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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. :
COMPLAINT
For its Complaint against Defendants the Federal Deposit Insurance Corporation (“FDIC”)
and the Financial Crimes Enforcement Network (“FinCEN”) Plaintiff Branch Banking and Trust
of North Carolina.
3. 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
FACTUAL BACKGROUND
5. BB&T has been sued in the General Court of Justice, Superior Court Division in
Lawsuit”). A true copy of the complaint in the Cleveland County Lawsuit is attached hereto,
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
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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
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
12. On April 2, 2008 Defendants issued a written decision formally denying BB&T’s
requests.
13. The FDIC and FinCEN take the position that the filing of a SAR and its contents
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,
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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.
COUNT ONE
DECLARATORY JUDGMENT
17. BB&T incorporates each and every allegation of Paragraphs 1 through 16 of this
18. BB&T seeks a declaration as to the meaning of 31 U.S.C. § 5318(g)(2) and its
implementing regulations.
mean that Plaintiff is prohibited from voluntarily disclosing a SAR as evidence in a lawsuit even
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
COUNT TWO:
ADMINISTRATIVE PROCEDURES ACT APPEAL
22. BB&T incorporates each and every allegation of Paragraphs 1 through 21 of this
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
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24. 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
§ 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
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
confidentiality.
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PRAYER FOR 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
(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
(c) That the Court hold unlawful and set aside the decision of the FDIC and FinCEN
(d) Any other relief this Court deems just and appropriate.
Respectfully submitted,
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