SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF KIN‘ RICHARD LAKIN, ef al., Index No: 12831 / 15 Plaintiffs, Motion Seq. No.: 1 -against- ORAL ARGUMENT FACEBOOK, INC., REQUESTED Defendant. PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO (NDANT’S MOTION TO DISMISS THE BERKMAN LAW OFFICE, LLC 111 LIVINGSTON STREET, SUITE 1928 BROOKLYN, NEw York 11201 718-855-3627‘TABLE OF CONTENTS INTRODUCTION FACTUAL BACKGROUND. A. Facebook's business in New York .. B. Facebook Provides its Social Media Platform and Services to Palestinian Terrorists... C. The “Facebook Intifada”. D. Facebook has refused to cease providing services to terrorists... ARGUMENT. 1. FACEBOOK IS SUBJECT TO PERSONAL JURISDICTION IN NEW YORK. A. Facebook is Subject to Personal Jurisdiction in New York under CPLR § 301 Because it Consented to Jurisdiction by Complying with New York’s Registration Statute... 8 B. Facebook is Subject to Personal Jurisdiction in New York Under CPLR § 301 Because it 10 Does Business in New York C. Facebook is “At Home” in New York... D. Facebook is Subject to Specific Jurisdiction Under CPLR § 302 E. At the Very Least Plaintiffs are Entitled to Jurisdictional Discovery . Il, THE CDA DOES NOT BAR PLAINTIFFS’ CLAIMS... A, The CDA does not apply to Plaintiffs? claims under Israeli law. 1. Plaintiffs’ claims under Israeli law are properly before this Court... a) Plaintiffs? Israeli Tort Claims.. ) Israeli Tort Law Conflicts with New York Law. ©) Israel's Interests are Strongest and Israeli Law Should Apply. 2. The CDA does not have Extraterr ial Application.. B. The CDA does not Bar Claims that Facebook is Facilitating Terrorist Activity.... Ill. FORUM NON CONVENIENS IS NOT GROUNDS FOR DISMISSAL HERE IV. LEAVE TO AMEND SHOULD BE FREELY GRANTED... CONCLUSION..TABLE OF AUTHORITIES Cases A Pty Ltd. v. Facebook, Inc., No. \-15-CV-156 RP, 2015 WL 5883331 (W.D. Tex. Oct. 8, 2015), Altvater Gessler-J.A. Baczewski Int'l (USA) Inc. v, Sobieski Destylarina S.A, 572 F.3d 86, 90 (2d Cir. 2009). Amica Mut, Insu. Co. v. Hart Alarm Systems Inc., 629 N.Y.8.2d 874 (3d Dep't 1995)... 34 B & M Kingstone, LLC v. Mega Int'l Commercial Bank Co., 131 A.D.3d 259, 15 N.Y.S.3d 318 (N.Y. App. Div.)... Bagdon v, Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432 (1916) Bailen v. Air & Liquid Systems Corp., 2014 WL 3885949, 2014 NY (N.Y. Sup. Co, Aug. 5, 2014).. ip Op 32079(U) Beach v. 2014)... roup Alternative Investments LLC, 2014 WL 904650 (S.D.N.Y. Mar. 7, Blackmer v. United States, 284 U.S. 421 (1932)... Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 110 A.D.34 938, 973 N.Y.S.2d 728 (2d Dep’t 2013) aff'd, 23 N.Y.3d 1012, 16 N.E.3d 1252 (2014) Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016) Brown v. Vill. of Albion, 128 Misc. 2d 586 (Sup. Ct. 1985). Carbone v. City of New York, 584 N.Y.S. 2d 855 (2d Dep't 1992) Cheggour v. R’Kiki, 740 N.Y.8.2d 391 (2d Dep't 2002) Compas Med, P.C. v. Am. Indep. Ins. Co., 47 Misc. 3d 134(A), 9 N.Y.8.3d 592 (N.Y. App. Term. 2015) ConnectU, Ine. v. Fac Mass. June 3, 2008).. ebook, Inc., No. CIV.A. 04-11923-DPW, 2008 WL 2330992 (D. Cont'l Indus. Grp,, Inc. v. Equate Petrochemical Co., 586 F. App’x 768 (2d Cir. 2014)Cooney v. Osgood Mach,, Inc., 81 N.Y.2d 66 (1993) Cross Atl. Capital Partners, Inc. v. Facebook, Inc., No. CIV.A.07-2768, 2011 WL. 925440 (E.D. Pa. Mar. 17, 2011). D & R Glob, Selections 2015)... SLL. v. Pineiro, 128 A.D.3d 486, 9 N.Y.S.3d 234 (Ist Dep't Daimler AG v. Bauman, 134 8. Ct. 746 (2014).. Daniel B. Katz & Associates Corp. v. Midland Rushmore, LLC, 90 A.D.3d 977, 937 N.Y.S.2d 236 (2d Dep’t 2011). Del Castillo v. PMI Holdings N, Am. Inc., 2015 WL 3833447 (S.D. Tex. June 22, 2015). Devore v. Pfizer Inc., 58 A.D.3d 138, 867 N.Y.8.2d 425 (Ist Dep't 2008).. Dorchester Fin. Sec., Inc. v. Banco BRJ; S.A., 722 F.3d 81 (2d Cir. 2013 EE.O.C. v, Arabian Am. Oil Co., 499 U.S. 244, (1991). EasyWeb Innovations, LLC v. Facebook, Inc., 888 F. Supp. 2d 342 (E.D.N.Y. 2012)... Elmatiach v. Bank of China, Ltd., 110 A.D.3d 192, 971 N.Y.8.2d 504 (1st Dep't 2013) 19, 21, 30 Facebook, Inc. v. DLA Piper LLP (US), 123 N.Y.8.3d 173 (Ist Dep't 2015). Facebook, Inc. v. Teachbook.com LLC, 819 F. Supp. 24 764 (N.D. Ill. 2011) ..seuseenseetenied Fiduciary Network, LLC v. Buehler, 2015 WL 2165953 (N.D. Tex. May 8, 2015) Finance One Pub. Co. v. Lehman Bros. Special Fin., 414 F.3d 325 (2d Cir. 2005) Firegreen Limited v. Claxton, 160 A.D.2d 409, 553 N.Y.S.2d 765 (st Dep’t 1990). Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) Frummer v. Hilton Hotels Int'l, Inc., 19 N.¥.2d 533 (1967) ... Goldberg v. UBS AG, 690 F, Supp.2d 92 (E.D.N.Y. 2010) Gomez v. State of New York, 965 N.Y.S.2d 542 (2d Dep't 2013)... Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 8. Ct. 2846 (2011)... oT, 8, 12 -iii-Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565 (2011). Gucci Am., Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014). Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) HSA Residential Mortg. Servs. of Texas v. Casuccio, 350 F. Supp.2d 352 (E.D.N.Y. 2003) Huani v. Donziger, 11 N.Y $.3d 153 (Ist Dep't 2015) secon Inre Facebook, Inc., IPO Sec. & Derivative Litig., 312 F.R.D. 332 (S.D.N.Y. 2015).... In re Oxycontin II, 908 N.Y 8.2d 239 (2d Dep't 2010)... Islamic Repub. Of Iran v. Pahlavi, 62 N.Y.2d 474 (1984). Jackam v. Nature's Bounty, Inc., 895 N.Y.8.2d 508 (2d Dep’t 2010)... KT. v, Dash, 37 A.D.3d 107 (Ist Dep’t 2006)... Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013)... Magdalena v. Lins, 123 A.D.3d 600, 999 N.Y.S.2d 44 (Ist Dep’t 2014)... Magi XX1, Inc. v. Stato Della Citta Del Vaticano, 714 F.3d 714, 724-25 (2d Cir. 2013) see33 Mandel v. Busch Entm't Corp., 215 A.D.2d 455, 626 N.Y.S.2d 270 (1995)... Mashreghank PSC v. Ahmed Hamad Al Gosaibi & Bros. Co., 23 N.Y.3d 129, 12 N.E.3d 456 (2014) ae Matter of Allstate Ins. Co., 81 N.Y.2d 219 (1993)... Mejia-Haffner v. Killington, Ltd., 119 A.D.3d 912, 990 N.Y.S.2d 561 (2014) er) Mezzacappa Bros. v. City of New York, 815 N.Y.8.2d 549 (1" Dep't 2006)... Micro Focus (US), Inc. v. American Express Co., 2015 WL 3441991 (D. Md. May 27, 2015)... Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007)... «iv.Miller v. Facebook, Inc., No. 1:09-CV-2810-RLV, 2010 WL 9525523 (N.D. Ga. Jan. 15, 2010) Morrison v, Nat'l Australia Bank, 130 S. Ct. 2869 (2010)... 2, 24, 25 My24HourNews.Com, Inc. v. AT & T Corp., 2015 WL 6377447 (D. Colo. Oct. 22, 2015) .sueI5 Nader v. Gen. Motors Corp., 31 A.D.2d 392 (Ist Dep't 1969 Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165 (1939)... Norex Petroleum Lid. v. Blavatnik, 48 Misc. 3d 1226(A) (N.Y. Sup. Ct. Aug. 25, 2015)... OrthoTee, LLC v. Healthpoint Capital, LLC, 84 A.D.3d 702, 924 N.Y 8.2d 78 (2011) ......29, 32 Oveissi v. Islamic Rep. of Iran, 573 F.3d 835 (D.C. Cir. 2009)... 23 20 Padula y. Lilarn Props. Corp., 84 N.Y.2d 519 (1994). People v. Kay, 125 Mise.2d 833 (Town Ct. 1984)... Princeton Digital Image Corp. v. Facebook, Inc., No. 2:11-CV-400-JRG, 2012 WL 3647182 (E.D. Tex. Aug. 23, 2012)... Ramos v. Baker, 937 N.Y.S. 2d 328 (2d Dep’t 2012) 34 Rembrandt Soc. Media, LP v. Facebook, Inc., 950 F. Supp. 2d 876 (E.D. Va. 2013) ..csenene31 Rockefeller Univ. v. Ligand Pharms., 581 F. Supp. 24 461 (S.D.N.Y. 2008) S. Seas Holding Corp. v. Starvest Grp., Inc., 46 Misc. 34 1226(A), 13 N.Y.S.3d 853 2d Dep't 2015)... Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)... Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189 (1985) ... Shiamili v. Real Estate Grp. of N.Y., Inc., \7 N.Y.3d 281 (2011).. Smith v. United States, 307 U.S. 197 (1993) .esccsesnese Sonera Holdings B.V. v. Cukorova Holding A.S., 750 F.3d 221 (2d Cir.) eert. denied, 134 S. Ct. 2888 (2014). veStrauss v, Credit Lyonnais, S.A., 249 E.R.D. 429 (ED.N.Y. 2008)... Tooth v, Georgiou, 895 N.Y.$.2d 33 (Ist Dep’t 2010)... Trontone v. Lac d'Amiante du Quebec, Liee, 297 A.D.2d 528, 747 N.YS.2d 79 (Ist Dep't 2002) 3. Fire Ins, Co. 134 A.D.2d 187, 520 N.Y.S. 2d 716 US. Aviation Underwrites, Inc. v. (Ist Dep’t 1987). 31 Wild v. University of Pennsylvania, 983 NY S.24 58 (2d Dep't 2014) .. Wultz v. Bank of China, 910 F. Supp. 2d 548 (S.D.N.Y 2012)... Waltz v. Bank of China, Ltd., 811 F. Supp. 2d 841 (S.D.N.Y. 2011) Wultz v. Islamic Republic of Iran, 155 F. Supp. 24 1 (2010) .. 16, 17, 19, 23, Zucker v. Waldman, 46 Misc. 34 1214(A), 9 N.Y.S.3d 596 (N.Y. Sup. 2015)... 8 Statutes 18 U.S.C. § 23394 26 18 U.S.C. § 23398. 26 18 U.S.C. § 2339. Canadian Criminal Code §§ 83.18-83.23 Ireland's Criminal Law Act 1976 ....0.00 Ireland's Offenses Against the State Acts 1939-1998... Israel Civil Wrongs Ordinance (New Version)—1972 (*CWO").. 