Stanford International Bank – In Liquidation (the Bank)
Preference Payments to Creditors in the run up to insolvency
The discussion below is to provide a non-binding broad overview of the background to this issue. It is not intended to be a full examination of the legal issues, rights and remedies of the Bank and its CD holders. The Joint Liquidators’ (“JLs”) final position will be set out in their Court filings and may differ from the points below.
In the 6 months prior to the appointment of receiver managers in February 2009 over $1.5BN of funds were withdrawn from the Bank.
The objective of clawbacks is to have them returned to the pool of funds available to all creditors, so these monies can be redistributed more fairly, to the advantage of those who were left behind in the race to get money out.
These clawbacks fall into two categories
Clawbacks from Net Winners
$700m of this amount is due from Net Winners. There may be other Net Winners who were paid with interest prior to the 6 month preference period. If we are successful in pursuing these claims this amount will be available for distribution to the investors in future dividend payments. On the basis of Net Winners identified in the preference period this equates to approximately an additional dividend of approximately 14 cents in the dollar, based on claims of $4.88billion.
Clawback of Preferences
$600m of the total cash out flow was paid to Investors who have a claim in the estate. We are still investigating persons who received Preference payments, but who for reasons of their own have not claimed for their balance in the estate. If we recover these preference payments it will be available for distribution to all investors. This action will in effect be a redistribution from the investors who have withdrawn large amounts to investors who did not receive any funds or received relatively small amounts in the 6 month period. Investors claims will be increased by the preference once returned.
This will equate to an additional distribution of approximately 11 cents in the dollar based on claims of $5.23billion (once preference payments have been added back).
The two clawbacks cumulatively have the ability to increase distributions to those that did not benefit to an additional 25% of their claim. This assumes we are able to recover all these monies.
Those who did not receive a Preference will benefit by the full 11%. This is in addition to the Net Winner clawback which could yield an additional 14% making an improvement of 25% to creditors who did not benefit at the expense of other creditors. In the real world it is unlikely that we will be able to recover all the clawbacks, and actual distributions will likely fall short of the additional 25% that is theoretically possible.
We are running a test case to affirm that our position is correct and as a basis to pursue and collect preferences not returned voluntarily.
As a pragmatic option, we are presently open, within fairly tight parameters to ensure consistency and fairness, to negotiate settlements of preferences which reflect the specifics of your situation. Once we have obtained a Court ruling, we would expect to recover them in full.
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Most insolvency regimes in common law jurisdictions recognise that in the period immediately before the failure of an organisation, payments out to creditors/depositors may result in some creditors/depositors benefitting, often substantially, from the limited assets available while those not “preferred” by the insolvent organisation end up with little or nothing from which to recover. This is seen to be unfair and there are laws which attempt to address this unfairness such that the “preference” payments are repaid into the insolvency estate, so that all creditors can then share in the assets that ought to have been available pro rata to all creditors/depositors.
The legal regime in Antigua is no different and section 204 of the International Business Corporation Act which regulates this liquidation provides that “if the Court is satisfied…..that the business affairs of the corporation….. have been carried on or conducted….in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interest of….any creditor ……….the court may make any order to rectify the matter….” .
It is clear from SIB’s records that, during the last six months of the life of the Bank there was a “run on the bank”. That is to say, there was an exceptional effort by a number of depositors to get their money out for fear that the Bank would fail and be unable to make payments on creditors/debtors demands for return of their funds, that went well beyond the usual rate at which CD’s matured or were cashed in the ordinary course of business. This resulted in a large amount of the Bank’s liquid assets being paid out to a small group of creditors/depositors, leaving only approximately $300 million. After extensive consideration, it has been concluded that these redemptions of CD’s were not in the ordinary course of business and resulted in oppression or was unfairly prejudicial to or unfairly disregarded the interests of other creditors/depositors (CD holders).
Accordingly, this matter is being addressed with the Courts to seek the return of funds paid out in this period, and to then redistribute them over the entire creditor body.
Given that a distribution to creditors was imminent and that this issue would not be resolved by the Court before the distribution was made, the JLs sought interim directions as to how to proceed. As a result, the Court has Ordered that the JLs should holdback from making distributions to those who received what are “preference” payments pending final determination by the Court as to whether these monies are properly payable into the liquidation for redistribution.
All investors who received payments from the Bank in the 6 months prior to it ceasing to trade on 23 February 2009 (the Period), have received or will receive a Preference letter.
This is the first step in the process of recovering these monies so that they can be redistributed for the benefit of all creditors.
Your letter will detail the amount of your Preference payment. There will be an attached breakdown showing the payments you received in the Period which form the basis of the Preference Payment.
You are required to repay the Preference payment to the liquidation estate (the Estate).
If you have received a Preference letter, you will note that your allowed claim has increased from the original notification. This increase corresponds to the funds you have received as preference payments during the Period, net of any deposits. All distributions will be based on this revised amount, subject to any holdbacks discussed below.
On repayment of the Preference Payment, you will participate in any future distributions as normal.
Failure to repay the Preference Payment will result in the estate withholding dividends until sufficient funds are held back to offset the full amount of the Preference Payment you received. Once the hold back offsets your full Preference you will be eligible to receive future dividends.
Failure to repay may also result in the Estate seeking judgment against you and enforcing that judgment to collect the Preference amount.
You do have the right to challenge this decision. If you wish to challenge this decision, the Court has directed that, in the first instance, you must raise your objections directly with the JLs within 120 days of the date of your Preference letter at: email@example.com.
All the objections will then be collated by the JLs. Once the 120 day period expires, the objecting parties will be contacted and advised of the next steps, which would be to bring this matter before the Court in Antigua for final adjudication.
However, to expedite this process, we are exploring the possibility of bringing forward a representative action as soon as possible and before the 120 day period expires. We are also reviewing the possibility of funding the defence of our application by the representative creditor to ensure the legal issues are fully explored and argued.
Based on an original investor’s allowed claim of $10,000.
In this case, the investor has received payments of $2,500, net of deposits, in the 6 months prior to 23 February 2009 (the Preference payments).
Scenario 1 – Preference pay back
The investor pays back $2,500 to the estate.
The investor’s claim is now increased by $2,500 to take their total claim to $12,500.
The investor is now eligible to participate in all future distributions. For example if the first distribution was at 1% they would receive 1% of $12,500 equalling $125.
Scenario 2 – Preference not paid back
The investor does not pay $2,500 back to the estate.
The investor’s allowed claim is increased to $12,500.
The investor will not receive any distributions until their accumulated distributions to date exceed $2,500.
For example if the first distribution was at 1% they would not receive any funds. However $125 (1% of $12,500) would be deducted from the preference hold back leaving $2,375 ($2,500 – $125) preference payment to be held back in future distributions.
If the second distribution was at 2%, again the investor would not receive a payout, however they would receive a further credit of $250 (2% of $12,500) against their preference holdback amount, leaving $2,125 (ie $2,500 – 1st distribution holdback $125 – 2nd distribution holdback $250) as the amount that must be repaid to the estate as a preference before a payout is made to the investor.
And so on, until the distribution hold back is reduced to zero. The investor will then start receiving payouts from future distributions.
Failure to repay may also result in the estate seeking judgment against you and to collect the Preference payment.
If you have received notice that you have received a Preference here is the formula to work out how it affects you (on the assumption that we are successful in a full recovery).
1. Admitted claim $
2. Add Preference returned $
3. Revised Claim for Distributions $
4. Revised Claim (3.) at 11% $
If line 4 exceeds line 2, then you are an ultimate beneficiary of the Preference clawback process even if you have received a Preference.