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Case number 16-5185, Roman Sirocco, in his personal capacity and derivatively, on behalf of himself and all other similarly situated at L appellants, v. Stephen T. Mnuchin, in his official capacity as Secretary of the Treasury at L. Mr. Lewis for the appellants, Ms.

[00:00:19] Speaker 00:
Carroll for the appellees.

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Good morning.

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Good morning, Your Honors.

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May it please the court.

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My name is Eric Lewis, and I represent the Sciarico family, who were the controlling shareholders of the bank privata d'Andorra, which we call BPA.

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Your Honors, this is a case where FinCEN, an agency of the Treasury Department, has abused its tremendous power in the international financial system, has coerced

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a foreign regulator into shutting down and liquidating the bank, and is now trying to avoid judicial scrutiny of its conduct by arguing rootness.

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Here, FinCEN unsuccessfully suggested that Andorra change its money laundering policies.

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And when that didn't work, in the words of a U.S.

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official, quote, use the hammer, unquote, making an example of BPA issuing a notice and a notice of

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BPA to be a primary money laundering concern, and it proposed to issue the most severe sanction, borrowing it from the U.S.

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financial system.

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Treasury itself has said that's effectively a death sentence for an international bank.

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FinCEN also encouraged all financial institutions

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and foreign regulators to act in accordance with its notices.

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Overnight, Andorra expropriated the shares of the bank, shut it down, and took control of its assets.

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So let me just ask you, is your main point here what I'll call the third prong, the Davis prong, that even though the government withdrew the notice, et cetera,

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the lingering effects on your client are such that the district court could not find that the effects of the government's action are irrevocably removed, essentially.

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Yes, Your Honor.

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Under Davis and

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and Knox, which follows Davis, the effects have to be completely and irrevocably eradicated.

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And if the court can grant any effectual relief, whatever, and the parties have a concrete interest, however small, that can be redressed, the case is not moot.

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Let me take to your complaint.

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You, giving you the full benefit of the doubt, you raised two claims.

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One that the, you wanted a holding that the notices were unlawful.

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And the second was you wanted an order rescinding the notices.

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That's what you asked for.

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That's what we look at to work through this.

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And that's all it's, there was no remedies for continuing effects or any, I don't even know what they would be.

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But those were the two things you asked for.

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In order of sending the notices, the orders, the notice was withdrawn.

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And there's no likelihood whatsoever that it's coming back.

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So that is clearly moved.

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So what you have left is your request for a holding that the notices were unlawful.

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And you've got some real problems on, because the case law says when one piece of a case is mooted out, you have to show standing on what's left.

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And I don't know how you have standing to show that you and your clients can come to the court and seek a request that the notices that are not there anymore

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are unlawful.

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And there are a number of ways I can go at that to make the point that I don't know how you meet standing.

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But for me, I don't know how you satisfy standing.

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Because one piece of this is gone.

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It'll never come back.

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And it's what you asked for.

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You asked that the notices be rescinded.

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They are rescinded.

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So that's gone.

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And if I use Summers and Steel Co.

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Friends of the Earth and all these other cases, you are now standing to show us, as a jurisdictional matter, you have standing.

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I don't know how you have standing.

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You can't make it, let me just play it out completely so you understand my words.

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You're essentially, if you think you have standing, you're essentially making the claim that what they're doing, the way they're enforcing their law, is impermissible.

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That's a generalized grievance, you can't bring it.

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If you came in here just to make that clear, and I understand what your aggravation is, but if you came in and said to the court, you know, we're generally in this world, as are many other people, we're aggravated with the way they enforce the law, and we want to challenge it.

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You don't have standing.

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Your Honor, our position is that the withdrawal itself, and I think it is worthwhile to look very carefully at the withdrawal notice,

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It is not a withdrawal notice at all.

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What it says is this bank has been killed at our instance, and now that it has been killed as we've directed, we don't need to have the finding of primary money laundering concern, although our finding was completely correct.

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I went to what?

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I gotta go back to the complaint.

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You're asking for the rescission of the notice.

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It was rescinded.

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Now you don't like the fact that it was rescinded in a nasty way.

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Take your point.

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But as a judge, I'm saying so what?

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It's rescinded.

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So let's take what you're posing.

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Let's say it was rescinded and you're coming after the fact.

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And you say to us, you know, the way they rescinded was just really unpleasant.

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And we want to challenge that.

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We would say you don't understand it.

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Your Honor, if I may, I would cite the court to L. A. County as Judge Rogers referenced, as well as to this court's decision in Kafafi and in American Bar Association versus the Federal Trade Commission.

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And so the question is, does the rescission of the order

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constitute a complete and irrevocable eradication.

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If it has not completely and- But how do we, when we say eradication, we have to look at the complaint to know what it is you wanted.

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And what you wanted was a rescission.

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You got it.

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There's nothing to suggest that we want some kind of collateral damages or remedies that would come because of the effects.

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The only thing you wanted was a rescission.

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You got it.

