Jay Peak owner Ariel Quiros has agreed to drop his challenge to allegations brought by federal regulators that he operated a “Ponzi-like” scheme to fund massive upgrades at the Northeast Kingdom Vermont ski resort and other projects.
The only matter to be decided now in the case brought by the U.S. Securities and Exchange Commission is how much, if anything, Quiros will pay for ill-gotten gains, interest and penalties.
“The parties will continue to attempt to resolve those issues through negotiation,” Robert Levenson, an SEC litigator, wrote in a filing Tuesday. If an agreement cannot be reached, a hearing may be necessary to resolve the differences.
Melissa Visconti, Quiros’ attorney, said in a statement Tuesday that her client has consented to the permanent injunction in the SEC case. Quiros is now prohibited from selling securities or participating in EB-5 programs.
The partial settlement in the civil lawsuit has nothing to do with potential criminal charges that remain pending.
“Mr. Quiros does not admit or deny the SEC’s allegations against him,” Visconti said in the statement, “but, in the continuing spirit of cooperation and in the interest of moving the case closer to resolution, Mr. Quiros agreed to a permanent injunction, which enjoins violations of the anti-fraud provisions of the securities laws and precludes him from participating in other EB-5 offerings or from acting as an officer or director of any entity regulated by the SEC.”
“The focus for Mr. Quiros and the SEC will now be on the amount of disgorgement and penalties, if any, to be paid,” Visconti wrote.
A separate investigation by the U.S. Attorney’s office is ongoing and no criminal charges have yet been filed against Quiros and his partner, Bill Stenger, the former CEO and president of Jay Peak. One high-ranking official says they would be “shocked” if Quiros didn’t serve jail time.
The SEC filed 52 counts of securities fraud in a civil complaint against Quiros and Stenger in April 2016. Regulators accuse the two developers of misusing $200 million raised from immigrant investors through the federal EB-5 visa program. The civil charges will ultimately result in fines and penalties.
Quiros, according to that SEC filing, stole more than $50 million and used some of it on tax payments and the purchase of two New York condos.
The SEC lawsuit alleged the two men operated a “Ponzi-like” scheme to defraud hundreds of investors in a series of development projects in Vermont’s Northeast Kingdom, including large-scale upgrades at Jay Peak.
The lawsuit traces the problems for Quiros back to 2008 when he used investor money to buy Jay Peak Resort. That money had been raised from those investors to build the Jay Peak and Tram Haus hotels, according to the SEC lawsuit.
Other later projects were a hotel and conference center at Burke Mountain that opened late last summer and two developments in Newport that never got off the ground, including a $110 million biomedical research center known as AnC Bio Vermont.
In total, the two men collected more than $445 million from 890 immigrant investors from 74 countries, according to new information from the U.S. Citizenship and Immigration Services. The SEC alleged the two men used money from investors in one project to cover deficits in earlier developments.
The filing Tuesday follows a ruling by Judge Darrin P. Gayles in November granting the SEC a preliminary injunction against Quiros. The judge wrote that Quiros was the “architect” of a scheme to deceive hundreds of investors over an eight-year period.
Since that time, Quiros fired his former legal team, hired Visconti and took a strategy of “cooperation” with the SEC. Despite that strategy, recent legal filing by the parties have shown some testiness over that level of cooperation and what defenses Quiros would be entitled to raise to the allegations against him.
Now, that dispute over defenses is off the table.
“We are happy to have been able to reach agreement with the SEC regarding the injunction and to narrow down the remaining issues,” Visconti said in the statement issued Tuesday. “We are committed to working with the SEC and all involved to reach an amicable resolution of the remaining issues.”
As part of Tuesday’s filing, Quiros agrees he “will not take any action or make or permit to be made any public statement denying , directly or indirectly, any allegation” in the SEC’s lawsuit.
Asked if that means that the allegations brought by the SEC are true, Visconti replied, “Under the terms of the consent we are not to say one way or the other. All we’re saying is we’re not admitting or denying.”
Quiros, in filings by his previous attorneys earlier in SEC case, denied wrongdoing, claiming the profits he made were legitimate from development fees investors knew about as contained in legal documents.
And, if regulators hadn’t halted the developments, his prior attorneys claimed Quiros would have been able to able to complete those later projects, including AnC Bio Vermont in Newport.
Visconti declined Tuesday to say how much, if any, disgorgement and other monetary penalties Quiros may pay. “We’re negotiating that,” she said.
Levenson, the SEC attorney, declined comment.
The SEC and Quiros’ law firm Damian & Valori have asked the U.S. District Court judge in Miami to remove the case from the trial calendar, which was set for September 2018.
The two parties have requested that the discovery cutoff of Dec. 15 for fact discovery and Jan. 26, 2018, for the completion of any discovery on monetary issues. The court can resolve any negotiations over money through a hearing, if necessary.
Stenger settled his case with the SEC in September 2016. He agreed to cooperate with investigators, and a civil penalty may be levied based on his level of cooperation.
A lawsuit by the state of Vermont against the two men remains pending.
Mike Pieciak, the commissioner of the Department of Financial Regulation, which is litigating the state case against the Jay Peak developers with the Vermont Attorney General’s office, described the agreement as a partial or bifurcated settlement that is typical in SEC cases.
The consent settlement reached today assumes that all the facts in SEC case are true, Pieciak says. A future, second settlement, will address disgorgement — how much money Quiros will owe investors, plus penalties, Pieciak says.
Michael Goldberg, the court-appointed receiver for the SEC case, says that the agreement over the permanent injunction is “a big step forward.”
The amount Quiros must repay, Goldberg said, will now be the subject of a legal negotiation. Any money the SEC is able to obtain from Quiros will go directly to the investors, he said.
At a hearing in May 2016 shortly after the case was brought federal regulators claimed Quiros was potentially liable for up to $191.8 million in “ill-gotten gains.”
That includes, according the SEC at that time, the $50 million they say he “looted” as well as $141.8 million in other fraudulent gains through the misuse of funds.
The receiver previously settled with Raymond James & Associates Inc. for $150 million and used part of the money to pay back investors, pay attorneys in related cases and clear debts owed to vendors and contractors.
Goldberg says he also sued Quiros as part of the case against Raymond James, and he has not yet settled with the former owner of Jay Peak Resort. “I am extremely optimistic we will get all of the Vermont property for the investors,” Goldberg said. Those properties include Jay Peak Resort and Burke Mountain Resort.
Editor’s note: Anne Galloway contributed to this report.