By Rebecca San Juan
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By Rebecca San Juan
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Law: After bankruptcy, lawsuit, Woodbridge tries a turnaround.
By Helen Floersh
Woodbridge Group of Cos. in December made headlines from Southern California to South Florida after it filed for Chapter 11 protection and was subsequently sued by the Securities and Exchange Commission for allegedly running a billion-dollar Ponzi scheme.
Woodbridge founder Robert H. Shapiro is alleged to have squandered investor money, paying big returns to old investors using fresh money from new investors, in classic Ponzi-scheme fashion. He enjoyed a lavish life, too, the SEC claimed, blowing millions on limousine service, fine wine and big parties attended by such prominent Republicans as Karl Rove.
Law: New Board Plans to Restructure Woodbridge
But what’s happened since is unusual. Ponzi schemes usually collapse upon being exposed. But management at the real estate investment firm – situated in a two-story office building on Ventura Boulevard in Sherman Oaks – appear set to overhaul its operations and try to make good with its creditors. The company announced early last month that it had cut all ties with Shapiro (not to be confused with renowned Los Angeles attorney Robert L. Shapiro, cofounder of LegalZoom.com Inc. in Glendale).
As part of a deal reached with federal regulators Jan. 24 in U.S. Bankruptcy Court in Wilmington, Del., the company has appointed a new board of directors to hunt for a chief executive who will spearhead a strategy to recoup the $1.2 billion Woodbridge raised from more than 8,400 investors. Meanwhile, the SEC has called off its request for a receiver.
“This board will guide Woodbridge through a fair and transparent restructuring process focused on maximizing recoveries for investors,” Woodbridge said in an e-mail to the Business Journal. “After conducting a comprehensive review of assets and operations, this board will begin developing a plan of reorganization, which will determine how creditor recoveries are managed and what Woodbridge might look like after the restructuring process is completed.”
Woodbridge investors in the past were told that the company was putting their money into high-interest loans made to luxury real estate developers. The borrowers were actually shell companies owned and operated by Shapiro, the SEC alleged in its Dec. 22 complaint.
“Shapiro promised investors they would be repaid from the high rates of interest (earned) on loans the companies were purportedly making to third-party borrowers,” the SEC wrote.
He allegedly used teams of internal and external sales agents to sell the securities to investors, at least 2,600 of whom were South Florida-based retirees who invested in Woodbridge using money from their Individual Retirement Accounts, the SEC alleged. They were guaranteed monthly interest and dividends from the so-called “hard money” loans Woodbridge was making.
Woodbridge claimed it generated between 11 and 15 percent annual interest for short-term financing, 5 to 10 percent of which was returned to investors, according to the SEC. In addition, investors were told they would see gains from the sale of real estate properties purchased and developed by the company, the SEC said. In reality, only about $14 million in interest was paid to Woodbridge by third-party borrowers, the SEC claimed. Roughly $103 million of new investors’ money was used to pay monthly interest and dividends to existing investors, with another $265 million paid as principal. At the time of the lawsuit, $961 million in principal remained due, the SEC said.
“The claimed interest payments from the purported third-party ‘property owners’ … did not exist,” the lawsuit stated. “Payments …derived almost exclusively from funds Woodbridge received from other investors.”
However, some purchases were, in fact, made. The real estate to which the Woodbridge loans referred included nearly 200 properties, most of them in Aspen, Colo. and Los Angeles, none of which investors had any say in choosing. The L.A. purchases were conducted through the company’s subsidiary Mercer Vine and included the historic Owlwood estate in Holmby Hills, which once belonged to Sonny Bono and Cher, as well as several other luxury properties, news reports said. Others were vacant lots “that have sat undeveloped for years,” the SEC claimed.
Meanwhile, Shapiro spent upwards of $21 million in investors’ money on himself and his family, the SEC said, including $34,000 on limousine services and $600,000 on political contributions. A local newspaper in Aspen detailed the events he threw with prominent Republican politicians, including former White House Advisor and Deputy Chief of Staff Rove along with current Energy Secretary Rick Perry. Other expenses included $1.4 million on luxury retail items and $1.2 million in alimony, SEC documents said. “Shapiro treated himself to an exorbitant lifestyle, at the investors’ expense,” the SEC said.
Shapiro resigned from Woodbridge Dec. 1, according to company documents. Through a transition services agreement between an LLC Shapiro established in September and Woodbridge, he named himself as a “consultant” to the firm at a monthly fee of $175,000. The agreement was terminated by the start of the year; Woodbridge said in a Jan. 2 press release that it had removed him from all matters involving the company.
Woodbridge had appointed Lawrence Perkins of L.A. management consultancy Sierra-Constellation Partners to steer the company through bankruptcy as its chief restructuring officer, but on Jan. 19 announced that he had resigned as Woodbridge seeks out a new chief executive with “homebuilding experience.”
