November 05, 2014 Articles

Separate Entity Rule for Foreign Banks Lives on in New York

Service of restraining notice ineffective to freeze assets held in bank's foreign branches

by John P. McCahey

In a case of importance to international banks with branches in New York, the New York Court of Appeals answered "yes" in Motorola Credit Corp. v. Standard Chartered Bank, No. 162, 2014 N.Y. LEXIS 2946 (N.Y. Oct. 23, 2014), to the following question certified to it by the United States Second Circuit Court of Appeals in Tire Eng'g & Distrib. v. Bank of China, 740 F.3d 108, 118 (2d Cir. 2014):

Whether the separate entity rule precludes a judgment creditor from ordering a garnishee bank operating branches in New York to restrain a debtor's assets held in foreign branches of the bank.

The New York Court, in its 7-2 decision, specifically declined to "cast aside" the separate entity rule as applied to foreign banks and made clear that its 2009 decision in Koehler v. Bank of Bermuda Ltd., 12 N.Y.3d 533 (N.Y. 2009), did not abrogate that rule. Motorola Credit was the first time New York's highest court explicitly addressed the separate entity rule. Motorola Credit, 2014 N.Y. LEXIS 2946, at *4.

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