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798 349 FEDERAL SUPPLEMENT, 2d SERIES

Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 295, 582 N.Y.S.2d 373, 591 N.E.2d 222 (1992)). Conspiracy “requires an agreement to commit a tortious act.” Id. at 122–23. Aiding and abetting “requires that the defendant have given substantial assistance or encouragement to the primary wrongdoer.” Id. at 123. “[U]nder either theory, the defendant must know the wrongful nature of the primary actor’s conduct.” Id. (finding no concerted action liability where airline had no knowledge mother was removing daughter from country without father’s approval).

i. Causation

Judge Robertson found his consideration of Prince Sultan’s and Prince Turki’s FSIA defenses did not present an opportunity for a general discourse on causation since Plaintiffs’ theory would stretch causation to “terra incognita.” Burnett II, 292 F.Supp.2d at 20. This Court agrees with Judge Robertson’s conclusion, but it undertakes the causation analysis because a similar review will be necessary in its consideration of the Defendants’ motions for failure to state a claim. See Part III below.

Plaintiffs place great reliance on Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983) and Boim v. Quranic Literacy Institute. & Holy Land Foundation for Relief & Development, 291 F.3d 1000, 1023 (7th Cir.2002) (“Boim II”). Neither of these cases concern the tortious activity exception to the FSIA, but they do explain liability under the ATA and for aiding and abetting and conspiracy.28 In Halberstam, the defendant was found liable as a joint venturer for a killing that occurred during a burglary at which she was not present. Halberstam, 705 F.2d at 488; see also Lumbard v. Maglia, Inc., 621 F.Supp. 1529, 1536 (S.D.N.Y.1985) (“[T]hose who aid or abet or conspire in tortious conduct are jointly and severally liable with other participants in the tortious conduct, regardless of the degree of their participation or culpability in the overall scheme.”). The court found that the defendant’s intimate relationship with the burglar and her assistance in his other illegal ventures “defie[d] credulity that [she] did not know that something illegal was afoot.” Halberstam, 705 F.2d at 486.

In Boim, the district court had denied a motion to dismiss by U.S.-based charities alleged to have aided and abetted international terrorism. Boim v. Quranic Literacy Inst. & Holy Land Found., 127 F.Supp.2d 1002, 1018 (N.D.Ill.2001) (“Boim I”). The Seventh Circuit affirmed the decision and held that the parents of a yeshiva student killed in 1996 in Israel by members of the military wing of Hamas could prove that the defendants aided and abetted their son’s murder under the ATA if they could demonstrate that the charities “knew of Hamas’ illegal activities, that they desired to help those activities succeed, and they engaged in some act of helping the illegal activities.” Boim II, 291 F.3d at 1023. The court explained that “[f]oreseeability is the cornerstone of

28. The court in Halberstam outlined the elements of aiding and abetting as: “(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation.” Halberstam, 705 F.2d at 477. It described the elements of civil conspiracy as: “(1) an agreement between two or more persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; (4) which overt act was done pursuant to and in furtherance of the common scheme.” Id.

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