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United States v. All Funds On Deposit at Bank Julius Baer & Co. Ltd.

United States District Court, District Circuit

August 12, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ALL ASSETS HELD AT BANK JULIUS BAER & COMPANY, LTD., Guernsey Branch, Account Number 121128, in the name of Pavlo Lazarenko last valued at approximately $2 million in United States dollars, et al., Defendants in rem.

OPINION

PAUL L. FRIEDMAN United States District Judge

This is a civil action, brought in rem, in which the United States seeks forfeiture of over $250 million scattered throughout bank accounts located in Antigua and Barbuda, Guernsey, Liechtenstein, Lithuania, and Switzerland. A number of people, preferring that the United States government not get this money, have intervened to prevent its forfeiture. So far, plaintiff United States has managed to dismiss from this action seven of these intervening parties and has successfully defeated a motion to dismiss the complaint.

The plaintiff now moves to dismiss from the action, for lack of standing, one more claimant: European Federal Credit Bank Limited (“Eurofed”), an Antiguan bank in liquidation. And here the plaintiff’s winning streak comes to an end, because the Court concludes that Eurofed, acting by and through its appointed liquidators, has standing to contest the forfeiture of the defendant assets that are located in Antigua and Barbuda. As for the remaining assets to which Eurofed lays claim, however — those located in Lithuania and Switzerland — the Court agrees with the plaintiff that Eurofed has not demonstrated its standing to contest their forfeiture. The Court therefore will grant the plaintiff’s motion in part and deny it in part.[1]

I. BACKGROUND

A. Nature of the Forfeiture Action

The United States initiated this litigation in 2004, seeking the forfeiture of money that is allegedly traceable to a series of acts of “criminal fraud, extortion, bribery, misappropriation, and money laundering” carried out by, among others, Pavel Ivanovich Lazarenko, a.k.a. Pavlo Lazarenko, a prominent Ukrainian politician who, with the aid of various associates, was “able to acquire hundreds of millions of United States dollars through a variety of acts of fraud, extortion, bribery, misappropriation and/or embezzlement” committed during the 1990s. Am. Compl. ¶¶ 1, 10. According to the United States, those illegal acts, and subsequent attempts to launder the resulting criminal proceeds, involved the transfer of large sums of U.S. dollars into and out of United States financial institutions. Id. ¶¶ 11-13. The plaintiff seeks to claim ownership of those sums of money pursuant to federal statutes that provide for the forfeiture to the United States government of funds traceable or otherwise related to criminal activity that occurred at least in part in the United States. See id. ¶ 1.

B. Eurofed and its Liquidation

As permitted by the civil forfeiture statutes, several parties filed claims in this action asserting an interest in specific property sought by the plaintiff and contesting its forfeiture. At issue here is the claim submitted by an Antiguan bank, Eurofed, which is now in the process of being liquidated under the laws of Antigua. The plaintiff alleges that, before its liquidation, Eurofed was used by Lazarenko to launder proceeds of his criminal activities. Over $100 million of the funds named as in rem defendants in the plaintiff’s complaint are alleged to have been formerly held on deposit for Lazarenko’s benefit at Eurofed. See Am. Compl. ¶ 5(d)-(h).

Eurofed, acting by and through its appointed liquidators (the “Liquidators”), has intervened in this action, asserting an interest in five of the specific properties being sought by the plaintiff and named in paragraphs 5(d) through 5(h) of the amended complaint:

Approximately $85.5 million in United States dollars held at Bank of Nova Scotia (Antigua) in the name of the Registrar of the High Court of Antigua & Barbuda;
Approximately $1.6 million in United States dollars held at Bank of Nova Scotia (Antigua) in the name of the Registrar of the High Court of Antigua & Barbuda;
All assets held at Credit Suisse (Geneva), in account number 0251-562927-6, in the name of European Federal Credit Bank Limited, last valued at approximately $4.8 million in United States dollars;
All assets held at Banque SCS Alliance S.A. (Geneva) in account number 5491, in the name of European Federal Credit Bank Limited, last valued at approximately $483, 629.69 in United States dollars;
All assets held at Vilniaus Bankas [Lithuania] held for the benefit of European Federal Credit Bank Limited, formerly held at accounts 073721 and 073420 at Bankas Hermis in the name of European Federal Credit Bank Limited, last valued at approximately $29, 344, 05.35 in United States dollars.