16, 17, 18, 19 wu lB Israel Defense Regulations (Emergency Period), 1945 .. Israel Penal Law, 5737-1977. Israel Prevention of Terrorism Ordinance, 5708-1948. N.Y. Bus, Corp. Law § 1301 .. wiN.Y. Bus. Corp. Law § 304 New York Penal Code, §§ 490.10, 490.15, 490.30, 490.35... eT Other Authorities Clark, Liat, Facebook Hit with International Class Action Privacy Suit, Wired, 08/01/14......31 Class Action Lawsuit Against Facebook to Begin in Vienna, Deutsche Welle, 04/09/15. International Convention on the Suppression of Terrorist Financing (1999). Lidgett, Adam, France Facebook Lawsuit Update: Paris Court Rules Over Social Media Removal of Painting Depicting Vagina, IBT, 2/12/16 New York State Assembly Bill A6714 UN Security Council Resolution 1373 (2001). Rules CPLR § 301 «passim CPLR § 302 ... CPLR § 3025... CPLR § 327 Treatises Alexander, Supplementary Practice Commentaries, McKinney’s Cons. Laws of N.Y. CPLR €301:6 (2015)... 7 ~vii-INTRODUCTION This is not a suit for damages. Rather, this is an action by 20,000 Israelis seeking equitable relief barring Facebook, Inc. (“Facebook”) from continuing to facilitate terrorist activity directed at Plaintiffs in Israel. This case is not about imposing liability on Facebook for the defamatory speech of one of its users; it is about Facebook’s responsibility to cease illegally providing sophisticated social media tools to terrorists who use these tools to cri nally incite, recruit, instruct, and carry out violent terrorist attacks against Jews in Israel. While acknowledging that “[tJerrorist attacks are terrible events,” Facebook asserts that “this lawsuit is not the right way to address terrorism.” (MTD at 1). But cutting off resources to terrorists ii in fact among the most effective means of combatting terrorism. Unfortunately, however, this lawsuit is necessary in the fight against terrorism because Facebook has itself refused to comply with laws that prohibit providing resources and services to terrorists— something that is so basic to civilized society that no law should even be required. Facebook’s motion to dismiss asserts two defenses to this suit. Facebook argues that not subject to personal jurisdiction in New York because it is incorporated in Delaware and its corporate headquarters is in California. However, Facebook has consented to jurisdiction by registering to do business in New York, and its affiliations with New York—it has more than 1,000 employees in New York, nearly 300,000 square feet of exclusively-designed New York office space, and New York bank accounts holding more than $70 million—are sufficiently continuous and systematic to render it essentially “at home” in New York and subject to jurisdiction. Facebook also asserts that the federal Communications Decency Act of 1996 (“CDA”), intended 47 U.S.C. § 230, bars this action. But there is nothing in the CDA suggesting Congresfor that statute to apply outside the territory of the United States. See Morrison v, Nat'l Australia Bank, 130 S. Ct, 2869, 2878 (2010) (“When a statute gives no clear indication of an extraterritorial application, it has none”). The CDA thus does not shield Facebook from claims under Israeli law for harm to Israelis in Israel caused by Facebook wrongly providing services to Palestinian terrorists in the Middle E: 1, which they use to mobilize attacks against Israelis. The CDA is also inapplicable because Plaintifis are not seeking to hold Facebook liable as a publisher or speaker of information, but as the provider of a sophisticated social media tool that terrorists use to establish connections and communicate with followers and potential recruits, and through which terrorists mobilize attacks. Furthermore, the CDA does not exempt Facebook from criminal laws that prohibit aiding terrorist and other criminal activity or providing support, resources, and services to terrorists, many of whom are specifically designated as such under federal law. Finally, Facebook asks the court to dismiss this lawsuit based upon forum non conveniens. But Facebook has not demonstrated how it is burdened in any way by litigating in New York. Additionally, Facebook itself has invoked the jurisdiction of New York courts as a plaintiff and is a defendant in other lawsuits in New York and around the world.FACTUAL BACKGROUND! Facebook’s Business in New York Defendant Facebook is a corporation organized pursuant to the laws of Delaware with its corporate headquarters in California. Facebook maintains offices in many places, including New York and Israel, and it conducts business and provides services throughout the world, Facebook is a public company with a market capitalization of more than $325 billion traded on the NASDAQ Exchange in New York. Facebook is registered to do business in New York pursuant to N.Y. Bus. Corp. Law § 1301 and has designated the New York secretary of state as its agent for service of process. Facebook has consented to personal jurisdiction in New York. Facebook has in fact established a major presence in New York, such that it can fairly be said to be “at home” in New York. Facebook has multiple offices in New York, including an exclusive 275,635 square-foot New York headquarters at 770 Broadway in Manhattan, which was custom-designed and built for Facebook by architect Frank Gehry, as well as 10,850 square- feet of additional office space in New York. Facebook has at least two bank accounts located in New York, which hold more than $70 million in cash, cash equivalents, and marketable securities. Facebook has more than 1,000 employees in New York, which comprise nearly 5% of its employees worldwide, and it is continuing to grow its New York workforce. Facebook's New York offices include employees in Facebook’s Global Marketing Solutions, Technology, and Business Development departments. | As discussed below, Plaintifis are seeking leave to file an Amended Complaint. The facts in this brief are based upon a proposed Amended Complaint, which is being filed simultaneously with this briFacebook has also established an “engineering hub” in New York that, among other things, releases daily updates and improvements to the Facebook social media platform and services worldwide. The New York engineering hub also designs, creates, develops and releases other applications for use with Facebook, particularly in the field of mobile applications. Significantly, Pale terrorists particularly use and rely on Facebook's mobile features and applications produced in New York to gather and distribute real-time intelligence about attacks, riots, Israeli troop movements, and more. Facebook Provides its Social Media Platform and Services to Palestinian Terrorists In order to create a Facebook page and use its services, a user must register with Facebook and provide identifying information. In addition to the information provided upon registration, Faccbook by design employs highly-sophisticated data collection and analysis tools to gather specific information about each user, including nearly every detail that can be gleaned from the user’s computer, smartphone, or other internet use. Facebook uses this data not only to sell targeted advertising, but also (o actively suggest and introduce users to other users, groups, events, notices, posts, articles, videos, and more, that share commonalities with or may be of interest to such users. This feature of Facebook is extremely valuable, for example, to a retailer or organization with a Facebook page that wants to attract customers or supporters to its Facebook page (and thus to its product or cause). This service is likewise extremely valuable to a terrorist group or individual with a Facebook page who wants to attract followers and recruits, since Facebook will actively suggest to users with appropriate interests to visit the terrorist’s Facebook page. Of course, this “brokering” of connections between terrorists and followers is only one of the many invaluable services that Facebook accounts afford terrorists. Facebook's sophisticated “4platform and services are used by terrorists for communication, logistics, intelligence, fundre ing, and even prestige. And recently, Palestinian terrorists are also using Facebook’s services to criminally incite, recruit, instruct, and carry out violent terrorist attacks against Jews in Israel. On October 1, 2015, Hamas terrorists murdered a young couple, Rabbi Eitam and Na’ama Henkin, in a brutal roadside shooting attack on their vehicle while they were driving home from a social gathering with their four young children in the back seat. ‘The next day, a well-known Hamas leader used Facebook to praise the attack as a “heroic operation” and as a “natural response to the crimes of the enemy,” including the “Judaization of al-Agsa [Mosque|” and what he called the “murder of [a] girl” who had been shot attempting to stab an Israeli soldier. ‘The Henkins’ murder marked the beginning of a new wave of terror attacks against