No.
`In the Supreme Court of the United States
`
`ARAB BANK, PLC,
`
`v.
`COURTNEY LINDE, ET AL.,
`
`Petitioner,
`
`Respondents.
`
`Petition for a Writ of Certiorari to
`the United States Court of Appeals
`for the Second Circuit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`KEVIN WALSH
`DOUGLAS W. MATEYASCHUK
`DLA Piper LLP (US)
`1251 Ave. of the Americas
`New York, NY 10020
`(212) 335-4500
`
`STEPHEN M. SHAPIRO
`Counsel of Record
`TIMOTHY S. BISHOP
`JEFFREY W. SARLES
`Mayer Brown LLP
`71 S. Wacker Dr.
`Chicago, IL 60606
`(312) 782-0600
`sshapiro@mayerbrown.com
`Counsel for Petitioner
`
`
`In the Supreme Court of the United States
`
`ARAB BANK, PLC,
`
`v.
`COURTNEY LINDE, ET AL.,
`
`Petitioner,
`
`Respondents.
`
`Petition for a Writ of Certiorari to
`the United States Court of Appeals
`for the Second Circuit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`KEVIN WALSH
`DOUGLAS W. MATEYASCHUK
`DLA Piper LLP (US)
`1251 Ave. of the Americas
`New York, NY 10020
`(212) 335-4500
`
`STEPHEN M. SHAPIRO
`Counsel of Record
`TIMOTHY S. BISHOP
`JEFFREY W. SARLES
`Mayer Brown LLP
`71 S. Wacker Dr.
`Chicago, IL 60606
`(312) 782-0600
`sshapiro@mayerbrown.com
`Counsel for Petitioner
`
`
`
`QUESTIONS PRESENTED
`These suits under the Anti-Terrorism Act (ATA)
`and Alien Tort Statute (ATS) seek hundreds of mil-
`lions of dollars in damages from Jordan’s leading fi-
`nancial institution for providing banking services to
`charities and individuals allegedly affiliated with
`terrorist organizations operating in the Middle East.
`In discovery, Arab Bank produced some 200,000
`bank records but was unable to produce others be-
`cause foreign authorities told the Bank that produc-
`tion would violate their financial privacy laws and
`subject the Bank to criminal prosecution. The district
`court sanctioned Arab Bank for its refusal to breach
`these foreign criminal laws, authorizing the jury to
`infer that the Bank knowingly and purposefully sup-
`ported terrorist acts and precluding it from introduc-
`ing evidence to refute that inference—even though
`the Bank’s state of mind is central to this case and it
`took great care to ensure that it did no business with
`terrorists. Over protests of Jordan, Lebanon, and the
`Palestinian Authority, the Second Circuit refused to
`vacate these draconian sanctions. And it failed to ad-
`dress the Bank’s contention that the ATS claims of
`foreign plaintiffs must be dismissed for lack of juris-
`diction. The questions presented are:
`1. Whether the Second Circuit erred when, in
`conflict with decisions of this Court and other cir-
`cuits and in disregard of international comity and
`due process, it failed to vacate severe sanctions for
`non-production of records located in countries where
`production would subject the Bank to criminal penal-
`ties, hobbling the Bank’s defense.
`2. Whether the courts below erred by failing to
`dismiss plaintiffs’ ATS claims, as the Second Cir-
`cuit’s and this Court’s decisions in Kiobel require.
`
`
`
`ii
`RULES 14.1(b) AND 29.6 STATEMENTS
`Petitioner Arab Bank, plc, a Jordanian corpora-
`tion, has no parent corporation and no publicly held
`corporation owns 10% or more of its stock.
`In this case, 11 suits have been consolidated for
`purposes of pre-trial proceedings. These cases are:
`Litle, et al. v. Arab Bank, PLC, No. CV 04-5449
`(E.D.N.Y. 2004); Coulter, et al. v. Arab Bank, PLC,
`No. CV 05-365 (E.D.N.Y. 2005); Almog v. Arab Bank,
`PLC, No. CV 04-5564 (E.D.N.Y. 2004); Afriat-Kurtzer
`v. Arab Bank, PLC, No. CV 05-388 (E.D.N.Y. 2005);
`Bennett, et al. v. Arab Bank, PLC, No. CV 05-3183
`(E.D.N.Y. 2005); Roth, et al. v. Arab Bank, PLC, No.
