Gary Osen (Rick Kopstein)
Barring a last-minute settlement, jurors in Brooklyn will soon hear claims that Arab Bank plc was complicit in a series of deadly terrorist attacks in the Middle East. U.S. District Judge Brian Cogan is set to hold jury selection on Monday in Linde v. Arab Bank, a decade-old lawsuit alleging that the Jordan-based financial giant illegally serviced the banking needs of Hamas and helped the designated terror group make payments to families of suicide bombers.
The first-ever U.S. terror financing trial represents a big challenge for defense lawyers at DLA Piper, who must overcome a damaging past discovery sanction to persuade jurors of Arab Bank’s innocence—even as Hamas and Israel are fighting fresh battles in Gaza. And it presents a historic opportunity for the unusual alliance of plaintiffs attorneys behind the case, including an Arkansas product liability lawyer who recovered $1 billion in settlements from Ford Motor Co.
The plaintiffs are 300 victims or victims’ relatives in a series of terrorist attacks attributed to Hamas in Israel and the Palestinian Territories between 2001 and 2004. The trial will focus on liability, with damages to be determined later, if the case gets that far.
Arab Bank’s lawyers at DLA Piper—Shand Stephens, Kevin Walsh and Douglas Mateyaschuk—are going into the trial with one hand tied behind their backs. From the very start of the case a decade ago, Arab Bank refused to turn over certain documents to the plaintiffs on the grounds that doing so would violate bank secrecy laws of Middle Eastern nations. U.S. District Judge Nina Gershon, who handled the case before Cogan, rejected Arab Bank’s legal argument and blasted it for disobeying court orders. As a sanction, Gershon ruled that jurors could be instructed that they may infer that the missing documents would have helped the plaintiffs’ case.
The U.S. Court for Appeals for the Second Circuit affirmed the sanction in January 2013. The U.S. Supreme Court refused to hear an appeal in June, despite the U.S. Solicitor General’s Office expressing sympathy for Arab Bank’s arguments in an amicus brief. The government’s brief may have inspired Arab Bank to stick in the case longer, as American Lawyer columnist Michael D. Goldhaber recently explained.
The architect of the Arab Bank case is Hackensack, N.J.-based Gary Osen. He’s made a name for himself in terror financing litigation, and has similar complaints pending against France’s Credit Lyonnais SA and National Westminster Bank (NatWest), the largest commercial bank in the United Kingdom. Osen has also carved out a niche practice representing Holocaust victims seeking to recover looted art from German institutions.
With the trial expected to take as long as two months, Osen is happy so share the spotlight (not to mention labor). He told us that four other attorneys, all from different firms, will be involved in the trial team: C. Tab Turner of Little Rock-based Turner & Associates; Mark Werbner of the Dallas firm Sayles Werber; Michael Elsner of Motley Rice’s office in Mt. Pleasant, S.C.; and Shawn Naunton of Zuckerman Spaeder.
All of them are seasoned trial lawyers, but Tab Turner casts the biggest shadow. A Southern Baptist with a light Arkansas drawl, Turner became very wealthy—we’re talking private-jet wealthy—suing Ford and Firestone Tire and Rubber Company over deaths from sport utility vehicle rollover crashes. Turner’s efforts to hold Ford accountable were the subject of a 2003 book, “Tragic Indifference.” Back in 2012, it was rumored that Josh Brolin would pay Turner in a movie adaption of the book, though the project can’t seem to get off the ground.
Arab Bank insists it won’t be Turner’s next conquest. On a website about the case, Arab Bank is quick to point out that one of Cogan’s colleagues on the bench, Jack Weinstein, dismissed a similar case against the bank on summary judgment in November 2012, finding “no proof that anything but routine financial services to the charities alleged to be front organizations were provided.”
“Arab Bank has great sympathy for all victims of terrorism but is not liable for the tragic acts described by plaintiffs,” the bank said in a statement. “The full evidentiary record—much of which may be excluded from the jury because of the sanctions order and other pretrial rulings by the Linde court—demonstrates that the bank did not cause or provide material support for the acts of terrorism involved in this case.”