Is the amount of the landmark Arab Bank terrorism-financing settlement $1 billion or not?
After weeks of research, including conversations with American Lawyer senior international correspondent Michael D. Goldhaber, Nate Raymond of Reuters, contacts at the Arab Bank, lawyers representing the plaintiffs and a range of other key sources close to both sides of the case, the answer is: it depends. But The Jerusalem Post can now provide significant information about one of the most fascinating high-stakes settlements in recent memory.
On August 14, Raymond reported that after a decadelong scorched-earth legal fight including trips to the US Supreme Court, the Arab Bank had agreed to settle the most dramatic terrorism-finance case against a major bank in US history.
Pre-settlement, the judgment against the $46b., Ammanbased Arab Bank had been estimated to be worth as much as several billion dollars.
The deal was reached 14 years after the terrorist attacks in question occurred, a year after a federal jury in New York found the bank liable and only days before a damages trial was set to start.
The highly public trial lasted five weeks and revisited some of Hamas’s worst terrorist attacks, including the August 2001 Sbarro suicide bombing in downtown Jerusalem, which killed or wounded 130, and a range of 24 attacks during the second intifada.
A total of 297 plaintiffs who were wounded or are family members of those murdered in the 24 attacks from 1998 to 2004, which were financed via Saudi Arabia and Hezbollah’s al-Shahid Foundation, sued the bank in 2004 for allowing itself to be used as a conduit for the terrorism funding.
Then something happened that rarely occurs in such a high-profile, confidential legal settlement – a number came out.
On August 21, Goldhaber reported that the settlement amount was $1 billion. That claim, citing sources such as an unnamed lawyer with knowledge of the settlement, did not stand unchallenged for long.
That same day, Raymond reported that “Arab Bank...described as ‘inaccurate’ a report that it would pay ‘slightly more’ than $1b. to settle a historic judgment against it for terror-financing.”
While one might have expected Arab Bank to make a general denial, its more specific denial along with Raymond’s article citing Michael Elsner, one of the plaintiffs’ lawyers in the case, also calling Goldhaber’s article “inaccurate,” gave many pause.
At this point, the Post contacted parties on both sides of the issue. Most of what was said was off the record, as discussing the terms of a massive confidential legal settlement is dicey.
The only statements on the record were from Goldhaber and Arab Bank, and were as follows: “We stand by our story,” said Goldhaber. “We had two authoritative sources, and we have full confidence in them.
Of course if there’s a bit more to the story, we will be delighted for the truth to emerge.”
Arab Bank, in contrast, maintained that “the American Lawyer report on the settlement terms was inaccurate. The terms of the settlement are confidential and therefore we cannot comment on any details.”
Off the record, there was a rich dialogue over the secret, byzantine settlement terms.
The critical piece of the puzzle was that while the settlement might theoretically add up to the $1b. that Goldhaber was the first to break, the Arab Bank side might argue that there were contingencies in the settlement that could make it less.
The Goldhaber side of the argument would likely say that his report was spot-on because those contingencies were either contingencies that could only increase the settlement amount to more than $1b., or that were so unlikely to occur that they could be discounted.
At first, it appeared there were two possible contingencies.
One would apply if an already-filed appeal by plaintiffs in a parallel case, who lost their case in a lower court, succeeded.
Success would mean those plaintiffs would get another shot at Arab Bank, and that could increase how much Arab Bank might eventually have to pay.
Second was the “proof process” – meaning that the plaintiffs proved general liability against Arab Bank, but the settlement preceded a damages trial at which each individual plaintiff would have had to prove the specific harm against himself in order to become eligible for a specific amount of damages.
Such a process is standard for mass tort cases, and Arab Bank could have claimed that contingency as adding up to a possibility for the settlement to drop under $1b. if enough individual plaintiffs’ claims could be shot down, even as the bank paid out to many others under the global settlement terms.
But the Post
received strong and specific indications that these were not the contingencies and not the basis of attacking the accuracy of the report of a $1b. settlement.
Finally, an unimpeachable source revealed to the Post that the contingency is a series of triggers, dates and liability amounts spread over an extended period relating to plaintiffs coming forward who had not previously sued Arab Bank.
At various trigger dates and amounts of new liability, Arab Bank could pull out of the settlement and avoid the $1b. number it appears to have committed to, should none of the triggers occur.
None of the sources that called the earlier contingency theories wrong were prepared to deny this one.
How likely is it that more plaintiffs will come forward? On one hand, 297 plaintiffs won liability judgments against Arab Bank, and the case had more than 500 original plaintiffs, around 200 of whose cases were dismissed. That’s a lot of plaintiffs, even for a mass torts or wrongful death case.
Also, the Arab Bank case is 10 years old, 14 years after most of the incidents, and has been publicized so massively that one would think that all of the potential plaintiffs would have come forward long ago.
On the other hand, it is possible that the plaintiffs’ victory and the new legal reality created by the case could open the door to or wake up additional plaintiffs who until now had kept silent.
Still, if Arab Bank pulled out of the settlement, it would not be off the hook. All indications from a pretrial hearing days before the Arab Bank damages trial was supposed to have taken place were that the bank was going to be hit hard.
Moreover, in February, another New York jury slapped the Palestinian Authority with a judgment of around $650 million in a terrorism-related case with some parallels. While there are many differences between the cases, that judgment certainly did not set a low bar for what a jury might throw at Arab Bank.
At the end of the day, it is highly probable that the Arab Bank settlement will hold and that the bank will eventually pay out around $1b.
To that extent, Goldhaber likely nailed the crux of the story, even though there were some dimensions that his report did not necessarily fully explore.
At the same time, Arab Bank can in good faith deny the story, at least at this date, and until it has paid out $1b.