Plaintiffs oppose Arab Bank's request for retrial in terror financing case

The bank’s retrial motion focuses on eight primary areas where it argues the US federal court erred in applying the law, causing it prejudice before the jury and therefore justifying a retrial.

Arab Bank logo (photo credit: Courtesy)
Arab Bank logo
(photo credit: Courtesy)
The plaintiffs in the landmark Arab Bank terrorism financing case on Tuesday filed their opposition to the bank’s request for a retrial of the verdict against it by a Brooklyn jury for knowingly supporting 24 Hamas attacks in Israel between 2001 and 2004.
Arab Bank filed the motion for a retrial in mid-October, and on November 6 asked to file an interim appeal against the verdict and a separate motion for judgment in its favor as a matter of law.
In an unusual move, the Kingdom of Jordan filed an amicus brief, or a brief by a non-party to the case on issues in the case impacting the public interest, in support of the bank, which has its headquarters in Amman.
Jordan also filed brief at an earlier pretrial stage before the US Supreme Court.
Judge Brian Cogan of the US District Court in Brooklyn, who presided over the original trial, will decide on the retrial motion, whereas the appeal would be decided by the Second Circuit Federal Appeals Court in Manhattan.
The September 23 verdict was the first time in US history that a financial institution of Arab Bank’s stature – with offices on five continents and a pretrial net worth of $46 billion – was held liable for such wrongful death terrorism-financing-related damages.
The plaintiffs’ opposition said that contrary to the bank’s complaints about the trial, the jury’s verdict was “the inexorable result of overwhelming evidence” of the bank’s “complicity in dozens of terror attacks that maimed and murdered more than a thousand people.”
They added that Arab Bank “stonewalled nearly all discovery” in the case for more than a decade while simultaneously and falsely casting itself as “the victim of a show trial.”
The bank’s retrial motion focuses on eight areas where it argues the district court erred in applying the law, causing it prejudice before the jury and therefore justifying a retrial.
Some of the bank’s arguments could bring in the Supreme Court or US government intervention on a later appeal.
These arguments include that the trial court applied a plaintiff-friendly causation standard (which the bank says the trial court uncritically adopted from the pretrial court) for how carefully the plaintiffs needed to connect the bank to each of the attacks.
The plaintiffs disputed the bank’s causation theory, noting that “no court has ever adopted the standard urged by the bank in a case brought under the Anti-Terrorism Act (“ATA”).” They also stated that the bank’s claim that it could only be found liable if found to have acted with an “evil motive” is directly contradicted by binding precedential case law.
The bank also claims that the court’s broad interpretation of a pretrial evidence-sanctions order against the bank and its denying the bank the ability to use foreign law – while allowing the plaintiffs to do so – are grounds for a retrial.
The plaintiffs’ response to this argument was that “Arab Bank refused to comply with the court’s discovery orders and did not produce essential evidence, at trial.” They continued that therefore, “the court instructed the jury that if it found the plaintiffs had come forward with ‘credible evidence’ to support the conclusion that the bank knowingly provided material support to Hamas, it could, but was not required to” make inferences that the evidence the bank withheld would have proven the plaintiffs’ case.
Additional arguments debated regarding a retrial include questions of whether the trial court: simplified the elements of proof for the plaintiffs; allowed inflammatory evidence about Hamas against evidentiary hearsay rules; admitted into evidence a confidential bank settlement with the US government; excluded the bank’s Saudi Committee experts; and consolidated all 24 attacks into one trial.
“The bank’s arguments,” the plaintiffs’ brief concludes, “are a testament to the defendant’s abject contempt for its myriad victims, the court, the judicial process and the very idea of accountability under the law.”
Despite all of the above bank court pleadings, the district court has said that a trial on the amount of damages – the plaintiffs will seek billions of dollars – will go forward in April.