As part of the agreement reached Jan. 23 in bankruptcy court, the company has appointed a trio of directors – Richard Nevins, M. Freddie Reiss and Michael Goldberg to oversee the search. Nevins is an attorney from Riverside, while Reiss most recently served as senior managing director in the corporate finance division of business advisory firm FTI consulting’s L.A. offices. Goldberg is the co-chair of the fraud and recovery practice group at the Fort Lauderdale, Fla. offices of Akerman, a Nevada-based law firm.
Reorganization: Investors Wait for SEC Inquiry
The company also has formed committees to represent investors’ interests, according to a release from the SEC. In turn, the SEC has withdrawn its request for a court-ordered trustee and a receivership for Woodbridge’s assets.
Investors will have to wait until bankruptcy proceedings are further along to know whether they will be able to recover much of their money. The company’s ability to emerge from the scandal unscathed will depend on both on their willingness to remain patient while the company restructures itself as well as what the SEC finds during its ongoing investigation, explained Arnie Lacayo, a Miami attorney at the firm Sequor Law and who is unconnected to Woodbridge but who reviewed the case at the Business Journal’s request. He noted the fact that the company declared bankruptcy voluntarily before being sued by the SEC may complicate the matter.
“(These kinds of cases) don’t normally involve bankruptcy where the business can be reorganized, though it does happen,” Lacayo said. “You have these very powerful forces that are clashing (the SEC and the federal bankrupt- cy court) as to what should happen next.” An attorney for Shapiro could not be reached, though his legal representative previously told the Wall Street Journal that Shapiro “denies any allegation of wrongdoing and looks forward to defending himself in a court of law.” The SEC declined to comment apart from its remarks in public materials.
For now, it remains to be seen whether Woodbridge will have to sell off its assets or be able to continue operations. Lacayo said the SEC could move to shut down the enterprise if it is proven that it was primarily run as a Ponzi scheme.
“(Woodbridge) will need to show that investments were made over time and that there was independence by the people charged with running the company.” he explained. “Investigators will get at those facts pretty quickly.”
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By Carolina Bolado
The Southern District of Florida’s bankruptcy court has adopted guidelines for communication and cooperation between courts in cross-border insolvency matters that practitioners say will help courts efficiently handle the increasing number of Chapter 15 cases filed in the region as its ties to Latin America continue to strengthen.
In an order issued Feb. 1, Chief Judge Laurel Myerson Isicoff said the court would adopt the Judicial Insolvency Network’s guidelines for cooperation on Chapter 15 bankruptcies, making the district the third, after Delaware and the Southern District of New York, to implement the toolkit for cross-border cooperation.
“Together with the District of Delaware and the Southern District of New York, we have the vast majority of the Chapter 15 cases filed in the country, so it makes sense that at least in our jurisdictions that we would adopt these guidelines,” Judge Isicoff said.
The guidelines, created by JIN in late 2016, are meant to improve communication and cooperation between courts handling parallel bankruptcy proceedings. Courts that adopt the guidelines agree to accept orders made in proceedings in other jurisdictions, barring an objection by one of the parties. The guidelines also provide frameworks for holding joint hearings and for judge-to-judge communication.
“In some cases, you’re going to need a wrench; some will need a Phillips-head screwdriver, and some will need a hammer,” he said. “This is an opportunity to encourage more direct communication with each other.”
Under the guidelines, bankruptcy courts should encourage administrators of estates in parallel proceedings to work together. A bankruptcy judge should also share all orders, judgments, opinions, transcripts of proceedings and other court documents with his or her counterpart in a different jurisdiction, according to the guidelines.
The guidelines also lay out procedures for communications between courts by requiring notice of any judge-to-judge communication and allowing the parties to be present. In addition, they allow courts to authorize a party in a foreign proceeding to appear and be heard on a specific matter without making the party subject to that court’s jurisdiction for any other purpose.
After the guidelines were drafted, Singapore and the District of Delaware were the first jurisdictions to adopt them in early February 2017. The Southern District of Florida followed shortly thereafter, as did Bermuda, England, Wales and the British Virgin Islands. New South Wales in Australia agreed to the guidelines in September.
So far, the Southern District of Florida averages about two Chapter 15 cases per month, but it’s a number that is growing as Miami in particular deepens its ties with Latin America, according to Grossman.
This move by the Southern District of Florida’s bankruptcy court could encourage courts in Latin America to get on board, he said.
“Nobody in Latin America has passed it, but it’s coming,” he said. “It took them awhile to get Chapter 15, so baby steps.”
Already they appear to be moving in that direction. Two bankruptcy judges in Latin America, one in Sao Paulo, Brazil, and another in Buenos Aires, Argentina, joined JIN, though Grossman said it is not clear whether they have adopted the guidelines for cooperation. But the action by the judges marked JIN’s first foray into Latin America.
