How Cozen Took On A Kingdom For 9/11 Liability
Source: The Philadelphia Inquirer
By Chris Mondics
Inquirer Staff Writer
Second of two parts.
On the morning of Sept. 11, 2001, Stephen Cozen huddled with expert witnesses in a seventh-floor conference room of his Center City law firm preparing for what promised to be a bare-knuckle trial over a string of soured movie deals.
Hundreds of millions of dollars were at stake in a dispute over proceeds from Hollywood films including The Truman Show, Runaway Bride, and The General's Daughter. But Cozen's attention was soon diverted by a call from his wife, Sandy.
The World Trade Center had been attacked. Cozen and his associates switched on a TV and with astonishment watched the towers burning and then collapsing.
Like Americans everywhere, Cozen, 67, a hyperactive trial lawyer and onetime college basketball player, was torn between anger at the perpetrators and compassion for the victims.
But there was little time for reflection.
Within hours, Cozen O'Connor was swamped with calls from the insurance companies it represents in handling claims from high-rise office fires, hurricanes and ice storms.
Now the clients were possibly on the hook for far more money than ever before, billions of dollars in property losses at ground zero, business disruptions, and workers' compensation claims.
"They were saying not only are we going to have to pay out billions . . . but they wanted to know whether there was anyone they could recover from," Cozen recalled in an interview. "We tried to get as many facts as we could."
From that flurry of phone calls in the hours and days after the attacks would emerge an ambitious lawsuit: an 812-page complaint that would seek to hold America's closest ally in the Arab world financially liable for the 9/11 attacks.
Just as surely, it would commit Cozen O'Connor to the biggest battle in the firm's history.
The firm's early days
When Cozen, a freshly minted University of Pennsylvania law school grad, joined his uncle's law practice in 1964, the firm was a two-person shop focusing on small insurance-coverage disputes that other firms shunned.
It was a sleepy corner of the legal world where a lawyer could earn a good - but not spectacular - income.
Yet it gave Cozen the chance to practice law right away, rather than serve as a glorified apprentice at a larger, more illustrious firm.
In the 1970s and early 1980s, after Cozen's uncle had died and Cozen had taken over, the firm handled a series of cases that would set it on a path of explosive growth and lay the groundwork for its lawsuit against Saudi Arabia.
It represented insurers in coverage disputes over arson fires, many of them mob-related, at diners and restaurants throughout the Philadelphia region. At the time, such cases often settled quietly, but Cozen took a different tack.
The firm would deconstruct the diner's books looking for signs of a financial motive. It would bring in arson experts and forensic accountants. It would grill mobster owners.
In one case, the firm deposed a senior member of the Gambino crime family suspected of torching his Cherry Hill restaurant. Much to the delight of Cozen's insurance-industry client, the case was settled on the courthouse steps for a fraction of the $1 million claim.
The firm's chief innovation was to bring in experienced trial lawyers who had worked as local or federal prosecutors and have them pursue cases with investigative zeal.
The strategy was to challenge every suspicious insurance claim all the way to trial. Cozen lawyers did this even when prosecutors declined to file charges or investigate a case.
Over a decade or more, the firm tried 120 such cases, according to Cozen, winning them all.
Cozen gradually moved into insurance subrogation, an obscure but incredibly lucrative practice in which lawyers go after a third party, usually a business, deemed responsible for a fire or other loss. The idea is to recover damages for insurers to help offset what they pay out in claims.
Such was the case in 1993 when the firm represented insurance-industry clients in the first World Trade Center bombing. A truck bomb in the garage beneath the twin towers had killed six people and injured more than 1,000.
Cozen sued the Port Authority of New York and New Jersey, then owner of the towers, showing that the agency had been warned the trade center was vulnerable to just such an attack. Cozen collected $19 million for its client, Chubb.
As it had in disputes over diner and restaurant coverage, Cozen went to trial in liability disputes, forcing much larger payouts in cases that typically settled for as little as 10 cents on the dollar.
