Ken Caruso's practice focuses on civil and criminal litigation and investigations involving international and transnational matters.
With more than 30 years of private and public legal experience, Ken is able to offer clients knowledgeable representation on a wide array of white collar and commercial litigation issues. Adept at navigating the most technically complex of cross-border cases, he has dealt with matters involving countries from across the globe.
Since entering private practice, Ken has developed a strong track record of helping clients to deal with internal corporate and cross-border asset recovery investigations relating to the proceeds of fraud, insolvency and commercial bribery. He also has significant experience of supporting clients faced with international criminal charges and related civil litigation. These include cases arising under the USA PATRIOT Act, US Treasury Office of Foreign Assets Control (OFAC) regulations, the Foreign Corrupt Practices Act (FCPA) and the Racketeer Influenced and Corrupt Organizations (RICO) Act.
Another area of particular strength for Ken is supporting clients faced with proceedings related to financial and economic sanctions, including those administered by OFAC against Iran, Iraq and Cuba. Committed to offering his clients comprehensive support, he has—unusually for lawyers in this area—both advised on and successfully litigated these issues.
Ken's deep, yet wide-ranging understanding of his field is also based on his distinguished public service before entering private practice. As an Assistant US Attorney for the Southern District of New York, he prosecuted all phases of federal criminal litigation. He also served as Deputy Associate Attorney General at the US Department of Justice (DOJ) headquarters in Washington, D.C., where he helped to supervise and coordinate the work of the Criminal Division and the FBI.
Ken also offers clients the benefit of his experience of both conducting and advising clients on corporate internal investigations and cross-border, asset-recovery investigations relating to the proceeds of fraud, insolvency, money laundering and bribery.
On the civil side, he has significant experience of dealing with recurring issues in international and transnational commercial litigation. He is also a leading authority on discovery and evidence-gathering in the US for use in foreign proceedings, as well as on litigation involving enforcement of US-issued subpoenas and writs of execution.
'Hausler v. Republic of Cuba, Docket No. 12-1264 (US Court of Appeals for the Second Circuit)' (argued Feb. 11, 2013), and 'Hausler v. Republic of Cuba, 08-20197 (S.D. Fla.)'
In an interpleader proceeding in the Southern District of New York, a judgment creditor of the Republic of Cuba sought to enforce the judgment against certain electronic funds transfers (EFTs) blocked pursuant to OFAC regulations. Ken represented a foreign bank that made claims to the same blocked EFTs. The case presented questions as to whether the Terrorism Risk Insurance Act (TRIA) preempts Article 4-A of the Uniform Commercial Code (UCC), whether TRIA is unconstitutional under the Takings Clause of the Fifth Amendment and whether TRIA has a retroactive effect. A related proceeding in the Southern District of Florida involved subject matter jurisdiction under the Foreign Sovereign Immunities Act and standing to challenge the judgment as void for lack of such jurisdiction.
'Bank of New York v. Norilsk Nickel, 14 A.D.3d 140, 789 N.Y.S.2d 95 (1st Dep't 2004),' appeal dismissed, 8 N.Y.3d 918 (2007)
Norilsk Nickel was an interpleader proceeding involving EFTs blocked pursuant to OFAC sanctions against the former Yugoslavia and later attached pursuant to private civil process. The case raised the question of title to the EFTs, whether the OFAC regulations preempted UCC Article 4-A and the constitutionality of UCC Article 4-A. On appeal after remand, the Appellate Division awarded the full amount of damages sought, including attorney's fees. 'Bank of New York v. Norilsk Nickel, 26 A.D.3d 201, 810 N.Y.S.2d 32 (1st Dep't 2006)'.
'In re: Terrorist Attacks on September 11, 2001, 714 F.3d 659 (2d Cir. 2013)'
Ken counseled an individual defendant in consolidated actions arising from the 9/11 attacks, and won dismissal for lack of personal jurisdiction. The case also involved issues arising under the Anti-Terrorism Act, the Alien Tort Statute, RICO and other federal statutes.
'Morpheus Capital Advisors LLC v. UBS AG, 105 A.D.3d 145, 962 N.Y.S.2d 82 (1st Dep't 2013)' and 'Sup. Ct. N.Y. Co.'
Ken defended the client in litigation seeking a "success fee" for a transaction between UBS and the Swiss National Bank arising out of the financial crisis of 2008. The case involved the legal effect of the government interventions to halt the financial crisis, the question being whether a regulated entity can breach a private contract when that entity cooperates with the government, the doctrine of frustration of purpose and related issues.
'Deutsche Bank AG v. Vitro Envases Norteamérica, S.A. de C.V. ("VENA"), et al., (Sup. Ct. N.Y. Co. 2010)'
Ken conducted litigation against VENA, a Mexican company listed on the New York Stock Exchange. The case involved defaults on derivative swap transactions totaling more than US$29 million. The issues included illegality and unconscionability under the Commodity Exchange Act, choice of law, and issues of Mexican law and New York public policy. Ken argued Deutsche Bank's motion for summary judgment, which the court granted in April 2010.
'Goldman v. BP Plc, No. 3:06-cv-260, 2007 U.S. Dist. LEXIS 97286 (D. Alas. Sept. 18, 2007),' and 'In re BP Prudhoe Bay Royalty Trust, No. 4775 (Del. Chan. 2009)'
Ken defended a client in litigation and conducted an investigation, on behalf of the Bank of New York Mellon (BNYM), as trustee for the holders of certain publicly-traded securities into potential claims arising out of the shutdowns of the trans-Alaska oil pipeline system at Prudhoe Bay, Alaska, in March and August 2006. He negotiated a settlement, which called for BP to pay the current unitholders more than 99 cents on the dollar and to reimburse BNYM in full for its costs, including attorney's fees. In October 2009, Ken argued a motion to approve the settlement, which, over the objection of a former unitholder, the Delaware Chancery Court granted in a ruling from the bench.
"The Deep Pocket – How Financial Institutions Are Implicated as Accessories to Fraud", Oct. 2012: 23rd Forum, Fraud, Asset Tracing and Recovery, Miami
"U.S. Sanctions Against Iran: What They Mean for Foreign Banks and Companies", June 2012: Moscow
"Dodd-Frank Whistleblowers – The New Rules", Sept. and Dec. 2010: New York
Electronic Funds Transfers – Disruption for Banks, 26 International Financial Law Review 53, May 2007
Blocked Wire Transfers: Can Funds Be Attached? Who Has Title?, Journal of Payment Systems Law 156, 2005, (co-author)