John Doe 1 v. The Taliban

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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JOHN DOES 1 THROUGH 7,

Judgment Creditors,

v.

THE TALIBAN, AL-QAEDA, and THE No. 6:22-cv-990

HAQQANI NETWORK,

Judgment Debtors,

v.

THE BANK OF NEW YORK MELLON,

Garnishee,

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APPEARANCES: OF COUNSEL:

HOGAN LOVELLS US LLP RYAN M. PHILP, ESQ.

Attorneys for Proposed Intervenor DENNIS H. TRACEY III, ESQ.

390 Madison Avenue ALAN M. MENDELSOHN, ESQ.

New York, NY 10017 JONATHAN P. WIEDER, ESQ.

DO CAMPO & THORNTON, P.A. ORLANDO DO CAMPO, ESQ.

Attorneys for Judgment Creditors JOHN THORNTON, ESQ.

150 S.E. 2nd Avenue, Ste. 602 DANIELA JARAMILLO, ESQ.

Miami, Florida 33131

KATSKY KORINS LLP STEVEN B. FEIGENBAUM, ESQ.

Attorneys for Garnishee

605 Third Avenue

New York, New York 10158

DAVID N. HURD

United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Proposed intervenor Deposit Guarantee Fund (“DGF” or “Proposed

Intervenor’), as Liquidator of PJSC Joint Stock Commercial Industrial and

Investment Bank (“Prominvestbank”), moves by order to show cause to

intervene as a defendant in this action under Federal Rule of Civil Procedure

(“Rule”) 24 and to vacate the writ of execution this Court issued on November

2, 2022 (the “Writ of Execution”). The Writ of Execution concerns blocked

assets of Prominvestbank (the “Blocked Assets”) held by the Bank of New

York Mellon “BNY Mellon”) in Oriskany, New York.

John Does 1-7 (the “Judgment Creditors”), who were injured in a 2016

Taliban terrorist attack, received a judgment for their injuries in the

Northern District of Texas, and obtained the Writ of Execution in this Court,

oppose DGF’s motions. The motions have been fully briefed and the Court

will now consider them on the basis of the parties’ submissions without oral

argument.

Il. BACKGROUND

1. Ukraine’s Nationalization of Prominvestbank

Prominvestbank is a bank based in Ukraine. Dkt. No. 49-1 (“Fonseca

Decl.”) at § 32. In May 2022, Ukraine Business News reported that Ukraine

had nationalized Prominvestbank. Dkt. No. 35-4 (“Kostiukov Decl.”) at § 12.

Several months prior to the nationalization, on February 25, 2022, the Board

of the National Bank of Ukraine issued a decision revoking Prominvestbank’s

banking license and directing its liquidation (the “February 25 Decision”). Id.

¶ 4. The February 25 Decision also states that, as of January 1, 2022, the

owner of 99.772644% of the shares of Prominvestbank is the State

Development Corporation in VEB.RF (“VEB”). Id. It further states that the

shareholder and owner of 100% of the authorized capital of VEB is the

Russian Federation (“Russia”), and that VEB was created by Russia. Id.

Thus, as of January 1, 2022, Prominvestbank was indirectly owned and

controlled through VEB by Russia. Id.

The same day as the February 25 Decision, and pursuant to it, DGF

issued a decision commencing Prominvestbank’s liquidation. Kostiukov Decl.

at ¶ 5. Once DGF began the liquidation process, the DGF Law1 operated to

strip VEB and/or Russia of any authority or control they might have had over

Prominvestbank, including by: (1) terminating all powers previously

belonging to Prominvestbank’s management and control bodies; and

(2) giving DGF authority to act on behalf of Prominvestbank, including by

1 As outlined in the Kostiukov Declaration and in a copy of the law attached to it (Dkt. No. 35-8),

as of April 1, 2022, the DGF Law “establishes the legal, financial, and organizational principles for

the functioning of the Deposit Guarantee System for Individuals, the authority of the Deposit

