European Union: The Aristophil Scandal: All That Glitters…

Last Updated: 24 January 2019
Article by Antoine Adeline

Rastignac? Grandet? Swindler? Arsène Lupin? Ponzi scheme concerning letters and manuscripts? The adventures of Gérard X, formidable businessman, founder and manager of the Aristophil company, were abruptly interrupted in November 2014, with the search of the company premises and its property by the judicial police.

The company was put into receivership on February 16 2015, and on 4 March of the same year Gérard X was indicted for deceptive marketing practices, organised fraud, laundering, breach of trust, and misuse of corporate assets. At that point, the Aristophil saga became a problem, if not a scandal.

The vast majority of 18,000 people who invested (usually through joint ownership) in the letters and manuscripts sold by the company risked losing a large part of the investment, in what might constitute a scam amounting to a loss of 1 billion Euros.

BUILDING UP RECOGNITION

In 1990, Gérard X founded the Astrophil company – of which he was the manager and a shareholder – specialising in the purchase, sale and expertise of letters and manuscripts. In 2003, the company organised its first exhibitions, including the History of Letters and Letters of History. The company's rise was dazzling – the creation of subsidiaries in Belgium, in Switzerland, in Austria; the launch in 2004 of the Museum of Letters and Manuscripts; the purchase of the quarterly Plume (devoted to the heritage of the written word) in 2006; and the acquisition in 2012 of the Hotel de la Salle for 28.5 million Euros to host exhibitions, and to house a club of members and an open observatory celebrating writing heritage.

The Museum of Letters and Manuscripts was ideally situated – a haven of culture, bringing together more than 600 square metres of tens of thousands of prestigious works, letters, manuscripts, drawings and original editions. None of the great historical figures or cultural icons were missing: Marcel Proust, Victor Hugo, Antoine de Saint-Exupéry, Napoléon, Dwight D. Eisenhower, Charles de Gaulle, Albert Einstein, Eugène Delacroix, Vincent Van Gogh, Wolfgang Amadeus Mozart, Ludwig van Beethoven, etc.

Particularly well thought out marketing was essential for the system. The European day of Letters and Manuscripts was organised every year at the Salomon de Rothschild Hotel, and frequented by "all of Paris", including the Intelligentsia. Luxurious albums (sold today) were co-published alongside the prestigious publishing houses of Gallimard or Flammarion 1.

These prestigious exhibitions were regularly organised at the very plush Boulevard Saint Germain, generally for major acquisitions: in 2010 – Marcel Proust, In Search of Lost Time, in 2012 – The secret messages of General de Gaulle: London 1940-1942, and Titanic 100 years later, and the last in 2014 – Between the lines and the trenches...the (legal) battles to come would indeed be formidable 2.

SUSPICION...

In 2012, Gérard X earned 170 million Euros, enough to relaunch a machine that was starting to run out of steam. Nonetheless, in March 2011, UFC-Que Choisir cautioned its readers about investing in Astrophil. A curator (in autumn 2009), a journalist and a gallery owner were among the first to denounce the company's mix of genres between finance, social life and heritage. In May 2013, L'Express conducted an uncompromising investigation: "The Sale of Manuscripts – the strange Aristophil system."

Many professionals, booksellers, curators and financiers began to question the viability of a highly speculative system, the incredible annual rate of return at 8%, and the creation of an economic bubble. Some merchants took advantage of the windfall and sold to Astrophil (by private agreement or auction) manuscripts, autographs and archives, all at a high price. The market was booming, but everyone was aware they were dancing on a volcano. In November 2012, there was a new warning; a judicial enquiry opened in Belgium. It lasted a long time, but the Brussels museum was permanently closed in December 2014. In December 2012, the French Autorité des Marchés Financiers (AMF) warned the public against "atypical investments offered to investors in sectors as diverse as letters and manuscripts, works of art, solar panels, stamps, wine, diamonds and other niche sectors."3

In November 2014, following a survey conducted by the Competition, Consumer Affairs and Fraud Control Office (DGCCRF)4 and the Economic Crime Enforcement Brigade 5 (on appointment by the AMF), the judicial police searched the premises of the company and Gerard X's property. The hotel in Paris along with the bank accounts of the company and its directors were seized.