Jews and Israelis in Israel, which have been carried out both by terrorist operatives and by individuals who were criminally incited and encouraged by terrorists via Facebook to conduct such attacks. These terror attacks have been carried out by young Palestinians and Arabs, with one of the youngest attackers being just thirteen years old. The weapons of choice for these attacks are knives and cars, with guns, axes, meat cleavers and screwdrivers also being used. Using Facebook openly and in their own names, known terrorists have in ited and encouraged these attacks, and have praised the terrorists who have carried them out. This wave of violence has been variously labeled as a new “Al Aqsa Intifada,” as the “Knife Intifada,” and as the “Facebook Intifada.”Since the beginning of October 2015 until today, Palestinian and Arab terrorists have murdered more than 30 Israelis as well as a number of non-Israelis, and injured more than 400 others, Among these victims was 76-year-old Plaintiff Richard Lakin, who was brutally shot in the head and stabbed in the chest in a terrorist attack on a city bus in Jerusalem on October 13, 2015. Despite a valiant attempt to save his life, including multiple surgeries, Mr. Lakin died from his wounds two weeks later. Two other passengers were also murdered on that bus, and at least 16 were injured. ‘The list of terror attacks and attempts since October 1, 2015 has continued to grow daily? In this short period, there have been more than 200 stabbings, more than 80 shootings, and more than 40 attacks using vehicles—all with the intention to kill Jews in Israel. Plaintiffs have been injured physically, emotionally, and in their property and personal security. Jews and Israelis living in Israel, including the 20,000 Israeli plaintiffs in this lawsuit, are truly being terrorized; they live in daily fear of an imminent attack that may occur while they stand at a bus stop, pray in a synagogue, shop in the supermarket, ride in a car, or even stay in their homes. Facebook has refused to cease providing services to terrorists These attacks are part of deliberate terror campaign driven by Palestinian terrorists using Facebook to incite, enlist, organize, and dispatch would-be killers to “stab” and “slaughter Jews.” Several of the perpetrators of attacks who were not members of terrorist organizations have told investigators they acted after viewing terrorist incitement against Jews and Israelis on Facebook. 2 See hitp://mfa.gov iv MFA/ForeignPolicy/Terro: October-2015.aspx. jan Pages/Wave-of-terror-None of this is news to Facebook. Palestinian terrorists have been openly using Facebook in their own names for years. The use of social media by terrorists—and specifically Facebook—has been the focus of news articles, studies, and even Congressional hearings for several years. Facebook receives complaints every day about Palestinian terrorists using Facebook, but it only rarely closes them down. In fact, Facebook has at times deleted a specific post on a known terrorist entity’s Facebook site, leaving the site itself online, The names and symbols of many Palestinian terrorists groups and individuals are well known, and many are easily identified by name on lists of “Specially Designated Global Terrorists” or “Foreign Terrorist Organizations” to whom providing services is a federal crime. Facebook has the data and the capability to cease providing services to terrorists, but it has chosen not to do so. ARGUMENT FACEBOOK IS SUBJECT TO PERSONAL JURISDICTION IN NEW YORK Facebook claims that it is not subject to general personal jurisdiction in this Court because New York is not its place of incorporation or principal place of business. See (MTD at 14-17), citing, inter alia, Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct, 2846, 2851 (2011) and Daimler AG v, Bauman, 134 S. Ct. 746 (2014). However, Facebook's reading of these cases is too narrow, as even the Daimler court recognized that a corporation could be subject to personal jurisdiction where its “affiliations with the State are so continuous and systematic as to render [it] essentially at home in the forum state.” Daimler, 134 S. Ct. at 761 (citations and internal quotations omitted). Moreover, under CPLR § 301, “a defendant may be subject to general jurisdiction [in New York] by virtue of its physical presence, domicile,consent, or ‘doing business’ in New York.” Beach v. Citigroup Alternative Investments LLC, 2014 WL 904650, at *6 (S.D.N.Y. Mar. 7, 2014). Here, as discussed below, Facebook has consented to jurisdiction through New York’s registration statute and is physically present and doing business in New York. A. — Facebook is Subject to Personal Jurisdiction it New York under CPLR § 301 by Complying with New York’s Registration Because it Consented to Juri Statute Facebook consented to general personal jurisdiction in New York when it registered to do business in New York in 2009 pursuant to N.Y. Bus. Corp. Law § 1301. As a condition for being authorized to do business in New York, Facebook had to designate the New York secretary of state as its agent for service of process. N.Y. Bus. Corp. Law § 304(a) and (b). Historically, New York courts have interpreted these provisions as consent to general personal jurisdiction in the state. See CPLR § 301, Alexander, Supplementary Practice Commentaries, McKinney’s Cons. Laws of N.Y. CPLR C301:6 (2015); see also, e.g., Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 170, 175 (1939); Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432, 436-38 (1916) (consent to jurisdiction based on New York’s registration statutes “is a real consent”); Rockefeller Univ. v. Ligand Pharms., 581 F. Supp. 2d 461, 466 (S.D.N.Y. 2008) (defendant's “unrevoked authorization to do business and its designation of a registered agent for service of process amount to consent to personal jurisdiction in New York”). Even after Goodyear and Daimler, New York courts continue to hold that registration in New York as a foreign corporation constitutes consent to personal jurisdiction for purposes of CPLR § 301. See, eg, Zucker v. Waldman, 46 Mise. 3d 1214(A), 9 N.Y.S.3d 596 (N.Y. Sup. 2015) (foreign corporation could have been subjected to personal jurisdiction in New York by consent had it registered to do business in New York); Bailen v. Air & Liquid Systems Corp., “82014 WL 3885949, at *4-5, 2014 NY Slip Op 32079(U) (N.Y. Sup. Co. Aug. 5, 2014) (recognizing that “although Daimler clearly narrows the reach of New York courts in terms of its exercise of general jurisdiction over foreign entities, it does not change the law with respect to personal jurisdiction based on consent.”); Beach, 2014 WL 904650, at *7 (“[nJotwithstanding these limitations [in Goodyear and Daimler], a corporation may consent to jurisdiction in New York under CPLR § 301 by registering as a foreign corporation and designating a local agent.”) see also B & M Kingstone, LLC v. Mega Int'l Commercial Bank Co., 131 A.D.3d 259, 264-65, 15 N.Y.S.3d 318 (N.Y. App. Div.), leave to appeal dismissed, 26 N.Y.3d 995, 41 N.E.3d 74 (2015) (holding that foreign bank had consented to jurisdiction in New York by registering with New York’s department of financial services and noting that Daimler “does not end the inguiry.”). Furthermore, an amendment to N.Y. Bus. Corp. Law § 1301 is currently pending before the New York State Assembly, which would codify the case law that authorization to do business in New York constitutes consent to personal jurisdiction there, as follows: (E) A foreign corporation’s application for authority to do business in this state, whenever filed, constitutes consent to the jurisdiction of the courts of this state for all actions against such corporation. A surrender of such application shall constitute a withdrawal of consent to jurisdiction. New York State Assembly Bill A6714? Plaintiffs are aware that the Second Circuit recently rejected an argument for jurisdiction based on consent under Connecticut’s registration statute in Brown v. Lockheed Martin Corp., 814 F.3d 619, 2016 WL 641392, at *18-19 (2d Cir. 2016). However, that decision was limited to the court’s interpretation of Connecticut's registration statute, which the court held was * Available at https://www.nysenate.gov/legislation/bills/2015/a6714.