Zeek Receiver Blasts Objections to Claims Process

"Hundreds of thousands of Zeek victims have waited patiently for months as the Receiver has completed the work necessary to provide an easy to use, fair and efficient claims process.  But yet again, it appears that counsel pursuing their own agenda has come forward to delay and raise the costs of the Receiver moving forward in the best interest of all Zeek victims."

The court-appointed receiver tasked with recovering assets for victims of the $600 million ZeekRewards Ponzi scheme addressed objections to his proposal for the establishment of a claims process, dismissing the objections as meritless and questioning the underlying motivations of those objectors.  Kenneth Bell, the receiver, asked that the Court deny the objections, which currently stand in the way of the court's approval of a claims process that could begin returning funds to the estimated 800,000 victims of ZeekRewards.  The objections come from counsel for a parallel class action that was filed on behalf of Zeek victims, captioned as Belsome, et al v. Rex Venture Group, and raise three primary issues: (1) that the proposed notice to be send to interested parties somehow violated attorney rules of professional conduct prohibiting an attorney's interaction with represented parties, (2) whether a claimant's use of an attorney is permitted, and (3) that the proposed release sought in the Claims Process is improper.

The first objection takes issue with the proposed procedure of the mailing of a court-approved notice to all potential claimants, whether or not they are represented by counsel, notifying them of the beginning of the claims process.  Belsome's counsel claims that this would violate attorney rules of professional conduct governing communication with individuals that are currently represented by an attorney.  The Receiver dismissed this claim, noting that the rule was intended to protect adverse parties, which is clearly different than the current situation where the victims are those parties that the Receiver and the Court are attempting to help.  Additionally, while not noted in the response, it is axiomatic that the Receiver functions as an arm of the Court in his official functions as Receiver.  Indeed, the Receiver notes in a footnote that the only possible basis for such an objection could whether the lawyers' financial interests

will be harmed by their alleged clients visiting the receivership website and considering whether they want to pay counsel in connection with the claims process, which is intended to be simple and easy to use.

The Receiver indicated that he has already received communications from victims expressing their fear that they may be victimized by attorneys seeking to take advantage of their uncertainty in the claims process.

Second, the Receiver brushed aside any insinuation that he was seeking to limit a claimant's access to legal representation, noting that the Belsome clients and any potential claimants are free to seek the assistance of counsel on their behalf - that is, as long as appropriate notification is provided to the Receiver of that representation.  

Finally, the Receiver addressed the objection to the release sought in the claims process.  As part of the claims process, and in exchange for a claimant being permitted to receive pro rata distributions, the Receiver is requiring each claimant to release all claims a victim has against the Receiver, his team, and the Receivership Estate.  This arises partly due to the fact that, legally, each victim currently holds a claim against the Receivership Estate for the return of their pro rata share of funds.  In essence, if a claimant was permitted to retain that claim and receive pro rata distributions, they could theoretically recover more than their losses - which would be contrary to the intent and function of an equity receivership.  Bell states that the release is narrowly tailored to address these issues, and notes that each claimant remains free to pursue claims against current or former Zeek employees or entities.

In closing, Bell again takes aim at a growing group of counsel that, in "pursuing their own agenda," have only succeeded at "delay[ing] and rais[ing] the costs of the Receiver."  Ironically, it is this same group that also has been vocal about the Receiver's costs in maintaining the Receivership.  The Receiver asks that the objections be denied, and that his motion for the approval of a claims process be granted.  

A copy of the Motion is here. 

More Ponzitracker coverage of Zeek is here.

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Wisconsin Man Who Duped Father and Brother in $5.3 Million Ponzi Scheme Ordered to Pay $5 Million in Penalties

The U.S. Commodity Futures Trading Commission announced it had obtained an order requiring a Wisconsin man to pay restitution and a fine exceeding $5 million for operating a Ponzi scheme that counted his own family among the victims.  Eric N. Schmickle, 37, was ordered to pay the penalties as part of a CFTC enforcement action that accused Schmickle of operating a commodity-based Ponzi scheme that raised more than $5 million from investors.  Schmickle was also criminally charged in connection with the scheme, and was sentenced to a three-year term last month. 