Euro. Cl. at 3-4; see Am. Compl. ¶ 5(d)-(h). Eurofed has also asserted an interest in the plaintiff’s catch-all in rem defendant: “All assets traceable to the above-mentioned proceeds and property.” Am. Compl. ¶ 5(j); see Euro. Cl. at 4.[2]

Because many of the arguments raised in connection with Eurofed’s standing to contest the forfeiture of these assets hinge on the precise details of Eurofed’s history and liquidation, a detailed account of both is necessary.

The plaintiff alleges that Lazarenko and an associate, Peter Kiritchenko, obtained a controlling interest in Eurofed in 1997, becoming majority shareholders of the bank and placing Lazarenko in control of its investment decisions. See Plaintiff’s Statement of Facts (“Pl.’s Stmnt.”) ¶¶ 1, 4. Lazarenko and his criminal associates were both the bank’s primary owners, the plaintiff alleges, and also its primary depositors. Id. ¶¶ 2-4. According to the plaintiff, the funds held by Eurofed on Lazarenko’s behalf were spread across a number of bank accounts — one in Lazarenko’s own name and six in the names of corporate entities that he allegedly controlled: Lady Lake Investments; Fairmont Group, Ltd.; Firststar Securities, Ltd.; Guardian Investment Group, Ltd.; Nemuro Industrial Group; and Orby International, Ltd. Id. ¶ 5(d). Eurofed is alleged to have held security deposits for two of these companies as well. Id.

According to the plaintiff, by the end of 1997 over $100 million of Lazarenko’s money was held by Eurofed in these accounts. Pl.’s Stmnt. ¶ 4. In addition, the plaintiff alleges, approximately $1.6 million was formerly held on deposit at Eurofed in the account of Lazarenko’s associate Alexander Milchenko. Id. ¶ 5(e).

Eurofed’s Liquidators acknowledge that in 1997 Lazarenko obtained an ownership interest in the bank, but they profess to lack enough information to confirm that he and his associates were the majority depositors. See Eurofed’s Statement of Facts (“Euro. Stmnt.”) ¶ 3. The reason for this uncertainty, they say, is that in the course of their duties they have not yet been able to determine whether the six companies allegedly affiliated with Lazarenko truly were owned or controlled by him. Id. And the funds of those six companies make up the bulk of the money at issue here: Lazarenko’s personal bank account appears to have held only approximately $150, 000 by 1999, while the combined value of the six companies’ accounts exceeded $93 million. Moreover, the Liquidators, while seemingly acknowledging that Lazarenko exerted some influence over Eurofed’s actions and was more than a mere depositor, do not concede that he exerted total control over the bank or its investment decisions. Id. ¶ 4. The Liquidators also emphasize that Eurofed held millions of dollars in deposits from third parties who had no connection with Lazarenko. Id.; see Declaration of Charles William Augustine Walwyn ¶ 6 (estimating that innocent third parties had in excess of $25 million on deposit at Eurofed when it went into liquidation).

Eurofed apparently maintained few of its deposits in Antigua itself. Instead, it established “correspondent” bank accounts in its own name at various other financial institutions around the world, in which it stored the bulk of the money deposited by its customers. See Declaration of Andrew Lewczyk, Ex. P, at 5. “These correspondent bank accounts were not held for the benefit of any particular depositor, ” according to the Liquidators. “As a result, a customer’s deposits were not located in any particular location or correspondent account.” Id. at 8. In other words, if hypothetical Eurofed customers Sally, Sam, and Sue each deposited $40 with Eurofed in Antigua, the bank may well have divided that $120 among four of its own correspondent bank accounts in Switzerland, Lithuania, Liechtenstein, and the United States (placing, say, $30 into each account), making it impossible to trace Sally’s $40 deposit to any of Eurofed’s four correspondent accounts.