“ambiguous,” unlike New York’s registration statute. Indeed, the Lockheed court expressly distinguished the two states” statutes, stating: “[tJhe registration statute in the state of New York has been definitively construed to accomplish that end [consent to general jurisdiction], and legislation has been introduced to ratify that construction of the statute.” Id. Furthermore, the Lockheed court declined to reach the issue of whether consent to jurisdiction based on a state other than Connecticut's registration statute was constitutional, but suggested that it “might well be.” Id. Facebook is Subject to Personal Jurisdiction in New York Under CPLR § 301 ‘New York Facebook's New York presence is also so substantial that it satisfies the “doing business” prong of CPLR § 301, Facebook maintains nearly 300,000 square feet of office space in New ‘York, most of which is in a prime location at 770 Broadway in the heart of New York's tech start, up scene. Facebook primary New York office was designed specifically for Facebook by renowned architect Frank Gehry. Facebook has already admitted that it employs 1,000 employees in its New York office, which comprise nearly 5% of its employees worldwide, and it is continuing to grow its New York workforce. These employees are critical to Facebook's global operations, working in the company’s Global Marketing Solutions, Technology, and Business Development departments. Among other things, they release daily updates and improvements to Facebook's social media platform and services worldwide. In addition, Facebook has substantial assets in New York, with bank accounts holding more than $70 million in cash, cash equivalents, and marketable securities. It has long been the law in New York that “[a] foreign corporation is amenable to suit in New York courts under CPLR § 301 if it has engaged in such a continuous and systematic course -10-of ‘doing business” there that a finding of its ‘presence’ in this jurisdiction is warranted.” Mejia- Haffner v. Killington, Lid, 119 A.D.3d 912, 990 N.Y.S.2d 561 (2014) (collecting cases); see also Frummer v. Hilton Hotels Int'l, Inc., 19 N.Y.2d 533, 537 (1967). In Frummer, the New York Court of Appeals held that the CPLR § 301 doing business standard applied to subject an out of state hotel to general personal jurisdiction in New York. /d. There, the hotel had an office lease, employees and bank account in New York, did public relations and solicited clients in New York. Id. Even afier Daimler, binding precedent from the Second Department continues to apply this standard, as reflected in Mejia-Haffner, a Second Department decision from July 30, 2014 (more than six months afer Daimler). In that case, the court said that the out of state defendant would have been subject to personal jurisdiction in New York pursuant to CPLR § 301 if it had engaged in “solicitation plus” in New York, ie., solicitation plus some other activities of substance. Mejia-Haffner, 990 N.Y.S.2d at 561. Significantly, the Mejia-Haffner court did not hold that Daimler precluded application of personal jurisdiction to the out of state defendant because it was incorporated and had its principal place of business outside of New York. See also S. Seas Holding Corp. v. Starvest Grp., Inc., 46 Mise. 3d 1226(A), 13 N.Y.S.3d 853 (2d Dep't 2015) (discussing New York’s pre-Daimler doing business standard as good law). Certainly, Facebook is “present” in New York under the traditional doing business standard. Plai ffs are aware that some courts outside the Second Department have held post- Daimler there is no personal jurisdiction under CPLR § 301 if the defendant is not incorporated in New York and does not have its principal place of business in New York. See Facebook brief at 17 citing, e.g., Magdalena v. Lins, 123 A.D.3d 600, 999 N.Y.S.2d 44 (Ist Dep't 2014); D & R Glob. Selections, S.L. v. Pineiro, 128 A.D.3d 486, 9 N.Y.S.3d 234 (Ist Dep’t 2015) leave to “Ieappeal granted, 26 N.Y.3d 914 (2015); Norex Petroleum Ltd. v. Blavatnik, 48 Mise. 34 1226(A), 2015 WL 5057693, at *20 (N.Y. Sup. Ct. Aug. 25, 2015). But the defendants in these cases were all out-of-state entities without any physical presence in New York, and certainly not the substantial presence that Facebook has in New York—with nearly 300,000 square feet of office space, 1,000 employees and substantial financial assets. Moreover, where there is a conflict between the Appellate Division departments, this Court is bound by the precedents from the Second Department. See, ¢.g., Brown v. Vill. of Albion, 128 Misc. 2d 586, 588-89 (Sup. Ct. 1985); People v. Kay, 125 Misc.2d 833, 835 (Town Ct. 1984). C. Facebook is “At Home” in New York In any event, Facebook is “at home” in New York even under Goodyear and Daimler. Under those cases, the Supreme Court clearly left open the possibility for a corporation to be subject to personal jurisdiction in a location other than its place of incorporation or principal place of business. See Daimler, 134 S. Ct. at 761, n. 19 (where corporation’s in forum operations are so substantial as to render it at home in the forum). Goodyear and Daimler themselves involved quite different facts where the defendant foreign corporations were being sued on the basis of the contacts of their in-state subsidiaries or affiliates. That is unlike Facebook here, which itself is registered to do business in New York, maintains a substantial presence here and conducts extensive business activities here. The other cases cited and relied upon by Facebook all involve situations where the foreign corporation had no—or extremely limited—presence in the forum state. In Zucker (MTD at 15), the defendant was a limited liability company organized under the laws of the Republic of Georgia with its only office in that country, it was not registered to do business in New York, and it did not have employees or transact business in New York. See Zucker v. Waldmann, 46 “1dMis c. 3d 1214(A), 2015 WL 390192, at *3-4 (Sup. Ct. Kings County Jan, 23, 2015). Notably, the court acknowledged that it did have personal jurisdiction over a different out-of-state entity that was registered to do business in New York. Jd. at *6. Similarly, in Sonera Holdings (MTD at 15), the defendant was a Turkish company that had no physical presence in New York and was not registered to do business there. See Sonera Holdings B.V. v. Cukorova Holding A.S., 750 F.3d 221, 225 (2d Cir.), cert. denied, 134 8. Ct, 2888 (2014). Nevertheless, the Second Circuit in Sonera did agree that “Daimler and Goodyear d[o] not hold that a corporation may be subject to general jurisdicti only in a forum where it is incorporated or has its principal place of business.” /d. (citations and internal quotations omitted).* As noted above, most of the other cases cited by Facebook at p. 17 of its brief involved out of state defendants without any significant physical presence in New York. While in Gucci (MTD at 15), the Bank of China did have a branch office in New York, “only a small portion of the bank's worldwide business [was] conducted in New York,” which the court found was relatively insignificant for its overall business. Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135, (2d Cir, 2014). This is in stark contrast to Facebook's substantial New York presence which represents a meaningful portion of its overall business. Furthermore, at least one post-Daimler federal court has applied general jurisdiction to an out-of-state defendant under the Daimler exception, noting that the cases where courts have * Facebook also cites to Cont’l Indus. Grp., Inc. v. Equate Petrochemical Co., 586 F. App’x 768, 769-70 (2d Cir. 2014) (MTD at 16). There, the court rejected personal jurisdiction over the foreign defendant because it was incorporated and had its principal place of business outside New York and because, unlike with Facebook here, there were no allegations that the defendant was “otherwise at home in New York.” /d. Plaintiffs here have alleged that Facebook has an office in New York. Moreover, Facebook has admitted that its New York office has 1,000 employees. -13-declined to find general jurisdiction tended to involve “corporate defendants who did business with the forum state—or sent personnel to the forum state—without having a permanent office there.” Del Castillo v. PMI Holdings N. Am. Inc., 2015 WL. 3833447, at *3 (S.D. Tex. June 22, 2015). But the Del Castillo court held that the company’s office in Texas combined with its registered agent there satisfied due process for general jurisdiction even under Daimler. Id. at *4. Facebook will likely attempt to rely on the Second Circuit’s recent decision in Lockheed Martin in its reply. There, the court focused on the fact that Lockheed’s activities in Connecticut comprised only a small fraction of its overall business, with its Connecticut employees representing only .05% of its workforce and its Connecticut revenues being less than 1% of its total business. Lockheed Martin, 2016 WL 641392 at *8.