On Dec. 5 the joint liquidators for Stanford International Bank, the Stanford-owned bank in Antigua that issued bogus CDs to investors, filed a renewed motion for the Antiguan proceedings to be recognized as the authoritative Stanford insolvency. Dallas federal district court judge David Godbey, who is overseeing the U.S. receivership, will hear arguments on Dec. 21.
The motion could be a game changer. (The brief is here.) Filed by Edward Davis at Miami’s Astigarraga Davis, Christopher Redmond at Husch Blackwell, and Joseph Wielebinski at Dallas’s Munsch Hardt Kopf & Harr on behalf of the Antiguan joint liquidators at Grant Thornton, it asks the judge to recognize SIB’s Antiguan liquidation as the “foreign main proceeding” under Chapter 15, a 2005 bankruptcy statute that governs the handling of cross-border insolvencies. If granted full recognition, the Antiguan liquidators would assume the rights of a U.S. bankruptcy trustee in U.S. courts.
Such a ruling could throw a big wrench in U.S. efforts to repatriate investor funds. Under international insolvency guidelines, the U.S. receivership is not recognized as an insolvency proceeding. Since their appointment in May, the Antiguan liquidators have already managed to block ongoing efforts by the Department of Justice to repatriate of tens of millions of dollars of frozen Stanford assets to the U.S. from the U.K. and Canada, according to Baker Botts’ Kevin Sadler, lead legal advisor to Janvey.
Anger on Capitol Hill over the Antiguan moves prompted four Republican senators–David Vitter (R-Louisiana), Richard Shelby (R-Alabama), Thad Cochran (R-Mississippi) and Roger Wicker (R-Mississippi)–to introduce a resolution on Thursday calling for suspension of aid to Antigua.
Janvey, the court-appointed Stanford examiner, the Securities and Exchange Commission, and the investors committee have all filed briefs opposing recognition of the Antiguan proceedings. (The receiver’s brief in opposition to the motion is here.) “Our view is that not only are these people not entitled to be the main proceeding, but they should not be recognized at all,” Sadler said. “They’ve done nothing in the countries that they have been recognized in.” (The Antiguan proceeding obtained formal recognition in the U.K., Switzerland, and Antigua in 2009.)
Although the Antiguan bank being liquidated is just one of 145 Stanford entities, “the Antiguan receivers believe they have the right to all claims and assets that passed through the Stanford International Bank–every dollar that Stanford took in from CD customers,” Sadler told us. Chapter 15 status would give the parties in the Antiguan proceeding greater leverage to take control of the funds already held overseas and to assert claims against the U.S. receiver, Sadler said. There appears to be little or no precedent for a foreign liquidator to use a Chapter 15 motion to challenge a receiver’s control of U.S.-based assets.
Sadler characterized the Chapter 15 motion as a ploy by the Antiguan liquidators to divide the estate. “It’s not like there is any new money to be found,” he said. “Fracturing this estate will not create any new pots of gold.” Sadler said the move was driven by the liquidators’ need to fund their own proceeding.
“We have no interest in taking over the receivership,” countered Davis of Astigarraga Davis, counsel to the Antiguan liquidators. “We are committed to a collaborative approach.” Davis noted that the estate has paid professional fees of just $4.5 million to date–far less than the $115 million the receiver has spent. “It’s a lot of gall for them to be throwing stones,” Davis said. Meanwhile, since May, the Antiguan liquidators have recovered $20 million from the U.K., $3 million from Panama, and have frozen $73 million in Stanford land sales, among other actions.
Sadler said that the U.K. funds obtained by the Antiguan liquidators came from a pool of $100 million that had been frozen in the U.K. under criminal forfeiture proceedings at the DOJ’s request?and that the DOJ was attempting to repatriate.
The Chapter 15 petition was originally filed by Grant Thornton’s predecessors at Vantis plc in 2009, but it was stayed in early 2010 after the Antiguan team signed a cooperation agreement with Janvey. Under the deal, both sides had agreed to abstain from interfering in each other’s recovery efforts and to eventually come together to work on distribution. But the agreement was never approved in U.S. or Antiguan courts.