In 1999, Antiguan government authorities with responsibility over financial crimes began to investigate Eurofed. Walwyn Decl. ¶ 2. That fall, the nation’s Office of Drug and Money Laundering Control Policy (“ONDCP”) applied to the High Court of Justice of Antigua and Barbuda for an order freezing all Eurofed assets linked to Lazarenko. Id. The High Court granted this request in an order dated October 29, 1999, prohibiting Lazarenko and several of his associates and affiliated companies from removing any of their funds from Antigua or in any way disposing of or diminishing those funds. Id., Ex. B, at 2. The apparent basis for this restraining order was Lazarenko’s criminal prosecution in Switzerland on money laundering charges, for which he was later convicted, and the alleged connection between those charges and the funds held at Eurofed. See id., Ex. H.

On November 15, 1999, the Antiguan financial authorities placed Eurofed into receivership, pursuant to the International Business Corporations Act of Antigua and Barbuda (the “IBC Act”). See Declaration of Nicolette M. Doherty, Exs. B, C. Charles Walwyn and Donald Ward, from the accounting firm of PricewaterhouseCoopers Antigua, were appointed as receiver-managers, and these appointments were confirmed on November 25, 1999 by the High Court of Justice, which ordered the receivers to reorganize the bank. See id., Exs. C, D. Under the IBC Act, the receivers were charged, among other things, with “taking into [their] custody and control the property of the Bank” and “opening and maintaining a bank account or accounts for the moneys of the Bank coming under [their] control.” Id., Ex. C, at 1.

In fulfillment of their responsibilities, in late November 1999 the receivers transferred approximately $76 million to Antigua that was being held in Eurofed correspondent bank accounts located within the United States. The Liquidators kept this money in a trust account that they established for Eurofed funds. Pl.’s Stmnt. ¶¶ 6-7; Euro. Stmnt. ¶¶ 6-7.[3]

On December 3, 1999, the High Court of Justice rescinded its previous receivership order and instead directed that Eurofed be liquidated and dissolved pursuant to the IBC Act. See Walwyn Decl., Ex. E. The court appointed Mr. Walwyn and Mr. Ward as liquidators, providing that they be remunerated at an hourly rate for their work from the funds of the bank. Id., Ex. E, at 2.[4]

Under the IBC Act, a liquidator “must, ” among other responsibilities, “take into his custody and control the property of the corporation, ” “open and maintain a trust account for the moneys of the corporation received and paid out to him, ” and, “after his final accounts are approved by the court, distribute any remaining property of the corporation among the shareholders according to their respective rights.” IBC Act § 307(c), (d), (f). The Act also permits a liquidator to “bring, defend or take part in any civil, criminal or administrative action or proceeding in the name of and on behalf of the corporation.” Id. § 308(1)(b).

On July 7, 2000, granting an ex parte application by the ONDCP, the Antiguan High Court of Justice issued an order directing that “all funds of Pavel Lazarenko and all his associated accounts frozen by Order of this Court” (in October of the previous year) be forfeited to the Antiguan government. Walwyn Decl., Ex. F, at 2. The Liquidators were ordered to pay those funds — specified in the order as $114, 919, 356.82, “or such amount thereof as remains in the Liquidators’ hands, ” along with any accrued interest — into an Antiguan government bank account at the Bank of Nova Scotia in St. John’s, Antigua. Id.

Both Lazarenko and the Liquidators promptly appealed this forfeiture order to the Court of Appeal for Antigua and Barbuda of the Eastern Caribbean Supreme Court. See Walwyn Decl., Ex. H, at 1. Lazarenko also moved the appellate court for a stay of the forfeiture order pending his appeal. Id., Ex. G, at 1. The Court of Appeal granted Lazarenko’s motion for a stay and ordered that, pending the appeal, the funds be placed into an interest-bearing account held at the Bank of Nova Scotia in the name of the Registrar of the High Court of Justice. Id. The preexisting freeze order from October 1999 remained in force. Id.

The Liquidators complied with the order and transferred the funds. This is how the assets listed in paragraphs 5(d) and 5(e) of the plaintiff’s complaint in this action came to be “held at Bank of Nova Scotia (Antigua) in the name of the Registrar of the High Court of Antigua Barbuda.” Am. Compl. ¶ 5(d), (e).

