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COMPANY 200 West Second Street Winston-Salem, NC 27101, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION Virginia Square, L. William Seidman Ctr. 3501 Fairfax Drive Arlington, VA 22226, and v. FINANCIAL CRIMES ENFORCEMENT NETWORK P.O. Box 39 2070 Chain Bridge Road Vienna, VA 22182, Defendants. : 1:08-cv-194 : CASE NO. _________________ : : : : : : : : : : : : : : : : : : : : : : :
For its Complaint against Defendants the Federal Deposit Insurance Corporation (“FDIC”) and the Financial Crimes Enforcement Network (“FinCEN”) Plaintiff Branch Banking and Trust Company (“BB&T”) hereby states and alleges as follows:
PARTIES, JURISDICTION, AND VENUE 1. Plaintiff BB&T is a full-service financial institution incorporated under the laws
of North Carolina. 2. 3. Defendants FDIC and FinCEN are agencies of the United States. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and
28 U.S.C. § 2201, as it arises under the Constitution and laws of the United States and Declaratory Relief is sought. 4. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(e). FACTUAL BACKGROUND 5. BB&T has been sued in the General Court of Justice, Superior Court Division in (“Cleveland County
Cleveland County, North Carolina in case number 07-CVS-2801.
Lawsuit”). A true copy of the complaint in the Cleveland County Lawsuit is attached hereto, designated Exhibit A and incorporated herein. 6. The plaintiff in the Cleveland County Lawsuit alleges she was an employee of
BB&T and claims she was wrongfully terminated from her employment with BB&T. She alleges in part that she was terminated “in retaliation for refusing to conspire with [BB&T] to suppress evidence of its wrongdoing from the government…” These claims and allegations are completely false. 7. In order for BB&T to defend itself in the Cleveland County Lawsuit and clear
itself of these false accusations, BB&T must be able to offer into evidence information which will prove it did not suppress or conceal any facts from the government. 8. Under the Bank Secrecy Act, banks such as BB&T are required to file a
Suspicious Activity Report (“SAR”) when they detect certain types of possible criminal activity. 31 U.S.C. § 5318(g). A SAR is filed with the government and contains relevant information a -2-
bank has uncovered concerning the possible criminal activity, including but not limited to: possible suspects, a description of the suspicious transactions and supporting documentation, and a complete and chronological account of the activity being reported. A blank SAR form is attached as Exhibit B. 9. Thus, in order for BB&T to defend itself in the Cleveland County Lawsuit against
the plaintiff’s wrongful claims that BB&T withheld evidence from the government, BB&T must be able to introduce into evidence any SAR that it may have filed relating to the issues raised in the Cleveland County Lawsuit, or else BB&T will suffer monetary damage. 10. The FDIC and FinCEN have issued regulations implementing the Bank Secrecy
Act. 12 C.F.R. § 353.3; 31 C.F.R. § 103.18. Those agencies are responsible for overseeing BB&T’s obligations under the Bank Secrecy Act. 11. BB&T has requested in writing and in person that the FDIC and FinCEN permit
BB&T to defend itself by disclosing any SAR that it may have filed relating to the issues raised in the Cleveland County Lawsuit. 12. requests. 13. The FDIC and FinCEN take the position that the filing of a SAR and its contents On April 2, 2008 Defendants issued a written decision formally denying BB&T’s
are confidential under 31 U.S.C. § 5318(g)(2), 12 C.F.R. § 353.3(g), and 31 C.F.R. § 103.18(e). They claim this federal law prohibits BB&T from confirming or denying in this Complaint or in any other pleading the existence or contents of any SAR it may have filed. 14. Plaintiff BB&T disputes the Defendants’ position and asserts that 31 U.S.C.
