After Decade-Long Legal Fight, Hedge Fund Managers Win $46 Million; Now Comes the Appeal
“I will not pay you, I will not pay you a dime, you know, and before this is done and over, your wife will be here in this office, here on her knees, begging for mercy,” a hedge fund founder yelled at a portfolio manager in 2008, according to a witness' trial testimony.
June 27, 2019 at 02:58 PM
11 minute read
After more than 10 years of litigation, some 60 depositions, 11 counterclaims, around 900 docket entries and a three-week trial, a jury decided that a Manhattan hedge fund must pay two former portfolio managers $46 million for breaching verbal compensation agreements made in the days when hedge funds flew high.
The jury's awards—$21.4 million to former Touradji Capital Management portfolio manager Gentry Beach and $24.3 million to former Touradji portfolio manager Robert Vollero Jr.—will balloon to a nearly $91 million total payout because of 9% yearly interest to be added to compensation that was earned from 2005 to 2008.
The defendant hedge fund, however, driven by its aggressive and reportedly brash founder, Paul Touradji, recently filed a notice of appeal in the case to the Appellate Division, First Department. The verdict came down in May. And so the epic litigation lives on.
“This appeal is taken from each and every part of the judgment as well as from the whole judgment,” the notice filing, No. 903 in the electronic docket in Beach v. Touradji Capital Management, states.
The notice adds that the appeal “also encompasses the jury verdict as well as all pretrial and trial orders and rulings.”
While the appellate arguments are sure to be hard-fought, it would be difficult to stir up the kind of drama that the trial reportedly did—from its witness-stand allegations of inner-office shouting matches, threats of violence and taunting, to a novel-but-risky courtroom strategy used by the plaintiffs' trial lawyer: Calling mogul Touradji to the stand first, so that he might start to dig his own hole, even as he got out his side of the story before all the others, as the lawyer described the strategy.
Among testimony that would play out in court after Touradji finally stepped down from the witness stand were a former Touradji Capital analyst's descriptions of the founder's tirade in 2008—launched just days after Lehman Brothers' fall—that was spewed at plaintiff Beach: “I will not pay you, I will not pay you a dime, you know, and before this is done and over, your wife will be here in this office, here on her knees, begging for mercy,” Touradji yelled, according to trial-transcript testimony by former analyst Miko Sibila.
Then, as Touradji reportedly slammed an office door so hard that pictures flew from a wall, he ranted again at Beach, “When I am done with you, you will never find a job on Wall Street again,” according to Sibila's testimony in Manhattan Supreme Court.
At another point in the trial, Beach himself described how on the same day, Sept. 25, 2008, Touradji reportedly threatened harm if he crossed Touradji, recounted one of Beach's lawyers, David Greenberger, in an interview with the Law Journal.
The very next day, Beach—a Wharton graduate with years of Wall Street experience, who, along with co-plaintiff Vollero, had been successfully running Touradji Capital investment portfolios and funds—resigned from the hedge fund, according to both Greenberger's recounting of testimony and allegations laid out in the plaintiffs' amended complaint.
Beach then filed a report with the New York City Police Department, stating that he was worried for his safety.
Counsel for Touradji have declined to comment. On Friday, an attorney representing him individually declined to answer questions about Touradji, the fund or the case.
The lawsuit, which garnered headlines through the years in the New York press and in business publications, centered on breach-of-contract allegations made by Beach and Vollero, after they'd both left Touradji Capital, angry and frustrated at what they said was years of Paul Touradji dodging their requests, and making false promises, in relation to millions of bonus dollars owed to them under compensation agreements.
According to the 27-page complaint, when Beach and Vollero—who'd worked together before at Morgan Stanley and Solstice Equity Management—joined Touradji Capital in 2005, they were tasked with managing equities-based portfolios and funds that gave them the chance to make huge performance bonuses.
Under an agreement they claimed to have made with Touradji, for example, they would split 15% of the annual profits earned while running an oil and gas sector-based portfolio later dubbed the Touradji OG portfolio.
The bonus agreements made were always verbal because Touradji refused to put the terms in writing, according to Greenberger.
As years rolled by and the portfolios and funds made large sums, the men allegedly found themselves repeatedly asking in vain to be paid the bulk of their bonuses.
In 2005, for example, the OG portfolio made $95 million, leaving them to split $14 million for that portfolio alone, their allegations said. In 2006, it earned $7 million. In 2007, the OG portfolio and another one they managed reaped a combined $43 million. And in 2008, the same portfolios hauled in $82 million, they claimed.
But the amended complaint said, “between January and May 2008, Beach and Vollero repeatedly demanded that defendants pay them the compensation to which they were entitled under the agreements for 2005, 2006, and 2007, as well as the gain on the $3.90 million in 2005 performance compensation that Touradji had invested in the Touradji Global Resources Fund on behalf of each of them without their consent.” But they were never paid.
And the detailed complaint itself became just an early volley in a legal struggle that would prove to be arduous and, in Greenberger's view, unique.
“I've worked on highly complicated, highly complex litigations in the financial services world for years,” Greenberger, a Bailey Duquette partner in Manhattan, said. “But I've never seen anything like this.”
“We were met with such an offensive and aggressive counterattack,” he added.
Soon Touradji Capital—led by Paul Touradji, an Iranian-born hedge fund standout who in 2009 made Fortune Magazine's “40 Under 40” rising stars list for having $2.7 billion in assets under management—fired back with a 52-page filing that in part laid out 11 counterclaims.
