United States: Failure To Investigate Could Mean "Game-Set-And-Match" For EB-5 Investors: SEC Case Against Brother-In-Law Of Tennis Star Andre Agassi Shows Risk For Would-Be Immigrant Investors

Last Updated: September 2 2015
Article by Adam L. Sisitsky and Douglas Hauer

On August 25, 2015, the U.S. Securities and Exchange Commission (SEC) filed a civil fraud suit against Lobsang Dargey, a Bellevue, Washington-based real estate developer and alleged fraudster, who also happens to be a brother-in-law of tennis star Andre Agassi. Dargey had ventured into the EB-5 Program as a developer and regional center owner, securing designation by United States Citizenship and Immigration Services (USCIS) for two regional centers, Path America SnoCo and Path America KingCo. The complaint is relevant to both investors and regional centers in the EB-5 industry, as well as to lawyers advising issuers in EB-5 offerings.

Dargey has now landed in hot water for engaging in fraud and deceit in the EB-5 offering process, as well as for using related Path America companies to siphon investor funds into his own pockets. The SEC has charged him for making false and misleading statements in EB-5 offering documents, alleging that since 2012 Dargey has exploited the EB-5 Program to defraud investors seeking investment returns and a lawful path to U.S. permanent residency. Among the allegations is misappropriation of $17.6 million in investor funds.

Summary of the SEC's Complaint

The SEC alleges that Dargey, through his solely owned and controlled entity Path America, LLC, had diverted to himself and for his own personal benefit millions of dollars he had raised from Chinese nationals for EB-5 projects sponsored by Path America-owned regional centers. Path America had raised money for projects including the proposed Potala Farmers Market (a hotel, apartment and retail project in Everett, Washington), as well as the Potala Tower (a proposed 440 foot, 40-story hotel-and-apartment tower) in Seattle. Path America serves as the managing member of both USCIS designated regional centers and had unfettered control over the entire EB-5 investment process for the offerings.

In bringing the suit, the SEC also obtained a temporary asset freeze against Dargey and numerous related corporate defendants to prevent Dargey from pursuing his recently-announced plans to raise an additional $95 million from investors. According to the SEC, Dargey spent some of the siphoned funds on a $2.5 million home in Bellevue as well as at various gambling casinos. He also diverted EB-5 funds to projects that were unrelated to those disclosed in his offering documents to investors, meaning that the green card petitions pursued by EB-5 investors would be infirm.

A Path to America Fraught with Securities Fraud

The Path America case raises questions about investments buttressed by stories that seem to-good-to-be-true: Dargey left his Tibetan homeland and goat-herding profession in 1997 to pursue opportunities in the United States, as a house painter though he didn't speak a word of English, and later rose to become a successful real estate developer. Dargey's personal biography was almost certainly a lure to investors, and he conditioned the EB-5 market with his life story. In the media, Dargey touted his personal journey from Buddhism to capitalism, creating a background narrative for his real estate ventures and perceived success. Dargey's story should caution investors to thoroughly examine the organizations backing the EB-5 projects in which they invest despite any personal affinity or connectivity with the background of a project promoter. Although the SEC has not directly asserted that this case involved affinity fraud, it is clear that Dargey targeted Chinese investors who may have felt an affinity with him. This is a common tactic employed by a schemer in affinity fraud.

If true, the allegations levied by the SEC make a strong case against Dargey for securities fraud, which is at the heart of the complaint. An element of any claim of securities fraud is the defendant's state of mind, specifically, whether the defendant acted with "scienter" or "fraudulent intent." Frequently, aggrieved investors in actions to recover their investment losses have tried to establish scienter by pointing to a defendant's "motive and opportunity" to commit fraud. The Dargey case illustrates how control of numerous related entities involved in this EB-5 financing program may give a defendant ample "opportunity" to siphon off investor funds and commit fraud, while keeping investors in the dark about material changes to how he used investor funds. Nine different corporate entities were named as defendants in this case, and, according to the SEC's Complaint, Dargey maintained control over all of them to such a degree that he was able to repeatedly transfer funds between the entities and into accounts that he controlled, eventually withdrawing large sums of cash which he used to gamble and purchase real estate. A quick records search on the State of Washington's Secretary of State's corporate records database reveals that Dargey (or a member of his executive team listed on his company website) is in fact the registered agent for each of these companies.

