Dist. Attorney of N.Y. Cnty. v. Republic of the Phil.
| Decision Date | 29 March 2018 |
| Docket Number | 14 Civ. 890 (KPF) |
| Citation | 307 F.Supp.3d 171 |
| Parties | DISTRICT ATTORNEY OF NEW YORK COUNTY, Plaintiff, v. The REPUBLIC OF THE PHILIPPINES, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Bradley Drew Simon, J. Evan Shapiro, Kenneth Charles Murphy, Terrence James Johnson, Simon & Partners LLP, New York, NY, Salvador Enriquez Tuy, Jr., Prado & Tuy, LLP, Philip S. Raible, Rayner Rowe LLP, Jude Roberto Cardenas, Cardenas & Associates, Cesar De Castro, Valerie Alice Gotlib, The Law Firm of Cesar de Castro, P.C., Daniel J. Brown, Reiss Sheppe LLP, New York, NY, Robert Alan Swift, Kohn, Swift, & Graf, P.C., Philadelphia, PA, William E. Baker, Jr., Baker & Baker, APC, Santa Ana, CA, for Defendants.
The parties to this interpleader all claim ownership over certain property purchased with funds that Ferdinand and Imelda Marcos allegedly misappropriated during Mr. Marcos's presidency of the Philippines (the "Interpleader Property"). The property at issue includes approximately $15 million in cash and seized funds from several bank accounts; Claude Monet's L'Église et La Seine à Vétheuil and Alfred Sisley's Langland Bay (and other paintings); and sundry personal items (including jewelry, carpets, pens, boxes, and a jade and wooden screen). The District Attorney for New York County ("District Attorney" or "DANY") seized the contested assets during its criminal investigation and prosecution of Vilma Bautista, a confidante and personal secretary of Imelda Marcos. The DANY, an innocent stakeholder with no claim of ownership to the Interpleader Property, transferred the property to this Court so that the rightful owner or owners could be determined. Among the claimants are: the Republic of the Philippines ("Republic"); a class of human rights victims led by Jose Duran, who are judgment creditors against Imelda Marcos ("Class Plaintiffs"); Vilma Bautista, who in addition to serving as Imelda Marcos's personal aide during the relevant time period also worked for the Philippine government from 1966 until 1986, including as a Foreign Service Officer for the Philippine Mission to the United Nations; and the Golden Budha Corporation along with the Estate of Roger Roxas (together, "Roxas").
Pending before the Court are seven motions, comprising five cross-motions for summary judgment, one motion to dismiss, and one motion for imposition of attorneys' retaining and charging liens. The motions are:
The Court addresses each motion in turn. For the reasons set forth below, the Court denies each motion except S&P's motion to authorize imposition of attorneys' liens.
This interpleader action is the latest in what is now a long series of proceedings—spanning decades and pursued in numerous jurisdictions2 —in which claimants have sought ownership over assets that Ferdinand Marcos and Imelda Marcos allegedly misappropriated during Mr. Marcos's tenure as President of the Philippines. A full recitation of the history of the disputes between Mr. and Mrs. Marcos, on one side, and the claimants, on the other, would fill volumes. Rather than engage in such an exhaustive factual recitation, the Court instead focuses on the facts that pertain directly to the pending motions.
Ferdinand Marcos served as President of the Philippines from 1965 until 1986. (Class Plaintiffs 56.1 ¶ 2). He was elected to two terms in office, in 1965 and 1969. Rather than leaving office at the end of his second term, as required under the Philippine Constitution, Mr. Marcos instead imposed martial law in September 1972. He "confiscated businesses[,] particularly those of his adversaries[,] and ordered mass arrest and detention which, in many instances, resulted in the torture of political opponents, critics, independent publishers[,] and journalists[.]" (Swift Decl., Ex. 15).
In February 1986, a popular uprising removed Mr. Marcos from office, and he and Mrs. Marcos fled to Hawaii. (Class Plaintiffs 56.1 ¶ 3). On February 25, 1986, Corazon Aquino was sworn in as the new President of the Philippines. (Id. at ¶ 4). Shortly after her inauguration, President Aquino enacted Executive Order No. 1, which, inter alia , created the Presidential Commission on Good Government ("PCGG"). (Id. at ¶ 5). The PCGG was charged with recovering assets that Mr. Marcos, Mrs. Marcos, and their family had misappropriated during the Marcos presidency. To date, the PCGG has collected over 8 million pages of documents relating to Mr. and Mrs. Marcos's assets. (Id. at ¶ 22).