In March 2015, Gérard X was indicted for deceptive marketing practices, organized fraud, laundering, breach of trust, misuse of corporate assets, and presentation of unfaithful accounts. The company was put into receivership by a judgment of 16 February 2015, then into liquidation by a judgment of conversion on 5 August 2015.

THE ARISTOPHIL SYSTEM

A Ponzi scheme pays for clients' investments with funds provided by new entrants to the scheme. The set-up collapses and the fraud comes to light when the amounts provided by new entrants are no longer sufficient to cover the remuneration offered to the clients. Hedge fund manager Bernie Madoff created a Ponzi scheme that operated from 1960 until the financial crisis in 2008. In France, the Stavisky and Marthe Hanau scandals hit the headlines in the 1930s.

If the Aristophil system did not strictly appear to be a Ponzi scheme (since the investments were not unfounded – they were actually based on works, letters and manuscripts), it would certainly come close to one. This is because the rate of return promised to investors seemed fanciful, appeared unsustainable in the long run, seemed to provide an impossibly fast return, and moreover the arrangement was based on assets that were undoubtedly largely overvalued.

In December 2014, Aristophil had possession of 130,000 works held by 18,000 investors, most of them held in 54 joint ventures, i.e. 26,297 contracts for the sale of joint ownership shares and 4,458 freehold transfer agreements.

DOUBTS CONCERNING THE VALUE OF THE WORKS

The trick and strength of the Aristophil scheme were largely based on the sale of dreams, history, culture to investors, jaded by Wall Street, scalded by junk bonds, lovers of heritage and stimulated by the idea of holding Einstein's notes, or a manuscript of Saint-Exupery, an autograph manuscript of a Mozart score, the scroll of 120 jours de Sodome, the secret messages of Général de Gaulle, an early printed book of the Letters of Saint Jerome printed by Peter Shoeffer on vellum, the letters of Louis-Ferdinand Céline, Jean Cocteau, Marcel Proust, etc., with a promise of record profitability of 8% per year, 40% over 5 years.

The investment was particularly attractive for tax purposes, since antique or collectible works of art were exempt from the Solidarity Tax on Wealth (CGI, former art., 885 I). Culture is priceless!

Beyond a niche market where objective estimates are not always easy (by definition each autograph or manuscript is unique and ratings are difficult to establish), the system would have been corrupted by an almost systematic re-evaluation of the proposed pieces, which would have been supported by certificates issued by certain booksellers and experts. The manuscript of Einstein-Besso, bought for 559,500 Euros in 2002, sold for 3.5 million Euros to Aristophil in 2003 and resold for 12 million Euros to its investors, illustrates in a symbolic way the excesses of the system.

The sale of Astrophil's assets to investors would therefore have been made at an overvalue at the point of purchase (in an excessively bullish market), and especially on resale. The move away from the economic bubble and the return to reality of the true market price was likely to have been very painful for investors.

THE LEGISLATIVE AND REGULATORY FRAMEWORK

Aristophil products were not subject to Law No. 83-1 of 3 January 1983 on the development of investments and the protection of savings, which governs the marketing of "various goods". These were not financial products and their sellers were not subject to the prior approval of the AMF. Only the intermediaries, who offered life annuities or property rights for which the purchaser did not manage themselves, were subject to the supervisory and sanctioning powers of the AMF (C. mon. fin., art. L. 550-1, I). The intermediaries, claiming only a mere option and not a promise of redemption, fell outside of the regime of "various goods" and were subject only to consumer rights law. In a press release dated 20 November 2014 6, the AMF disagreed with Aristophil, stating that the activity of the company did not fall within its field of competence and, consequently, it had not registered, targeted or recorded the products of the company.

Law No 2014-344 of March 17 2014, known as Hamon's law and No 2016-1691 of December 9 2016 relating to transparency, the fight against the corruption and the modernization of economic life, known as Sapin II, made changes to the order (or the disorder!) and essentially, to articles L. 550-1 and the following of the Monetary and Financial Code, and articles 441 1-441-3 of the AMF General Regulation. The powers of control and supervision of the AMF over atypical investments have been strengthened under Sapin II. An intermediary in "various goods" is now considered to be "any person who, directly or indirectly, by way of promotional communication or solicitation, habitually offers to one or more potential customers subscription to annuities or life annuities, or to acquire rights in movable or immovable property (...)" (C. mon. fin. Art. L. 550-1). Today, Aristophil would fall into this category of an intermediary in various goods.

