Why don’t you go ahead and make a federal case of it, said one thousand husbands to one thousand wives, and then one of them went and did. On July 9, a Scarsdale resident named Elizabeth Bingham-Perry filed a civil RICO action in the U.S. Southern District’s White Plains courthouse.
Her husband, Jeffrey, an executive at hedge fund marauder Dan Loeb’s $9 billion Third Point LLC, had engaged in a pattern of criminal conspiracy, she alleged, committing mail and wire fraud to conceal more than $1 million in assets since he’d first hired a divorce lawyer in 2006. That was just the beginning. Mr. Perry’s entire career, his wife said, “has been marked by repeated criminal activity in his quest to amass his fortune.”
And that’s where the complaint took a tabloid turn. To support her claim, the plaintiff cited Mr. Perry’s status as a defendant in a 2006 lawsuit accusing the hedge funder of participating in a scheme to manipulate the stock of a Canadian company called Fairfax Financial. Ms. Bingham-Perry didn’t stop there. She also noted the involvement of three hedge fund managers—Mr. Loeb, James Chanos and Steven A. Cohen—who were co-defendants in the Fairfax case.
It hardly matters that all four men had been dismissed from the Fairfax lawsuit, or that Ms. Bingham-Perry’s complaint will stand or fall on her charge that Mr. Perry concealed assets. If a judge agrees to hear her case, the plaintiff’s legal team could potentially drag some of the heaviest hitters in the hedge fund world into the discovery process, forcing them to answer questions about events that took place nearly a decade ago.
Mr. Perry’s lawyer says the lawsuit is groundless, a crude play to influence settlement negotiations. But even if the complaint amounts to no more than a shakedown attempt, it’s unlikely to fade quietly.
Pay up, or have your dirty laundry aired in public—that’s the blueprint for most blackmail. But using federal racketeering law to threaten to expose hedge-fund managers’ most closely guarded secrets takes a certain amount of ingenuity. Even if the judge dismisses Ms. Bingham-Perry’s complaint, the suit has placed her among the vanguard of hedge fund wives seeking to establish civil RICO as a go-to weapon in high-finance divorce. And when marriages go south, affluent spouses tend to fling whatever piece of legal crockery is close at hand.
“The rich have more complicated splits because there are more assets to divide,” noted Jill Kargman, whose novel The Ex-Mrs. Hedge Fund chronicled the pre-financial crisis extravagance of Manhattan’s leading financial couples, imagining a world of $675,000 bowls of matzoh ball soup and orgies on private jets.
But it doesn’t take a novelist to imagine juicy tales of high-finance divorce—the real-life cases making headlines in recent years have been plenty salacious.
Last month, for instance, hedge fund manager Daniel Shak sued his ex-wife, the professional poker player Beth Shak, for failing to disclose certain assets during their divorce. To wit: a collection of 1,200 pairs of Christian Louboutins and other designer shoes that Ms. Shak herself values at a cool $1 million. (Mr. Shak withdrew the suit last week.)
In March, Highland Capital Management founder James Dondero argued that he was insolvent according to Texas family law, despite showing income of $36 million on his 2010 tax returns. According topress reports, Mr. Dondero, who through Highland manages $23 billion in assets, wanted to avoid making good on a prenuptial agreement that would have capped his wife’s settlement at a mere $5 million.
And then there was the case of self-proclaimed genius and private equity investor Henry Silverman, who attempted to introduce “scientific” evidence into his divorce proceedings to demonstrate that his $450 million fortune derived from his own innate qualities—and thus were not subject to equitable distribution as marital assets. (A bold effort, but shot down in court.)
“They’re more strategic in divorce because they have to be,” Karen McMahon, a Long Island-based divorce coach, said of her high-net-worth clients.
Such strategies seem to be proliferating of late. For instance, prenups are increasingly being written to include “escalator clauses”—by which a spouse is guaranteed a greater piece of the pie the longer a marriage lasts. Meanwhile, postnups have become de riguer in the hedge fund world. Some hedge funds actually require new partners to sign postnuptial agreements with their spouses as a condition for gaining ownership shares in the firm. The impetus is less about preventing a spouse from winning controlling shares—an outcome generally precluded by partnership agreements—than it is a question of keeping an aggressive lawyer or accountant from slapping an exaggerated valuation on the firm.
“The idea is to keep nosy spouses out of the books,” said Ken Burrows, a lawyer who has written such agreements. It’s hardly a far-fetched concern. Earlier this year, Twin Capital Management founder David Simon sued his wife Linda, alleging that she hacked into his laptop. She said she was looking for evidence of extra-marital affairs; he said she accessed highly confidential financial records.