Guarantee Fund for Individuals, the procedure for payment by the Deposit Refund Fund, as well as

the relations between the DGF, the banks, the National Bank of Ukraine, the authority and

functions of the DGF to remove insolvent banks from the market and liquidate banks.” Kostiukov

Decl. at ¶ 7.

exercising the powers of the bank governing bodies, taking possession of the

bank’s property (including funds), controlling the disposition of the bank’s

assets and liabilities, and exercising all other powers necessary to effectuate

the liquidation. Id. ¶ 8. As a result, since the beginning of the liquidation

procedure on February 25, 2022, DGF has exercised the management and

control of Prominvestbank, and VEB has had no control over

Prominvestbank. Id.

The DGF Law also establishes DGF’s interest in the assets of

Prominvestbank. Specifically, Article 52 of the DGF Law states that “[f]unds

obtained as a result of the liquidation and sale of the bank’s property(s),

investment of the bank’s temporarily free funds in state securities shall be

directed by the DGF to satisfy the creditors’ requirements” in the priority set

forth in Article 52. Kostiukov Decl. at ¶ 9.

On March 3, 2022, Ukrainian President Zelensky signed a law requiring

that any Russian assets seized in connection with Ukraine’s nationalization

effort be “transferred to the State Budget of Ukraine and directed to the fund

for the elimination of the consequences of armed aggression” by Russia

against Ukraine. Kostiukov Decl. at ¶ 6.

On May 11, 2022, the National Security and Defense Council of Ukraine

issued a decision (the “May 11 Decision”) compelling the seizure of certain

“objects of property of the Russian Federation and its residents,” including

VEB’s 99.77% ownership interest in Prominvestbank. Kostiukov Decl.

at ¶ 10. The May 11 Decision was enacted by President Zelensky the same

day. Id. It tasked “[t]he Cabinet of Ministers of Ukraine, the [DGF] with the

participation of the National Bank of Ukraine to ensure the enforcement

seizure of the property rights specified in this decision of the Russian

Federation and its residents within ten days from the date of publication of

the Decree of the President of Ukraine on the implementation of this

decision.” Id.

Although the asset seizure was supposed to be effectuated within ten days

of the May 11 Decision, the actual transfer of assets did not occur until

several months later due to administrative and logistical issues. Kostiukov

Decl. at ¶ 11. Instead, on September 13, 2022, the Cabinet of Ministers of

Ukraine directed the seizure of Prominvestbank stock by means of

transferring VEB’s 99.77% ownership interest to the National Investment

Fund of Ukraine, a Ukrainian state enterprise (the “September 13 Order”).

Id. The September 13 Order provided, inter alia, that the Ukrainian

National Bank take all necessary actions to credit securities and domestic

government bonds forcibly seized and withdrawn pursuant to the May 11

Decision to the relevant accounts of Ukraine’s Ministry of Finance. Id.

A Statement of the Securities Account Status as of December 15, 2022

provides official confirmation from the Head of the Depository Department of

the Treasury and Investment Services Department of Ukraine that the

National Investment Fund of Ukraine owns 99.77% of the ownership

interests of Prominvestbank. Kostiukov Decl. at ¶ 13. Similarly, an extract

from the Unified State Register of Legal Entities, Individual Entrepreneurs,

and Public Organizations regarding Prominvestbank as of December 20, 2022

provides official confirmation from a Ukrainian government-operated registry

of the ownership of Prominvestbank. Id. ¶ 14. The extract states, in relevant

part, that there is no ultimate beneficial owner of Prominvestbank, and that:

[t]he reason for the absence is that 99.7726 percent of the shares of

[Prominvestbank] belong to the State of Ukraine in the form of the State

Enterprise “National Investment Fund of Ukraine” and there are no other

natural persons who meet the status of the Ultimate Beneficial Owner.

Id. ¶ 14.

