Recuperar activos ocultos en el extranjero: Nuevo nicho para abogados


Las estrategias combinan legislaciones de distintos países.

By Antonio Collados

El peruano Vladimiro Montecinos, el chileno Alberto Chang y el matrimo‐ nio filipino de Imelda y Ferdinando Marcos tienen algo en común: oculta‐ ron en el extranjero los bienes que obtuvieron mediante fraudes. Si bien la recuperación transnacional de activos es un área de práctica legal muy extendida en el mundo, es muy poco conocida en Chile.

Se trata de un área de derecho relativamente nueva, en donde se requiere trabajar en equipo no solamente de abogados de distintos países, sino también con investigadores y con contadores forenses, según explica Guillermo Jorge, jurista argentino que participó el viernes pasado en un almuerzo organizado por el Estudio Rivadeneira Colombara Zegers, al cual asistieron algunos profesionales chilenos y varios expertos internacionales. Esta oficina se está integrando a una red internacional de estudios que se dedica a estos temas y que están agrupadas en Fraud Net, donde hay abogados de Estados Unidos, Argentina, Suiza y Reino Unido.

La especialidad también se aplica a casos de divorcios de personas de alto patrimonio en que uno de los cónyuges tiene parte de sus bienes fuera de su país, como fue el caso del ex futbolista y actual entrenador del Atlético Madrid, Diego Simeone, cuya bien asesorada ex esposa obtuvo 20 millones de euros como producto de estas pesquisas.

En el seminario del viernes, el abogado estadounidense Edward Davis Jr. destacó el sigilo como uno de los aspectos más relevantes de estas gestiones. “Esto es como cuando un tigre sale a cazar, se mueve con mucha tranquilidad, se toma su tiempo, es silencioso, pero no es lento”, dijo.

Davis asegura que todo se hace de una manera diseñada para que no alerte a la persona que está escondiendo el activo, porque el dinero puede moverse de un día para otro.

“Hay que ser un tigre inteligente y ágil”, agrega Jorge, su colega argentino, quien destaca que algo que les da mucha agilidad a los equipos de abogados privados son los recursos. Explica que un fiscal debe ceñirse a procedimientos lentos y formalidades para pedir cooperación internacional, lo que contrasta con las redes de abogados privados conectados en grupos de whatsapp, con bases de datos a las que acceden simultáneamente.

Una “Interpol privada”

De acuerdo a la descripción que realizan, estos equipos trabajan como “una suerte de Interpol privada”, ya que pueden reaccionar rápidamente y actuar de manera simultánea en todos los países que sea necesario, según comenta Ciro Colombara, socio del estudio chileno, quien explica que la globalización hace que los conflictos jurídicos también sean globales.

“Casi todos los casos relevantes tienen una arista internacional y en el caso de los temas económicos es muy habitual que los activos económicos estén en otros países, especialmente en paraísos fiscales”, añade.

Esto hace que el conocimiento idiosincrático de las distintas jurisdicciones donde tendrán lugar las pesquisas sea una clave fundamental de su éxito. “Si le pides a un juez de un país ‘A’ que le pida algo a un juez del país ‘B’, se lo tienes que pedir en un lenguaje tal que él lo lea como algo muy parecido a lo que hace todos los días, hay que saber cómo hacer coincidir los sistemas, qué palabras claves incluir”, dice Arnie Lacayo, otro experto de Estados Unidos que participó en el seminario.

Tanto Lacayo como Davis Jr. trabajan actualmente en el caso Stanford, un fraude de más de US$5 mil millones, sólo superado en magnitud por el caso Madoff, en que la defraudación alcanzó los US$50 mil millones.

Los especialistas explicaron que la clave en estos casos es la capacidad de seguir el flujo del dinero para entender cómo se hizo el fraude, dónde están los activos y así definir la forma de recuperarlos.

