In the matter of the Application of Lisa Mayer and Debra Mayer

Filing 127

ORDER OF VACATUR OF SECOND PRELIMINARY ORDER OF FORFEITURE AS TO SUBSTITUTE ASSETS AND PARTIAL VACATUR OF POST-CONVICTION RESTRAINING ORDER: NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT: 1. For the reasons set forth the Court's ord er dated April 18, 2022 (Doc. No. 1008), the Second Substitute Assets Order is hereby vacated in its entirety. 2. The Restraining Order is hereby vacated as to the Benefits Scheme Account only and shall remain in full force and effect in all other respects. (Signed by Judge Richard J. Sullivan on 4/20/2022) Sitting by Designation. (ate)

Case 1:12-cv-05240-RJS Document 127 Filed 04/19/22 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
:
UNITED STATES OF AMERICA
:
:
-v.:
:
GARY ALAN TANAKA,
:
:
Defendant,
:
:
-and:
SECURITIES AND EXCHANGE COMMISSION, :
:
:
Plaintiff
:
-v.:
AMERINDO INVESTMENT ADVISORS, INC., :
:
et al.
:
:
Defendants
:
:
-and:
:
In the matter of the Application of
:
LISA MAYER and DEBRA MAYER,
:
:
Petitioners,
:
:
For the payment by, or delivery of property in
possession of J.P. MORGAN SECURITIES LLC, :
UNITED STATES OF AMERICA, AMERINDO :
TECHNOLOGY GROWTH FUND II INC., and/or :
:
AMERINDO MANAGEMENT INC.,
:
:
Respondents,
:
:
to satisfy judgment against ALBERTO VILAR,
GARY TANAKA, AMERINDO INVESTMENT :
:
ADVISORS INC. (U.S.), and AMERINDO
INVESTMENT ADVISORS, INC. (PANAMA), :
:
:
Pursuant to CPLR §§ 5225 and 5227
:
1

STIPULATION AND ORDER
OF SETTLEMENT
05 Cr. 621 (RJS)

05 Cv. 5231 (RJS)

12 Cv. 5240 (RJS)

Case 1:12-cv-05240-RJS Document 127 Filed 04/19/22 Page 2 of 10

---------------------------------------------------------------:
X
WHEREAS, this Stipulation and Order of Settlement is entered into by and among Lisa
and Debra Mayer (the “Mayers”) and the United States of America (“United States”) (together,
the “Parties”);
WHEREAS, on or about May 25, 2005 the United States commenced the abovecaptioned criminal action 05 Cr. 621 (RJS) (the “Criminal Action”) by filing a criminal
complaint against ALBERTO WILLIAM VILAR and GARY ALAN TANAKA (together, the
“Defendants”);
WHEREAS, on or about June 1, 2005, the United States Securities and Exchange
Commission (the “SEC”) commenced the above-captioned civil enforcement action 05 Cv. 5231
(RJS) by filing a complaint against the Defendants and their Amerindo corporate entities (the
“SEC Action”);
WHEREAS, on or about August 15, 2006, the Defendants were charged in a twelvecount Superseding Indictment, S3 05Cr 621 (KMK) (the “Indictment”) (Cr. Dkt. No. 133);
WHEREAS, on or about November 19, 2008, a jury returned a guilty verdict against
defendant Vilar on all twelve counts of the Indictment, and against defendant Tanaka on Counts
One, Three and Four of the Indictment (Cr. Dkt. No. 320);
WHEREAS, on or about October 26, 2009, the Court entered a post-conviction
restraining order (the “2009 Restraining Order”) barring the Defendants, any of their agents or
anyone with actual notice of the order from taking any action that would diminish the value of
the assets listed, including among other assets, the following:
J.P. Morgan Chase brokerage account numbers:

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i.

102-17995 MOL, held in the name of Techno Raquia, S.A., Ian Gazes
Receiver c/o Gazes LLC;

ii.

102-01485 MOL, held in the name of Amerindo Management Inc.,
sub-Account M26, Ian Gazes Receiver c/o Gazes LLC;

iii. 102-01495 MOL, held in the name of Amerindo Technology Growth
Fund II, Inc., Ian Gazes Receiver c/o Gazes LLC;
iv. 102-15833, held in the name of Olafson, Inc., Ian Gazes Receiver c/o
Gazes LLC;
v.

