TelexFree Trustee Files Clawback Suit Against 78,000 Foreign Net Winners

The court-appointed bankruptcy trustee tasked with recovering assets for victims of the $3 billion TelexFree Ponzi and pyramid scheme has filed a lawsuit seeking to force nearly 80,000 participants to return over $1 billion in collective profits realized from the scheme.  Stephen Darr, the bankruptcy trustee, filed an adversary proceeding against thirty-three of the top "net winners" from the TelexFree scheme, who realized more than $26 million in collective profits, as well as a "class" of approximately 78,000 net winners who reside outside the United States.  The tactic, which has been used at least once in a similarly complex Ponzi scheme, seeks to efficiently recover the sums from a large number of defendants without the expense and procedural morass of filing separate lawsuits against each of the defendants.

Background

TelexFree raised billions of dollars from hundreds of thousands of investors through the sale of a voice over internet protocol (“VoIP”) program and a separate passive income program.  The latter was TelexFree's primary business, offering annual returns exceeding 200% through the purchase of "advertisement kits" and "VoIP programs" for various investment amounts.  Not surprisingly, these large returns attracted hundreds of thousands of investors worldwide, and participants were handsomely compensated for recruiting new investors – including as much as $100 per participant and eligibility for revenue sharing bonuses.  Ultimately, while the sale of the VoIP program brought in negligible revenue, TelexFree's obligations to its "promoters" quickly skyrocketed to over $1 billion.

In April 2014, after multiple attempts to modify the passive income program both to rectify regulatory deficiencies and to curb increasing obligations, TelexFree quietly filed for bankruptcy in a Nevada bankruptcy court.  While it appeared that TelexFree had hoped to use the bankruptcy proceeding to eliminate its obligations to its "promoters" and extinguish any ensuing liabilities, the filing immediately attracted scrutiny and was followed shortly by enforcement actions filed by the Securities and Exchange Commission (the "Commission") and Massachusetts regulators.  The Commission then moved to transfer the bankruptcy proceeding to Massachusetts, where the company was headquartered and where the Commission had filed its enforcement proceeding.  Despite vehement objections by TelexFree, that effort was ultimately successful, and the appointment of an independent trustee, Mr. Darr, shortly followed.

TelexFree's founders, James Merrill and Carlos Wanzeler, were later indicted on criminal fraud charges, with Wanzeler currently a fugitive and believed to be in Brazil.  

Clawback Suits

In a June 2015 hearing, Mr. Darr disclosed that approximately 70,000 unique member accounts realized a net profit from their involvement in TelexFree, meaning that the profit distributions they received over the course of the scheme were greater than their investment.  Mr. Darr further divulged that each "net winner" had realized an average profit of $20,000 - meaning that the universe of potential clawback suits could exceed $1 billion in recoveries.  

The initial adversary proceeding is directed at the approximately 78,000 net winners who reside outside the United States, with a footnote in the complaint indicating that the trustee intended to file a separate adversary proceeding to recover from the approximately 15,000 net winners that reside in the United States.  A chart from the complaint listing the named defendants and the amount of their profits is below:

While the recovery of profits paid to Ponzi investors is well recognized by courts, the trustee is also wading into new territory in seeking to recover those participants' receipt of any funds from investors they recruited in what the trustee refers to as a "triangular transaction."  As TelexFree incentivized its members to recruit new members by paying commissions to the recruiting member, it offered those recruiting members the ability to pay for the new member's membership plan by redeeming accumulated credits in that recruiting member's account.  Conceptually, the transaction is akin to a recruiting member redeeming those accumulated credits, which were paid as purported returns on that member's investment, and thus the trustee is taking the position that the transaction effectively represented an additional way for a member to monetize their payable interest credits.

Lawsuit Names "Net Winner Class"

In addition to the thirty-three named defendants, the trustee is also seeking to establish a framework by which he may pursue all net winners through the creation of a Net Winner Class.  Rather than filing separate lawsuits against each of the 78,000 net winners, the creation of a Net Winner Class will allow the trustee to establish his claims against each of those net winners in a single adversary proceeding - a hugely efficient method that willnot only greatly reduce the complications and redundancy in bringing the same claims against thousands of individuals, but in doing so will also preserve assets for future distribution to those victims who were not as fortunate.   For example, the move will results in savings alone of at least $31 million from not having to file filing fees for 78,000 separate lawsuits.