There’s a certain poetic justice to using civil RICO in hedge fund divorces. The statute—the Racketeer Influenced Criminal Organizations Act—was passed by Congress in 1970 to help prosecutors go after Mafia kingpins who kept their noses clean of day-to-day criminal activity. Forty years later, we’re living in an era defined in part by frustration that the titans who profited in the run-up to the various financial crises have mostly avoided criminal prosecution, and it seems fitting that spouses are using RICO to hit hedgies where the government can’t.
By the mid-1980s, RICO began to find broader applications, and its use in divorce cases dates back at least to 1997. The legal standard is a continuous pattern of criminal activity. In the context of Ms. Bingham-Perry’s complaint, the allegation is that Mr. Perry conspired with a divorce attorney as early as 2006 to wire marital assets to offshore and other secret accounts, then committed mail fraud by using the U.S. Postal Service to file false net-worth statements as part of the divorce proceedings.
Whether the plaintiff’s counsel, Eric Su, who replaced Clifford James yesterday, can convince a judge that the Mr. Perry’s alleged actions support a civil RICO case is no sure thing, as judges are often disinclined towards civil RICO cases. The incentives to roll the dice, however, are significant: 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. “If nothing else, it moves the settlement needle closer to the plaintiffs.”
There’s another temptation, of course: for a spouse who has long played second fiddle to the unceasing demands of a high-profile career (and what financier’sspouse hasn’t?), the chance to drag an ex’s business partners into the courtroom, or at least the press, can seem irresistible—just comeuppance for a workaholic partner.
And in Mr. Perry’s case, the divorce proceedings have threatened to embarrass his colleagues. A little background: In 2006, Toronto-based Fairfax filed suit against an array of parties including Third Point, Mr. Loeb and Mr. Perry, as well as Mr. Cohen’s SAC Capital and Mr. Chanos’ Kynikos Associates—alleging that the hedge funders spread false rumors about Fairfax in an attempt to drive down the share price, and that those hedge funds profited by shorting Fairfax stock.
Most of the plaintiffs in the case had been dismissed by spring of this year on the grounds that they shouldn’t have to stand trial in New Jersey, where Fairfax filed its suit. Ms. Bingham-Perry’s complaint therefore threatens to exhume a matter these guys thought was dead and buried.
Ms. Bingham-Perry isn’t the first hedge fund wife to try to wrangle insider-trading allegations into her divorce settlement. Patient zero might well be Patricia Cohen, who brought a RICO action alleging that her longtime ex—the same Mr. Cohen referenced in Ms. Bingham-Perry’s complaint—hid $5.5 million during in the couple’s 1990 divorce. That charge might have made headlines on its own: by the time Ms. Cohen filed her complaint, her ex-husband had become one of the richest and most influential hedge fund managers in the world.
But like Ms. Bingham-Perry after her, Ms. Cohen gave the public something extra to ogle, peppering her complaint with allegations that Mr. Cohen had engaged in insider trading to accumulate the assets his ex-wife would later say he concealed. That fit with a piece of Wall Street gossip that’s been circulating in recent years: that the government lawyers who’ve led the ongoing crackdown on insider trading have long placed Mr. Cohen at the top of their list.
A judge dismissed the case last year, though that decision is under appeal. Ms. Cohen, meanwhile, has moved onto her third attorney, Chicago-based RICO specialist Howard Foster, who just happens to be listed as a supporting attorney on Ms. Bingham-Cohen’s complaint.
At least Ms. Cohen alleged that her husband’s fast and loose attitude toward securities law had something to do with the assets she says he concealed. Ms. Bingham-Perry’s complaint merely argues that the Fairfax scheme establishes “that Jeffrey has committed or conspired to commute a pattern of racketeering activity in the last decade.”
Once a crook, always a crook, in other words. 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,” attorney Robert Stephen Cohen told The Observer, noting that the RICO action was filed just before a judge awarded Mr. Perry sole custody of the couple’s two 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 at least one part of their client’s case that doesn’t appear to track: “You don’t have an injury until you have a final result,” Jeffrey Grell, a Minneapolis-based lawyer who has litigated civil RICO actions on behalf of plaintiffs and defendants, 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.
Even if Ms. Bingham-Perry’s case is found to be without merit, however, its effects might be far-reaching. Just as the Cohen matter spawned the Bingham-Perry complaint, more than one lawyer familiar with civil RICO actions predicted the latter case would give rise to a series of copycats.