Arab Bank released the following statement in response to the Solicitor General’s brief recommending the Supreme Court deny the Bank’s Petition for Writ of Certiorari in Linde v. Arab Bank, PLC. The Bank’s petition asks the Court to review whether the Second Circuit erred when it failed to vacate trial sanctions imposed by the U.S. District Court for the Eastern District of New York for non-production of records that were restricted by foreign bank privacy laws, the violation of which would subject the Bank to criminal prosecution. The Bank argued that the Second Circuit’s decision was in conflict with Supreme Court decisions and disregarded principles of international comity and due process.
“The Solicitor General’s brief presents a comprehensive critique of the sanctions imposed on Arab Bank, concluding that the ‘lower courts erred in several significant respects,’ including by performing an ‘erroneous’ comity analysis, assuming that petitioner’s previous production of documents to United States government agencies reflected selective compliance, failing to consider the broad range of United States foreign-relations and anti-terrorism interests, and failing to accord sufficient weight to foreign bank secrecy laws.
“The government acknowledges that the lower courts’ decisions, if permitted to stand, threaten to ‘undermine important United States law-enforcement and national-security interests’ by equating government-to-government requests for counter-terrorism cooperation with civil discovery orders issued in private litigation. The Solicitor General has also made clear that ‘[t]he sanctions order could undermine the United States’ vital interests in maintaining close cooperative relationships . . . in the fight against terrorism’ and deter foreign-government partners ‘from facilitating cooperation with government requests if their financial institutions may later have that cooperation weighed against them in private litigation.’
“The Bank will soon submit 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. The Supreme Court will then consider the briefs of the parties, together with those already submitted by amicus parties in favor of the Bank, and determine if it will hear the case.
“It would be fundamentally unjust to conduct a trial of many months duration under an erroneous legal standard. The Bank respectfully believes that Supreme Court review is required and warranted now. Senior Judge Jack B. Weinstein refused to adopt these same sanctions and dismissed a similar case brought against the Bank by many of the same lawyers as in the Linde case, largely based on the same evidentiary record. He concluded, ‘The clear, present, and serious dangers now posed to the nation by terrorist acts cannot excuse a lack of due process in applying civil law . . . and in providing adequate procedural tools and protections to all parties.’”
Among the key points made by the Solicitor General are:
- “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 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.”
- “The district court also gave insufficient weight to the interests of foreign governments in enforcing their own laws within their own territories.”
The facts in this case demonstrate that Arab Bank provided routine banking services in accordance with applicable laws and regulations in all the jurisdictions where it operates. As Judge Weinstein found in dismissing a related case, “the evidence does not prove that the Bank acted with an improper state of mind or proximately caused plaintiff’s injury.”
Arab Bank plays a vital role in the Middle East region, promoting economic development, growth, and modern financial systems, all of which help contribute to making the region more stable and secure. As the government noted in its brief, the Bank “is a constructive partner with the United States in working to prevent terrorist financing, including by reporting suspicious financial activities to the government of Jordan, which in turn exchanges information with the United Sates through international sharing arrangements.”