Arab Bank headquarters in Amman, Jordan (Wiki)
Former U.S. diplomats have filed an amicus brief supporting the Jordan-based Arab Bank, arguing in papers filed this week with the U.S. Supreme Court in favor of affirming dismissal of a suit filed by victims of terrorist plots that they say the bank funded.
The diplomats argue among other things that it is critical for political stability in the Middle East that civil liability should not extend to a bank the plaintiffs allege was tied to terrorist groups that carried out attacks.
The plaintiffs in Jesner v. Arab Bank, No. 16-499, have been granted a writ of certiorari to argue before the high court that the bank is liable for terrorist attacks under the Alien Tort Statute (ATS), a 228-year-old law that has been interpreted to allow victims of human rights abuses to bring claims against foreign officials in U.S. courts.
The central issue in the case is whether plaintiffs can bring claims against corporations under the ATS for financing of terror, and, in answering the question, there is a split among the federal appeals courts.
There are about 6,000 plaintiffs in Jesner, which is composed of five consolidated cases, who say either they or their relatives were victims of terrorist attacks that occurred between 1995 and 2005 in Israel and in Palestinian lands. They say that Arab Bank sponsored a program to pay the families of suicide bombers who attacked civilians.
In 2016, the U.S. Court of Appeals for the Second Circuit upheld a decision by U.S. District Judge Brian Cogan of the Eastern District of New York to grant Arab Bank’s motion to dismiss the claims.
The Supreme Court granted the plaintiffs’ cert petition in April and is scheduled on Oct. 11 to hear oral arguments in the case.
“Congress enacted the ATS to ensure federal courts were able to impose liability upon enemies of all mankind and to afford adequate relief to non-citizens injured in ways that could affect foreign relations,” the plaintiffs argue. “When corporate activity violates the law of nations, imposing liability directly upon the corporation serves those objectives.”
The plaintiffs are represented by Michael Elsner, John Eubanks and Jodi Flowers of Motley Rice, as well as Mark Werbner of Sayles Werbner. They are also represented by Stanford Law School’s Supreme Court Litigation Clinic.
Arab Bank is represented by DLA Piper attorneys Jonathan Siegfried, Kevin Walsh and Douglas Mateyaschuk; and Kirkland & Ellis attorneys Paul Clement, Erin Murphy, Edmund LaCour and Andrew Lawrence.
In an amicus brief filed on behalf of 10 former U.S. ambassadors and Foreign Service members in support of Arab Bank’s position, the ex-diplomats argue that overturning the Second Circuit’s ruling in Jesner would undermine American interests in “combating terror and furthering peace” and that Jordan plays a crucial role in addressing the Israeli-Palestinian conflict.
The former diplomats said they also agree with Arab Bank’s argument that federal courts are required by the Supreme Court’s 2004 holding in Sosa v. Alvarez-Machain, 542 U.S. 692, to exercise “great caution” in applying national laws to private rights.
The amicus brief in support of Arab Bank clashes with an amicus brief filed in support of the plaintiffs on behalf of 13 former ambassadors and counterterrorism experts who argue that civil liability is a weapon for fighting terrorism and that allowing noncitizens affected by terrorism to seek redress in the U.S. courts against corporations builds international cooperation to unraveling terror financing networks.
The Supreme Court’s decision to take up Jesner is reminiscent of other recent cases. In 2013, the high court unanimously ruled in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111—another case sent up from the Second Circuit—that ATS claims in the case failed under a presumption against extraterritoriality of U.S. law, but did not explicitly answer if corporations are exempt.
Since 2010, the circuits have been all over the map as to whether the ATS applies to corporations: while the Second Circuit has held that it doesn’t, the Seventh, Ninth, Eleventh and D.C. circuits have all held that it does.
For example, the Ninth Circuit’s 2011 ruling in Sarei v. Rio Tinto, 671 F.3d 736, found that the ATS did not preclude claims against the Rio Tinto mining group regarding a violent crackdown by the government of Papua New Guinea against residents rising up against Rio Tinto’s hiring and labor practices and the environmental damage its operations caused to the country.
“A lot of these cases arise in unsavory contexts, where a wrong has happened, and I think the courts are swayed by that,” said Lanier Saperstein, a partner at Dorsey & Whitney who discussed the ATS in a column published in the Law Journal last month.
Saperstein said the Supreme Court’s ruling in Jesner could open floodgates of litigation.
Specifically, he said, ruling against the Second Circuit’s holding in the case may mean a larger influx of foreign parties turning to the U.S. courts to settle dispute with foreign companies, and also may blur the lines of what causes of action could be brought against foreign companies.
Saperstein also said that overturning the Second Circuit may exacerbate the trend of banks “derisking” entire regions based on geography, and he said he sees painting the scarlet letter of terror funding on the Arab Bank has the potential to shake the foundations of a relatively stable country in the Middle East.
“It’s easy for to paint somebody with the terrorist financing allegations,” he said. “No one often questions it. At some point, we need to draw the line.”