Wednesday, December 3, 2014


If you were one of those who were wondering why it took the plaintiffs more than a decade to bring the  Arab Bank case to trial, it was, in large part, due to what amounts to the defense conduct of litigation in bad faith, consisting of dilatory actions, the unethical concealment of information during the discovery process, and in general employing what some lawyers like to call "scorched earth" litigation tactics. While the Rules of Civil Procedure are intended to control and curtail them, such litigation practices, when artfully executed by experienced trial lawyers who are zealously following their clients' instructions, often delay justice, exponentially increase discovery costs, and attempt to exhaust plaintiffs, and their counsel, with borderline, and improper, tactics.

In order to graphically illustrate what happened during the pre-trial phase, I will quote verbatim from the plaintiffs' recent memorandum in opposition to Arab Bank's post-judgment efforts to overturn the jury verdict, and obtain a new trial. The egregious offenses committed by the Bank, during the litigation, speak for themselves.

"The jury verdict in this case was not the result of judicial error, but the inexorable result of overwhelming evidence that Arab Bank knowingly transferred more than $36 million to Hamas's most senior leaders, operatives and institutions, and knowingly and actively facilitated payments to the families of 24 Hamas suicide bombers, and more than 150 Hamas operatives, more than 10 of whom were directly implicated in the specific acts of terrorism that killed and injured plaintiffs."

" Cognizant of this overwhelming evidence of its complicity in dozens of terror attacks that maimed and murdered more than a thousand people, Arab Bank adopted a two-pronged approach to this litigation. First, the Bank stonewalled nearly all discovery 'essential to the proof of the plaintiffs' case,' while simultaneously contending that plaintiffs had insufficient evidence to reach the jury. Second, having withheld the vast majority of the relevant evidence, the Bank insisted that it should face no consequences for its brazen disregard of its discovery obligations and this Court's orders, and loudly complained that the Bank was the victim of an unjust 'show trial.' The Bank's decade of scorched earth litigation tactics included:"

"Submitting a false and misleading sworn declaration by its then-Chief Banking Officer, Shukry Bishara, in support of its motion to dismiss the Linde complaint."

"Obfuscating the scope of the responsive documents physically in possession of the Bank in the United States."

"Seeking removal of the District Judge, based on wholly baseless assertions of bias."

" Proposing a flagrantly impractical trial plan (339 separate trials). "

"Filing a frivolous mandamus petition that was summarily denied without briefing ."

"Vexatious rearguing issues previously decided by the Court."

"The Bank did all these things while willfully withholding critical evidence, portraying itself to the public as a victim on the proceedings, and exhibiting not one scintilla of remorse, either for its litigation tactics, or its responsibility for the death and injury of more than a thousand people."
 Plaintiffs' Omnibus Opposition to Defendant Arab Bank, PLCs Motions for (1) Judgment as a matter of Law, pursuant to Fed. R Civ. P.50)B); (2) A New Trial  pursuant to Rule 59, and (3) Certification of an interlocutory Appeal under 28 USC 1292(B)  at 1-3.

The Bank's defense of the lawsuit has been one of dishonesty and deception; if that is its corporate culture, and we must assume that any financial institution that knowingly finances terrorism has dishonesty built into its policies, meaning that it will lie to protect its clients, should not US regulators terminate the Bank's charter, exit its branches and correspondent relationships, and tell it to send its illicit business elsewhere ? There are plenty of other capable Middle Eastern banks that could serve Arab Bank's clients' needs in the United States. We cannot give terrorist facilitators continued access to the American financial structure, to send US Dollars to terrorists.

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