From now on, an operation related to "various goods" cannot be the object of publicity or solicitation without prior allocation by the AMF of a registration number. This number must appear on the investor information documentation. In concrete terms, a company wishing to market various goods must submit a file to the AMF. AMF must examine the existence of guarantees and issue (or not) a registration number in light of checks on the structure of the company, the respectability of its leaders, their skills, their experience, but also the presence of sufficient guarantees which are adapted to the nature of the transaction (i.e., experts for valuing property, insurance, etc.).

Post-clearance checks are also possible. Cooperation between the AMF and several other authorities with various skills has been strengthened; namely, the 'Prudential Supervisory Authority and Resolution' 7, the DGCCRF, the prosecutor's office of the High Court of Paris, or the unit for processing financial information and action against underground financial circuits. The evidence gathered may then be sent to the judicial authorities.

In addition to disciplinary sanctions, offending intermediaries can incur civil and criminal penalties. Failure to comply with the provisions of Article L. 550-3 of the Monetary and Financial Code (on the obligations relating to promotional communications or solicitation) constitutes a prison sentence of 5 years and an 18,000 Euro fine. The drafting of communication media constitutes a maximum penalty of 2 years imprisonment and 300,000 Euro fine for individuals (1.5 million Euros for legal persons). The AMF has created the savings information service, offering an evaluation grid to differentiate between a dangerous investment and a regulated product. A summary document "Saving by avoiding scams ..." made in partnership with the National Institute of Consumers (INC) is also available on its website, reminding all that "there is no miracle investment! High returns can never be guaranteed."

The new legislative and regulatory arsenal therefore significantly reduces the risk of abuse. However, no absolute protection can be guaranteed. The internet and the internationalisation of practices make enforcement more complex. It will not always be obvious for the AMF, as part of its checks and controls, to analyse risks in niche technical sectors, such as autographs, letters and manuscripts. Let us not forget dolus bonus.

WILL INVESTORS BE REIMBURSED?

After liquidation, the assets of Aristophil were seized and the agents of the liquidiation proceedings put in place a modus operandi allowing an efficient realisation of the assets in order to refund as much as possible and as soon as possible to the creditors and investors who were cheated. The sale of Aristophil funds is underway; it is going to be a long-term task.

The joint-official liquidators initiated a call for tenders to entrust to a provider a tough task -namely and essentially:

  • To devise and implement the best conditions for the sale of Aristophil's works; and
  • To devise and implement the process of restitution of works to their owners, and manage the actions likely to be initiated based on article L. 212-1 of the French Heritage Code (conflict of claims/restitution with the State under the law on public archives).

By order of 5 October 2016, the judge accepted the offer submitted by a voluntary sales company. The provisional administrator of the 56 undivided investment funds ('indivisions'), and certain representative associations defending the investors, signed a protocol in order to organise future sales. A group of qualified experts was appointed to attest to the consistency of sales (both scientifically and culturally).

The voluntary sales company carried out the logistical operations of the transfer – sorting, organising the inventory, conserving the assets within secure premises and procuring legal restitution (or physical restitution) of the works to the identified owners. It also developed a strategic plan establishing the planning and coordination of sales that was submitted before the qualified group of experts. Since 2018, three other auction houses have sold the Aristophil collections.

Part of the Aristophil collection was therefore distributed judicially (the property belonging to the Aristophil company put into liquidation), while another part on a voluntary basis (either by their sole owners, or on behalf of their co-owners, in agreement with the administrator).

Some estimate that it will take ten years to disperse the entire Aristophil collection, which represents several hundred auction sales. The distribution of sales over time is intended to avoid creating saturation in the market, in the interest of the sellers. After the first sale in December 2017, a second in June 2018 reached a very respectable total of 10 million Euros (including a 3.3 million Euro hammer price for the famous Heures Petau). Overall, the realised prices were in line with expert estimates. In the last year, fourteen sales have taken place. The market did not collapse, but the economic bubble burst. On average, lots are sold at one-tenth of the price estimated by Aristophil.

