, and request an opportunity to renew that motion. (Id. at 28-29 (citing ECF Nos. 388, 395).) Defendants also take issue with the scope of Dr. Gunaratna's expert report, arguing his statements are not founded on a reliable methodology and act as a “conduit for inadmissible evidence.” (Id. at 29 (citing Gilmore v. Palestinian Interim Self-Government Auth., 843 F.3d 958, 972 (C.A.D.C. 2016)).) Specifically, Defendants contend Dr. Gunaratna's report improperly supports factual assertions about the structure and operations of the LTTE, the meaning of the Heroes' Day celebration, and what was publicly known about connections between the TRO and LTTE. (Id.)

“It is well settled that only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). “Indeed, Fed.R.Civ.P. 56(c) provides that a party may argue that certain material in the record ‘cannot be presented in a form that would be admissible in evidence' and that, as a result, the material cannot be relied on to create or negate a genuine factual dispute.” Evans v. City of Newark, Civ. A. No. 14-00120, 2023 WL 2535283, at *9 (D.N.J. Mar. 16, 2023). “In ruling on a motion for summary judgment, the court need only determine if the nonmoving party can produce admissible evidence regarding a disputed issue of material fact at trial. The proponent need only ‘explain the admissible form that is anticipated.'” Fraternal Ord. of Police, 842 F.3d at 238 (quoting Advisory Committee note to Fed.R.Civ.P. 56 2010 amendment); see also Celotex Corp., 477 U.S. at 324 (“[T]he nonmoving party [is not required to] produce evidence in a form that would be admissible at trial in order to avoid summary judgment[.]”). This is significant because “a single, non-conclusory affidavit or witness's testimony, when based on personal knowledge and directed at a material issue, is sufficient to defeat summary judgment or judgment as a matter of law.” Cappuccio v. Prime Cap. Funding LLC, 649 F.3d 180, 189 (3d Cir. 2011), as amended (Sept. 29, 2011). Conversely, “substantive law [identifies] which facts are material,” a separate inquiry from evidentiary admissibility and a question of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Cnty. of Gloucester v. Princeton Ins. Co., 317 Fed.Appx. 156, 159 (3d Cir. 2008) (“An issue is “material” only if the dispute over facts ‘might affect the outcome of the suit under the governing law.'” (quoting Anderson, 477 U.S. at 248)).

Defendants take issue with the CI's testimony and the Gunaratna Report primarily because they contend their contents are not material to the issues in dispute. (ECF No. 556 at 28.) As it is the Court's purview to determine the applicable substantive law (and both parties may present what they believe to be material), the Court will make its determination on materiality in evaluating the substantive law. See Anderson, 477 U.S. at 248; Cnty. of Gloucester, 317 Fed.Appx. at 159.

Regarding Defendants' prior motion to preclude the CI's testimony, while it is true the Court denied the prior motion without prejudice, it did so more than four years before Defendants filed this Motion. (ECF No. 395 (dated February 13, 2019).) In denying the motion to preclude, Judge Dickson stated Defendants' motion was premature because Defendants had not completed the investigation into the CI they contended was necessary. (ECF No. 395 at 9-10.) Judge Dickson also stated this motion should be heard “at a time the Court ultimately deems appropriate,” such as “dispositive motion practice or the trial of this matter.” (Id. at 9 n.5.) Subsequently, Judge Dickson issued an Amended Scheduling Order instructing the parties that “Dispositive motions regarding Phase I liability along with a potential motion to exclude evidence shall be filed on or before April 8, 2024[.]” (ECF No. 546 (emphasis added).) As the CI's deposition was completed on January 23, 2024 (ECF No. 544), Defendants had ample time to raise the motion to preclude again in conjunction with the Motion, as instructed by Judge Dickson (ECF No. 546). As Defendants could have re-filed their motion to preclude this testimony and chose to raise this issue only on reply, the Court does not deem it appropriate to address these issues now.¹⁰

10 This approach aligns with the general rule in this District that “[a] moving party may not raise new issues and present new factual materials in a reply brief that it should have raised in its initial brief.” D'Alessandro v. Bugler Tobacco Co., Civ. A. No. 05-5051, 2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007) (quoting Ballas v. Tedesco, 41 F.Supp.2d 531, 533 (D.N.J.1999)).

Defendants similarly had nearly three years to challenge the methodology of the Gunaratna Report (ECF No. 479 at 3 (letter from Defendants' counsel indicating they received the Gunaratna Report in the fall of 2021)) and raised this issue only on reply (ECF No. 556), despite the instructions from Judge Dickson in the Amended Scheduling Order (ECF No. 546). Indeed, Defendants also include excerpts of the Gunaratna Report in the record and cite to it in their Statement of Material Facts. (ECF Nos. 547-3, 547-1.) Additionally, a review of the cases to which Defendants cite in challenging the methodology indicates they addressed expert reports going far beyond the acceptable and “flexible” bounds of expert reliability. Gilmore, 843 F.3d at 972 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999)) (finding district court properly excluded expert report with unclear methodology that concluded a particular soldier carried out killing of plaintiffs' family member because it was “unclear how [his] approach differed from that of a layperson”); see also Linde v. Arab Bank, PLC, 920 F.Supp.2d 282, 284 (E.D.N.Y. 2011) (rejecting defendants' experts because they irrelevantly sought to “enhance” defendant's image through character evidence and the motives of suicide bombers, among other things). Dr. Gunaratna appears to have an extensive research background on the LTTE, authoring books on terrorism in general and articles on the LTTE in particular (ECF No. 552, Ex. 60 at 3) and has provided expert testimony on behalf of the Department of Justice on multiple occasions (ECF No. 525-4 (C.V. of Dr. Rohan Gunaratna) at 5); see also United States v. Jayyousi, 657 F.3d 1085, 1106-07 (11th Cir. 2011) (affirming admissibility of testimony of Dr. Gunaratna's expert testimony in criminal prosecution related to terrorism in response to challenge of methodology); United States v. Abdi, 498 F.Supp.2d 1048, 1068-70 (S.D. Ohio 2007) (admitting Dr. Gunaratna as an expert witness on “world terrorism”); United States v. Hassoun, No. 04-60001-CR-BROWN, 2007 WL 4180847, at *6-8 (S.D. Fla. Nov. 20, 2007) (denying defendant's motion for a new trial based in part on Dr. Gunaratna's testimony on “key membership and violent tactics” of terrorist group). Though admittedly the Court does not have the benefit of a full briefing on the Daubert factors, Dr. Gunaratna's previous admissions as an expert witness indicate to the Court his testimony is likely capable of being admitted. See Fraternal Ord. of Police, 842 F.3d at 238. This Court has admitted testimony by a similarly credentialed expert on terrorism with a history of testimony in federal prosecutions. Duka v. United States, Civ. A. No. 13-3664, 2015 WL 5768786, at *13-18 (D.N.J. Sept. 30, 2015) (finding failure to object to terrorism expert's credentials and methods did not constitute ineffective assistance of counsel, given previous federal testimony and accepted methodology). To the extent the Gunaratna Report makes assessments of Defendants' intent or motive, the Court does not include those statements in its analysis. But the Court does not now see why the Gunaratna Report is wholly inadmissible, especially when Dr. Gunaratna has a history of expert testimony, and Defendants rely on parts of the Gunaratna Report in their own Statement of Material Facts.

The Court's decision to consider these materials at this juncture is buttressed by the fact that the parties still have another round of discovery ahead. Defendants will have another opportunity to move for summary judgment and to move to preclude this evidence following the completion of Phase II discovery. Defendants may also challenge this evidence in advance of trial, as suggested by Judge Dickson. (ECF No. 395 at 9 n.5.)

B. Alien Tort Statute Jurisdiction

Defendants ask the Court to revisit the validity of Plaintiffs' ATS claim in light of several significant Supreme Court decisions on the statute since this Court's 2010 and 2014 decisions on motions to dismiss. Krishanthi v. Rajaratnam, Civ. A. No. 09-05395 (DMC), 2010 WL 3429529 (D.N.J. Aug. 26, 2010) (ECF No. 49) (“Krishanthi I”); Krishanthi v. Rajaratnam, Civ. A. No. 2:09-05395 (JLL), 2014 WL 1669873 (D.N.J. Apr. 28, 2014) (ECF No. 161) (“Krishanthi II”). First, Defendants contend the Supreme Court's decision in Nestle USA, Inc. v. Doe, 593 U.S. 628 (2021), “definitively foreclose[s] Plaintiffs' aiding and abetting ATS claim” as outside “the limited territorial reach of that statute.” (ECF No. 547-2 at 21.) Second, Defendants assert Supreme Court precedent also eliminated the possibility of ATS causes of action premised on aiding and abetting liability. (Id. at 29-34 (citing Jesner v. Arab Bank, PLC, 584 U.S. 241 (2018); Nestle, 141 S.Ct. at 1937-39 (Thomas, Gorsuch, and Kavanaugh, J.J., concurring)).)

Plaintiffs respond that both the availability of aiding and abetting as a cause of action and the issue of extraterritoriality were decided in Krishanthi I and Krishanthi II, respectively, and those decisions rightfully constitute the law of the case. (ECF No. 551 at 7.) Plaintiffs maintain the jurisprudence Defendants cite did not change the law at issue such that maintaining the prior decisions would result in “a manifest injustice.” (Id. (quoting Christianson v. Colt Indus. Operating Corp., 486, U.S. 800, 817 (1988)).) Plaintiffs refute Defendants' contention that Jesner foreclosed any aiding and abetting liability under the ATS by pointing to language from that case indicating it was concerned with only foreign corporations, not U.S. individuals like Defendants, and applied the same test from Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), as Krishanthi I. (ECF No. 551 at 21-36.) On the extraterritoriality question, Plaintiffs argue the Court's prior opinion “relied on Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108 (2013) in evaluating the claims in this case,” and Kiobel's “touch and concern” test for determining whether a claim has sufficient domestic conducts is unaffected by Nestle. (Id. at 7, 11-20.)

