NEW YORK, Dec 28 (Reuters) - Confidential
whistleblower documents that helped spark a massive state and
federal investigation into how Bank of New York Mellon Corp
charged pension funds for currency exchange, provide a
rare window into how a bank insider aided a lawsuit against the
bank.
The information provided by whistleblower Grant Wilson, who
worked at BNY Mellon, included a detailed analysis of how the
bank allegedly provided "fictitious" foreign-currency costs for
pension funds.
The analysis included a step-by-step guide to how currencies
were traded and internal profits generated by the bank,
according to documents seen by Reuters. A memo detailing fellow
employees also was provided.
Aided by Wilson's information, multiple states, including
Virginia, Florida and New York, have sued BNY Mellon, alleging
that the bank improperly charged state and local pension funds
for foreign exchange. The Department of Justice also has sued
the bank.
The allegations center on claims that BNY Mellon provided
unfavorable currency-exchange rates for state and local pension
funds for a decade. In a lawsuit in October, the New York
attorney general alleged BNY Mellon earned $2 billion over the
decade from the trading.
A bank spokesman said the bank believes that many comments
detailed in the documents were taken out of context or not said
at all.
"A handful of purported statements cherry-picked from
millions of documents gathered over a decade do not reflect the
way we do business or the value we provide our client," the
spokesman said.
The documents illuminate why insiders with highly
confidential information can be a potent force in whistleblower
lawsuits. Much of the information a whistleblower provides
remains confidential.
Wilson, for example, worked at the bank even as he secretly
provided to his legal team -- lawyers in Boston and New York --
information about how BNY Mellon allegedly conducted
foreign-exchange trading.
Wilson's information was provided to the legal team that
filed whistleblower lawsuits against BNY Mellon in 2009 and then
aided state attorneys general in subsequent probes. The legal
team includes Boston lawyer Michael Lesser, and Philip Michael,
a lawyer in New York, as well as Harry Markopolos, a fraud
investigator best known for warning that Bernard Madoff was
operating a fraudulent scheme.
Lesser, an attorney at Thornton & Naumes, said Wilson was
not available for a comment.
The information then was provided by Wilson's lawyers to the
Florida attorney general in 2009 and 2010. The attorney general
at the time was weighing whether to intervene in an October 2009
whistleblower lawsuit against BNY Mellon. That lawsuit was based
on Wilson's information.
In August this year, Florida Attorney General Pamela Jo
Bondi filed her lawsuit in Leon County.
A bank spokesman said the Florida lawsuit is "without
merit."
The Wall Street Journal earlier this year identified Wilson
as the whistleblower behind the state and federal investigations
and reported the existence of the documents.
Wilson, according to the documents, worked as a
foreign-exchange trader for 19 years. He joined a predecessor
bank to BNY Mellon in 1997 and left this spring. He worked at
BNY Mellon's Pittsburgh office.
The documents detail Wilson's experience at the bank, noting
that the trader "possesses deep and sophisticated knowledge and
personal experience in these businesses, particularly with
regard to foreign exchange." The documents note that he "never
received a reprimand" during his career.
Wilson's first-hand knowledge was crucial to the state
lawsuits. Information provided in 2009 underpinned subsequent
state claims. Wilson "can describe, step-by-step, how the fraud
is committed against the affected funds and how the various
departments of the Bank work to make the process as profitable
as possible," one document alleges.
Wilson and his lawyers, for example, provide 11
chronological steps to explain how pension clients allegedly
receive a "falsified trade price," documents show. Those clients
used a so-called "standing-instruction" program in which they
effectively give control of foreign exchange to the bank.
In one document, Wilson's lawyers provide a
question-and-answer tutorial so the Florida attorney general's
office knows the right questions to ask BNY Mellon employees.
The documents also show how Wilson aided the legal effort
even as he continued to work at BNY Mellon. One memo was written
by Wilson's lawyers in August 2010, some eight months before
Wilson left the bank. In the memo, Wilson's lawyers tell the
Florida attorney general that Wilson knows that efforts to
obtain documents from the bank are being stymied with "claims of
difficulty in production or other delays."
The memo, using Wilson's knowledge of the bank, states that
the information actually could be easily obtained because it is
"centrally stored."
"It is stored at a state-of-the-art facility that should
hasten, rather than hinder, any document response from the
bank."
A month later, in September 2010, Wilson's lawyers submitted
another memo to Florida's attorney general, noting: "We would
also like to remind you that (Wilson) continues in his
employment at the bank. Specific information, documents and
conversations mentioned here could be connected" to Wilson.
That memo alleges that BNY Mellon "is now actively and
hurriedly formulating a strategy" aimed at preserving profits
from the foreign-exchange business at the center of the state
inquiries. The memo explains that BNY Mellon publicly wants to
provide a supposedly more "transparent" foreign-exchange
system.
Actually, the "Project Gateway" strategy provides "no true
change," the memo claims.
The memo also claims that one BNY Mellon client had received
better pricing on currency transactions even as the bank
continued "to steal" from other clients.
The documents also show some inside BNY Mellon allegedly
worried about the impact of the investigations and whether
profits would soon disappear. One employee, having learned that
probes were looking at how BNY Mellon traded currencies, said:
"It's over, it's all over," according to a March 2010 document.
Another document describes two months later how a senior
banker addressed FX traders and told them the bank had received
16 subpoenas. This employee told the traders, "We have not done
anything wrong."
In a seven-page memo, Wilson and his legal team provided
detailed biographies of fellow traders and employees at BNY
Mellon to help determine whether they might be helpful in the
whistleblower legal effort. One employee was described as
"worried about job security ... Not financially secure. Scared
and probably loyal to the Bank. But also would not be inclined
to perjure herself ... She has a lot of information."
Another senior executive "likes to rant and rave ... Mr.
Wilson assumes he will want to defend the bank." A sales
executive "seems willing to push the envelope when it comes to
producing profits."
(Reporting by Carrick Mollenkamp)
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