§5318(g)(2) and its implementing regulations impose no such restriction or, if they do, they deny BB&T Due Process of Law under the Constitution of the United States of America. However,
BB&T does not intend for anything in this pleading or any other filing it makes in this case to be taken to confirm or deny the existence or contents of any SAR it may or may not have filed. 15. 16. Accordingly, an actual case or controversy exists. Furthermore, Plaintiff has exhausted its administrative remedies. COUNT ONE DECLARATORY JUDGMENT 17. BB&T incorporates each and every allegation of Paragraphs 1 through 16 of this
Complaint as if fully restated herein. 18. BB&T seeks a declaration as to the meaning of 31 U.S.C. § 5318(g)(2) and its
implementing regulations. 19. Defendants interpret 31 U.S.C. § 5318(g)(2) and its implementing regulations to
mean that Plaintiff is prohibited from voluntarily disclosing a SAR as evidence in a lawsuit even when such disclosure is necessary to lawfully defend Plaintiff’s property. 20. Plaintiff does not agree with Defendants’ interpretation of this statute and its
implementing regulations. 21. Pursuant to 28 U.S.C. § 2201, Plaintiff seeks a declaration of the meaning of this
statute and its implementing regulations consistent with Plaintiff’s interpretation. COUNT TWO: ADMINISTRATIVE PROCEDURES ACT APPEAL 22. BB&T incorporates each and every allegation of Paragraphs 1 through 21 of this
Complaint as if fully restated. 23. BB&T satisfied all regulatory requirements in requesting that the FDIC and
FinCEN permit BB&T to disclose any SAR it may have filed relating to the issues raised in the Cleveland County Lawsuit.
BB&T has also exhausted all administrative remedies for appealing the adverse
decision of the FDIC and FinCEN. If any additional administrative remedies exist they would be futile. 25. The FDIC and FinCEN’s refusal to permit the disclosures requested by BB&T is
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). 26. Furthermore, the FDIC and FinCEN’s refusal to permit the disclosures requested 5 U.S.C.
by BB&T is contrary to constitutional right, power, privilege, or immunity. § 706(2)(B). 27.
As a result of the FDIC and FinCEN’s refusal to permit the requested disclosures,
BB&T has suffered and will continue to suffer harm because BB&T is unable to adequately defend itself against the allegations made in the Cleveland County Lawsuit. COUNT THREE: VIOLATION OF DUE PROCESS 28. BB&T incorporates each and every allegation of Paragraphs 1 through 27 of this
Complaint as if fully restated. 29. Because the FDIC and FinCEN have refused to permit the disclosures requested
by BB&T, BB&T cannot defend itself against the allegations made in the Cleveland County Lawsuit. 30. The FDIC and FinCEN’s refusal violates BB&T’s Due Process right to defend
itself against these serious allegations of wrongdoing. 31. BB&T’s right to defend itself outweighs any countervailing interests in
PRAYER FOR RELIEF WHEREFORE, Plaintiff BB&T prays for the following relief: (a) A declaration that the Bank Secrecy Act and all applicable regulations do not
prohibit BB&T from defending itself by disclosing any SAR it may have filed relating to the issues raised in the Cleveland County Lawsuit; (b) Alternatively, if the Bank Secrecy Act or any applicable regulations purport to
prohibit BB&T from defending itself by disclosing any SAR it may have filed relating to the issues raised in the Cleveland County Lawsuit, the Bank Secrecy Act and any such regulations are unconstitutional as applied to BB&T in this situation; (c) That the Court hold unlawful and set aside the decision of the FDIC and FinCEN
to refuse to permit the disclosures requested by BB&T; (d) Any other relief this Court deems just and appropriate.
Respectfully submitted, /s/ Alan L. Briggs Alan L. Briggs, Trial Attorney (N.C. ID #30551) Squire Sanders & Dempsey L.L.P. Suite 500 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2401 (202) 626-6600 firstname.lastname@example.org David W. Alexander (Ohio ID #0017156) Christopher F.W. Haas (Ohio ID #0079293) Squire Sanders & Dempsey L.L.P. 1300 Huntington Center 41 South High Street Columbus, Ohio 43215-6197 (614) 365-2700 email@example.com firstname.lastname@example.org Counsel for Plaintiff -6-