How angry an ex would you have to be to file racketeering charges against your spouse?
That’s a question Elizabeth Bingham-Perry could answer. The Scarsdale resident filed a civil RICO action against her husband Jeffrey Perry in the U.S. Southern District’s Westchester courthouse last week.
Mr. Perry, it so happens, is an executive at Third Point LLC, the hedge fund founded by Dan Loeb.
In the complaint, Ms. Bingham-Perry alleges that Mr. Perry lied on net worth statements submitted by mail in the divorce proceedings, concealing assets in excess of $1 million in offshore and other acounts. That’s just the start. Mr. Perry’s entire career, his wife alleges, “has been marked by repeated criminal activity in his quest to amass his fortune,” a claim she rests on Mr. Perry’s alleged participation in a scheme to drive down the share price of a Canadian company called Fairfax Financial.
Which is a pretty nasty thing to say about your husband of 23 years, and a crude but potentially useful cudgel for hammering out a settlement.
A little background: RICO is the Racketeer Influenced Corrupt Organizations Act, passed by Congress in 1970 to allow the government to prosecute mafia godfathers for crimes committed by their organizations, but written broadly enough to apply to any person who uses an enterprise to engage in a continuous pattern of criminal activity.
“You see it a lot in divorce cases,” said Jeffrey Grell, a lawyer at Grell & Feist who teaches a course on civil RICO at the University of Minnesota School of Law and has represented plaintiffs and defendants in civil racketeering charges. “Particularly when there have been efforts by one spouse to fraudulently conceal assets from the other.”
Indeed, Ms. Bingham-Perry isn’t the first hedge fund wife to play this hand.
In 2009, Patricia Cohen brought a civil RICO suit against SAC Capital founder and longtime ex Steven A. Cohen. A judge dismissed the case in March 2011, though it’s currently under appeal.
Coincidentally, attorney Howard W. Foster, who’s listed on Ms. Bingham-Perry’s complaint as a pro hac vice counsel, also represented Ms. Cohen.
The first half of Ms. Bingham-Perry’s complaint is fairly straightforward. She says that Mr. Perry used “U.S. mails and wires to perpetuate frauds and enrich himself in the divorce actions,” wiring assets into secret accounts after hiring a divorce lawyer in 2005, then intentionally omitting those assets in documents mailed to Ms. Bingham-Perry and the New York State Supreme Court last year.
Whether the plaintiff’s counsel—Clifford James, who once sued the Andy Warhol Foundation on behalf of the Velvet Underground—can convince a judge that the Mr. Perry’s alleged actions support a civil RICO case is no sure thing, but there are clear incentives to filing claims like this one: Plaintiffs are entitled to three times the damages, plus lawyer’s fees, in civil RICO suits.
“I sometimes like to challenge my students with the question, ‘Is it professional malpractice not to characterize a claim as civil RICO?’” Sara Sun Beale, a law professor at Duke University, told The Observer, referring to the outsized damages available. “If nothing else, it moves the settlement needle closer to the plaintiffs.”
And yet, it’s the second half of her complaint that Ms. Bingham-Perry complaint that made us take note. In addition to Mr. Perry’s alleged concealment of marital assets, she says, her hedge funder soon-to-be ex-husband participated in a conspiracy to drive down the share price of Fairfax Financial.
The short story: In 2006, Toronto-based Fairfax filed suit against an array of parties including Third Point, Mr. Loeb and Mr. Perry, alleging that a group of hedge funds—including Mr. Cohen’s SAC Capital and James Chanos’ Kynikos Associates—spread false rumors about Fairfax in an attempt to drive down the share price, and that those hedge funds profited by shorting Fairfax stock. (Mr. Perry, as well as Mr. Loeb, Mr. Cohen, Mr. Chanos and their respective firms, have all been dismissed from the Fairfax case.)
Ms. Bingham-Perry’s suit alleges: “Jeffrey conspired to commit many instances of disseminating false information about Fairfax in order to harm it and enrich himself from 2003-2006.”
Now, dear reader, is when you might wonder what in the hell this has to do with divorce.
While that allegation doesn’t relate directly to the plaintiff’s claim that her husband concealed assets, the complaint argues that the Fairfax scheme establishes “that Jeffrey has committed or conspired to commute a pattern of racketeering activity in the last decade.”
Bankster is as bankster does, the argument might go, and what’s hiding marital assets offshore to someone who’s conspired to bring down an entire company?
At any rate, that’s one way to read the complaint, and at face value, not an implausible one. Wall Streeters have been concealing assets from their spouses as long as there’s been a such thing as divorce. Another theory, of course, is that Ms. Bingham-Perry is trying to drag the Fairfax case into her divorce to influence the settlement.
Which, not surprisingly, is the point of view Mr. Perry’s counsel is taking.
“It’s a completely frivolous lawsuit,” said attorney Robert Stephen Cohen, noting that the RICO action was filed just before a judge awarded Mr. Perry sole custody of the couple’s two minor children. “It was an attempt to intimidate him. As we speak, papers are being drafted to dismiss the case.”
Neither Mr. James nor Mr. Foster, the plaintiff’s attorneys, responded to email and telephone requests for comment. But there’s at least one part of their client’s case that doesn’t appear to track: “You don’t have a claim until you have a final result,” Mr. Grell told The Observer, which is to say that until a spouse shows damages derived from the concealment of assets, the racketeering law may not apply. But the financial part of the Perrys divorce won’t be contested for several months. “To have a RICO complaint, you almost have to have a crappy divorce result.”