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You know, we wanted one other thing, Your Honor.

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We wanted a declaration.

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Yes, that's exactly right, that it was unlawful.

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And protesto.

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Okay, so that's exactly the way I'm analyzing it.

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You got one.

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It is gone.

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It is completely rooted out.

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What you were left standing arguing is, now we want a declaration that that notice that no longer exists was unlawful.

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And I don't know how you have standing, and you have to show standing first.

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You can't say we had standing initially.

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Well, your honor, I think in Friends of the Earth there was a suggestion

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that at the mootness point may be different than initially, but we're not, we're not relying... Use Summers.

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...on that point.

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I would use... Use Summers.

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Use Steele Cup.

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I mean, Justice Scalia's opinion in Steele Cup said we don't have anything to challenge now.

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It's gone.

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You're too late.

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But use Summers.

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That's the clear, that's the clear divide in the Supreme Court's case law.

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And all those cases harken back to old case law that says the same thing.

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beginning of it.

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If you come in with a number of complaints and part of it's gone and you have to show us now that you still have standing to go after what's left.

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Your honor, I believe that if I could take your honor to the Bennett versus Spear case, which in the Supreme Court, Justice Scalia writing for unanimous court,

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And that was a case where a rule was withdrawn.

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There was a third party issue.

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And the court said if there's a determinative or coercive effect on a third party, and if we add that to Knox, as well as to LA County, it's only gone if it's fully gone.

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if its effect is completely and irrevocably eradicated.

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And in terms of the cases that I've cited, if it is not completely and irrevocably eradicated, then the fact that they've withdrawn it does not defeat standing.

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And I say this respectfully, I don't see how you can ride Bennett to get what you want.

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The court was assuming there was a regulation, an environmental regulation, and you had competing parties, those who wanted it, and the folks, the ranchers who wanted the water.

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And the court said they are standing to be here, and it's a final order.

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The court was talking about finality, and they assumed there was a final order.

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That was there to be challenged.

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Again, I would come back to Knox

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and I'd also come back to L.A.

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County.

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And I think that L.A.

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County most clearly stands for the proposition that the simple act of administrative withdrawal, vel non, does not leave you without any options and does allow you to get a declaratory judgment even though the regulation has been withdrawn.

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It allows a declaration if in fact it is

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It's more than a nasty withdrawal.

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It is a withdrawal which confirms a pejorative comment.

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If I come back to Tom.

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Here's what, I don't mean to interrupt you, but I really would like your answer to address this.

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What they're saying, and Friends says the same thing, you have to be able to show that there's some possibility that the notice that's no longer there could somehow return and affect you.

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For example, in Friends of the Earth, they were talking about, well, there's a question now as to whether, now that they've gone out of business, whether they still have a license to do business or not.

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That would be a showing of the sort that you could make.

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But I don't see any such showing here.

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The notice is gone.

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There's no possibility that this notice will affect your client in the future because it's gone.

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Your Honor, if I can refer to page 135 of a treatise that will remain unnamed that we have over there, there are two prongs to the LA County analysis.

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And LA County has been followed in many cases.

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One is, is there a likelihood that it will recur?

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And we have made clear this bank

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has been thoroughly taken care of.

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There are still aspects in Andorra, so there is redressability.

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But on the standing point, the second prong is not an additional requirement, it's an alternative requirement.

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If the effect of the pejorative primary money laundering concern statement is not completely and irrevocably eradicated, then we would maintain

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that under LA County and its progeny and distinguished commentators, it is not completely and irrevocably erratic.

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But the problem is, I gotta measure that against your complaint.

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Well, if I can... In your complaint, and I tried to parse it as carefully as I could to give you the benefit of the doubt, and one was you wanted to rescind it, and two, you want the notice declared unlawful.

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And I think the first is gone, and the second, I don't know how you get standing, because you have to address standing.

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Your Honor, we would argue that while the notice has been rescinded, because that was where we were at the time, an order holding unlawful, that is a declaration.

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And under LA County's progeny, that declaration is not moot, because if the initial order has not been completely and irrevocably eradicated in its effect,

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then we are, we can, we still have standards.

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See, I hear you, but you're coming out of a way that I don't think we're allowed to come out of anymore.

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When one piece of your claim is gone, you have to now go back and show standing.

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You're trying to ride standing that you have from the outset.

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And what I'm saying to you is, I don't think the law allows you to do that.

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Once a piece of your claim is gone, for whatever reason, settlement, mootness is gone, summers,

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Perfect example.

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You're now left with your additional claim.

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And they had standing in Summers to raise all of it initially.

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When they settled out one piece of what it was gone, the court did not analyze it under voluntary secession.

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They analyzed the standing question.

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And I don't know how you have standing.

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But Your Honor, we would submit that it is the same claim.

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And while one area of potential relief is gone,

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The claim that the primary money laundering concern designation was improper and pretextual remains our claim.

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And we've brought claims under due process, we've brought claims under APA.

