Arab Bank Statement on Motion for Certification for Interlocutory Appeal in Linde v. Arab Bank, PLC

New York, November 6, 2014 – Arab Bank released the following statement regarding its filing of a motion for certification for interlocutory appeal in Linde v. Arab Bank. This motion asks the Court to certify three questions of law for immediate appellate review if it denies the Bank’s pending motions that seek judgment in favor of the Bank (Rule 50) or, in the alternative, a new trial (Rule 59).

“Arab Bank believes immediate appeal is necessary because of the substantial errors made by the District Court on multiple controlling questions of law. Without an appeal at this stage, the Court and the parties would need to expend significant time and resources conducting a damages trial, involving the claims of 286 plaintiffs and complex foreign discovery, which would all be wasted if the liability verdict is thrown out on appeal.

“The Bank strongly believes appellate review is warranted at this stage because:

  • Sanctions and evidentiary rulings. As the Bank’s pre-trial filings predicted, the sanctions order had a debilitating effect on its ability to mount a defense and produced a liability verdict for the plaintiffs. Indeed, the sanctions resulted in the exclusion of evidence critical to the jury’s ability to understand the innocent, law-abiding nature of the Bank’s conduct; in devastating adverse inference instructions that made the jury’s verdict a foregone conclusion; and in the denial of the Bank’s right to rebut those inferences by showing its compliance with foreign law. In a brief filed with the Supreme Court, the U.S. government described the sanctions order as ‘erroneous’ and the product of ‘significant’ error. It also stated that the sanctions order will be subject to ‘close scrutiny on appeal of a final judgment.’
  • Causation standard. The Court’s jury instructions erroneously relieved the plaintiffs of their burden of proving that the Bank’s services were a ‘but for’ factual cause and ‘direct’ proximate cause of the plaintiffs’ injuries, in conflict with both U.S. Supreme Court and Second Circuit precedent.
  • Statute on acts of terrorism. The Court mistakenly instructed the jury that the provision of material support (including financial services) to terrorists, is itself an ‘act of international terrorism’ under the ATA. This plain error resulted in the plaintiffs being relieved of their burden to prove that the Bank’s conduct met all of the elements required under the statute. Plaintiffs should have been required to prove, among other things, that the Bank’s own conduct involved violent acts or acts dangerous to human life and appeared to be intended to intimidate or coerce a civilian population or affect the policy or conduct of a government by mass destruction, assassination, or kidnapping – which are the basic requirements of Section 2331 of the statute.

The U.S. government described Arab Bank as “a constructive partner with the U.S. in working to prevent terrorist financing.” Arab Bank plays a vital role in the Middle East region, promoting economic development, growth and modern financial services. It is the bank of choice for delivering humanitarian aid to the Middle East from the U.S. and other governments, as well as leading NGOs. Arab Bank opened its branches in the Palestinian Territories following the Oslo Peace Accords, with the permission of the Central Bank of Jordan and the Israeli Central Bank. For more than a decade, the government of Israel has remitted all of the funds collected on behalf of the Palestinian Authority into to a Central Treasury Account maintained at Arab Bank.