Throughout the discovery process and during the trial, the Bank has argued that a series of rulings issued by the Linde Court are inconsistent with controlling precedent as well as decisions of other district courts on key legal issues, including the burdens required for civil claims brought under the ATA, discovery procedures and international comity.
- Causation: Prevailing law is that tort claims require proof of “but-for” factual causation and “direct” proximate causation. Indeed, two Second Circuit Court of Appeals decisions affirming the dismissal of analogous ATA cases involving financial institutions reached this conclusion expressly. Despite this binding precedent, the Linde Court’s jury instruction required only proof that the Bank’s services were a substantial contributor to plaintiffs’ reasonably foreseeable injuries, even if other causes “significantly” contributed to the plaintiffs’ injuries. These instructions were clearly erroneous.
- Sanctions: In a May 23, 2014 amicus brief requested by the Supreme Court, the U.S. government concluded that the Court ‘erred in several significant respects’ by imposing sanctions that severely penalized the Bank for its compliance with the laws of the foreign jurisdictions in which it operated. Although the government suggested the sanctions could be modified or reconsidered prior to trial, the district court dismissed the United States’ views about its own national interests and foreign policy as “unpersuasive.” The sanctions precluded the Bank from producing any evidence at trial of its compliance policies and procedures, its extensive cooperation with international law enforcement and intelligence communities, and the fact that the Israel Defense Forces determined that neither the Bank nor its employees were involved in any way in financing terrorism – all persuasive and highly relevant evidence of its innocent state of mind.
- Exclusion of Witnesses on the Saudi Committee: The district court also excluded all of the Bank’s witnesses who were prepared to testify that the Saudi Committee was a lawful and legitimate aid program that addressed a humanitarian crisis in the Palestinian Territories. The plaintiffs’ witnesses, whom the Court permitted to testify, had never visited Saudi Arabia or met with any of its officials. By comparison, the Bank’s witnesses, whose testimony the jury was not permitted to hear, were internationally recognized experts on Saudi Arabia, including a leading former U.S. diplomat who was based in the U.S. Embassy in Riyadh, who had acquired substantial personal knowledge of its charitable practices and anti-terrorism policies.
- Exclusion of Evidence on Foreign Law Compliance: The district court also excluded evidence of the Bank’s strict compliance with applicable foreign anti-terrorism and money laundering laws and regulations. This decision stands in sharp contrast to a ruling issued by Senior Judge Weinstein, who found the Bank’s compliance with foreign law to be highly probative of its state of mind and then dismissed a similar ATA case brought against it by the same plaintiffs’ lawyers.