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Trove of Missing Art Heads to Auction

A Henry Moore sculpture and a Rufino Tamayo painting are among recovered art works that may be auctioned at Sotheby’s

By Kelly Crow

Former Banco Santos president Edemar Cid Ferreira once covered the walls of his São Paulo home with Man Ray photographs, Louise Bourgeois prints and paintings by Jean-Michel Basquiat, Francis Picabia and others. But when Brazilian authorities arrested Mr. Ferreira in 2006 for an alleged $1 billion money-laundering scheme, the walls were bare.

The vanished collection set off a global scavenger hunt, with investigators and creditors chasing leads long after Mr. Ferreira was convicted of money – laundering and sentenced in federal criminal court in Brazil to 21 years in prison. Mr. Ferreira has appealed the case and declined, through his lawyer, to comment.

Mr. Ferreira, the president of Banco Santos, during the World Economic Forum in Davos, Switzerland in 2004. More art once owned by him has been recovered. Photo: Daniel Ackern/Bloomberg News

This month, U.S. authorities announced a breakthrough, saying they had rounded up 95 works Mr. Ferreira once owned that together are worth at least $10 million. The art was in warehouses across France, Panama, England and the Netherlands, according to the U.S. Attorney’s Office for the Southern District of New York. Two paintings in the group were in galleries in New York.

Joon Kim, the Acting U.S. Attorney, who said Mr. Ferreira’s art had been “used to mask an audacious criminal scheme,” signed documents turning the trove over to a Brazilian judicial administrator handling the estate of Banco Santos, which failed in 2005.

The bank’s estate, which is seeking to compensate creditors, plans to enlist Sotheby’s to auction some of the works, said Arnoldo Lacayo, a lawyer with Sequor Law, a Miami firm helping the bank’s estate track down Mr. Ferreira’s assets. A Sotheby’s spokeswoman confirmed that the auction house has been asked to review the works for potential sale.

Major pieces include Henry Moore’s “Woman,” a life-size bronze figure that had been stored in France, as well as Rufino Tamayo’s abstract view of a couple, “Casal de Marcianos 1975 (Two Figures),” which was stored in Florida. There also is a Lucite cube sculpture by Anish Kapoor and works by Brazilian mainstays Adriana Varejão, Vik Muniz and Jac Leirner. Among the older works is an etching by Eugène Delacroix.

The fate of Helen Frankenthaler’s 1965 blue-and-gold abstract, “Sea Strip,” offers a glimpse into the circuitous path of some of the art. Mr. Ferreira paid Christie’s $197,900 for “Sea Strip” in late 2004 —a year before his bank failed and a time when authorities said he was starting to ship crates of art to warehouses in Europe for safekeeping. Later, a friend of his wife sold “Sea Strip” to Edward Tyler Nahem Fine Art in New York for an undisclosed sum. John Cahill, a lawyer for the gallery, said Mr. Nahem had been told that the painting was from a corporate collection.

Once alerted to its true origins, Mr. Nahem got into a title dispute with the bank’s estate, Mr. Cahill and Mr. Lacayo said, because the dealer had bought the work in good faith. Both sides said they have since reached a settlement to sell the work jointly. Right now, the Frankenthaler is the only recovered work that isn’t immediately headed to Sotheby’s, Mr. Cahill said.

Before this month, only a handful of works from Mr. Ferreira’s collection had been found and returned—including a Roman statue and Basquiat’s 1982 “Hannibal,” a skull portrait on an orange background. The work, with its dark slashes, spiky lines and splotches of bright color, is considered a signature piece by Basquiat, who started out as a graffiti artist. Mr. Ferreira bought the painting in 2003 and had it shipped from the Netherlands to a New York warehouse in 2007 after his conviction, authorities said. U.S. Customs took a closer look when the work arrived because its declared value was $100.

Jean-Michel Basquiat, ‘Hannibal,’ 1982 Photo: Interpol Washington

Last fall, Sotheby’s helped the bank’s estate sell “Hannibal” to Japanese billionaire Yusaku Maezawa for $13 million.