Those successes fueled enormous growth. From a handful of lawyers in the late 1960s, Cozen has come to dominate the specialty of insurance subrogation. It has grown to 547 lawyers with 23 offices in the United States, London and Toronto, and has moved well beyond its insurance work with venture capital, white-collar crime and general litigation and other new practice groups. It is the fourth-largest firm, in number of lawyers, in Philadelphia and among the top 100 in the nation.
Among its best-known cases were the 1980 fire at the MGM Grand Hotel in Las Vegas; the 1981 skywalk collapse at the Hyatt Regency in Kansas City, Mo.; and the 1991 fire at One Meridian Plaza, a 38-story Center City tower that burned for 19 hours, killing three firefighters.
In the One Meridian fire alone, the firm recovered more than $110 million for the owner, ER Associates, and the manager, Richard I. Rubin & Co., from an alarm company, contractors, and others held responsible.
For all of that, the firm sometimes struggles for respect. Insurance work can be looked down upon by lawyers at other high-end firms who think it lacks the cache of huge corporate deals.
Origins of the Saudi case
Stephen Cozen's father, Samuel, was a basketball legend in Philadelphia, coaching Wilt Chamberlain at Overbrook High School before a successful career as varsity coach at what is now Drexel University. There he compiled a 213-94 record.
There is something of the father in the son.
In the Saudi lawsuit, Cozen displays his father's sideline intensity, pushing his lawyers hard to produce facts and legal interpretations that could move the case forward.
He pushes himself hard as well.
He won two varsity letters as a basketball player at Penn. And his tuition to law school there was paid by Baltimore Colts owner Carroll Rosenbloom in gratitude for work Cozen did in the summer and fall after his college graduation, unraveling a disputed insurance claim involving Rosenbloom's Shore home in Margate, N.J. It was Cozen's first insurance win.
Cozen has long been a major fund-raiser for Israeli causes. He serves on the board of Steven Spielberg's Shoah Foundation Institute in Los Angeles, whose purpose is to collect and preserve memories of the Holocaust.
Behind the desk in Cozen's office hang two castings of stones from the Western Wall in Jerusalem. Family photos adorn the office as well.
As the firm weighed whether to sue Saudi Arabia, Cozen turned to contacts in Israel, including Gen. Yoram "Ya Ya" Yair, once a top Israeli military commander, who pointed him toward former military and intelligence officials with expertise in Islamist extremism.
Cozen says his support for Israel had nothing to do with the decision to sue Saudi Arabia, a longtime antagonist of Israel.
"We made a decision based on whether there was a good, viable case of civil liability," Cozen said. "We did not look at any moral or political issue. That was not our concern. . . . There were no moral judgments, no vendettas."
The lawsuit takes shape
To recover 9/11 damages for its insurance-company clients, the firm had to confront the question of who was responsible, for either causing the attacks or failing to protect the people who were harmed.
Once those responsible were identified, could they be taken to court?
The team quickly ruled out going after the airlines, reasoning that they had no role in providing security. Even if they had, it would have been difficult to prove the airlines could have foreseen that their planes would be used as weapons.
Hijacked, yes. But crashed into buildings? Likely not.
What about the security companies that screened the 19 hijackers? Cozen said there seemed to be no evidence that the airport screeners had deviated in any way from government procedures.
Even though the hijackers were armed with box cutters, the screening companies had done nothing wrong by waving them through. Box cutters at the time could be legally carried onto a plane.
Someone wondered whether Afghanistan could be sued, since the Taliban rulers had hosted Osama bin Laden since 1996.
That seemed possible until lawyers came back with a quick answer: Afghanistan's only internationally recognized government was in exile in Rome and thus had no assets.
But a lawsuit against Saudi Arabia? That might work.
Zeroing in on Riyadh
To build the case and handle the flood of client queries, Cozen partner Richard Glazer set up a task force of lawyers.
That group included Elliott Feldman, the head of the firm's subrogation practice, and Sean Carter, who directed much of the strategy. Carter, known for his capacity to master prodigious amounts of information, quarterbacks the case for the firm.