° But, Facebook's New York operations are substantial for its overall business, as discussed above. Furthermore, this decision simply highlights the need for jurisdictional discovery here, as discussed below. D. Facebook is Subject to Specific Jurisdiction Under CPLR § 302 Facebook is also subject to specific jurist jon in New York. Specific jurisdiction is appropriate if the cause of action arises out of Defendant’s “transactfion] of any business within the state” or “tortious act within the state.” CPLR § 302 (a) Facebook has established a New York Engineering Hub where it contracts with employees to release updates and improvements every day to its users worldwide. Facebook”s New York engineers are also directly responsible for developing, improving, and providing certain Facebook services that Palestinian terrorists use 5 Plaintiffs note that this decision may well be the subject of a Petition for Writ of Certiorari to the United States Supreme Court. “14to further their activities, including Facebook’s mobile platform, and its Messaging and payment services. At the Very Least Plaintiffs are Entitled to Jurisdictional Discovery In the event the Court declines to find general personal jurisdiction on the facts presented here, the court should exercise its discretion to order jurisdictional discovery. Plaintiffs have presented tangible evidence that jurisdiction could exist, and, thus, have established that their assertion of general personal jurisdiction is not frivolous. This is all that is required under New York law for Plaintiffs to be entitled to jurisdictional discovery. See, e.g, Compas Med., P.C. v. Am. Indep. Ins, Co., 47 Mise. 34. 134(A), 9 N-Y.S.3d 592 (N.Y. App. Term. 2015); Mandel v. Busch Entm't Corp., 215 A.D.2d 455, 495, 626 N.Y S.2d 270, 271 (1995) (discussing standard for jurisdictional discovery). Moreover, several courts have granted jurisdictional discovery to plaintiffs asserting general personal jurisdiction against a foreign corporate entity based on the exceptional circumstances described in Daimler. See, e.g., Lockheed Martin, 2016 WL 641392 at *3 (noting that decision followed jurisdictional discovery); Micro Focus (US), Inc. v. American Express Co., 2015 WL 3441991 at *7 (D. Md. May 27, 2015) (exercising discretion to permit jurisdictional discovery directed to scope of defendant's in state activities); Fiduciary Network, LLC y, Buehler, 2015 WL 2165953, at *8 (N.D. Tex. May 8 2015) (same); ‘My24HourNews.Com, Inc. v, AT & T Corp., 2015 WL 6377447, at *5 (D. Colo. Oct. 22, 2015) (same). Here, Plaintiffs clearly are entitled to jurisdictional discovery in the form of document discovery and 30(b)(6) deposition discovery with regard to: (1) the nature and extent of Facebook's business activities in New York, (2) the relationship of such business to Facebook's “15.overall operations, and (3) the revenues derived from Facebook’s New York activities in relation to its overall business. Plaintiffs also note that “[wJhen opposing a motion to dismiss a complaint pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead ‘need only demonstrate that facts ‘may exist’ to exercise personal jurisdiction over the defendant.”” Daniel B. Katz & Associates Corp. v. Midland Rushmore, LLC, 90 A.D.3d 977, 937 N.Y.S.2d 236, 239 (2d Dep't 2011); see also Dorchester Fin. Sec., Inc. v. Banco BRJ, §.A., 722 ¥.34 81, 85 (2d Cir. 2013) (explaining that prior to discovery all that is required is legally sufficient allegations of jurisdiction, whereas after discovery, plaintiff must present an averment of facts supported by evidence). U. THE CDA DOES NOT BAR PLA| IFFS’ CLAIMS, Facebook contends that Plaintiffs” claims are barred as a matter of law by § 230(c)(1) of the Communications Decency Act of 1996 (“CDA"), which states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). However, the CDA does not bar Plaintifis’ claims because the statute does not apply outside the territorial jurisdiction of the United States. Furthermore, the CDA does not bar Plaintiffs’ claims against -16-Facebook for causing harm to Plaintiffs by illegally providing resources and services to terrorists.° A. The CDA does not apply to Plaintiffs’ claims under Isi Jaw 1, Plaintiffs’ claims under Israeli law are properly before this Court As discussed above, Plaintiff Richard Lakin (now deceased) was the victim of a murderous terrorist attack on a city bus in Jerusalem, Israel on October 13, 2015. The remaining plaintiffs are Mr. Lakin’s son and some 20,000 other Israelis living in Israel who have been suffering from the “Facebook Intifada” being directed by terrorists using Facebook since October 1, 2015. Facebook has played a role in these attacks by wrongly providing its social media platform and communication services to terrorists in Israel, Gaza, and the West Bank, whit they use to facilitate their terrorist and other criminal activity. Israeli law properly applies in this case. a) Plaintiffs’ Israeli Tort Claims Plaintiffs have pled three claims that are based upon Israeli statutory law: 1) negligence under Israel’s Civil Wrongs Ordinance (New Version)—1972 (“CWO”), §§ 35-36 (Complaint at 20-22); 2) breach of statutory duty under CWO § 63 (Complaint at 22. 5); and 3) vicarious liability under CWO §§ 12 and 15 (Complaint at 25-26). The elements of Israeli tort law are: 1) duty; 2) breach; 3) causation; and 4) damages. See Waltz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 57-81 (2010) (providing a detailed © Notably, Facebook’s Motion to Dismiss does not challenge the adequacy of the pleading of any of Plaintiffs’ claims, whether under Israeli or New York law. In other words, Facebook does not assert that the facts as alleged in the Complaint fail to adequately support the elements of the causes of action claimed. Rather, Facebook relies on alleged defenses of lack of jurisdiction and immunity under the CDA. -17-discussion of Israeli tort law). With regard to negligence, Israel’s CWO § 35 provides (in translation); When a person does some act which in the circumstances a reasonable prudent person would not do, or fails to do some act which in the ci person would do, . .. then such act or failure constitutes carelessness and a person’s carelessness as aforesaid in relation to another person to whom he owes a duty in the circumstances not to act as he did constitutes negligence. Any person who causes damage to any person by his negligence commits a civil wrong. sumstances such a Wultz, 755 F. Supp. 2d at 57-58. CWO § 36 clarifies that the words “another person” in the second to last sentence of § 35 apply to all persons, provided that injury to such persons was foreseeable. Id, Thus, under Israeli law, every actor has a duty wherever “a reasonable person ought in the circumstances to have contemplated as likely” that his act or omission will affect another, Id, Israeli law incorporates two types of duties, “conerete duty” and “notional duty.” A concrete duty is subjective—it applies wherever an actor, in light of the facts and circumstances, could have forescen that his act or omission would yield a harm, A notional duty is objective—it applies wherever, as a matter of Israeli policy, the actor ought to have foreseen the harm (without regard to the particular facts). Id. at 58-59. tion “Breach of statutory duty” under Israeli law (CWO § 63) is a civil private right of “for the violation [of] any enactment of the Knesset [Israel’s Parliament], including penal enactments, so long as certain elements are met.” Wultz, 755 F. Supp. 2d at 67. The relevant portion of the statute reads (in translation): Breach of a statutory duty consists of the failure by any person to perform a duty imposed upon him by any enactment other than this Ordinance, being an enactment which, . .. as intended to be for the benefit or protection of any other person, whereby such other person suffers damage of a kind or nature contemplated by such enactment . . -18-Id. Among the enactments upon which Plaintiffs rely for their claim of breach of statutory duty are: Israel’s Prevention of Terrorism Ordinance, 5708-1948, §§ 1 and 4 (which criminally prohibit praise, support, or calls for support of terrorism); Israel's Penal Law, 5737-1977, §§ 134, 136, 144-145, and 148 (which criminally prohibit all forms of incitement to violence and terror as well as material support for terrorism); and Israel's Defense Regulations (Emergency Period), 1945, §§ 84-85 (which prohibit, among other things, the provision of any service for any unlawful organization, including groups engaged in terrorist activities). Although denominated as “vicarious liability,” Israel’s CWO § 12 is not the same as the common American concept of vicarious liability; rather it represents a separate cause of action against a person who participates in, assists, advises, or solicits an act or omission committed or about to be committed by another person, or who orders, authorizes, or ratifies such an act or omission, /d. at 80-81. CWO § 15 likewise recognizes action