Full opinion text
MEMORANDUM AND OPINION LEE H. ROSENTHAL, District Judge. This suit arises out of terrorist attacks in Israel between 2000 and 2003. The plaintiffs are Americans injured in the attacks and their relatives. The defendants are companies and individuals involved in the oil and gas business. The plaintiffs allege that these defendants purchased oil from Iraq and made payments that violated the United Nations Oil for Food Program. The Program required anyone buying oil from Iraq to place the purchase money into an escrow account monitored by the United Nations. Funds from this account could only be used for humanitarian purposes. The plaintiffs allege that the defendants were involved in buying Iraqi oil with payments that included illegal kickbacks to a secret bank account in Jordan controlled by Saddam Hussein. The plaintiffs allege that Hussein used funds from this account to provide money and services to Palestinian terrorist organizations and to make payments to the families of suicide bombers and others killed in carrying out the terrorist attacks. According to the plaintiffs, such payments were important in recruiting terrorists. The original complaint included 193 plaintiffs, all of whom alleged violations of the Torture Victims Protection Act (“TVPA”). Most of these plaintiffs were aliens who also asserted claims arising under the Alien Tort Statute (“ATS”), which permits aliens to sue for some violations of customary international law. Those plaintiffs who were United States nationals and their estates, survivors, and heirs alleged that the defendants violated what is commonly referred to as the Antiterrorism Act (“ATA”) by providing material support to terrorist organizations and by engaging in illegal financial transactions with Iraq. (Docket Entry No. 3). On March 31, 2010, this court granted motions to dismiss filed by all the defendants. The claims other than the ATA claim were dismissed both for lack of Article III standing and for failure to state a claim. The ATA claim was dismissed only for failure to state a claim. This court gave the plaintiffs leave to amend the ATA claim but not the other claims. On April 23, 2010, the plaintiffs filed an amended ATA complaint. The remaining plaintiffs are eight United States nationals or citizens and twelve of their relatives. (Docket Entry No. 121). The plaintiffs alleged that the defendants violated the ATA by providing material support to terrorist organizations and by engaging in financial transactions with Iraq during Hussein’s rule. The plaintiffs also alleged that El Paso Corporation and NuCoastal Corporation are liable for the actions of El Paso’s predecessor, Coastal Corporation, and its president, Oscar Wyatt, on the basis of successor liability. This claim appeared in the original complaint. The plaintiffs have added a claim that El Paso is liable for Wyatt’s actions under respondeat superior. The defendants have all filed motions to dismiss under Rule 12(b)(6). The defendants argue that the plaintiffs have not sufficiently alleged knowledge of Hussein’s use of OFP kickbacks to fund terrorism targeting Americans or a causal connection between the defendants and the terrorist attacks. The defendants also argue that the plaintiffs’ ATA claim is barred by limitations. El Paso contends that the plaintiffs have served the wrong El Paso corporate entity and also seeks dismissal on that basis. (Docket Entry Nos. 127, 128, 130, 133, 134). The plaintiffs have responded to each motion, (Docket Entry Nos. 141, 142, 143), and the defendants have replied. (Docket Entry Nos. 145, 146, 147, 148). Based on the motions and responses, the allegations in the amended complaint, and the applicable law, the motions to dismiss the amended complaint are denied except as to: (1) the conspiracy allegations; (2) the allegations against Bayoil Supply & Trading and NuCoastal Panama based on violations of 18 U.S.C. § 2332(d); and (3) limitations. The motions to dismiss based on limitations are converted to motions for summary judgment. A status conference is set for April 18, 2011 at 4:00 PM in Courtroom 11-B to discuss a time line for additional discovery and briefing. The basis for this court’s opinion is set out in detail below. I. The Allegations in the Amended Complaint A. The Iraq Oil for Food Program Less than a week after Saddam Hussein invaded Kuwait on August 6, 1990, the United Nations issued economic sanctions precluding member states from buying Iraqi oil. (Docket Entry No. 121, ¶ 145). On April 14, 1995, the U.N. Security Council adopted Resolution 986, lifting the embargo but restricting Iraq’s ability to sell its oil. Iraq’s government and the U.N. negotiated the details of the restrictions, resulting in a written agreement some time in May 1996. This agreement led to the U.N. Oil For Food Program (“OFP”). Under the OFP, a new U.N. office was created to oversee Iraq’s sale of oil and purchase of humanitarian goods. An escrow account was established at the New York branch of the Banque Nationale de Paris (“BNP”). The proceeds of Iraqi oil sales were to be deposited into the escrow account, which the U.N. monitored. Iraq could use the funds only to purchase food and other humanitarian goods for the country. (Id., ¶¶ 153-55). The United States government allowed American individuals and companies to enter into executory contracts with Iraq to purchase oil or sell humanitarian goods, including food and medical supplies. Before they could perform these contracts, the American entities were required to obtain a license from the Treasury Department’s Office of Foreign Assets Control (“OFAC”). OFAC evaluated these license applications in conjunction with the State and Commerce Departments and the U.N. committee responsible for overseeing the BNP account. The plaintiffs allege that “OFAC issued approximately 1,050 specific licenses to U.S. persons, including defendants for various aspects of the Oil for Food Program.” (Id., ¶¶ 156-60). In December 1996, Iraq began selling oil through the OFP. Under the OFP, although buyers would send the purchase money to the BNP account in New York, Saddam Hussein’s government retained the right to choose the buyers. Those selected had to purchase the oil at the Official Selling Price (“OSP”), which was determined by a U.N. committee made up of representatives of the Security Council member states. The plaintiffs allege that the U.N. “sought to set a price for Iraqi oil at the highest rate bearable by the market in order to maximize the revenue generated,” which “would increase the amount of humanitarian goods that could be purchased” and “minimize the potential for illegal kickbacks” to Saddam Hussein. Presumably, buyers already paying full market price would be unable or unwilling to pay more in kickbacks. (Id., ¶¶ 161-62). The