The use of a Net Winner Class, while rare, is not unprecedented and indeed has been recently approved in a similar context.  The court-appointed receiver for the Zeek Rewards Ponzi scheme, which duped tens of thousands of investors out of at least $600 million, sought to use an identical procedure when he asked a North Carolina federal court to approve a class of 9,400 net winners who had each profited by at least $1,000.  There, the receiver, Kenneth D. Bell, successfully argued over the objection of the proposed net winner class that his request satisfied the requisite criteria prescribed by Rule 23 of the Federal Rules of Civil Procedure.  

Mr. Darr has filed a motion seeking court approval for certification of the Net Winner Class.  The certification of the class will not only result in an efficient mechanism to pursue thousands of clawback claims, but also will avoid the nightmare scenario of potentially having inconsistent results if Mr. Darr were forced to pursue each of the net winners individually.  Additionally, doing so would have resulted in exponential costs to Mr. Darr that would serve only as a dollar-for-dollar reduction in assets that could potentially be later returned to victims.  Finally, allowing the pursuit of clawback claims in a class action also increases the total potential recoveries by allowing Mr. Darr to target net winners with a lower threshold of clawback claims that might not have been a realistic target in the context of a separate action.  

A copy of the Complaint is below:

1 (1)

Appeals Court Revives Charges Against Accused $100 Million Ponzi Schemer

A federal appellate court reversed the dismissal of criminal charges against a Utah man accused of masterminding a $100 million Ponzi scheme, ruling that the trial judge abused his discretion by dismissing the case with prejudice - meaning the charges could not be refiled - after concluding that prosecutors had failed to timely pursue the case.  The Tenth Circuit Court of Appeals issued an opinion last week concluding that U.S. District Judge Clark Waddoup's decision to toss all eighteen charges against Claud "Rick" Koerber with prejudice over violations of the Speedy Trial Act did not adequately address several factors, including Koerber's own actions that contributed to the delay.  Koerber, who touted himself as a "Latter day capitalist" during the mid-2000's, was indicted in 2009 but had the charges dismissed nearly 18 months ago in August 2014.

Background

Koerber, who called himself a "Latter day capitalist," garnered a growing following for his purported real estate investing prowess and was well known in the community not only for his membership in the Latter Day Saints Church but also for hosting a radio show and frequent real estate seminars.  Through his companies, Founders Capital and Franklin Squires, Koerber touted his "equity milling" program that promised lucrative returns through buying and selling residential real estate.  Investors came in droves, entrusting tens of millions to Koerber's operations.  Even Koerber's radio show changed its opening theme song to, "Money, Money, Money" by Abba.  Koerber also appealed to listeners' religious beliefs, even remarking to one listener who questioned his motives that "God is a capitalist."  In total, Koerber raised approximately $100 million from investors.  

However, the collapse of the real estate bubble in 2007 was catastrophic to Koerber's operations, as the majority of Franklin Squires's assets were in the form of real estate that quickly erased any equity as housing prices declined.  He was indicted in May 2009, and a superseding indictment handed down six months later included twenty-two charges including wire fraud, money laundering, and tax fraud.  

Koerber Obtains Dismissal With Prejudice

In April 2014, nearly five years after the first indictment was handed down, Koerber filed a Motion to Dismiss for Impermissible Delay citing multiple grounds, including the violation of Koerber's right to a speedy trial.  The Speedy Trial Act (the "Act"), codified at 18 U.S.C. § 3161, requires that the trial of a defendant entering a plea of not guilty was to start within 70 days of the later of the filing of the indictment or appearance by the defendant in front of a judicial officer.  While the Act also allows for certain extensions, Koerber's motion argued that at least 125 non-exempt days had passed without a trial or other resolution.  

At a hearing, the Government conceded that while a "technical" violation of the Act had occurred, the Court should "cure" the violation by entering an Order pursuant to the Act essentially making a finding that the "ends of justice" warranted a retroactive continuance and outweighed the best interests of the public and Koerber.  However, the Court cited precedent standing for the proposition that such a retroactive mechanism was prohibited and that a violation of the Act would have occurred even of such actions were taken.  

In deciding whether or not to grant dismissal with prejudice, which would prevent prosecutors from re-filing the charges, the Court referenced the seriousness of the offenses and also the "Government's problematic conduct in prosecuting this case," including a "pattern of neglect," tactical delays, an inappropriate use of attorney-client privileged information, and ex parte interviews with Koerber that violated his due process rights.  Noting that prejudice to Koerber was presumed, the Court opined that re-prosecuting Koerber would be impossible and ordered that the case be dismissed with prejudice.

The Appeal

The Tenth Circuit's opinion painstakingly recites the procedural history of the case beginning with the government's 2007 investigation, noting various missteps along the way including the government's failure to provide timely and sufficient proposed orders extending the time under the Act.  These and other missteps eventually prompted Koerber to move to dismiss the case for violations under the Act, which the Tenth Circuit noted subsequently resulted in the government's decision to turn over nearly 1,500 pages of additional discovery.  The district court's analysis resulted in a dismissal with prejudice.

The Tenth Circuit faulted the district court's analysis in dismissing the charges on two grounds.  First, while the district court correctly embarked on an analysis of the seriousness of the offenses pursuant to 18 U.S.C. § 3162(a)(2), the Tenth Circuit found that this analysis had included several unrelated factors - the presumption of innocence, issues with the "indefiniteness of the information contained in the indictments," and the government's alleged misconduct.  Rather than stopping its analysis at the seriousness of the allegations, the Tenth Circuit found the district court had abused its discretion by considering:

the indictment’s allegations, which are beyond what this factor measures: the seriousness of the charged offenses

...

The strength of the allegations and of the evidence against a defendant is irrelevant to [the seriousness of the offense] factor.

...

The district court strayed off-course by weighing the strength of the government’s allegations instead of the seriousness of the charged offenses themselves.

The Tenth Circuit concluded that the district court abused its discretion in both weighing the seriousness of the offense and applying that finding to whether or not dismissal with prejudice was warranted.

Next, the Tenth Circuit agreed with the government's argument that the district court had failed to "fully consider Koerber's responsibility in the [Act] delay," noting that the "district court was not free to ignore Koerber’s other acts that may have partially contributed to the STA violation."  The government pointed to instances where Koerber "disregarded his STA rights by waiting passively and acquiescing to the postponement of his case," including his waiting months or even years to file motions directed at certain specific events or dates.  The Tenth Circuit agreed, noting that:

One such motion is Koerber’s April 2012 motion to suppress statements from the February 2009 interviews. The district court held a hearing in November 2012 and additional argument in April 2013. Not until August 15, 2013, did the district court grant Koerber’s motion.

The Tenth Circuit ordered the district court to review whether Koerber's actions contributed to delays under the Act, and whether those delays would change the district court's review of the second factor of its analysis given the government's conduct.  

While the Tenth Circuit's ruling is, on paper, a win for the government, the tone of the opinion suggests that this triumph may be more of a pyrrhic victory.  The opinion concludes with an ominous condemnation of the government's handling of the case, including its disagreement with the government's contention that its "role in the admitted STA violation was unintentional."  The opinion cites several instances, including the government's inexplicable loss of 27 discs of information, the delayed production of thousands of pages of documents, and the protracted nature of the case involving the passage of five years of time and a "dozen Assistant United States Attorneys," in concluding that this conduct could justify "the more serious sanction of dismissal with prejudice."

Next steps

The case will now be remanded back to the district court, where Judge Waddoups will be required to address the deficiencies noted in the opinion.  

A copy of the Tenth Circuit's opinion is below.

14-4107

SEC Accuses Utah Company Of Running $28 Million Ponzi Scheme

The Securities and Exchange Commission announced it had obtained an asset freeze and halted an alleged $28 million Utah-based Ponzi scheme that may have duped over 250 investors nationwide.  Marquis Properties, LLC, its President/CEO Chad R. Deucher, and Vice President Richard Clatfelter, were named in a January 19, 2016 complaint alleging multiple violations of federal securities laws.  The Commission is seeking injunctive relief, imposition of civil monetary penalties, prejudgment interest, and disgorgement of ill-gotten gains.

According to the Commission's complaint, Marquis held itself out as an experienced property-management company that specialized in acquiring and managing high-quality cash-flowing properties.   The company solicited potential investors by representing that it would manage various properties located in Indiana, Missouri, and Ohio, collect monthly rental income, and distribute a return ranging from 8% to 12% annually as passive investment income.  Potential investors were told that the various investments offered by Marquis were safe and risk-free because investment returns would be secured by a first deed of trust on property and that investments would be "over-capitalized."  From April 2010 to June 2015, Marquis raised at least $28.2 million from hundreds of investors.

However, the Commission alleged that Marquis operated a classic Ponzi scheme by using new investor funds to pay purported returns to existing investors.  Rather than purchase real estate with investor funds, as had been represented to investors, the Commission charged that Marquis had diverted investor funds to pay returns to existing investors and to pay personal expenses including the transfer of nearly $400,000 to Mr. Deucher's wife.  While Marquis stopped paying returns to investors in June 2015, the Commission's complaint alleges that Mr. Deucher had recently represented to an investor that repayment would begin shortly.  

A copy of the Complaint is below:

Comp 23451

After Allegedly Forging Character Letters, Former NBA Star Gets 9-Year Sentence For $2 Million Ponzi Scheme

A former professional basketball player will spend the next nine years in federal prison after being convicted of operating a Ponzi scheme that duped victims - including other professional athletes - out of more than $2 million.  Tate George, 47, was a former first round draft pick in the NBA whose long fall from grace culminated in his 2011 arrest on fraud charges.  In a stunning development at the culmination of a six-day sentencing hearing, federal prosecutors disclosed that George had apparently forged several character reference letters which were sent to U.S. District Judge following George's 2013 conviction on four wire fraud charges.  In addition to the sentence, George was also ordered to pay $2.55 million in restitution as well as $2.5 million in forfeiture.  George had faced a maximum sentence of 20 years.

Beginning in 2005, George owned and operated The George Group ("TGG"), which solicited potential investors based on promises it was a successful real estate development company that had a portfolio exceeding $500 million.  The company was said to specialize in commercial and residential development financing, and represented that investor funds would be safeguarded in an attorney escrow account.  In return for their investment, investors received promissory notes with varying terms reflecting their investment amount and length.  In total, George raised more than $7 million from investors - including some former professional athletes.

However, contrary to George's representations, TGG did not have $500 million under management and investor funds were not used to fund real estate development projects.  Rather, TGG had virtually no income-generating operations, and George used TGG to run a classic Ponzi scheme by using investor funds for a variety of unauthorized purposes that included the payment of principal and interest to existing investors.  George also used investor funds to sustain a lavish lifestyle that included throwing a Sweet 16 party for his daughter, the mortgage and extensive renovations on his New Jersey home (that has since been foreclosed), taxes to the IRS, and traffic tickets. George also spent $2,905 for a reality video about himself (a “sizzle reel” for “The Tate Show,” is available on YouTube).

After his conviction in October 2013, Tate lodged a series of unsuccessful post-trial motions arguing for his acquittal on various grounds and later gained court approval to represent himself.  Allegations also surfaced that Tate had sent correspondence while behind bars to some of his victims soliciting them to invest with him again. 

George maintained his innocence throughout his prosecution, claiming that investor losses were due to "delays" in his projects while also blaming prosecutors for withholding crucial exculpatory evidence.  In closing arguments to Judge Cooper on the final day of George's sentencing hearing, a federal prosecutor invoked another basketball great, Michael Jordan, in urging the maximum sentence for George:

“There was a saying about Michael Jordan that you couldn’t stop him — you could only contain him...I submit your honor that is exactly Tate George. ... You know that he will commit more crimes.”

While George spent four years in the NBA, his most memorable playing moment arguably came on a buzzer-beater in the third round of the 1990 NCAA tournament:

Authorities: Montana Man's Clint Eastwood Documentary Was Ponzi Scheme

A Montana man faces criminal charges and is barred from soliciting investors in Montana over allegations that efforts to solicit investors for a film project purportedly featuring Clint Eastwood were a Ponzi scheme.  Matthew McClintock, who also went by Michael Willis, currently faces fraud and theft charges stemming from allegations that he duped nearly $25,000 from investors who thought they were investing in a cowboy documentary that would be narrated by actor Clint Eastwood.  Ironically, a portion of investor funds were allegedly used for a $575 cowboy hat that was worn at a recent court hearing.  McClintock has since been barred from soliciting investments in Montana, and faces a possible 10-year sentence on each of six criminal charges he is currently facing.  

According to the Montana Securities Commission, McClintock solicited individuals and businesses under the premise that he was producing a western documentary that would involve a prominent historian and feature narration by actor Clint Eastwood.  McClintock told potential investors that the documentary would be aired on PBS and that a portion of the proceeds would go to the "Western Montana Breast Cancer Fund."  Ultimately, McClintock raised nearly $25,000 in the form of "advertising fees" and "sponsorship fees" from at least 70 individual investors and nine businesses, at least some of whom were promised a portion of film royalties and would have their names included in the film credits.  

However, authorities allege that McClintock's numerous promises were simply untrue.  Clint Eastwood had no involvement with the project, no prominent historian had been retained, and the "Western Montana Breast Cancer Fund" did not exist.  Nor had PBS signed on to air the documentary.  Instead, McClintock is accused of using investor monies to pay make interest payments to existing investors as well as to fund a spending spree that included living expenses, fine dining, and personal expenses that included the purchase of a $575 cowboy hat.  According to a Montana deputy securities commissioner, that same hat was worn by McClintock to a recent hearing.  

This is not McClintock's first run-in with the law.  He was previously convicted of fraud and obtaining money by false pretenses in Oklahoma, and later pleaded guilty to a fraudulent scam in 2010 for which he was still on probation.