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And so the claim of unlawful action remains because they have not completely and irrevocably eradicated.

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If the government had- You want me to go back to the Moodle's analysis?

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So I mean, I hear you.

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I hear you.

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We would argue, and I think it's worth considering, that there is continuing effect in Andorra.

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It began even before the withdrawal.

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Andorra has done the bidding of the United States government at every point.

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When our clients tried to talk to the Andorrans and said, can we save the bank here?

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Can we save some value?

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They said, FinCEN won't let us.

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And when they asked for a restructuring rather than a liquidation, they said, FinCEN won't let us.

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And even today, there are very significant assets that haven't even moved.

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But it is continuing.

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And this goes to whether that- What do you think would happen if you got a declaratory order?

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Suppose rescinding is off the table because the orders were withdrawn, the notices were withdrawn rather.

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If you got a declaratory order of the kind that you seek, what would happen that would redound to your benefit?

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Well, we would look at before and after.

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Before FinCEN took this action, BPA was a bank in good standing.

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It was regulated.

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It had compliance audits every year.

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BPA reported the very same incidents of money laundering to the government.

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It was not shut down.

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It was certified.

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And Andorra also took the approach, we're a sovereign nation, we get to do what we want.

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Not after FinCEN used the hammer.

[00:16:10] Speaker 01:
At that point... But don't we need to address, among other things, whether a ruling in your favor would provide regressibility now?

[00:16:20] Speaker 04:
That's the standing point.

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That's certainly correct, but we believe that if a district court found that FinCEN and its bullying activities in Andorra had acted unlawfully,

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and was not entitled to go into Andorra and tell them you do it our way or worse will happen.

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We think it would be very significant for Andorra to understand that FinCEN didn't have the power

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to do what it did.

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And we would submit that this case falls into the... But what would happen then?

[00:16:50] Speaker 01:
So, I mean, as you described it, so Andorra would get some knowledge that it otherwise didn't have, but what would, what practically would happen?

[00:16:58] Speaker 04:
Well, Andorra is holding 1.5 billion euros of assets.

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They get an order from the district court that says everything that FinCEN did was unlawful, assuming FinCEN

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doesn't recur and make this action happen again, we think that Andorra will say we shouldn't have done what we did and we need to take steps to make the Sierra

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Well, but they expropriated under a retroactive law that said, Vincent wants us to take this bank away from him.

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And we have to look at the situation that's now before us and consider it expanded.

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They don't own the bank, and we can consider that.

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But Andorra can restore the assets that haven't been transferred.

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Andorra sold a 600 million euro bank for 7 million euros.

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That is a highly conditional sale that could be unwound.

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And we don't think that is rank speculation.

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And Dora has said at every point, we can't do X, we can't do Y because of FinCEN.

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If FinCEN goes away, there's a billion and a half euros that they can use to make the Ciercos whole and also to get rid of the pejorative term of primary money laundering concern.

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I would bring the court's attention to the Totsie case, where there was a known carcinogen on the list.

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And it was found that national and international regulators would take that very seriously, even if it wasn't binding.

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Well, our clients are still on the bank.

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It was a primary money laundering concern when it's clear that that designation, we would argue, was a designation that was pretextual.

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And if we have the opportunity to do that, and FinCEN, they won't give us the FOIA documents.

[00:18:43] Speaker 04:
But even on this record, at this very early point in the case,

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We have a position where our clients have went from owning the bank in good standing, having had the bank expropriated at FinCEN's, after FinCEN used its hammer, Andorra still can make recompense, still has assets to make recompense, and has said originally, and indeed

[00:19:08] Speaker 04:
in the record, a Deputy Assistant Secretary of State says, we're really glad that Andorra addressed our concerns by taking these actions.

[00:19:17] Speaker 05:
Where in the record does it say that Andorra still has 1.5 billion euro in banking assets?

[00:19:23] Speaker 04:
Well, it is subsequent, but if the case were remanded, the Pricewaterhouse was put in, but it is not in the record in the court below because the transfer of

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Valbank had not happened at the time that this went up.

[00:19:37] Speaker 04:
So on the basis of this record, there were still significant assets inside and outside, and Valbank had not started.

[00:19:47] Speaker 04:
But that is something that we could supplement.

[00:19:49] Speaker 04:
We have the difficulty of a fluid situation.

[00:19:54] Speaker 04:
That's correct.

[00:19:56] Speaker 04:
The 1.5 billion euros, the transfer was still happening when we filed our brief, I believe, Your Honor.

[00:20:03] Speaker 05:
And Dora hadn't sold?

[00:20:06] Speaker 05:
Had gotten rid of the bank before you submitted briefs?

[00:20:10] Speaker 05:
And Dora had... She never raised this point with us.

[00:20:15] Speaker 05:
That's correct.

[00:20:15] Speaker 05:
And it's a jurisdictional point.

[00:20:18] Speaker 05:
And it's not insignificant.

