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Tuesday, July 10, 2007

Russia's Vaporous Case Against the Bank of New York

Lawyers are saying that Russia's case against the Bank of New York is trumped-up, amounting to governmental extortion. Attorney Robert Amsterdam points to the following analysis from the Financial Post of Canada:

Earlier this year, you may remember, a Washington man named Roy Pearson sued his local dry cleaners for $67-million, alleging that they lost his trousers (all figures in U.S. dollars). The suit, which was dismissed two weeks ago, was publicized around the world as an egregious example of how the American justice system can serve spite and rapacity. One of the more bizarre aspects of the already bizarre case was that Mr. Pearson was a judge.

Now imagine the litigation-crazed U.S. system being put together with what passes for the rule of law around the Kremlin, and you get some idea of the $22.5-billion lawsuit brought by the Russian Federation against the Bank of New York (which just merged with Mellon Bank to form Bank of New York Mellon).

The suit originates in a money-laundering scheme during the 1990s that involved two Russian emigres, Lucy Edwards, a former vice-president of the bank, and her husband, Peter Berlin. The two helped Russian exporters avoid taxes and duties on some $7-billion in laundered funds. The case was broken by U.S. authorities, with whom the guilty pair co-operated. After further investigations, the bank agreed to pay some $40-million in fines and reparations, while Ms. Edwards and Mr. Berlin got off with six months of house arrest and a payment of $685,000.

Case closed? Not quite. It seems enterprising U.S. lawyers may have approached the Russian Federation and suggested applying U.S. triple damage laws to the laundered $7-billion, resulting in that whopping $22.5-billion suit.

Mr. Berlin and Ms. Edwards are reportedly helping the Russian Federation with its case. Still, it's difficult to see how they can do any more singing, given that they have presumably told U.S. prosecutors everything even vaguely potentially damaging that they knew about the bank (which was never subject to any criminal charges).

Wielding lawsuits like blunt objects is in no way strange to the Kremlin, where bullets and polonium lattes are other judicial options. This case is being heard in the Moscow Arbitration Court, which has hardly ever been the domain of Blind Justice (unless the blindness came from having acid thrown in her face). It was here that the former head of giant oil company Yukos, Mikhail Khodorkovsky, an oligarch who made the mistake of trying to go straight and challenge Mr. Putin, lost both his company and his freedom in a put-up case. Yukos was crushed by claims for tens of billions in back taxes, but Mr. Putin hasn't finished with Mr. Khodorkovsky yet. Yukos' former auditor, PricewaterhouseCoopers, is also now being sued by the Russian government for allegedly being party to tax evasion. The accounting firm recently withdrew its Yukos audits for the past 10 years.

Former world chess champion Gary Kasparov said in Toronto last month that "Russia today is a police state masquerading as a democracy." Russia recently refused to extradite Andrei Lugavoi, the former KGB agent who is the prime suspect in the poisoning in Britain of Alexander Litvinenko. Mr. Putin meanwhile wants to have Russia's most distinguished human-rights lawyer, Karinna Moskalenko, disbarred. The state has used various forms of harassment against her Moscow-based International Protection Center. Among its more boldfaced charges is that Ms. Moskalenko failed to present one of her clients properly. The client was Mikhail Khodorkovsky!

Ms. Moskalenko has emphasized the reign of terror that Mr. Putin is attempting to install by legal harassment, and worse. She has said that "it isn't necessary to put all the businessmen in jail. It is necessary to jail the richest, the most independent, the most well-connected. It isn't necessary to kill all the journalists. Just kill the most outstanding, the bravest, and the others will get the message."

Not only is the Kremlin above the law, it is not above attempting to use the law, even U.S. law. Russian prosecutors have suggested that if they win, damages against the Bank of New York Mellon will be collectible via the U.S. legal system. Good luck with that one.

Trying to shake down Western banks or other big companies is not quite as easy as terrorizing Russians. Moreover, it will undoubtedly prove counterproductive in further destroying Russia's reputation as a desirable place to invest (about which Mr. Putin doesn't care very much as long as high oil prices continue to bolster his "petrotyranny.")

When assessing the credibility of the case, it is perhaps worth noting that the Bank of New York Mellon has pointed out that lawyers purporting to represent the Russian government offered to take care of the suit for "a fraction" of the billions claimed. As with so many rec ent Russian cases, this looks like a shakedown. However, unlike Mr. Khodorkovsky, the Bank of America Mellon has very few assets in Russia and all the time and money in the world to spend on defending against frivolous litigation. Even if the Kremlin "wins," it is unlikely to finish up with any more money than Judge Roy Pearson.

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