Board of Governors v. Pharaon

140 F.R.D. 642, 1991 U.S. Dist. LEXIS 18689, 1991 WL 299445
District Court, S.D. New York·Decided December 26, 1991·No. No. 91 Civ. 6250 (PKL)·Published·Cited by 5 cases

Opinion

OPINION AND ORDER

LEISURE, District Judge.

In this action, InterRedec, Inc. (“InterRedee”), now moves the Court, pursuant to Fed.R.Civ.P. 60(b)(5) and 65(b), for modification of a Stipulation and Order signed by the Court on October 11, 1991 (“October 11 Stipulation”).1 The October 11 Stipulation modified the September 17, 1991 Temporary Restraining Order (“TRO”) that was issued by this Court on the application of the Board of Governors of the Federal Reserve System (“Federal Reserve”), initiating this action against the defendant, Ghaith R. Pharaon (“Pharaon”). For the following reasons, the Court hereby appoints Randy A. Mastro, Esq., of Gibson, Dunn and Crutcher, as a Special Master, pursuant to Fed.R.Civ.P. 53, to assist the Court in the administration of the Escrow and Security Agreement (“Escrow Agreement”) that was incorporated by reference into the October 11 Stipulation.

BACKGROUND

A. The September 17 Temporary Restraining Order

On September 17, 1991, the Federal Reserve applied to this Court for a TRO in aid of an administrative proceeding (the “administrative proceeding”) pending before Administrative Law Judge Walter J. Alprin of the Office of Financial Institution Adjudication. The administrative proceeding was initiated by the Federal Reserve on September 13, 1991, and sought a $37 million civil penalty against Pharaon for alleged violations of the Bank Holding Company Act of 1956, as amended, 12 U.S.C. § 1841-1850.

The Federal Reserve alleges in the administrative proceeding and before this Court that Pharaon received approval from the Federal Deposit Insurance Corporation in June 1985, pursuant to 12 U.S.C. § 1817(j), for his acquisition of 100% of the shares of the Independence Bank, Encino, California (“Independence”), based on his representation that the acquisition was being made in his individual capacity. In fact, contends the Federal Reserve, Pharaon purchased Independence on behalf of the Bank of Credit and Commerce International, S.A., Luxembourg (“BCCI”) and International Credit and Investment Company (Overseas) Ltd., George Town, Grand Cayman (“ICIC”), pursuant to a Nominee Agreement that ICIC had entered into with Pharaon on BCCI’s behalf.

The TRO was sought pursuant to 12 U.S.C. § 1818(i)(4), which provides that:

(4) Prejudgment Attachment.—

(A) In general.—In any action brought by an appropriate Federal banking agency ... in aid of, or to enforce an order in, any administrative or other civil action for money damages, restitution, or civil money penalties brought by such agency, the court may, upon application of the agency, issue a restraining order that—
(i) prohibits any person subject to the proceeding from withdrawing, transferring, removing, dissipating, or disposing of any funds, assets or other property ...
(B) Standard.—A permanent or temporary injunction or restraining order shall be granted without bond upon a prima [644]*644facie showing that money damages, restitution, or civil money penalties, as sought by such agency, is appropriate.2

Section 1818(i)(4) was enacted on November 29,1990, as part of Pub.L. No. 101-647, Tit. XXV, § 2521(b)(1), with a remarkable dearth of legislative history. The name of Title XXV was “Banking Law Enforcement,” and the name of the Subtitle containing the relevant amendment was “Protecting Assets from Wrongful Disposition.” See 1990 U.S.Code Cong. & Admin.News (104 Stat.) 4859, 4863. The only comment on the statute itself was the broad statement that “[tjhe purpose of ... Banking Law Enforcement is to enhance the enforcement powers of the Department of Justice and the Federal financial institution regulatory agencies with respect to unlawful activities affecting federally insured financial institutions.” H.R.Rep. No. 101-681(1), 101st Cong.2d Sess. 74, reprinted in 1990 U.S.Code Cong. & Admin.News 6472, 6478.

Examining the face of section 1818(i)(4) and its sparse legislative history, it is clear to the Court that Congress was concerned with preventing capital flight in the wake of allegations of bank fraud. Thus, the issuance of a TRO is mandatory upon a prima facie showing that the remedy sought by the agency is appropriate.3 Accordingly, the Court issued a TRO that enjoined the “withdrawing, transferring, removing, dissipating, or disposing of any funds, assets or other property which [Pharaon] either owns or controls, directly or indirectly, or through a business entity he owns or controls.” TRO, at 3. The TRO also enjoined the sale of the American Southern Insurance Company (“American Southern”), a subsidiary of InterRedec, to Vista Resources, Inc. (“Vista”).

B. The October 11 Stipulation and the Escrow Agreement

In response to InterRedec’s request for permission to consummate the sale of American Southern, and as a result of extensive negotiations, the Federal Reserve and InterRedec executed, and the Court signed, the October 11 Stipulation, which incorporated the Escrow Agreement by reference. The October 11 Stipulation permitted the sale of American Southern to proceed, contingent on the proceeds of the sale being deposited into an escrow account to be maintained by the Federal Reserve Bank of New York. It was stipulated and agreed that a $42 million balance in cash, notes and property would be maintained in escrow, sufficient to cover the potential $37 million penalty facing Pharaon, and a $5 million tax claim asserted by Vista against American Southern. Among the collateral to be included in the escrow account was a first priority lien on the Sterling Bluffs Plantation, in Richmond Hill, Georgia (“Sterling Bluffs”), and a second priority lien on the Ramada Resort Maingate East Hotel, in Kissimmee, Florida (“Ramada Resort”). See Escrow Agreement, at 4-9.

Under the Escrow Agreement, InterRedec was given a conditional right to withdraw cash from the escrow account, if two conditions are met. First, InterRedec must deposit other property into escrow to substitute for the withdrawn cash, “such that [645]*645the [Federal Reserve] shall remain secured to its satisfaction ... after withdrawal of any cash.” Id. at 16. The determination whether this condition is met is “in [the Federal Reserve’s] sole discretion.” Id. at 17. However, in making its decision, the Federal Reserve must apply “reasonable commercial standards,” id. at 23, including an appraisal “by an independent appraiser selected by the [Federal Reserve] but compensated by InterRedec.” Id.

The second condition requires that cash withdrawals be expended for an approved purpose. Id. The Escrow Agreement provided for the appointment of a Monitor, Randy M.

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Board of Governors v. Pharaon, 140 F.R.D. 642, 1991 U.S. Dist. LEXIS 18689, 1991 WL 299445 (S.D.N.Y. 1991).

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