“Hiding illicit proceeds in art happens all the time,” said Mr. Lacayo of the asset-recovery firm helping the bank’s estate. “At least in this case we’re unraveling it.”

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US Government Repatriates 95 Artworks Linked to Disgraced Brazilian Financier

The blue-chip collection was part of a massive money laundering scheme.

By Henri Neuendorf

The United States has seized and returned 95 artworks valued in the tens of millions of dollars that once belonged to the disgraced Brazilian banker Edemar Cid Ferreira. The founder and former president of Banco Santos, Ferreira was convicted of money laundering and crimes against the national financial system in 2006 and is currently appealing against a 21-year prison sentence.

During his tenure as president of Banco Santos, Ferreira bought dozens of works by blue-chip names including Jean-Michel BasquiatLouise BourgeoisFrancis PicabiaHenry Moore, and Anish Kapoor. In 2006, a Brazilian court found that he bought the works with illegally obtained funds from Banco Santos and ruled that they should be seized and used to repay the bank’s creditors.

But when Brazilian officials searched Ferreira’s home, storage facility, and offices in 2006, they discovered that much of the collection was missing. They have been on the hunt for them ever since.

The collection was illegally smuggled out of Brazil between November 2004 and March 2005, according to authorities. The works were shipped through the US with false documentation, inaccurate valuations, and fabricated titles to locations in Switzerland, France, the Netherlands, and the UK. (For example, when the work by Basquiat, which has been appraised at $8 million, was sent to a New York storage facility from the Netherlands, the shipping invoice stated it was worth only $100.)

Over the next 11 years, the US worked with Interpol and governments across Europe to locate the star-studded collection. Dutch authorities seized three crates containing 85 of the missing artworks from a storage facility and turned them over to US authorities; a UK-based auction house voluntarily handed over seven artworks to US law enforcement; the underwriters of an insurance policy to a company controlled by Ferreira handed over a painting by Rufino Tamayo; and an unnamed New York gallery reached a settlement to  jointly sell a painting by Helen Frankenthalerwith the Brazilian judicial administrator in a deal approved in March 2017. Most recently, a Henry Moore statue was seized by French authorities from a storage facility and handed over to US authorities this summer.

Why did it take so long to find and return the works? According to Arnoldo B. Lacayo of Sequor Law, one of the attorneys representing the Brazilian Judicial Administrator, the repatriation process was drawn out because the art was subject to complex criminal and bankruptcy cases in Brazil and the US. “The recovery process… has taken time but represents an important success on behalf of the many creditors of the Estate of Banco Santos who were hurt as a result of the illicit activity which resulted in the bank’s demise,” he says. “In short, while some of the art left Brazil as long ago as 2004, the criminal, bankruptcy and forfeiture cases only came later.”

The latest repatriation comes after the US attorney returned five works—paintings by Jean-Michel Basquiat, Roy Lichtenstein, Joaquin Torres Garcia, Serge Poliakoff, and a Roman sculpture—valued at a combined $20–30 million to Brazil in June 2015.

“These works were used to mask an audacious criminal scheme by Edemar Cid Ferreira,” acting Manhattan US attorney Joon H. Kim says in a statement. Thanks to efforts of the US attorney’s office and Homeland Security Investigations, “these treasured pieces will be returned to their rightful owner, the bankruptcy estate of Ferreira’s insolvent Banco Santos.”

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Global Restructuring Review Top 100 Law Firms Listing

Miami’s newly rebranded Sequor Law is the Chilean liquidator of bankrupt investment vehicle Onix Capital

 Global head of restructuring and insolvency  Gregory Grossman

History of the practice

Shareholders Edward Davis and Gregory Grossman launched boutique Sequor Law in April, in what was effectively a rebrand of Miami firm Astigarraga Davis’ cross-border insolvency, international asset recovery and financial fraud team.

Davis and Grossman, two of the founders of Astigarraga Davis, decided to establish the new outfit when their former firm’s international arbitration practice left to join global law firm Reed Smith.