`CV 05-3738 (E.D.N.Y. 2005); Weiss, et al. v. Arab
`Bank, PLC, No. CV 06-1623 (E.D.N.Y. 2006); Jesner,
`et al. v. Arab Bank, PLC, No. CV 06-3689 (E.D.N.Y.);
`Lev, et al. v. Arab Bank, PLC, No. CV 08-3251
`(E.D.N.Y. 2008); and Agurenko v. Arab Bank, PLC,
`No. CV 10-626 (E.D.N.Y. 2010).
`There are 6,596 individual plaintiffs in these
`suits—6,093 of whom are Alien Tort Statute plain-
`tiffs who are foreign citizens or residents. These
`plaintiffs, respondents here, are identified in a letter
`that has been filed with the Clerk.
`
`
`
`iii
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ....................................... i
`RULES 14.1(b) AND 29.6 STATEMENTS................ ii
`TABLE OF AUTHORITIES.................................... viii
`OPINIONS BELOW....................................................1
`JURISDICTION..........................................................1
`STATUTES AND RULES INVOLVED......................1
`STATEMENT ..............................................................1
`A. Plaintiffs’ Claims. .............................................7
`B. Applicable Privacy Laws And The
`Bank’s Efforts To Produce Requested
`Information.......................................................8
`C. The District Court’s Sanctions Order. .............9
`D. The Second Circuit’s Denial Of Review.........10
`E. The District Court’s Foreclosure Of The
`Bank’s Remaining Defenses...........................11
`REASONS FOR GRANTING THE PETITION .......13
`I.
`THE SANCTIONS ORDER VIOLATES
`INTERNATIONAL COMITY IN
`CONFLICT WITH DECISIONS OF THIS
`COURT AND OTHER CIRCUITS....................14
`A. It Would Violate The Criminal Laws Of
`Jordan, Lebanon, And The Palestinian
`Territories To Disclose Personal
`Financial Information. ...................................15
`B. The Sanctions Violate Well Established
`Principles Of International Comity. ..............16
`C. The Sanctions Cannot Be Reconciled
`With Decisions Of This Court And
`Other Courts Of Appeals................................22
`
`
`
`iv
`TABLE OF CONTENTS—continued
`
`Page
`
`II. THE SANCTIONS ORDER VIOLATES
`DUE PROCESS.................................................24
`A. The Sanctions Unconstitutionally
`Deprive Arab Bank Of A Fair Trial...............25
`B. The Adverse State-Of-Mind Inference Is
`Unwarranted And Unjust. .............................28
`III. THE SECOND CIRCUIT’S DENIAL OF
`MANDAMUS UNDERMINES THE
`FUNCTIONS OF THE WRIT...........................30
`IV. THE COURTS BELOW SHOULD HAVE
`DISMISSED PLAINTIFFS’ ATS CLAIMS
`AS REQUIRED BY KIOBEL............................33
`CONCLUSION..........................................................35
`
`APPENDIX CONTENTS
`
`Appendix A: Opinion of the court of appeals
`(Jan. 18, 2013)..................................1a
`Appendix B: Opinion and Order of the dis-
`trict court (July 12, 2010) ..............55a
`Order of the district court deny-
`ing reconsideration
`(Oct. 5, 2010) ..................................91a
`Appendix C: Order of the district court deny-
`ing motion for certification of
`interlocutory appeal under 28
`U.S.C. § 1292(b) (Oct. 5, 2010).....100a
`
`
`
`v
`TABLE OF CONTENTS—continued
`
`Page
`
`Appendix D: Order of the district court deny-
`ing motion to submit evidence of
`foreign law under Fed. R. Civ.