Also on the team were Scott Tarbutton, a young associate who handled many research and legal tasks, and Adam Bonin, who is married to author Jennifer Weiner (In Her Shoes) and has an elegant writing style of his own.
For advice on the appeals, the firm turned to Stephen Burbank, a Harvard-trained law professor at Penn and a leading authority on the Foreign Sovereign Immunities Act, which governs circumstances under which U.S. citizens can sue foreign governments. (See article on this page.)
What clinched the decision was an avalanche of information from the U.S. Treasury Department naming dozens of suspect Islamist charities, banks, and alleged terrorism financiers as al-Qaeda allies.
Many were based in Saudi Arabia or had prominent Saudis in leadership roles.
Cozen lawyers also had to be sure that such a defendant made financial sense, for the firm and its clients. A lawsuit of this magnitude would cost many millions of dollars. Moreover, the law governing such cases was evolving and uncertain.
And because any lawsuit against such an important American ally would inevitably raise national-security issues, the U.S. government might step in and halt legal action.
Cozen lawyers tallied what the investigation and legal work would cost, what the case might bring in, and what its chances were of succeeding.
Such a calculation followed no formula. It was more an art, a way of knowing from years before juries, what might work in a courtroom.
Saudi Arabia was by far the biggest potential target, politically and financially.
There was also economic and legal logic in naming more obscure players, such as Sudan, which hosted bin Laden from 1991 through 1996.
Sudan held about $81 million in U.S. financial institutions, money the U.S. Office of Foreign Assets Control froze after the 9/11 attacks. A favorable judgment could shift some of that money to Cozen and its clients.
Even al-Qaeda had $8 million in frozen assets that plaintiffs could seize if they won.
In the end, Cozen said, it was the legal simplicity of the case that seemed most persuasive - and a huge payout if they succeeded.
Although the question of who financed the movement that carried out the 9/11 attacks involved complex fact patterns and difficult investigative hurdles, the legal theory behind the case wasn't terribly different from the subrogation work the firm had made a specialty: Look for people or businesses responsible for a loss and make them pay.
Seeking damages from Saudi Arabia was, in its essence, no different from going after any business, contractor or third party for liability.
"It was our very strong recommendation to our clients," Cozen said, "that the case be pursued."
Then came the hard part.
Funding the lawsuit
To offset costs, Cozen said, the firm found a way to convert some of its findings into cash.
Through their own investigation, Cozen lawyers learned that a major money-center bank (one that participates in national and international money markets) in the United States, which Cozen declined to identify, was planning to purchase a smaller bank. Evidence suggested that the smaller bank had served as a conduit for financial transactions of extremist groups.
With that information in hand, Cozen lawyers approached the money-center bank. To avoid being named as a defendant, it settled for millions of dollars, money that was used to offset some of the costs of preparing the lawsuit.
The firm filed its lawsuit on Sept. 10, 2003, naming more than 400 defendants and seeking to recover about $5 billion. Yet that amount far understated what was at stake financially. Because Cozen and other law firms sued under laws that permit plaintiffs to collect treble and punitive damages along with attorneys' fees, the actual award could easily reach the tens of billions of dollars.
Hearing the case was U.S. District Judge Richard Conway Casey, a former prosecutor and a graduate of Holy Cross College and the Georgetown University Law Center.
It was in his Manhattan courtroom that the two sides met for a series of arguments between September and November 2004, when each laid out its position.
Cozen lawyers argued that the Saudis not only had funded and controlled the charities, but had been warned that the charities helped launder money into al-Qaeda. The defense insisted that there was no evidence that the Saudi government had supported acts of terrorism, and that the kingdom itself had been a victim of extremist groups, including al-Qaeda.
In one particularly intense hearing, Casey pushed back hard against Saudi arguments. For a while, Cozen lawyers thought they had been able to convince him.
But only a few weeks later, in January, and then in September, Casey issued two hard-hitting and emphatic rulings. He found the Saudi government immune from being sued because its oversight and financial support for the charities constituted normal government activities.