The Dargey case serves as a reminder to investors in EB-5 regional center projects (or any other investment vehicle) to be thorough and circumspect in evaluating the organizational structure of any enterprises set up to achieve the advertised goals, particularly where numerous inter-related projects are involved and particularly where the entire enterprise appears to be under the control of just one individual. Unlike Mr. Dargey's rags-to-riches success story, some opportunities are just too good to be true.

Related Party Transactions Can Be Traps for Unwary EB-5 Regional Centers and Issuers

Regional centers and issuers of EB-5 investments should also consider carefully the lessons in Dargey's case about potential SEC scrutiny of related party transactions.

USCIS designated regional centers that handle investor funds and that facilitate offerings also need to be cautious, even when they think they are doing everything properly. The SEC is showing an increased interest in the EB-5 Program, and this interest appears to be here to stay.

One hot topic is related party transactions that, when improperly concealed, keep investors in the dark about the economic relationships among multiple related entities in a deal. Disclosures about related party transactions should not be buried in a Private Placement Memo (PPM), but should be identifiable and written in clear language. If a regional center, developer and general partner are essentially one and the same party in your deal, your offering could be subject to a higher level of scrutiny later particularly with respect to whether all material disclosures were properly presented in offering documents. Related party transactions require careful and robust disclosures so that investors can evaluate the substance of potential conflicts. Such disclosures belong to the total mix of information that a reasonable investor would need to know in order to make an investment decision. The omission of such disclosures can lead to litigation later with the SEC and investors.

While transparency to investors is paramount, so too is fairness. If you are conducting an offering with related party transactions, ensure that you have a commercially reasonable basis for the economics of your deal. Also have objective controls on how investor funds are managed and spent. One practice tip is to engage an auditor that provides annual or even semi-annual or quarterly reports to investors. Even regional center owners or managers who don't engage in criminal or egregious conduct can find the SEC knocking at the door and alleging fraud when material facts in a deal are not disclosed to investors, or when there are questions about how investor funds were handled.

Another strategic tip: hire qualified securities counsel to understand what you need to disclose in your offering documents when you have a related party transaction. What constitutes a material disclosure is complex. Suffice it to say that counsel needs to be engaged in all aspects of an offering's preparation to guide an issuer on whether disclosures are sufficient when a deal goes to market. An omission could result in allegations or findings later that offering documents contained false or misleading statements. An omission of a material fact about related party transactions can have dire consequences including rescission in favor of investors, an SEC finding of securities fraud under Section 10(b) of the 1933 Securities Act and exposure under Rule 10b-5, one of the most important rules promulgated by the SEC with respect to securities fraud. Allegations by the SEC that an issuer or regional center has made false and misleading statements in an offering process can lead to assets being frozen and costly civil fraud litigation, particularly where the SEC can show opportunity to commit fraud through related party dealings.

How Can Regional Centers and Issuers of EB-5 Securities Mitigate Litigation Risks?

Every EB-5 regional center or issuer should consider adding a securities litigator to the offering team before introducing a deal into the marketplace. In the current climate, guidance on risk mitigation in an offering is critical. Having counsel involved early on during drafting sessions of an offering is an effective way to understand your disclosure obligations as you prepare a PPM. A securities litigator following the life cycle of your offering – from inception of a business plan to closing of a deal – can serve as an excellent advisor to issuers in preventing problems and miscommunications with investors and government agencies. In the current climate, risk mitigation is an important component of EB-5 regional center business planning and operations.

Conclusion

The SEC is the ultimate referee in an EB-5 deal. Playing ball by the rules matters, especially when it comes to ensuring that material facts are disclosed to investors. Disclosures are the "sweet spot" of a PPM. A PPM without the right disclosures is about as effective as a tennis racquet with no sweet spot. You've lost the match before the first serve.

If SEC litigation increases in the EB-5 realm, then we expect that otherwise law-abiding and compliant regional centers could be inadvertently swept up into costly litigation. This will be true even with regional centers who make a good faith effort to comply with the law. An SEC complaint against your regional center could seriously impede your ability to do business, even if you have the law and facts in your court. Therefore, now's the time to add securities litigation counsel to your EB-5 team, if you haven't done so already. Securities litigation counsel experienced in the purchase and sale of securities, the Foreign Corrupt Practices Act (FCPA), disputes with the SEC over what constitutes materiality in an offering, and other relevant areas can help you mitigate risk, protect investors and raise funds as you intended.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Douglas Hauer
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions