Donnerstag, 28. Februar 2013

KRCL Stanford Ponzi Scheme Litigation Update

By David M. Clem
It has been more than four years since the District Court for the Northern District of Texas appointed Ralph Janvey as Receiver for the Stanford Entities-shutting down what the SEC alleged to be a $7 billion Ponzi scheme. In that time, R. Allen Stanford and some of his associates have been tried and convicted in criminal courts, while hundreds of civil lawsuits continue to creep forward. Most of the civil suits are consolidated for pretrial purposes into MDL 2099, in the Northern District of Texas. This litigation alert will briefly address the criminal convictions, followed by an update on the SLUSA appeal that KRCL wrote about in April.[1] Lastly, this alert will report on some of the new complaints filed by the Receiver and the Official Stanford Investors Committee in February.

The Criminal Trials

On June 14, 2012, Judge Hittner of the Southern District of Texas sentenced R. Allen Stanford to 110 years in federal prison for various counts of fraud, conspiracy, and obstruction. The court also imposed a $5.9 billion judgment against Stanford individually. Stanford has appealed the conviction to the Fifth Circuit Court of Appeals.

Stanford's conviction and judgment followed a six-week trial at which his former chief financial officer, James Davis, testified against Stanford as part of a plea agreement. The court sentenced James Davis to five years in prison and imposed a $1 billion money judgment.

Laura Pendergest-Holt, Stanford's former chief investment officer, plead guilty to obstruction and received a sentence of 36 months in prison and no monetary judgment.

On February 14, 2013, the court sentenced Gilbert Lopez, Stanford's former chief accounting officer, and Mark Kuhrt, the former controller, to 20 years in prison. These defendants have signaled their intentions to appeal.

The Lopez and Kuhrt sentences bring an end to the criminal trial proceedings, other than those related to Leroy King, an Antiguan banking regulator whom prosecutors are attempting to extradite to the United States for trial.

The SLUSA Appeal

As we have previously written, the Securities Litigation Uniform Standards Act of 1998 ("SLUSA") prohibits state-based securities class actions if the claims allege "a misrepresentation or omission of a material fact in connection with the purchase of a covered security." Judge Godbey in the Northern District of Texas previously ruled that the plaintiffs' claims, which related to CDs issued by Stanford International Bank, were sufficiently related to "covered securities" to warrant SLUSA preemption.

On appeal, the Fifth Circuit reversed the district court, holding that SLUSA preemption does not apply and breathing life back into the plaintiffs' claims.

Last month, the United States Supreme Court granted certiorari to review the SLUSA issue.[2] The Supreme Court granted certiorari in spite of opposition from the Solicitor General, who wrote in an amicus brief that the facts presented are too peculiar to provide any assistance to lower courts that may later face SLUSA preemption issues.

The Supreme Court will hear oral argument in the October 2013 Term. If the high court reverses the Fifth Circuit, the plaintiffs' claims that are based on state law securities violations will be dismissed, significantly diminishing the plaintiffs' ability to recover against financial services defendants.

The February 15 Lawsuits

The Official Stanford Investors Committee is a court-appointed group consisting of seven members that purportedly represent a "cross-section of the Stanford victims' community." The Receiver assigned certain of its claims to the Committee, which has brought suits in its own name and has also intervened in some lawsuits.

Despite the uncertainty created by the pending SLUSA appeal, the Committee has recently increased its litigation activity. On February 15, 2013, the Committee filed three complaints with the MDL Court-a complaint in intervention and two original complaints.

The Committee filed the complaint in intervention in Rotstain v. Trustmark National Bank, HSBC Bank PLC, The Toronto-Dominion Bank, and Bank of Houston, No. 3:09-cv-2384. Rotstain is a purported class action brought by victims of Stanford's purported Ponzi scheme. The Receiver and the Committee had previously intervened, but had not alleged claims directly against the defendant banks until this filing. The Committee alleges various claims related to fraudulent transfers, conversion, and conspiracy. The Committee also seeks punitive damages for the banks' alleged participation or abetting of Stanford's fraudulent scheme.

On the same day, the Committee filed an original complaint styled The Official Stanford Investors Committee v. Bank of Antigua, et al., No. 3:13-cv-0762. In this action, the Committee seeks recovery from eight foreign banks for claims similar to those alleged in the Rotstain matter. The Committee alleges that the Antiguan government and its monetary regulator, the Eastern Caribbean Central Bank, were complicit in and integral to Stanford's fraud. According to the complaint, the Antiguan government's seizure of the Bank of Antigua (a Stanford-controlled entity) resulted in the dissemination of Stanford assets to various Caribbean-based banks. The Committee seeks to recover these assets, alleged to be in the tens or hundreds of millions of dollars, under theories of fraudulent transfer and conversion.

In addition, the Committee filed suit directly against the nation of Antigua and Barbuda, in a case styled The Official Stanford Investors Committee v. Antigua and Barbuda, No. 3:13-cv-0760. In this Complaint, the Committee levies its most serious accusations against the Antiguan government, alleging that the country "became a 'blood brother' to Stanford" and that key government officials "were literally Stanford's partners in crime." By this action, the Committee seeks to recover almost one hundred million dollars in unpaid loans made by Stanford to the government of Antigua and Barbuda.

The Receiver also filed a new lawsuit on February 15, 2013. In Janvey v. Pablo M. Alvarado, et al., No. 3:13-cv-0775, the Receiver seeks to recover from 23 former directors and officers of various Stanford entities for breach of fiduciary duty. The suit essentially alleges that the directors and officers either knew of the fraud or facilitated the fraud by ignoring numerous "red flags." Laura Pendergest-Holt, Mark Kuhrt, and Gilberto Lopez are among the defendants.

KRCL will continue to monitor the Stanford litigation closely.

[1] The Fifth Circuit Court of Appeals Revives Securities Fraud Claims in Stanford Entities Securities Litigation
[2]The consolidated cases are Chadbourne & Park LLP v. Troice, No. 12-79; Willis of Colorado, Inc. v. Troice, No. 12-86; and Proskauer Rose LLP v. Troice, No. 12-88.

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