against a person for the acts or omissions of a party with whom he contracts if, among other things, he was negligent in selecting the contractor, authorized or ratified the acts of the contractor, or if the contract was entered into for an unlawful purpose, b) Israeli Tort Law Conflicts with New York Law Wherever there is an apparent conflict of laws between the laws of New York and the laws of another involved jurisdiction, the first step is to determine whether the laws of the fora actually conflict. Matter of Allstate Ins. Co., 81 N.Y.2d 219, 223 (1993). The relevant question is whether there is an “actual conflict” of law as applied to the specific facts of this case (regardless of whether that conflict would yield a different result as to liability). Finance One Pub. Co. v. Lehman Bros. Special Fin. 414 F.3d 325, 331 (2d Cir. 2005) (quoting Tronlone v. Lac d’Amiante du Quebec, Ltee, 297 A.D.24 528, 747 N.Y.S.2d 79 (Ist Dep’t 2002)). That is, -19-differences in substantive law conflict where there exists “a ‘significant possible effect on the outcome of the trial.’” Finance One, 414 F.3d at 331 (citation omitted) (emphasis in original). Accordingly, a conflict exists when the jurisdictions involved provide different substantive rules and those differences are “‘relevant” to the issue at hand.” Id. Here, while the primary elements of negligence (breach, duty, causation, damage) are the same under New York and Israeli law, courts have nevertheless found that a conflict of law analysis is warranted because there are substantive differences in Israeli negligence law, particularly with regard to the issues of duty and foresceability, which would have a significant possible effect on the outcome of litigation. See Wultz v. Bank of China, Ltd., 811 F. Supp. 2d 841, 850 (S.D.N.Y. 2011). The court in Elmaliach v. Bank of China, Ltd. explained some of these differences as follows: As discussed most fully in Wultz [, the Israeli law of negligence “differs slightly” from New York law in that duty is divided into fact and notional duty and depends on foresecability (755 F. Supp. 2d at $8). Under Israel’s CWO, the analysis of whether a duty is owed involves an inquiry into whether a reasonable person could have foreseen the occurrence of the damage under the particular circumstanees alleged; whether as a matter of policy, a reasonable person ought to have foreseen the occurrence of the particular damage; and whether the ‘occurrence causing the damage was foreseeable (id. at 58-59). This differs from New York law, where the foreseeability of harm does not define duty and, absent a duty running directly to the injured person, there is no liability in damages, however careless the conduct or foreseeable the harm (see 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 NY24 280, 289 [2001]).. Elmaliach v. Bank of China, Ltd., 110 A.D.3d 192, 201, 971 N.Y.S.2d 504 (Ist Dep’t 2013). Moreover, the “breach of statutory duty” and “vicarious liability” provisions contained in Israel's CWO are unique foreign substantive laws that have no equivalent under New York law. Id; see also Waltz v. Bank of China, Ltd., 811 F. Supp. 2d at 850. Thus, conflict of law analysis is appropriate in this case, -20-©) __Israel’s Interests are Strongest and Israeli Law Should Apply Upon establishing a conflict in tort law, New York courts employ an “interest analysis” to determine which of competing jurisdictions has the greatest interest in having its law applied in the litigation. Padula v. Lilarn Props. Corp., 84 N.Y.2d 519, 521 (1994); Schultz v. Boy Seouts of Am., Inc., 65 N.Y.2d 189, 197 (1985). The interest analysis involves two questions: (1) what are the significant contacts and in which jurisdiction are they located; and (2) whether the purpose of the law [at issue] is to regulate conduct or allocate loss.” Padula, 84 N.Y.2d at 521? With regard to the second question, the Israeli laws upon which Plaintiffs base their Israeli causes of action all have the regulation of conduct as their primary purpose. A statute that “in effect dictates the standard of care required” for a claim “falls within the eategory of conduct regulating rather than loss-allocating.” Devore v. Pfizer Inc., 58 A.D.3d 138, 141, 867 N.Y.8.2d 425 (Ist Dep't 2008). A claim for negligence is clearly a conduct-regulating law. HSA Residential Mortg. Servs. of Texas v. Casuccio, 350 F. Supp.2d 352, 364 (E1 N.Y. 2003). Israel’s unique “breach of statutory duty” claim and the underlying enactments at issue in this case are also conduct-regulating, as they are designed to uphold statutorily imposed duties to prevent terrorism, violence, and incitement, and to make it more difficult for terrorists to operate. Similarly, Israel’s unique “vicarious liability” claim is conduct-regulating because, unlike an American employer liability claim, the Israeli law is not designed to allocate loss, but among other things to deter a person from partici ting in, assisting, advising or soliciting another party’s act or omission. 7 In this analysis, the significant contacts are “almost exclusively, the parties’ domiciles and the locus of the tort.” Shultz v, Boy Scouts of Am., Inc., 65 N.Y.2d 189, 197 (1985). 21Where a conduct-regulating tort has been committed, “the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders.” Cooney v. Osgood Mach,, Inc., 81 N.Y.24 66, 72 (1993). As a general rule, the “place of the tort” is defined with reference to “the place where the last event necessary to make the actor liable occurred.” Schultz, 65 N.Y.2d at 195. Specifically, “{w]here the defendant’s negligent conduct oceurs in one jurisdiction and the plaintiff suffers injuries in another, ‘the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred,” that is, ‘where the plaintiffs’ injuries occurred.” Elmaliach, 110 A.D.3d at 203 (quoting Schultz, 65 N.Y.2d at 195; and citing Devore v Pfizer, 58 ‘A.D.3d at 141). In this case, that place is Israel. While Facebook’s relevant actions were in multiple locations, including Israel, New York," and Ireland? (and possibly California), Facebook’s liability attached as a result of the events in Israel, where Plait iff Lakin and his son, as well as the other 20,000 Israeli plaintiffs, suffered and continue to suffer injury. See e.g, Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d $65, 576 (2011) (“To establish a cause of action sounding in negligence, a * Facebook’s New York “Engineering Hub” is directly responsible for developing and improving certain Facebook services that are of particular benefit to Palestinian terrorists. For example, Facebook’s New York engineers were responsible for recently redesigning Facebook's mobile infrastructure for using Facebook on smartphones with Android and Apple’s iOS ‘operations system, and they continue to be responsible for improving the mobile platform and adding new applications. Palestinians terrorists have embraced using Facebook on smartphones, posting of events, remote intelligence gathering, and constant access even when on the move or during electrical blackouts. The New York office has also recently made major enhancements to Facebook’s Messenger communications service used by terrorists, including the ability to make payments and transfer cash to other Facebook users. ° Facebook’s Ireland office monitors Facebook in the Middle East, Europe, and A\ and responds to reports of abuse in these areas. which enables real-ti -22-plaintiff must establish the existence of a duty on defendant’s part to plaintiff, breach of the duty and damages.") (Emphasis added) (Citation omitted); see also Nader v. Gen. Motors Corp., 31 A.D.2d 392, 395 (Ist Dep’t 1969) (“The injury . . is the humiliation and outrage to plaintiff's feelings, resulting from the telecast. The last event necessary to make the defendant liable was not the final act in publication of the telecast . . . but the reaction of the telecast on [plaintiff's] sensibi es.”) (Internal citation and quotation marks omitted). The injury to Plaintiffs in this case caused by Facebook's actions—"the last event necessary”—undoubtedly occurred and continues to occur in Israel. Therefore, as Israel is the place of injury, Tsrael’s law should be applied in this case. There is no reason to deviate from this well-established place of injury rule here.'® While it is evident that Israel, New York, and California each have an interest in regulating Facebook's conduct, Israel’s interests in having its laws apply in this litigation far outweigh those of New York or California.'