“Our best guess — but we are by no means certain — is that these individual judges would follow the guidelines in their own cases, but they are not able to have their courts adopt the guidelines,” Grossman said.
Judge Isicoff said that these communication and coordination issues have not come up in any Chapter 15 cases she has overseen, and her fellow judges on the bench reported no problems so far when they sat down to discuss whether to adopt the guidelines. But she said that didn’t mean it didn’t make sense for the court to get on board.
“Just because something hasn’t come up yet doesn’t mean it won’t come up, especially as more and more Chapter 15 cases get filed,” Judge Isicoff said. “We just felt it makes sense for us to be consistent with the Southern District of New York and the District of Delaware.”
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Latinvex recognizes the top foreign lawyers in Latin America
Edward H. Davis, Jr. was named among Latin America’s Top 100 Lawyers of 2018 by Latinvex. Those honored were evaluated on criteria such as recent track record on major deals and business, prominence of firm in Latin America, and rankings by third parties such as Chambers and Partners, Legal 500 and Thomson Reuters.
Davis received the distinction for his stellar work and extensive experience in the litigation and fraud areas.
By Douglas Thomson
An Australian court has become the latest to recognise Chilean liquidation proceedings in what is alleged to be the South American state’s first major Ponzi scheme dismantling, following courts in the US, UK and Isle of Man.
Justice Jacqueline Gleeson at the Federal Court of Australia’s New South Wales registry in Sydney recognised CP Legal partner Carlos Parada Abate as liquidator and foreign representative of the estate of Chilean businessman Alberto Chang Rajii, under Australia’s Cross-Border Insolvency Act in a ruling on 29 January.
She also recognised proceedings to liquidate Chang’s assets before the 15th Civil Court of Santiago as a foreign main proceeding under the Australia’s embodiment of the UNCITRAL Model Law. The court followed up with a notice to creditors on 2 February.
The recognitions follow a trio of similar decisions by courts in Florida, London and the Isle of Man over the course of September. The US Bankruptcy Court for the Southern District of Florida has also granted Chapter 15 recognition of separate Chilean proceedings liquidating Chang’s investment vehicle Onix, a company he co-founded with his mother in 2009.
Chang is accused of using Onix to defraud investors through a set of promissory notes guaranteed by what was in fact another Chang company, Grupo Arcano.
The US Securities and Exchange Committee has accused him of manufacturing an identity as an award-winning angel investor, holding himself out as an early Google financier with an MBA from Stanford University, who falsely told investors their money would be put into Silicon Valley companies like Uber and Snapchat.
Liquidator Parada has said in court filings that in fact Chang only invested a small part of the funds, using them to fund a lavish lifestyle for himself instead.
Onix went into compulsory liquidation in May 2016 after it defaulted on its liabilities to a Chilean creditor, with the Santiago court appointing Parada as its liquidator. The company had over US$120 million in liabilities to over 1,000 creditors at the time of its liquidation.
A year later, Chiang’s own estate was placed in compulsory liquidation by the 15th Civil Court of Santiago and Parada was appointed to oversee this case too.
Chang is now facing charges in Chile of fraud, money laundering and operating without a valid licence. He left Chile for Malta the month before Onix’s liquidation and although he was arrested there in December 2016, the Maltese courts have refused Chile’s request for his extradition. Chile has appealed that ruling.
In a service ruling in December, the Australian court described Chang’s current whereabouts as unknown, though he did then appear at a hearing relating to his extradition from Malta on 24 January. The court said he would be served through his personal email address and his Chilean legal counsel.
Parada was represented in the Australian proceedings by Sydney firm Arnold Bloch Leibler, and the hearings were attended by Sequor Law partner Edward Davis from Miami, his US counsel.
Davis says, “We are very happy to have obtained, along with local counsel, additional recognition for Mr Parada in Australia which will allow him to secure real estate, bank accounts and artwork that are believed to be worth more than AU$5 million [US$4 million] in value.”
Chang’s alleged personal spending on properties in Australia, the British Virgin Islands, Miami and London has instigated the global round of recognition proceedings for his Chilean liquidation.
Chang’s property on the territory’s Moskito Island was partially destroyed last year by Hurricane Irma. The asset is nevertheless among those in the territory being pursued by a companion BVI liquidation with Grant Thornton as liquidator and Parada as its largest creditor, as the BVI does not permit the recognition of foreign liquidators.
