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UBS: A Model for Compelled Production of Foreign Evidence of U.S. Crimes
Last August, the U.S. Department of Justice (DOJ) and UBS AG (UBS) ' the world's largest manager of wealth and Switzerland's biggest bank ' narrowly avoided a long-awaited showdown in federal court in Miami, FL. At stake were the U.S. interest in enforcing its criminal tax laws and Switzerland's interest in enforcing its storied bank secrecy laws. United States v. UBS AG, Case No. 09-20423-CIV-GOLD/MCALILEY (S.D.F.L.). The case was settled largely through inter-governmental negotiations in which UBS agreed to turn over the identities and account records of approximately 4,450 of its U.S. clients. These account holders meet several fact patterns described in an annex to the settlement agreement that is filed with the court under seal. If the IRS receives information on 10,000 UBS account holders through its Voluntary Disclosure program or other means before UBS satisfies its obligations under the settlement agreement, the IRS has agreed to withdraw the John Doe summons.
UBS's production of core information previously protected by Swiss bank secrecy reflects the strong likelihood that U.S. criminal enforcement would have trumped foreign law in the district court. Counsel representing foreign entities should take note.
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