Marcus Staff

Marcus has very extensive experience in massive transnational fraud litigation involving politically sensitive persons, international corporations, banks and other financial intermediaries such as asset managers, trustees and beneficiaries.  For example:

• Rubin v. Eurofinance SA [2009] EWHC 2129 (Ch.); [2010] EWCA Civ 895; Times Law Reports 5^th October 2010; [2012] UKSC 46: In this leading case, the representatives of the United States Bankruptcy Court sought to enforce a US$160 million default judgment obtained in part on an allegation of fraud and under in personam claims provisions arising under the US Bankruptcy Order.  The recent Supreme Court judgment is discussed in Marcus' briefing note. 
• Macdoel Investments Limited v. Federal Republic of Brazil [2007] JLR 201 & PC (permission): Macdoel was alleged to have received US$600m which were allegedly the proceeds of a fraud against the Brazilian authorities.
• Marlwood Commercial v. Kozeny [2007] EWHC (Comm) 950: Civil disclosure aspect of a claim brought by US investors in connection with a joint venture to profit from trading in privatization vouchers issued to the public in the Republic of Azerbaijan.  Large quantum.

Marcus has been engaged in major international and domestic commercial disputes primarily involving debt instruments and banks.

His recent work includes:

• In re Lehman Bros: This matter concerns a group of private equity funds with securities lodged at Lehman Bros who are seeking to recover their property above other creditors.  Money was borrowed on the security of shares placed with the bank under a security financial collateral arrangement.  The bank then borrowed against those shares.  The issue is whether the equity in the shares was extinguished immediately the bank used them.
• Rubin v. Eurofinance SA [2009] EWHC 2129 (Ch.); [2010] EWCA Civ 895; Times Law Reports 5^th October 2010; [2012] UKSC 46: In this case, the representatives of the United States Bankruptcy Court sought to enforce a US$160 million default judgment obtained in part on an allegation of fraud and under in personam claims provisions arising under the US Bankruptcy Order.  The argument was whether a judgment of the US bankruptcy court is enforceable in the UK at common law or under the Cross Border Insolvency Regulations 2006.  The case has already led to amendment of the leading conflict of laws text book: Dicey & Morris.  Further details are set out in Marcus' briefing note.
• Al Sadik v Investcorp Bank BSC (Cayman Islands) : Claim by an investor in Cayman in connection with a US$135m structured investment in the defendant bank’s hedge fund platform.  Complex analysis of the bank’s debt financed investments, redemption rates and the effect of leverage on investment valuations.
• Gemstone : Anguillan and Jersey litigation arising out of a dispute between the two managers of  a hedge fund as to division of their profits.
• Macdoel Investments Limited v. Federal Republic of Brazil [2007] JLR 201 & PC (permission): Macdoel was alleged to have received US$600m which were allegedly the proceeds of a fraud against the Brazilian authorities.

Marcus has a particular interest in the concept of property in a fund of which the paradigm example is a modern prime brokerage agreement and which applies also to asset securitization and specifically floating charges and the protection of beneficiaries’ and trustees’ rights. 

Marcus is recommended by Legal 500 in this area.

Some of his recent cases include:

• Global Distressed Alpha Fund v PT Bakrie Investindo [2011] EWHC 256 (Comm) (England, CA) :  Marcus acted for a holder of interest bearing negotiable securities (3 year guaranteed notes) that were in default.  The holder sued an Indonesian corporate guarantor on an English law guarantee.  The case raises issues about the status of a holder in due course of bearer securities where there is a theoretical possibility that a prior party might have entered into an agreement to compromise the notes; and about the construction of contractual interest/limitation provisions in the documentation. 
• Analysing and advising on the meaning of transactional documentation describing the terms of structured investment vehicles issuing asset based, securitised, fixed income notes with an aggregate face value of US$35 billion in relation to the assignment of misselling claims against investment banks under US law.
• Al Sadik v Investcorp Bank BSC (Cayman Islands) : Claim by an investor in Cayman in connection with a US$135m structured investment in the defendant bank’s hedge fund platform.  Complex analysis of the bank’s debt financed investments, redemption rates and the effect of leverage on investment valuations.
• In re Lehman Bros : This matter concerns a group of private equity funds with securities lodged at Lehman Bros who are seeking to recover their property above other creditors.  Money was borrowed on the security of shares placed with the bank under a security financial collateral arrangement.  The bank then borrowed against those shares.  The issue is whether the equity in the shares was extinguished immediately the bank used them.

