Case 1:08-cv-05689-PKC Document 69 Filed 03/13/12 Page 1 of 5
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`______________________________________________________-------------x
`
`AMIDAX TRADING GROUP, on behalf of itself and
`all others similarly situated,
`
`USDSSDNY
`DOCUJVE~NT
`
`"
`
`Plaintiff,
`
`08 Civ. 5689 (PKC)
`
`MEMORA1\1)UM
`AND
`ORDER
`
`-against­
`
`S.W.LF.T. SCRL, S.W.I.F.T. PAN-AMERICAS, U'JC.,
`S.W.I.F.T., INC., JOHN SNOW, in his personal
`capacity, STUART LEVEY, in his personal and
`professional capacities, UNITED STATES
`DEP ARTMENT OF THE TREASURY, GEORGE W.
`BUSH, in his personal capacity, BARACK H.
`OBAMA, in his professional capacity, CENTRAL
`INTELLIGENCE AGENCY, RICHARD CHENEY, in
`his personal capacity, JOSEPH R. BIDEN, JR., in his
`professional capacity, GEORGE TENET, in his
`personal capacity, MICHAEL HAYDEN, in his
`personal capacity, LEON E. PANETTA, in his
`professional capacity, HENRY M. PAULSON, JR., in
`his personal capacity, and TIMOTHY F. GEITHNER,
`in his professional capacity,
`
`Defendants.
`-------------------------------------------------------------------x
`
`P. KEVIN CASTEL, District Judge:
`
`Amidax Trading Group ("Amidax") has filed an "emergency motion" for
`
`preliminary injunction, which would restrain the government from complying with an agreement
`
`with the European Union that requires the destruction of certain data that the government
`
`obtained as part of the Terrorist Finance Tracking Program (,TFTP"). The plaintiff's case was
`
`long-ago dismissed, and the dismissal was affirmed on appeal. Plaintiff's hopes are pinned on its
`
`yet-to-be-filed petition for rehearing with a suggestion of rehearing en bane, or, perhaps, a
`
`petition for a writ of certiorari.
`
`

`
`Case 1:08-cv-05689-PKC Document 69 Filed 03/13/12 Page 2 of 5
`
`This Court begins with the procedural history of this action. Amidax commenced
`
`this action on June 23,2008. After full briefing by the parties, this Court issued a Memorandum
`
`and Order on February 13,2009, which dismissed the action for lack of subject matter
`
`jurisdiction because the plaintifflacked standing. Amidax Trading Group v. S.W.I.F.T. SCRL,
`
`607 F. Supp. 2d 500 (S.D.N.Y. 2009). Plaintiff moved for reconsideration, and the motion was
`
`denied. Amidax Trading Group v. S.W.I.F.T. SCRL, 08 Civ. 5689 (PKC), 2009 WL 1110788
`
`(S.D.N.Y. Apr. 23,2009). Thereafter, this Court thereafter granted plaintiffs motion for an
`
`extension of time to file a notice of appeal. (Docket # 61.) On July 31,2009, plaintiff filed its
`
`notice of appeal from the Clerk's Judgment, which had been entered on February 17,2009.
`
`(Docket # 35, 62.)
`
`In the Court of Appeals, plaintiff successfully moved for an extension of time to
`
`file its brief. Amidax Trading Group v. S.W.I.F.T. SCRL, Cnited States Court of Appeals,
`
`Second Circuit, No. 09-3293, Order ofOcL 28,2009. It also successfully moved for an
`
`extension of time to file its reply brief. Id., Order of Feb. 24,2010. In a unanimous ~ curiam
`
`opinion, a panel of the Circuit affirmed the district court's grant of the motion to dismiss.
`
`_F.3d _,2011 WL 6317466 (2d Cir. Dec. 19,2011). Judgment was entered by the Clerk of
`
`the Court of Appeals the same day as the opinion.
`
`On February 6,2012, plaintiff moved for an extension of time to file its petition
`
`for rehearing with a suggestion of rehearing en bane. The time to petition for rehearing was
`
`extended to March 2,2012. No. 09-3293, Order of Feb. 8,2012. Plaintiff filed and was granted
`
`a second extension on its petition for rehearing to April 17, 2012. Id., Order of March 2, 2012.
`
`The Cnited States, in a filing with the Court of Appeals dated February 17,2012,
`
`informed the plaintiff that a June 28, 2010 agreement between the United States and European
`
`2
`
`
`