In the Federal Court of Australia
Counsel to Carlos Parada Abate (liquidator and foreign representative)
In the High Court of Justice of England and Wales, Chancery Division
Counsel to Carlos Abate Parada (liquidator and foreign respresentative)
Partner Jon Felce in London
In the United States Bankruptcy Court for the Southern District of Florida
In re: Alberto Samuel Chang Rajii
Counsel to Carlos Abate Parada (liquidator and foreign representative)
Founding shareholders Gregory Grossman and Edward Davis with partner Arnoldo Lacayo in Miami
In the Isle of Man
Counsel to Carlos Abate Parada (liquidator and foreign representative)
By Dominic Lawson
The Chief Bankruptcy Judge for the Southern District of Florida has ordered the adoption of the Judicial Insolvency Network’s (JIN) Guidelines on court-to-court communication and cooperation – making Florida the third US state to sign up to them.
Judge Laurel Myerson Isicoff made the administrative order on 1 February. Effective immediately, the order adopts 14 guidelines on communication and cooperation between courts in cross-border insolvency matters drafted by the JIN, a group of international judges who met for the first time in Singapore in October 2016.
The guidelines are designed to improve coordination and cooperation between courts presiding over international insolvency cases in a bid to enhance efficiency and effectiveness.
Gregory Grossman, a founding shareholder at Miami-based firm Sequor Law, which has filed more than two dozen Chapter 15 cases, tells GRR that the Southern District of Florida has the third most Chapter 15 filings in the United States, which “makes sense given Miami’s status as a gateway to Latin America and its significant ties to the Caribbean.”
“These guidelines should foster the continued cooperation between US Bankruptcy Courts and the insolvency courts of the rest of the world by adding a framework for even more direct communications,” Grossman says, adding that his firm welcomes their adoption.
The guidelines allow courts to communicate directly with each other and to give notice of proceedings to parties in other jurisdictions. They also state that courts should encourage cooperation between administrators of parallel proceedings on all aspects of a case.
The JIN Guidelines received the “most important overall development” award at the GRR Charity Awards in June.
On 1 February 2017, Singapore and the District of Delaware became the first jurisdictions to adopt the JIN guidelines. The Southern District of New York adopted the guidelines on 17 February and was followed by Bermuda in March. England and Wales adopted the guidelines in May, as did the BVI. New South Wales followed suit in September.
By Benjamin Clarke
One of the court-appointed liquidators of a “prominent” Argentine publishing company has filed for Chapter 15 recognition in Florida, in an effort to repatriate funds from a bank account held with Citibank in the US.
Co-liquidator Mario Risso, of Argentine firm Risso Plastina y Asociados, filed the petition before Judge Robert Mark in the US Bankruptcy Court for the Southern District of Florida on 24 January, requesting recognition as the foreign representative of Donnelley Argentina (DA).
DA is 98.47% owned by a company in Santiago that is a subsidiary of Chicago-headquartered communications network RR Donnelley.
According to the declaration Risso filed at court, DA filed a bankruptcy petition at the 19th Commercial Court of Buenos Aires in August 2014, claiming it was insolvent due “in part” to the Argentine economic crisis.
Counsel to Risso, Sequor Law partner Arnoldo Lacayo, tells GRR that although the economic crisis was the “primary driver” for the bankruptcy, there were other factors linked to the printing industry that predated the financial crisis.
Shortly after DA started the proceedings, Argentina’s then president Cristina Fernandez de Kirchner accused its US parent company of breaching anti-terrorism laws, according to the Chicago Tribune.
Kirchner allegedly said Donnelley had breached the laws because the shutdown of its Argentine subsidiary “will exacerbate her country’s economic woes”. Argentina’s federal tax authority also called for the arrest and imprisonment of DA’s directors, accusing the company of committing acts of fraud.
The Buenos Aries court appointed Riso’s firm as co-liquidator, together with another Argentine outfit, Rego Saavedra, represented by Ana Rego and Maria Saavedra.
During their investigation into the assets and liabilities of DA, the liquidators discovered that the company held a bank account with Citibank in the US. On 13 October, the Argentine court authorized them to take action in the US to recover any funds.
Risso filed the Chapter 15 petition to enable the liquidators to “communicate with Citibank” regarding the account, and “take steps to repatriate the funds to the foreign proceeding”.
He told the court he had satisfied each of the requirements for recognition under Chapter 15, and requested a stay against any action concerning DA’s estate.
Judge Mark has listed a recognition hearing to take place on 20 February.
In the United Bankruptcy Court for the Southern District of Florida
In re R.R. Donnelley Argentina, S.A.
Judge Robert Mark
Counsel to the foreign representative
• Sequor Law
• Risso Plastina y Asociados
Mario Risso in Buenos Aires
Wealthy men are cheating on their wives—with their accountants and lawyers. They carry on these affairs in exotic locales known for banking secrecy and regulations that make it possible to hide billions of dollars in marital assets.
