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ASG strongly objects to BoH motion for injunction

fili@samoanews.com

The American Samoa Government has voiced its strong opposition to the Bank of Hawai’i’s motion for injunctive relief filed with the federal court in Honolulu, which has asked the court to prohibit or compel to stop ASG from instituting or continuing any proceedings before the High Court of American Samoa with respect to the more than $800,000 deposited at the federal court registry.

BoH’s motion will be heard today before U.S. District Court Judge Leslie E. Kobayashi, who last week provided its inclination concerning the motion, and asked any opposition to address whether the federal court has authority to enjoin ASG from proceeding in the ASG v. BoH case in the High Court and if it does, whether BoH has established that it is likely to succeed on the merits of the local case, and that issuing an injunction is in the public interest.

ASG argued in its 16-page opposition motion that the U.S. Supreme Court has noted there is a national policy forbidding federal courts from staying or enjoining pending state court proceedings except under special circumstances.

Additionally, ASG is engaged in an ongoing civil enforcement action brought in its sovereign capacity to safeguard the fiscal integrity of American Samoa law. Therefore, ASG action is not subject to interference by a federal court.

ASG also pointed out that there are no federal questions at issue in the proceedings but it’s clear from the High Court’s preliminary injunction that the High Court is willing and able to provide an opportunity and more than adequate forum in which to address federal questions if needed.

And citing a provision of federal code, ASG argued there are no Acts of Congress expressly authorizing the federal court to stop ASG from enforcing the laws of American Samoa.

MERITS

ASG said the High Court has ruled in its preliminary injunction in the ASG v. BoH case that “ASG is likely to succeed" on the merits of the case while BoH is not likely to succeed. Additionally, review of particular issues before the High Court also indicate that BoH is not likely to succeed says ASG.

Moreover, ASG argues, a review of the facts indicates that BoH violated American Samoa law by garnishing ASG funds without prior approval of the governor and the Fono.

Following a writ of execution issued by the federal court, BoH froze more than $800,000 in an ASG account, to be paid to Honolulu-based Marisco Limited, who succeeded in a federal suit against the territorial government.

PUBLIC INTEREST

ASG contends that the “public interest” at issue in the ASG v. BoH “is the public interest of the people of American Samoa who have a fundamental interest in seeing the laws of American Samoa enforced.”

Even if the federal court had the authority to issue an injunction in this matter, “enjoining the proceedings would prevent the ASG from acting on behalf of American Samoa people to safeguard the integrity of duly enacted American Samoa law,” it says.

“Clearly, the public interest of the American Samoa people is not served by an injunction” of the federal court, it added.

IRREPARABLE HARM

ASG said BoH had argued that irreparable harm can be found because its reputation and customers’ goodwill will be damaged unless an injunction is issued by the federal court.  However, BoH offers no evidence of any effect on its customers and/or potential customers, and claims that its reputation will be damaged and the goodwill of customers diminished are “purely speculative,” ASG countered.

ASG then addressed claims by BoH that stories published by Samoa News pertaining  to this case as well as the High Court, are “highly critical of BoH” and in one story “lambastes” the bank.

ASG said, “Nothing in the newspaper articles offered as exhibits suggests BoH is incompetent, dishonest or untrustworthy” and the stories “are based on the reporter’s review of [court] pleadings open to the public.”

Regarding the bank’s claimed that the governor vetoed two bills to fund local court judgements, ASG said this is irrelevant to the issue of reputation and goodwill.

“Speculative assertions of potential injury are not sufficient for a finding of irreparable harm and BoH has produced no evidence of injury to its reputation or goodwill,” said ASG.



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