Files criminal complaint for diversion of $40 million in dividends
Jul 27 2022
Lisa, S.A.
Lisa, S.A. filed a criminal complaint on July 27, 2022, before the Second Sub-Regional Primary Attention Section of the Metropolitan Prosecutor's Office of the Public Ministry of Panama, against Villamorey, S.A. and Juan Luis Bosch Gutiérrez, both individually and in his capacity as general agent of Villamorey. The complaint sets a minimum approximate value of $40,000,000.00 and attributes to the defendants a sustained pattern of dividend diversion, concealment of accounting records, and failure to comply with judicial obligations, to the direct detriment of Lisa as holder of 33.3% of Villamorey's share capital.
Aggravated fraud. Lisa asserts that Bosch Gutiérrez, through deception and in the exercise of his functions as agent and administrator of Villamorey, procured unlawful benefits to the detriment of Lisa in an amount exceeding $40,000,000.00. The conduct traces back to November 2008, when Bosch informed the Eleventh Circuit Civil Court that the amounts retained under the precautionary measure on Lisa's dividends were at the court's disposal. However, Bosch never filed a report on his management as judicial depositary, and the whereabouts of the retained funds remain unknown. This deposit obligation was resolved through Order No. 2277-2018, now final and enforceable, which directed the collection of penalties and the release of excess amounts, the location of which Lisa does not know.
Financial crimes. Villamorey, as a legal entity incorporated in Panama, has concealed its accounting books, financial records, financial statements, and all financial information, causing direct harm to Lisa. Bosch Gutiérrez, in his capacity as director, manager, and legal representative, has promoted and facilitated this conduct, triggering the aggravating factor applicable to those acting from positions of corporate administration.
Money laundering. The complaint alleges that Bosch has continuously transferred, for no fewer than five years, monies, securities, assets, and other financial resources derived from the crimes of aggravated fraud and financial crimes, with the purpose of concealing and disguising their illicit origin.
Document falsification. Lisa alleges that Bosch, as shareholder, legal representative, and director of Villamorey, together with other officers, has suppressed, removed, concealed, and presumably destroyed original documents, preventing Lisa from exercising its right as a shareholder to access the company's financial information.
The complaint presents both documentary and expert evidence. Documentary evidence includes public registry certifications establishing the existence of Lisa and Villamorey, an authenticated copy of Order No. 2277-2018 from the Eleventh Civil Court, and a copy of a letter signed by Bosch regarding the retained dividends. An authenticated copy of a Villamorey shareholders' meeting minutes is also offered, which Lisa contends demonstrates the concealment or falsification of accounting records. As expert evidence, the complaint requests an ocular inspection of Villamorey's accounting books and financial statements, as well as a forensic audit to determine the magnitude of the illicit acts. Additionally, the complaint requests that the Superintendency of Banks be contacted to trace the destination of diverted assets.
The complaint invokes the reversal of the burden of proof (iuris tantum) under Article 257 of the Criminal Procedure Code, arguing that, given the concealment and unknown whereabouts of accounting books and financial statements, the defendants must demonstrate the lawful origin of the assets.