All of the attorneys from Astigarraga Davis’ cross-border insolvency, international asset recovery, and financial fraud practice were retained by Sequor Law.

Network

Grossman heads up the firm’s international insolvency and financial litigation practice, which operates out of a solitary office in Miami.

Who uses it?

The team represents international banks, sovereign governments and government institutions, liquidators and receivers, lenders and multinational corporations, as well as individuals.

Some notable clients include Big Four professional services firm PricewaterhouseCoopers and the Republic of Trinidad and Tobago.

Historic track record

The practice, under Astigarraga Davis and Sequor Law, has made over 20 Chapter 15 filings in the US to recognise insolvency proceedings in diverse jurisdictions including Antigua, Austria, Barbados, Brazil, the BVI, the Cayman Islands, Chile, Mexico, Romania and the UK. Indeed, Grossman says the firm has filed more Chapter 15s than any other law firm in the US.

Notably, Davis and Grossman filed the first Chapter 15 bankruptcy petition in the state of Florida, on behalf of PricewaterhouseCoopers as the custodian of failed financial institution Bancafe International Barbados.

Davis also served as lead civil counsel for the government of Antigua and Barbuda in relation to an alleged fraud in the payment of debt owed to a Japanese leader that sponsored the building of the Crabbs Desalination and Power Plant in northeast Antigua.

Elsewhere, the team was instructed to represent the joint liquidators of Stanford International Bank in efforts to recover assets relating to a US $7 billion Ponzi scheme- the second largest Ponzi scheme in world history, which has seen filings in Antigua, the UK, the US and Canada.

Recent events

During our research period, Sequor Law was instructed as counsel to the court-appointed liquidator and foreign representative of bankrupt Chilean investment firm Onix Capital in Chapter 15 proceedings in Florida. The liquidator is seeking to recover assets in excess of $100 million* relating to an alleged Ponzi scheme operated by the group’s CEO, Chilean businessman Alberto Chang-Rajii.

The Sequor team also continues to act as primary US counsel to the joint liquidators of Stanford International Bank.

The complete GRR 100 guide will be accessible at http://globalrestructuringreview.com/grr-100

 

* The GRR 100 incorrectly values the Onix case as a $7.4 million dollar Ponzi scheme. The correct value of the Ponzi scheme is in excess of $100 million.

Internationally Noted Attorneys Establish Sequor Law

New Firm to Focus on International Asset Recovery, Financial Fraud, Cross-Border Insolvency and Financial Services Litigation

MIAMI – April 11, 2017 – Edward H. Davis, Jr., a founding shareholder of Astigarraga Davis, today announced the opening of Sequor Law to focus on representing clients internationally in asset recovery, financial fraud, cross-border insolvency and financial services litigation. Sequor Law’s attorneys include all members of the Astigarraga Davis top-ranked asset recovery team.

Jose Astigarraga and the other attorneys in the firm’s international arbitration practice have moved their practice to join a global law firm.

Davis and Gregory Grossman, another founding shareholder, consider this a natural next step in the development of their respective law practices.

“We are energized about the evolution of our practices. The new platform of Sequor Law will better position us to meet a growing global demand for our high-quality legal counsel,” said Davis, a certified fraud examiner who has been recognized as the Asset Recovery Lawyer of the Year for the past four years by Who’s Who Legal and who has an internationally recognized financial fraud, asset recovery and international litigation practice. “It will enable the attorneys at Sequor Law to continue building upon our unique strengths and pursue significant new opportunities in areas we excel, while also becoming more nimble in today’s ever-changing legal environment.”

Added Davis: “Sequor Law derives its name from the Latin word ‘to pursue, to chase, to attain,’ and signifies our core values: the agile, aggressive, and relentless pursuit of assets and success on behalf of our clients.”

Sequor Law’s international insolvency and financial services litigation practice is headed by Grossman. He will focus his practice on creditors’ rights, bankruptcy, insolvency litigation, and operational bank litigation.  Grossman filed the first Chapter 15 Petition in the state of Florida and is recognized as a thought leader in the use of cross-border insolvency proceedings on behalf of creditors and fraud victims.

