We are troubled by the recently published Litigator of the Week interview that presented an incomplete and inaccurate description of the recent decision of a New York federal court concerning claims by our client, Bangladesh Bank ("Bank"), to recover $81 million stolen from its account at the New York Fed.  Bangladesh Bank v. Rizal Commercial Banking Corporation et al., No. 19-cv-983(S.D.N.Y. Mar. 20, 2020).

In the litigation, the Bank alleges that a web of conspiring Philippine defendants—RCBC, underworld figures, casinos, and others—stole the Bank's funds from New York, relayed them through RCBC's U.S. correspondent accounts, and placed them in fake RCBC accounts in the Philippines from which they were transferred to casinos and disappeared.  

While this sounds like a movie, it is not.  It is real, and it is tragic.  It involves the callous theft of much needed funds from the people of Bangladesh, for which the Bank serves as the Central Bank.

The seriousness of this matter makes the interview all the more troubling.  Not only does [Sidley Austin partner Tai-Heng Cheng] make an outrageous comparison of the Bank (the victim) and an international figure accused of genocide, he claims that the court's decision gave RCBC an "early complete victory."  The comparison is wildly inappropriate, and the description of the court's decision does not square with the actual opinion.  

What the New York Federal Court Really Said

For the sake of clarity, we provide herewith the court's opinion. The court actually addressed two motions to dismiss, one based on forum non conveniens and the other claiming lack of subject matter jurisdiction, which addressed only the Bank's RICO claim and not its other eight claims.  

As to forum non conveniens, the court denied the motion by RCBC and the other defendants.  The interview omits this. 

As to subject matter jurisdiction, the court denied the motion, holding that it had subject matter jurisdiction because the one federal claim (under RICO) was not "wholly insubstantial or frivolous."  The interview omits this too.  

The court, however, found the allegations supporting the RICO claim to be insufficient to state a claim and dismissed that claim.  Interestingly, this part of the jurisdiction motion was the only successful aspect of defendant's motions, yet the RCBC interview indicates that "[c]ounsel for the casino defendants," not RCBC's counsel, "prepared" it.  Nonetheless, the court chose not to exercise supplemental jurisdiction over the eight state-law claims because "the case is in its infancy," not because of anything having to do with the Philippines.  

The Problems with What the Interview Said

In the interview, Sidley partner Tai-Heng Cheng claims that RCBC won an "early complete victory."  That is incorrect.  To the contrary:

The court held that the case is properly in New York, refusing to ship it to the Philippines: 

"The obvious bona fide connection to the Southern District is that the theft took place here.  The theft targeted a major U.S. institution located in New York City, the Federal Reserve. . . . A New York jury has an interest in adjudicating, and would not be burdened by, a case in which a major federal institution in the district was cyberattacked," the opinion states.

The court held that it had subject matter jurisdiction.  

Accordingly, the Bank will be able to litigate its claims in New York.  The litigation will be either in New York federal court, if the RICO dismissal is overturned on appeal, or in New York state court, where the Bank will be free to file its eight remaining state-law claims once those courts reopen to new filings after the current health crisis passes. 

The interview describes RCBC as a "victim."  That is fantastical.  Here are key facts alleged in this case, most of which were publicly reported by Philippine investigators, laid out in RCBC's own internal audit documents, which it sought to suppress in Philippines criminal proceedings, and/or admitted in the Philippines Senate Blue Ribbon Committee proceedings:

Fake Accounts and RCBC's Correspondent Accounts in the United States: There were significant and obvious issues with the fictitious Philippines accounts.  For example, nine months before the theft, RCBC opened five U.S. dollar accounts with fake names, identification, and addresses.  Mail was returned to RCBC unopened from these addresses. RCBC opened the fake accounts in the back room office of another defendant, Kim Wong, at a casino through which the stolen funds were laundered nine months later.  Kim Wong was later forced to return a small portion of the stolen funds.  Then, the fake accounts sat empty for nine months awaiting arrival of the stolen $81 million.  

This fake account information was given to North Korean hackers who needed that information to enable them to send the fraudulent payment orders to wire the Bank's funds from the New York Fed to those RCBC accounts.  RCBC's U.S. correspondent accounts were used to send the stolen funds out of the U.S. to the Philippines.  The North Korean hackers had this account information too.  Then, RCBC opened another fake account 16 minutes before the stolen funds began arriving, and through which the lion's share of the stolen funds subsequently moved.

The Fines, Indictments and Convictions: Six RCBC employees have been criminally indicted, and one has already been convicted.  These criminal indictments sweep through every level of RCBC, from senior officers to branch management.  In fact, RCBC continues to employ a senior officer under indictment, with whom RCBC joined to file its second-filed retaliatory complaint in the Philippines. Moreover, The Central Bank of the Philippines levied its largest fine in history against RCBC, totaling one billion pesos, or about $20 million.  (None of this money was returned to the Bank.)

Allegations of Suppression of Evidence: RCBC tried to suppress its own internal audit documents in the Philippines investigation by invoking "bank secrecy" over accounts that were fake.  Philippine prosecutors claimed these attempts to suppress certain documents were "brazenly preventing the State" from "prosecuting money laundering that destroyed the reputation of the bank, as well as besmirched the country's standing."  They reserved the "right to file appropriate criminal cases against the responsible officers of RCBC, in willfully obstructing and/or frustrating the successful prosecution of criminal offenders."

The Disabled Closed Circuit Cameras and SWIFT Communications Server: A closed circuit camera at RCBC was mysteriously shut off during the theft.  RCBC's SWIFT server was also mysteriously logged-out after RCBC received the stolen funds, preventing stop payment orders from reaching RCBC until the next Tuesday morning.

RCBC's Actions After It Received the Stolen Funds: RCBC's indicted Treasurer removed a hold on fake accounts containing stolen funds just 45 minutes after the hold was put in place.  Massive amounts of funds were then transferred out.  Later, RCBC took hours to address the Bank's stop payment request after finally receiving it, all while $58.2 million were transferred out of the fake accounts.  $42.9 million of those funds were sent to another fake RCBC account, the one opened sixteen minutes before the theft, but RCBC did not alert the Bank as to this other fake account now holding a majority of the stolen funds.  RCBC's Forex Broker and Treasury also engaged in, and profited from, $47 million in foreign exchanges of the stolen funds after receipt of the Bank's stop payment.  Then, after all of this, after the filing of the Bank's complaint in New York, RCBC and one of its indicted executives (another defendant) filed a retaliatory defamation complaint against the Bank.

Finally, the interview's comparison of the Bank and an accused war criminal is inexplicable.  RCBC's counsel used this outrageous comparison to retell how RCBC secretly filed a retaliatory complaint in the Philippines and served it at a settlement meeting for which the Bank had, in good faith, agreed not to serve RCBC.  RCBC's service was described in the forum non conveniens briefing.  The stunt apparently went over like a lead balloon. The court rejected RCBC's argument to move the case from New York to the Philippines.  There is a lesson in there.  

We very much appreciate Litigation Daily publishing this letter.  We encourage your readers to review the court's decision and, if further interested, the complaint.  The court held that the case was properly filed in New York, and that is where this dispute will be litigated.  We look forward to updating you and your readers on the progress of the litigation

John J. Sullivan

Jesse Ryan Loffler

Cozen O'Connor

Counsel for Bangladesh Bank