plaintiffs allege that many of the companies and individuals Iraq chose to receive “allocations” of Iraqi oil “were not otherwise involved in the oil industry [and] were able to reap large profits by selling their allocations of Iraqi oil to brokers and/or companies capable of transporting the oil to a refinery.” (Id., ¶ 162). Beginning in 2000, the plaintiffs allege, Iraqi officials conditioned oil allocations on the buyer’s willingness to pay a “surcharge” to Hussein’s government. These surcharges, calculated as a percentage of the total contract price, were not permitted under OFP. The buyers allegedly paid these surcharges through “front companies” to bank accounts Hussein controlled. The plaintiffs also allege that Hussein charged “port fees” before allowing tankers to receive oil at Iraqi ports. Like the surcharges, the port fees were paid to Hussein instead of the OFP bank account. The plaintiffs allege that these surcharges and port fees were kickbacks made possible by lobbying efforts persuading the U.N. to select a below-market OSP. The plaintiffs also allege that at least some of the cost of these kickbacks was passed on by the direct purchasers to the next purchaser down the line. (Id., ¶¶ 163-68). B. The Defendants’ Actions Oscar Wyatt, a Texas oil trader, was the chairman and sole shareholder of Coastal Corporation. Wyatt later formed NuCoastal Corporation, a Houston energy company, and NuCoastal Trading, S.A., a Panama corporation. Both NuCoastal entities are also defendants. The plaintiffs allege that on the day Iraq invaded Kuwait, Wyatt owed Iraq $90 million. After the U.N. sanctions froze Iraq’s bank accounts, Wyatt began repaying the money directly to the Hussein government and not to the U.N.-controlled accounts. (Id., ¶¶ 139-43). Wyatt maintained a close relationship with Hussein while the U.N. embargo was in place, hoping that he would be rewarded with Iraqi oil-purchase contracts once the sanctions were lifted. This relationship extended to providing Hussein communications equipment and GPS devices in the mid-1990s, including an INMAR satellite, which Wyatt allegedly gave to the ministry of oil and paid to operate. (Id., ¶ 143). The plaintiffs allege that Wyatt was involved in lobbying the U.N. to lift its sanctions and make Iraqi oil available for purchase. The plaintiffs allege that Wyatt also lobbied the U.N. to reduce the OSP to below-market level, enabling Iraq to extract surcharges from Wyatt and other direct buyers while allowing those buyers to make a profit. (Id., ¶¶ 148-52, 210). The plaintiffs allege that Wyatt obtained allocations under the OFP and paid under-the-table surcharges — kickbacks—in exchange for some of those allocations, which involved traveling to Iraq to negotiate with Hussein and others. Wyatt allegedly made the payments through “front companies” he controlled in Switzerland and Cyprus using two associates who are not named as defendants. (Id., ¶¶ 31-38). Wyatt was prosecuted for conduct related to the OFP and pleaded guilty to conspiracy to commit wire fraud on October 1, 2007. (Id., ¶ 228). According to the complaint in this case, Wyatt has testified that he caused surcharge payments to be deposited in a bank account in Jordan controlled by Hussein. Wyatt acknowledged knowing that the payments violated the OFP and stated that he had intended to defraud the U.N. (Id.). The plaintiffs also allege that Wyatt committed treason by giving Hussein information about American war plans. (Id., ¶ 146). Similar allegations are made against David Chalmers, an American businessman involved in oil and gas; Bayoil (USA), Inc., a Delaware company based in Houston that Chalmers owned; and Bayoil Supply & Trading Limited, a Bahamas affiliate of Bayoil USA, of which Chalmers was the sole director and shareholder. (Id., ¶¶ 28-29). On August 17, 2007, Chalmers and the Bayoil companies also pleaded guilty to conspiracy to commit wire fraud. According to the allegations in this suit, Chalmers admitted that he had made payments that he “both expected and intended” would go to Hussein, and that he had concealed those payments from the U.N. Chalmers stated that he knew the payments violated the OFP. (Id., ¶ 227). Chalmers told an El Paso trader to oppose U.N.-proposed pricing policies designed to eliminate kickbacks. (Id., ¶ 185). Chalmers and Bayoil did not receive allocations of Iraqi oil. Instead, they purchased the oil from a third party who did receive allocations. The amended complaint alleges that the third party receiving the allocation was controlled by Chalmers and Bayoil, referring to it as the “Bayoil Foreign Company.” The plaintiffs allege that Bayoil transferred the purchase money through a Bahamas account to accounts in the Middle East and paid it to the party who had received the allocation. That party then transferred a large portion of the money to accounts controlled by Hussein. One of the accounts was held by Al Wasel and Babel General Trading, a United Arab Emirates company allegedly “secretly owned and controlled” by Hussein. (Id., ¶ 190). Bayoil and Chalmers were allegedly closely involved in the payments to Hussein. The complaint alleges that a Bayoil representative delivered a letter to Iraqi officials in 2002 proposing “a payment plan for certain illegal surcharges owed by another Oil for Food participant.” (Id., ¶ 200). In January 2001, the El Paso Corporation acquired Coastal. El Paso is a large oil and gas company incorporated in Delaware and based in Houston. Wyatt was no longer Coastal’s Chairman when the acquisition occurred, and his contract as a consultant to Coastal was terminated when Coastal became an El Paso subsidiary. The plaintiffs allege that El Paso knew when it acquired Coastal that Wyatt had paid illegal surcharges in exchange for Iraqi oil allocations and that he had other illegal dealings with Hussein. {Id., ¶4). Much of the amended complaint alleges that Wyatt and his “front companies” took certain actions on behalf of El Paso or for the benefit of El Paso. Generally, these allegations appear to be based on El Paso’s acquisition of Coastal or El Paso’s purchases of oil from Wyatt’s “front companies” after El Paso acquired Coastal. In the original complaint, the plaintiffs alleged 16 transactions involving El Paso. One was a direct allocation of oil purchased by Coastal before it was acquired by El Paso, for which Wyatt allegedly paid Hussein a kickback. One was an oil purchase by Coastal from a third party that had received an allocation. The rest were purchases by El Paso from third parties that had received direct allocations and had passed “kickbacks” to El Paso in the form of higher prices after El Paso acquired Coastal. In the amended complaint, the plaintiffs allege that the third parties from whom El Paso purchased oil were front companies Wyatt