[00:20:20] Speaker 05:
So it's even something that would require you to supplement

[00:20:23] Speaker 05:
Your argument, if in fact the time sequence requires it, it's about consideration.

[00:20:28] Speaker 05:
It might be, but anyway, it's about standing.

[00:20:30] Speaker 05:
You're trying to find redress somewhere, and you have to do it to show standing, and you didn't even raise this point.

[00:20:37] Speaker 03:
Your Honor, if we had a question about standing, I mean, there's a way to seek supplemental filing.

[00:20:46] Speaker 03:
I need to be clear on one thing.

[00:20:48] Speaker 03:
I don't have a good analogy, but the argument is,

[00:20:53] Speaker 03:
The government shot your client.

[00:20:58] Speaker 03:
You filed suit saying take the gun off the market and give us relief.

[00:21:07] Speaker 03:
So the government took the gun off the market, but you still got this injury.

[00:21:15] Speaker 03:
And you say that were the district court to issue some type of declaratory order,

[00:21:23] Speaker 03:
then a foreign government would react in such a way that could benefit your client.

[00:21:34] Speaker 03:
And so the question is, is that such a speculative chain of events that even though you could, in my hypothetical, show injury and causation, you still can't show redressability, even if

[00:21:50] Speaker 03:
this information you and Judge Edwards have been discussing.

[00:21:55] Speaker 04:
Just to come back, there are press releases from Arab in the record that deal with the good bank, bad bank.

[00:22:02] Speaker 04:
And at the time that they were issued, there was still significant assets outside.

[00:22:06] Speaker 04:
So there is some record evidence, but things have moved on.

[00:22:09] Speaker 04:
Coming back to your question, Judge Rogers, I would say the analogy is the US government gave

[00:22:16] Speaker 04:
rope to a foreign government and said, tie this back up, and if we don't, we'll tie you up.

[00:22:22] Speaker 04:
They tied the back up just as requested, and the government said, we don't really want to do this, we didn't do it before, but FinCEN is making us tie you up.

[00:22:33] Speaker 04:
And the question is, is it pure speculation, or does it fit in the Totsie, Town of Barnstable, Manson line of cases to say,

[00:22:42] Speaker 04:
Okay, it was illegal for the U.S.

[00:22:46] Speaker 04:
government to give Indora the rope to say, tie this bank up.

[00:22:49] Speaker 05:
Well, your complaint doesn't play it that way.

[00:22:53] Speaker 05:
That's the problem.

[00:22:55] Speaker 05:
I mean, I hear you, but I still am bound at this position to look at your complaint to try and understand that that's not the way you play it.

[00:23:05] Speaker 05:
I know you're angry about their enforcement scheme and how they use it, but you didn't raise a complaint to match what you just said.

[00:23:18] Speaker 04:
We had no idea that there would be a tactical withdrawal where the sting in the tail would be you are still a primary money laundering concern.

[00:23:27] Speaker 04:
But now, Andorra has done our bidding, so.

[00:23:29] Speaker 01:
Can I just, can I ask you this question just to crystallize some of the questions that are being asked?

[00:23:32] Speaker 01:
So suppose that you hadn't filed your lawsuit before the notices were withdrawn.

[00:23:37] Speaker 01:
And then I take it that for you to get home on standing slash redressability now, you'd have to say that you still have standing slash redressability if you would have filed a lawsuit after the notices were withdrawn and you said, I know the notices have been withdrawn, but I want a declaratory judgment that the notices should have never issued in the first place.

[00:23:57] Speaker 01:
because if those notices are declared to have been unlawful when they were issued, I can still get some relief because if the court says that, then Andorra's gonna do some things with respect to some actions that it's already taken that are gonna do to our benefit.

[00:24:12] Speaker 05:
That's exactly the question.

[00:24:13] Speaker 04:
That's correct, Your Honor, and if we'd filed for declaratory judgment, we would have said under L.A.

[00:24:20] Speaker 04:
County, they withdrew them, but the withdrawal was not a withdrawal.

[00:24:25] Speaker 05:
No, no, no.

[00:24:27] Speaker 05:
Completely.

[00:24:27] Speaker 05:
No, no, no.

[00:24:29] Speaker 05:
He's saying, all right, I'll put you in a different position now.

[00:24:32] Speaker 05:
And this highlights the standing question.

[00:24:34] Speaker 05:
We're coming in now after it.

[00:24:36] Speaker 05:
And we're saying that declaration, we want to go after that.

[00:24:41] Speaker 05:
Because, whatever, what's the because and what's the redress?

[00:24:44] Speaker 05:
That's exactly the way to frame this.

[00:24:46] Speaker 05:
Because that's all you have left.

[00:24:48] Speaker 05:
So he's saying, just put it in a situation now.

[00:24:50] Speaker 05:
You want to come in now and file a suit.

[00:24:53] Speaker 05:
Could you do it?

[00:24:54] Speaker 05:
Would you have standing?

[00:24:55] Speaker 05:
What's the redress?

