ACH liability up for grabs as court finds against bank in second US cyber-heist suit

A Michigan court has found in favour of Experi-Metal in its $560,000 cyber-heist suit against Comerica Bank, contradicting a ruling last week in a separate small business ACH fraud case which came down on the side of the bank.

In the Experi-Metal case, Judge Patrick Duggan of the US District Court for the Eastern District of Michigan said that the bank should have done a better job of picking up the fraudulent transactions running from the company's accounts after its financial controller was duped into opening a malware-laden phishing e-mail.

In summing up, Duggan said "a bank dealing fairly with its customers, under these circumstances, would have detected and/or stopped the fraudulent wire activity earlier".

In a separate case heard in Maine last week, the presiding magistrate ruled that Ocean Bank was not responsible for the loss of around $345,000 from a business customer account following a similar cyber-attack.

With multiple cases of ACH wire fraud piling up in the US, the rulings leave the critical liability issues open to debate.

Comerica says it plans to file an appeal against the Michigan ruling, pushing the issue higher up the justice system to an appellate court, where the verdict will hold sway over future district court adjudications.

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Comments: (2)

Bruce Shirey - The Rinaldi Group - San Diego 17 June, 2011, 16:14

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It appears the Michigan judge has either common sense or attended business school and a few classes in logical thinking vs the now more apparent clueless Portland, ME judge. One would think if payments security is attempting to standardize using PCI, then acts of fraud would also have a set of standards or at least parameters. Perhaps Durbin ought to spend time protecting the consumers and businesses against blatant fraud and not intervening in transactional fees that ultimately get offset by the introduction of new fees in other areas. Just a thought!

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Ketharaman Swaminathan - GTM360 Marketing Solutions - Pune 20 June, 2011, 11:22

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This ruling applies to ACH, which is not a same-day settlement system. It's interesting to view its impact on realtime systems like Fed/CHAPS or near-realtime ones like FPS. Carrying out the required fraud detection checks takes a few minutes / hours, the payment misses the scheme roundtrip duration SLA (e.g. 2 hours in the case of FPS, a few seconds in the case of CHAPS) as a result. The bank is not guilty of wrongdoing but how will the court rule in case the corporate sues the bank for delaying the payment?

Worse still, what if banks sit on the payment and enjoy the float, acting out the pretense of carrying out fraud checks? They're clearly guilty of wrongdoing, but will it ever be possible to prove their guilt in any court of law?

By signing up with a bank, a corporate acknowledges the level of security provided and understands the level of concomittant risks involved. When the issue clearly lies on the corporate's side - like in this case where its Financial Controller opened a malware-laden email - a court-driven review of contractual roles and responsibilities can prove to be a double-edged sword.