controlled. The plaintiffs allege that these front companies “lacked the resources to pay hundreds of millions of dollars for crude oil,” meaning that “[a]ll payments, including illegal surcharge payments were cleared in advance by El Paso and funded by El Paso.” {Id., ¶ 169). They also allege that El Paso had some control over, and interest in, these front companies. The plaintiffs allege that, on January 6, 2001, Wyatt traveled to Iraq to propose a scheme under which he would establish four front companies located outside the United States. These companies would purchase oil from Iraq at low prices and “pre-sell the oil at inflated prices to Oil Companies in order to cover the kickbacks and launder the money.” {Id., ¶ 172). Under this system, in which the front companies collected the surplus on behalf of Hussein, the “majority of the profit would be laundered to the Saddam Regime with the minority portion paid to Wyatt, the Coastal Group and El Paso.” {Id., ¶ 174). The complaint states that at the January 6, 2001 meeting, Wyatt’s front company, Nafta Petroleum, received a 4.5 million barrel allocation, for which Wyatt agreed to pay a 40-cent per-barrel surcharge to Hussein within one month of the oil being loaded “even if it resulted in a loss.” {Id., ¶ 175). This is consistent with the scheme described. The complaint also alleges that in December 2001, Wyatt asked El Paso to reimburse Sarenco, S.A., another of his front companies, for a $200,000 outstanding balance on a kickback to Hussein. {Id., ¶¶ 188, 196). In the original complaint, there was no allegation that El Paso had agreed to the reimbursement. The amended complaint alleges: “Upon information and belief, El Paso reimbursed Wyatt the money that Wyatt had sent to the Saddam Regime in order to repay the amount of debt from the failure to pay surcharge payments.” {Id., ¶ 196). As in the original complaint, the plaintiffs allege in the amended complaint that El Paso traders were recorded recounting conversations with Iraqi officials “in which ‘they told us-blatantly-that we would have to pay,’ ” and in which a competitor showed an El Paso trader an account number and contact given to him by an Iraqi official for paying kickbacks, an action that both traders regarded as “blatant.” {Id., ¶ 220). The plaintiffs allege that, on May 31, 2001, Doris Simmons, an El Paso employee, e-mailed Iraqi oil officials asking that an allocation contract between Iraq and Mednafta, one of Wyatt’s front companies, be amended to change the destination of an oil tanker to a location in Central America. {Id., ¶ 183). The plaintiffs allege that two sale negotiations took place over the phone in July 2001 among an El Paso oil trader, Wyatt, and Wyatt’s associate Cathy Miguel, who was involved with Wyatt’s front companies. On July 3, Wyatt allegedly asked the trader to post a letter of credit on behalf of Wyatt and Miguel. On July 5, Wyatt allegedly asked the trader to fax a draft contract to Mohammed Saidji, who ran Sarenco, S.A., one of Wyatt’s front companies in Geneva. (Id., ¶¶ 186-87). On October 4, 2001, Wyatt allegedly told an El Paso employee in a phone conference that he had paid “illegal port fees” to Hussein and offered to have Cathy Miguel “pay those fees on behalf of and for the benefit of El Paso.” (Id., ¶ 192). In 2004, Simmons allegedly told a NuCoastal employee to take down a domain name owned by Mednafta, one of Wyatt’s front companies, “so that Mednafta would not be traced back to Wyatt, the Coastal Group or El Paso.” (Id., ¶ 204). On February 7, 2007, the Securities and Exchange Commission filed a civil action against El Paso in the Southern District of New York, alleging that El Paso had knowingly and illegally paid $5.5 million to Iraq. The same day, El Paso entered into a nonprosecution agreement with the U.S. Attorney’s office, agreeing to pay $5,482,363 to the United States. The money was to be paid to the people of Iraq as the OFP’s intended beneficiaries. One week later, on February 14, 2007, the district court entered a consent judgment in the S.E.C. lawsuit. The judgment incorporated the $5,482,363 payment arranged with the U.S. Attorney’s office and included a separate $2.25 million fine to the S.E.C. (Id., ¶¶ 224-26). The plaintiffs have not alleged that the consent judgment or nonprosecution agreement included any admission of wrongdoing by El Paso. C. Hussein’s Actions The amended complaint exhaustively catalogs the human rights abuses directed by Saddam Hussein during his rule. More so than in the original complaint, the plaintiffs focus on Hussein’s relationship with Palestinian terrorist organizations, particularly terrorism directed against Israel and the West. The allegations describe Hussein’s reign in Iraq and his role in terrorist activities. After the Ba’ath Party came to power in Iraq in 1968, Hussein was named head of intelligence. In 1969, Hussein founded the Arab Liberation Front (“ALF”), an Iraqi army affiliate that carried out suicide bombings and other terrorists attacks, including attacks on Israeli and American civilians in Israel. He allegedly served as head of the ALF from 1969 until 1980 and “continued to control and direct the ALF until his demise in 2003.” (Id., ¶ 47). The plaintiffs allege that during the first Gulf War, Hussein launched 39 Scud missiles at major Israeli cities, causing deaths, injuries, and property damage. (Id., ¶ 55). In 2000, Hussein gave a speech urging “the people’s masses to work relentlessly to expel the U.S. embassies and centers from the Arab countries as well as to uproot and expel any Zionist presence in these countries.” (Id., ¶ 54). The plaintiffs also allege that Hussein “provided offices, training camps, safe haven, financing and operational and logistical support” for other organizations that have carried out terrorist attacks, including the Abu Nidal Organization (“ANO”), the Palestine Liberation Front (“PLF”), Hamas, Palestinian Islamic Jihad (“PIJ”), and the Al-Aqsa Martyrs’ Brigade (“AAMB”). (Id., ¶¶ 66-70). The plaintiffs focus on the ALF, Hamas, PIJ, and the AAMB, all designated by the United States as terrorist groups. Beginning in 1990, the State Department designated Iraq as a state sponsor of terrorism. (Id., ¶ 54). After the second intifada broke out in September 2000, Hussein gave a speech supporting the Palestinian cause and announced that he would provide rewards to the families of Palestinians injured or killed during an attack on Israel. The plaintiffs allege that Hussein encouraged suicide bombing attacks against civilian targets in Israel by publicizing a rewards program under which he would pay over twice as much in reward to the family of a person killed carrying out a suicide bomber than to the family of a “martyr” killed inadvertently. (Id. at ¶¶ 85-89). Hussein “handed out