3M Co. v. HSBC Bank USA, N.A.

3M Company (plaintiff) was a subcontractor on a project for the Turkish government (PTT). The project’s service agreement required 3M to post a $1 million letter of credit in favor of Vendeka Bilgi Teknolojileri Ticaret Ltd. (Vendeka), the prime contractor, as a performance guarantee. At 3M’s request, HSBC Bank USA, N.A. (defendant) issued a $1 million standby letter of credit in favor of the bank Turkiye Cumhuriyeti Ziraat Bankasi (Ziraat). The letter stated that Ziraat would issue a $1 million letter of credit to the bank Aktif Yatirim Bankasi (Aktif) and would request that Aktif issue a guarantee in favor of PTT for $1 million. The HSBC letter’s stated purpose was to guarantee Vendeka’s performance on the project. The HSBC letter originally provided that Ziraat could demand payment by certifying that Ziraat had received a demand for payment on Ziraat’s letter of credit to Aktif and that the demand was made due to the performance guarantee in the service agreement. However, at Ziraat’s request and with 3M’s approval, HSBC subsequently amended the letter to remove the reference to the service agreement. Instead, Ziraat could draw on the HSBC letter of credit if Ziraat certified that Aktif had demanded payment on Ziraat’s letter of credit. PTT subsequently replaced Vendeka with another contractor, which posted its own performance guarantee. Later, however, PTT made a demand on the Aktif letter posted to guarantee Vendeka’s performance. Aktif thus demanded payment on the Ziraat letter, and Ziraat demanded payment on the HSBC letter. 3M sought a preliminary injunction to prevent HSBC from paying, asserting that Ziraat’s demand was fraudulent.