102-25612, held in the name of Amerindo Investment Advisors, Inc.
Money Purchase Plan and Trust Alberto Vilar TTEE DTD 5/1/94 c/o
Gazes LLC Ian Gazes;

and
Approximately $273,611.89 in funds formerly held by @Ventures
Management, LLC for the benefit of Amerindo Technology Growth Fund
II, Inc.
(collectively, the “Substitute Assets”) (Cr. Dkt. No. 364, at 2-3 (Substitute Assets listed as items
(b)(i), (ii), (iv), (v), (viii), and (d)));
WHEREAS, the 2009 Restraining Order also included the following asset:
J.P. Morgan Chase (f/k/a Bear Stearns & Co., Inc.) brokerage account number
102-05012, held in the name of The Trustees of the Amerindo Advisors (UK)
Ltd. Ret. Benefits Scheme
(the “Benefits Scheme Assets”) (Cr. Dkt. No. 364, at 3 (Benefits Scheme Assets listed as item
(c)(i))).
WHEREAS, on or about November 9, 2010, the Court entered an Order of Forfeiture of
Substitute Assets forfeiting all of Defendants’ right, title and interest in the Substitute Assets and
the Benefits Scheme Assets (Cr. Dkt. No. 463);
WHEREAS, in or around 2011 and 2012, two judgments were entered in the Supreme
Court of the State of New York, County of New York, in favor of the Mayers against the
Defendants, Amerindo Investment Advisors Inc. (US), and Amerindo Investment Advisors, Inc.
(Panama) (collectively, the “Judgment Debtors”) in the total amount of $22,423,698.29 (the
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“First and Second State Court Judgments”), as well as a third judgment for $759,489.30 in
attorney’s fees (collectively with the First and Second State Court Judgments, the “State Court
Judgments”);
WHEREAS, on or about June 6, 2012, the Mayers served an Execution with Notice to
Garnishee on J.P. Morgan Securities LLC against accounts held at J.P. Morgan in which the
Mayers asserted the Judgment Debtors held an interest, including the Substitute Assets and the
Benefits Scheme Assets, among other assets (the “June 2012 Execution”);
WHEREAS, on or about June 25, 2012, the Mayers filed a turnover action in the
Supreme Court of the State of New York, County of New York, seeking turnover of assets held
in J.P. Morgan account number 102-01495 held in the name of Amerindo Technology Growth
Fund II and J.P. Morgan account number 10-01485 held in the name of Amerindo Management
Inc. to satisfy the First and Second State Court Judgments (the “Turnover Action”);
WHEREAS, on or about July 5, 2012, the United States filed notice of removal of the
Turnover Action to this Court, captioned above and docketed as 12 Cv. 5240 (RJS), and the
Turnover Action was consolidated with the SEC Action and the Criminal Action;
WHEREAS, on or about March 11, 2013, the Court appointed a Receiver in the SEC
Action to establish a distribution fund and a claims and interim distribution procedure (the
“Receivership”) (Cv. Dkt. Nos. 272, 290);
WHEREAS, on or about August 2, 2019, the Court entered a Preliminary Order of
Forfeiture as to Substitute Assets (the “First Substitute Assets Order”) forfeiting all of the
Defendants’ right, title and interest in the Substitute Assets;

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WHEREAS, the Substitute Assets, valued at approximately $12,768,680 in United States
currency, are currently held by the United States Marshals Service in its Seized Assets Forfeiture
Fund pending the outcome of the ancillary forfeiture proceeding in the Criminal Action;
WHEREAS, on or about September 20, 2019, the Mayers filed a petition with the Court
pursuant to Title 21, United States Code, Section 853(n) claiming a legal interest in the
Substitute Assets based on the June 2012 Execution (the “First Mayer Petition”) (Cr. Dkt. No.
824);
WHEREAS, on or about December 9, 2019, the Court entered a Second Preliminary
Order of Forfeiture as to Substitute Assets (the “Second Substitute Assets Order”) forfeiting all
of the Defendants’ right, title and interest in the Benefits Scheme Assets (Cr. Dkt. No. 848);
WHEREAS, the Benefits Scheme Assets are currently held at J.P. Morgan;
WHEREAS, on or about January 16, 2020, the Mayers filed a second petition with the
Court pursuant to Title 21, United States Code, Section 853(n) claiming a legal interest in the
Benefits Scheme Assets based on the June 2012 Execution (the “Second Mayer Petition”) (Cr.
Dkt. No. 864);
WHEREAS, other third-party petitioners Alfred Heitkonig, Dr. E. Ronald Salvitti, Paul
Marcus, the Deane J. Marcus Trust, the Steven E. Marcus Trust, the Cheryl Marcus-Podhaizer
Trust and the Eve S. Marcus Children’s Trust (collectively, the “Third-Party Petitioners”) have
also filed petitions in the Criminal Action claiming legal interests in the Substitute Assets and
Benefits Scheme Assets;
WHEREAS, it is the Mayers’ position that they are the only petitioners in the Criminal
Action who have a perfected, secured claim and the other Third-Party Petitioners have only set
forth unperfected, unsecured claims;

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WHEREAS, on or about September 4, 2021, defendant Vilar died;
WHEREAS, the United States has reached agreement on a global settlement (the “Global
Settlement”) with the Trustees of the Amerindo Advisors (UK) Limited Retirement Benefits
Scheme (the “Pension Scheme”), James Stableford (“Stableford”), the enforcement staff of the
Securities and Exchange Commission (the “SEC”), defendant Gary Tanaka, and various
Amerindo corporate entities (the “Amerindo Entities”), subject to approval by the SEC itself, in
which the Second Substitute Assets Order shall be vacated and the restraint on the Benefits
Scheme Assets released so they may be repatriated to the United Kingdom; and
WHEREAS, the Parties have agreed to resolve their competing claims to the Substitute
Assets on the terms set forth below;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among
the United States of America, by its attorney Damian Williams, United States Attorney, Assistant
United States Attorney Alexander J. Wilson, of counsel, Debra and Lisa Mayer and their counsel
Jerome Reisman, Esq. of Reisman Peirez Reisman & Capobianco LLP that:
1.