checks to surviving family members at public ceremonies which were covered by Palestinian and Iraqi electronic and print media.” (Id., ¶ 88). Hussein gave $25,000 to families of suicide bombers and $10,000 to families of other Palestinians who died in the intifada. (Id., ¶¶ 120, 124). The plaintiffs allege that on January 7, 2001, major United States newspapers carried an article stating that Hussein was giving $10,000 checks to families of Palestinians killed under violent circumstances “intended to boost Saddam Hussein’s influence.” (Id., ¶ 115). The article also stated that Hussein had proposed giving $900 million from the OFP escrow account to Palestinians. (Id., ¶ 116). These payments were later reported in the United States by the Dallas Morning News on February 10, 2001, the Washington Times on February 20, 2001, the Associated Press on March 12, 2002, the New York Post on April 4, 2002, the New York Times on July 10, 2002, and the Washington Post on August 4, 2002. The plaintiffs allege that the Washington Post report stated that Hussein had “earned over $6 billion from manipulating the Oil for Food program and used such funds to finance Palestinian terror and pay off the families of Palestinian suicide bombers.” (Id., ¶¶ 118-20). The plaintiffs allege, on information and belief, that Hussein provided over $100 million to Palestinian terrorist organizations to help conduct the second intifada. (Id., ¶ 68). D. The Plaintiffs’ Injuries and this Lawsuit The amended complaint is based on three terrorist attacks in Israel during the second intifada. The plaintiffs are eight United States nationals who were injured in the attacks and two of their family members. The plaintiffs allege that Hussein made reward payments to the families of the terrorists who carried out each attack. The following attacks are alleged: • On November 4, 2001, a PIJ terrorist named Hatem Shweikeh, opened fire with automatic weapons in a bus in Jerusalem. He killed two people and injured 40, including plaintiffs Yissachar Zvi Lebowitz (the son of plaintiffs Rosalyn Shoshanna Pearl and Shimon Lebowitz), Shifra Markowitz (the daughter of plaintiffs Ester Devora Markowitz and Gerald Markowitz), Sarah Mordechai (the daughter of plaintiff Shirin Mordechai), Ora Rubinoff (the daughter of Aviva Rubinoff and Mitchell Jay Rubinoff, and the sister of plaintiffs Eliezer Rubinoff, Yosef Rubinoff, and Shoshanna Rubinoff) and Gila Schnall (the daughter of plaintiffs Frances Schnall and Ira Schnall). The terrorist’s mother received a payment on behalf of Saddam Hussein. (Id., ¶ 234). • On December 1, 2001, two Hamas suicide bombers named Osama Baher and Nabil Halbiyeh detonated explosives on their persons and rigged to a car on Ben Yehudah Street in Jerusalem. The attack killed 11 and wounded 170, including plaintiff Baruch Yehuda Ziv Brill. On January 22, 2002, the father of one attacker and the mother of the other each received a $15,000 check on behalf of Hussein. Both were signed by Rakad Salem, “the head of the ALF.” (Id., ¶ 233). • On March 9, 2002, a Hamas suicide bomber named Fuad Hurani detonated explosives at a café in Jerusalem. Eleven people were killed, and fifty-eight people were wounded, including plaintiff Yoseff Cohen. Plaintiff Asael Firdman alleges that he suffered serious psychological injures as a result of the attack. On June 23, 2002, the suicide bomber’s mother received a $25,000 check on behalf of Hussein signed by Salem. {Id., ¶ 232). The plaintiffs seek compensation for the injuries suffered in these attacks from El Paso, Wyatt, the NuCoastal Companies, Chalmers, and the Bayoil Companies. The plaintiffs allege that Hussein used money obtained from the defendants, either directly or through intermediaries, in violation of the OFP’s restrictions, to fund terrorism in Israel primarily by paying “rewards” to the families of the terrorists who killed and injured the plaintiffs and their family members. This suit was filed on January 2, 2009 in the United States District Court for the District of Columbia. (Docket Entry No. 3). The defendants’ motion to transfer venue was granted and the case transferred to this court on December 3, 2009. (Docket Entry No. 60). On March 31, 2010, this court dismissed claims filed by the plaintiffs who were not American nationals or citizens and who sued under the Alien Tort Statute, 28 U.S.C. § 1350. This court held that these plaintiffs lacked standing and that they had failed to state a claim. (Docket Entry No. 118). This court also dismissed claims brought by all the plaintiffs — those that were United States nationals or citizens and those that were not — under the Torture Victim Protection Act, Pub.L. 102-256, Mar. 12, 1992, 106 Stat. 73, reprinted as a note to 28 U.S.C. § 1350, and claims based on imputed successor liability against El Paso (for Coastal’s liability) and alter ego liability against the NuCoastal Companies (for Wyatt’s and Coastal’s liabilities), all for lack of standing and failure to state a claim. Because there was no standing to pursue any of these claims, the plaintiffs were not given leave to replead. On June 30, 2010, this court denied a motion to certify the ATS claims only for interlocutory , appeal. (Docket Entry No. 144). The March 31, 2010 opinion also dismissed the claims brought by United States nationals and citizens injured by the attacks (or their estates, survivors, or heirs) under the Antiterrorism Act of 2001, 18 U.S.C. § 2333. These claims were for providing material support to terrorist organizations and, engaging in illegal business dealings with Iraq. (Docket Entry No. 116). But this court dismissed only on the basis of failure to state a claim. Because standing was proper, these plaintiffs were given leave to replead. On April 23, 2010, they did so. (Docket Entry No. 121). The defendants have all filed motions to dismiss the amended complaint under Rule 12(b)(6). The plaintiffs have responded to each motion and the defendants have replied. These motions are considered below. II. The Applicable Law A. Rule 12(b)(6) Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Crv. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Twombly abrogated the Supreme Court’s prior statement in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See Twombly, 550 U.S. at 562-63, 127 S.Ct. 1955 (“Conley’s ‘no set of facts’ language ... is best forgotten as an incomplete, negative gloss on an accepted pleading standard.... ”). