Hogan Lovells files brief in Second Circuit to preserve $42.5 million seized by Ukraine for its defense against Russia

The brief on behalf of Ukraine’s Deposit Guarantee Fund (DGF) was filed in response to an appeal over the release of assets currently held at BNY Mellon. These assets, worth approximately US$42.5 million, were secured by Hogan Lovells in a July 2023 decision by the United States District Court for the Northern District Of New York (NDNY). 

The Plaintiffs-Appellants who brought the underlying case are individuals who were injured in a 2016 Taliban terrorist attack, and received a judgment for their injuries in the Northern District of Texas. They subsequently filed a motion in the NDNY to obtain a writ of execution against these assets, which had been held by Prominvestbank (PIB), a formerly Russian-owned bank in Ukraine. They argued that PIB was an instrumentality of Russia, and that Russia had acted as a state sponsor of the Taliban. 

The government of Ukraine, however, had nationalized the PIB and seized its assets to be used in efforts to defend the country against Russian aggression. The DGF is the entity appointed to liquidate the PIB’s assets and direct funds towards Ukraine’s war effort. 

Hogan Lovells argued, and the District Court agreed, that the seizure and nationalization of PIB by Ukraine occurred prior to the Appellants’ filing for their Writ of Execution, and therefore PIB could not be considered an instrumentality of the Taliban. 

Today’s brief in response to the appeal urges the Second Circuit to uphold this ruling. 

In its brief, DGF noted that the PIB had been seized, set for liquidation, and nationalized by the Government of Ukraine prior to the Appellants’ filing of their application for a writ of execution. The brief also states that the Executive Branch of the United States Government is the sole arbiter of which states are or are not sponsors of terror, and currently, neither Ukraine nor Russia are designated as such.

The Hogan Lovells legal team is led by partner Dennis Tracey, with support from senior associates Matthew Ducharme and Peter Bautz (all New York).

The Hogan Lovells team that secured the victory before the District Court in July 2023 was also led by Tracey. More about this decision is here. 

The brief filed before the Second Circuit is here.