[00:25:01] Speaker 04:
prompted action in Andorra.

[00:25:03] Speaker 04:
The withdrawal of the notice did not completely and irrevocably remove the pejorative statement that it was a bank of primary money loaner concern.

[00:25:15] Speaker 04:
And it did not stop Andorra from doing Andorra's bidding.

[00:25:19] Speaker 04:
So that's the injury.

[00:25:20] Speaker 04:
What is the redress?

[00:25:21] Speaker 04:
The redress is a declaration which we asked for in our complaint that

[00:25:28] Speaker 05:
It would be very specific.

[00:25:42] Speaker 04:
We would get the documents that showed that Andorra was acting in concert and under the hammer

[00:25:48] Speaker 04:
of FinCEN and that Andorra acted because FinCEN insisted on it and Andorra would not have acted as it didn't act before unless FinCEN insisted on it.

[00:25:58] Speaker 01:
Well FinCEN still would have insisted on it.

[00:26:00] Speaker 01:
You can't undo that.

[00:26:00] Speaker 01:
I mean that actually happened and a court declaring that what FinCEN did was unlawful wouldn't unwind the fact that FinCEN thought

[00:26:09] Speaker 01:
it could take that action that would, by hypothesis, occasion responses by Andorra.

[00:26:16] Speaker 04:
But if Andorra saw that an American court had declared FinCEN having acted ultra-virus, then it is our position that is far more than speculation.

[00:26:25] Speaker 04:
The Andorrans have said, we're only doing what we're doing because of FinCEN.

[00:26:29] Speaker 04:
And then the question is, can they undo some of what they can do?

[00:26:33] Speaker 04:
And if it were amended to the district court, we would readily be able to show

[00:26:38] Speaker 04:
particularly when we get the 347 pages that they've denied our FOIA request to show that Andorra was an unwilling and coerced partner, which takes us back to Bennett versus Speer.

[00:26:51] Speaker 04:
It's one third party determining and coercing the action of another.

[00:26:55] Speaker 04:
So we would go to court, we would say, sorry, you haven't completely eradicated the effects, and we are entitled to a declaration in this case

[00:27:07] Speaker 04:
under the standard of L.A.

[00:27:09] Speaker 04:
County.

[00:27:10] Speaker 04:
And we have standing at the beginning and we still have standing under Friends of the Earth because there is no complete and irrevocable action.

[00:27:20] Speaker 04:
And that is, that second prong is required.

[00:27:24] Speaker 04:
It's not alternative with recurrence.

[00:27:26] Speaker 04:
The government has a heavy burden which needs to satisfy both.

[00:27:30] Speaker 04:
And we contend that it failed to do that here.

[00:27:33] Speaker 03:
All right, let us hear from the government and we'll give you some time in response.

[00:27:51] Speaker 03:
Good morning.

[00:27:52] Speaker 02:
May it please the court, Sarah Carroll on behalf of the government.

[00:27:56] Speaker 02:
A declaration regarding FinCEN's withdrawn notices would not remedy any harm that plaintiffs claim Andorra is inflicting on them.

[00:28:02] Speaker 02:
Among other things, Andorra has conducted an independent audit in which it found that up to a fifth of BPA's assets were tainted but were suspicious of money laundering.

[00:28:12] Speaker 02:
Andorra has now sold the bridge bank containing the non-tainted assets to a third party.

[00:28:18] Speaker 02:
And beyond that, the type of relief the plaintiffs say that they want seems squarely at odds with this court's decision in Cardenas and other cases because it's premised solely on speculation about how a foreign government might respond to a non-binding pronouncement regarding actions of our government.

[00:28:39] Speaker 02:
And I'm happy to answer.

[00:28:42] Speaker 01:
Suppose you had a situation in which they just bear with me on the facts, all right?

[00:28:47] Speaker 01:
So you have a situation which the government says, and there's documents that I just need to prove this.

[00:28:52] Speaker 01:
You know, I figured out what we can do.

[00:28:55] Speaker 01:
What we can do is we can issue these notices.

[00:28:58] Speaker 01:
And I'm not sure they're good, but I know what's going to happen if we issue them.

[00:29:02] Speaker 01:
If we issue them, the Andoran government is going to take actions that are going to get rid of this bank.

[00:29:07] Speaker 01:
And then we can withdraw them.

[00:29:08] Speaker 01:
And we'll never have to face any liability, because that's all going to happen quickly.

[00:29:13] Speaker 01:
And the case will go away because of mootness.

[00:29:15] Speaker 01:
If that were to be the case, would you take the position that a court would be powerless to do anything?

[00:29:22] Speaker 02:
there would still have to be a showing of redressability, Your Honor.

[00:29:24] Speaker 02:
I think even in that situation, which I know Your Honor appreciates is not the same as this situation, even in that situation,

[00:29:32] Speaker 02:
there would, for there to be standing or for the case not to be moot, there would still need to be some reason to think that there would be a substantial likelihood that a declaration would cause the foreign government to.

