The Bangladeshi Central Bank which was hacked for $81 million in February 2016, on January 31 sued in the US District Court for the Southern District of New York. The first pre-trial conference in the case was held on May 21; now on July 19 Bangladesh Bank has opposed the defendant’s motions to dismiss for forum non conveniens and lack of subject matter jurisdiction.
Now Rizal Commercial Banking Corporation’s Ismael Reyes has started a separate ex parte action in the SDNY, seeking discovery against Bank of New York Mellon. That case has been assigned a separate number: 19-cv-7219.
Bangladesh Bank responded on August 19, telling SDNY Judge Lorna G. Schofield that “Defendants did not clarify that the 1782 procedure does not work against crucial governmental discovery sources, like the FBI and possibly the New York Fed, pointing instead to the vastly more limited FOIA process.” So it is apparently unclear if Section 1782 applies to the Fed; that the Federal Reserve limits – and delays – FOIA, Inner City Press can attest to. We’ll have more on this.
Earlier, Bangladesh Bank wrote that “[t]he robbery was in New York City, not a foreign country, attacking a decades-old account in the New York. It involved the New York Fed, perhaps the most critically important bank in New York City. The conspirators also needed New York-based correspondence accounts to accomplish the theft.” In its other brief it adds, “Since 1973, the Bank has held its foreign reserves at the New York Fed in order to conduct Bangladesh’s international transactions in U.S. dollars. Id. 37-40. Today, the Bank conducts 85% of its international transactions in the U.S. dollar, through its New York Fed account, that holds a daily average of $1.5 billion.”
Back in March Inner City Press submitted a request under the US Freedom of Information Act to the US Federal Reserve about its role in and action on the Bangladesh Bank heist. After four months of delay from the Fed, and an appeal by Inner City Press of their constructive denial, the Fed finally ruled on June 27 – releasing only one page, a two paragraph cover letter.
This is the opposite of transparency. Inner City Press on June 29 submitted an appeal: “Dear Governor in charge of FOIA Appeals: On behalf of Inner City Press / Fair Finance Watch (ICP), this is a near immediate FOIA appeal of FRB absurd denial by providing only one page, a two paragraph cover letter, in response to Inner City Press’ FOIA request four months ago regarding the Federal Reserve’s role in and action on the Bangladesh Bank heist.
As you must know, agencies are request to provided all reasonably segregable information and are not allow mass withhold, as here. Beyond the Bangladesh Bank, to withhold in full records about the oversight by the Board over the Reserve Bank is an outrage. See also Inner City Press’ timely comments on the FRB’s current proposals to modify – and weaken – its FOIA responsibilities.
We requested and request: records regarding the Federal Reserve System’s [role] including the FRBNY’s role in what is known as the Bangladesh Bank hack or cyber heist and assistance provided to Bangladesh Bank and investigative authorities since the heist, including but limited to in connection with the SDNY case Bangladesh Bank v Rizal Commercial Banking Corp et al, U.S. District Court, Southern District of New York, No. 19-00983. and, for the record, from Inner City Press’ May 21 submission: ” First, the FRB denied the request for expedited processing, finding no threat of physical harm (??) and also reciting and presumably denying under this standard: “[t]he requester is a representative of the news media … and there is urgency to inform the public concerning actual or alleged Board activity.” Still, the Fed in further extending its time said there would be response by April 2. There has been none, nothing at all. Today in the SDNY counsel for Bangladesh Bank directly referred to the Federal Reserve. The Fed’s delay, contrasted to the fast if bad faith turn around on Inner City Press’ BB&T money laundering enforcement action termination FOIA, is in this context unacceptable, even a cover up. This is an appeal. The FRB should provide an explanation of nothing since April 2, and the long ago requested documents.” Inner City Press is hereby appealing from the withholding, demanding that all segregable information be provided, immediately.” Watch this site.
On May 21, SDNY Judge Lorna G. Schofield expressed serious concern if she has subject matter jurisdiction.
Judge Schofield encouraged the defendants to jointly file two briefs supporting a motion to dismiss by June 14.
Late on June 14, this was filed, urging that the case be sent back to the Philippines: “This lawsuit, brought by a foreign plaintiff premised on conduct allegedly undertaken in the Philippines, belongs in the Philippines, not New York. Through this action, Plaintiff Bangladesh Bank, a Bangladeshi bank, asserts an insufficiently pled RICO claim under 18 U.S.C. § 1962(c) and eight state law claims, arising from an alleged conspiracy with computer hackers in North Korea, RCBC in the Philippines, and casinos, including Bloomberry and EHL, in the Philippines, to launder funds in the Philippines.