Wealthy men are cheating on their wives—with their accountants and lawyers. They carry on these affairs in exotic locales known for banking secrecy and regulations that make it possible to hide billions of dollars in marital assets. Even the most financially sophisticated wives and their divorce lawyers are often unable to keep up with the growing asset protection industry and the ruthless men to whom they cater. Combating this trend, divorce lawyers and defrauded ex-wives have turned to lawyers who specialize in piercing the opaque world of offshore companies and trusts to recover assets from high net worth individuals and those who assist them.
The release of the “Panama Papers” and “Paradise Papers” exposed much of the “wealth management” industry and its clientele as co-conspirators in a high-stakes shell game to conceal trillions of dollars of assets from taxing authorities, corrupted government regimes, creditors and, increasingly, the clients’ own spouses. In “Capital Without Borders: Wealth Managers and the One Percent,” Brooke Harrington notes that “through wealth managers’ skillful use of tools such as trusts, foundations and corporations, the game of ‘now you see it, now you don’t’ can go on almost indefinitely …”
Many firms now advertise “pre-divorce planning” services designed to transfer assets out of a spouse’s reach. These schemes may place marital assets into offshore companies and trusts in which the divorcing wife receives a one-half ownership interest, but no right to distributions. Then, while the ex-husband is drawing “consulting fees,” his ex-wife is handed a large year-end tax liability with no ability to pay it. The scheme concludes when the ex-husband disingenuously offers to buy the company interest back and pay the taxes—all at a fraction of what his ex-wife was entitled to receive.
In these divorce cases, trusts, companies and other entities maintained by the husband to hold assets should be primary subjects of inquiry. Legitimate estate and tax planning does exist and most practitioners in the field are honest brokers of a vital service. However, for the unscrupulous, “estate planning” is but a euphemism to describe asset concealment to defraud unsuspecting wives and others. Once the seeds of marital discord have been sown, if the wife has not been involved in these transactions or communications, it is more than likely that the husband enlists the wealth management professionals to divest his wife from marital property. Divorce counsel should therefore explore the husband’s accounting and legal engagements, however brief or seemingly minor.
Individuals Enlisted in the Schemes Are Often Key to Successful Settlements
Men who engage in these schemes often fit a standard profile—narcissistic, with an inflated sense of self-importance and a complete lack of empathy. They are often highly intelligent and believe passionately that they are doing nothing wrong. They do not fight over money, for there is more than enough marital wealth for everyone to live comfortably. They engage in protracted litigation to exercise power over and to punish their ex-wives, to exert control over their children and to secure loyalty from their family members. However, because their schemes require trusted individuals to act as nominees for entities or accounts, these men often enlist friends and family members to carry out their asset concealment activities.
One such husband pursued refused to pay child support and to satisfy a judgment for property division for millions of dollars. He was pursued through two jurisdictions before he settled abroad where his conduct was essentially legally condoned. He showered his children with lavish gifts, and insisted that they come to visit him before he would pay for educational expenses and even regular dental cleanings. He threatened to miss college graduations and other milestones in his children’s lives before he would pay his ex-wife as ordered by the court. He was confident that he and his family had squirreled away the marital wealth in an impenetrable offshore structure. However, by bringing claims against those that facilitated the scheme, which brought these seemingly more rational actors to the bargaining table, a significant global settlement was obtained.
The bottom line is that the world does not end at a country’s borders. There are methods of pursuing offshore assets that are focused on flipping the leverage of the seemingly impenetrable offshore structure and forcing participants in the scheme to essentially “buy the judgment.” Divorce lawyers should reach out to networks of specialized asset recovery lawyers for assistance in navigating the underworld of global asset protection schemes.
Edward H. Davis Jr. is a founding shareholder at Sequor Law who focuses his practice on the representation of individual, corporate and institutional victims of fraud throughout the world and executive director of ICC FraudNet. He may be reached at email@example.com
Nyana Miller is an attorney at Sequor Law who focuses her practice on international asset recovery and financial fraud. She may be reached at firstname.lastname@example.org
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Who’s Who Legal: Thought Leaders 2018 brings together the insight, expertise and wisdom of some of the world’s foremost lawyers in a single book.
This year’s edition features Q&As with 67 eminent practitioners across 22 practice areas. These lawyers obtained the highest number of nominations from peers, corporate counsel and other market sources in our most recent research cycle.
Questions and Answers:
Edward H Davis, Jr, a founding shareholder of the international law firm Astigarraga Davis, heads the firm’s asset recovery and financial fraud group which represents victims of serious fraud and grand corruption including governments, corporations, insolvency practitioners and individuals by investigating and prosecuting civil fraud and asset recovery actions.
Who’s Who Legal: Asset Recovery has recognised Davis as the global Asset Recovery Lawyer of the Year from 2013 to 2016, and his firm as Asset Recovery Firm of the Year for 2015 and 2016.
