Wednesday, October 29, 2014


Officials from the Arab Bank have announced that it intends to appeal the verdict entered against it in the landmark terrorism case, in US District Court in New York. While we can certainly understand that, the post-trial filings of bank counsel may indicate that the bank intends to further delay a case that has been pending for more than a decade, and in which the bank's tactics, which were contrary to established case law, and which resulted in the imposition of serious restrictions upon the defense at trial. Some observers, while understanding that this was an extremely complex case, believe that justice delayed is justice denied, and one of the objectives of the bank's defense was to attempt to wear out their plaintiffs and their lawyers.

The bank's refusal to comply with discovery requests, citing bank secrecy laws in the Middle Eastern countries where it is licensed, which flies in the face of the Bank of Nova Scotia case, among other authorities, was dilatory, and unnecessarily delayed the progress of the case, in my opinion. Now, the bank is looking to engage in a course of conduct that could, in essence, give it two bites of the apple in the appellate process.

Here's the situation: the bank has two post-trial motions pending. A Rule 59 Motion for a New Trial, and a Rule 50 Motion for Judgment as a Matter of Law. That is its right, but bank counsel has also alerted the Court that it intends to ask it to certify an Interlocutory Appeal, pursuant to 28 USC §1292(b). This type of appeal, which is purely discretionary with the trial judge, could result in giving the bank two opportunities to present its issues before the Second Circuit Court of Appeals, because, should the interlocutory fail, the bank would then still have the right to appeal on basically the same issues, plus what additional points it chooses to present. Such a course would again delay a final resolution in the case.

Is not the proper thing to do simply to proceed with the appeal ? I believe so, but I do not see it happening. If the bank truly believes that the verdict should be reversed, then it should immediately appeal, and abandon what appear to be more of the dilatory tactics seen in this case since 2004.


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