Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)

IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 793 Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005) The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particu- lar transaction or act, rather than by refer- ence to its purpose.” 28 U.S.C. § 1608(d). The Supreme Court has explained, “when a foreign government acts, not as a regu- lator of the market, but in the manner of a private player within it, the foreign sover- eign’s actions are ‘commercial’ within the meaning of the FSIA.” Weltover, 504 U.S. at 614, 112 S.Ct. 2160. Courts must in- quire whether the foreign state’s actions “are the type of actions by which a private party engages in trade and traffic or com- merce.” Jd. (internal citations omitted). [15] Judge Robertson determined that the commercial activity exception did not apply to the Burnett Plaintiffs’ claims against Prince Sultan and Prince Turki because “the act of contributing to a foun- dation is not within our ordinary under- standing of ‘trade and traffic or commerce’ nor, apparently was it within the contem- plation of ... Congress.” Burnett I, 292 F.Supp.2d at 18 (citing H.R.Rep. No. 94- 1487, at 16, reprinted wm 1976 U.S.C.C.A.N. at 6615). Thus, the consoli- dated Plaintiffs do not assert that the com- mercial activities exception is applicable to any of the Defendants raising FSIA de- fenses here. This Court adopts Judge Robertson’s reasoning. To the extent any Plaintiffs’ claims are based on a Defen- dant’s contributions to charities, those acts cannot be considered commercial. [16,17] The Federal Plaintiffs allege that the Kingdom of Saudi Arabia, Prince Sultan, and Prince Turki financed terror- ism by contributing to or supporting chari- ties known to support terrorist activities. In these Plaintiffs’ view, this is essentially money laundering and, therefore, a com- mercial activity. See, eg., Federal Plain- tiffs’ Opp. to Motion to Dismiss of Prince Sultan at 18 (citing U.S. v. Goodwin, 141 F.3d 394, 399 (2d Cir.1997)). The Second Circuit noted in Goodwin that “[mloney laundering is a quintessential economic ac- tivity,’ 141 F.3d at 399, but that statement has no bearing here. In Goodwin the court was not deciding whether money laundering is a commercial activity for purposes of the FSIA. /d. (analyzing con- stitutionality of criminal money laundering statute). The Second Circuit has made very clear that, for purposes of the FSIA, a commercial activity must be one in which a private person can engage lawfully. Letelier v. Republic of Chile, 748 F.2d 790, 797-98 (2d Cir.1984); see also Saudi Ara- bia v. Nelson, 507 U.S. 349, 360-62, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (holding detaining and torturing plaintiff is not commercial activity since it “is not the sort of action by which private parties can en- gage in commerce”). Since money laun- dering is an illegal activity, see 18 U.S.C. § 1956 (criminalizing money laundering), it cannot be the basis for applicability of the commercial activities exception. See Lete- her, 748 F.2d at 798 (holding alleged par- ticipation in an assassination is not a lawful activity and therefore not a commercial activity for purposes of the FSIA). Ac- cordingly, the Court finds that the com- mercial activities exception outlined in § 1605(a)(2) is inapplicable to the allega- tions contained in the Federal complaint against the Kingdom of Saudi Arabia, Prince Sultan, and Prince Turki. 2. State Sponsor of Terrorism [18] Subsection (a)(7) lifts immunity in cases: in which money damages are sought against a foreign state for personal inju- ry or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provi- sion of material support or resources ... for such an act ... except that the HOUSE_OVERSIGHT_017858