The filing said Beach and Vollero “were responsible for the destruction of millions of dollars of investor capital and millions of dollars in damages to Touradji Capital through a pattern of fraud, breaches of fiduciary duty, violations of law, mismanagement and utter disregard for the interests of the investors whose capital they were obligated to protect.”
Later, it alleged that “not content to have inflicted … harm on Touradji Capital and its investors, Beach and Vollero—who were paid millions of dollars while at Touradji Capital—have filed a complaint in which they demand over $50 million dollars in additional compensation. They base this claim upon a supposed oral agreement entitling them to, among other things, a majority of the profits to be earned by Touradji Capital based upon its energy equity portfolios—an agreement that by their own admission was never set forth in a written contract, and never corresponded to their actual compensation.”
When the trial finally arrived last month, almost 10 years later, a minimum of 57 depositions had been taken; more than five full sets of interrogatories had been issued; hundreds of thousands of pages of documents had been traded.
And Michael Stolper of the Stolper Group in Manhattan, who'd been brought on as a trial lawyer for the plaintiffs—and who teamed with Greenberger and attorney Robert Seiden of the Seiden Group—launched quickly into his “risky” strategy of calling Touradji to the stand first, instead of a witness from his side of the case.
“The traditional way [to open a case],” Stolper told the Law Journal recently, “is that you want to tell your story first.
“You want the jury to become sympathetic to your client, so starting with their side … was nontraditional.”
But “we wanted to be able to make the trial about comparing and contrasting what [Touradji] had to say, in relation to the documentary evidence that we had and the testimony we had” from depositions, Stolper explained.
He said they knew “the case was going to turn on his credibility, and we wanted to get at that right away,” adding that “we were facing [numerous] counterclaims to our one claim, and the art of trying this case was to establish his lack of credibility.”
The lawyer admitted, though, that an additional risk to the strategy was that as new trial counsel, he'd “never met the man [Touradji] and never deposed him” and “there was the potential for him to be a strong witness.”
Nearly right away, as he faced off with Touradji before a six-person jury, Stolper saw that he was “fighting me on everything.”
And so he used Touradji's combativeness to his advantage, he said—such as when he showed Touradji a 2009 photo of a sharply dressed Touradji featured in Fortune, as a prized moneymaker on the “40 under 40” list.
“I did acknowledge that it was him in the photo,” said Stolper, but “he was so adamant about fighting me” that he would not.
“I said to him, 'Sir, I'm willing to acknowledge that you were handsome in the photo. But isn't that you?'”
Touradji shot back that he wasn't sure it was him, according Stolper. The trial lawyer recalled that “it looked like some of the jurors had a visceral reaction” to Touradji refusing to acknowledge his own image in the photo.
“I think at least one of the jurors, maybe two, may have given an eye roll,” Stolper added. He noted, too, that Touradji later testified that he could not recall how often he'd been featured in magazine articles.
After Touradji stepped down—after three days of sometimes raised-voice testimony—Stolper and Greenberger soon called plaintiff Vollero, one of the two portfolio managers who claimed to have been cheated out of more than $45 million in joint bonuses.
Stolper choose to begin by asking the “brilliant” Yale-educated trader several questions they'd never gone over or rehearsed. The intention, he said, was to get this “very serious man” to reveal what kind of a toll nearly 11 years of intense litigation had exacted on his life.
He asked Vollero early on to describe what it was like to testify, after more than a decade of litigation.
“It's hard reliving a very emotional time,” Vollero told the jury about his years at Touradji Capital, according to the trial transcript.
“But it's the end of the road for that,” he said—through tears, according to Stolper. The end of the road came “when I finally stood up to Mr. Touradji” by leaving the hedge fund and joining the lawsuit, he testified.
On verdict day, May 23, as the jury walked into the courtroom, and Supreme Court Justice Andrew Borrok presided, tensions ran high, the lawyers said.
Then, when a jury foreman read aloud the verdict, finding for Beach and Vollero and casting aside all of the counterclaims, the two friends and plaintiffs “hugged each other with such a strong embrace,” Stolper said.
“Everybody on our side, we were crying, literally,” he said.
Said Greenberger, who has worked the case for roughly nine years, “This was a grind. As a lawyer, this was a very a serious undertaking.”
“There was no conciliation on anything,” he said. “Every single issue was litigated, even the least consequential.”
Greenberger noted that there were 45 motions filed and adjudicated in the case, and four fully determined First Department appeals. In his view, he said, Touradji had tried to use money and resources to wear down his clients.
Today, Touradji's hedge fund continues on, although in a smaller way—with less assets under management, according to a public filing—as Wall Street's hedge fund industry has shrunk.
The fund's attorney in the case, Sean O'Brien of O'Brien LLP, who also helps to represent Touradji, did not return a call and an email seeking comment.
Touradji's counsel at Kellogg, Hansen, Todd, Figel & Frederick in Washington, D.C., entered the case after the verdict and is helping to represent him post-trial on the counterclaims. Partner Aaron Panner and associate T. Dietrich Hill have declined to comment.
One thing is certain, though, said Greenberger: A full-throated appeal by the fund and Touradji is coming.
And on the docket, at entry No. 889—filed June 10—is the fund's other salvo: A 23-page motion for a new trial lodged with Borrok.
The motion is pending.
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