Sequor Law’s multi-lingual team includes:

  • Arnoldo Lacayo, a shareholder, certified specialist in asset recovery, and incoming chair of The Florida Bar International Law Section who focuses his practice on international corruption investigations and asset recovery for governments and state-owned enterprises
  • Daniel  Coyle, an associate who represents creditors and insolvency practitioners in domestic and international insolvency matters
  • Nyana Abreu Miller, an associate who focuses her practice on asset recovery for women in cross-border divorce cases
  • Cristina Vicens Beard, an associate focusing her practice on representing victims in the recovery of assets in cross border frauds

At Sequor Law, the attorneys will continue their collaboration with ICC FraudNet, a world-class network of specialized attorneys, best-in-class investigators, and forensic accountants.

About Sequor Law

Sequor Law is a Miami-based international law firm representing financial institutions, sovereign governments and state owned enterprises, public and non-public companies, insolvency practitioners and individual clients in the areas of asset recovery, financial fraud, insolvency and financial services litigation. More information is available at www.SequorLaw.com

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Fla. Judge OKs Espirito Santo’s $8M Deal With Bankrupt Bank

By Carolina Bolado

A Florida bankruptcy judge on Tuesday indicated that she would sign off on an $8 million settlement ending bankrupt Brazilian bank Banco Santos SA’s racketeering and tort suit against Portugal-based Espirito Santo Bank.

In a hearing in Miami, U.S. Bankruptcy Judge Laurel Isicoff said she would sign off on an order preliminarily approving a deal that resolves a suit filed by Banco Santos’ court-appointed administrator Vanio Cesar Pickler Aguiar claiming the bank lost $38.7 million through ESB’s fraud and money laundering.

The judge noted that there were no objections filed to the settlement agreement and urged the attorneys to get the order in quickly so that she could sign off on it before the holiday break.

In the adversary proceeding, filed in December 2013, Aguiar claims that ESB diverted millions in Banco Santos’ assets through various corporate entities to Florida, from which they were transferred offshore and laundered, according to the complaint. In the suit, Aguiar requested not just the $38.7 million the bank allegedly lost, but also treble damages of $116 million.

ESB rebuts all of the claims in the complaint.

Banco Santos was ordered into a court-supervised liquidation by the Second Bankruptcy and Judicial Reorganization Court of Sao Paulo in September 2005. Aguiar filed a Chapter 15 petition in December 2010 in the Southern District of Florida listing $500 million to $1 billion in assets and more than $1 billion in liabilities.

The Espirito Santo group, which traces to a storied Portuguese banking family, saw four of its companies file for creditor protection in July after a central bank audit two months earlier had turned up accounting irregularities at Espirito Santo International SA, the group’s holding company.

The Portuguese central bank in August unveiled a plan to split up BES, the country’s second-largest lender, under a rescue plan backed by €4.9 billion ($6.4 billion) in state money after the bank failed to weather losses on its exposure to the Espirito Santo group.

Authorities in several countries are investigating the dealings of the Espirito Santo empire.

Switzerland’s financial regulator said in September that it is looking into the distribution of financial products by a Swiss bank, Banque Privee Espirito Santo SA, which is tied to the Espirito Santo group.

Aguiar is represented by Edward H. Davis Jr., Gregory S. Grossman, Arnoldo B. Lacayo and Nyana A. Miller of Astigarraga Davis.

ESB is represented by Samuel J. Capuano and Gary M. Freedman of Tabas Freedman.

The adversary proceeding is Aguiar v. Espirito Santo Bank, case number 1:13-ap-01934, in the U.S. Bankruptcy Court for the Southern District of Florida.

The bankruptcy is In re: Banco Santos SA, case number 1:10-bk-47543, in the U.S. Bankruptcy Court for the Southern District of Florida.

 

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