FSIA Does Not Exempt US Bank from Subpoena for Production of Records of Accounts Maintained by Central Bank of Nigeria

The World in U.S. Courts: Fall 2017 - Foreign Sovereign Immunity Act (FSIA)/Political Question Doctrine | August.15.2017

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Esso Exploration & Production Nigeria Ltd. v. Nigerian National Petroleum Corporation, US District Court for the Southern District of New York, August 15, 2017

The plaintiffs (Esso Exploration) believed they had claims against the defendant Nigerian National Petroleum Corporation (NNPC), a corporation owned by the Government of Nigeria, and served subpoenas on ten New York banks as “jurisdictional discovery.” The subpoenas sought information about NNPC accounts the banks were thought to maintain as well as accounts maintained by other Nigerian entities that NNPC allegedly controlled or benefitted from. The goal of the discovery was to show a nexus between NNPC and the US through NPCC’s “purposeful use and control” of the accounts. Among the subpoenas was one directed to JP Morgan, seeking information about accounts allegedly held by the Central Bank of Nigeria (CBN). CBN moved to quash the subpoena.

As relevant here, CBN argued that the subpoena was an invalid exercise of judicial power because the bank was immune from the Court’s jurisdiction under the FSIA. The Court disagreed, stating that the FSIA’s protections applied only to potential liability and efforts to attach property, not requests for information. Additionally, the Court refused to extend FSIA protection to JP Morgan merely because the subject of the subpoena may be an agency of a non-US government.

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