In 1986, the PCGG established an office in New York City to track down assets that Mr. and Mrs. Marcos had acquired. (Class Plaintiffs 56.1 ¶ 23). It identified artwork that had been removed from properties in New York City, including a townhouse at 13–15 East 66th Street, which was owned by the Republic but had been used as a residence by Mr. and Mrs. Marcos. (Id. at ¶¶ 7–8). Artwork had similarly been removed from an apartment in the Olympic Tower at 641 Fifth Avenue that Mr. and Mrs. Marcos had used as a private residence. (Id. at ¶ 9).
The PCGG inventoried the paintings that had been displayed at the New York properties. (Class Plaintiffs 56.1 ¶ 24). Using bills, invoices, and labels placed on the walls where the paintings had been hung, the PCGG created a list of specific works of art that had gone missing. (Id. at ¶¶ 25, 28). The PCGG then took several steps to try to locate the missing artwork. It served subpoenas duces tecum on art galleries and auction houses in New York and elsewhere, including Marlborough Gallery. (Id. at ¶ 26). It launched a campaign, called "Where's the Art?", aimed at increasing public awareness of the PCGG's efforts to recover the artwork and ratcheting up the pressure on Mr. and Mrs. Marcos to return whatever artwork they possessed. On June 23, 1986, the PCGG issued a press release in which it "ask[ed] artists, school children, media specialists, the general public and the press to cheerfully join the campaign by writing to Mrs. Marcos on Where's the Art? postcards[.]" (Swift Decl., Ex. 13). That press release included a list of missing paintings; the list made specific reference to Monet's L'Église et La Seine à Vétheuil and Sisley's Langland Bay , but made no mention of Monet's Le Bassin aux Nymphéas . (Id. ).
The DANY seized most of the Interpleader Property from Bautista and from bank accounts holding funds in Bautista's or her sisters' names on July 18 and July 19, 2011. (Compl. ¶ 19). The seized property included: (i) 10 paintings, a Serafian Isfahan rug, and $251,142 in cash from Bautista's Manhattan residence; (ii) 114 items of jewelry and $2,386 in cash from the residence of Bautista's sisters; (iii) 42 paintings and a rug from Bautista's Long Island residence; and (iv) approximately $13,654,349.32 from bank accounts in Bautista's name and $1,270,000 from an account jointly controlled by Bautista and one of her sisters. (Id. at ¶¶ 19–20). The DANY also froze six life insurance or annuity accounts in Bautista's name. (Id. at ¶ 20). And on July 28, 2011, Hoffinger, Stern & Ross LLP, Bautista's former attorneys, surrendered two additional paintings in connection with the criminal action. (Id. at ¶ 21).
On August 12, 1975, Marlborough Gallery in London sold six paintings on consignment—for a total of $450,000, of which $200,000 was paid at the time of sale—to Fe Gimenez, personal secretary and confidante of Imelda Marcos, on Mrs. Marcos's behalf. (Swift Decl., Ex. 2). The paintings included Monet's L'Église et La Seine à Vétheuil , which sold for $138,000, and Sisley's Langland Bay , which sold for $82,000. The Sales Report lists Mrs. Gimenez's address as "Study Room, Malacanang Palace, Manila, Philippines." (Swift Decl., Ex. 2). The delivery instructions state: "All taken except Moore[,] which should be delivered to the Philippines['] London Embassy." (Id. ). The Consignment Note, on Marlborough Gallery's letterhead and dated November 26, 1975 (when the paintings were dispatched), is addressed to "Madame Marcos, Malacanang Palace, Manila, Philippines." (Id. ).
On March 31, 1977, Mrs. Marcos purchased nine paintings from Marlborough Gallery for a total of $2.9 million. (Swift Decl., Ex. 3). The most expensive was Monet's Le Bassin aux Nymphéas (the "Water Lily" painting), which sold for $791,800. (Id. ). The money used to purchase the paintings came from a Swiss bank account held in the name of Trinidad Foundation, a foundation created in 1970. (Id. , Ex. 5; Republic Opp. Class Plaintiffs 56.1 ¶ 17). Mrs. Marcos was the primary beneficiary of the Trinidad Foundation. (Id. ).
In 1986, after Mr. Marcos was removed from office, the Swiss government froze several of the Trinidad Foundation's bank accounts. It did so based on the Republic's claim that all of the money in the accounts had been misappropriated by Mr. and Mrs. Marcos, and that the Republic was the rightful owner. (Class Plaintiffs 56.1 ¶ 31). In August 1991, the Swiss government provided documentation of transactions that had been processed through the Trinidad...
To continue reading
Request your trial