In addition, as part of the inventory and storage of tens of thousands of documents and on the occasion of auctions, some lots belonging to the State are the subject of claims ('revendications') from public institutions (public archives, libraries, ministries, etc.) on the basis of C. patr., Art L. 622- 17 and L. 212-1. 8 Furthermore, some lots are claimed to rank as 'national treasures' ('trésor national'), making it impossible to sell abroad. 9

The claims provide a restriction on the resold assets and are detrimental to the creditors. The company has also been ordered to allow the French State to consult the works which are held or on loan, such action not being conditional on the sale of the asset. 10 The number and nature of the creditors, and the assets of the liquidated company, make the calculations and settlement operations of the creditors very complicated.

LITIGATION IS INCREASING

In March 2017, the notary who drafted 66 of the 74 joint ownership agreements was indicted for being complicit in fraudulent business practices. A judgment recently rejected the responsibility of a wealth management advisor in the absence of a requirement of Article L. 533-12 of the Monetary and Financial Code relating to the obligations of financial service providers and the absence of contractual links 11.

Artecosa, Aristophil's "little sister" company (created by a former director of Aristophil), was placed in the safeguard procedure in January 2017. Renamed Signatures, the company also offered the purchase and sale of letters, manuscripts, autograph documents and old photographs. 650 customers invested a total of 25 million euros. They were offered a contract of sale with a custody contract. It stipulated "a promise of sale" according to which the company repurchased the works of art while ensuring a profitability of 7.56% per year after a period of five years, presented as a "guarantee" in the commercial documentation. On November 13 last year, the AMF handed down a fine of 50,000 Euros and a 10-year ban to the CEO of Signatures 12. He was accused of having disseminated to his clients "inaccurate and misleading" information as to his expertise the value of the goods, and the bank guarantee, and having committed numerous breaches of his obligations as an intermediary.

CONCLUSION

Aristophil, on the one hand, was an extraordinary collection of literary and artistic treasures. On the other, the actions of the company meant thousands of investors are likely to lose their investment, sometimes their life savings.

Legal and judicial battles are increasing. The importance of the financial stakes whets the appetite and feeds the idea of revenge for creditors. Whatever the outcome of the various legal challenges, investors unfortunately may never be fully reimbursed. Gérard X could hide behind the estimates given by his experts. Justice will have to decide whether those estimates were convenient. The committal order (or lack of one) of Gerard X and some of his alleged accomplices in the criminal court is eagerly awaited by observers.

Les événements ne sont jamais absolus, leurs résultats dépendent entièrement des individus: le malheur est un marche-pied pour le génie, une piscine pour le chrétien, un trésor pour l'homme habile, pour les faibles un abîme / Events are never absolute, their results depend entirely on individuals: misfortune is a step for genius , a pool for the Christian, a treasure for the skilled man, and for the weak an abyss (Honoré de Balzac, César Biroteau).

Footnotes

1 Lettres et manuscrits, petits et grands secrets, 2010; L'or des manuscrits, les 100 manuscrits les plus précieux, 2013; L'or des manuscrits, 100 manuscrits pour l'Histoire, 2013.

2 Marcel Proust, du temps perdu au temps retrouvé, 2010; Les messages secrets du Général de Gaulle: Londres 1940-1942, 2012; Titanic 100 ans après, 2012; Entre les lignes et les tranchées, 2014.

3 AMF, Press Release, 12 Dec. 2012.

4 Direction générale de la concurrence, de la consommation et de la répression des fraudes.

5 Brigade de répression de la délinquance économique.

6 Autorité des Marchés Financiers's clarification notice following the press release issued by the Aristophil company, 20 Nov. 2014.

7 Autorité de contrôle prudentiel et de résolution.

8 See Conseil d'état, 13 Apr. 2018, No. 410939 on the manuscripts of the telegrams sent from London by Général de Gaulle.

9 For example, Sade's 120 jours de Sodome or André Breton's second Manifeste du surréalisme, at the first Aristophil auction sale, in December 2017.

10 CA Paris, 29 June 2017, No 17 / 03240.

11 CA Besançon, 1 st ch., 4 Sept. 2018, No. 17/01408.

12 AMF, Sanctions Commission, 13 Nov. 2018, No. 13.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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