Shay Dvoretzky, partner at Jones Day. Credit: Diego M. Radzinschi / ALM
Lawyers for the investment services provider Fidelity Brokerage Services LLC on Monday asked the U.S. Supreme Court to keep in place a federal appeals court ruling that said the company could not be held liable in a private lawsuit for merely telling U.S. financial regulators about an allegedly suspicious stock transaction.
Fidelity, represented by the law firm Jones Day, is vying to leave undisturbed an April 2019 decision from the U.S. Court of Appeals for the First Circuit. A provision of the federal Bank Secrecy Act accords immunity to financial institutions that make voluntary and confidential disclosures called "suspicious activity reports." These submissions, widely known by their acronym SARs, help federal authorities investigate potential financial misconduct.
The Jones Day team, led by partner Shay Dvoretzky, is contesting a Supreme Court petition filed in September by AER Advisors Inc. and two of its clients, William J. Deutsch, who is chairman of Deutsch Family Wine & Spirits, and his son Peter Deutsch, who serves as the company's chief executive officer. The Deutsches and AER Advisors are represented by Howard Graff, an Arent Fox counsel in New York.
The dispute involves allegations of stock-price manipulation. Fidelity's filing of a suspicious activity report—submitted to the U.S. Treasury Department's Financial Crimes Enforcement Network—triggered a U.S. Securities and Exchange Commission investigation in 2012. Peter Deutsch and AER each said they spent hundreds of thousands of dollars defending themselves. Neither the SEC nor any state agency brought an enforcement action against AER or Peter Deutsch.
"Petitioners brought this action against Fidelity seeking redress for Fidelity's fraudulent concealment of its own conduct, a cover-up of its illicit lending practices and market manipulation that created a short squeeze," Graff said in the petition. He argued it was Fidelity's transaction conduct, and nothing that AER and the Deutsches did, that caused a "market disruption" in shares of a company called China Medical Technologies Inc.
Graff asserted on behalf of AER and the Deutsches: "As a result of being falsely accused by Fidelity in a SAR, petitioners were subject to investigations by various state and federal securities-related agencies, and the Deutsches suffered additional business-related damages to their business—Deutsch Family Wine & Spirits—that negatively impacted the value of the equity in it."
U.S. Treasury Department in Washington. Credit: Mike Scarcella
Dvoretzky of Jones Day countered Monday that the two federal appellate courts that have looked at liability in this area of the law have all "held that a financial institution is absolutely immune from a private suit that is based on that filing."
The history of the Bank Secrecy Act, Dvoretzky wrote, "as well as policy considerations, all confirm that the court below reached the right decision. Financial institutions are absolutely immune from private suits that are based on the filing of a suspicious activity report."
Fidelity's lawyers also argued that AER and the Deutsches would face a particular challenge trying to prove their case. Federal law prohibits financial institutions from revealing suspicious activity reports.
"Petitioners do not have the alleged report or know its contents," Dvoretzky wrote in Fidelity's new filing. "And the Bank Secrecy Act forbids Fidelity from revealing the contents of any suspicious activity report, or even whether a report exists. So petitioners could never prove that a suspicious activity report was even filed, much less that the filing was in some respect improper."
Graff of Arent Fox has urged the Supreme Court to apply a "good faith" test in weighing whether Fidelity can face liability for filing a suspicious activity report. The disclosure of a suspicious activity report must be related to a "possible violation of law or regulation," Graff told the justices. He argued that it was impossible AER and the Deutsches had engineered any sort of price manipulation scheme.
"Absolute immunity permits financial institutions such as Fidelity (as petitioners allege) to act with impunity and wastes the resources of the government agencies involved in investigating SARs," Graff told the court.
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Mike Scarcella
Mike Scarcella is a senior editor in Washington on ALM Media's regulatory desk. Contact him at [email protected]. On Twitter: @MikeScarcella. Mike works on a slate of newsletters: Supreme Court Brief | Higher Law | Compliance Hot Spots | Labor of Law.