In reply, Defendants maintain Nestle and Jesner constitute substantial changes in the scope of ATS jurisdiction from the precedents this Court relied upon in Krishanthi I and Krishanthi II. Defendants argue Nestle's holding requires concluding the tortious conduct relevant to the ATS's “focus”-violations of the law of nations-is in Sri Lanka, and an aiding and abetting claim does not allow a court to shift its lens to other domestic activity allegedly done in support of that violation. (ECF No. 556 at 5-8.) Defendants also reiterate that Sosa, Jesner, and Nestle all agree the ATS “permit[s] a very narrow class of additional federal common law causes of action” beyond the historical three recognized at the time of its passage,¹¹and allowing for aiding and abetting liability would be “impossible to reconcile with current ATS jurisprudence.” (Id. at 11-14.)

11 These causes of action are “piracy, the violation of safe conduct, and the infringement of the rights of ambassadors.” (Id. at 11 (citing Jesner, 584 U.S. at 254).)

1. Law of the Case

The law of the case doctrine “‘limits relitigation of an issue once it has been decided' in an earlier stage of the same litigation.” Hamilton v. Leavy, 322 F.3d 776, 786 (3d Cir. 2003) (quoting In re Continental Airlines, Inc., 279 F.3d 226, 232 (3d Cir. 2002)). Reconsideration of a prior decision may be appropriate “if any of the following ‘extraordinary circumstances' are present: ‘(1) there has been an intervening change in the law; (2) new evidence has become available; or (3) reconsideration is necessary to prevent clear error or a manifest injustice.'” Am. C. L. Union v. Mukasey, 534 F.3d 181, 188 (3d Cir. 2008) (citation omitted). When new evidence is available at a later stage, reconsideration is appropriate only if it “differs materially from the evidence of record when the issue was first decided and if it provides less support for that decision .... [I]f the evidence at the latter stage provides more support for the decision made earlier, the law of the case doctrine will apply.” Hamilton, 322 F.3d at 787.

Plaintiffs contend neither the new evidence nor the changes in the law encapsulated by Nestle and Jesner require disturbing the rulings on aiding and abetting liability under the ATS (Krishanthi I) and on extraterritoriality (Krishanthi II) (ECF No. 551 at 7), while Defendants view these decisions as a sea change that precludes Plaintiffs' ATS claim entirely (ECF No. 547-2 at 21, 29-34). The Court will first assess to what extent the law of the case applies to Krishanthi Is aiding and abetting liability determination and Krishanthi II's extraterritoriality analysis and then conduct any further analysis required.

2. Aiding and Abetting Liability

Defendants argue that, “[s]ince this Court last examined the issue in 2010, the Supreme Court has clarified that the limited subset of international law claims courts may hear under the ATS does not include allegedly helping to fund terrorist conduct overseas.” (Id at 29-30.) Defendants assert the narrow door Sosa opened to “new federally created causes of action allowed under the ATS,” on which Krishanthi I was based, was closed in Jesner, where the Supreme Court refused to recognize an aiding and abetting claim based on an international bank's alleged role in channeling money to a terrorist organization. (Id. at 31.) Defendants cite the Supreme Court's discussion of the very limited authority courts have to create private causes of action, particularly in the area of foreign relations, where separation-of-powers concerns are heightened. (Id. at 32 (citing Jesner, 584 U.S. at 264, 265; Nestle, 141 S.Ct. at 1937-39 (Thomas, Gorsuch, and Kavanaugh, J.J., concurring); Doe v. Exxon Mobil Corp., 391 F.Supp.3d 76, 81 (D.D.C. 2019)).) In Jesner, the Supreme Court compared the ATS to the Anti-Terrorism Act (“ATA”), which explicitly permits aiding and abetting actions by U.S. nationals against defendants who aid terrorist activity, to conclude “there should be no common-law action under the ATS for allegations like petitioners'.” (Id. at 33 (quoting Jesner, 584 U.S. at 268).) Defendants argue the logic of Jesner applies here because there is no justification for recognizing a judicially created cause of action for foreign plaintiffs against those who assisted a foreign terrorism group, and there is no comparable statutory cause of action for U.S. nationals. (Id.)

Plaintiffs refute Defendants' contention that Jesner presents a reason to revisit Krishanthi I's holding. (ECF No. 551 at 21 (quoting ECF No. 48 at 20).) Plaintiffs assert Sosa-on which Krishanthi I was decided, and which Defendants treat as bad law-remains sound despite Jesner and Nestle. (Id. at 22-23.) Plaintiffs argue Defendants misconstrue the “lynchpin” in the Supreme Court's determination that aiding and abetting liability could not lie in Jesner as the defendant's conduct, when it was the defendant's “status as a foreign corporation.” (Id. at 23.) Additionally, Plaintiffs point to language in Jesner that indicates the ATA analogy is imperfect because the ATS creates a cause of action only for foreign nationals, and the Supreme Court did not analyze “whether aiding and abetting is a recognized norm.” (Id. at 24.) Further, Plaintiffs note Jesner applied “the two-step inquiry established in Sosa,” and the Supreme Court declined to overrule Sosa in Nestle. (Id. at 24-25.) Plaintiffs also cite several cases to assert that aiding and abetting liability “is well established under the ATS,” as affirmed by “every circuit to consider the issue.” (Id. at 25-26 (quoting Aziz v. Alcolac, Inc., 658 F.3d 388, 396 (4th Cir. 2011) and Doe v. Cisco Sys., 73 F.4th 700, 717 (9th Cir. 2023)).)

Defendants respond that the Court's role at this stage, with discovery on liability completed, is to “consider whether the factual evidence presented by Plaintiffs could possibly justify an “aiding and abetting” claim today under the ATS,” though this section of the brief makes no reference to discovery materials. (ECF No. 556 at 10.) Instead, Defendants return to language from Jesner and Nestle indicating “the ‘principal objective' of the ATS is to ‘avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen'” to argue Plaintiffs' claim is beyond the statute's reach. (Id. at 11 (quoting Jesner, 584 U.S. at 255 (citing Sosa, 542 U.S. at 715-19)).) Defendants contend allowing Plaintiffs to bring an aiding and abetting cause of action would permit suit against “any person who, through ‘domestic' conduct, allegedly ‘aids and abets' any international law violation, anywhere in the world, committed by anyone in the world,” contrary to the teachings of Sosa and subsequent Supreme Court precedent. (Id. at 11-12.)

In Krishanthi I, this Court found Sosa required identifying “a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized” before allowing a common law cause of action premised on the law of nations to proceed. 2010 WL 3429529, at *5 (quoting Sosa, 542 U.S. at 724-25). Noting the Third Circuit had not addressed the issue of aiding and abetting liability under the ATS, the Court looked to decisions from the Second and Ninth Circuits and other federal district courts, all of which “recogniz[ed] the existence of aiding and abetting liability pursuant to the ATS.” Id. at *7 (citing Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 260 (2d Cir. 2007); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009); Doe I v. Unocal Corp., 395 F.3d 932, 947 (9th Cir. 2002) In re Terrorist Attacks on September 11, 2001, 392 F.Supp.2d 539 (S.D.N.Y. 2005); Ntsebeza v. Daimler AG (In re S. African Apartheid Litig.), 617 F.Supp.2d 228, 298 (S.D.N.Y. 2009); Lizarbe v. Rondon, 642 F.Supp.2d 473, 491 (D. Md. 2009); Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164, 1173 (C.D. Cal. 2005); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86, 100 (D.D.C. 2003); Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1355 (N.D.Ga. 2002)). Having concluded Plaintiffs' theory of liability was viable, this Court followed Sosa's instruction, guided by decisions from the Third, Second, and Ninth Circuits, to find “crimes against humanity” was “a norm of international law that is sufficiently definite, specific and obligatory.”¹² Id. at *10. In Krishanthi II, the Court declined Defendants' request to revisit whether Plaintiffs stated a claim for aiding and abetting liability (and, implicitly, the propriety of such a claim). 2014 WL 1669873, at *11.

12 As Plaintiffs note, Defendants' opening brief does not contest this Court's conclusion that crimes against humanity violate the law of nations, or that the Complaint alleges such a violation; it only challenges the Court's judgment that the ATS permits claims of secondary liability. (ECF No. 551 at 21-22.) On reply, Defendants refute they waived this issue, arguing implicitly that “crimes against humanity” does not meet the standard for ATS liability articulated in Sosa. (ECF No. 556 at 13 n.3.) Because this issue is not germane to the Court's analysis of Defendants' challenges to the ATS cause of action, the Court will not resolve this dispute. However, the Court does note the Supreme Court has acknowledged crimes against humanity is now an element of customary international law, see Jesner, 584 U.S. at 259-60 (“In modern times, there is no doubt, of course, that ‘the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights,' leading ‘the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest.'” (citing Filartiga v. PenaIrala, 630 F.2d 876, 890 (2d Cir. 1980)), and federal courts have consistently found crimes against humanity satisfies the Sosa test, see, e.g., Mamani v. Berzain, 654 F.3d 1148, 1152 (11th Cir. 2011) (“Broadly speaking, this Court has decided that ‘crimes against humanity' . . . may give rise to a cause of action under the ATS.”); Licci by Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 213 (2d Cir. 2016) (“These allegations adequately plead acts of genocide and crimes against humanity. Therefore, Plaintiffs have satisfied their burden to assert a cause of action grounded in actions recognized as violations of the law of nations.”); Jane W. v. Thomas, 560 F.Supp.3d 855, 886-89 (E.D. Pa. 2021) (finding, on summary judgment, defendant liable for violation on ATS based on crimes against humanity); C.D.A. v. United States, No. CV 21-469, 2023 WL 2666064, at *18 n.22 (E.D. Pa. Mar. 28, 2023) (“[I]t is generally agreed upon that jus cogens includes the prohibitions of aggression, genocide, crimes against humanity, racial discrimination, slavery, and torture.”) (finding sovereign immunity would not bar ATS claim based on violation of jus cogens on crimes against humanity); Sexual Minorities Uganda v. Lively, 960 F.Supp.2d 304, 316 (D. Mass. 2013) (“[P]ersecution that rises to the level of a crime against humanity has repeatedly been held to be actionable under the ATS.”); Aragon v. Che Ku, 277 F.Supp.3d 1055, 1065-66 (D. Minn. 2017) (“Federal case law has ‘fairly well established that the [ATS] provides jurisdiction over cases involving various forms of official or state sponsored torture, genocide, war crimes, crimes against humanity[.]'” (quoting 14A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3661.2 (4th ed., Apr. 2017 Update)).

