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GFSC-licensed fund at the centre of multi-million dollar dispute

GFSC-licensed fund at the centre of multi-million dollar dispute

Wednesday 26 August 2020

GFSC-licensed fund at the centre of multi-million dollar dispute


A Guernsey-registered company is claiming almost $14 million in damages from a former advisor - however the lengthy legal battle will now be concluded overseas following a judgment from Guernsey's former Bailiff, Sir Richard Collas.

Highland Capital Management, which is licensed by the Guernsey Financial Services Commission as a closed ended investment fund, has accused former advisor Joshua Terry of misusing confidential information about the company.

The company's portfolio management services were provided by ACIS Capital Management G P (ACIS), on behalf of its general partner ACIS Capital Management LP (Acis LP). 

Mr Terry was a limited partner of Acis LP and an employee of Highland CM, to whom he provided portfolio management services.

His role was to discuss investment objectives with Highland CM and present information to its directors about potential investments. However, a Portfolio Services Agreement (PSA) expressly stated that the ultimate responsibility on whether to accept those recommendations rested with Highland CM's board of directors. 

gfsc

Pictured: Highland Capital Management is licensed by the Guernsey Financial Services Commission as a closed ended investment fund.

In the course of his duties, it is alleged that Mr Terry came into possession of confidential information on or around 9 June 2016 when his employment with Highland CM was terminated. He ceased to be a limited partner of Acis LP, and his roles with ACIS were also terminated at that time. 

In September 2016, Highland CM issued proceedings in the Dallas District Court against Mr Terry for breach of his employment agreement, breach of fiduciary duty and violation of the Texas Uniform Trade Secrets Act. It also sought declaratory relief that his employment had been terminated for cause.

On Mr Terry’s application, the proceedings were stayed and the parties were compelled to arbitrate. The Final Award dated 20 October 2017 awarded compensation totalling $7,949,749.15 to Mr Terry against Acis.

In order to expedite his payment, It was alleged that Mr Terry lodged an involuntary bankruptcy petition against Acis in the United States Bankruptcy Court in Dallas by using confidential information about Highland CM.

For that alleged breach, the company is suing Mr Terry for losses and damages in the annual sum of $13,729,084.

dallas_texas.jpg

Pictured: Proceedings against Mr Terry commenced in Dallas, Texas four years ago.

They said the defendant had an obligation not to use that information in a disadvantageous way to the business. 

Mr Terry argued that some of the accusations were false and some of the allegedly confidential information was lawful, either because it was already in the public domain or because it had been disclosed to him during other litigation in the Dallas Courts. 

Mr Sevilla, the Counsel to Highland CM, repeated the allegations that Mr Terry misused confidential information in bringing the bankruptcy petition but he acknowledged that some of the information, such as the Acis-3 Supplemental Indenture, was publicly available at that time.

In his second Affidavit, Mr Terry replied briefly with a further denial that he had used confidential information when filing the bankruptcy petition and made an additional allegation that any relevant information claimed by Mr Sevilla to be confidential was in fact the property of Acis LP.

Guernsey’s Lieutenant Bailiff Sir Richard Collas said Highland CM’s strongest argument was that Mr Terry owed fiduciary duties to the company that went beyond any contractual obligations. 

Advocate Bell argued, on behalf of Highland CM, that the corporate structure of a collective investment fund and the necessary delegation of functions to specialist providers would best be understood in Guernsey’s Courts – however this assertion was rejected by Sir Richard. 

“In my judgment, the company’s submissions failed partly because the two directors of the company were keen to stress that they had ultimate responsibility, thereby denying any suggestion that Mr Terry was a shadow or de facto director."

Bailiff Richard Collas

Pictured: Guernsey's former Bailiff Sir Richard Collas, who is now a Lieutenant Bailiff, presided over the application change the jurisdiction of the case. 

Sir Richard continued: "The main evidence relied upon was that of Mr Sevilla, counsel to Highland CMP, who had a detailed knowledge of the legal framework but less detailed knowledge of the day-to-day operations as evidenced by him misleading Advocate Bell as to the location of the company’s bank accounts.

"His evidence was not sufficient to persuade me that trust and confidence was reposed in Mr Terry beyond that which would be expected of individuals and corporates performing in a proper way their contractual obligations towards each other.

"There is no doubt that Mr Terry owed a duty of confidence but the question of whether the information used by him in the bankruptcy proceedings was not legitimately available to him is a question that will best be decided in the jurisdiction where the information and the key witnesses are located. That is also where the Courts would be best placed to understand the relationship between this action and the arbitration award and those bankruptcy proceedings."

Sir Richard granted Mr Terry’s application to set aside the leave to serve out of the jurisdiction, meaning this should be the last time the case appears before Guernsey's Courts.

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