[00:29:45] Speaker 01:
So it wouldn't matter.

[00:29:46] Speaker 01:
I mean, you dream up the worst factual scenario possible just in terms of appearances.

[00:29:51] Speaker 01:
The result would still be the same.

[00:29:52] Speaker 01:
There's mootness and there's no regressibility based after the notices have been withdrawn.

[00:30:00] Speaker 02:
That's right, Your Honor.

[00:30:01] Speaker 02:
I mean, courts, I can't remember the exact name of the case, but there are cases saying it doesn't matter how the case becomes moot once it's moot, a court is powerless to act.

[00:30:11] Speaker 03:
All right.

[00:30:11] Speaker 03:
But as to the non-tainted assets, in using Judge Sreenivasan's hypothetical, if it were to be shown that Andorra was saying that if in sin's action was unlawful,

[00:30:30] Speaker 03:
then we will return the untainted assets to the two brothers who owned the bank originally.

[00:30:42] Speaker 03:
Still no standing?

[00:30:46] Speaker 02:
That what you're describing, Your Honor, sounds like a closer case than this one.

[00:30:50] Speaker 02:
If there were some affirmative statement from Andorra saying today... So on standing, we have to take the allegations as true?

[00:31:00] Speaker 02:
That's true, Your Honor.

[00:31:02] Speaker 02:
The court has to take the non-conclusory, plausible allegations that are not contradicted by exhibits to the complaint or things that are subject to judicial notice as true.

[00:31:17] Speaker 05:
It's just saying they haven't made these allocations.

[00:31:20] Speaker 02:
Right.

[00:31:20] Speaker 05:
I mean, they... With respect to what the bank's holding, indeed, the complaint doesn't say anything about one or five billion, something about more than maybe two billion euros.

[00:31:31] Speaker 05:
So I'm not even sure what to think about it.

[00:31:32] Speaker 05:
But the complaint does not assert, nor does any supplemental plea to this court indicate that Andor is in a position and will, would respond

[00:31:47] Speaker 05:
That's true, Your Honor.

[00:31:51] Speaker 02:
I mean, we have put forward evidence of Andorra's actions and on the basis of the materials that we've submitted, redressability would require speculation that Andorra would heed a pronouncement by a U.S.

[00:32:03] Speaker 02:
court.

[00:32:03] Speaker 02:
It would think, okay, this pronouncement outweighs our independent finding that there was

[00:32:08] Speaker 02:
significant money laundering that we've not been.

[00:32:09] Speaker 01:
Wait, did you put forward evidence or did you?

[00:32:11] Speaker 02:
We did not put, I don't know if evidence is the correct term, but we pointed the district court and this court to official statements of the Andorra government.

[00:32:19] Speaker 01:
I just wanted to make sure I didn't miss something.

[00:32:20] Speaker 01:
That's what you did.

[00:32:21] Speaker 02:
That's what I was referring to, Your Honor.

[00:32:23] Speaker 03:
So I don't understand.

[00:32:24] Speaker 03:
This bank reported this transaction.

[00:32:32] Speaker 03:
Nothing happened here or in Andorra.

[00:32:37] Speaker 03:
Then FinCIN issues the notice, and things start to happen because of the impact of the actions of the US banks.

[00:32:52] Speaker 02:
So the notices rely on a number of things.

[00:32:54] Speaker 02:
They rely on some particular evidence of some particular transactions between you.

[00:33:00] Speaker 03:
But you're out of it, because you've withdrawn the notices.

[00:33:04] Speaker 03:
That's true.

[00:33:05] Speaker 03:
All right.

[00:33:06] Speaker 03:
If Andorra says the only reason we sold the untainted assets is because of FinCEN notice.

[00:33:20] Speaker 02:
All that plaintiffs rely on, really, for their claim that Andorra said it was acting only because of FinCEN is this press release from shortly after.

[00:33:29] Speaker 03:
No, I'm back in the complaint.

[00:33:31] Speaker 03:
Sorry about that.

[00:33:32] Speaker 03:
I'm trying to get it standing here.

[00:33:35] Speaker ?:
OK.

[00:33:35] Speaker 02:
So the complaint includes a couple of allegations, like I think that someone from Andorra had told the plaintiffs that they, that Andorra wasn't going to challenge the notices or something like that.

[00:33:48] Speaker 02:
But that does not suggest that Andorra was acting only, you know, only to please FinCEN or at the coercion of the US government.

[00:33:55] Speaker 03:
I understand that, but the question is should the

[00:33:57] Speaker 03:
Plaintiffs are given the opportunity to try to prove that because it's standing and taking their allegations is true.

[00:34:04] Speaker 03:
That's what I'm trying to get a hold of here.

[00:34:08] Speaker 02:
Even assuming that they were right that someone in Andorra, I mean taking their allegation as true, the fact that someone in Andorra told them we're not going to challenge the notices doesn't mean that they had standing at the time they filed suit or even now two years down the road.

