AER Advisors, Inc., et al. v. Fidelity Brokerage Services, LLC

To encourage banks, other financial institutions, and their employees to report actual or suspected criminal activity, Congress enacted the Bank Secrecy Act, 31 U.S.C. § 5318(g)(3)(A) (“Section 5318”), as part of the AnnunzioWylie Anti-Money Laundering Act of 1992. Section 5318 states that any financial institution that “makes a disclosure of any possible violation of law or regulation to a government agency . . . shall not be liable under . . . any constitution, law, or regulation of any State . . . for such disclosure . . . .” Despite Section 5318’s clear language and purpose, there is a well-defined split of opinion as to its meaning. The Court of Appeals for the First Circuit and the Court of Appeals for the Second Circuit have held the statute confers absolute immunity for disclosures of any possible (or even impossible) crimes. The Court of Appeals for the Eleventh Circuit and appellate courts in Arkansas, Louisiana, Texas, and California have instead limited the immunity to disclosures made in good faith, truthful disclosures, or disclosures about objectively possible crimes. Petitioners initiated this case in the Eleventh Circuit. After it was transferred to the First Circuit, Respondents successfully invoked absolute immunity conferred by the transferee circuit before discovery was taken, which highlights the disorder caused by ambiguity over whether a federal transferee court must apply its own law or the law of the transferor court in a diversity case when the transfer is subject to 28 U.S.C. § 1404(a). This Petition asks the Court to determine (1) whether Section 5318 confers (a) absolute immunity for any disclosure; or (b) immunity only if the disclosure: (i) is an objectively “possible criminal violation”; and/ or