`P. 44.1 (May 10, 2013)..................102a
`Appendix E: Report and Recommendation
`(Pohorelsky, Mag. J.) (June 1,
`2009) .............................................107a
`Appendix F: Order Modifying Report and
`Recommendation (Pohorelsky,
`Mag. J.) (June 18, 2009)...............133a
`Appendix G: Opinion and Order of the dis-
`trict court in Almog v. Arab
`Bank, PLC (Jan. 29, 2007)..........138a
`Appendix H: Opinion and Order of the dis-
`trict court in Lev v. Arab Bank,
`PLC (Jan. 29, 2010).....................214a
`Appendix I: Order of the court of appeals
`denying petition for rehearing
`en banc (Mar. 26, 2013)................224a
`Appendix J: Amicus Curiae Brief of the
`Hashemite Kingdom of Jordan
`in Support of Arab Bank, PLC
`(filed 2d Cir. Nov. 5, 2011)...........225a
`Appendix K: Letters from foreign govern-
`ment authorities...........................243a
`Letter to Hon. Nina Gershon
`from Raya Haffar, Minister of
`Finance, Republic of Lebanon......243a
`
`
`
`vi
`TABLE OF CONTENTS—continued
`
`Page
`
`Letter to Hon. Nina Gershon
`from Dr. Jihad Khalil Al Wazir,
`Governor of Palestine Monetary
`Authority ......................................246a
`Letter to Hon. Nina Gershon
`from Salam Fayyad, Prime Min-
`ister of Palestinian National
`Authority ......................................249a
`Letter to Hon. Hillary Rodham
`Clinton, U.S. Secretary of State,
`from Samir Al-Rifa’i, Prime
`Minister of the Hashemite
`Kingdom of Jordan.......................250a
`Letter to The Arab Bank, Tel
`Aviv, from Office of the Attor-
`ney General of Israel, Judea
`and Samaria District....................253a
`Appendix L: Excerpts from depositions and
`expert reports ...............................255a
`Deposition of Azmi Arbash
`(excerpt)........................................255a
`Deposition of Fazwan Shukri
`(excerpt)........................................257a
`Deposition of Rabab Safieddine
`(excerpt)........................................261a
`Deposition of Emmanuel
`Caravanos (excerpt) .....................265a
`Deposition of Mohammed
`Dabbour (excerpt).........................268a
`
`
`
`vii
`TABLE OF CONTENTS—continued
`
`Page
`
`Expert Report of Chakib
`Cortbaoui ......................................272a
`Expert Report of Robert Lacey ....281a
`Expert Report of Yair Dagan.......294a
`Appendix M: Statutes and Rules Involved........298a
`
`
`
`viii
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257
`(E.D.N.Y. 2007) .................................................... 1
`In re Anschuetz, 838 F.2d 1362 (5th Cir. 1988)...... 23
`Anza v. Ideal Steel Supply Co.,
`547 U.S. 451 (2006).......................................12, 27
`In re Asbestos Sch. Litig.,
`46 F.3d 1284 (3d Cir. 1994) ............................... 30
`Banco Nacional de Cuba v. Sabbatino,
`376 U.S. 398 (1964)............................................ 20
`Beacon Theatres v. Westover,
`359 U.S. 500 (1959).............................................. 2
`In re Bieter Co.,
`16 F.3d 929 (8th Cir. 1994)................................ 33
`The Bremen M/S v. Zapata Off-Shore Co.,
`407 U.S. 1 (1972)................................................ 17
`Cheney v. U.S. Dist. Ct.,
`542 U.S. 367 (2004).........................................2, 35
`Chicago & S. AirLines v. Waterman S.S.
`Corp., 333 U.S. 103 (1948)................................. 22
`Cochran Consulting v. Uwatec USA, Inc.,
`102 F.3d 1224 (Fed. Cir. 1996) .......................... 24
`
`
`
`ix
`
`Credit Suisse v. U.S. Dist. Ct.,
`130 F.3d 1342 (9th Cir. 1997)............................ 33
`Crosby v. Nat’l Foreign Trade Council,
`530 U.S. 363 (2000)............................................ 20
`Doe v. United States, 487 U.S. 201 (1988).............. 17
`EEOC v. Carter Carburetor,
`577 F.2d 43 (8th Cir. 1978)................................ 33
`Estate of Amergi v. Palestinian Auth.,
`611 F.3d 1350 (11th Cir. 2010).......................... 19
`Ex Parte Peru, 318 U.S. 578 (1943) ...................20, 31
`F. Hoffmann-La Roche Ltd. v. Empagran
`S.A., 542 U.S. 155 (2004)..............................17, 18
`Gill v. Arab Bank, PLC,
`893 F. Supp. 2d 523 (E.D.N.Y. 2012) ...........12, 29
`Gill v. Arab Bank, PLC,
`893 F. Supp. 2d 542 (E.D.N.Y. 2012) .............5, 29
`Hamdi v. Rumsfeld, 542 U.S. 507 (2004)............... 29
`Hammond Packing Co. v. Arkansas,
`212 U.S. 322 (1909).......................................25, 28
`Hartford Fire Ins. Co. v. California,
`509 U.S. 764 (1993)............................................ 17
`Hemi Grp. v. City of N.Y.,