[00:34:24] Speaker 02:
I mean that could mean

[00:34:26] Speaker 02:
that someone from Andorra was saying, we're not going to challenge the notices because we've started our own investigation to clarify the facts, as Andorra said it wanted to do.

[00:34:35] Speaker 03:
Right, and we've found that there are some funds that are not tainted.

[00:34:40] Speaker 03:
So under Judge Trinovalson's hypothetical, there's still no standing?

[00:34:48] Speaker 03:
I mean, suppose there's a smoking gun in terms of why Fincine acted.

[00:34:54] Speaker 03:
That's his hypothetical.

[00:34:55] Speaker 03:
Knowing that once the notice goes out, all the U.S.

[00:35:00] Speaker 03:
banks will cut off relationships.

[00:35:09] Speaker 02:
In that case, there still would not be standing because the Andoran government is acting for certain now and also at the time that the plaintiff filed their lawsuit, it's acting on the basis of its own findings and its own concerns.

[00:35:26] Speaker 03:
I'm focused on the non-tainted assets.

[00:35:29] Speaker 02:
Okay, so those are the assets that have already been sold to a third party now.

[00:35:38] Speaker 03:
We don't know exactly what the status of those assets is.

[00:35:46] Speaker 03:
But the bank took the position that

[00:35:50] Speaker 03:
You know, they were cooperating fully.

[00:35:51] Speaker 03:
They had disclosed fully.

[00:35:53] Speaker 03:
They'd done everything they were supposed to do.

[00:35:57] Speaker 03:
And the United States said not so.

[00:36:00] Speaker 03:
And Garn said, we agree not so.

[00:36:04] Speaker 03:
And I just need to be clear that that's the end of the case.

[00:36:06] Speaker 03:
The reason I like my hypothetical about the shooting, there's no question I'm still shot.

[00:36:13] Speaker 03:
All right?

[00:36:13] Speaker 03:
And who shot me?

[00:36:15] Speaker 03:
and how did it come about?

[00:36:17] Speaker 03:
It's a terrible analogy, and I understand that, and the rope may be better, but the rope is too ethereal.

[00:36:23] Speaker 03:
And so the only question in my mind is, is it too speculative, even taking all the allegations of the complaint as true, that it can get relief, because Andorra has made some sort of commitment

[00:36:41] Speaker 02:
It is too speculative, Your Honor.

[00:36:43] Speaker 02:
Andorra has not only made some kind of commitment, Andorra has already sold the assets that it found were not tainted by criminal money laundering to a third party.

[00:36:52] Speaker 02:
And if Andorra tried to unwind that transaction, presumably

[00:36:56] Speaker 02:
There would be the interest of all kinds of innocent third parties implicated.

[00:36:59] Speaker 02:
There would presumably be litigation in Andorra.

[00:37:02] Speaker 02:
There would be all sorts of obstacles to plaintiffs getting their stake in the bank back.

[00:37:07] Speaker 03:
And even getting their status restored so they could organize in the future would not be redressable.

[00:37:17] Speaker 02:
I'm not aware of any

[00:37:19] Speaker 02:
anything, you know, I'm not aware of any exclusion or, you know, disqualification of plaintiffs from the ability to, you know, start a new bank or get reorganized.

[00:37:31] Speaker 02:
I just don't know either way whether there is anything like that.

[00:37:35] Speaker 03:
All right, so the prayer for relief should have, in your view, gone further.

[00:37:55] Speaker 05:
You say they're wrestling on a speculative chain of events to try and achieve addressability and our case law is clear that's not enough.

[00:38:03] Speaker 02:
Yes exactly Judge Edwards that's our basic point and we think this case is similar you know it's comparable to Cardenas but it's stronger than Cardenas because here we have all kinds of

[00:38:16] Speaker 02:
all kinds of indications that Andorra is acting independently of anything that the U.S.

[00:38:23] Speaker 02:
government has done, and there's therefore even less reason to think that Andorra would change its course in response to some kind of non-binding pronouncement of a U.S.

[00:38:32] Speaker 02:
court.

[00:38:36] Speaker 02:
If there are no further questions, we ask that the court affirm the decision below.

[00:38:40] Speaker 03:
Thank you.

[00:38:40] Speaker 03:
Thank you.

[00:38:49] Speaker 04:
Thank you, Your Honor.

[00:38:50] Speaker 04:
Although we don't think it is necessary, we would ask whether we can supplement.

[00:38:55] Speaker 04:
We think the Press Waterhouse report speaks of accounts that were in transfer.

[00:39:00] Speaker 04:
There is substantial value there.

[00:39:02] Speaker 04:
But I would like to refer to the record.

[00:39:04] Speaker 04:
I think the statement that it is wholly speculative as to what would Andorra do is not supported in the record.

[00:39:11] Speaker 04:
If you look at our complaint at JA 21,

[00:39:15] Speaker 04:
our clients were told, FinCEN would not understand if we had any substantive discussions with you.