WHY DID YOU DECIDE TO SPECIALISE IN ASSET RECOVERY AND FRAUD WORK?
I enjoy representing victims and helping them level the playing field with those that prey on them. As a result, I decided to focus my practice on the representation of individual, corporate and governmental victims of fraud throughout the world. I also enjoy learning about other legal cultures, and asset recovery and fraud work is a specialised form of international litigation. Lastly, I enjoy the “hunt” for those that have committed fraud and their ill-gotten gains.
WHAT PROMPTED YOU TO FOUND YOUR OWN FIRM?
My partners and I were seeking a better way to serve our clients in response to new factors in the industry affecting both the legal profession and our clients. Having a specialised boutique allows us to employ our “power of focus” concept and truly focus deeply on our practice groups and developments in the law to a degree that might not be attainable in a more generalised platform. Also, our boutique setting is nimbler and more cost-effective than that of many other firms, and allows us to take cases on alternative fee structures.
WHAT MAKES FOR A SUCCESSFUL ASSET RECOVERY SPECIALIST?
The actions taken in the first days following the discovery of a fraud often will determine whether the misappropriated funds or other property are ultimately recovered. Our team responds quickly to such fraud by using emergency injunctions, expedited depositions, subpoenas of bank records, our vast connections to experienced professionals and investigators around the world to seek to either locate the assets before they are dissipated or to investigate and bring claims against third parties who assisted the fraudsters.
WHAT IS THE MOST MEMORABLE MATTER THAT YOU’VE WORKED ON TO DATE?
Stanford International Bank, Ltd was an Antiguan bank that sold phony certificates of deposit to 21,000 depositors, which resulted in the second-largest Ponzi scheme in history by causing losses to over 27,000 depositor-victims from around the world. Estimated losses by depositor-victims exceeded $5 billion.
WHAT CHALLENGES ARE FACING PRACTITIONERS AT THE MOMENT AND HOW IS YOUR FIRM LOOKING TO MEET THESE OBSTACLES?
The pressure from clients to keep legal fees and costs as low as possible continues to be one of the challenges affecting practitioners. This can be a problem because of the crisis-like atmosphere in which successful asset recovery practitioners function. We combat these challenges by working closely with investigators, computer forensic experts, foreign lawyers, forensic accountants, law enforcement and other experts. These professionals are key resources in a rapid response to a discovered fraud which can lead to escalated costs (such as cost bonds) which would not be the norm in another practice area. Our firm has been meeting this particular challenge by offering alternative fee arrangements when historically the standard was solely hourly fee billing, and by working with litigation funders that assist victims of fraud who usually don’t have the resources to fight the fraudster after the fraud.
DO YOU ANTICIPATE THAT THE INTERNATIONAL COMMUNITY’S INCREASING READINESS TO TACKLE CORRUPTION WILL LEAD TO GROWING INTEREST IN ASSET RECOVERY WORK IN THE WIDER LEGAL MARKET?
Yes, as technology continues to get more sophisticated, the speed of the movement of money throughout the world will likewise increase. This, combined with a growing awareness that national borders are no more an impediment to recovery than they are to the fraudster who moves across those same borders, will likely result in the interest in asset recovery work growing into a larger distinct legal market. We already see firms forming asset recovery departments and groups which is a signal that that the market is recognising this distinct practice area as an exciting new offering to their clients.
HOW IMPORTANT ARE ORGANISATIONS SUCH THE ICC COMMERCIAL CRIMES SERVICES’ FRAUDNET NETWORK IN INTERNATIONAL ASSET RECOVERY WORK?
Organizations like the ICC’s FraudNet are very important and necessary in the international asset recovery work. Fraudsters work using their own networks of cronies and those that provide them assistance – legal and otherwise. So it is essential that counter-networks operate at a high level of coordination to defeat them. They also are powerful change agents that raise awareness and educate fraud victims worldwide about the methods that can be deployed to assist them in their fight to recover their assets and damages.
AS HEAD OF THE FIRM’S ASSET RECOVERY AND FINANCIAL FRAUD PRACTICE, IN WHAT WAYS ARE YOU ATTEMPTING TO DISTINGUISH YOUR GROUP FROM OTHER COMPETITORS IN THE MARKET?
I work on creating innovative solutions. I’ve helped develop and expand various creative discovery and asset seizure methodologies to obtain recoveries for our clients. Additionally, I’ve both led and worked collaboratively on various civil asset recovery teams – another concept I helped pioneer – on cross-border asset recovery engagements. Having a strong commercial litigation and insolvency background, my team and I have championed and coordinated asset recovery efforts between civil and criminal systems as a means to penetrate and defeat complex opaque asset hiding structures used by fraudsters. I was recently mentioned by Latin Lawyer (2016) for my efforts in the area of asset recovery. Lastly, as a result of our efforts, I was also recognised as the global Asset Recovery Lawyer of the Year by Who’s Who Legal: Asset Recovery, in 2013 (and again in 2014, 2015 and 2016); my firm was recognised as the Asset Recovery Firm of the Year in 2015 and 2016 by the same publication.