Upon review of Krishanthi I, the case law on which its holding was based, Jesner and Nestle, and district and circuit court opinions interpreting those two cases, the Court agrees with Plaintiffs that Krishanthi I remains law of the case.

First, Plaintiffs are correct: Jesner does not preclude aiding and abetting liability under the ATS. Jesner was specifically concerned with the ATS's capacity to create any liability for foreign corporate defendants. The Supreme Court's formulation of the question raised by the parties makes this clear:

Petitioners contend that international and domestic laws impose responsibility and liability on a corporation if its human agents use the corporation to commit crimes in violation of international laws that protect human rights. The question here is whether the Judiciary has the authority, in an ATS action, to make that determination and then to enforce that liability in ATS suits.

Jesner, 584 U.S. at 249 (emphasis added). Applying Sosa's two-part test, the Supreme Court concluded there was insufficient evidence of a “specific, universal, and obligatory norm of corporate liability under currently prevailing international law.” Id. at 261 (emphasis added). And in evaluating whether allowing the case to proceed would be a proper exercise of judicial discretion in light of the political branches' particular role in foreign relations, the Supreme Court remarked, “[t]his caution extends to the question whether the courts should exercise the judicial authority to mandate a rule that imposes liability upon artificial entities like corporations.” Id. at 264 (emphasis added). The opinion concludes: “Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS.” Id. at 272. Nowhere does the Supreme Court opine on the propriety of aiding and abetting liability, much less in the context of individuals.

Because Jesner presented a limited holding applicable only to corporate defendants and relied on Sosa to reach its conclusion, it does not represent the kind of “extraordinary circumstance” that would counsel reconsidering Krishanthi I. See Mukasey, 534 F.3d at 188. Defendants intimate the Nestle decision builds on Jesner to foreclose aiding and abetting liability, citing to Part III of the opinion of the Supreme Court, where Justices Thomas, Kavanaugh, and Gorsuch declared “[w]e cannot create a cause of action that would let [respondents] sue petitioners.” Nestle, 593 U.S. at 634. (ECF No. 547-2 at 32, ECF No. 556 at 12-13.) But Defendants acknowledge Part III is a concurrence offering a separate rationale to reject the claim at issue and represents only three Justices. As another district court asked to revisit its prior decision on aiding and abetting liability following Nestle said, “[w]here Defendants' claim that Nestle now bars an ATS cause of action . . . is grounded in reasoning adopted by only three members of the Supreme Court, the Court declines to reevaluate its consistent and repeated holdings that such a cause of action is viable.” Est. of Alvarez v. Johns Hopkins Univ., 598 F.Supp.3d 301, 315 (D. Md. 2022) (also rejecting defendants' claim Jesner foreclosed aiding and abetting claims under ATS), aff'd sub nom. Est. of Alvarez by & through Galindo v. Rockefeller Found., 96 F.4th 686 (4th Cir. 2024).

Indeed, since Krishanthi I, federal courts have continued to hold the ATS permits aiding and abetting liability. See, e.g., Doe I v. Cisco Sys., Inc., 73 F.4th 700, 716-24 (9th Cir. 2023) (“We now revisit the question [of aiding and abetting liability] and conclude again, in agreement with every circuit to have considered the issue, that aiding and abetting liability is a norm of customary international law with sufficient definition and universality to establish liability under the ATS.”);¹³ Licci, 834 F.3d at 214 (“Aiding and abetting is a theory of liability recognized by customary international law.... Accordingly, Plaintiffs have pleaded a theory of liability over which we have subject matter jurisdiction.”); Aziz, 658 F.3d at 396-98 (“Following the lead of our sister circuits, we conclude that aiding and abetting liability is well established under the ATS[.]”) (internal quotations omitted); Balintulo v. Ford Motor Co., 796 F.3d 160, 167 n.35 (2d Cir. 2015) (analyzing ATS claim for aiding and abetting a violation of the law of nations); Est. of Alvarez, 598 F.Supp.3d at 315; Sexual Minorities Uganda, 960 F.Supp.2d at 320 (“Aiding and abetting liability under the ATS has been accepted by every circuit court that has considered the issue.”); accord Al Shimari v. CACI Premier Tech., Inc., 684 F.Supp.3d 481, 504 (E.D. Va. 2023) (finding aiding and abetting liability under ATS would not create separation-of-powers issues where U.S. military contractors were accused of torture); Nahl v. Jaoude, Civ. A. No. 15-9755, 2018 WL 2994391, at *4 (S.D.N.Y. June 14, 2018) (acknowledging availability of aiding and abetting liability under ATS but finding plaintiffs failed to state a claim). In contrast, Defendants do not cite to a case where a court found aiding and abetting liability was unavailable under the ATS as a matter of law.¹⁴ In light of the continued acceptance of aiding and abetting liability under the ATS and the soundness of Krishanthi I's reasoning following Jesner and Nestle, the Court will not reconsider its prior holding. See Hamilton, 322 F.3d at 787-88; Mukasey, 534 F.3d at 188.

13 Defendants argue Cisco Sys., 73 F. 4th at 713, the first Circuit Court of Appeals decision to consider this question following Nestle, was wrongly decided and is “pending rehearing” en banc. (ECF No. 556 at 9.) Since Defendants' reply was filed, the Ninth Circuit denied the request for an en banc hearing and affirmed the panel decision. Doe I v. Cisco Sys., Inc., 113 F.4th 1230 (9th Cir. 2024). Moreover, Defendants' view on the Ninth Circuit's jurisprudential propriety does not outweigh the consistent approach taken by the Ninth Circuit and other courts on this issue. As cited, this Court has also identified other district court opinions that considered this question in the wake of Nestle and affirmed the viability of aiding and abetting claims under the ATS.

14 Defendants cite Doe v. Exxon Mobil Corp., 391 F.Supp.3d 76 (D.D.C. 2019) (ECF No. 556 at 12 n.2; ECF No. 547-2 at 32), but the dismissal in this case turned on Jesner's holding on corporate liability, not the availability of secondary liability. See Exxon Mobil, 391 F.Supp.3d at 93 (“The Supreme Court's prior precedents counsel against creating a private right of action in this case. International law has not extended the scope of liability to corporations.... Also, separation of powers and foreign relations concerns lead the Court to decline to recognize domestic corporate liability under the ATS in circumstances where, as here, the claims have caused significant diplomatic strife.”).

3. Extraterritoriality

Defendants also argue Plaintiffs' ATS claim is not viable because, in the wake of Nestle and another Supreme Court case, RJR Nabisco, Inc., et al. v. European Community, 579 U.S. 325 (2016), it is now clear the claim is outside the territorial reach of the statute. (ECF No. 547-2 at 21-23.) Defendants assert the only activities on U.S. soil that could form the basis for Plaintiffs' ATS claim are Defendants' donations to the TRO-US, but this is an insufficient basis to rebut the presumption against extraterritoriality. (Id. at 22-23.) In support, Defendants cite to RJR Nabisco, where the Supreme Court instructed courts to look at “the conduct relevant to the statute's focus” when evaluating extraterritorial application and found the plaintiff needed to ‘“allege and prove a domestic injury' to its business or property in order to bring a RICO claim, because the ‘focus' of the civil RICO statute is to provide relief to ‘any person injured in his business or property.”' (Id. at 23 (quoting RJR Nabisco, 579 U.S. at 337, 346).) This same test was applied in Nestle, and the Court found the defendant corporation's domestic activities-decisions around financing and operations regarding its dealings with cocoa farms in the Ivory Coast-were insufficiently domestic to overcome the presumption. (Id. at 25 (citing Nestle, 141 S.Ct. at 1935-37).) Analogizing to these cases, Defendants contend the torts at issue are the LTTE's terrorist bombings, meaning the “focus” of the pertinent conduct and the resulting injuries occurred in Sri Lanka. (Id. at 26.) Defendants argue the pertinent conduct cannot be their U.S.-based donations because aiding and abetting is not itself a tort “but merely a doctrine” which allows courts to impute liability for tortious conduct to an involved third party, and the relevant conduct for ATS purposes must be that which “directly cause[s] the injury.” (Id. (citing Nestle USA, 141 S.Ct. at 1936 (describing the position taken by the United States government as amicus)).)

In opposition, Plaintiffs contend Krishanthi II is law of the case because the opinion relied on the “touch and concern” test articulated by the Supreme Court in Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108 (2013), which they argue the Court reaffirmed in Nestle. (ECF No. 551 at 6-7.) Though Plaintiffs acknowledge this test was clarified in RJR Nabisco as a two-step inquiry-where the court first examines the statute for an affirmative indication of extraterritorial application and then, in the absence of such an indication, looks to the “conduct relevant to the statute's focus”- they view Nestle's application of that test as a reiteration of Kiobel's teaching that “mere corporate presence” in the United States does not rebut the presumption against extraterritoriality. (Id. at 1011 (quoting RJR Nabisco, 579 U.S. at 337; Kiobel, 569 U.S. at 124-25).) Regarding what conduct is the “focus” of the ATS for extraterritoriality analysis, Plaintiffs note the Supreme Court declined to answer this question in Nestle, and other courts have considered aiding and abetting conduct in the U.S., even when the actual injuries occurred abroad. (Id. at 7 (citing Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 530 (4th Cir. 2014); Cisco, 73 F.4th at 736), 11 (citing Mastafa v. Chevron Corp., 770 F.3d 170, 189 (2d Cir. 2014).) In response to Defendants' contention RJR Nabisco requires a plaintiff to assert a domestic injury, Plaintiffs argue this finding was specific to the civil RICO provision at issue, 18 U.S.C. § 1964(c), and unlike that statute, the ATS “is silent regarding the type of injury required,” focusing instead on the defendant's conduct. (Id. at 12-13.) Plaintiffs also refute Defendants' view that aiding and abetting is merely a doctrine of secondary liability, again pointing to cases that found “[a]iding and abetting a violation of international law constitutes an independent cause of action under the AT[S],” even if the injury occurred abroad. (Id. at 14-15 (quoting Krishanthi 1, 2010 WL 3429529, at *7).) Further, Plaintiffs reiterate Defendants' conduct within the United States is the focus of their claim, including Defendants' fundraising for the TRO via charities they established under U.S. law. (Id. at 9, 17 (citing ECF No. 550 and Defendant Raj Dep.).)