2. Procedural History

Judgment Creditors filed this action on September 20, 2022 by registering

with this Court a November 5, 2020 default judgment entered in Judgment

Creditors’ favor in the United States District Court for the Northern District

of Texas in the amount of $138,418,741.00 (the “Default Judgment”).

Dkt. No. 1. The Default Judgment was issued against the three defendants

in the underlying proceeding: the Taliban, Al-Qaeda, and the Haqqani

Network. Id.

Also on September 20, 2022, Judgment Creditors filed an ex parte

emergency motion for writ of execution or in the alternative for writ of

attachment. See Dkt. No. 4. In the motion, Judgment Creditors sought to

execute the Default Judgment against Prominvestbank’s Blocked Assets

under the Terrorism Risk Insurance Act (“TRIA”). Id. The Blocked Assets,

which exceed $40 million, are held at a BNY Mellon location in Oriskany,

New York and have been blocked since March 22, 2022 in accordance with

certain sanctions regulations administered by the United States Treasury

Department’s Office of Foreign Assets Control. Dkt. No. 26 at ¶¶ 2-3. In

support of its motion, Judgment Creditors provided expert testimony stating

that Russia actively supports the Taliban and that Prominvestbank is a

subsidiary of the Russian government. See generally Dkt. No. 4-2 at 10–15.

On November 2, 2022, this Court issued an order (the “November 2

Order”) granting the Writ of Execution. See Dkt. No. 16. Based on Judgment

Creditors’ ex parte submissions, the Court found that it had subject matter

jurisdiction to conduct post-judgment execution proceedings, granted

Judgment Creditors’ motion, and found:

[T]hat Prominvestbank is an agency or instrumentality of the Taliban;

that blocked assets of Prominvestbank are held at the Bank of New York

Mellon in Oriskany, New York; and that those blocked assets are subject

to attachment and execution to satisfy the judgment in this matter

pursuant to TRIA and 18 U.S.C. § 2333(e).

Id. ¶¶ 1–3.

Accordingly, the Court directed the Clerk of Court to issue the Writ of

Execution. See id. { 4; Dkt. No. 17.

III. DISCUSSION

DGF moves to intervene in this action and to vacate the Writ of Execution.

The Judgment Creditors oppose both motions. The Court addresses each in

turn.

A. Motion to Intervene

1. Legal Standard

Intervention of right under Rule 24(a) requires that the proposed

intervenor: (i) file a timely motion; (11) show an interest in the litigation;

show that its interest may be impaired by the disposition of the action;

and (iv) show that its interest is not adequately protected by the parties to

the action. Hoblock v. Albany Cnty. Bd. of Elections, 233 F.R.D. 95, 97

(N.D.N.Y. 2005) (citing D'Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir.

2001) (cleaned up). Denial of a motion to intervene is proper if the putative

intervenor fails to meet any of these requirements. Jd. (citing D'Amato, 236

F.3d at 84).

For permissive intervention under Rule 24(b), the standard is somewhat

different. When considering a motion for permissive intervention under Rule

24(b), “a court must examine whether intervention will prejudice the parties

to the action or cause [undue] delay.” Hoblock, 233 F.R.D. at 98 (citations

omitted). “Additional relevant factors include the nature and extent of the

intervenors’ interests, the degree to which those interests are adequately

represented by other parties, and whether parties seeking intervention will

significantly contribute to full development of the underlying factual issues in

the suit and to the just and equitable adjudication of the legal questions

presented.” Id. (citations omitted).

In considering a motion to intervene, the Court must accept as true non-

conclusory allegations of the motion. Berroyer v. United States, 282 F.R.D.

299, 303 (E.D.N.Y. 2012) (citing Oneida Indian Nation of Wisc. v. New York,

732 F.2d 261, 265 (2d Cir. 1984)). The putative intervenor has the burden of

showing a right to intervene. Id. (citations omitted).

