In Virginia, ex rel. FX Analytics v. The Bank of New York Mellon, Case No. CL-2009-15377, 2012 Va. Cir. LEXIS 40 (May 1, 2012), the Commonwealth intervened in a FATA qui tam action against the Bank of New York Mellon for submitting reports of foreign currency trades that were not related to actual trades on behalf of state and local public pension funds.
The Attorney General alleged that the bank conducted trades on behalf of the pension plans at the most advantageous price during a trading day, reported the trade to the state based on the day’s least advantageous price, and retained the difference. The Attorney General sought $900 million in damages and penalties. The lawsuit alleged that BNYM retained the difference. A Virginia Circuit Court dismissed the lawsuit, ruling that the bank’s accounting statements were not “claims” under the FATA because they were not requests for payment and were instead records of past transactions. Id. at *13. After the court dismissed the Commonwealth’s case, the Attorney General entered into a settlement with the bank, under which the bank will continue to service the public pension plans at lower fees, and will pay $1.1 million to the relator in the case.