Thursday, November 6, 2014


Counsel for Arab Bank has filed a Motion for Certification for Interlocutory Appeal, and a 27-page accompanying Memorandum of Law, seeking Court permission to allow it to file an immediate appeal of three rulings which it asserts were made contrary to the law. My concerns are whether this action is appropriate at this time, and whether it is part of a ten-year program to delay justice, and to seek to deny it to the victims of terrorism. The Bank is, of course, entitled to the best possible defense team that it can assemble , but the question persists: where does a zealous defense, which is permitted, stop, and dilatory, tactics, which are not, begin ?

It is my objective to present a balanced view of this case, so some details of the Bank's position are appropriate at this point. The three issues that it cites, as framed by bank counsel in the Memorandum, are:

(1)"Whether the sanctions order - which, inter alia, allowed the jury to infer that the Bank 'knowingly provided financial services to Hamas,' and 'processed and distributed payments on behalf of the Saudi Committee to terrorists' and precluded the Bank from introducing evidence of its innocent state of mind in providing financial services outside of the United States - is contrary to law and requires a new trial."The Court entered the sanctions order when the Bank, citing foreign bank secrecy laws, declined to make discovery to the plaintiffs. This was not an order unsupported by existing decisions.

(2) "Whether failing to instruct the jury that the plaintiffs must prove that the Bank's conduct was a 'but for' and 'direct' cause of the terrorist attacks that gave rise to the plaintiffs' injuries is contrary to law and requires a new trial." The Court ruled that the ATA does not require a plaintiff to prove that a defendant's conduct was a 'but for' and 'direct' cause of their injuries.

(3) "Whether instructing the jury that 'a violation of 18 USC §2339B is itself an act of international terrorism' and 'if you find that plaintiffs have proved' the Bank violated §2339B, 'you must find that plaintiffs have proved that defendant committed an act of international terrorism' was contrary to law and requires a new trial." The Court ruled that a violation of §2339B is itself an action of international terrorism, and no proof of each element of terrorism is required.

What the Bank is saying, in essence is that the sanctions order involves controlling questions of law, that there is substantial ground for differences of opinion as to the propriety of the sanctions order,  and that interlocutory review of the sanctions order will materially advance the ultimate termination of this litigation. While reasonable men, and appeals court judges, can debate the sanctions order, ( I do believe it was not only appropriate, but in conformity with existing case law) permitting interlocutory review of the probable denial of the post-trial motions will not only "materially advance" the case, it will unnecessarily delay it further, and permit what will amount to multiple appeals. The Court has (in 2010)previously denied certification of an interlocutory appeal on the sanctions issue, and I do not see why all this cannot be disposed of, all at once, on the direct appeal. It is not only more economical, it will literally shave years off what has already been a case that has lasted three times longer than it needed to be, complex issues and all.

Let's analyze it; if the Court denies certification, and holds the damages trial, then all legal issues. both from the liability trial, and the damages trial, can all be handled at the same time. Otherwise, I see the distinct possibility of three appeals by the Bank: this interlocutory, a second interlocutory requested after the damages trial, and the direct appeal to the Second Circuit. That could take several years.

What is to be gained by asking an appeals court to affirm, early on, three rulings by the trial judge, all of which are certain to be appealed by the Bank after a final judgment for damages is entered ? How is this going to materially advance the litigation ? Would it not be more efficient to hear the entire case at once, and make a decision on a new trial, after all the evidence is in ?

There may be a business reason why the Bank does not want to have the trial on damages heard anytime soon; there will be evidence of 24 separate terrorist events, all committed by Hamas against American citizens, and the testimony is sure to be extremely damaging to the Bank's reputation. Also, coming so soon after Hamas war crimes, committed during the recent armed conflict with Israel, the Bank's reportedly close relationship to Hamas could disgust a sufficient number of American taxpayers, who could then exert sufficient political pressure, that the revocation of Arab Bank's US license, by regulators, could occur, and also the denial of correspondent relationships in America, either of which could result in a serious competitive disadvantage for the Bank, and even its eventual demise.

Therefore, when looking objectively at the Bank's request, it does not appear that the Court should certify the case for an interlocutory appeal of the Rule 50(b) and 59 motions, should they be denied. I also believe one of the objectives is to delay finality in this case as long as possible, to preserve what is left of the bank's reputation, and to strain both the trial lawyers, and their clients, in the process.  

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.