A district court possesses broad discretion in deciding both the timeliness

and overall merits of a motion to intervene, whether it be a motion for

intervention of right, or a motion for permissive intervention. Hoblock, 233

F.R.D. at 98 (citing United States v. City of New York, 198 F.3d 360, 364 (2d

Cir. 1999)).

2. Analysis

Upon review, DGF has satisfied the requirements for intervention under

either Rule 24(a) or Rule 24(b).

First, as for intervention of right under Rule 24(a), DGF has established

that its motion is timely. In determining timeliness, a court must consider

the totality of the circumstances, including: (i) how long the applicant had

notice of the interest before he made the motion to intervene; (ii) prejudice to

existing parties resulting from any delay; (iii) prejudice to the applicant if the

motion is denied; and (iv) any unusual circumstances militating for or against

a finding of timeliness. Hoblock, 233 F.R.D. at 98.

Each of the above applicable factors support the timeliness of DGF’s

motion. DGF was not a defendant in the Northern District of Texas

proceeding or in the instant proceeding, and the Judgment Creditors do not

allege it has any connection to the underlying acts giving rise to the Default

Judgment. To execute against Prominvestbank’s assets, the Judgment

Creditors filed an emergency ex parte motion with filings under seal. DGF

first received notice on November 15, 2022—which was eight weeks after

Judgment Creditors filed the application for writ of execution and almost two

weeks after the writ was issued—when BNY Mellon emailed the Writ of

Execution and the associated pleadings to Proposed Intervenor. DGF

retained the undersigned counsel on December 21, 2022, and the next day

provided notice to all counsel of record that Proposed Intervenor intended to

move by order to show cause to intervene and vacate the Writ of Execution.

Further, Judgment Creditors will not be prejudiced by the grant of DGF’s

motion to intervene. The assets Judgment Creditors seek are currently

blocked, so there is no risk that these assets will be dissipated while DGF

intervenes. On the other hand, Proposed Intervenor and Prominvestbank

would likely be prejudiced if DGF was not permitted to intervene. The Court

entered an ex parte order that Prominvestbank is an agency or

instrumentality of the Taliban; intervention will provide DGF an opportunity

to object to this order and the Writ of Execution.

Second, DGF has established that it has an interest in this litigation and

that such interest may be impaired by the disposition of the action.

Intervention requires a “direct, substantial, and legally protectable” interest

in the litigation. See Medequa LLC v. O’Neill & Partners LLC, 2022 WL

3364294, at *3 (S.D.N.Y. July 26, 2022). As noted, DGF is the designated

liquidator of Prominvestbank in accordance with Ukrainian law. See

Kostiukov Decl. at ¶ 7. Prominvestbank’s assets are currently subject to

liquidation, and this enforcement proceeding against its assets will impact

DGF’s ability to carry out its obligations. And, as DGF notes, courts have

routinely allowed liquidators to intervene in cases involving assets subject to

liquidation. See In re Reliance Grp. Holdings, Inc. Sec. Litig., 2004 WL

601973, at *1 (S.D.N.Y. Feb. 24, 2004) (permitting intervention by liquidator

of insurance company to challenge the ownership of certain insurance policies

and proceeds at issue); Zurich Capital Mkts., Inc. v. Coglianese, 236 F.R.D.

379, 385–86 (N.D. Ill. 2006) (holding that liquidator of a Bahamian company

could intervene as of right in action that threatened assets of the company it

was liquidating); United States v. All Assets Held at Bank Julius Baer & Co.,

959 F. Supp. 2d 81, 112–13 (D.D.C. 2013) (finding that liquidator of Antiguan

bank had standing to oppose forfeiture proceedings against assets held by the

bank prior to the liquidation because a bank liquidator “stands in the shoes of

the bank it represents and enjoys precisely the same rights and interests”).2

Finally, DGF has established that its interest is not adequately protected

by the parties. The burden to demonstrate inadequacy of representation is

“minimal.” Hoblock, 233 F.R.D. at 99. A proposed intervenor may rebut the

presumption of adequate representation by demonstrating that it has a legal

argument that “could not be equally asserted” by the existing parties.

