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United States of America v. Barry Fischer Law Firm

February 23, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
BARRY FISCHER LAW FIRM, LLC, KESTEN DEVELOPMENT CORP., TURIST-C MBIO VIAGENS E TURISMO LTDA, RICHARD E.L. FOGERTY AND G. JAMES CLEAVER AS LIQUIDATORS OF TRADE AND COMMERCE BANK, AND THE FEDERATIVE REPUBLIC OF BRAZIL, INTERPLEADER
DEFENDANTS.



OPINION

This case is an interpleader action brought by the United States to determine the proper recipients of approximately $8.2 million seized in 1999 by the Government from United States bank accounts held for the benefit of Kesten Development Corporation ("Kesten"), a British Virgin Islands corporation, and its parent, Turist-Cambio Viagens Turismo LTDA ("Turist"), a Brazilian company.

Interpleader defendant the Federative Republic of Brazil ("Brazil") moves to discharge the United States as plaintiff and dismiss the claims of fellow interpleader defendants Barry Fischer Law Firm ("Barry Fischer") and Richard Fogerty and G. James Cleaver as liquidators ("the Liquidators") of Trade and Commerce Bank ("TCB"). Lastly, Brazil moves to dismiss the interpleader complaint in its entirety on the grounds of comity and forum non conveniens.*fn1

For their part, the Liquidators*fn2 move to permit execution on a judgment received against Kesten in the British Virgin Islands (the "BVI judgment").

All motions are denied.

Background

This opinion assumes familiarity with the tortured history of the seized cash that composes the interpleader fund. An account of these facts can be found in this court's earlier opinion, dated January 15, 2011, dealing with certain prior motions. See United States v. Barry Fischer Law Firm, LLC, No. 10-cv-7997, 2011 U.S. Dist. LEXIS 756, at *1-6 (S.D.N.Y. Jan. 5, 2011).

In summary, the United States seized $6,871,042.36 from the "Venus" account at the New York branch of MTB Bank for the benefit of Kesten and $1,345,771.64 from the "Tadeland" account at the New York branch of EAB Bank for the benefit of Turist. In 2000, the U.S. instituted a forfeiture action against Kesten and Turist in the District of New Jersey. The action was ultimately dismissed and the money was ordered returned. See U.S. v. $8,221,877.16, No. 00 Civ. 2667, slip op. (D.N.J. July 6, 2004).

Thereafter, the United States District Court for the District of Columbia granted the U.S. a restraining order against the funds on January 26, 2005 pending the outcome of a Brazilian criminal proceeding, discussed below. In 2010, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in an unrelated case, In re Tiger Eye Investments, Ltd., 613 F.3d 1122 (D.C. Cir. 2010), that resulted in the vacatur of the restraining order.

In the meantime, conflicting claims against the money had surfaced, prompting the Government to file this action. For present purposes, a description of the bases for these claims will suffice.

A) Brazil

In 2004, the Federal Court in Curitiba, Brazil issued a Seizure Order covering the two accounts in question: the "Venus" account containing $6,871,042.36 held at the New York branch of MTB Bank for the benefit of Kesten and the "Tadeland" account containing $1,345,771.64 held in the New York branch of EAB Bank for the benefit of Turist. Brazil is attempting obtain this money through forfeiture proceedings related to the criminal prosecution of Kesten's and Turist's principals, Antonio Pires de Almeida, Ruriko Inoue, and Roseli Ciolfi ("Pires defendants"), for money laundering and other crimes in the Sixth Specialized Federal Court of Sao Paulo. All evidence has been submitted in the criminal case, and the parties await a verdict from the Sao Paulo court. Should the court find the Pires defendants guilty, Brazil will argue in the forfeiture proceeding that Kesten and Turist are shell companies that facilitated the Pires' defendants' criminal activities, and that the money in the Venus and Tadeland is thus forfeit as criminal proceeds. Should it win a forfeiture judgment, Brazil would then initiate a proceeding to have the United States enforce the judgment pursuant to its treaty obligations and 28 U.S.C. § 2467.

B) Barry Fischer

Barry Fischer represented Kesten and Turist in the civil forfeiture action brought by the United States against Kesten and Turist and ultimately resolved in favor of the defendants, and its claim derives from unpaid legal fees in that representation. Its theory in support of its claim, however, has changed since this litigation began. In its answer to the interpleader complaint, Barry Fischer in effect made a claim based upon an oral agreement granting Barry Fischer a contingent fee on one-third of the seized funds as payment for representation. But in its Declaration of August 9, 2011, Barry Fischer withdrew that claim and asserted an amended claim based on a written contract allegedly entered into by Barry Fischer (through a predecessor entity Lacaz Martins, Srour, & Fischer, LLP) and Kesten, through its principal Antonio Pires de Almeida, on February 16, 2000. The contract recites amounts due as a result of services already rendered by Barry Fischer, establishes new hourly rates and a contingent fee to compensate for future representation, and creates "retaining and charging liens" on "any recovery of funds seized from the Kesten account" to cover "all open balances stated herein, together with any contingent fees which may be due.." Ex. 1 of Def. Barry Fischer Decl. at 3. Barry Fischer now claims that this contract entitles it to a lien on the Venus account in the amount of $894,050.09.

C) Liquidators

The Liquidators determined that TCB's corrupt owners, the Peirano family, had improperly funneled money to Kesten's "Venus" account at MTB. In an attempt to recover this money, TCB sued Kesten in the British Virgin Islands ("BVI") in August 2010 for its knowing and unconscionable receipt of said money. To do so, TCB reinstated Kesten as a BVI corporation by paying its outstanding fees to the BVI government and served Kesten's registered agents in the BVI, Sucre and Sucre Trust Limited, who resigned their post shortly thereafter. It is unclear whether Sucre attempted to notify Kesten's principals of the claim against the corporation, and in any event Kesten did not file an Acknowledgment of Service as required by BVI law. TCB then sought default judgment under Rule 12.4 of the BVI Civil Procedure Rules, which provides for automatic default judgment for failure to file an Acknowledgment of Service within the prescribed period on a claim for a specified sum of money. This default judgment ordered Kesten to pay restitution of $15,936,329 to TCB as claimant. The Liquidators then successfully moved for recognition of the BVI judgment in the Southern District of New York Bankruptcy Court, where TCB has an ongoing Chapter 15 proceeding. Liquidators now move to enforce the BVI/S.D.N.Y. judgment against the interpleaded fund.

D) Kesten and Turist

In addition, both Kesten and Turist are named as interpleader defendants, but neither has appeared in this action. Their possible claim to the interpleaded money would appear to derive from the 2004 District Court of New Jersey decision ordering its return.

Brazil now moves to dismiss the interpleader complaint in its entirety on grounds of international comity and forum non conveniens. It also moves to discharge the United States as interpleader plaintiff and dismiss the claims of interpleader defendants' Barry Fischer and Liquidators. Liquidators move for a writ of execution to enforce their BVI ...


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