January 19, 2022

Arab Bank asks judge to scrap terror damages trial

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DLA-Arab-Bank-Vert-201412091437By David Bario, From The Litigation Daily

This story has been updated to include a statement from Arab Bank.

Three months after they were soundly defeated in the liability phase of a landmark terror financing trial, lawyers for Arab Bank plc are hoping to evade a trial on damages altogether. Instead of putting damages before a jury early next year, they’ve asked a judge to adopt an award levied against Iran in a related case, and to enter judgment so that their client can immedately appeal.

The plaintiffs—about 300 American victims of terror attacks and their families—allege Arab Bank knowingly lent material support to Hamas by maintaining accounts for Hamas members and facilitating “martyr payments” to the families of suicide bombers. In September, a Brooklyn jury found Arab Bank liable for two dozen separate acts of terror carried out by Hamas during the second Palestinian Intifada. U.S. District Judge Brian Cogan asked both sides last month to submit proposals for discovery and trial to determine damages.

Rather than choosing plaintiffs from among the victims for a bellwether trial, as Cogan has suggested, Arab Bank’s lawyers at DLA Piper told the court in a Dec. 5 filing that their client will consent to a liability judgment and a $12 million damages award for the family of Marla Bennett, an American student killed in a 2002 Hamas bomb attack at Hebrew University of Jerusalem. The $12 million figure is taken from a 2007 default judgment awarded by a Washington, D.C., judge against the Republic of Iran over the same terror attack. The Bennetts are plaintiffs in both cases, and they’ve been unable to recover from Iran in the D.C. case.

“This approach will expedite final resolution, benefit all parties, and conserve court resources,” the bank wrote in the Dec. 5 filing. “Under this approach, no additional trial of any type would be necessary pending a resolution of the appeal of the Bennett action.”

In a statement, Arab Bank said entering judgment for the Bennett family “would not serve as a standard for damages calculations for any other plaintiffs” in the case, but “would enable the bank to seek prompt appellate review of the liability and damages judgments.” The bank also said it would agree to some form of expedited proceedings before a special master to decide damages, but that the plaintiffs were opposed to the idea.

Not surprisingly, lawyers representing the plaintiffs don’t see eye to eye with Arab Bank on the issue. In their own Dec. 5 submission to the judge, they wrote that the bank’s proposal was “not acceptable because it is conditioned upon no other case moving forward to trial, and is based on flawed and erroneous legal premises.” In an interview, plaintiffs counsel Gary Osen of Osen LLC said DLA Piper’s proposal would fail to resolve claims brought by four additional families of victims in the Hebrew University attack, and would therefore run afoul of procedural rules related to final judgments.

“Judge Cogan can tell me I’m wrong, but I think their proposal is actually prohibited by Rule 54(b),” Osen said.

The plaintiffs, meanwhile, have proposed holding a pair of staggered bellwether trials that would include about 20 percent of the plaintiffs. The plaintiffs would be drawn from the various attacks and the trials would include a cross section of all claims asserted in the cases.

As an alternative to its preferred approach of scrapping the damages trial entirely, Arab Bank has proposed holding a single, smaller bellwether trial in the spring that would decide damages for the estate of just one victim.

In the end, it will be up to the judge to decide. The plaintiffs have requested a conference on the various proposals later this month.

In addition to Osen, the plaintiffs’ team is led by Mark Werbner of Sayles Werbner, Michael Elsner of Motley Rice, and C. Tab Turner of Turner & Associates. We named all four Litigators of the Week for winning the historic liability verdict in September.

DLA Piper’s Shand Stephens is lead counsel for Arab Bank. He wasn’t immediately available to comment on Tuesday.

IMAGE: Arab Bank lawyers (from left) Brett Ingerman, Shand Stephens and Anthony Coles entering Brooklyn federal court on Aug. 14, 2014. Rick Kopstein

For more on this story go to: http://www.litigationdaily.com/id=1202678489592/Arab-Bank-Asks-Judge-to-Scrap-Terror-Damages-Trial#ixzz3LX9SSYy9


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