! This case is about Facebook providing its services to Palestinian terrorists "© In a footnote, Facebook notes that “[t]he complaint does not specify whether plaintiffs are Facebook users.” (MTD at 20-21, n.2). Facebook then claims that, if the Plaintiffs are Facebook users, “then their claims are governed by California law” based upon a choice-of-law provision in Facebook's “Statement of Rights and Responsibilities” for its users. Id. However, the reason the Complaint does not mention whether any of the 20,000 Plaintiffs are Facebook users is because the Plaintiffs’ use of Facebook is utterly irrelevant to this lawsuit, Plaintiffs have not brought this claim as Facebook users, and their claims have nothing to do with their own status as Facebook users or nonusers, or their own use or nonuse of Facebook's services. Plaintiffs do not assert that Facebook breached any agreement with them, nor do they assert that Facebook committed any tort with respect to any of the Plaintiffs’ use of Facebook. "! For example, California has an interest in regulating the conduct of a company headquartered in California that provides services to terrorists in Israel; and New York has an interest in regulating the conduct of a company that has a major business office and engineering center in New York, where it develops mobile applications used by terrorists in Istael. But Israel’s interests in protecting the lives of its citizens within its borders, and ensuring that a (coninued..) -23-located in Israel, Gaza, and the West Bank. These Palestinian terrorists are using Facebook to facilitate their terrorist activity, and they specifically target and carry out their attacks in Israel.'? Israel is the domicile and place of citizenship of Plaintiff Lakin, his son, and the other 20,000 Israeli plaintiffS in this case. It is also the place where Plaintiffs are suffering injury and the greatest impact of the attacks is felt. Israel “has a strong interest in seeing that its aggrieved citizens obtain redress for wrongs committed upon them.” See K.T. v. Dash, 37 A.D.3d 107, 114 (Ist Dep't 2006); Oveissi v. Islamic Rep. of Iran, 573 F.3d 835, 842-43 (D.C. Cir. 2009) (implying that when the domiciliaries of a particular locale are targeted, that locale has the ‘greatest interest in having its laws apply). Moreover, by specifically legislating that its anti-terror statutes (upon which Plaintiffs’ “breach of statutory duty” claim is based) apply extraterritorially, Israel has demonstrated its strong interest in having its laws apply in cases such as this. See Waltz, 755 P. Supp. 2d at 68-70. Accordingly, because the laws at issue are “conduct-regulating” and the “interest analysis” clearly demonstrates that Israel has the greatest interest in having its laws apply in this case, Plaintiffs” claims under Israeli law are properly before this Court. company does not provide Palestinian terrorists with resources that facilitate attacks targeting Israelis, are paramount. " Facebook knows that it is providing services to terrorist entities and individuals in Israel, Gaza, and the West Bank that mobilize and carry out attacks targeting Israelis. Facebook should not now be surprised, nor can it complain it is unfair, that Facebook should be held accountable under Israeli substantive law for these actions. Cf Devore v. Pfizer Inc., 867 N.Y.$2d 425, 428 (Ist Dep't 2008) (distinguishing case where locus of tort was “purely adventitious”). 24.2. The CDA does not have Extraterritorial Application As Plaintiffs’ Israeli claims are properly before this Court, Facebook's assertion that the CDA would bar these claims raises the question of whether the CDA applies outside of the territorial jurisdiction of the United States. The relevant canons of construction and Supreme Court precedent require that the CDA does not have extraterritorial application and thus cannot bar Plaintiffs’ Israeli claims. In 2010, the United States Supreme Court reaffirmed the “longstanding principle of ‘American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”” Morrison v. Australia National Bank, 130 S, Ct. at 2877 (quoting E.E.0.C. v, Arabian Am. Oil Co., 499 U.S. 244, 248, (1991) (Aramco) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). The Court described this principle as “a canon of construction, or a presumption about a statute’s meaning,” which “tests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters.” Id. (citing Blackmer v. United States, 284 U.S. 421, 437 (1932); Smith v. United States, 507 U.S. 197, 204, n. 5 (1993)); see also Kiobel v, Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664 (2013) (quoting Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007)) (explaining that this canon of construction “reflects the ‘presumption that United States law governs domestically but does not rule the world”). Accordingly, the Court in Morrison held that, “unless there is the affirmative intention of the Congress clearly expressed’ to give a statute extraterritorial effect, ‘we must presume it is primarily concemed with domestic conditions.” Jd. (quoting Aramco at 248). Moreover, the presumption against extraterritorial effect “applies regardless of whether there is a risk of conflict between the American statute and a foreign law.” Jd. at 2878 (citing Sale v. Haitian -25-Centers Council, Inc., 509 US. 155, 173-174 (1993)). Put simply, “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” Id. at 2878. Since the CDA “gives no clear indication of an extraterritorial application,” under Morrison, the CDA has no extraterritorial application, In fact, the text of the CDA reinforces the presumption that Congress only intended that statute to apply domestically. For example, the findings of Congress recited in section (a) of the CDA refer to the Intemet and other interactive computer services that are “available to individual Americans,” that have flourished “to the benefit of all Americans,” and upon which “Americans” increasingly rely. 47 U.S.C. § 230(a)(1), (4), (5). The CDA also describes as part of the “policy of the United States” the preservation of a “vibrant and competitive free market” in these services “unfettered by Federal ot State regulation.” Id. at § 230(b)(2). Likewise, in prescribing the CDA’s “[e}ffect on other laws,” § 230(e) refers only to federal, State, and local laws; there is no mention of foreign law whatsoever." Accordingly, the CDA does not have extraterritorial application, and thus does not bar Plaintiffs’ Israeli claims.'* '° While the CDA defines the term “Internet” as “the international computer network of both Federal and non-Federal interoperable packet switched data networks,” 47 U.S.C. § 230(0)(1), this general reference to the Intemet as an “international” network in the statutory definition does not represent a “clearly expressed” intention of Congress that the CDA applies outside of the United States. See e,g., Aramco, 499 U.S. at 251 (“we have repeatedly held that even statutes that contain broad language in their definitions of ‘commerce’ that expressly refer to ‘foreign commerce’ do not apply abroad”). ' The Supreme Court in Morrison noted that: “it is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States. But the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the ease.” Morrison, 130 S. Ct. at 2884 (emphasis in original). Section 230(a) of the CDA demonstrates that the focus of congressional concern in passing the CDA was on services made “available to individual (continued..) -26-‘The CDA does not Bar Cl ‘The CDA also does not bar Plaintiffs’ claims against Facebook in this action for an even ‘more basic reason: the CDA only addresses claims that depend upon treating Defendant as the speaker or publisher of another party’s information. The CDA does not address, much less immunize, a claim that Defendant provides terrorists with services and resources that facilitate their terrorist and other criminal activity. The relevant portion of the CDA states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). See Shiamili v. Real Estate Grp. of N.Y. Inc., 17 N.Y.3d 281, 289 (2011) (“section 230 . . . generally immunizfes] Intemet service providers from liability for third-party content wherever such liability depends on characterizing the provider as a ‘publisher or speaker’ of objectionable material”). In our case, PlaintiffS’ claims are not based upon treating Facebook as the publisher or speaker of information provided by others; rather, Plaintiffs are suing Facebook as a provider of its services to terrorists in the Middle East, thus facilitating terrorist and other criminal activity and harming Plaintiffs. Facebook cannot hide behind the CDA to evade respor ity for this conduct.'* There is no justification for providing Facebook accounts and other services to Americans,” that have flourished “to the benefit of all Americans,” and upon which “Americans” increasingly rely. 47 U.S.C. § 230(a)(1), (4), (5). In other words, the focus is not on where the services originated, but on the services made available to users in the United States. See Morrison, 130 S. Ct. at 2884 (“the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States”). 