Schwartz v. Town of Huntington Zoning Bd of Appeals, 191 F.R.D. 357, 359

(E.D.N.Y. 2000).

DGF serves as liquidator of Prominvestbank. Thus, it is well-situated to

object to the Writ of Execution. No existing party has the same interest in

2 Judgment Creditors’ argument that DGF’s interest in the proceeding is “remote, and dependent

upon four contingencies,” is unpersuasive. Judgment Creditors’ argument assumes that DGF needs

to establish an ownership right to the assets at issue. But Rule 24(a)(2) only requires an “interest

relating to the property or transaction which is the subject of the action.” Brennan v. N.Y.C. Bd. of

Educ., 260 F.3d 123, 130 (2d Cir. 2001) (emphasis added). DGF has demonstrated that under

Ukrainian law, it has an interest in the disposition of the Prominvestbank assets; this interest is

neither remote nor contingent.

Prominvestbank’s assets, nor could any existing party equally assert DGF’s

legal arguments on its behalf. To this end, BNY Mellon, a party to this

action, acknowledged that Prominvestbank is entitled to present its

arguments in its November 14, 2022 response to the Writ of Execution. See

Dkt. 26 at ¶ 5.

In any event, even if DGF had not satisfied the requirements for

intervention of right under Rule 24(a), it may permissibly intervene under

Rule 24(b). First, as for delay, Judgment Creditors do not appear to be in a

hurry themselves; after receiving the Default Judgment, they waited nearly

two years to commence this action, and have now sought an extension of the

Writ of Execution. Thus, granting the motion to intervene will not cause any

undue delay. Second, as noted supra, Judgment Creditors will not be

prejudiced by DGF’s intervention because the assets at issue are currently

blocked. Third, allowing DGF to intervene and introduce factual and legal

arguments in favor of vacating the Writ of Execution that no existing party

would raise permits a more robust and properly developed presentation of the

issues at stake.

Accordingly, as with intervention of right under Rule 24(a), DGF has

satisfied the requirements for permissive intervention under Rule 24(b).

In addition to arguing that DGF’s interest is too remote and contingent to

support intervention, Judgment Creditors challenge Proposed Intervenors’

motion on various other grounds. None of which are persuasive.

First, Judgment Creditors assert that DGF failed to comply with Rule 24

because it did not accompany its order to show cause with a pleading. But, in

this case, Judgment Creditors did not file a complaint to commence the

action, and so it is reasonable that DGF—which intervened as a defendant—

did not file an answer with its order to show cause. And even though DGF

did not attach a pleading, it clearly stated the relief it seeks and the grounds

justifying that relief in its memorandum of law in support of its order to show

cause. See Dkt. 35-3. Moreover, even Judgment Creditors appear to

acknowledge that courts have not strictly enforced the requirement that a

motion to intervene be accompanied by a pleading. See Dkt. 48 at 11 (citing

Cross Sound Cable Co., LLC v. Long Island Lighting Co., 2022 U.S. Dist.

LEXIS 15084, at *15 (E.D.N.Y. Jan. 27, 2022)).

Next, Judgment Creditors mount several attacks on DGF’s standing in

this action. The Court only need address the first—that DGF needed to

demonstrate standing in the first place. To be sure, “an intervenor of right

must demonstrate Article III standing when it seeks additional relief beyond

that requested by the plaintiff.” Gerschel v. Bank of Am., N.A., 2021 WL

1614344, at *3 n.8 (S.D.N.Y. Apr. 26, 2021) (emphasis in original) (quoting

Town of Chester, N.Y. v. Laroe Ests., Inc., 137 S. Ct. 1645, 1647 (2017))

(internal quotations omitted). But where a proposed intervenor “merely

intend[s] to oppose the relief that [plaintiff] requests … [t]here is no

additional relief for the Court to consider” and so the proposed intervenor

need not independently establish Article III standing. Id.