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir.2008) (quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1974). In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court elaborated on the pleading standards discussed in Twombly. The Court explained that “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). With respect to the “plausibility” standard described in Twombly, Iqbal explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The Iqbal Court noted that “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Iqbal also rejected the theory that Rule 9(b)’s endorsement of pleading generally in certain circumstances permits a complaint to survive based on only conclusory allegations. The Court acknowledged that while Rule 9 requires pleading with particularity “when pleading ‘fraud or mistake,’ ” it allows “ ‘[m]alice, intent, knowledge, and other conditions of a person’s mind [to] be alleged generally.’ ” Id. at 1954 (alterations in original) (quoting Fed. R. Civ. P. 9(b)). But the Court explained that the term “generally,” as used in Rule 9, “is a relative term.” Id. The Court stated that “[i]n the context of Rule 9, [‘generally’] is to be compared to the particularity requirement applicable to fraud or mistake,” that “Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard,” and that Rule 9 “does not give [a party] license to evade the less rigid — though still operative— strictures of Rule 8.” Iqbal, 129 S.Ct. at 1954 (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1301, at 291 (3d ed. 2004)). The Court concluded that “Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label ‘general allegation,’ and expect his complaint to survive a motion to dismiss.” Id. “ ‘Rule 8(a)(2) ... requires a showing, rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.’ ” Dark v. Potter, 293 Fed.Appx. 254, 258 (5th Cir.2008) (unpublished) (per curiam) (quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1965 n. 3). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiffs grounds for entitlement to relief — including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (footnote omitted) (quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1964-65); see also S. Scrap Material Co. v. ABC Ins. Co. (In re S. Scrap Material Co.), 541 F.3d 584, 587 (5th Cir.2008) (quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1965), cert. denied, — U.S. -, 129 S.Ct. 1669, 173 L.Ed.2d 1036 (2009). “Conversely, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ‘this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.’ ’ ” Cuvillier, 503 F.3d at 401 (quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1966). When a plaintiffs complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) (“[District courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.”); see also United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004) (“Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification ... is considered an abuse of discretion.” (internal citation omitted)). However, a plaintiff should be denied leave to amend a complaint if the court determines that “the proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on its face .... ” 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487 (2d ed. 1990); see also Ayers v. Johnson, 247 Fed.Appx. 534, 535 (5th Cir.2007) (unpublished) (per curiam) (“ ‘[A] district court acts within its discretion when dismissing a motion to amend that is frivolous or futile.’ ” (quoting Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United States of Am. Co., 195 F.3d 765, 771 (5th Cir.1999))). B. The Antiterrorism Act The ATA provides a civil action for treble damages to “[ajny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs.” 18 U.S.C. § 2333(a) (emphasis added). International terrorism is defined in the statute as “activities that”: (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended— (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum; 18 U.S.C. § 2331(1) (emphasis added). Subsection (A) requires an underlying violation of criminal law. Five criminal provisions are relevant. First, it is a crime to kill, attempt to kill, conspire to kill, or intentionally cause serious bodily injury to a United States national outside the United States. 18 U.S.C. § 2332. The second statute, 18 U.S.C. § 2339A, makes it a federal crime to “provide[] material support or resources ... knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [various federal criminal statutes]” or to attempt to or conspire to do such an act. 18 U.S.C. § 2339A(a). One of the criminal statutes listed in § 2339A is § 2332, which, as stated, criminalizes killing, attempting to kill, conspiring to kill, or intentionally causing serious bodily injury to a United States national outside the United States. The third relevant criminal statute, 18 U.S.C. § 2339B, states that “[w]hoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so” is guilty of a crime. Under both § 2339A and § 2339B, “material support or resources” includes “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” 18 U.S.C. §§ 2339A(b)(l), 2339B(g)(4). A “terrorist organization” is a designated Foreign Terrorist Organization under 8 U.S.C. § 1189. A 2004 amendment to the statute clarified that “[t]o violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).” 18 U.S.C. § 2339B. Because this language was not in place when the events at issue in this case occurred, it does not apply. The Supreme Court recently upheld the current version § 2339B against First Amendment and vagueness challenges. See Holder v. Humanitarian Law Project, 561 U.S. -, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). The fourth relevant criminal statute, 18 U.S.C. § 2339C, punishes: Whoever, [subject to jurisdictional requirements in] subsection (b), by any means, directly or indirectly, unlawfully and willfully provides or collects funds with the intention that such funds be used, or with the knowledge that such funds are to be used, in full or in part, in order to carry out— (A) an act which constitutes an offense within the scope of a treaty specified in subsection (e)(7), as implemented by the United States, or (B) any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act[.] 18 U.S.C. § 2339C(a)(l). Conspiracy and attempt are also punishable. 18 U.S.C. § 2339C(a)(2). There is no requirement that the funds provided or collected “were actually used to carry out” an act of international terrorism. 18 U.S.C. § 2339C(a)(3). Finally, the plaintiffs have now stated that they also rely on 18 U.S.C. § 2332d, which prevents a “United States person” from “engaging] in a financial transaction” with the government of a country that he knows or reasonably should know to be designated under section 6(j) of the Export Administration Act of 1979 as a country supporting international terrorism. “Financial transaction” is defined to include “a transaction which in any way or degree affects interstate or foreign commerce [] involving the movement of funds by wire or other means.” 