`130 S. Ct. 983 (2010).......................................... 12
`
`
`
`x
`
`Insurance Corp. v. Compagnie des Bauxites
`de Guinee, 456 U.S. 694 (1982).......................... 25
`Itel Containers v. Huddleston,
`507 U.S. 60 (1993).............................................. 18
`Kiobel v. Royal Dutch Petroleum,
`133 S. Ct. 1659 (2013).................................passim
`Kiobel v. Royal Dutch Petroleum, 621 F.3d
`111 (2d Cir. 2010), aff’d, 133 S. Ct. 1659
`(2013).................................................................. 34
`LaBuy v. Howes Leather Co.,
`352 U.S. 249 (1957).......................................14, 30
`Matsushita Elec. Indus. v. Zenith Radio,
`475 U.S. 574 (1986).......................................20, 21
`Mohawk Indus. v. Carpenter,
`558 U.S. 100 (2009)...................................6, 30, 31
`Morrison v. Nat’l Australia Bank,
`130 S. Ct. 2869 (2010).........................5, 17, 18, 34
`Ohio v. Arthur Andersen & Co.,
`570 F.2d 1370 (10th Cir. 1978).......................... 33
`In re Papandreou,
`139 F.3d 247 (D.C. Cir. 1998)............................ 33
`Philip Morris v. Williams,
`549 U.S. 346 (2007)............................................ 27
`Reinsurance Co. v. Administratia Asigurarilor
`de Stat, 902 F.2d 1275 (7th Cir. 1990) .............. 15
`
`
`
`xi
`
`Schlagenhauf v. Holder, 379 U.S. 104 (1964) .....2, 30
`Sell v. United States, 539 U.S. 166 (2003).............. 22
`Société Internationale v. Rogers,
`357 U.S. 197 (1958).....................................passim
`Société Nationale Industrielle Aérospatiale v.
`U.S. Dist. Ct., 482 U.S. 522 (1987).................... 23
`Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ...... 18
`Tel-Oren v. Libyan Arab Republic,
`726 F.2d 774 (D.C. Cir. 1984)............................ 19
`United States v. First Nat’l Bank,
`699 F.2d 341 (7th Cir. 1983).............................. 23
`United States v. Jicarilla Apache Nation,
`131 S. Ct. 2313 (2011).......................................... 2
`United States v. Pink, 315 U.S. 203 (1942) ............ 16
`United States v. Sumitomo Marine & Fire Ins.
`Co., 617 F.2d 1365 (9th Cir. 1980) .................... 26
`
`In re Westinghouse Elec. Corp. Uranium
`Contracts Litig., 563 F.2d 992
`(10th Cir. 1977) .................................................. 23
`Will v. United States,
`389 U.S. 90 (1967).............................14, 22, 30, 35
`
`STATUTES AND RULES
`18 U.S.C. § 2339A(a) ................................................. 3
`
`
`
`xii
`
`28 U.S.C. § 1254(1).................................................... 1
`Fed. R. Civ. P. 37(b)................................................... 3
`Fed. R. Civ. P. 37(b)(2)(A) ....................................... 24
`Jordanian Banking Law No. 28, Articles 72-75....... 8
`Lebanese Banking Secrecy Law, Articles 2-8 .......... 8
`Palestinian Banking Law No. 2 of 2002,
`Article 26 .............................................................. 8
`Palestinian Banking Law of 2010, Article 32.2 ....... 8
`MISCELLANEOUS
`American Bar Association, Resolution and
`Report No. 103 (Feb. 6, 2012).........................5, 21
`Note, Supervisory and Advisory Mandamus
`Under the All Writs Act, 86 HARV. L. REV.
`595 (1973)........................................................... 30
`RESTATEMENT (THIRD) OF FOREIGN RELATIONS
`LAW § 442 (1987)...........................................19, 28
`8B Charles Wright, Arthur Miller, & Richard
`Marcus, FEDERAL PRACTICE AND
`PROCEDURE § 2283 (3d ed. 2010)..................24, 26
`16 Charles Wright, Arthur Miller, & Edward
`Cooper, FEDERAL PRACTICE AND
`PROCEDURE § 3935.3 (3d ed. 2012)...............13, 30
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`Petitioner Arab Bank respectfully petitions for a
`writ of certiorari to review the judgment of the Unit-
`ed States Court of Appeals for the Second Circuit.
`OPINIONS BELOW
`The Second Circuit’s opinion rejecting Arab
`Bank’s petition for mandamus and collateral order
`appeal (App., infra, 1a-54a) appears at 706 F.3d 92.
`Its order denying rehearing (App., infra, 224a) is un-
`published. The district court’s order imposing sanc-
`tions (App.,
`infra, 55a-91a)
`is published at 269
`F.R.D. 186, and its order denying reconsideration
`(App., infra, 91a-99a) at 269 F.R.D. 205. The district
`court’s order denying leave to take a Section 1292(b)
`appeal (App., infra, 100a-101a) is unpublished. The
`district court’s order refusing to dismiss the ATS
`claims in Almog is published at 471 F. Supp. 2d 257
`(App., infra, 138a-213a), and in Lev (App., infra,
`214a-223a) is unpublished.