Scandalous revelations of suspicious financial activity exposed by the Panama Papers have toppled political leaders, induced regulatory reforms and prompted greater cooperation from Panama itself towards international efforts to combat tax evasion. But Edward H Davis Jr and Andres H Sandoval would like to see more headway in the area of asset recovery.
In April 2016 the Suddeutsche Zeitung released the ground-breaking publication covering the ‘Panama Papers’ – a massive leak of 11.5 million documents from the Panamanian Mossack Fonseca firm and its affiliates, formerly the world’s fourth-largest provider of offshore incorporation services. Shortly thereafter, due largely to the efforts of the International Consortium of Investigative Journalists (ICIJ), limited information extracted from the Panama Papers was digitised and disseminated to the public in the searchable Offshore Leaks Database maintained on the ICIJ’s website.  The impact of the Panama Papers leak in the political, journalistic, investigative and financial arenas is plain to see. However, well over a year later, the Panama Papers fervour is only now creeping into the asset recovery arena. That it has taken this long to arrive is frustrating, but perhaps predictable in light of evidentiary concerns and the inherent difficulty in commencing litigation. Regardless, this signals the next step in combating tax evasion, corruption, fraud and money laundering in the wake of the historic leak.
The global effect and pervasiveness of the Panama Papers leak is unrivalled. The 11.5 million leaked documents, dating back nearly 40 years, contain information on more than 214,000 offshore entities, in more than 200 jurisdictions, created by Mossack Fonseca. Major financial institutions alone drove the creation of nearly 15,600 offshore entities. Of these financial institutions, HSBC and its affiliates were responsible for the creation of more than 2,300 offshore corporate vehicles. Others, such as Banque J Safra, UBS AG and Societe Generale, were not far behind.
The Panama Papers also exposed 140 politicians from over 50 countries to charges of bribery and corruption for allegedly improper ties to offshore corporate vehicles in no fewer than 21 financial havens. As a result, 14 current and former heads of state as well as over 30 current and former politicians or public figures have come under scrutiny by governmental bodies. Several top government and corporate officials have cracked under the pressure, including, notably, the former Prime Minister of Iceland, Sigmundur Davia Gunnlaugsson, who resigned just days after the initial media coverage of the Panama Papers leak. Other political figures have been faced with high- profile investigations, including Argentina’s Mauricio Macri, Ukraine’s Petro Poroshenko and Pakistan’s former Prime Minister, Nawaz Sharif.
These investigations are bearing fruit. In late July 2017, Pakistan’s Supreme Court deemed Sharif unfit to be a member of parliament for reasons of dishonesty and corruption. The Supreme Court’s decision is the culmination of months of proceedings sparked by the Panama Papers leak, which linked Sharif’s family members to purchases of luxury real estate in London through offshore corporate vehicles. Further, on 31 July 2017, the National Accountability Bureau, Pakistan’s top anti-corruption unit, announced it would file formal corruption charges against Sharif, his children, son-in-law and the former Pakistani Finance Minister, Ishaq Dar.
Among the seemingly more positive effects, the Panama Papers leak has fuelled a global push towards transparency and accessibility of information regarding the ultimate beneficial owners (UBOs) of opaque offshore entities and accounts. Just weeks after the leak, the United States executive administration under former President Barack Obama announced it would implement regulatory reform to increase financial transparency and combat tax evasion, corruption and money laundering. Among the various measures, in May 2016, the US Treasury Department’s Financial Crimes Enforcement Network (FinCEN) promulgated new rules on customer due diligence requirements, which require financial institutions to identify any natural person beneficially owning more than 25% of, or otherwise controlling, the institution’s legal entity customers. Similar initiatives are being pushed in the United Kingdom, Germany and others in the G20 group. Only time will tell if these initiatives prove to be effective or are just window dressing.
The Panama Papers leak has also exerted pressure on countries previously resistant to increased financial transparency – namely, Panama. In 2016, Panama’s Vice President Isabel de Saint Malo pledged Panama’s willingness to sign the Convention on Mutual Administrative Assistance in Tax Matters – an agreement developed jointly by the Organisation for Economic Co-Operation and Development (OECD) and the Council of Europe to combat tax evasion through the automatic sharing of residents’ financial information. Holding fast to that pledge, on 3 March 2017, Panama deposited with the OECD its instrument of ratification of the Convention, which came into force in Panama on 1 July 2017. Panama has also signed an information-sharing treaty with Mexico and continues its negotiation of similar agreements with Spain, Italy, Germany, the UK and Switzerland. As of 12 June 2017, the OECD reports 112 jurisdictions currently participating in the Convention.
