Tuesday, December 16, 2014


You have to give the attorneys for Arab Bank, in the New York Federal terrorism case, credit for zealously representing their client, even though their conduct at times is believed by many observers to come dangerously close to Rule 11 violations, which could result in sanctions against the Bank. Arab Bank's counsel delayed the trial for more than ten years, but now that an adverse verdict on liability has occurred, the Bank is in a real hurry to get the case to the Second Circuit Court of Appeals. For those who want to see whether there is a factual basis for that statement, read on.

First, as we have previously reported*, The Bank filed a Motion for Certification for Interlocutory Appeal, asserting that the Court's previous rulings were contrary to existing law. Such an appeal requires Court approval, and it has not, at this writing been granted. To the contrary, the Court has set the case for trial, on the issue of damages, for 2015. Therefore, we must assume that the odds of the motion being granted are poor.

Second, Bank counsel sent a letter to the Court, proposing that it adopt the amount of a judgment in a previous unrelated case, in favor of one specific claimant, which is a much lesser amount than is expected in this case, but which could be the bellwether for other cases. Also, should the Court grant counsel's request, there would be a final judgment of record entered, which would give the Bank the right to immediately appeal that ruling to the Second Circuit. Would such an appeal operate to stay the upcoming damages trial for all the other defendants ? It might. The last thing the Bank wants is a very public display of the human cost of Hamas' terrorism.

As we have previously stated, the Bank counsel's defense tactics in this action trouble me, for at times it appears to be hovering on the line between advocacy and sharp practice. I understand that the ramifications of what could ultimately be a billion dollar judgment against the bank warrant the best defense, from the best lawyers available, and that all banks who move money for terrorist organizations will be in the cross-hairs of the courts, if the case is affirmed on appeal, but it still bothers me that the Bank engages in what some, including me, regard as borderline trial tactics, and positions that strain credibility.
*Is Arab Bank using Post-verdict Dilatory Tactics in Landmark Terrorist Financing case ?

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