In Krishanthi II, this Court applied Kiobel's “touch and concern” test and determined the ATS provided for jurisdiction over Defendants. Krishanthi II, 2014 WL 1669873, at *8-10. Noting “Plaintiffs are . . . suing the Rajaratnam Defendants for their alleged actions that occurred within the United States,” without reference to “a single action taken by either Rajaratnam Defendant outside of the United States[,]” the Court highlighted the following alleged activities of Defendants as supporting jurisdiction under the ATS:

i) Jesuthasan Rajaratnam hosted meeting[s] with LTTE operatives and speakers for LTTE fundraisers at his home in New Jersey; ii) Rajakumara Rajaratnam personally gave $1,000,000 to TRO-USA, and this money was subsequently funneled to the TRO in Sri Lanka; iii) the Rajaratnam Defendants created corporations in order to contribute money to organizations supporting the LTTE; and iv) LTTE operatives identified Jesuthasan Rajaratnam as a source for money used to bribe United States officials in connection with LTTE's attempts to remove itself from the United States' list of FTOs.... Further, the Rajaratnam Defendants are United States citizens, and therefore, . . . this is not a case where a foreign national is being hailed into an unfamiliar court to defend himself.

Id. at *10 (internal citations and quotations omitted).

a. Application of Law of the Case Doctrine to Krishanthi II

To determine if this holding's status as law of the case should be disturbed, the Court must consider if Nestle and RJR Nabisco represent an intervening change in law, the evidence produced since Krishanthi II runs counter to the prior holding, or, for other reasons, maintaining the holding would produce manifest injustice. See Mukasey, 534 F.3d at 188; Hamilton, 322 F.3d at 787.

In Nestle, the Supreme Court referenced Kiobel's extraterritoriality analysis, relying on its finding that the ATS does not provide a “clear, affirmative indication” it should apply extraterritorially. Nestle, 593 U.S. at 632 (quoting RJR Nabisco, 579 U.S. at 337). However, the Supreme Court reframed the Kiobel test through the lens of RJR Nabisco, stating “where the statute, as here, does not apply extraterritorially, plaintiffs must establish that ‘the conduct relevant to the statute's focus occurred in the United States.'” Id. at 633 (quoting RJR Nabisco, 579 U.S. at 337) (emphasis added). The Nestle parties then argued over “what conduct is relevant to the “focus” of the ATS”-the “conduct that violates international law” (in that case, “aiding and abetting forced labor”) versus “the conduct that directly caused the injury.” Id. But the Supreme Court declined to resolve this dispute: “Even if we resolved all these disputes in respondents' favor [and considered the U.S.-based aiding and abetting conduct], their complaint would impermissibly seek extraterritorial application of the ATS.” Id. at 634. Ultimately, the Supreme Court determined alleging the U.S.-based corporate entities made all the operational decisions that led to the provision of technical and financial resources to cocoa farms employing child slave labor was “no better” than alleging mere corporate presence, as the plaintiffs did in Kiobel. Id.

In the wake of Nestle, at least one district court faced with a challenge to a pre-Nestle ruling on extraterritoriality determined the shift from Kiobel's “touch and concern” language to RJR Nabisco and Nestle's “focus” language necessitated a reevaluation of extraterritoriality in the case, despite recognizing the inquiries would be similar. Al Shimari, 684 F.Supp.3d at 492;¹⁵ see also Est. of Alvarez, 598 F.Supp.3d at 317 (describing the change from Kiobel to Nestle as “adjust[ing] the standard for assessing extraterritoriality” but not “defin[ing] the universe of such relevant conduct or narrow[ing] it to only the direct tortious conduct causing injury”). Additionally, since Krishanthi II, the parties have engaged in substantial discovery on the nature of Defendants' activities, both domestically and abroad, as evidenced by the parties' statements in accordance with Local Rule 56.1 and their respective response statements. (ECF Nos. 547-1, 549, 550, 557.) Under Third Circuit law of the case doctrine, this development would seem to necessitate inquiring whether the record evidence “differs materially from the evidence of record when the issue was first decided and if it provides less support for that decision.” Hamilton, 322 F.3d at 787 (remanding denial of summary judgment, implicitly based on law of the case doctrine, because between Third Circuit's prior decision and district court's opinion, “the parties engaged in discovery and supplemented the record,” possibly rendering law of the case doctrine “inapplicable”). On these bases, the Court finds it appropriate to revisit Krishanthi II's finding that Plaintiffs' cause of action is not an extraterritorial application of the ATS.

15 The Court reads the Fourth Circuit's test on when law of the case may be put aside as substantially similar to the Third Circuit's test. See generally TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009) (law of the case must be followed “unless: (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice” (quoting United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999))).

b. Application of Nestle “Focus” Inquiry

In the present case, it is necessary to answer the question the Supreme Court left open in Nestle: whether the “focus” of the ATS is the aiding and abetting conduct that violates international law, as Plaintiffs contend, or “the conduct that directly causes the injury,” as Defendants assert. Nestle, 593 U.S. at 633. Although the Supreme Court referenced the “domestic injury” language Defendants cite from RJR Nabisco, Nestle, 593 U.S. at 633, most courts considering ATS cases premised on secondary liability in the wake of Nestle have concluded U.S.-based aiding and abetting conduct may be properly considered in the extraterritoriality analysis. See Cisco, 73 F.4th at 737 (“Under the assumption the Supreme Court applied in Nestle II, in accord with the Second Circuit's approach in Mastafa, conduct within the United States that constitutes aiding and abetting a violation of international law, ‘even if other conduct [i.e., the principal's acts] occurred abroad,' is a violation of the law of nations that falls within the ‘focus' of the ATS.” (quoting Nestle, 141 S.Ct. at 1936); Est. of Alvarez, 598 F.Supp.3d at 317 (“[Nestle] did not, however, define the universe of . . . conduct [relevant to the statute's focus] or narrow it to only the direct tortious conduct causing injury.... Indeed, had a majority of the Court concluded that only direct tortious conduct may be considered, it would have defined the test in that manner, rather than choosing the more flexible ‘conduct relevant to the statute's focus' test that it adopted.” (citations omitted)); Al Shimari, 758 F.3d at 498 (“Accordingly, this Court agrees with [the Second, Ninth, and Eleventh] [C]ircuits that “‘actions from within the United States,' such as ‘aiding and abetting and conspir[ing]'” with a tortfeasor who is a U.S. national in a foreign country, may ‘displace the presumption against extraterritoriality if enough of the relevant conduct occurs domestically and if the allegations of domestic conduct are supported by a minimum factual predicate.'” (quoting Jara v. Nunez, 878 F.3d 1268, 1273 (11th Cir. 2018))); In re Chiquita Brands Int'l Inc. Alien Tort Statute & S'holders Derivative Litig., Civ. A. No. 08-01916, 2022 WL 22236064, at *9-10 (S.D. Fla. Aug. 23, 2022) (“Since Kiobel, federal courts have not limited their extraterritoriality inquiries to the situs of the direct tortious conduct and have indeed viewed the location of accessory liability conduct as relevant to assessing Kiobel's ‘touch and concern' test Nestle, however, did not detract from this approach.... It simply held, assuming without deciding, that domestic conduct can aid and abet a violation of international law that occurs overseas, [and] that the complaint in the case before it impermissibly sought an extraterritorial application of the ATS[.]”).

As there is no Third Circuit precedent to the contrary, the Court finds this reasoning persuasive. The “focus” of the ATS is a violation of the law of nations, and, as previously decided in Krishanthi I, 2010 WL 3429529, at *8-11, aiding and abetting crimes against humanity is a recognized violation of the law of nations for which the ATS provides a cause of action. See supra Part III.B.2; Sosa, 542 U.S. at 724-25; Cisco, 73 F.4th at 716-24. Therefore, the Court will assess if the conduct by Defendants that Plaintiffs contend aided and abetted the perpetration of crimes against humanity is sufficiently domestic to rebut the extraterritorial application of the ATS. As the non-moving party at summary judgment, Plaintiffs need only show a dispute of material fact exists as to the domestic connection required by Nestle. See, e.g., Jane W., 560 F.Supp.3d at 87677 (reviewing record evidence to determine presumption against extraterritorial application was displaced in ATS suit); Tanedo v. E. Baton Rouge Par. Sch. Bd., Civ. A. No. 10-01172, 2012 WL 5378742, at *6 (C.D. Cal. Aug. 27, 2012) (denying defendants' motion for summary judgment with respect to extraterritorial application of the Trafficking Victims Protection Act after review of record evidence); Medimpact Healthcare Sys., Inc. v. IQVIA Inc., Civ. A. No. 19-1865, 2022 WL 6281793, *24-26 (S.D. Cal. Oct. 7, 2022) (denying defendants' summary judgment motion with respect to extraterritorial application of the federal RICO statute based on record evidence); accord Roe v. Howard, 917 F.3d 229, 244-45 (4th Cir. 2019) (conducting extraterritoriality analysis based on “facts established at trial” in reviewing motion for judgment as a matter of law).

Defendants briefly address the sufficiency of the aiding and abetting conduct, without reference to any record evidence; rather, they assert broadly that Defendants' donations to the TRO or TRO-USA do not “draw a sufficient connection” to the aiding and abetting cause of action to rebut the presumption against extraterritoriality.¹⁶(ECF No. 547-2 at 29 n.12 (quoting Nestle, 141 S.Ct. at 1937).) As a threshold matter, the Court is skeptical Defendants' brief statements meet “the[ir] initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file' . . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323 (citing Fed.R.Civ.P. 56(c)). While it is true the moving party is not required to furnish materials “negating the opponent's claim,” Rule 56(c) requires the moving party to put forth enough information for the district court to “isolate and dispose of factually unsupported claims or defenses.” Id. at 323-24; see also Williams v. Allegheny Cnty., No. 23-2190, 2024 WL 3824643, at *1 (3d Cir. Aug. 15, 2024) (“[A] district court ‘may not rely solely on the statement of undisputed facts' when ruling on summary judgment. It is the movant's job to demonstrate why, under applicable law, the relevant facts entitle him to judgment as a matter of law.” (quoting Doeblers' Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006))).

