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Divided Circuit Won’t Rehear Arab Bank Suit

MANHATTAN (CN) — Some judges may dislike it, but they must "swallow hard" and accept that precedent prevents victims of suicide bombings in Israel from suing Arab Bank, a Second Circuit majority said Monday.

The families who brought the lawsuits went to court in the United States shortly after a spate of attacks against Israeli civilians between 2000 and 2004 known as the second intifada.

Though Arab Bank reached a confidential settlement in August as to claims involving U.S. citizens, the relatives of foreign citizens killed in the attacks have struggled to advance their claims under a 1789 law known as the Alien Tort Statute.

The Second Circuit cited the case of Kiobel v. Royal Dutch Petroleum this past December in extinguishing this part of the case.

Facing a call to rehear the case en banc before the full court, the Second Circuit refused 4-3 on Monday. The vote inspired four separate opinions alternately concurring and dissenting.

"If the easiest course was to follow a precedent that the panel dislikes, it could have done what appellate judges must frequently do: swallow hard," an 8-page concurrence from Chief Judge Dennis Jacobs states.

Judge Rosemary Pooler lamented her dissent meanwhile that the court had botched an opportunity to fix a precedent that is "almost certainly incorrect."

When the Second Circuit first decided Kiobel I in 2010, it ignited controversy — and a stinging dissent — by appearing to insulate corporations of liability for overseas atrocities.

Bemoaning what he called "a substantial blow to international law," Judge Pierre Leval wrote at the time that the rule would allow corporate entities to commit genocide, child sex-trafficking and even maritime piracy without fear of civil repercussions.

Kiobel involved an attempt to hold a Netherlands-based oil giant liable in New York for conspiring in the Nigerian government's torture of environmental activists.

The U.S. Supreme Court affirmed dismissal of the case three years later.

Pooler called Kiobel I, the 2010 opinion by the Second Circuit, an outlier, bemoaning its history of creating "a needless circuit split with every other circuit to address the question of whether corporations may be held civilly liable under the Alien Tort Statute."

"When our mistakes are exceptionally important, we should not let an opportunity to correct them pass, especially when a flawed opinion categorically bars litigation, thereby blunting the natural development of the law," Pooler wrote.

Judges Denny Chin and Susan Carney joined Pooler's dissent, and Carney also joined a separate dissent by Chin.

Judge Jose Cabranes joined the Jacobs concurrence, as did Judges Reena Raggi and Debra Ann Livingston.

Raggi, Livingston and Jacobs all joined a separate concurrence by Cabranes that mocked the dissenters with a quotation that he attributed to the late Second Circuit Judge Frank Altimari.

"If attorneys want to know what the law is not, then they should read the dissent," Cabranes wrote.

Pleased about the petition's denial, a spokesman for Arab Bank quoted the U.S. government's description of the bank as "a constructive partner with the U.S. in working to prevent terrorist financing."

Attorneys for the plaintiffs did not respond to a request for comment.

The terms of Arab Bank's settlement with U.S. plaintiffs remain secret, but the bank disputed reports that it agreed to pay the families $1 billion.

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