The United States hereby agrees that the Mayers hold a right, title and interest in

the Substitute Assets superior to that of the United States pursuant to Title 18, United States
Code, Section 853(n)(6)(A), and to the other Third-Party Petitioners, based on the First and
Second State Court Judgments and the June 2012 Execution.
2.

Within five days of the vacatur of the Second Substitute Assets Order, the Mayers

shall voluntarily withdraw and/or dismiss the Turnover Action and June 2012 Execution solely
with respect to the Benefits Scheme Assets, and hereby consent to the repatriation of the Benefits
Scheme Assets to the United Kingdom.
3.

In the event the vacatur of the Second Substitute Assets Order is reversed and/or

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overturned and the Second Substitute Assets Order is reinstated prior to the repatriation of the
Benefits Scheme Assets to the United Kingdom, the Mayers shall retain all their existing rights
with respect to any third parties and the Benefits Scheme Assets, and shall not be barred by this
Stipulation and Order from seeking to reopen, renew, reinstate and/or refile the Turnover Action
and/or June 2021 Execution and/or to serve a new execution with notice to garnishee on J.P.
Morgan Securities LLC against the Benefits Scheme Assets and/or to commence a new turnover
action with respect to the Benefits Scheme Assets, to the extent otherwise permitted by
applicable state or federal law.
4.

To the extent the Second Preliminary Order of Forfeiture is not ultimately

vacated, the Second Mayer Petition shall remain in effect. Further, the Mayers shall otherwise
retain all pre-existing rights and claims to the Benefits Scheme Assets, including but not limited
to any rights and claims based on their State Court Judgments, senior secured position and lien as
a result of the State Court Judgments, the June 2012 Execution and the Turnover Action, and any
constructive trust claims that may be recognized by this Court or any other court of law, except
that they shall not take any action to prevent the repatriation of the Benefits Scheme Assets to the
United Kingdom.
5.

Nothing contained herein shall constitute a waiver of any of the Mayers’ rights or

claims in the SEC Action, including but not limited to any rights or claims asserted by the
Mayers against the SEC, the Judgment Debtors, the other Third-Party Petitioners, Stableford, the
Pension Scheme and the Amerindo Entities or any rights or claims that the Mayers may assert
against the SEC, the Judgment Debtors, the other Third-Party Petitioners, Stableford, the Pension
Scheme and the Amerindo Entities in the future.
6.

Except as set forth in paragraph 2, nothing contained herein shall constitute a

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waiver of any of the Mayers’ rights to execute and enforce their State Court Judgments against
the Judgment Debtors and the Amerindo Entities, or their transferees, in any appropriate forum
and in any such manner acceptable under the law, including seeking to recover post-judgment
interest on their State Court Judgments, except that they shall not take any action to prevent the
repatriation of the Benefits Scheme Assets to the United Kingdom.
7.

Nothing contained herein shall constitute a waiver of any of the Mayers’ rights to

assert a constructive trust claim in any appropriate forum and in any such manner acceptable
under the law, except that they shall not take any action to prevent the repatriation of the Benefits
Scheme Assets to the United Kingdom.
8.

The Mayers are hereby barred from asserting, or assisting others in asserting, any

claim against the United States of America (“USA”), the Department of Justice (“DOJ”), the
United States Attorney’s Office – SDNY (“USAO”), the United States Marshals Service
(USMS), the United States Postal Inspection Service (“USPIS”), and the Securities and
Exchange Commission (“SEC”), or any and all employees, officers, and agents of the USA, the
DOJ, the USAO, the USMS, the USPIS and the SEC, in connection with or arising out of the
seizure, restraint, and/or constructive possession of the Substitute Assets and the Benefit Scheme
Assets, including, but not limited to, any claim that there was no probable cause to seize, restrain
and/or forfeit the Substitute Assets or the Benefit Scheme Assets, that the Mayers are a
prevailing party, or that the Mayers are entitled to attorney’s fees or any award of interest from
the DOJ, the USAO, the USMS, the USPIS, and the SEC.
9.

Each Party to this Stipulation and Order of Settlement shall bear its own costs,

expenses, and attorneys’ fees.
10.

The United States agrees to proactively and in good faith litigate any objections or

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