[00:39:22] Speaker 04:
If you look at our, at the joint appendix at page 59, the head of the corporation, public corporation liquidating it said, FinCEN distrusts the Siarcos and while we normally allow people to participate in our restructuring process, put yourself in FinCEN's shoes, we will not allow you to

[00:39:43] Speaker 04:
be in those discussions.

[00:39:47] Speaker 04:
If we take a look at the interview with Deputy Assistant Secretary of State Trudeau, he said, if FinCEN hadn't done what we had asked them to do, we never would have withdrawn the notice of primary money laundering concern.

[00:40:01] Speaker 04:
That appears at 327, 328.

[00:40:05] Speaker 04:
And they thanked the enduring government for acting on our concerns.

[00:40:09] Speaker 04:
We have a clear sense that Andorra was regulating the bank in a certain way.

[00:40:15] Speaker 04:
They found it acceptable.

[00:40:16] Speaker 04:
They knew about these incidents.

[00:40:19] Speaker 04:
FinCEN acts and says, if you don't shut this bank down, worse things are going to happen to you.

[00:40:26] Speaker 04:
And that is what they did.

[00:40:27] Speaker 04:
I don't think it is at all speculative.

[00:40:29] Speaker 04:
It does not need to be binding.

[00:40:32] Speaker 04:
A decision score does not need to be binding on Andorra.

[00:40:39] Speaker 05:
You know, the way the argument has come down now, you're left with the assertion that we need a declaration on the second part of our complaint that's still around, we think, that you should declare the original notice unlawful because

[00:40:58] Speaker 05:
If we get that declaration, we then will be able to go to Andorra and get some money back.

[00:41:04] Speaker 05:
That's all this case is about now.

[00:41:07] Speaker 05:
If you can't show that, you have no standing.

[00:41:10] Speaker 05:
And you can't say, well, but there's a possibility because of all that led to this, they may give it back, or we're hopeful, or it would be nice to have a shot.

[00:41:20] Speaker 05:
At least as I read the case law, it's on you, the burden, you keep wanting to go back to mootness.

[00:41:27] Speaker 05:
The burden is not there anymore.

[00:41:28] Speaker 05:
The burden is on you now to show that you have standing.

[00:41:31] Speaker 05:
And it's a heavy burden to show that you have standing and redressability.

[00:41:36] Speaker 05:
It can't just be speculative.

[00:41:38] Speaker 04:
We need to significantly increase the likelihood that Andorra will change what it has done.

[00:41:45] Speaker 04:
And we have, and obviously predicting future conduct is always, always has an uncertain component.

[00:41:55] Speaker 05:
almost in the generalized agreements here, where people come in and say, look, if I can get this from the court, I bet I can do some good things.

[00:42:03] Speaker 05:
And we say, well, that's interesting, but that's not standing.

[00:42:07] Speaker 04:
Two things, Your Honor, if we can supplement the record, we can show what is still there in Andorra, and also under the TOTC formulation, there's a logical analytic framework.

[00:42:19] Speaker 04:
We say, if you say somebody is not a primary money laundering concern, we can then assume the third parties will act differently.

[00:42:27] Speaker 04:
than when they are.

[00:42:28] Speaker 04:
It's a pejorative term that led to the closing of the bank.

[00:42:32] Speaker 04:
And so if Andorra has said, we can't deal with you the way we dealt with you before because of FinCEN.

[00:42:39] Speaker 04:
And now FinCEN has acted unlawfully.

[00:42:41] Speaker 04:
It's not only a logical inference, but there are also assets there

[00:42:45] Speaker 04:
There are things that remain that in the record, there's the Price Waterhouse, there are thousands of accounts that haven't gone over it.

[00:42:53] Speaker 04:
Not because they're tainted or there's a suspicion of money laundering, but because they don't have all the customer information.

[00:43:00] Speaker 04:
But there are lots of assets that are there.

[00:43:03] Speaker 04:
This is a half billion euro bank that got sold for seven million.

[00:43:07] Speaker 04:
Indeed, even the buyer has the option to put it back.

[00:43:10] Speaker 04:
So all we need is the prospect of some relief, however small.

[00:43:16] Speaker 04:
That's the standard under NOX.

[00:43:18] Speaker 04:
So I understand that we need to show standard, but the uncertainty about what relief you can get at what level, given the pressure that Andorra was under, if this pressure is removed, Andorra can act the way it normally acts, like a normal regulator instead of a small,

[00:43:37] Speaker 04:
a small country with a small bank that is being hit in the head with a hammer.

[00:43:43] Speaker 04:
Generally, when you stop hitting people in the head with a hammer, once their head clears, they do the right thing.

[00:43:49] Speaker 04:
The wrong thing was done here because FinCEN insisted upon it.

[00:43:53] Speaker 04:
And once they stop and once the court says, that's illegal, it's not generalized.

[00:43:57] Speaker 04:
It's specific to Banco Provada Andorra and to the Andorran regulators.

[00:44:03] Speaker 03:
Thank you.