18 U.S.C. §§ 2332d(b)(l), 1956(c)(4). Iraq had been designated as a state sponsor of terrorism when the transactions and attacks in this case occurred. III. Analysis A. The ATA Claims This court found that in the original complaint, the plaintiffs had failed to state an ATA claim for two reasons. First, there were insufficient allegations of scienter. Other than conclusory statements, there were “no allegations that, if proven, would show that the defendants had information that Hussein was using OFP kickback money to fund terrorism targeting Americans.” And, to the extent the plaintiffs alleged a conspiracy claim, it failed because there were “no factual allegations of an agreement or common plan to fund or otherwise support terrorism targeting Americans.” (Docket Entry No. 118 at 68-69). Second, although “[t]he lack of sufficient factual allegations of scienter [was] a sufficient basis on which to dismiss the ATA claims,” the attenuation in the causal chain between the defendants’ actions and the plaintiffs’ injuries provided “further support for dismissal.” {Id,, at 69). The present motions to dismiss argue that the plaintiffs’ efforts to address these deficiencies in their amended complaint were insufficient. Much of the dispute in the initial round of motions to dismiss was over the proper causation and scienter standards applicable to an ATA claim. This court’s opinion addressed those issues at length, comparing the various cases, statutes, and arguments before settling on the appropriate standards and applying them to the allegations. A complete analysis of the issues presented by this second round of motions to dismiss requires a renewed examination of the legal standards in detail and in light of the Supreme Court’s opinion in Holder v. Humanitarian Law Project, 561 U.S. -, 130 S.Ct. 2705, 177 L.Ed.2d 355 (June 21, 2010) and lower court cases applying that opinion. The major lower court case leading up to Humanitarian Law Project was Boim v. Holy Land Foundation (Boim III), 549 F.3d 685 (7th Cir.2008) (en banc), cert. denied sub nom. Boim v. Salah, — U.S. -, 130 S.Ct. 458, 175 L.Ed.2d 324 (2009). The plaintiffs were the parents of an American-Israeli teenager shot at a bus stop in Israel by Hamas terrorists. The parents sued Islamic charities that allegedly provided money to Hamas. One of the defendants did not give the money directly to Hamas but made donations to another defendant that in turn paid Hamas. The plaintiffs alleged that the defendants had provided material support to terrorists, violating the ATA. The court held that because Congress had not specifically provided for secondary liability under the ATA, secondary actors could not be held liable for aiding and abetting. Boim III, 549 F.3d at 689. The court nonetheless concluded that the plaintiffs had a claim against the defendant charities for primary liability. The ATA provided a cause of action for persons injured “by reason of’ acts of “international terrorism,” which the statute defined to include activities involving violent acts and “acts dangerous to human life that are a violation of the criminal laws of the United States.” 18 U.S.C. §§ 2331(1), 2333. The court concluded that “[gjiving money to Hamas, like giving a loaded gun to a child (which also is not a violent act), is an ‘act dangerous to human life,’ ” Boim III, 549 F.3d at 690 (quoting 18 U.S.C. § 2331(1)), which would violate 18 U.S.C. § 2339A. That statute makes it a federal crime to “provide!7 material support or resources ..., knowing or intending that they are to be used in preparation for, or in carrying out, a violation of’ specified criminal statutes, including 18 U.S.C. § 2332. 18 U.S.C. § 2339A(a) (emphasis added). Section 2332 makes it a federal crime to kill, conspire to kill, or inflict bodily injury on a U.S. citizen abroad. 18 U.S.C. § 2332. The court concluded that “[b]y this chain of incorporations by reference ... we see that a donation to a terrorist group that targets Americans outside the United States may violate section 2333.” Boim III, 549 F.3d at 690. The court concluded that this reading was not only mandated by the text but was also a sensible approach; it is difficult to recover damages from terrorists and terrorist organizations, “whereas suits against financiers of terrorism can cut the terrorists’ lifeline” and compensate the plaintiffs. Id. at 691. In Boim III, the plaintiffs’ ATA claim for giving money to Hamas was “international terrorism” for which the defendants could be primarily liable based on the incorporation of § 2333. The court emphasized, however, that “[pjrimary liability in the form of material support to terrorism has the character of secondary liability.” Id. at 691. Congress had “expressly imposed liability on a class of aiders and abettors.” Id. at 692. Because “functionally the primary violator is an aider and abettor or other secondary actor,” “the ordinary tort requirements relating to fault, state of mind, causation, and foreseeability” did not apply. Id. Instead, the tort requirements ordinarily governing secondary liability applied. Id. Two dissenting opinions argued that this reasoning manipulated the ATA to “reap the advantages of both kinds of theories.” Id. at 721 (Wood, J., concurring in part and dissenting in part); id. at 707-09 (Rovner, J., concurring in part and dissenting in part). Analyzing the hybrid nature of a primary liability claim that has “the character of secondary liability” in light of the “sui generis” nature of terrorism, the court crafted a standard of liability for civil claims under the ATA resting on an underlying violation of § 2339A. Under the Seventh Circuit’s approach, it appears that such a claim by an American injured by a terrorist attack in Israel has the following elements: (1) the defendant provided a material benefit of any value to a terrorist organization, either directly or indirectly (“the fact of contributing to a terrorist organization rather than the amount of the contribution is the keystone of liability”); (2) the defendant, in providing the benefit, gave an outward appearance that its acts are intended to: “(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; [or] (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping,” see 18 U.S.C. § 2331(1), which is satisfied by giving a benefit to a terrorist organization when it is a “foreseeable consequence” that, given more money, the organization will kill or wound, or attempt to kill, or conspire to kill more people in Israel; and (3)the defendant knew or was deliberately indifferent to the character of the organization as one that engages in terrorism. See Boim III, 549 F.3d at 690-702. No additional showing of causation was required. Id. at 696-700; see also id. at 709 (Rovner, J., concurring in part and dissenting in part) (“[T]he majority relieves the plaintiffs of any obligation to demonstrate a causal link between whatever support the defendants provided to Ha-mas and Hamas’s