Where the Panama Papers have had much less impact than was originally hoped for is in the asset recovery arena. Following the leak, early commentators predicated litigation in the financial havens themselves, such as the British Virgin Islands, Jersey, Hong Kong and Panama, as well as financial centres that may house assets or UBOs, such as Switzerland, the UK and the US. However, now over one year later, this litigation has largely yet to be seen. This is disappointing in light of estimates that as much as 8% of the world’s financial wealth (approximately US$7.6 trillion) is held in financial havens. Further, according to Gabriel Zucman, economist, professor and author of The Hidden Wealth of Nations, as much as 80% of that hidden wealth is not reported to the tax authorities of any country. Equally astounding, the Stolen Asset Recovery (StAR) Initiative – a partnership between the World Bank Group and the United Nations Office on Drugs and Crime (UNODC) to promote international efforts to end financial havens for corrupt funds and prevent the laundering of the proceedings of corruption – estimates that up to US$40 billion per year is stolen by corrupt public officials around the world.
Those most affected by this hidden wealth are the citizens of the governments susceptible to tax evasion, corruption and the illicit diversion of funds, as well as the victims of fraud where the opaque corporate structures are used to hide the proceeds of these crimes. As a result, these jurisdictions often suffer from undeveloped infrastructure, failing health facilities and inadequate educational institutions. While it may be no less important to investigate and expose the corrupt actors that prey on these governments, there must also be a focus on and concerted effort to recover the value that has been secreted in financial havens and often elsewhere.
There may be signs of change, however. On 14 July 2017, the US Department of Justice commenced a civil forfeiture proceeding against approximately US$144 million in assets – primarily, a luxury yacht and Manhattan real estate-allegedly representing the proceeds of corruption, bribery and money laundering. The allegations concern prominent businessmen Kolawole Akanni Aluko and Olajide Omokore, and Nigeria’s former Minister for Petroleum Resources, Diezani Alison-Madueke. The US alleges in part that Aluko and Omokore purchased, luxury real estate in London and high-end furniture for Alison-Madueke’s benefit and, in return, Alison-Madueke used her influence to steer lucrative state oil contracts to companies ultimately owned or controlled by Aluko and Omokore. The ICIJ’s Will Fitzgibbon first reported in July 2016 on the links between Aluko, Omokore and Alison-Madueke as detailed in the Panama Papers. This led to investigations in Nigeria, the UK and elsewhere.
So, what is the reason for the tardy arrival of the Panama Papers’ impact in the asset recovery arena? Firstly, a lack of competent evidence. The ICIJ’s Offshore Leaks Qatabase largely, if not entirely, lacks source documentation. The same is true of the ICIJ’s database for the ‘Swiss Leaks’ and the ‘Luxembourg Leaks’ in previous years (other than documents expressly approved by Luxembourg authorities). Similarly, it is unclear to what extent, if at all, the Panamanian authorities have disseminated to the public or shared with authorities of other countries the documents seized from Mossack Fonseca’s offices following the initial leak. While there may be legitimate reasons for restricting the disclosure of source documentation, the availability of only extracted and secondary information poses hearsay, trustworthiness and other evidentiary problems for authorities, asset recovery professionals and victims in constructing asset recovery cases. More must be done to allow access to this critical information.
Secondly, it is an open issue as to whether information taken from the Panama Papers is privileged or protected. Additionally, the issue is complicated by the possible application of foreign law, making it difficult to know which privilege rules apply. Though exceptions to privilege may exist, such as the crime-fraud exception under US law or the iniquity exception under English law, this issue must be weighed carefully.
Rather, a best practice would be to treat the Offshore Leaks Database as an important tool in the investigative toolbox and a springboard to pursue additional disclosure in the appropriate jurisdiction. In this respect, emerging asset tracing techniques in recent years can assist greatly in closing the fence around intricate offshore structures. With respect to the US, these techniques include pursuing disclosure proceedings in aid of foreign litigation under 28 USC § 1782, the subpoenaing of information from banks in order to trace the flow of monies through different jurisdictions, and seeking recognition of foreign bankruptcy proceedings under the UNCITRAL Model Law on Cross-Border Insolvency. By using the Model Law, foreign bankruptcy trustees can gain access to US-style discovery and broad turnover powers of assets within the territorial jurisdiction of the United States.
Whatever the reason for the delay, the fervour to see positive change prompted by the Panama Papers must now enter the next phase: concerted efforts to pursue – on behalf of the victims of tax evasion, corruption, fraud and money laundering – the vast hidden wealth that has been secreted through the use of opaque offshore corporate vehicles. Such efforts are long overdue.
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