All of the Defendants reside in the Philippines, all of the alleged acts by Defendants giving rise to this action against the Philippine defendants occurred in the Philippines, and almost all of the witnesses and evidence are located in the Philippines. Rather than filing suit in the Philippines, however, Plaintiff initiated this action here, in the Southern District of New York. Plaintiff’s choice of a New York forum is nothing more than forum shopping and should be dismissed on forum non conveniens grounds because the Philippines—not the Southern District of New York—is the most appropriate and convenient forum for this lawsuit. Retaining jurisdiction in this District would not be convenient for the parties or witnesses, nor would it promote the efficiency of this litigation, or be economically advantageous. In short, the ends of justice would be best served by dismissal of this action on forum non conveniens grounds.” Inner City Press will have more on this.
Back on May 21, Rizal Commercial Banking Corp (RCBC), through its counsel Tai-Heng Cheng of Sidley Austin marveled that Bangladesh Bank has still not succeeded with service of process of the complaint – actually handing the document to those charged, in essence – for example failing to use a sheriffunder provisions of Philippines law.
There also remain questions about service on the other named defendants, one of whom (Mr. Go) is now deceased. The others include: “MAIA SANTOS DEGUITO, ANGELA RUTH TORRES, LORENZO V. TAN, RAUL VICTOR B. TAN, ISMAEL S. REYES, BRIGITTE R. CAPIÑA, NESTOR O. PINEDA, ROMUALDO S. AGARRADO, PHILREM SERVICE CORP., SALUD BAUTISTA, MICHAEL BAUTISTA, CENTURYTEX TRADING, WILLIAM SO GO, BLOOMBERRY RESORTS AND HOTELS, INC. D/B/A SOLAIRE RESORT & CASINO [represented on May 21 by Daniel M. Perry of Milbank], EASTERN HAWAII LEISURE COMPANY, LTD. D/B/A MIDAS HOTEL & CASINO, KAM SIN WONG A/K/A KIM WONG, WEIKANG XU, DING ZHIZE, GAO SHUHUA, and JOHN DOES 1-25.”
Judge Schofield encouraged Bangladesh Bank to try to perfect service, but remained focused on whether she and the SDNY court have subject matter jurisdiction. She asked, as to the RICO claim in the complaint, when the alleged conspiracy began and ended. Bangladesh Bank’s response referred to US government complaints, including in the U.S. District Court for the District of CentralCalifornia, against North Korea for the SONY hack in 2014.
Afterward, Inner City Press asked Bangladesh Bank’s lead lawyer, John J. Sullivan of Cozen O’Connor, if he had been surprised by Judge Schofield’s approach. He said he had expected it, and argued that the judge is considering whether the case is best placed in Federal court or New York State Supreme Court on the other side of Pearl Street.
Inner City Press asked him, Doesn’t forum non conveniens in this case point to the Philippines? And why hasn’t Bangladesh Bank also sued North Korea? Sullivan said he was not at liberty to answer.
To the Federal Reserve, Inner City Press requested records relating to the Fed’s role with response officially due in 20 working days. But now this from the Federal Reserve: “Re: Freedom of Information Act Request No. F-2019-00095, Dear Mr. Lee, On February 19, 2019, the Board of Governors (“Board”) received your electronic message dated February 17, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. 552, for records regarding the Federal Reserve System’s [role] including the FRBNY’s role in what is known as the Bangladesh Bank hack or cyber heist and assistance provided to Bangladesh Bank and investigative authorities since the heist, including but limited to in connection with the SDNY case Bangladesh Bank v Rizal Commercial Banking Corp et al, U.S. District Court, Southern District of New York, No. 19-00983. Pursuant to section (a)(6)(B)(i) of the FOIA, we are extending the period for our response until April 2, 2019, in order to consult with two or more components of the Board having a substantial interest in the determination of the request.
If a determination can be made before April 2, 2019, we will respond to you promptly. It is our policy to process FOIA requests as quickly as possible while ensuring that we disclose the requested information to the fullest extent of the law.” And since then, nothing. We’ll have more on this.
In Dhaka, the Criminal Investigation Department which failed to submit its probe report into the heist on time has now been ordered by Metropolitan Magistrate Sadbir Yasir Ahsan Chowdhury to do so by March 13 in Bangladesh Bank cyber heist case.
In the U.S. District Court for Central California, the unsealed criminal complaint against Park Jin Hyuk lists four email addresses involved in spear-phishing Bangladesh Bank and among others an unnamed “African Bank;” one of these addresses is said to also have communicated with an individual in Australia about importing commodities to North Korea in violations of UN sanctions.
In the SDNY, the case is Bangladesh Bank v Rizal Commercial Banking Corp et al, U.S. District Court, Southern District of New York, No. 19-0098