terrorist activities (let alone David Boim’s murder in particular).”); id. at 722-24 (Wood, J., concurring in part and dissenting in part) (“The en banc majority freely concedes that there are no limits at all to its rule, and that a donor who gave funds to an organization affiliated with Hamas in 1995 might still be liable under § 2333 half a century later, in 2045.”). The Boim III court held that two charitable organizations were liable under the ATA for making financial donations to the “social services” wing of Hamas. The court saw no meaningful difference between these donations and directly funding Hamas’s terrorist activities. One defendant, the American Muslim Society, tunneled its donations through a third party (also a defendant, but one whose liability was not considered). The other, the Quranic Literary Institute, donated directly to Hamas’s charitable wing. The en banc court upheld the district court’s grant of summary judgment for the plaintiff as to the American Muslim Society and the jury’s verdict that the Quranic Literary Institute was liable. Id. at 701-02. The court held it irrelevant that the American Muslim Society’s donations had been indirect. Because the money ultimately reached Hamas and because the American Muslim Society knew that Hamas was a terrorist organization, it was appropriate to find liability under the ATA. The court explained its resolution of the attenuation argument, stating: [A]s the temporal chain lengthens, the likelihood that a donor has or should know of the donee’s connection to terrorism shrinks. But to set the knowledge and causal requirement higher than we have done in this opinion would be to invite money laundering, the proliferation of affiliated organizations, and two-track terrorism (killing plus welfare). Donor liability would be eviscerated, and the statute would be a dead letter. Id. at 702. The length of the temporal chain was relevant to whether the plaintiffs could show that the defendants had the requisite scienter. But the court did not require a showing that the defendants intended or even knew that their contributions would be used for terrorist activities. Id. at 698. A defendant could “earmark” its contribution for humanitarian purposes and nonetheless be liable if it knew that the organization’s activities included terrorism. Id. As an example, the Boim majority stated: So consider an organization solely involved in committing terrorist acts and a hundred people all of whom know the character of the organization and each of whom contributes $1,000 to it, for a total of $100,000. The organization has additional resources from other, unknown contributors of $200,000 and it uses its total resources of $300,000 to recruit, train, equip, and deploy terrorists who commit a variety of terrorist acts one of which kills an American citizen. His estate brings a suit under section 2333 against one of the knowing contributors of $1,000. The tort principles that we have reviewed would make the defendant jointly and severally liable with all those other contributors. The fact that the death could not be traced to any of the contributors ... and that some of them may have been ignorant of the mission of the organization (and therefore not liable under a statute requiring proof of intentional or reckless misconduct) would be irrelevant. The knowing contributors as a whole would have significantly enhanced the risk of terrorist acts and thus the probability that the plaintiffs decedent would be a victim, and this would be true even if Hamas had incurred a cost of more than $1,000 to kill the American, so that no defendant’s contribution was a sufficient condition of his death. Id. at 698. It did not affect the result that Hamas, in addition to carrying out terrorist operations, provided health, educational, and social welfare services. Nor did it matter that the defendants had directed their donations exclusively to those services. Id. As the majority saw it, “if you give money to an organization that you know to be engaged in terrorism, the fact that you earmark it for the organization’s nonterrorist activities does not get you off the liability hook.” Id. Because money is fungible, Hamas could reallocate other social services money to terrorism. And “Ha-mas’s social welfare activities reinforce its terrorist activities both directly by providing economic assistance to the families of killed, wounded, and captured Hamas fighters and making it more costly for them to defect ... and indirectly by enhancing Hamas’s popularity among the Palestinian population and providing funds for indoctrinating schoolchildren.” Id. The Supreme Court picked up on these themes in Humanitarian Law Project, 130 S.Ct. at 2724-30. Unlike the present case and unlike Boim III, Humanitarian Law Project was focused only on criminal liability under the ATA, not on the interaction between the ATA’s criminal prohibitions and § 2333, its civil liability provision. Humanitarian Law Project involved a constitutional challenge to one of the ATA’s criminal prohibitions, § 2339B— making it a crime to “knowingly provide! ] material support or resources to a foreign terrorist organization” — as applied to certain activities in which the plaintiffs wanted to engage. Unlike in the present case, in Humanitarian Law Project, it was undisputed that the plaintiffs’ support would have been provided directly to two groups that were designated as foreign terrorist organizations by the State Department. The plaintiffs argued that it was nonetheless impermissible for the statute to prevent their activities — advocacy on behalf of ethnic groups, training in international law and conflict resolution, and training on petitioning the U.N. for relief — because these activities were directed at the nonviolent, legitimate activities of the terrorist organizations. The Court observed that “[wjhether foreign terrorist organizations meaningfully segregate support of their legitimate activities from support of terrorism is an empirical question.” Id. at 2724. It was a question that Congress had already addressed in the statute. When it passed § 2339B, Congress included a statement of findings and purposes. The findings included that “foreign organizations that engage in terrorist activities are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) § 301(a)(7), 110 Stat. 1247, reprinted as note following 18 U.S.C. § 2339B. According to the Court, this “explicitly rejects plaintiffs’ contention that their support would not further the terrorist activities” of the organizations they supported. Humanitarian Law Project, 130 S.Ct. at 2724. The Court elaborated: Congress’s use of the term “contribution” is best read to reflect a determination that any form of material support furnished “to” a foreign terrorist organization should be