`JURISDICTION
`The Second Circuit entered judgment on January
`18, 2013. Arab Bank’s timely petition for rehearing
`en banc was denied on March 26, 2013. This Court’s
`jurisdiction is invoked under 28 U.S.C. § 1254(1).
`STATUTES AND RULES INVOLVED
`Relevant statutes and rules appear at App., in-
`fra, 298a-313a.
`
`STATEMENT
`Arab Bank petitioned the Second Circuit for
`mandamus to set aside extraordinary discovery sanc-
`tions that destroy any prospect that the central fi-
`nancial institution of an important United States al-
`
`
`
`2
`
`ly will obtain a fair trial, undermine public policies of
`three foreign governments, and threaten the privacy
`rights of tens of thousands of bank customers. The
`court of appeals erroneously denied relief. This Court
`often has granted certiorari to reverse denial of
`mandamus when important procedural issues are at
`stake. E.g., United States v. Jicarilla Apache Nation,
`131 S. Ct. 2313, 2320 (2011); Cheney v. U.S. Dist. Ct.,
`542 U.S. 367 (2004); Schlagenhauf v. Holder, 379
`U.S. 104 (1964); Beacon Theatres v. Westover, 359
`U.S. 500, 501, 511 (1959) (reversing denial of man-
`damus and vacating discretionary ruling that in-
`fringed procedural rights). It should grant certiorari
`and hold that mandamus and collateral order review
`are warranted to prevent serious harms that cannot
`be remedied after the trial that will commence in
`coming months.
`The vast majority of the 6,500 claimants seeking
`hundreds of millions of dollars in damages in these
`11 lawsuits are foreign citizens or residents who are
`victims or family members of victims of terrorist at-
`tacks in the Middle East. Plaintiffs allege that Arab
`Bank, a leading Jordanian financial institution, vio-
`lated the ATA (as to U.S. plaintiffs) and the ATS (as
`to foreign plaintiffs) by providing banking services to
`charities and individuals allegedly affiliated with
`Palestinian terrorist organizations. Plaintiffs allege
`that the Bank maintained accounts and transferred
`funds for individuals and charities (many of which
`received funding from the U.S. government) that
`turned out to be “fronts” for terrorist organizations.
`Plaintiffs also allege that the Bank administered
`payments from a Saudi Arabian government-created
`charity to family members of persons killed or im-
`prisoned during the Israeli-Palestinian conflict. The-
`se banking services, plaintiffs claim—though routine
`
`
`
`3
`
`in character and screened in compliance with local
`laws and procedures designed to detect suspicious
`transactions—allowed terrorists “‘to flourish and to
`engage in a campaign of terror.’” App., infra, 6a.
`It is undisputed that plaintiffs, in order to pre-
`vail, must prove not only that Arab Bank’s services
`proximately caused plaintiffs’ injuries, but also that
`the Bank knew of and intended that result. App., in-
`fra, 59a; see, e.g., 18 U.S.C. § 2339A(a). Accordingly,
`the Bank’s knowledge and intent “lie at the core of
`[its] ATA and ATS liability.” App., infra, 17a.
`Nevertheless, the district court imposed discov-
`ery sanctions under Fed. R. Civ. P. 37(b) that elimi-
`nate plaintiffs’ burden of proving the Bank’s culpable
`state of mind and preclude the Bank from explaining
`its legitimate actions to the jury. The sole reason for
`these draconian sanctions was the Bank’s inability to
`produce the complete account files of tens of thou-
`sands of its customers because their disclosure is
`barred by the financial privacy laws of Jordan, Leba-
`non, and the Palestinian Territories, where the doc-
`uments are located. The Bank made every effort to
`obtain permission to disclose the requested infor-
`mation, resulting in the production of 200,000 docu-
`ments otherwise subject to financial privacy laws.
`Nothing in those documents suggests that the docu-
`ments barred from disclosure would show that the
`Bank knowingly and purposefully supported terror-
`ism. Yet the district court ordered that “the jury will
`be instructed” that
`“based on defendant’s failure to produce doc-
`
`uments,” the jury may “infer” that the Bank
`provided financial services to terrorists;
`
`
`
`4
`
`
`
`
`
`
`
`
`
`the Bank “distributed payments on behalf of
`the Saudi Committee to terrorists”; and
`the Bank “did these acts knowingly and pur-
`posefully.” App., infra, 91a.