In this action, DGF does not seek relief beyond that requested by the

Judgment Creditors. Indeed, like the proposed intervenors in Gerschel, DGF

merely opposes the relief sought by Judgment Creditors (i.e., execution on

Prominvestbank’s assets). Accordingly, DGF does not need to independently

satisfy Article III, and Judgment Creditors’ remaining arguments concerning

standing must fail.

In sum, DGF has satisfied the requirements of both Rule 24(a) and Rule

24(b) and its motion to intervene in this action will be granted.

B. Motion to Vacate

DGF next moves to vacate the Writ of Execution on several grounds.3

Most notably, and dispositive here, DGF argues that TRIA does not apply

3 In addition to the grounds discussed infra, DGF argues that the Magistrate Judge erred in

determining that there was subject matter jurisdiction in this case. While these arguments may

have some force, it appears well-settled that federal courts have subject matter jurisdiction over

post-judgment execution and attachment proceedings. See, e.g., Weinstein v. Islamic Republic of

Iran, 609 F.3d 43,50 (2d Cir. 2010) ((It is “clear beyond cavil that Section 201(a) of the TRIA provides

courts with subject matter jurisdiction over post-judgment execution and attachment proceedings

against property held in the hands of an instrumentality of the judgment-debtor, even if the

instrumentality is not itself named in the judgment”).

because Ukraine nationalized Prominvestbank before Judgment Creditors

applied for the Writ of Execution.

Section 201(a) of TRIA provides:

Notwithstanding any other provision of law, ... in every case in which a

person has obtained a judgment against a terrorist party on a claim based

upon an act of terrorism, or for which a terrorist party is not immune

under section 1605(a)(7) … the blocked assets of that terrorist party

(including the blocked assets of any agency or instrumentality of

that terrorist party) shall be subject to execution or attachment in

aid of execution in order to satisfy such judgment to the extent of any

compensatory damages for which such terrorist party has been adjudged

liable.

TRIA § 201(a), Pub. L. No. 107–297, § 201(a), 116 Stat. 2322, 2337–40 (2012)

(codified at 28 U.S.C. § 1610 note) (emphasis added).

Thus, to attach property pursuant to TRIA, a party must show: (i) that the

property at issue constitutes “blocked assets;” and (ii) that the property

belongs to a “terrorist party” or an “agency or instrumentality of that

terrorist party.” See Kirschenbaum v. 650 Fifth Ave., 257 F. Supp. 3d 463,

515 (S.D.N.Y. 2017), vacated and remanded sub nom on unrelated grounds,

In re 650 Fifth Ave & Related Properties, 934 F.3d 147 (2d Cir. 2019), and

rev’d and remanded sub nom, Havlish v. 650 Fifth Ave. Co., 934 F.3d 174 (2d.

Cir. 2019). DGB challenges only the latter factor.

Courts assess whether an entity is an agency or instrumentality of a

terrorist party at the time that a party commences an enforcement

proceeding against the entity. See Kirschenbaum, 257 F. Supp. 3d at 518

n.60; Harrison v. Republic of Sudan, 2017 WL 946422, at *5– 6 (S.D.N.Y.

Feb. 10, 2017). “The question of whether the property is an instrumentality

… at that time is the relevant issue.” Kirschenbaum, 257 F. Supp. 3d at 518

n.60.

In its November 2 Order, the Court found that “Prominvestbank is an

agency or instrumentality of the Taliban” based on Judgment Creditors’ ex

parte submission asserting that Prominvestbank is a subsidiary of Russian-

owned VEB, and that Russia “uses VEB and its subsidiaries, including

Prominvestbank” to provide “material support to the Taliban in

Afghanistan.” Dkt. No. 16 ¶ 3. Accordingly, the question is whether VEB

(and, thus, indirectly Russia) owned Prominvestbank as of September 20,

2022—the date Judgment Creditors commenced this action and applied for

the Writ of Execution.