And he discounted information that the Saudis had been warned about the charities' money-laundering, and cited a 9/11 Commission finding that it had "no evidence that the Saudi government as an institution or senior Saudi officials individually funded" al-Qaeda.
Cozen and associates were outraged. They believed their investigation had gone considerably beyond the work of the 9/11 Commission, by showing that the Saudis had substantial control over the charities, had been warned repeatedly that the charities posed a problem, yet had had taken no actions.
Casey, Cozen felt, had profoundly misconstrued the case by failing to recognize Saudi responsibility.
Cozen lawyers began mapping their appeal.
The charities named as defendants were so tightly interwoven with the Saudi government that an appeal of Casey's ruling had a good chance of success, they believed. Their own investigation had uncovered facts missed by Congress and the 9/11 Commission, they thought.
Absent financial support from the charities, some of it Saudi government money, they argued, bin Laden would never have been able to pull off 9/11.
At the same time, they pushed forward on their investigation, combing through files and querying defendants. One of those was a major al-Qaeda operative, founder and financier named Wa'el Julaidan. The U.S. Treasury Department designated Julaidan a terrorism financier in 2002.
But Julaidan, responding to Cozen questioning, said the government of Saudi Arabia had subjected him to no penalties or sanctions.
His response mirrored statements by U.S. officials, most recently Stuart Levey, Treasury undersecretary for international terrorism, who said last year that he was unaware of any Saudi sanctions imposed on terrorism financiers living in Saudi Arabia.
During this period, Cozen also learned that at least two Guantanamo Bay detainees had been employees of the Saudi High Commission for Relief of Bosnia and Herzegovina, a Saudi government charity founded and run by Saudi Prince Salman.
In its hearings on whether detainees should be released, the Pentagon considers past employment by the commission and other charities to be a reason for keeping a prisoner in custody.
Cozen also fought a rear-guard action against the U.S. government, seeking to force it to open more investigative files on the charities.
In April 2006, the firm sued the Treasury Department in federal District Court in Philadelphia, alleging it had improperly redacted or withheld thousands of internal documents on the government of Saudi Arabia, the charities, and al-Qaeda that Cozen was seeking.
Cozen appealed Casey's dismissal of the Saudis as defendants on Jan. 5, 2007, attempting to keep them and their resources in the suit. The suit and its ambitions rested on a decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in Manhattan.
Cozen's brief argued that the Foreign Sovereign Immunities Act did not protect governments that failed to act when informed that their own agencies promoted terror.
Over the ensuing months, Cozen lawyers continued their investigation and honed their legal arguments. They pursued discovery against defendants who remained in the case, querying them on their business interests and affiliations while jockeying with defense attorneys over the terms of discovery.
A year later, on Jan. 18, the Second Circuit heard arguments.
Stephen Cozen himself was the lead lawyer for the plaintiffs. Flanked by members of his legal team, he stood to make their case.
The Saudi government and members of the royal family, he said, engaged in conduct that breached the standards of normal government activities when they supported Islamist charities that funded extremist groups. In acting outside those standards, they made themselves liable under the law.
Defense lawyer Michael Kellogg answered the allegation. U.S. law afforded the Saudi government substantial protection from litigation, he told the judges. Moreover, there was no evidence that the kingdom had anything to do with the 9/11 attacks, and such evidence was necessary to restore the government and royal family as defendants.
On the surface at least, the Second Circuit's judges appeared sympathetic to aspects of Cozen's case.
When Kellogg described the close relationship between the kingdom and the United States, the appellate court's chief judge, Dennis Jacobs, cut him short.
"It's neither here nor there," Jacobs said.
The judges posed no question to Cozen, who had been ready for this moment for weeks.
"The kingdom and its officials knew and intended to support al-Qaeda through these charities," Cozen said, gesturing as if conducting an orchestra. "The resources to build [al-Qaeda's] infrastructure were provided by donors and channeled through a network of Islamic charities. It is the misconduct of the charities and government officials that forms the [basis] of our complaint."