`In addition, the Bank “is precluded from
`making any argument or offering any evi-
`dence regarding its state of mind or other is-
`sue that would find proof or refutation in
`withheld documents.” Ibid.
` Beyond this, the Bank cannot attempt to
`prove that it “had no knowledge a certain
`bank customer was not a terrorist if it did not
`produce that person’s complete account rec-
`ords” or submit any evidence that “the with-
`held documents could disprove.” Id. at 88a.
`Finally, the Bank is barred from even telling
`the jury that its failure to produce was re-
`quired by foreign criminal law. Id. at 106a.
`These severe sanctions, which the Second Circuit
`refused to vacate, gag the Bank on the critical state-
`of-mind issue as a penalty for obedience to foreign
`criminal law. They violate important principles of in-
`ternational comity and fundamental precepts of due
`process. In these circumstances—which are exacer-
`bated by the district court’s subsequent elimination
`of the direct causation requirement, prohibition of
`testimony that would confirm that the Bank’s con-
`duct was innocent, and consolidation of 24 separate
`terrorist incidents for mass trial—the proceedings
`will be reduced to a virtual show trial.
`In this case to be tried before a Brooklyn jury,
`the Second Circuit acknowledged, “the[se] sanctions
`are substantial” and mean that Arab Bank will “have
`
`
`
`5
`
`difficulty avoiding liability.” App., infra, 30a, 48a. A
`verdict that the Bank knowingly supported terrorists
`is capable of disabling any bank, given “the stigma of
`being labeled a supporter of terror” (id. at 2a) and
`the dependence of all banks on the willingness of cor-
`respondent banks to do business with them. And the
`sanctions do so notwithstanding the conclusion of
`Judge Weinstein in a substantially identical case
`that the same “evidence does not prove that the
`Bank acted with an improper state of mind or proxi-
`mately caused plaintiff’s injury.” Gill v. Arab Bank,
`893 F. Supp. 2d 542, 547 (E.D.N.Y. 2012).
`This dispute has serious foreign relations impli-
`cations, evidenced by filings of three governments in
`the courts below, in which U.S. ally Jordan protested
`that the sanctions “severely infring[e]” its sovereign-
`ty and “punish Arab Bank for not violating Jordani-
`an law.” App., infra, 229a. There has been an “expo-
`nential increase” in similar clashes between foreign
`laws and U.S. discovery demands, as the American
`Bar Association recently reported in calling for
`greater respect for foreign privacy laws. ABA Resolu-
`tion and Report 103 (Feb. 6, 2012). The decisions be-
`low guarantee that these conflicts will multiply by of-
`fering a template by which plaintiffs can sue any for-
`eign bank, demand documents that cannot lawfully
`be disclosed, and exploit that inability by demanding
`outcome-determinative sanctions.
`Fifty-five years ago this Court held in Société In-
`ternationale v. Rogers, 357 U.S. 197, 211-212 (1958),
`that “inability to comply” with U.S. discovery rules
`“because of foreign law” is a “weighty” reason for not
`producing requested documents. Since then,
`the
`Court has placed heightened emphasis on interna-
`tional comity in cases like Morrison v. Nat’l Austral-
`
`
`
`6
`
`ia Bank, 130 S. Ct. 2869 (2010), and Kiobel v. Royal
`Dutch Petroleum, 133 S. Ct. 1659 (2013). By granting
`review here, the Court can harmonize Rogers with
`more recent comity jurisprudence and resolve circuit
`conflicts over the propriety of draconian sanctions
`when foreign criminal law forbids disclosure, as well
`as conflicts over the applicability of mandamus in
`this context.
`This massive case, in which the injury the sanc-
`tions cause, the requirements of foreign law, and the
`views of foreign governments are all clear, and in
`which trial is imminent, provides an ideal vehicle to
`address these important issues. Mandamus is espe-
`cially appropriate for these sorts of “particularly in-
`jurious” and “consequential” errors that work “a
`manifest injustice.” Mohawk Indus. v. Carpenter, 558
`U.S. 100, 110-111 (2009); id. at 118-119 (Thomas, J.,
`concurring).
`this Court definitively held in
`Furthermore,
`Kiobel that there is no cause of action under the ATS
`for violations of the law of nations that occur in the
`territory of a foreign sovereign. The Bank has re-
`peatedly so argued since 2005, yet the Second Circuit
`failed to address plaintiffs’ ATS claims, and the dis-
`trict court has continued to exercise jurisdiction over
`those claims—which comprise most of the litigation.
`E.g., Order of June 17, 2013 (awarding plaintiffs $1.3
`million in attorneys’ fees based on the sanctions or-
`der,
`including fees related to pursuing the ATS
`claims). This Court should order dismissal of plain-
`tiffs’ ATS claims, or, at a minimum, grant, vacate,
`and remand on that issue in light of Kiobel.
`
`
`
`7
`
`A. Plaintiffs’ Claims.
`The 83-year-old Arab Bank has more than 600
`offices across 30 countries, and its shares make up
`more than 25% of the capitalization of Jordan’s stock
`exchange. As Jordan informed the district court, the
`Bank is “the leading financial institution” and “a
`pivotal force of economic stability and security in the
`Kingdom” and “broader region.” App., infra, 250a. It
`is the largest bank in the Palestinian Territories,
`with 20-plus branches established as part of the Oslo
`peace process. It has been named the “best bank in
`the Middle East” by Euromoney1 and “best trade fi-
`nance” provider in the region by Global Finance.2
`The Bank has won widespread recognition for foster-
`ing financial stability in the region; and the Israeli
`Defense Forces has stated that there is no evidence
`that it “or any of its employees were involved in any
`way whatsoever in terrorist activities, or funded ter-
`rorism.” App., infra, 254a.
`In these suits thousands of foreign citizens and a
`far smaller number of U.S. citizens (many residing
`abroad) claim that Arab Bank violated the ATA and
`ATS by processing automated funds transfers from
`the government-created “Saudi Committee in Sup-
`port of the Intifada Al Quds” to tens of thousands of
`Palestinians, including a few relatives of persons
`killed or imprisoned during the Intifada, and by
`maintaining accounts for and transferring funds to
`individuals and charitable organizations allegedly af-
`filiated with Hamas or other terrorist organizations.
`App., infra, 6a-7a.
`
`1 http://tinyurl.com/ArabBank1.
`2 http://tinyurl.com/ArabBank2.
`
`
`
`8
`
`B. Applicable Privacy Laws And The
`Bank’s Efforts To Produce Requested
`Information.
`Plaintiffs sought the wholesale disclosure of ac-
`count records in Jordan, Lebanon, and the Palestini-
`an Territories for tens of thousands of Arab Bank
`customers. These countries, like many others, make
`it a criminal offense to disclose private bank account
`records. As the Magistrate Judge who supervised
`discovery for four years found, disclosure “would vio-
`late the laws of foreign jurisdictions and expose not
`only the Bank, but its employees, to criminal sanc-
`tions.” App., infra, 112a.3
`The Bank made every reasonable effort to dis-
`close the records. It obtained permission from the
`Lebanese government to produce documents relating
`to a specific account (App., infra, 8a, 14a); produced
`all documents previously provided to the Department
`of Justice for its prosecution of the Holy Land Foun-
`dation, including account records of entities alleged
`to be terrorist “fronts” (id. at 12a); produced docu-
`ments regarding fund transfers through its New
`York branch, previously disclosed to the Comptroller
`of Currency (id. at 12a); obtained the Saudi Commit-
`tee’s consent to disclose every transfer it made, in-
`cluding the name of every beneficiary and amount of
`every payment (id. at 13a, 15a); and produced re-
`dacted customer records for certain Saudi Committee
`
`3 Applicable laws include Jordanian Banking Law No. 28, Arti-
`cles 72-75; Palestinian Banking Law No. 2 of 2002, Article 26
`(now Banking Law of 2010, Article 32.2); and Lebanese Bank-
`ing Secrecy Law, Articles
`2-8. See
`http://tinyurl.com/
`ArabBank3; http://tinyurl.com/ArabBank4; http://tinyurl.com/
`ArabBank5.
`
`
`
`9
`
`beneficiaries. See A1043-1045.4 Overall, these efforts
`“resulted in the disclosure of over 200,000 documents
`that are subject to bank secrecy laws.” App., infra,
`115a.
`But Jordan, Lebanon, and the Palestinian Au-
`thority rejected the Bank’s efforts to disclose other
`customer records, warning that disclosure would ex-
`pose the Bank and its employees to prosecution for
`violating financial privacy laws. The Bank success-
`fully petitioned Jordan’s courts to allow it to disclose
`records, but that ruling was overturned on appeal.
`Requests to Lebanese and Palestinian authorities
`were denied. A1056-1067, A1075-1079; App., infra,
`243a-252a. The only records not produced were those
`for which the Bank would face criminal liability for
`unauthorized disclosure.