Marcus is very familiar with all aspects of hedge funds including issues concerning investors’ interests (subscription, redemption, insolvency claw backs), internal fund governance and administration and the fund’s rights against third parties including prime brokers and other  commercial counterparties. 

This expertise is recognised in his recommendation in Legal 500/2011 for banking & finance work. 

 Some of his recent cases include :

• Global Distressed Alpha Fund v PT Bakrie Investindo [2011] EWHC 256 (Comm) (England, CA) : Marcus acted for a holder of interest bearing negotiable securities (3 year guaranteed notes) that were in default.  The holder sued an Indonesian corporate guarantor on an English law guarantee.  The case raises issues about the status of a holder in due course of bearer securities where there is a theoretical possibility that a prior party might have entered into an agreement to compromise the notes; and about the construction of contractual interest/limitation provisions in the documentation. 
• Analysing and advising on the meaning of transactional documentation describing the terms of structured investment vehicles issuing asset based, securitised, fixed income notes with an aggregate face value of US$35 billion in relation to the assignment of mis-selling claims against investment banks under US law.
• Al Sadik v Investcorp Bank BSC (Cayman Islands) : Claim by an investor in Cayman in connection with a US$135m structured investment in the defendant bank’s hedge fund platform.  Complex analysis of the bank’s debt financed investments, redemption rates and the effect of leverage on investment valuations.
• In re Lehman Brothers (Europe) (in administration) : The issues concern claims by a group of private equity funds with securities lodged at Lehman Bros who are seeking to recover their property above other creditors.  Money was borrowed on the security of shares placed with the bank under a security financial collateral arrangement.  The bank then borrowed against those shares.  The issue is whether the equity in the shares was extinguished immediately these were used by the bank.
• Gemstone : Anguillan and Jersey litigation arising out of a dispute between the two managers of  a hedge fund as to division of their profits.

Marcus has particular expertise in the enforcement of judgments in cross-border insolvency and has been and remains involved in ground-breaking areas. 

Some of his recent cases include:

• Global Distressed Alpha Fund v PT Bakrie Investindo [2011] EWHC 256 (Comm) (England, CA) : Marcus acted for a holder of interest bearing negotiable securities (3 year guaranteed notes) that were in default.  The holder sued an Indonesian corporate guarantor on an English law guarantee.  The case raises issues about the status of a holder in due course of bearer securities where there is a theoretical possibility that a prior party might have entered into an agreement to compromise the notes; and about the construction of contractual interest/limitation provisions in the documentation. 
• Rubin v. Eurofinance SA [2010] EWCA Civ. 895; Times Law Reports 5th October, 2010; [2009] EWHC 2129 (Ch.); [2012] UKSC 46: In this case, the representatives of the United States Bankruptcy Court sought to enforce a US$160 million default judgment obtained in part on an allegation of fraud and under in personam claims arising under the US bankruptcy law.  Further details can be found in Marcus' briefing note.
• In re Lehman Brothers (Europe) (in administration) v. Newport Fund (December, 2009): Benjamin Order - distribution of trust assets by administrator.
• In re Lehman Brothers (Europe) (in administration) v. RAB Market Cycles (Master) Fund [2009] EWHC 2545: The issues in this case concerned prime brokerage and property in a fund.  Marcus acted for a potential intervener.
• In re Lehman Brothers (Europe) (in administration) v. Four Private Equity Funds [2008] EWHC 269: This case involved administrators' disclosure regarding property in a fund.

Marcus has long experience of express trusts in an international context involving questions of trustees and beneficiaries’ rights and duties, trust internal administration and hostile trust litigation. 

Some of his recent work in this area includes:

• Labrouche v Frey (Chancery Division)(2011), ongoing: One of the main issues in this US$130m case (which is about the trusts of an English law will made by a Swiss domiciled testatrix) concerns whether or not the founder’s rights in a Liechtenstein establishment constituted property under English trust law.  Also at stake is whether or not the conversion of the establishment into a foundation was an unlawful disposal done in breach of trust.  There are issues of conflicts of law, in particular in relation to res judicata defences on the basis of foreign proceedings. 
• Liechtenstein disclosure facility: Marcus acted for HMRC to act in the negotiation of an agreement between them and the Government of Liechtenstein setting up a facility for the identification of undeclared assets in Liechtenstein under the ownership or control of UK tax payers.
• Osiris litigation: Isle of Man dispute concerning complex issues of trustees’ remuneration and indemnification.