The U.S. Department of Justice is arguing that it would be premature for the U.S. Supreme Court to hear a Jordanian bank’s appeal of sanctions for not producing records in a lawsuit filed by terrorism victims (See Amicus Brief).

U.S. Solicitor General Donald Verrilli Jr. acknowledged that Eastern District Judge Nina Gershon used flawed legal reasoning in her order, as did the U.S. Court of Appeals for the Second Circuit when it refused to vacate the sanction that, among other things, permitted adverse inferences against Arab Bank, a multinational bank headquartered in Jordan.

Moreover, Verrilli said, the sanctions order “could undermine the United States’ vital interest in maintaining close cooperative relationships with Jordan and other key regional partners in the fight against terrorism.”

Nevertheless, he said that Supreme Court review of the sanctions was unwarranted at this time. Despite the lower courts’ errors, Verrilli contended, it could not be said the Second Circuit’s refusal to vacate was “obviously incorrect.”

The case’s interlocutory posture made it “difficult to assess the scope, severity and consequences of the sanctions,” he said. And he pointed out that until their imposition at trial, the sanctions could be reconsidered or modified.

Victims of 24 terrorism attacks in Israel through 2004 claim Arab Bank knew it provided financial services to Hamas leadership, Hamas-controlled entities and other individuals. The bank insists that the plaintiffs cannot point to evidence that links its services with the attacks.

Gershon issued the sanctions in 2010, pertaining to records the bank said were covered by bank secrecy laws of foreign jurisdictions (NYLJ, July 14, 2010).

Gershon ruled that, unless the records were turned over, jurors would be instructed they could infer the bank offered its services to terrorist organizations, and did so “knowingly and purposefully.”

The bank asked the Second Circuit to issue a writ of mandamus vacating the sanction, but the appeals court refused (NYLJ, Jan. 22, 2013).

The high court asked for the solicitor general’s views before deciding whether to take up the bank’s petition. The petition included an amicus filing from the Hashemite Kingdom of Jordan, as well as letters to Gershon from Palestinian and Lebanese officials.

Linde v. Arab Bank, 04-cv-2799, is now before Eastern District Judge Brian Cogan.