'S See CDA, 47 U.S.C. § 230(e)(1): “Nothing in this section shall be construed to impair the enforcement of ... any . . . Federal criminal statute”; and 47 U.S.C. § 230(e)(3): “Nothing in (continued... -27-terrorists. Provision of support, resources, and services to terrorists is prohibited not only under Israeli law (as discussed above), but also under U.S. federal law, New York state law, the law of other countries, and international law."® Facebook attempts to downplay the value of its social media platform—a highly sophisticated platform that is the central product of a $325 billion enterprise—to terrorists, and the significance of providing its services to terrorists. Facebook blithely asserts: “The gravamen of plaintiffs" complaint is that Facebook is responsible for deplorable terrorist activities because the terrorists used the Facebook platform to promote their views and activities. Plaintiffs . . . contend that ‘Facebook should be held accountable to . . . shut down the Facebook accounts of recognized terrorist organizations and terrorists.” (MTD at 1). In fact, Plaintiffs have alleged that terrorists use Facebook’s platform for much more than simply “to promote their views and activities.”"” But even if the terrorists only used Facebook to promote their views and activities, this section shall be construed to prevent any State from enforcing any State law that is consistent with this section.” '® See e.g, 18 U.S.C. § 2339A (providing material support to terrorists), 18 U.S.C. § 2339B (providing material support or resources to designated foreign terrorist organizations), 18 U.S.C. § 2339C (prohibitions against financing terrorism); New York Penal Code, §§ 490.10, 490.15 (soliciting or providing support for an act of terrorism), §§ 490.30, 490.35 (hindering prosecution of terrorism); Canadian Criminal Code §§ 83.18-83.23 (participating in, facilitating, instructing, and harboring terrorism); Ireland’s Offenses Against the State Acts 1939-1998 (providing assistance to criminal activities); Ireland’s Criminal Law Act 1976 (taking part in or supporting the activities of an unlawful organization); International Convention on the inancing (1999); UN Security Council Resolution 1373 (2001) (requiring UN member states to criminalize participation in, planning, preparing, or supporting terrorism). " For example, Plaintiffs have demonstrated in their Complaint how Facebook’s underlying algorithm assists terrorists by actively brokering connections between terrorists and potential followers and recruits. In addition, the sophisticated features of Facebook are also used (continued..) Suppression of Terrorist -28-Facebook should indeed be held accountable to shut those accounts down, not only because continuing to provide such services clearly violates criminal laws, but because it injures Plaintiffs who are directly targeted by these terrorists. In upholding 18 U.S.C. § 2339B, which makes it a federal crime to provide material support and resources to designated foreign terrorist organizations, the U.S. Supreme Court specifically credited U.S. State Department testimony that: ““[t]he experience and analysis of the U.S. government agencies charged with combating terrorism strongly suppor{t]’ Congress's finding that all contributions to foreign terrorist organizations further their terrorism.” Holder v. ‘Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010) (quoting McKune affidavit) (emphasis added).'* The Court rejected a claim that prohibiting the provision of non-violent services to a foreign terrorist organization violated the provider's First Amendment right to “free speech,” and explained the necessity of the prohibition as follows: ‘The material-support statute is, on its face, a preventive measure—it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to oceur, [PJlaintiffS simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated foreign terror organization—even seemingly benign support—bolsters the terrorist activities of that organization. That judgment, however, is entitled to significant weight, and wwe have persuasive evidence before us to sustain it, Given the sensitive interests in national security and foreign affairs at stake, the political branches have by Palestinian terrorists for communications, intelligence, and logistical purposes, to recruit, train, and instruct followers, to plan, incite, and mobilize attacks, to raise funds, and much more. '8 The affidavit added: “Given the purposes, organizational structure, and clandestine nature of foreign terrorist organizations, it is highly likely that any material support to these organizations will ultimately inure to the benefit of their criminal, terrorist functions—regardless of whether such support was ostensibly intended to support non-violent, non-terrorist activities.” Id. (emphasis added). -29-adequately substantiated their determination that, to serve the Government's interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends. Holder, 130 S. Ct. at 2728-29 (emphasis added). To be clear, Plaintiffs" claims in this lawsuit are not based upon U.S. federal law; but these federal laws help bring into focus the nature of Plaintiffs’ claims under both Israeli and New York law, and why the CDA does not immunize Facebook’s conduct in this case. Facebook’s argument that Plaintiffs’ claims are based upon Facebook exercising its “editorial” discretion about whether or not to publish certain content of a third party misses the point.'® Facebook should have denied its services to Palestinian terrorists because they are , not simply because of the content they publish. This lawsuit was prompted by terrorist incitement on Facebook and the acts of terror it has produced. But it is not just about incitement. It is about depriving terrorists of any resources or services that can facilitate their terrorist activity. Plaintiffs have suffered and continue to suffer harm because of Facebook's conduct. Facebook should be required to actively monitor and take all steps necessary to cease providing its services to Palestinian terro: mm. FORUM NON CONVENIENS IS NOT GROUNDS FOR DISMISSAL HERE Finally, Facebook seeks to have this case dismissed on forum non conveniens grounds pursuant to CPLR § 327(a), which provides for dismissal if “in the interest of substantial justice ' Facebook cites numerous cases for the proposition that the CDA protects interactive computer service providers from being held liable for content posted by a third party, but these cases are fundamentally inapposite and inapplicable to Plaintiffs” claims. -30-the action should be heard in another forum.” CPLR § 327(a). The burden is on Defendant to show “relevant private or public interest factors which militate against accepting the litigation.” Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 110 A.D.3d 938, 973 N.Y.S.2d 728, 733 (2d Dep't 2013) aff'd, 23 N.Y.3d 1012, 16 N.E.3d 1252 (2014); see also OrthoTec, LLC v. Healthpoint Capital, LLC, 84 A.D.3d 702, 924 N.Y.8.2d 78, 80 (2011) (“[glenerally, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. . . This is true even though plaintiff'is not a New York resident”), Defendant has not met its burden. First, the public interest weighs strongly in favor of keeping this case in New York. New York has a very strong interest in this case which is about whether Facebook is able and should be legally required to take affirmative steps to prevent terrorists from accessing its services. As many courts have noted, the United States has a strong interest in combating terrorism. See, e.g., Wultz v. Bank of China, 910 F. Supp. 2d 548, 559 (S.D.N.Y 2012); Goldberg v. UBS AG, 690 F. Supp.2d 92, 108 (E.D.N.Y. 2010); Strauss v. Credit Lyonnais, S.4., 249 F.R.D. 429, 443 (E.D.N.Y. 2008). And, New York, in particular has a special interest in combating terrorism, “having been the target of several terrorist attacks.” See Elmaliach v. Bank of China Limited, 971 N.¥.8.2d 504, 514-15 (1st Dep't 2013). Second, Facebook has not established that it suffers any inconvenience from having to litigate these issues in New York. Indeed, Facebook itself recently invoked the jurisdiction of the New York courts when it commenced an action, as plaintiff, against the DLA Piper law firm. See Facebook, Inc. v. DLA Piper LLP (US), 123 N.Y.S.3d 173 (1st Dep’t 2015) (denying motion by Facebook to transfer venue to California). In addition, Facebook is a party to at least three other lawsuits in New York, including one in which the court transferred venue to New York. See, e.g., Princeton Digital Image Corp. v. Facebook, Inc., No. 2:11 2V-400-JRG, 2012 WL 3647182, at 3