The Liquidators’ appeal of the July 7, 2000 Antiguan forfeiture order was stayed by agreement of the parties, see Walwyn Decl., Ex. J, ¶ 4, while Lazarenko’s appeal of that order continued and ultimately succeeded. On April 27, 2001, the Court of Appeal ruled that the October 29, 1999 freeze order and the July 7, 2000 forfeiture order were not authorized by the Antiguan money laundering statute under the authority of which they ostensibly were issued. The appellate court held that at the time of the orders no evidence had been presented to the High Court linking the funds on deposit at Eurofed with the money laundering crime for which Lazarenko was convicted in Switzerland. Because the Antiguan money laundering statute required such a showing to be made, both the freeze order and the forfeiture order were invalid. See id., Ex. H, ¶ 1.[5]

A few days after the Court of Appeal ruled that the forfeiture and freeze orders were invalid, the Antiguan money laundering authorities applied for a new freeze order from the High Court of Justice. That court issued another ex parte order on May 2, 2001, directing that “[a]ll the rights and interests” of Lazarenko, “whether in his name or otherwise, ” be “frozen until further order.” Walwyn Decl., Ex. I, ¶¶ 1-2. This order applied to any interests of Lazarenko in money held “within the account maintained by the Registrar . . . at the St John’s Branch of the Nova Scotia Bank” or “within any account maintained by the liquidators of Eurofed Bank Ltd.” Id.

In light of this new freeze order, Eurofed’s Liquidators applied for their own order from the High Court of Justice later that month. The Liquidators explained to the court that the money held in the account of the Registrar of the High Court of Justice — where it had been ordered deposited for safekeeping pending Lazarenko’s appeal of the now-vacated forfeiture order — made up the vast majority of the liquidation estate. Walwyn Decl., Ex. J, ¶¶ 3-6. The Liquidators further maintained that the innocent depositors and creditors of Eurofed who were not alleged by the government to be affiliated with Lazarenko “have been prejudiced by the fact that their funds have been removed from the liquidation together with the funds of [Lazarenko] and place[d] in the account of the Registrar.” Id. ¶ 10. Accordingly, the Liquidators proposed a pro rata division of the funds being held in the Registrar’s account, under which the funds of Lazarenko and the six companies he allegedly controlled would remain frozen in the Registrar’s account, while the funds of the remaining third-party depositors of Eurofed would be released to the Liquidators for use in the liquidation. Id. ¶ 7.

The Liquidators also described the basis for their conclusions about which funds should be regarded as Lazarenko-related and remain frozen. As they explained, in view of the new restraining order, which imposed restrictions only on Lazarenko’s interests in Eurofed’s funds, it had become necessary to “quantify the funds held by the Liquidators for Pavlo Lazarenko and his alleged companies.” Walwyn Decl., Ex. J, at 5. Although Lazarenko himself had asserted ownership of the six companies alleged to be under his control, and had made claims in the liquidation for over $100 million of Eurofed funds based on that purported ownership, the Liquidators stated that they had “not been able to independently verify ownership of the companies.” Id. at 6. Taking a conservative approach, the Liquidators recommended treating the combined sum of the money in Lazarenko’s personal bank account and the accounts of the six companies over which he claimed ownership as potentially Lazarenko-related for the purposes of the freeze order. Since Lazarenko “ha[d] not provided any evidence supporting a claim any higher than this” amount, the Liquidators reasoned that the remainder of the funds could safely be regarded as non-Lazarenko-related and used to fund the liquidation claims of third-party depositors and creditors. Id. at 6-7.[6]

The Liquidators proposed, in other words, that all funds potentially related to Lazarenko would remain in the Registrar’s account, but that the remainder of the funds, which by all reports came from innocent third parties, be released to the Liquidators for use in funding the liquidation.[7] After pro rata calculations and reductions, the Liquidators’ proposal called for the release of nearly $20 million to the Liquidators, while approximately $65 million in potentially Lazarenko-related funds would stay in the Registrar’s account. Id. at 10-11.

In an order dated November 6, 2003, the High Court of Justice granted the Liquidators’ motion, over the objections of Lazarenko’s counsel. See Walwyn Decl., Ex. K. The court directed the Registrar to release the nearly $20 million from its account at the Bank of Nova Scotia to the Liquidators “for the purpose of pro rata payment to third party depositors and creditors” and for expenses of the liquidation. Id. ¶ 2. “The funds designated to Pavlo Lazarenko and associated companies, ” however, totaling approximately $65 million, were to “remain frozen at the Bank of Nova Scotia, Antigua, in the account of the Registrar of the High Court until further order.” Id. ¶ 5. It is unclear whether Eurofed funds allegedly held for the benefit of Alexander Milchenko (approximately $1.6 million) were designated as being potentially Lazarenko-related in the Liquidators’ calculations, and thus whether a corresponding amount of money (reduced pro rata) was released to the Liquidators as part of the approximately $20 million they received. See Lewczyk Decl., Ex. P, at 10-11.