`C. The District Court’s Sanctions Order.
`The Magistrate Judge, who held 15 hearings con-
`cerning foreign account discovery, concluded that the
`sole supportable inference from the Bank’s non-
`production of account records was that some custom-
`ers who turned out to be terrorists, or relatives of
`terrorists, received financial services from the Bank.
`He rejected state-of-mind sanctions, explaining that
`“[t]here has been no showing that the withheld evi-
`dence would be likely to provide direct evidence of
`the knowledge and intent of the Bank in providing
`the financial services at the heart of this case.” App.,
`infra, 123a. He refused to order blanket preclusion of
`Bank evidence that might be subject
`to cross-
`examination using non-disclosed documents, because
`
`4 “A” refers to Arab Bank’s Appendix filed in the court of ap-
`peals.
`
`
`
`10
`
`that would unfairly “prevent the defendant from of-
`fering a broad range of evidence, including testimony
`concerning their knowledge about various matters.”
`Id. at 129a-130a.
`The district judge overrode these rulings without
`holding a single hearing. Judge Gershon has author-
`ized the jury to make an adverse inference that the
`withheld materials “would have demonstrated that
`defendant acted with a culpable state of mind.” App.,
`infra, 84a. The court precluded the Bank from intro-
`ducing at trial any state-of-mind evidence “that
`would find proof or refutation in the withheld docu-
`ments.” Id. at 88a. And it held that the Bank cannot
`introduce evidence that it “had no knowledge a cer-
`tain Bank customer was a terrorist if it did not pro-
`duce that person’s complete account records” (ibid.)
`or submit any evidence that “the withheld documents
`could disprove.” Id. at 95a (emphasis added). Relying
`on the Second Circuit’s denial of mandamus, the
`court subsequently barred the Bank from explaining
`to the jury that its failure to produce was required by
`foreign criminal law. Id. at 106a (“Nowhere did the
`Second Circuit suggest” that Arab Bank could “intro-
`duce evidence of foreign financial privacy laws to the
`jury”).
`Judge Gershon denied the Bank’s motion for re-
`consideration. The court dismissed international
`comity and due process concerns and disregarded let-
`ters from Jordan, Lebanon, and the Palestinian Au-
`thority supporting reconsideration in light of the af-
`front to their national interests. App., infra, 91a-99a.
`D. The Second Circuit’s Denial Of Review.
`Arab Bank filed a mandamus petition, contend-
`ing that the sanctions were impermissible in light of
`
`
`
`11
`
`its obedience to the criminal non-disclosure laws of
`the countries where the documents are located, its
`production of 200,000 documents, and its efforts to
`obtain permission to disclose remaining documents.
`The Bank invoked principles of international comity
`and due process and showed that the harms flowing
`from an adverse jury verdict could not be remedied
`by post-judgment appeal.
`Jordan’s amicus brief explained that violators of
`its financial privacy laws would be criminally prose-
`cuted; the district court’s sanctions infringe Jordan’s
`sovereignty; and branding the Kingdom’s leading
`bank as a supporter of terrorism would have a disas-
`trous impact on the Bank, the region’s economy, and
`the fight against terrorism. App., infra, 225a-242a.
`The Second Circuit acknowledged that the issues
`raised by the Bank are “wide-ranging and weighty,”
`but held that “the difficulties presented by the
`Bank’s conflicting legal obligations” and “the inter-
`ests of foreign governments in enforcing their bank
`secrecy laws” do not support mandamus or collateral
`order review. App., infra, 2a, 31a. The court rested
`its decision on the discretionary nature of mandamus
`and the sufficiency of a final appeal. Id. at 49a.
`E. The District Court’s Foreclosure Of The
`Bank’s Remaining Defenses.
`Lacking appellate supervision, the district court
`has continued to abridge the Bank’s due process
`rights. The court has excluded as irrelevant all the
`Bank’s evidence that its provision of financial ser-
`vices in foreign jurisdictions complied with foreign
`law (App., infra, at 103a)—the same evidence that
`Judge Weinstein found “relevant to key issues” and
`“probative of the Bank’s state of mind in handling
`
`
`
`12
`
`the [foreign] account[s].” Gill v. Arab Bank, 893 F.
`Supp. 2d 523, 537-539 (E.D.N.Y. 2012). Judge
`Gershon also has barred the Bank from introducing
`evidence of the foreign financial privacy laws that
`prevent it from producing account records—evidence
`critical to a juror’s ability to assess the Bank’s con-
`duct. App., infra, 104a-106a. And the distri
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