16 Defendants also assert the Court previously held “Plaintiffs ‘have not shown that the injuries in this case arose from TRO's New Jersey [fundraising] activities.'” (ECF No. 547-2 at 29 n.12 (quoting ECF No. 161 (Krishanthi II)).) This language in Krishanthi II relates to the Court's finding it could not establish specific personal jurisdiction over the TRO because Plaintiffs' allegations did not meet the relatedness requirement, for which Plaintiffs needed to show but-for causation between the TRO's fundraising activities in New Jersey and their injuries. See Krishanthi II, 2014 WL 1669873, at *7-8. This finding is orthogonal to the presumption against extraterritoriality analysis as to Defendants. Establishing causation is not a requirement of the Nestle extraterritoriality analysis, only that the conduct at the focus of the ATS claim have a sufficient domestic connection. Nestle, 593 U.S. at 634.

But even assuming these assertions met Defendants' burden, Plaintiffs point to evidence in the record that, if viewed in the most favorable light, creates disputes of material fact as to the domestic nature of the conduct at issue. See Williams, 891 F.2d at 459. First, as this Court recognized in Krishanthi II, Plaintiffs are not “suing the LTTE for the actions it took in Sri Lanka. [They are] suing the Rajaratnam Defendants for their alleged actions that occurred within the United States” to aid and abet the LTTE. 2014 WL 1669873, at *11. Plaintiffs' brief in opposition (ECF No. 551) and Supplemental Statement of Material Facts in Dispute (ECF No. 550) cite to record evidence that might lead a reasonable jury to view Defendants' activities as sufficiently domestic. See Williams, 891 F.2d at 459. Plaintiffs' Supplemental Statement describes how, while in the United States, Defendant Raj donated $1,000,000 to the LTTE via the TRO-USA and other entities following a successful attack by the LTTE on the GoSL, supported by deposition testimony (including by Defendant Raj), check images, and excerpts of a sentencing submission prepared by the United States Attorney for the Eastern District of New York in a case prosecuting supporters of the LTTE. (ECF No. 540 at ¶¶ 146-54 (citing Exs. 75, 97, 112, 163, 185, 186), ¶ 327 (citing Ex. 97).) Plaintiffs also provide evidence of Defendant Jesuthasan's meetings with Gaspar Raj, a Sri Lankan national and LTTE supporter with strong ties to its leadership (ECF No. 550 at ¶ 259), in his New Jersey home in order to discuss a plan to bribe U.S. State Department officials to remove the LTTE from the FTO list, and how another individual, Nachimuthu Socrates, called Defendant Jesuthasan following a meeting with an undercover law enforcement officer posing as a State Department official interested receiving such a bribe (Id. at ¶¶ 265-78 (citing Exs. 97, 166)). And Plaintiffs have substantiated allegations Defendants created corporations in the United States to funnel money to the LTTE. Plaintiffs provide evidence Defendants contributed millions to the RFF and Tsunami Relief, U.S.-based entities created by Defendants, and those organizations passed these funds to the TRO and TRO-USA. (Id. at ¶¶ 294-96; 298-300). An affidavit from a TRO accountant states the RFF was “the largest private contributors [sic] to the TRO in Sri Lanka,” (Id. at ¶ 308 (quoting Ex. 115 at ¶ 12)), and the TRO in turn diverted “roughly 50%” of its funds to the LTTE (Ex. 115 at ¶ 16). While in the United States between November 2005 and July 2009, Defendants also emailed with K.P. Regi, a former LTTE member who became the TRO's Executive Director (ECF No. 550 at ¶ 169), to discuss how to facilitate the transfer of funds to the TRO after the GoSL and other foreign governments began to freeze the TRO's accounts for suspected terrorist activities (Id. at ¶¶301-05, 313-325), communications a reasonable jury could find constitute domestic conduct to assist the LTTE.

Additionally, Defendants admit they are U.S. citizens (ECF No. 557 at ¶¶ 1-2), another factor in favor of viewing Defendants' conduct as domestic. See, e.g., Al Shimari, 684 F.Supp.3d at 496-97 (“Notwithstanding the Supreme Court's conduct-centered approach reflected in its ‘focus' analysis, these types of connections between plaintiffs' claims and the United States are of ‘critical importance to analyzing the focus of the ATS,' and it would ‘contravene[] the focus of the ATS to disregard these facts entirely.”' (quoting Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 211 (5th Cir. 2017) (Graves, J., concurring in part, dissenting in part)).

Taken together, Plaintiffs present sufficient evidence the conduct at the “focus” of their ATS cause of action is domestic that a reasonable jury might credit. Nestle, 593 U.S. at 634; see also Williams, 891 F.2d at 459. Accordingly, Defendants' Motion for Summary Judgment as to the jurisdiction of the ATS is denied.

C. Aiding and Abetting Violation of the Law of Nations

On the merits of Plaintiffs' ATS claim, Defendants argue Plaintiffs cannot establish the necessary elements of secondary liability. (ECF No. 547-2 at 34.) In Defendants' view, a civil aiding and abetting claim requires two elements: “that the defendant had the specific purpose to support the particular act that harmed the plaintiff, and that the defendant actually rendered “substantial assistance” to the commission of that act.” (Id. (citations omitted).) Defendants characterize Krishanthi I's articulation of the elements as “that [Defendants] (1) provided practical assistance to LTTE that had a substantial effect on the perpetration of each ‘enumerated act' of terrorism that injured Plaintiffs and (2) acted with the purpose of ‘facilitating the commission of that crime.”' (ECF No. 547-2 at 35 (quoting Krishanthi I, 2010 WL 3429529 at *10).) Arguing this reading of Krishanthi I is law of the case and aligns with the recent Supreme Court decision in Twitter, Inc. v. Taamneh, et al., 598 U.S. 471 (2023), Defendants contend there is no evidence that could convince a jury of Defendants' specific intent to support “the specific LTTE terrorist attacks that harmed Plaintiffs,” or that they ‘“substantially assisted' those attacks” (Id. at 35-36).

Defendants cite excerpts of Defendant Raj's deposition, as well as the deposition of Dr. Gunaratna, to argue “there is no evidence [Defendants] knew their donations would be diverted to the LTTE” to fund the attacks that affected Plaintiffs.¹⁷(Id. at 36.) Defendants also point to other excerpts from Defendant Raj's deposition and communications to argue their intent was “to help Sri Lankans recover from decades of hardship, civil war, and the 2004 tsunami,” and “it is undisputable that Raj took proactive steps to see that his family's donations were being spent well in furtherance of his humanitarian goals.” (Id. at 38.) Defendants also contend any evidence Defendants knew their donations to the TRO might end up with the LTTE (and fund its acts of terror) would not provide the necessary mens rea. (Id. at 37.) Rather, evidence must show Defendants aided the LTTE for the purpose of perpetrating “the specific alleged terrorist bombings that injured Plaintiffs.” (Id.)

17 See ECF No. 547-2 at 36 (“Ex. 31 (Raj Dep) at 284:4-15 (“I was not aware [that the TRO facilitated LTTE procurement operations in the United States].”), Ex. 7 (Gunaratna Dep) at 104:14-105:1 (“No. I have no information that J.M. Rajaratnam was associated with funding one particular act of terrorism.”).”).

Additionally, Defendants argue no evidence establishes they provided practical assistance in any of the terrorist attacks impacting Plaintiffs because there is no evidence Defendants' donations funded those specific attacks.¹⁸(Id. at 39.) Defendants assert Plaintiffs' theory of liability only works if they can ascribe Defendants' assistance of the LTTE to any LTTE terrorist attack, not just those that affected Plaintiffs, and no reasonable jury could find Defendants had that level of involvement. (Id. at 39-40.)

18 Defendants contend this Court's prior ruling dismissing the claims against TRO for lack of personal jurisdiction already found the contributions made in New Jersey “did not cause the bombings that harmed Plaintiffs in Sri Lanka.” (Id. (citing ECF No. 161 at 13; ECF No. 186 at 8).) Again, because this holding related to a different party and a different question of law, the Court does not consider it relevant to the aiding and abetting analysis. Moreover, in the same opinion where this Court determined it did not have personal jurisdiction over the TRO, it affirmed the viability of an ATS aiding and abetting claim. See Krishanthi II, 2014 WL 1669873, at *11 (“Plaintiffs have stated a claim for aiding and abetting crimes against humanity under the ATS, and thus this Court will not re-consider this issue.”).

Plaintiffs agree Krishanthi I serves as law of the case on the elements of a claim for aiding and abetting a violation of the law of nations under the ATS but contest Defendants' framing. Plaintiffs argue Defendants' interpretation improperly adds to the Court's original language both that Defendants had to act with the specific purpose to harm Plaintiffs and that Defendants needed to provide “substantial assistance” in so doing. (ECF No. 551 at 28.) In support, Plaintiffs note that, in evaluating their allegations at the motion to dismiss stage, this Court “found it sufficient ‘that Defendants provided significant financial support to the LTTE for the purpose of facilitating terrorist attacks,'” without specifying which attacks. (Id. (quoting Krishanthi I, 2010 WL 3429529, at *10).) Plaintiffs also argue the cases Defendants cite to support their “enhanced” standard are inapposite, and some used a “knowledge” standard for mens rea, rather than “specific purpose.”¹⁹(Id. at 29-30 (citing Doe v. Cisco Sys., 66 F.Supp.3d 1239, 1248 (N.D. Cal. 2014); Cisco, 74 F.4th at 724; Twitter, 598 U.S. at 458).) In addition, Plaintiffs argue Twitter held it was not necessary to find a “strict nexus” between assistance and an act of terrorism, but that liability exists for foreseeable risks from a defendant's aiding and abetting. (Id. at 30 (quoting Twitter, 598 U.S. at 495).) Plaintiffs further distinguish Twitter as a case involving nonfeasance (there, the defendant's failure to remove content promoting terrorism), therefore requiring a higher showing of scienter, whereas this case involves misfeasance (funding the LTTE). (Id. at 30-31.)

19 While agreeing Krishanthi I is law of the case and enunciated a “purpose” standard, Plaintiffs also argue one of the cases they contend applied a “knowledge” standard, Cisco, 74 F.4th at 724, “provides a compelling reason for rejecting” the “purpose” standard approach of other circuits this Court considered at that time. (ECF No. 551 at 27 n.25.) Given both parties agree Krishanthi I's holding represents law of the case and included some degree of a “purpose” requirement, the Court sees no reason to evaluate if a “knowledge” standard should govern instead.

