A Canadian judge has finally ruled that KPMG can begin distribution to investors
of some of the assets of defunct hedge fund Portus Alternative Asset Management,
which was shut down by regulators in 2005. KPMG, the receiver, says that it
now has permission to distribute about $130m in cash.
Mr Justice Colin Campbell of the Ontario Superior Court issued an order that
will allow receiver KPMG to mail 20,000 cheques in the fall. KPMG has said that
eventually about 86% of the $800m collected by Portus will be returned.
KPMG said last summer that about $662.15 million (Canadian) and about $37.2
million (US) of Portus assets have been found and secured in 130 bank and investment
accounts in Canada, the Turks and Caicos and the Cayman Islands. The majority
of Portus assets remain tied up in notes issued by France's Société
Générale which were purchased for $529m, and mature between 2008
and 2011. KPMG is asking the bank whether some of those notes can be redeemed
before their maturity dates.
Founder of Portus Boaz Manor - who fled to Israel after Portus collapsed -
and co-founder Michael Mendelson have been charged by the Ontario Securities
Commission with failing to act in good faith with clients. Mendelson was also
charged with unregistered trading and issuing securities without filing a prospectus.
The maximum penalties are C$5 million and five years in jail.
Boaz Manor says he wants to return to defend himself, but the Israeli courts
have stopped him from leaving until he disgorges $9m worth of diamonds which
he allegedly bought with Portus money. Last week, the Israeli Supreme Court
judges ruled that the location of the diamonds is unclear because Mr. Manor
and one of his associates each claim the other has them.
Earlier this year, KPMG filed suit in an Ontario court against Montreal lawyer
Anthony Malcolm, alleging that he helped Portus founder Boaz Manor to siphon
off assets through offshore accounts both before and after the fund collapsed.
"There was no legitimate business purpose for the creation or use of these
accounts," said KPMG in the suit, which asks for damages of C$25m. Accounts
were set up in the Cayman Islands, the Turks and Caicos Islands, and in Switzerland.
In March, Manulife Securities, which had recommended Portus to investors (but
later repaid the commissions it had received) said it was proceeding with a
proposed class action against Société Générale,
Société Générale (Canada), Lyxor Asset Management
and Société Générale Securities Inc, which according
to KPMG hold the bulk of the recoverable Portus assets.
Said Manulife: "This proceeding seeks damages from Société
Générale based on the loss of invested capital as well as losses
resulting from Portus Investors' inability to achieve a return on their investment
due to the collapse of Portus. Any award of damages in the proposed class proceeding
will go to benefit all Portus Investors. To the extent that the Estate of Portus
makes distributions, the damages claimed through the proposed class proceeding
will be reduced but not eliminated. Recovery of remaining damages will continue
to be sought from Société Générale.
"In mid-2005, MSIL acted quickly to repay all of its own clients who were
referred to Portus by MSIL. These clients were repaid 100% of the principal
they invested with Portus by MSIL.
"From the outset, MSIL has committed to do the right thing for its clients
and to do what it can to assist all Portus Investors in minimizing their losses
from the unfortunate situation surrounding the collapse of Portus. No one other
than Portus Investors should profit. MSIL will not profit from this action.
To the extent that there is an ultimate net realization by MSIL greater than
the principal amount invested by its clients, MSIL will credit its clients with
this excess", said J-P. Bisnaire, Senior Executive Vice President, Business
Development and General Counsel of Manulife Financial."