Rico Law by miamichick305


									Press Release
Contacts:       Media                                             Analysts
                R. Jeep Bryant                                    Steve Lackey
                212-635-1569                                      212-635-1578

   Leading Russian Legal Experts to Testify That Bank of New York Case Should Be Dismissed

Prominent Legal Scholars Agree that Moscow Court Lacks Jurisdiction; Say Meritless Case Is a Serious
                                 Misapplication of U.S. RICO Laws

Moscow, November 27, 2008 – The Bank of New York Mellon Corporation (NYSE: BK) said that three
leading Russian legal experts will testify before a Moscow court beginning today in support of the Bank’s
motion to dismiss the case brought against it by a U.S. plaintiff’s lawyer representing the Russian Federal
Customs Service (FCS). These experts are among 22 prominent Russian and U.S. legal scholars and
practitioners who have presented written testimony to the Arbitrazh Court of the City of Moscow that
demonstrates why the FCS’s claim is a serious misapplication of the U.S. Racketeer Influenced and
Corrupt Organizations Act (RICO) and why the court lacks jurisdiction under Russian law to hear the

Today’s hearing follows detailed oral testimony last month from former U.S. Attorney General Dick
Thornburgh and U.S. RICO expert Gregory Joseph, Esq., that the case is without merit and based on
demonstrably false claims. The Bank also submitted new evidence last month from the U.S. Department
of Justice invalidating the central claim, that the Bank admitted criminal conduct, made against the Bank
by the FCS’s Miami-based lead attorney, Steven Marks.

The FCS suit purports to seek damages allegedly arising in connection with the activities of a Russian
émigré, Lucy Edwards, who worked for The Bank of New York in the 1990s and facilitated a series of
unauthorized fund transfers through the Bank without the Bank's knowledge. The suit claims that the
fund transfers resulted in lost tax revenue, but no evidence of damages has been produced, the Bank was
never accused of any crime and the statute of limitations has passed.

Jonathan Schiller, managing partner of Boies, Schiller & Flexner LLP and The Bank of New York
Mellon's counsel, said:

“Twenty-two of the best legal minds in Russia and the United States have made clear that this case is
based on fundamental contradictions of both Russian and American law as well as a gross misapplication
of the U.S. RICO statute. The testimony from these three Russian legal experts will make that even more
clear to the court. No matter how hard the plaintiff’s lawyers try to distort the record and misapply
RICO, the facts and the law leave no doubt that this case is entirely without merit and should be


The Russian legal experts who are testifying for the Bank beginning today are:

    •   G.A. Esakov, Associate Professor of the Department of Criminal Law at the Moscow State
        Academy of Law;
    •   Professor A.P. Sergeev, Head of the Department of Civil Law of the Law Faculty of the Saint
        Petersburg State University for Economics and Finance; and
      •    Professor V.V. Yarkov, Head of the Civil Procedure Department at the Urals State Law

These Russian experts, respected authorities on U.S. criminal law, Russian civil law and Russian
procedural law respectively, made clear in their written submissions that the Arbitrazh Court lacks
jurisdiction to hear this case, since it is a commercial court and cannot interpret or apply criminal law, let
alone U.S. RICO law. The experts also made clear in their written testimony that Russia’s Constitution
prohibits a plaintiff from pursuing civil sanctions in regards to an alleged violation of U.S. criminal law,
the type of damages claim made by the plaintiff’s attorney in this suit. They noted that FCS's attempts to
show that the U.S. Congress somehow “indirectly” implied applicability of RICO by foreign courts are
futile, since the U.S. Congress cannot determine the scope of jurisdiction of a Russian court.

Professor V.V. Yarkov, Head of the Civil Procedure Department at the Urals State Law Academy
and an expert in Russian procedural law, commented:

“The attempt by the FCS experts to impose American criminal laws, standards of proof and other public
law norms of a foreign state in these proceedings is a clear violation of the legal and judicial sovereignty
of the Russian Federation.”


The evidence from the U.S. Department of Justice that the Company presented to the Arbitrazh Court on
October 6 invalidates the central claim made by the plaintiff’s lead attorney, Steven Marks, demonstrating
that the Bank did not admit to, or engage in, any criminal conduct in the transfer of funds from Russia in
the 1990s, as claimed by Mr. Marks.

This evidence includes a letter from the U.S. Attorney’s Office for the Southern District of New York that
states unequivocally that “the Bank did not admit criminal culpability” with respect to the unauthorized
transfer of Russian funds in a scheme devised by a rogue employee without the Bank’s knowledge. While
this was made clear in a Non-Prosecution Agreement signed by the Bank in November 2005, Mr. Marks
misused a press release issued by the U.S. Attorney’s Office in 2005 in his attempt to construct a claim for
damages under RICO. The U.S. Attorney’s Office has issued an amended version of the press release,
which the Bank also presented to the court.

Mr. Marks, knowing that the Non-Prosecution Agreement said otherwise, utilized the original press
release to concoct the FCS’s RICO claims. The plaintiff’s expert, Harvard Professor Alan Dershowitz,
then submitted a certified witness statement to the court, without regard to the language of the Non-
Prosecution Agreement, in which he inaccurately stated, “BoNY itself has admitted and accepted its
responsibility for the crime of money laundering.”1

For a full list of the U.S. and Russian experts who submitted testimony in support of The Bank's motion
to dismiss and additional background about the case, please visit www.bnymellon.com/russiacase.

The Bank of New York Mellon Corporation is a global financial services company focused on helping
clients manage and service their financial assets, operating in 34 countries and serving more than 100
markets. The company is a leading provider of financial services for institutions, corporations and high-
net-worth individuals, providing superior asset management and wealth management, asset servicing,
issuer services, clearing services and treasury services through a worldwide client-focused team. It has
$22.4 trillion in assets under custody and administration, approximately $1.1 trillion in assets under
management and services approximately $12 trillion in outstanding debt. Additional information is
available at bnymellon.com.

    Legal Expert Witness Statement of Alan M. Dershowitz, Certified June 27, 2008
This document contains statements relating to future events that are considered “forward-looking
statements.” These statements, which may be expressed in a variety of ways, including the use of future or
present tense language, relate to, among other things, the potential outcomes and impact of the claim
made by the Federal Customs Service of the Russian Federation on The Bank of New York Mellon
Corporation. These forward-looking statements are based on assumptions that involve risks and
uncertainties and are subject to change based on various important factors (some of which are beyond
the control of The Bank of New York Mellon Corporation). Actual results may differ materially from those
expressed or implied as a result of these risks and uncertainties, including but not limited to the risk
factors and other uncertainties detailed in the annual report on Form 10-K for the year ended December
31, 2007 filed by The Bank of New York Mellon Corporation with the Securities and Exchange
Commission and other reports filed with the Commission pursuant to the Securities Exchange Act of
1934. All statements in this document speak only as of November 27, 2008, and The Bank of New York
Mellon Corporation undertakes no obligation to update any statement to reflect events or circumstances
after November 27, 2008 or to reflect the occurrence of unanticipated events.

                                                 # # #

To top