On June 24, 2013, Arab Bank filed a petition for writ of certiorari with the U.S. Supreme Court in Linde v. Arab Bank, PLC. The Bank’s petition argues the Second Circuit Court of Appeals erred when, on January 18, 2013, it failed to vacate severe sanctions imposed by the District Court, as the Bank requested in its November 2010 petition for a writ of mandamus. The Bank’s cert petition argues that the severe discovery sanctions imposed by the District Court, solely because the Bank complied with foreign bank privacy laws, conflict with longstanding precedents regarding international comity and due process. [Read the Bank’s petition here.] On July 25, 2013, the Kingdom of Jordan and the Union of Arab Banks (UAB) filed Amicus Curiae briefs with the U.S. Supreme Court in support of Arab Bank’s petition. The amicus brief filed by the Kingdom of Jordan marked the first time the Kingdom has written to the U.S. Supreme Court. [Read the Kingdom of Jordan’s brief here, and the UAB brief here.] On August 7, 2013, Arab Bank filed a supplemental brief alerting the U.S. Supreme Court to decisions issued by the District Court after the Bank filed its June petition. The District Court granted a series of plaintiffs’ motions in limine, excluding certain evidence barred by the 2010 sanctions order. Specifically, the decisions exclude:
- All evidence of the Bank’s adherence to foreign banking or criminal laws;
- All evidence of the Bank’s adherence to international counter-terrorism-financing standards and its own internal counter-terrorism-financing procedures;
- All evidence that the Bank closed the accounts of eleven designated terrorists after their designation;
- All evidence concerning the monitoring and compliance procedures of Israeli banks, or any other bank;
- And all evidence that respected aid organizations, including the U.S. Agency for International Development, vetted Palestinian organizations that the plaintiffs allege were front organizations to fund terrorist activities.
On May 23, 2014, the Solicitor General of the United States filed an amicus brief in response to the Supreme Court’s request for the views of the United States on Arab Bank’s petition for certiorari. The Solicitor General’s brief expresses the strong opinion of the United States that the district court “erred in several significant respects” in sanctioning the Bank for its adherence to foreign privacy laws. The Solicitor General also expresses the belief that the district court’s sanctions order “threatens to undermine important United States law-enforcement and national-security interests” by improperly equating government-to-government cooperation in counter-terrorism investigations with civil discovery orders issued in private litigation. Despite concluding that the sanctions order was the result of an “erroneous” analysis by the district court, the Solicitor General recommended the Bank’s cert petition be denied. In reaching this conclusion, the Solicitor General expressed the view that the Bank may still “prevail at trial” and, even if it does not, that the “significant” errors committed by the district court can be corrected on an appeal after final judgment. Despite the conclusion of the Solicitor General about the procedural posture of the case, his brief establishes that the sanctions order conflicts with serious United States interests and is flawed in significant respects. The content of the Solicitor General’s opinion is thus supportive of the Bank’s position that the district court’s sanctions order is both legally and factually flawed. Among the positions expressed by the Solicitor General are:
- “In analyzing whether the sanctions were consistent with principles of international comity, the lower courts erred in several significant respects, including by assuming that petitioner’s previous production of documents to United States government agencies reflected the sort of selective compliance with foreign bank secrecy laws that would support sanctions in this private litigation; failing adequately to consider the broad range of United States foreign-relations and anti-terrorism interests implicated by the sanctions order; and failing to accord sufficient weight to the foreign jurisdictions’ interests in enforcing their bank secrecy laws.”
- “The court failed to give adequate weight to United States and foreign sovereign interests that weighed in favor of a lesser sanction than the one the court imposed in this private litigation.”
- “The district court also gave insufficient weight to the interests of foreign governments in enforcing their own laws within their own territories.”
- “The lower courts erred in suggesting that petitioner’s reliance on foreign bank secrecy laws in this private action did not reflect good faith simply because petitioner previously produced some of the documents to the Departments of the Treasury and Justice.”
- “The balance of relevant interests is materially different when a private party seeks documents located in foreign jurisdictions. Private requests may intrude more deeply on foreign sovereign interests …”
- “The courts “also erred in assuming that petitioner would not be subjected to penalties for producing documents in this private action solely because it apparently was not prosecuted for providing documents to the United States.”
On June 10, 2014, the Bank submitted its supplemental brief in response to the Solicitor General’s brief, concurring strongly with the U.S. Government’s critical assessment of the sanctions order but arguing that these significant errors warrant immediate review by the Supreme Court. However, on June 30, 2014, the Supreme Court denied the Bank’s Petition for Writ of Certiorari in Linde v. Arab Bank, PLC.
Read the Bank’s response to the Supreme Court’s decision here.
Read the Bank’s Petition here.
Read the Bank’s supplemental brief here.