barred, which is precisely what the material-support statute does. Indeed, when Congress enacted § 2339B, Congress simultaneously removed an exception that had existed in § 2339A(a) (1994 ed.) for the provision of material support in the form of “humanitarian assistance to persons not directly involved in” terrorist activity. AEDPA § 323, 110 Stat. 1255; 205 F.3d at 1136. That repeal demonstrates that Congress considered and rejected the view that ostensibly peaceful aid would have no harmful effects. Id. at 2725. And the Court held that “Congress was justified in rejecting that view.” Id. The terrorist groups at issue were responsible for numerous deaths and injuries in both targeted and indiscriminate attacks. For three broad reasons, the Court found support for Congress’s factual findings. First, because “[mjoney is fungible,” material support for nonviolent activities “frees up other resources within the organization that may be put to violent ends.” Id. The Court cited evidence that terrorist groups in fact commingle their funds between nonviolent and violent functions. Id. at 2725-26. Second, material support to the groups’ nonviolent functions “importantly helps lend legitimacy to foreign terrorist groups — legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds — all of which facilitate more terrorist attacks.” Id. at 2725. Finally, the Court noted that United States “allies would react sharply to Americans furnishing material support to foreign groups like the [terrorist groups involved in the case], and would hardly be mollified by the explanation that the support was meant only to further those groups’ ‘legitimate’ activities.” Id. at 2726. As further support for all three arguments, the Court pointed to an affidavit from a State Department consistent with Congress’ findings. The Court found no basis for substituting its own judgment for that of the two political branches, particularly given the national security and foreign policy concerns. Id. at 2727-30. As applied to the specific forms of material support the plaintiffs sought to provide, the statute did not violate the First Amendment. Id. at 2730. Because it does not deal with civil liability under § 2333, Humanitarian Law Project does not discuss what it means to be injured “by reason of’ material support to terrorism. Boim III required a minimal showing of causation. The cases before Boim III generally required plaintiffs to show that the defendants’ actions were a proximate cause of their injuries. See, e.g., Boim I, 291 F.3d at 1011 (“Additionally, the statute itself requires that in order to recover, a plaintiff must be injured ‘by reason of an act of international terrorism. The Supreme Court has interpreted identical language to require a showing of proximate cause.”); In re Terrorist Attacks on Sept. 11, 2001 (Terrorist Attacks III), 462 F.Supp.2d 561 (S.D.N.Y.2006) (“Assuming [material] support is alleged, Plaintiffs will have to present a sufficient causal connection between that support and the injuries suffered by Plaintiffs.... Proximate cause will support this connection.”); Terrorist Attacks I, 349 F.Supp.2d at 825-26 (requiring proximate cause); Burnett v. Al Baraka Investment & Development Corp., 274 F.Supp.2d 86, 104-05 (D.D.C.2003) (same). Rothstein v. UBS AG, 647 F.Supp.2d 292, 294-95 (S.D.N.Y.2009), decided after Boim III, stated that proximate cause was required. Another case decided after Boim III has also held that a showing of a “sufficient causal connection,” although not “but for” causation, is required. In re Chiquita Brands Int’l, Inc. Alien Tort Statute & Shareholder Derivative Litigation, 690 F.Supp.2d 1296, 1313-15 (S.D.Fla.2010). In re Chiquita Brands concluded that proximate cause could be sufficient and that Boim III provided an example of proximate causation. See id. (collecting cases). Humanitanan Law Project, 130 S.Ct. at 2717-18, does shed light on the scienter analysis. This is true in part because the discussion of fungibility, legitimacy, and foreign affairs confirms the broad sweep of the statute and supports the reasoning of Boim III. More importantly, the Court addressed the mens rea requirements of § 2339B, one of the underlying criminal statutes at issue in this case. The Court stated that “Congress plainly spoke to the necessary mental state for a violation of § 2339B, and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activities.” Id. at 2717. This conclusion was bolstered by Congress’s use of “knowing or intending” in § 2339A, and “willfully” and “with the intention” in § 2339C, terms that it could have, but did not, use in § 2339B. In response to the specific argument that a different standard should apply when the • material support alleged is pure speech, the Court found “no basis whatever in the text of § 2339B to read the same provisions in that statute as requiring intent in some circumstances but not others.” Id. at 2718. Justice Breyer, in a dissenting opinion, agreed that intent to further an organization’s terrorist activities was not required. But he stated that a “fairly possible” reading of the statute was that it criminalized “First-Amendment-protected pure speech and association only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.” Id. at 2740 (Breyer, J., dissenting). Under such a reading, a defendant’s activity would violate the statute “where a defendant purposefully intends it to help terrorism or where a defendant knows (or wilfully blinds himself to the fact) that the activity is significantly likely to assist terrorism.” Id. Justice Breyer reached this interpretation by construing the scienter requirement in § 2339B — “knowingly”—as applying to all elements of the crime, which he stated that the Court “normally” does, id. (citing Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 1891-92, 173 L.Ed.2d 853 (2009)), and by reading the term “material” to require support of “importance or great consequence.” Id. at 2741. For a defendant to knowingly provide “material support,” he must know that he is providing support of importance or great consequence, meaning that the support “bears a significant likelihood of furthering the organization’s terrorist ends.” But the dissent clarified that this definition may not apply when the support is something other than “training,” “expert advice or assistance,” and “personnel.” When the support takes the form of money, for example, it was possible that a looser definition of “material” could be appropriate because such aid would be “inherently more likely to help an organization’s terrorist activities, either directly or because [it is] fungible in nature.” Id. The majority took issue with this reading, stating that “Congress explained what ‘knowingly’ means in § 2339B, and it did not choose the dissent’s interpretation of that term.” Id.