Since the division of funds in 2003, the Liquidators report that they have worked to validate third-party claims and have used the $20 million released to them to make distributions to validated depositors and creditors. As of March 2012, they state, they had validated approximately 74 claims submitted by claimants unrelated to Lazarenko and had distributed over $14 million to those claimants. Because of the cap on the funds presently available to them, however, and because there are 107 additional third-party depositors and creditors whose claims have not yet been validated, the Liquidators have paid the validated third-party depositors and claimants on a pro rata basis. They report that the balance still owed to these 74 validated third-party claimants is $3, 180, 171. They also report that the total value of the “potential claims” of the additional 107 third-party depositors and creditors whose claims have not yet been validated is $6, 966, 692. “Thus . . . the total potential remaining amount due to third party depositors and creditors unrelated to Lazarenko is $10, 146, 823, ” while the “total unrestrained funds in the Liquidators’ possession . . . is $4, 347, 542, and therefore, there is a deficit in the liquidation estate of at least $5, 799, 280.” Walwyn Decl. ¶¶ 16-17.

C. Lazarenko’s Prosecution and the Initiation of this Forfeiture Action

Meanwhile, in the United States, Lazarenko was criminally prosecuted for offenses stemming from his alleged laundering of money through American banks. Indicted in the Northern District of California on dozens of counts of conspiracy, money laundering, wire fraud, and interstate transportation of stolen property, Lazarenko was convicted in June 2004 of numerous counts — eight of which, for money laundering and conspiracy, survived a post-trial motion for a judgment of acquittal and an appeal to the Ninth Circuit. See United States v. Lazarenko, 564 F.3d 1026, 1029-32, 1047 (9th Cir. 2009).

The plaintiff initiated civil forfeiture proceedings in this Court in May 2004. As grounds for the forfeiture, the complaint alleges criminal conduct by Lazarenko that is similar to the charges levied against him in his criminal prosecution. See Am. Compl. ¶¶ 120-155. This Court’s jurisdiction rests on 28 U.S.C. § 1355(a), and venue is proper here because all of the defendant properties are located in foreign bank accounts, and “[w]henever property subject to forfeiture under the laws of the United States is located in a foreign country . . . an action or proceeding for forfeiture may be brought . . . in the United States District Court for the District of Columbia.” All Assets I, 571 F.Supp.2d at 7 & n.6 (quoting 28 U.S.C. § 1355(b)(2)); see United States v. All Funds in Account Nos. 747.034/278, 747.009/278, & 747.714/278 in Banco Espanol de Credito, Spain, 295 F.3d 2, 26 (D.C. Cir. 2002).

The amended complaint includes eight claims for forfeiture falling into two general categories. The first four claims for relief allege the direct forfeiture of criminal proceeds pursuant to 18 U.S.C. § 981(a)(1)(C), which provides for the forfeiture of proceeds from violation of certain enumerated criminal statutes or any offense constituting “specified unlawful activity” as defined in 18 U.S.C. § 1956(c)(7). See Am. Compl. ¶¶ 120-139. The last four claims for relief allege forfeiture of property involved in money laundering violations pursuant to 18 U.S.C. § 981(a)(1)(A), which provides for the forfeiture of any property involved in or traceable to a violation of the money laundering provisions of 18 U.S.C. §§ 1956 and 1957. Am. Compl. ¶¶ 140-155. The plaintiff argues that all of the defendant properties are forfeitable under either theory.

Civil forfeiture actions are governed by the procedures set forth in 18 U.S.C. § 983 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (“Supplemental Rules”), a subset of the Federal Rules of Civil Procedure. When the government files a complaint for forfeiture, “any person claiming an interest in the seized property may file a claim asserting such person’s interest in the property in the manner set forth in the Supplemental Rules[.]” 18 U.S.C. § 983(a)(4)(A); see Supp. R. G(5)(a).

