Russian authorities are hoping to make legal history by applying an American racketeering law in a Moscow court as they seek to recover billions of dollars in damages from the Bank of New York Mellon.
Hearings resume Monday in the Russian Federal Customs Service's $22.5 billion lawsuit against the bank, which was at the center of a major money-laundering scandal in the late 1990s.
The lawsuit couldn't come at a more sensitive time, as U.S. banks are facing substantial writedowns following the subprime mortgage crisis.
In a highly unusual move, Russia has brought the case under a famous U.S. law used to fight organized crime, and both sides have drawn on the expert opinion of some of America's best-known legal minds in preparing their case.
The Russians have brought in Harvard law professor Alan Dershowitz and Robert Blakey, one of the authors of the 1970 statute on racketeer-influenced and corrupt organizations, or RICO. Bank of New York Mellon lawyers are fielding Richard Thornburgh, a former U.S. attorney general and Pennsylvania governor.
The RICO statue has never been successfully ruled on in a foreign court, according to lawyers. If the Moscow court agrees to apply the U.S. law, some lawyers predict it would open the floodgates for a slew of similar claims.
"Corporations would be buried under RICO claims in Russian courts in the next six months," said Ivan Marisin of Clifford Chance, the bank's lead counsel.
Others are less convinced it would set a precedent, given the unique nature of the suit.
In one of the world's best-known banking scandals, Lucy Edwards, a Russian emigre and a vice president at Bank of New York, and her husband Peter Berlin, were accused of illegally moving $7.5 billion of Russian money into accounts at the bank, before sending the money to accounts worldwide.
The pair pleaded guilty to conspiracy to launder money. They were fined, put under house arrest for six months and given suspended sentences.
The Russian authorities are claiming lost tax revenues on those transfers.
Bank of New York, which later merged with Mellon, was never charged with money laundering activities. It paid a non-prosecution fee of $14 million to U.S. federal prosecutors in 2005.
But two years later, American litigation lawyers — working for a 29 percent contingency fee — filed the Russian claim, based on the RICO provision that they can claim treble the amount of estimated damages.
Bank of New York's lawyers argue that RICO can only be applied when there is proof of criminal activity. In this case, they argue, the bank was not charged with a crime, and Edwards and her husband admitted only to conspiracy to launder money.
But Steven Marks of the Podhurst Orseck law firm, one of the U.S. lawyers for the Russian side, claims that the 2005 settlement was an admission of guilt and that the civil RICO law requires a lower burden of proof.
Russian efforts to reach a settlement have been rebuffed, the plaintiffs say. Marisin, the lawyer for Bank of New York, told a hearing in early July that the plaintiffs approached the bank before the case was filed, asking for a much lower amount compared to the damages currently being sought.
Analysts and legal experts are divided on the merits of the case.
Maxim Kulkov, a Russian lawyer not acting for either party, says the Russian side's arguments are "pretty convincing." Others insist the Russian case is weak and was being brought in Moscow because Russian courts often rule in favor of the government.
In any case, Bank of New York says it does not intend to pay out in the event of an adverse ruling, and has not set aside a provision for the claim.
Ken Thomas, an independent economist retained by the Russian side, warned in a recent letter to U.S. Federal Reserve Chairman Ben Bernanke that an adverse ruling could damage the bank's financial standing and pose a serious systemic risk to U.S. financial markets.