Bank of China Ordered to Disclose Identities of Counterfeit Goods Sellers

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The replica Rolex and the market for other counterfeit watches is taking a big hit.

Bank of China has chosen to appeal an Order by a New York, USA Court to fine BOC $50,000 per day for choosing to withhold identifying information about bank accounts used by persons and companies who are engaged in the illegal business of trafficking in items bearing counterfeit trademarks.

This appeal. which was filed on Tuesday, is the newest turn in a 5 year legal battle that features one of China's biggest banks versus European and American luxury goods manufacturers looking for newer and more powerful tools to wage the war against massive counterfeiting operations. The BOC states that it is battling to ensure the privacy of its clients as a "matter of national sovereignty."

The brand Gucci, accompanied by other Kering Group luxury brands, seeks twelve million U.S. dollars from BOC for damages caused by a counterfeiting operation it states produced and sold fake goods bearing counterfeit trademarks to customers in the United States.  Utilizing banking records provided to them by JP Morgan Chase, Gucci traced some $530,000 in wire transfers from United States based sellers of items bearing counterfeit trademarks to BOC bank accounts located in China.

BOC has refused (time after time) to provide the necessary information about the accounts in question or to take the action of freezing the funds in the counterfeiters' accounts on behalf of Gucci. Rather, BOC (secretly) chose to freeze more than $890,000 in funds belonging to the counterfeiters' in order to cover BOC's legal fees in the battle with Gucci, according to Chinese legal filings.

The case highlights the incompatibility between the Chinese and U.S. legal systems and could have far-reaching implications for the ability of U.S. courts to extract information from Chinese banks operating in America. That legal firewall has helped Chinese banks serve as safe havens for counterfeiters, who use them to process credit card payments for fakes, often sold online, and move their money around the globe.

The Bank of China, and other Chinese banks embroiled in similar litigation in the U.S., argue that complying with U.S. court orders to disclose client information would violate Chinese bank secrecy laws and subject them to civil and criminal penalties in China. They have so far failed to provide undisputed evidence that those penalties are, in practice, significant.

Gucci could have obtained information about the counterfeiters' accounts in Chinese court or through the Hague convention, said Bank of China lawyer Jane Jiang, a partner at Allen & Overy in Beijing. The Hague convention allows for government-mediated evidence sharing, but critics say China does not comply with such requests in a timely or consistent manner.

"The bank is especially concerned by the court's actions given that other countries disallow disclosure of bank account information to a foreign government without permission from the domestic authorities of the bank's home country, particularly when other international legal channels exist to obtain such documents," Jiang said in an email.

On Sept. 29, New York District Court Judge Richard Sullivan ruled that the U.S. has jurisdiction over the Bank of China, which has four U.S. branches. He ordered the Bank of China to comply with subpoenas for documents related to the accused counterfeiters' bank accounts, even though the accounts are in China. The bank refused, and Sullivan said if the bank did not provide the records by Dec. 7, he would begin imposing a $50,000-a-day contempt fine.

The court "will not tolerate any further attempt by BOC to delay these proceedings and thwart Plaintiff's efforts to access account information that is essential to the prosecution of Plaintiffs' claims against rampant counterfeiters who have consciously used BOC to facilitate their illegal schemes," Sullivan wrote in a Nov. 30 order.

Bank of China USA's chief executive, Xu Chen, told state-run Xinhua news, in an interview published Wednesday, that the case has wide-ranging implications which could discourage Chinese investment in the U.S.

"Many Chinese investors believe the United States has an open and fair legal system, which is a key factor in good business environments," Xu told Xinhua. "Now they might start to worry that they could also get caught in a legal dilemma because of the 'unlimited jurisdiction' sought by some U.S. courts."

Kering Group declined to comment on this matter.

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