Plaintiffs therefore argue summary judgment is inappropriate on the issue of intent because the assessment of intent will turn on witness credibility issues, and disputes of material fact exist as to Defendants' intent. (Id. at 31.) Plaintiffs point to Third Circuit opinions indicating summary judgment is rarely appropriate on issues of knowledge and intent, which require inferences by the factfinder. (Id. at 31-32.) Regarding Defendants' characterization of the record evidence, Plaintiffs contend Defendants point only to “self-serving” statements and cannot rebut other record evidence of their actions and background. (Id. at 33-36 (citing Raj. Dep. throughout).)

Again, Plaintiffs argue Defendants have inserted an additional requirement into the actus reus this Court previously enunciated-that Defendants' contributions needed to have a “substantial effect” on the specific terrorist attacks by which Plaintiffs were harmed, rather than a “substantial effect” on the LTTE's terrorist activities more broadly. (Id. at 36.) Plaintiffs assert material disputes of fact remain as to whether Defendants' more than $17 million in contributions to the TRO provided practical assistance to the LTTE and “had a substantial effect on the LTTE's commission of deadly atrocities, including those that harmed Plaintiffs[.]” (Id. at 38.)

In reply, Defendants reiterate their view of the elements of aiding and abetting and refute Plaintiffs on both the law and facts of intent and the actus reus. (ECF No. 556 at 14-22.) Defendants counter Plaintiffs' reading of Twitter, arguing the standard it enunciated is that “a defendant must ‘associate himself with the venture, . . . participate in it as in something that he wishes to bring about, [and] seek by his action to make it succeed'” and applies equally to this case. (Id. at 15 (quoting Twitter, 598 U.S. at 490).) Defendants also maintain the record is “bereft” of evidence either Defendant knew the money given to the TRO “might be funneled to the LTTE.” (Id. at 16.) Contrary to Plaintiffs, Defendants argue the Third Circuit allows summary judgment when intent is a claim element. (Id. at 16-17.) Defendants also assert the evidence Plaintiffs cite regarding intent requires drawing improper inferences or substituting a negligence “should have known” standard for a “purpose standard.” (Id. at 19.) Additionally, Defendants contend Plaintiffs' reference to the $17 million Defendants gave the TRO does not contradict evidence showing Defendants gave funds to a variety of causes benefitting Sri Lankans and requested accountability for how their donations were spend from the head of the TRO. (Id. at 21-22.)

This Court previously held a claim for aiding and abetting a crime against humanity must demonstrate the defendant “1) provided practical assistance to the principal which had a substantial effect on the perpetration of the crime (2) for the purpose of facilitating the commission of that crime,” having proved the principal “committed an enumerated act as part of a widespread or systematic attack” against a civilian population “pursuant to or in furtherance of” a policy of an entity with de facto control over the population. Krishanthi I, 2010 WL 3429529, at *10. The Court's holding was based on two decisions from the Second Circuit, Presbyterian Church Of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009), and Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254 (2d Cir. 2007). See id. at *7. The Second Circuit in Talisman largely adopted the reasoning of Judge Katzmann's concurrence in Khulumani, Talisman, 582 F.3d at 258, which examined the international law foundations for aiding and abetting liability, in line with the holding of Sosa, Khulumani, 504 F.3d at 268 (Katzmann, J., concurring).

Judge Katzmann found the origins of aiding and abetting liability in the International Military Tribunal at Nuremberg (“Nuremberg Tribunal”) and subsequent international treaties. Id. at 270-75. Tracing secondary liability through international bodies of law, Judge Katzmann landed on the Rome Statute of the International Criminal Court (“ICC”) (the “Rome Statute”), which states “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC if that person . . . [f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission[.]” Id. at 275 (quoting the Rome Statute, July 17, 1998, 2187 U.N.T.S. 90, art. 25(3)(c)) (emphasis added). To interpret this standard, which had yet to be construed by the ICC, Judge Katzmann looked to a Nuremberg Tribunal prosecution where the case against a bank officer “alleged to have ‘made a loan, knowing or having good reason to believe that the borrower w[ould] use the funds in financing enterprises [conducted] in violation of either national or international law,' but . . . not proven to have made the loan with the purpose of facilitating the enterprises' illegal activities” was dismissed. Id. at 276 (quoting United States v. von Weizsaecker (The Ministries Case), in 14 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 308, 622 (William S. Hein & Co., Inc. 1997) (1949)). But Judge Katzmann qualified “[t]here are occasions when this intent could be inferred from such sales,” pointing to cases before the Supreme Court and the Nuremberg Tribunal where individuals sold “restricted goods with an inherent capacity for harm” while encouraging, training, or demonstrating to the purchaser how to use them to commit abuses. Id. at n.11. To determine the actus reus of “substantial assistance,” Judge Katzmann looked to a case before the International Criminal Tribunal of the Former Yugoslavia, which described the actus reus as “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” Id. at 277 (quoting Prosecutor v. Furundzija, Case No. IT-95-17/1, Trial Chamber Judgment, ¶ 235 (Dec. 10, 1998)). The Second Circuit in Talisman agreed, noting the Nuremberg Tribunal's “purpose standard has been largely upheld in the modern era, with only sporadic forays in the direction of a knowledge standard.” Talisman, 582 F.3d at 259.

In Talisman, a group of Sudanese plaintiffs who were victims of human rights abuses by the Government of Sudan sued Talisman, a Canadian energy company that owned a stake in a petroleum development company working in Sudan amidst its civil war, during which many human rights abuses were committed. Id. at 248. As part of its operations, Talisman and its subsidiary received protection from the government and state-sponsored militias that attacked civilian populations, and they built roads and upgraded airstrips the military used to conduct attacks Talisman acknowledged were likely violations of international law. Id. at 249-50. The Second Circuit determined Talisman's “contemplation” of expanding its operations into plaintiffs' territory did not constitute substantial assistance, but Talisman's financing of infrastructure projects and payment of oil royalties to the government might. Id. at 262. However, the Second Circuit found these payments were not made with the intention the money or infrastructure “be used for human rights abuses” because building infrastructure and paying government royalties were done for the purpose of Talisman's business. Id. The court noted that “[e]ven if Talisman built roads or improved the airstrips with the intention that the military would also be accommodated, [its subsidiary] had a legitimate need to rely on the military for defense” in the region during a civil war. Id. Talisman's application of the aiding and abetting standard supports Plaintiffs' interpretation of both the mens rea and actus reus elements. The Second Circuit considered whether Talisman's activities substantially assisted or were done with the intention of aiding “human rights abuses” writ large. Id. Subsequent applications of Talisman show analysis above the level of specific acts. See, e.g., Licci, 834 F.3d at 218-19 (finding plaintiffs adequately alleged aiding and abetting terrorist activities by Hezbollah where defendant bank had a policy of supporting Hezbollah's activities and facilitated wire transfers necessary to fund terrorist attacks, without reference to specific attacks); Est. of Alvarez v. Johns Hopkins Univ., 275 F.Supp.3d 670, 699-700 (D. Md. 2017) (denying motion to dismiss ATS aiding and abetting claim where plaintiffs alleged defendants, doctors involved in nonconsensual medical experiments, substantially assisted in abuses by providing materials, designing research protocols, analyzing data, and using research resources, and alleged purpose based on doctors' desire to answer medical questions with a large-scale human subject pool they could not create through consensual means); Brill v. Chevron Corp., Civ. A. No. 15-04916, 2017 WL 76894, at *6 (N.D. Cal. Jan. 9, 2017) (finding failure to allege purpose where defendant paid Iraqi regime to keep oil supply open, rather than to fund human rights abuses); Lev v. Arab Bank, PLC, Civ. A. No. 08-3251, 2010 WL 623636, at *2 (E.D.N.Y. Jan. 29, 2010) (denying motion to dismiss ATS aiding and abetting claim where terrorist groups solicited funds to be deposited in defendant bank and defendant administered financial structure to provide financial benefits to suicide bombers, without reference to specific attacks).

Defendants' references to Twitter do not alter the Court's analysis. First, it is important to remember the aiding and abetting standard at issue comes from sources of international law, see Khulumani, 504 F.3d at 268; while the Supreme Court's interpretation of the phrase “aid and abet” is persuasive, it deals with American common law notions of liability, Twitter, 598 U.S. at 488 (discussing early formulations of secondary liability from Blackstone's Commentaries on the Laws of England (1795), among other sources). That said, the Twitter opinion is more flexible than Defendants assert. Following an exacting survey of the development of aiding and abetting liability, the Supreme Court concluded it requires “a conscious, voluntary, and culpable participation in another's wrongdoing.” Id. at 493 (emphasis added). Through this review, the court also noted “courts often viewed those twin requirements [of mens rea and actus reus] as working in tandem, with a lesser showing of one demanding a greater showing of the other.” Id. at 492-93. In the Twitter case, the Supreme Court determined the question was “whether defendants gave such knowing and substantial assistance to ISIS that they culpably participated in the [specific attack that harmed the plaintiffs],” but it also acknowledged aiding and abetting “does not always demand a strict nexus between the alleged assistance and the terrorist act.”²⁰ Id. at 497.

20 The Supreme Court's discussion of the facts of Halberstam v. Welch, 705 F.2d 472 (C.A.D.C. 1983), a leading case on aiding and abetting liability, illustrates the flexibility of the nexus:

To be sure, Linda Hamilton was not on the scene for the burglary of Halberstam's house and did not lend any specific support to Halberstam's murder. But Hamilton's assistance to Welch was so intentional and systematic that she assisted each and every burglary committed by Welch; any time that Welch left the house to burglarize, he would have relied on Hamilton's assistance in laundering the stolen goods and transforming them into usable wealth. Thus, Hamilton did aid and abet Welch in burglarizing Halberstam's home-and, as noted above, killing Halberstam was a foreseeable consequence of that burglary.

Id. at 495 (internal citations omitted; emphasis added).

The Court therefore concludes Plaintiffs must show both that Defendants had the purpose to assist the LTTE's acts of terrorism through their financial support, and that they did in fact provide substantial assistance to the commission of the LTTE's campaign of terrorist attacks.