Nine individuals and three business entities filed claims contesting the forfeiture in this action. The individual claims were filed by Pavel Lazarenko, Alexander Lazarenko, Alexei Ditiatkovsky, and six people who maintained that they were innocent depositors of Eurofed. The institutional claims were filed by Eurofed (acting through its Liquidators), OAO Gazprom, and Universal Trading & Investment Company, Inc. The latter two companies claimed an interest in the defendant funds stemming from a kickback scheme allegedly orchestrated by Lazarenko that involved natural gas contracts in the Ukraine. See All Assets III, 772 F.Supp.2d at 196-205; All Assets IV, 772 F.Supp.2d at 211-18.

The Court denied a motion by the Liquidators to transfer venue to the Northern District of California, where Lazarenko was being prosecuted, see Order, United States v. All Assets Held at Bank Julius Baer & Co., Ltd. (D.D.C. July 5, 2006), and it later denied a motion by Pavel and Alexander Lazarenko to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. See All Assets I, 571 F.Supp.2d at 6-17. Upon motion by the plaintiff, the Court dismissed the claims of the six individual Eurofed depositors, because those individuals did not file answers to the plaintiff’s complaint as required by Supplemental Rule G(5)(b), a fatal procedural deficiency under the Supplemental Rules. See All Assets II, 664 F.Supp.2d at 101-03. The Court also granted judgment on the pleadings against OAO Gazprom and Universal Trading & Investment Company, Inc., concluding that neither company had standing to participate in this action because each lacked a cognizable interest in the property whose forfeiture they sought to contest. See All Assets III, 772 F.Supp.2d at 196-205; All Assets IV, 772 F.Supp.2d at 211-18. Four claimants now remain: Pavel Lazarenko, Alexander Lazarenko, Alexei Ditiatkovsky, and Eurofed.

D. Background on the Pending Motion

Supplemental Rule G(6) permits the government to issue special interrogatories to claimants early in the forfeiture proceedings, “limited to the claimant’s identity and relationship to the defendant property.” Supp. R. G(6)(a). The purpose of such special interrogatories is to allow the government “to gather information that bears on the claimant’s standing, ” id., Advisory Committee Notes, 2006 Adoption, which facilitates the prompt elimination of claimants who have no right to participate in the proceedings and frees the government from the burden of responding to dispositive motions filed by such claimants. “The special interrogatories, ” therefore, “are limited to questions dealing solely with claimant’s ownership interests in the property.” John K. Rabiej, Supplemental Rule G Governing Pretrial Procedures in Forfeiture in Rem Actions, Prac. Litig., May 2008, at 51.[8]

The plaintiff propounded special interrogatories to Eurofed’s Liquidators in 2008, see Declaration of Jason A. Levine, Ex. 18, and the Liquidators responded. After a stay in discovery that temporarily put things on hold, and after two subsequent requests by the plaintiff for more complete responses after discovery resumed, the Liquidators provided their second set of supplemental responses and objections to the plaintiff’s special interrogatories in April 2010. See Levine Decl., Ex. 20.

Approximately one year after receiving these special interrogatory responses, the plaintiff filed a “Motion to Strike Liquidators’ Claim or, in the Alternative, to Compel Complete Responses to Special Interrogatories.” See Dkt. No. 244. Rather than simply moving the Court to order the Liquidators to provide more comprehensive interrogatory responses, something the plaintiff had not yet attempted, the motion asked the Court to strike Eurofed’s claim entirely and dismiss the bank from the proceedings under Supplemental Rule G(8)(c)(i)(A), which permits striking the claim of a forfeiture claimant who has failed to comply with Rule G(6).[9]

The plaintiff charged that the Liquidators had “repeatedly sought to avoid answering the threshold question of the nature and extent of their interest in the property subject to forfeiture through evasive and non-responsive answers to Special Interrogatories, ” Dkt. No. 244-1 at 1-2, and that dismissal was an appropriate sanction for this noncompliance because the Liquidators had “provided conflicting evasive assertions of interest in their Claim, Answer and Special Interrogatory responses” and had “failed substantively to respond to Special Interrogatories despite multiple opportunities.” Id. at 2. As an alternative to dismissal, the plaintiff requested that the Liquidators be ordered to ...


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