According to authorities, Schmickle promised to trade commodity futures contracts through his companies, Q Wealth Management and Aquinas.  Friends and family members, including Schmickle's father and brother, gave him $300,000 to start in 2009, with the understanding that Schmickle would be entitled to 25% of any investment profits.  Schmickle promised investors he would achieve substantial gains, which attracted additional investors that subsequently contributed over $4 million.  However, these promises of lucrative gains were untrue, and Schmickle was far from the successful trader he claimed to be.  In fact, rather than 25% gains, Schmickle instead racked up trading losses that exceeded $3 million.  Schmickle also misappropriated investor funds for his own personal expenses, and only several thousand dollars remained when the scheme was uncovered.

Schmickle plead guilty to a single count of wire fraud in July 2012, and his plea agreement called for him to pay approximately $3 million in restitution to victims.  While federal sentencing guidelines called for a sentence ranging from 57 to 71 months, the federal judge tasked with sentencing Schmickle chose to make a downward departure from the recommendation.  

Utah Man Pleads Guilty To Running Two Separate Ponzi Schemes

A Utah man agreed to plead guilty for his involvement in two separate Ponzi schemes - while on parole for a previous conviction for a third Ponzi scheme - that took in more than $30 million from investors.  Wayne Ogden, of Koosharem, Utah, was convicted earlier this year for his role in one of the Ponzi schemes, and in a deal with authorities, agreed to plead guilty to one count of wire fraud and one count of securities fraud in exchange for a recommended 10-year sentence to be served concurrently in both cases.  As part of the deal, Ogden will also agree to an order of restitution exceeding $3 million for each scheme.

Ogden was originally indicted in December 2007 for running a real estate Ponzi scheme in Kiowa, Colorado, where investors were promised returns as high as 100% from the development of a 360-acre parcel of land.  However, while awaiting trial on those charges, Ogden was charged with concocting a separate Ponzi scheme that solicited underwater homeowners to provide assistance with refinancing and restructuring mortgages.  Ogden's company, Paradigm Acceptance LLC ("Paradigm"), promised short-term returns ranging from 20% to 100%, assuring investors their money was secured by property.  In total, Paradigm raised more than $29 million from investors.

However, each venture was nothing more than an elaborate Ponzi scheme where new investor funds were used to pay older investors, thus creating the appearance of a successful operation.  Of the $29 million Ogden raised from Paradigm investors, nearly $23 million was paid back to older investors, and nearly $2 million was paid in salaries to Ogden and his brother.  

Not surprisingly, at the time Ogden began soliciting investors for his first scheme, he was on parole for a $7 million Ponzi scheme he operated from 1995 to 1997 that ultimately netted him a 15-year prison sentence.  However, he was paroled after just 28 months, 

Ogden was convicted of yet another similar scheme during the mid-1990's when five hundred investors lost approximately $7 million.  He was sentenced to two consecutive terms of up to fifteen years, but was paroled after serving 28 months. 

Judge Denies Former Senator's Claim in Rothstein Ponzi Scheme

A Florida bankruptcy judge has ruled that a former New York senator did not have a valid claim to participate in the claims process for victims of Scott Rothstein's $1.4 billion Ponzi scheme.  Alfonse M. D'Amato, a New York senator from 1981 to 1999, had invested $1 million with a fund that invested heavily with Rothstein.  United States Bankruptcy Judge Raymond Ray agreed with the court-appointed trustee, Herbert Stettin, that D'Amato's claim was "duplicative" and that he lacked standing to participate in the claims process established for investors that invested directly with Rothstein.

