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IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 797
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)

demonstrating the torts exception outlined
in (a)(5) provides a basis for subject matter
jurisdiction here.

[20] To fit within the exception out-
lined in § 1605(a)(5), the Plaintiffs must
come forward with evidence demonstrating
the Princes’ or Kingdom’s tortious acts or
omissions caused Plaintiffs’ injuries.26 28
U.S.C. § 1605(a)(5); Virtual Countries,
300 F.3d at 241; Cargill, 991 F.2d at 1016.
“Any terrorist act, including the Septem-
ber 11 attacks, might have been the natu-
ral and probable consequence of knowingly
and intentionally providing financial sup-
port to al Qaeda, given [the complaints’]
allegations that, prior to September 11, al
Qaeda and Osama bin Laden had pro-
claimed their intentions to commit murder-
ous terrorist activities against the United
States and its citizens, ... and had accom-
panied these words with actions by imple-
menting, and publicly acknowledging re-
sponsibility for, such terrorist schemes as
the 1993 bombing of the World Trade Cen-
ter, the 1998 attack of the U.S. embassies
in Kenya and Tanzania, and the 2000 at-
tack of the U.S.S. Cole in Yemen.” Bur-
nett I, 274 F.Supp.2d at 105; see also
Ashton Complaint ¶¶ 105–108 (1993 World
Trade Center attack), 130–136 (embassy
bombings), 152–55 (Cole attack); Federal
Complaint ¶ 77 (alleging Osama Bin Laden
established al Qaeda to wage war with the
United States).

a. Prince Sultan and Prince Turki

[21] Both Princes are alleged to have
tortiously aided and abetted terrorism
through their contributions to, and support
of, Islamic charities that they knew or
should have known were supporting ter-
rorist organizations such as al Qaeda.27
Additionally, Plaintiffs allege Prince Turki
aided and abetted the terrorists by at-
tempting to deflect their activities away
from Saudi Arabia and by serving as a
“facilitator of Osama bin Laden’s network
of charities.” Ashton Complaint ¶ 261;
Burnett Complaint ¶ 350. Plaintiffs allege
both Princes must have known that the
United States would have been al Qaeda’s
target, making the attacks on September
11 a foreseeable result of the Princes’ ac-
tions.

[22–24] Pursuant to the Second Cir-
cuit’s instruction, the Court must first de-
termine whether the Princes’ acts are tor-
tious under New York law. Robinson, 269
F.3d at 142. In New York, conspiracy and
aiding and abetting are varieties of con-
certed action liability. Pittman v. Gray-
son, 149 F.3d 111, 122 (2d Cir.1998).
There must be “(1) an express or tacit
agreement to ‘participate in a common
plan or design to commit a tortious act,’ (2)
tortious conduct by each defendant, and (3)
the commission by one of the defendants,
in pursuance of the agreement, of an act
that constitutes a tort.’” Id. (quoting

26. Plaintiffs argue that Judge Robertson held
them to an unnecessarily stringent theory of
causation and submit that the D.C. Circuit’s
subsequent decision in Kilburn v. Socialist
People’s Libyan Arab Jamahiriya, 376 F.3d
1123 (D.C.Cir.2004), effectively overrules the
holding in Burnett II. See Kilburn, 376 F.3d at
1129 (evaluating a claim under § 1605(a)(7)
and holding the requirement for jurisdictional
causation was proximate cause). This Court
does not read Burnett II as requiring but-for
causation and Defendants agreed at oral ar-
gument that the proper inquiry at this stage of
the litigation is the presence of proximate
causation. See Sept. 14, 2004 Tr. at 121.

27. To the extent that the consolidated Plain-
tiffs and the Federal Plaintiffs allege that
Prince Sultan and Prince Turki made dona-
tions in their personal capacities, see, e.g.,
Ashton Complaint ¶ 269 (Prince Sultan); Fed-
eral Complaint ¶¶ 451–52 (Prince Turki),
those claims are not subject to the FSIA’s
protection. The Court will determine wheth-
er it has personal jurisdiction over Prince
Sultan and Prince Turki in Part II.

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