WASHINGTON, March 30, 2016 /PRNewswire/ -- A little over a month ago, FinCEN backed down and withdrew its "Section 311" Notices alleging that Banca Privada d'Andorra ("BPA") was "of primary money laundering concern." But BPA's former directors and majority shareholders -- Ramon and Higini Cierco -- are not willing to call it quits and dismiss their law suit against FinCEN. The U.S. government has tried to force the issue by seeking the dismissal of the Ciercos' suit claiming that, with the recent withdrawal of the Notices, the case is moot. Today, the Ciercos filed a strong response arguing that the case must be kept alive because the wrongful actions of the Department of the Treasury continue to cause them harm.
The Ciercos' filing argues that the U.S. Government will say just about anything to avoid having to defend its actions. Just over a month ago, the U.S. Government argued that the Ciercos' suit had been filed too soon, before FinCEN completed its final decision making. Now, the Ciercos point out, FinCEN is arguing exactly the opposite – that the case should be dismissed because it is too late to give them a remedy. The Ciercos' filing argues that this "Goldilocks" strategy is a deliberate attempt by the U.S. Government to shield the illegality of FinCEN's actions from scrutiny by an independent federal court.
The Ciercos also point out that the U.S. government's argument seeking dismissal of the action is based on an incorrect premise, that the United States can't influence the actions of the Andorran government. Eric L. Lewis, the Ciercos' counsel, calls that argument "disingenuous, because there is little question that a small country like Andorra is dependent on good relations with FinCEN to keep its banking system operating and that is what caused Andorra to act against BPA." According to the Ciercos' filing, a U.S. Consular Official acknowledged that the Notices issued against BPA were a "hammer" intended to press Andorra into adopting tougher banking regulations. The withdrawal of those Notices, said Lewis, is "based on FinCEN's determination that Andorra has now done everything the U.S. has asked, leaving my clients the victims of internationally coordinated arbitrary and illegal action."
The Ciercos' filing also asks the Court to take into account that BPA is far from first foreign bank to be targeted by FinCEN in this way. According to the filing, out of 18 Section 311 notices issued by FinCEN since the statute was passed, 12 of them have ended with FinCEN quietly withdrawing its notices without completing its regulatory process, in the wake of the collapse of the bank. This, says the Ciercos, precludes any judicial oversight of FinCEN's actions. According to the filing, the Ciercos are in a unique position to challenge FinCEN, forcing it to defend its actions in court. According to Mr. Lewis, it is natural for FinCEN "to be afraid of being held accountable in federal court and to do everything it can to avoid it."
SOURCE Ramon and Higini Cierco