The Litigation Daily|January 9, 2015
By Julie Triedman
Opening statements are set for Tuesday in the latest international terrorism trial to come to New York, pitting U.S. terror victims and their families against the Palestinian Authority and the Palestine Liberation Organization.
An appeals court cleared the way for trial this week, refusing to override a judge's ruling that the case can be heard in federal court in Manhattan. Taking the lead for the plaintiffs is Arnold & Porter partner Kent Yalowitz, who'll try to persuade jurors that the Palestinian leadership groups directly and indirectly sponsored or encouraged seven deadly terrorist attacks.
The trial promises to be emotionally intense: Expected to testify are eyewitnesses and several plaintiffs in the case, Sokolow v. PLO, including injured survivors and families of those killed in the attacks in and around Jerusalem between 2000 and 2004. The plaintiffs are seeking $1 billion, though damages could be trebled under the Anti-Terrorism Act of 1991.
The judge has set aside six to eight weeks for the trial, which is unfolding in a climate of ongoing terrorism concerns that can only favor the plaintiffs. This week, for example, saw the gruesome Paris killings of more than a dozen journalists, police officers and others by violent jihadists, as well as jury selection in the U.S. trial of accused Boston Marathon bomber Dzhokar Tsarnaev.
The trial also erupts at a sensitive time for the Palestinian Authority, which won United Nations approval this week to join the International Criminal Court. A verdict finding that the Authority supported terrorist attacks could stain the Palestinians' accelerating, unilateral quest for statehood. And a large damages award could financially cripple the Authority, which is already deeply in debt.
The families initially tapped Brooklyn solo practitioner Robert Tolchin to lead the case in conjunction with an Israeli law center, Shurat HaDin, focused on defending Israeli interests and pursuing terrorism-related claims. The Israeli group's chief, Nitsana Darshan-Leitner, roped in Arnold & Porter's Yalowitz to lead the trial team in the spring of 2013. (Darshan-Leitner, who was not available to speak at press time, formally filed war crimes complaints against three PLO leaders before the ICC in the Hague on Wednesday.)
Yalowitz has handled several high-profile cases during his 25-year career at Arnold & Porter. In the so-called Winstar cases, he's helped a group of bank clients recover nearly a quarter of a billion dollars so far from the United States government. Those cases arose when the U.S. reneged on regulatory and tax promises made to buyers of defunct savings and loans in the late 1980s. He also won a case on behalf of a New York State judge, Margarita López Torres, in a landmark voting rights challenge to the state's method for electing trial court judges. The U.S. Supreme Court ultimately overturned that decision.
In the terror victims' case, lawyers for the plaintiffs have marshaled and translated thousands of Arabic and Hebrew documents—largely collected by Shurat HaDin—which they hope will help illustrate the alleged complicity of Palestinian leaders in the attacks. They plan to put on about 40 witnesses, including victims, eyewitnesses, and experts on terrorism, terror injuries and damages. Plaintiffs will also present a paper trail that they say shows the Palestinian authorities continued to pay salaries to those convicted in the terrorist acts, Yalowitz said. The defendants are expected to put forward roughly 20 witnesses, including PLO executive committee member Hanan Ashrawi and other high-ranking Palestinian officials.
After first refusing to appear in the cases, the Palestinian defendants eventually tapped U.S. counsel to aggressively litigate their defense. Since mid-2007, they've looked to Mark Rochon, litigation chair at Washington, D.C.-based Miller & Chevalier, a firm best known for its tax controversy practice.
Neither Rochon nor Miller & Chevalier's Laura Ferguson, an appellate expert on the defense team, were available for comment because of the upcoming trial, according to a firm spokesman. A&P's Yalowitz described their approach to the case as "relentless," pointing to a crush of motions, appeals, and most recently, a mandamus petition challenging U.S. District Judge George Daniels' ruling that he has personal jurisdiction over the case. A panel of the U.S. Court of Appeals for the Second Circuit denied that petition on Tuesday, setting the stage for trial.
Ferguson has handled at least three other significant cases for the Palestinian entities. In 2012, she was counsel of record in Mohamed v. Palestinian Authority, persuading the U.S. Supreme Court to affirm two lower court decisions dismissing claims for lack of jurisdiction. That case was filed by the family of a U.S. citizen of Palestinian background who was tortured and killed in the West Bank in 1995.
Ferguson also won rulings upholding defense wins for the Palestinian entities in 2010 and 2011 in two other appeals. One was a dismissal of an Alien Tort Statute lawsuit that had been lodged by a Palestinian alleging he was tortured by the Palestinian Authority and PLO on suspicion of being an Israeli spy. The other case was brought by the family of an Israeli citizen who was killed driving in the Gaza Strip.
According to Yalowitz, decisions in other recent cases on the terror docket in New York, particularly the verdict in Linde v. Arab Bank, have helped set the stage for the current case.
"The work that Gary Osen [lead plaintiffs' lawyer in the Arab Bank case] and others have done over the years has really been precedent-setting, developing the contours of the law in ways that have been very helpful," he said.
Yalowitz declined to say how much the case has cost the plaintiffs' side so far—plaintiff families "are not in any position to help pay for this," he said—or to comment on who is paying expenses.