Update from Thompson Burton

One of our contributors, Phillip Young, has provided great insights about the Receiver’s recent communications. Soon, approximately 1,200 subpoenas will be sent to the “net winners” in Zeek Rewards. These subpoenas will request information about their involvement in the program and likely contain a demand for a return of the gains. In our opinion, there’s a conflict if a firm represents both the net winners (people that made more than what they spent / invested) and the net losers (people that made less). The conflict exists because the net losers want the cash pot to be as large as possible for purposes of the distribution i.e. they need the net winners to pay into the pot. On the other hand, the net winners want to maintain their funds. This is normal in this sort of matter.

Phillip Young has served as a Receiver on several occasions and he’s uniquely positioned to help the “net winners” served with a subpoena negotiate a settlement and/or fight against the clawback actions. As for our firm, Thompson Burton, we made the decision months ago to focus on helping the net losers recover their funds by way of the claims process. When the Receiver publishes a claim form for the Zeek participants, which should be soon, we’ll offer the valet service to help with the recovery process.

One final update: we made a commitment on day 1 to maintain your information in the strictest of confidence. If you completed a form and provided your information to us, the information has never been shared with anyone, including with any of the other contributors. The information is being used solely to assess the damages and build a subscription list for this site only. +Kevin Thompson

Receiver’s Zeek Liquidation Plan

On October 8, the Zeek receiver filed what he called a “Preliminary Liquidation Plan.” In reality, it was more like an analysis of the company and a status update rather than a liquidation plan. Nevertheless, there were several interesting tidbits buried in the 26-page pleading:

• There were approximately 2.2 million users in the ZeekRewards system, 1 million of which paid money into the program.

• The receiver has recovered $293.7 million in cash for the Zeek receivership estate, plus he has seized two commercial properties in North Carolina which Zeek owned free-an-clear. The value of this real estate is unknown.

• The receiver indicates that there is at least one foreign bank account holding an unknown amount that has not been seized.

• The receiver has disbursed approximately $56,000 for ordinary operating expenses (such as payroll, utilities, taxes, etc.) and he anticipates distributing another $922,000 for operating expenses incurred by Zeek prior to the receivership. This does not include the expenses of the receiver or his legal counsel, which will be very significant.

• Since the receivership began, the receiver has attempted to deposit over 60,000 payments from Zeek investors, totaling approximately $100 million. Almost 20% of those attempted deposits were dishonored by the banks, primarily because the check makers issued a stop payment on them. The receiver reports in his update that, with court authority, he is re-presenting these checks for payment and expects all banks to honor those checks.

• The receiver made clear in his update that he will aggressively pursue legal claims against third parties, including officers, employees, participants, professionals and others who benefitted from this ponzi scheme.

• The receiver goes into some detail about his pursuit of clawback claims, against “net winners” (i.e. those Zeek participants who received more in returns than they paid into Zeek). It is clear that these clawback claims are receiving much immediate attention. (For a more complete discussion of the clawback claims, see “What does this mean for net winners” below).
The receiver’s recent update gives us some idea as to the size of the receivership, assures us that there should be assets available for distribution to creditors, and allows us a glimpse into what the receiver views as his most pressing duties. As far as what this update means, it means different things to different classes of Zeek participants.

WHAT DOES THIS MEAN FOR NET WINNERS?

A “net winner” is someone who received more money from Zeek in returns than he/she originally invested. For example, if you invested $10,000 into Zeek and received distributions of $12,000, you are a net winner on your investment. The receiver’s “Preliminary Liquidation Plan” is all bad news for the net winner. The receiver clearly considers any positive returns on a Zeek investment to be a fraudulent transfer, and his pleading indicates that he plans to immediately pursue the return of those funds. In fact, as of the writing of this article, we believe that over 1200 demands have been sent out to net winners, with accompanying subpoenas. If you are a net winner, you should expect to receive a demand letter from the receiver with a threat of litigation. While I have not seen the demand letter, it is likely that the receiver is demanding the immediate return of all or a substantial portion of the “return on investment” received by a net winner. Having represented receivers and bankruptcy trustees frequently, it is my experience that a receiver will begin with a very aggressive demand accompanied by a threat of litigation in hopes that he can scare a large portion of potential defendants into an immediate settlement. Often, the receiver will negotiate down from that aggressive demand. If you receive a demand letter from the trustee, you should carefully consider your options. Should you immediately pay the trustee’s demand and avoid future litigation expenses, or should you refuse and hope to negotiate a more favorable settlement as the process unfolds? These are options you should discuss with your legal counsel, especially if you receive a demand for a significant sum of money.

WHAT DOES THIS MEAN FOR NET LOSERS?

A “net loser,” as I will use that term in this article, means someone who invested more money into Zeek than he/she received in return. For example, if you invested $10,000 into Zeek but only received distributions of $5,000 in return, you are a net loser on your investment. The receiver’s “Preliminary Liquidation Plan” provides good news / bad news for the net loser. First the bad news: If you sent a payment to Zeek which you later attempted to freeze or stop payment, chances are that your bank is going to honor that check. The receiver asked for (and was granted) approval from the court to force banks to honor dishonored checks, as many of us anticipated. If you attempted to stop an uncashed check, you should contact your bank to determine whether it has been, or will be, honored.

Now for the good news: it seems very likely that there will be significant assets available for distribution to Zeek creditors, including net losers. There is no indication that creditors will be paid in full, but the receiver has already collected nearly $300 million before what seems to be rather aggressive litigation (which could result in more assets). While the claim process has yet to be established by the receiver, net losers should begin collecting bank records, credit card records, Zeek statements, and any other documents that will assist them in proving the amount of loss they have suffered as a result of Zeek investments. After all, it will be the creditor’s duty to prove the losses he/she has suffered. If a net loser’s losses are significant, he/she might want to consider retaining legal counsel to assist in preparing the proof of claim and its supporting documentation. The receiver has offered little guidance on how or when he plans to conduct the claims process.