With the benefit of a more complete record, this question must now be

answered in the negative. As DGF highlights, in spring 2022 following the

Russian invasion, the Ukrainian government revoked Prominvestbank’s

banking license, directed its liquidation, and ultimately nationalized the

bank. See generally Kostiukov Decl. at ¶¶ 4–8. Moreover, around the same

time, Ukraine adopted laws restricting Russian creditors from executing

against Prominvestbank’s assets. Id. ¶ 6. As a result, by the time Judgment

Creditors applied for the Writ of Execution on September 20, 2022, VEB had

no control over or access to Prominvestbank’s assets, and Ukrainian law no

longer recognized VEB as having any ownership interests in

Prominvestbank. Id. ¶ 12. Instead, Ukraine recognized Prominvestbank as

owned by the National Investment Fund of Ukraine due to Ukraine’s seizure

of Russian assets, which was part of its broader campaign of resistance to

Russia following its invasion. Id. Indeed, Ukraine’s official government

records reflect that VEB’s 99.77% ownership interest in Prominvestbank now

belongs to the National Investment Fund of Ukraine. Id. ¶ 13.

Judgment Creditors respond that this Court is not empowered to recognize

Ukraine’s nationalization of Russian assets. This argument is unavailing.

As the Second Circuit long ago observed, courts have “discretion whether or

not to respect a foreign act of state affecting property in the United States,”

but will give effect to acts of state “only if they are consistent with the policy

and law of the United States.” Republic of Iraq v. First Nat. City Bank, 353

F.2d 47, 50–51 (2d Cir. 1965).

Given the United States’ clearly articulated and broad support for

Ukraine’s sovereignty in the face of Russia’s invasion, and given that

recognizing Ukraine’s nationalization of Prominvestbank aligns with the

United States’ interests in supporting Ukrainian war efforts, Ukraine’s

nationalization of Prominvestbank is certainly consistent with this country’s

policy goals. Accordingly, the Court may properly exercise—and does

exercise—its discretion to recognize the Ukrainian law nationalizing

Prominvestbank’s assets.

Judgment Creditors’ attack of the record evidence is similarly

unpersuasive. Judgment Creditors assert that there is no proof that control

of Prominvestbank actually changed hands. But, as noted, DGF submitted

evidence that Ukraine passed laws prior to September 20, 2022 in order to

nationalize Prominvestbank. See generally Kostiukov Decl. at ¶¶ 4–8. Thus,

by the time Judgment Creditors sought the Writ of Execution, Russia no

longer owned or controlled Prominvestbank or its assets, id. ¶ 8, and

Prominvestbank was not an agency or instrumentality of Russia. And while

it is true that the final administrative step of transferring VEB’s shares to

the National Investment Fund of Ukraine did not occur until December 15,

2022, Judgment Creditors do not explain why this would compel the Court to

disregard Ukrainian-passed laws nationalizing Prominvestbank prior to

September 20, 2022.

The November 2, 2022 Writ of Execution concluded that Prominvestbank

is an “agency or instrumentality” of the Taliban and that its Blocked Assets

were subject to attachment and execution under TRIA. This was based solely

upon Judgment Creditors’ ex parte submissions. In view of the newly-

developed record, that conclusion can no longer stand. The Writ of Execution

must be vacated.

IV. CONCLUSION

Therefore, it is

ORDERED that

1. Deposit Guarantee Fund’s motion to intervene as a defendant in this

action is GRANTED;

2. Deposit Guarantee Fund’s motion to vacate the Writ of Execution

issued on November 2, 2022 is GRANTED;

3. The Writ of Execution issued on November 2, 2022 is VACATED;

4, The assets in Prominvestbank’s Oriskany, New York BNY Mellon

account remain blocked.

IT IS SO ORDERED.

U.S. District Judge

Dated: July 12, 2023

Utica, New York.

20