`
`Case 1:08-cv-05689-PKC Document 69 Filed 03/13/12 Page 3 of 5
`
`Union obligated the United States to delete by July 20,2012 data transmitted pursuant to the
`
`TFTP, and that in order to comply with the agreement, the Treasury Department would begin
`
`deleting data on March 20, 2012. 1 On February 28, 2012, plaintiff filed motions in both this
`
`Court and the Court of Appeals for a preliminary injunction to preserve evidence that may be
`
`discoverable in the event that the now-affirmed judgment ultimately were to be vacated and the
`
`case revived.
`
`"In order to justify a preliminary injunction, a movant must demonstrate 1)
`
`irreparable harm absent injunctive relief; 2) either a likelihood of success on the merits, or a
`
`serious question going to the merits to make them a fair ground for trial, with a balance of
`
`hardships tipping decidedly in the plaintiffs favor, and 3) that the public's interest weighs in
`
`favor of granting an injunction." Metro. Taxicab Bd. of Trade v. City ofN.Y., 615 F.3d 152,
`
`156 (2d Cir. 2010) (citation and quotation marks omitted). "When, as here, the preliminary
`
`injunction will affect government action taken in the public interest pursuant to a statutory or
`
`regulatory scheme, it should be granted only if the moving party meets the more rigorous
`
`likelihood-of-success standard." Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir.
`
`2011 ) (quotation marks omitted).
`
`Plaintiff has not demonstrated that there is a probability of success on its petition
`
`for rehearing, its suggestion of rehearing en banc or its petition for a writ of certiorari. The
`
`reasoning set forth in the decisions of this Court and the Court of Appeals dispels the claim of a
`
`likelihood of success on further review. Plaintiff has made no showing that these rulings were
`
`likely erroneous, and no intervening case law is cited that calls the decisions into doubt.
`
`I A June 28, 2010 press release concerning the Agreements appears on the European Union website. See
`http://www .consilium.europa.euluedocs/cms _ Data/docs/pressdatalEN/foraff!115518.pdf. The text of the 2010
`Agreement is posted on the U.S. Treasury website.
`http://treasury.govlresource-center/terrorist-illicit­
`finance/Terrorist -F inance-TrackinglDocuments/F inal-TFTP-Agreement-Signed.pdf.
`
`3
`
`
`

`
`Case 1:08-cv-05689-PKC Document 69 Filed 03/13/12 Page 4 of 5
`
`As to irreparable harm, because, as discussed by this Court and the Court of
`
`Appeals, the plaintiff lacks standing, the plaintiff also has failed to establish irreparable harm.
`
`Also, its dismissed complaint only sought money damages for past violations, and an injunction
`
`against future violations. Thus, no injunctive relief sought in the action would affect the data.
`
`The loss of a claim for money damages is, itself, compensable by money damages.
`
`There is a public interest implication to plaintiffs application. A grant of the
`
`requested injunction would place the government in jeopardy of violating its agreement with the
`
`European Union. Such a breach may needlessly hamper the ability of the government to
`
`persuade the European Union or member states to assist in future terrorist tracking programs and,
`
`thereby, enhance the risk of harm to the public.
`
`Finally, while plaintiffs diligence as measured from the government's February
`
`17, 2012 filing is unquestioned,2 it has not been diligent either in the district court or the court of
`
`appeals in bringing this case promptly to a final non-reviewable order. It sought extensions of
`
`time to file a notice of appeal, its opening brief on appeal, its reply brief on appeal and, twice, its
`
`petition for rehearing. This Court assumes that in each instance there were good reasons for
`
`doing so and that the government did not oppose any such application. That said, it does not
`
`demonstrate a resolute commitment on the part of the plaintiff to bring this case to a "speedy"
`
`conclusion. Rule 1, Fed. R. Civ. P. Further delay, with an injunction in place, would exacerbate
`
`the public interest concerns outlined above.
`
`Motion denied.
`
`2 Plaintiff makes no claim that the existenee of the Agreement with the European Union could not have been learned
`with the exercise of reasonable diligence.
`
`4
`
`
`

`
`Case 1:08-cv-05689-PKC Document 69 Filed 03/13/12 Page 5 of 5
`
`SO ORDERED.
`
`~/M
`
`7P.KeVi11CaStC1
`United States District Judge
`
`Dated: New York, New York
`March l3, 2012
`
`5