With this understanding, the Court finds Plaintiffs' evidence creates a dispute of material fact as to Defendants' substantial assistance of the LTTE. Defendants gave at least $11 million to the TRO-USA and TRO in Sri Lanka, personally and through the RFF and Tsunami Relief.²¹(ECF No. 557 ¶ 300.) The TRO's accountant stated Defendants were “the largest private contributors to the TRO in Sri Lanka,” and roughly 50% of TRO funds were diverted to the LTTE from 2003 to 2006. (ECF No. 552-9, Ex. 115 ¶¶ 12-13, 16.) Based on these facts, a reasonable jury could find Defendants' financial support of the LTTE constituted substantial assistance in its crimes against humanity. See, e.g., Talisman, 582 F.3d at 262.

21 The parties' briefings reference a sum of $17 million in donations (ECF No. 551 at 38; ECF No. 556 at 21-22), but Defendants admit to giving $11 million in Plaintiffs' Supplemental SOMF in Dispute (ECF No. 557 ¶ 300).

Whether Defendants had the purpose to further the LTTE's terrorist activities is admittedly a closer question. While there is significant record evidence on the facts of Defendants' contributions, far fewer documents or testimony provide insight into Defendants' mental states. Nonetheless, several pieces of evidence might lead a jury to conclude Defendants' donations were motivated by the desire to support the LTTE's acts of violence. Plaintiffs adduce evidence Defendants met with high-level members of the LTTE, including Prabhakaran, who directed the LTTE's activities and use of terrorism. (ECF No. 557 ¶¶ 223-26, 231, 288-90.) Defendants knew Balasingham and his wife, key figures in the political strategy of the LTTE, and Defendant Raj purchased a home for the Balasinghams in London in 2003. (Id. at ¶¶ 76-77.) In a letter written by the WTCC leader Karuna to Balasingham in 2002 requesting a meeting for Defendant Jesuthasan with Prabhakaran, Karuna described Defendants as “operating at the forefront in providing financial support to our freedom struggle.” (Id. at ¶¶ 221-22.) Defendant Jesuthasan met with Father Gaspar Raj, an LTTE supporter involved in a plot to bribe State Department officials, in New Jersey around the time of the bribery efforts. (Id. at ¶ 273.) Defendant Jesuthasan published materials offering justifications of the LTTE's violent activities (Id. at ¶¶ 81, 211, 235) and spoke at a WTCC event to encourage others to donate to the legal defense of LTTE members who assassinated the Prime Minister of India (Id. at ¶ 108). In 2000, Defendant Raj wrote a series of three checks to the TRO-USA total $1 million that Chandru, the WTCC secretary, characterized as in response to the LTTE's attack on Elephant Pass that year, and that money was transferred to the TRO-UK and subsequently withdrawn in cash. (Id. at ¶¶ 146-53.) Defendant Raj also gave a donation, at Defendant Jesuthasan's suggestion, to the WTCC for Heroes' Day, a commemoration of Tamils who died in the civil war between the LTTE and the GoSL, including LTTE members involved in terrorism. (Id. at ¶¶ 137-38.)

Additionally, Defendants corresponded with K.P. Regi to ensure their contributions were received when the accounts of TRO affiliates in Sri Lanka and the United Kingdom were frozen by government actors because those groups funneled money to the LTTE. (ECF No. 557 ¶¶ 303 (In May 2006, K.P. Regi asks Defendant Raj to send $450,000 to the TRO-USA because $450,000 had already been transferred from White Pigeon); 318-20 (In November 2006, Defendant Jesuthasan asks K.P. Regi how to send funds if TRO accounts are frozen in Sri Lanka; K.P. Regi responds TRO in Sri Lanka was continuing to collect money overseas through other organizations, including White Pigeon).) In combination with Defendants' sustained and significant financial support of the TRO over more than a decade, a reasonable jury could conclude Defendants intended to support the LTTE's political and military agenda, which included acts of terrorism.

Defendants contest these were their intentions and point to Defendant Raj's disavowal of any such purpose in his deposition (ECF No. 547-1 ¶¶ 56-57), as well as correspondence where Defendant Raj requested evaluations of and progress reports on projects he helped fund and documentation of a mine detection program Defendants help fund for the GoSL (Id. at ¶¶ 38-9, 42). However, this evidence of Defendants' intent conflicts with Plaintiffs' evidence of their actions; this alone calls for a jury's evaluation to resolve the dispute. See Williams, 891 F.2d at 459. Additionally, because the evidence creating the dispute largely comes in the form of Defendant Raj's testimony and communications, the resolution will turn on whether a factfinder finds Defendant Raj's disavowals of an intent to support terrorism credible. The Third Circuit has warned against granting summary judgment when dealing with questions of intent and witness credibility, thus counseling further against the Court's intervention in favor of Defendants at this juncture.²² See Justofin v. Metro. Life Ins. Co., 372 F.3d 517, 524-25 (3d Cir. 2004), as amended (Aug. 12, 2004) (“The issue of intent is ‘particularly inappropriate for resolution by summary judgment' because evaluating state of mind often requires the drawing of inferences from the conduct of parties about which reasonable persons might differ.” (quoting Riehl v. Travelers Ins. Co., 772 F.2d 19, 24 (3d Cir. 1985))); Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (“Issues such as intent and credibility are rarely suitable for summary judgment.”); Gillman v. Waters, McPherson, McNeill, P.C., 271 F.3d 131, 140 (3d Cir. 2001) (“Questions of waiver, therefore, are usually questions of intent, which are factual determinations that should not be made on a motion for summary judgment.” (quoting Shebar v. Sanyo Business Systems Corp., 544 A.2d 377, 384 (N.J. 1988))); Young v. Quinlan, 960 F.2d 351, 360 n.21 (3d Cir. 1992) (“When state of mind is an essential element of the nonmoving party's claim, resolution of the claim by summary judgment is often inappropriate because a party's state of mind is inherently a question of fact which turns on credibility.”).

22 As Defendants note, summary judgment can be granted when intent is an element of the cause of action. Summary judgment is only appropriate, however, when the non-moving party has not made “a sufficient evidentiary showing of the requisite intent.” F.D.I.C. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 57 Fed.Appx. 965, 967 (3d Cir. 2003) (also noting “it is generally difficult to resolve summarily a question of intent that is material to a cause of action”).

In light of the disputed facts regarding Defendants' intent, Defendants' Motion on the merits of the ATS aiding and abetting claim is denied.

D. Intentional Infliction of Emotional Distress

Defendants move for summary judgment on the IIED claim because they contend Plaintiffs cannot prove Defendants intentionally facilitated acts of terrorism, which Plaintiffs allege was an outrageous act, or that Defendants intended to cause distress to Plaintiffs, all elements of an IIED claim. (ECF No. 547-2 at 40.) Defendants assert Plaintiffs' evidence establishes only that Defendants gave money to “legally registered charities with well-documented records of legitimate and effective work,” which they argue is not outrageous conduct. (Id. at 41.) Additionally, Defendants insist Plaintiffs have not identified any evidence of Defendants' intent to cause their distress, or of a causal connection between Defendants' donations to the TRO and Plaintiffs' emotional distress. (Id. at 42.)

In response, Plaintiffs argue genuine issues of material fact remain as to the IIED elements. As in the ATS context, Plaintiffs contend the Court cannot rule on Defendants' intent and purpose in donating to the TRO on summary judgment because it would require determinations of witness credibility, a task for a jury. (ECF No. 551 at 38.) In addition, Plaintiffs assert evidence of Defendants' knowledge of the LTTE's terrorist activities made their provision of funds to the TRO in deliberate disregard of the likely emotional distress that would follow the LTTE's acts of terrorism, citing examples from Defendant Raj's deposition regarding his knowledge of the LTTE's activities and goals. (Id. at 41.) Plaintiffs supply cases in which courts determined financing terrorism may satisfy the outrageous conduct element of IIED. (Id. at 40.) Finally, Plaintiffs maintain there is evidence of a causal link between Defendants' donations to the TRO and Plaintiffs' harm, arguing “it is not necessary to trace specific funds from Defendants['] bank account to the specific act of terrorism.” (Id.)

“[I]n order to prevail on [a] common law claim [for intentional infliction of emotional distress], ‘the plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe.'” Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1115 (N.J. 2009); see also Covington v. Twp. of Hillside, Civ. A. No. 22-07461, 2021 WL 4272880, at *6 (D.N.J. Sept. 20, 2021) (citing Cole v. Laughrey Funeral Home, 869 A.2d 457, 464 (N.J.Super.Ct.App.Div. 2005)). “Determining the intent of the defendant is a question for the fact finder.” Smith v. Exxon Mobil Corp., 374 F.Supp.2d 406, 422 (D.N.J. 2005) (citing Wigginton v. Servidio, 324 N.J.Super. 114, 131 (App.Div.1999)). A plaintiff must also demonstrate the defendant's conduct is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Buckley v. Trenton Sav. Fund Soc., 544 A.2d 857, 863 (N.J. 1988) (citing Restatement (Second) of Torts § 46 cmt. d). New Jersey courts have characterized proximate cause as “as a standard for limiting liability for the consequences of an act based upon mixed considerations of logic, common sense, justice, policy and precedent.” Taylor v. Fontenot, Civ. A. No. 05-1911, 2007 WL 9782881, at *3 (D.N.J. Aug. 8, 2007) (quoting Scafidi v. Sciler, 119 N.J. 93, 101 (1990)) (internal quotations omitted). As such, causation is typically a question of fact for the jury. See id.; Maultsby v. RIH Acquisitions NJ, LLC, Civ. A. No. 09-4376, 2011 WL 6779556, at *11 (D.N.J. Dec. 27, 2011) (noting question of causation in IIED claim was for the jury but denying summary judgment motion on other grounds).

Because the intent required for an IIED claim is arguably lower than the mens rea of purpose required for an ATS aiding and abetting claim, see Buckley, 544 A.2d at 863 (“[T]he plaintiff must establish intentional and outrageous conduct by the defendant .... Liability will also attach when the defendant acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.”), it stands to reason issues of material fact exist regarding this element of Plaintiffs' IIED claim as well. Similarly, the evidence that raises a question of material fact as to Defendants' substantial assistance in the LTTE's terrorism is enough to preclude summary judgment on proximate cause, which is typically a jury question. See, e.g., Taylor, 2007 WL 9782881, at *3. As Plaintiffs note, discovery into their emotional distress has yet to occur, so summary judgment cannot be granted on this basis. (ECF No. 551 at 39 n.35.)