D'Amato originally invested $1 million with the Banyan Income Fund ("Banyan Fund"), which had invested over $775 million with Rothstein as its largest investor.  Banyan solicited investors for Rothstein's "employee settlement financing", touting the investment as a lucrative "niche market" that "lacks visibility due to confidentiality issues."  The Banyan Fund later was pushed into bankruptcy, and the co-founders, George Levin and Frank Preve, were later charged by the Securities and Exchange Commission for multiple violations of federal securities laws relating to their solicitation of investors for Rothstein's fraud.  Levin also previously agreed to surrender the bulk of his estimated $100 to $200 million in assets to the Rothstein bankruptcy estate.  

Stettin objected to D'Amato's claim, arguing that D'Amato did not make any 'investments' with Rothstein, but rather with Banyan Fund.  This logic flows from recent court decisions involving investors in feeder funds of Bernard Madoff's massive Ponzi scheme, where those 'indirect' investors were not permitted to recover from the bankruptcy estate because they were not customers of Madoff.  A recent Second Circuit Court of Appeals case cited several factors in support of this logic, including that the indirect investors:

• Had no direct relationship or accounts with the firm;
• Were not identified in the firm's books and record;
• Had no property interest in the assets invested by the feeder fund; and
• Lacked control over the feeder fund's investments.

Thus, because D'Amato had already filed a claim in the Banyan Fund bankruptcy, Stettin argued that the claim in the Rothstein bankruptcy was duplicative and, ultimately, unwarranted.  D'Amato never filed a response to Stettin's objection. 

Stettin has recently proposed a distribution plan that he believes could fully compensate investors for their losses.

A copy of Stettin's objection is here.

A copy of the Order sustaining the objection is here.

Oregon Hedge Fund Manager Pleads Guilty to $37 Million Ponzi Scheme

An Oregon hedge-fund manager has agreed to plead guilty to charges he raised as much as $50 million from investors in a massive Ponzi scheme.  Yusaf Jawed, of Portland, Oregon, pled guilty to seventeen counts of mail fraud and wire fraud in an agreement with prosecutors that will result in a recommended sentence of 6.5 years in prison.  While Jawed at one point claimed he managed more than $60 million, the deal calls for Jawed to repay just over $6 million to 10 investors taken from February 2008 and September 2009.  

Jawed operated Grifphon Asset Management, LLC ("GAM") and Grifphon Holdings, LLC ("GH"), which served as the advisers to numerous hedge funds created and managed by Jawed, including Gripfhon Alpha Fund, L.P. ("Alpha") and Grifphon Iota Fund, L.P.  Investors were told through private placement memoranda that the funds experienced annual returns ranging from 12.8% to 132.5% from 2002-2008 through an investment strategy comprised of holdings in publicly-traded securities, private equities, biotech companies, foreign currencies, and commodities.  Investors were supplied with account statements and tax returns that purported to show constant profits in investor accounts, and were assured that their funds would be held at prominent institutions such as Lehman Brothers and UBS.  In total, Jawed raised at least $37 million from over 100 investors all over the United States.

However, little, if any, of the claims made to investors were true.  According to authorities, Jawed misappropriated millions of dollars in investor funds for his personal use, which included luxury vacations, lavish meals, and the payment of nearly $60,000 to settle a sexual harassment lawsuit.  Additionally, Jawed used investor funds as the source of fictitious interest payments designed to lend an aura of legitimacy to the scheme. 

When the scheme appeared on the verge of collapse in 2008, Jawed hatched a scheme with the help of Robert Custis, an attorney.  The two began telling investors that a third party would soon purchase the funds' assets, and investors would soon be reimbursed for their investment at a healthy profit.  This pattern of deception lasted an additional two years with the use of various excuses such as the time zone difference of the banks, "dotting I's and crossing T's," and confidentiality problems.  However, this third-party purchaser was none other than an entity created and controlled by Jawed.  For his role in the scheme, Custis was also charged by the SEC.

As part of his plea agreement, Jawed is also expected to cooperate with a lawsuit brought by investors against Grifphon's former accounting and law firms.  A positive outcome in the lawsuit could be investors' best chance of any recovery, as a federal court previously found that Jawed was penniless, throwing into question whether the restitution obligation is anything more than symbolic.  

A copy of the SEC's complaint is here.