Because Plaintiffs have the burden of proof on all elements of an IIED claim, see Nebraska, 507 U.S. at 590, they must also demonstrate the extreme or outrageous nature of the conduct, which is not squarely addressed by the Court's analysis above. However, several courts have accepted acts of terrorism as conduct that is inherently outrageous and extreme. See, e.g., Greenbaum v. Islamic Republic of Iran, 451 F.Supp.2d 90, 104 (D.D.C. 2006) (“Terrorist acts, by their nature, are intentionally designed to inflict harm, and thereby to cause severe emotional distress.”) (applying New Jersey law); Sisso v. Islamic Republic of Iran, Civ. A. No. 05-0394, 2007 WL 2007582, at *9 (D.D.C. July 5, 2007) (applying New Jersey law and concluding same); Stearns v. Islamic Republic of Iran, 633 F.Supp.3d 284, 353 (D.D.C. 2022) (finding requirement of plaintiff's presence when act at issue in IIED claim affects a third person “is not imposed when the extreme and outrageous conduct is a terrorist attack”). This Court also recognized “intentional facilitation of terrorist activity” is extreme and outrageous in Krishanthi I, 2010 WL 3429529, at *15. While Defendants wish to frame their contributions to the TRO-USA as donations to legally recognized charities (ECF No. 547-2 at 41), this argument is a red herring. Indeed, the legal status of the recipient organization has no consequence if both the donor and the organization know it is a front for financing terrorist acts. Defendants' reframing therefore returns to the question of intent, as to which the Court has already found disputes of material fact precluding summary judgment.

For these reasons, Defendants' Motion as to the IIED claim is denied.

E. Statute of Limitations

In the alternative, Defendants argue certain Plaintiffs' IIED claims are time-barred.²³ Defendants argue any IIED claims added after the initial complaint are time-barred because the statute of limitations for such claims is “two years from the time the plaintiff was harmed.” (ECF No. 547-2 at 42.) Plaintiffs filed the initial complaint on October 22, 2009, and the First Amended Complaint was filed on June 13, 2014, but Defendants contend the Plaintiffs added in the First, Second, and Third Amended Complaints alleged injuries between June 14, 2006, and March 10, 2009, all more than two years from filing date of the First Amended Complaint. (Id. at 43.) Defendants therefore request summary judgment on the time-barred claims.

23 Defendants initially challenged several Plaintiffs' ATS claims as time-barred because they believed they were added as parties in the Third Amended Complaint. (ECF No. 547-2.) Defendants later withdrew this challenge after Plaintiffs pointed out this was not the case. (ECF No. 556.)

Plaintiffs do not contest the validity of Defendants' statute of limitations argument, but instead argue they waived it by waiting to raise it until their Answers to the Third Amended Complaint in November 2018. (ECF No. 551 at 44.) Plaintiffs contend Defendants could have raised this defense during their motions to dismiss, motions for reconsideration, and their Answers to the First Amended Complaint. (Id. at 46.) Plaintiffs also assert Defendants conceded to the addition of these claims in 2016 by consenting to amendment after reviewing “the applicable legal standards” and did not raise the limitations defense by motion prior to this Motion, leading Plaintiffs to engage in years of costly discovery. (Id. at 46-48.) Therefore, Plaintiffs argue Defendants' delay prejudiced them and wasted judicial resources, and Defendants should be deemed to have waived this issue. (Id. at 48-49.) Alternatively, Plaintiffs ask the Court to reserve ruling on the statute of limitations issues until Phase II discovery is completed to allow Plaintiffs to put forth evidence on the application of the discovery rule. (Id. at 49-50.)

In reply, Defendants argue a statute of limitations defense can be raised at any time if there is no prejudice to the plaintiffs, and Plaintiffs' claimed prejudice from discovery costs does not identify what IIED-related discovery they could have avoided. (ECF No. 556 at 25.) Defendants also believe the discovery rule does not apply because Plaintiffs knew “at or near the time of the bombings that harmed them of their injuries and who (the LTTE) caused them.” (Id.)

“[T]here is no hard and fast rule limiting defendants' ability to plead the statute of limitations. Accordingly, affirmative defenses can be raised by motion, at any time (even after trial), if plaintiffs suffer no prejudice.” Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 506 (3d Cir. 2006) (citing Charpentier v. Godsil, 937 F.2d 859, 863-64 (3d Cir. 1991)). The Third Circuit has consistently found an affirmative defense was not waived even if not raised in the defendant's answer. See id. (affirming no waiver of statute of limitations where defendants pleaded it in answer); Pondexter v. Dep't of Hous. & Urb. Dev., 324 Fed.Appx. 169, 171-72 (3d Cir. 2009) (finding statute of limitations not waived when defendant “sought to amend its answer to include a statute of limitations” three years before summary judgment motion); Sharp v. Johnson, 669 F.3d 144, 159-60 (3d Cir. 2012) (affirming qualified immunity defense not waived when pleaded at trial); Feingold v. State Farm Mut. Auto. Ins. Co., 629 Fed.Appx. 374, 376 (3d Cir. 2015) (finding affirmative defense of noncooperation not waived for failure to include in answer); see also Schmidt v. Ford Motor Co., 198 F.Supp.3d 511, 525-26 (E.D. Pa. 2016) (“Although Defendant did not flesh out the affirmative defense [raised in its answer] until it filed its motion for summary judgment, Plaintiffs were put on notice that Defendant sought to assert the defense. Accordingly, they had ample time to explore the issue and prepare a response to Ford's later motion for summary judgment.”).

Defendants put Plaintiffs on notice of their intent to raise statute of limitations defenses in their 2018 Answers, as Plaintiffs acknowledge. (ECF No. 551 at 44.) This notice is sufficient to keep Defendants' statute of limitations defense alive. See Pondexter, 324 Fed.Appx. at 171-72; Schmidt, 198 F.Supp.3d at 525-26. The fact Defendants stated they reviewed the “governing legal standards” in deciding not to oppose Plaintiffs' 2016 Motion to File a Second Amended Complaint (ECF No. 551 at 47) does not constitute a forfeiture of their affirmative defense, as this statement is too vague to act as a concession of their rights. Plaintiffs also fail to offer specific evidence of prejudice caused by the discovery process, and the cases they claim support viewing Defendants' actions as prejudicial to them are distinguishable. Two of these cases deal with statute of limitations defenses raised only in post-trial motions. See Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1161 (3d Cir. 1989) (“Obviously it would be grossly unfair to allow a plaintiff to go to the expense of trying a case only to be met by a new defense after trial.”); Chainey v. Street, 523 F.3d 200, 210 (3d Cir. 2008) (affirming waiver of limitations defense raised posttrial where amended complaint referred to facts relevant to the defense and defendant failed to object to jury instructions referencing the timeframe). Here, the parties are well away from trial, as there is another phase of discovery to complete. In another case Plaintiffs cite, the plaintiffs were granted partial summary judgment on the issue of liability and engaged in discovery on damages before defendants raised their statute of limitations defense. See Taha v. Bucks Cnty. Pennsylvania, 367 F.Supp.3d 320, 326 (E.D. Pa. 2019) (“In effect, a ruling that Plaintiff's CHRIA claims are barred by the statute of limitations would subvert this Court's decision that Defendants are liable . . . and evert the expectations of class members who have been informed of that decision in the class notice.”). In contrast, despite the lengthy history of this case, the Court has made no findings of liability on which Plaintiffs could rely to their detriment. The Court therefore determines Defendants' statute of limitations defense is not waived.

As a result, the Court must consider Plaintiffs' request to defer ruling on the application of the statute of limitations defense until Phase II discovery is complete so Plaintiffs may properly prepare an argument regarding the discovery rule. In New Jersey, the discovery rule “provides that in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.” Lopez v. Swyer, 300 A.2d 563, 566 (N.J. 1973). “[T]he cause of action is deemed to accrue for statute of limitations purposes when the potential plaintiff knows of his or her injuries and of facts sufficient to attribute those injuries to the fault of another.” Cruz v. City of Camden, 898 F.Supp. 1100, 1106 (D.N.J. 1995). But the plaintiff is not required to know the “exact identity” of the alleged party at fault: the limitations period begins to run once a plaintiff knows his injuries stemmed from the actions of another, known or unknown. Id. at 1113 (finding discovery rule did not apply where plaintiff knew his injury “was attributable to the fault of others” but did not know “the exact identities of all allegedly responsible parties”); accord Lewis v. Brown, Civ. A. No. 04-6063, 2010 WL 1371939, at *8 (D.N.J. Mar. 30, 2010) (“[I]t is plaintiff's discovery of his injury, rather than the discovery of who inflicted his injury, which triggers the statute of limitations.”) (holding discovery rule did not apply where plaintiff knew of injury and waited six years to name defendant in suit); Luna-Diaz v. Hackensack Police Dep't., Civ. A. No. 16-3270, 2020 WL 206061, at *8 (D.N.J. Jan. 14, 2020) (finding discovery rule did not apply where plaintiffs were certain of the date of their injuries and knew defendant may have been involved to some degree before expiration of limitations period).

Here, Plaintiffs, as Sri Lankan nationals living in the country in the period of bloody conflict between the GoSL and LTTE, reasonably would know some other party, presumably the LTTE, was responsible for their injuries at the moment of the attacks they or their loved ones suffered. This is sufficient to commence the statute of limitations period. See Cruz, 898 F.Supp. at 1113. While the Court is sympathetic that it may have taken time for Plaintiffs to discover the alleged connections between the LTTE and Defendants, certain Plaintiffs were able to do so by the time they filed the initial complaint in 2009. Moreover, the discovery rule operates agnostic to the time necessary to pinpoint the precise defendant; once a plaintiff knows their injury was caused by another (as would be apparent in the case of a terrorist attack), the period begins to run. See id.; Lopez, 300 A.2d at 566. As such, there is no inequity in holding other Plaintiffs to the two-year statute of limitations. The Court therefore finds the discovery rule does not apply, and any IIED claim more than two years following the attack a Plaintiff cites as the genesis is time-barred.

Accordingly, Defendants' Motion is granted for all IIED claims by Plaintiffs added in the First, Second, and Third Amended Complaints, as these claims are barred by the statute of limitations.

IV. Conclusion

For the reasons set forth above, Defendants' Motion for Summary Judgment (ECF No. 547) is DENIED IN PART and GRANTED IN PART. An appropriate Order follows.