Baha Mar's original developer Sarkis Izmirlian.
By NEIL HARTNELL
Tribune Business Editor
nhartnell@tribunemedia.net
Sarkis Izmirlian is alleging that Baha Mar’s contractor make secret payments to unnamed “government officials, their family and associates” as part of a scheme to force him out from the multi-billion dollar development.
The mega resort’s original developer said the allegation, made in an April 22, 2022, legal filing came as a result of new evidence uncovered during the legal “discovery” process as both he and China Construction America (CCA) exchange documents in preparation for full trial before the New York State Supreme Court.
Mr Izmirlian’s BML Properties vehicle made the “clandestine payments” assertion as part of a new “unjust enrichment” claim it is adding to its original $2.25bn fraud and breach of contract lawsuit against the Chinese state-owned contractor. Its legal filing adds that the additional “cause of action” is being added with the New York State Supreme Court’s permission.
“Based on the allegations in the complaint, and in addition to facts revealed during the course of discovery, defendants [CCA and its parent] engineered a scheme to remove plaintiff from the Baha Mar project to further enrich themselves at plaintiff’s expense,” Mr Izmirlian and BML Properties alleged.
“This includes, among other things, work stoppages, holding the project hostage, failures to disclose conflicts of interest, clandestine payments and discussions with governmental officials, their family and associates, and collaboration with other entities controlled by the Chinese state, all at plaintiff’s expense. Based on these actions, defendants were unjustly enriched in an amount well in excess of $100m.”
Mr Izmirlian and his corporate vehicle are alleging that, as a result, CCA enjoyed “a substantial windfall” at their expense and “equity and good conscience” require the New York court order these “illegal proceeds” be given up and instead returned to them.
The nature of the “clandestine payments”, and the identities of the “government officials, family and associates”, are not revealed in the brief legal filing. However, those referred to are almost certainly Bahamian, and the claims add a further twist to a now seven-year legal battle between Mr Izmirlian and his former Chinese partner that was sparked when the former placed the Baha Mar development in Chapter 11 bankruptcy protection in late April 2015.
CCA executives joined senior Baha Mar and government officials late last week in celebrating the $4.2bn mega resort’s fifth anniversary since it opened in April 2017 under present owner, Chow Tai Fook Enterprises (CTFE), who acquired the project from its secured lender, China Export-Import Bank, and the latter’s Deloitte & Touche receivers.
It is unclear whether the timing of Mr Izmirlian’s latest legal filing is coincidental, but it will likely take the shine off the fifth year anniversary celebration for some. And it also means that the last Christie administration’s controversial handling of the Baha Mar dispute, in particular siding so openly with CCA and opposing Mr Izmirlian over the Chapter 11 filing, refuses to go away. It now remains to be seen whether any specifics emerge around the corruption allegations.
Ex-prime minister, Perry Christie, indicated at the time he felt Mr Izmirlian had betrayed him by planning to put Baha Mar into Chapter 11 while he, at the same time, was seeking to mediate a resolution to the developer’s dispute with CCA over its failure to complete the mega resort on time and on budget.
The then-administration appeared to side with CCA in the belief that it was better positioned to complete Baha Mar, and get it open, by May 2017 having realised that the project’s economic impact and employment of thousands of Bahamians was critical to its chances in that year’s general election.
Tribune Business understands that key players in the Baha Mar drama have had to provide, or are in the process of giving, sworn depositions and testimony as part of the legal process. Those thought to be providing depositions include Mr Izmirlian, former Baha Mar president, Tom Dunlap, and Tiger Wu, CCA’s executive vice-president.
Court documents show that depositions and “third-party discovery” must be completed by May 13 this year, with all questions or “interrogatories” served on either party by that same date and responded to by June 17, 2022. So-called “expert disclosures” must be completed by July 18, 2022, and all legal discovery is to end by August 5, 2022, as ordered by the New York State Supreme Court.
Mr Izmirlian has previously defeated attempts by CCA to either stall his lawsuit or force it into arbitration. CCA, which owns downtown Nassau’s British Colonial Hilton and the adjacent Pointe project, has been anxious to put the dispute behind it and have it removed from public coverage.
The Chinese contractor, though, has countered with its own “shareholder oppression” claim which alleges that Mr Izmirlian’s decision to seek Chapter 11 bankruptcy protection for the $4.2bn project was a key factor that cost them their $150m preference share investment in the mega resort development.
As a result, the Chinese state-owned construction company claimed it should be “compensated for the loss of benefits” associated with its investment in accordance with The Bahamas’ Companies Act.
Mr Izmirlian and his BML Properties vehicle held 100 percent of Baha Mar’s equity, and controlled four of five Baha Mar Board seats compared to CCA’s one, leading the Chinese contractor and its affiliates to allege that the resort’s original developer exploited this to his advantage and its detriment.
Comments
Flyingfish 2 years ago
Good, i always thought the Baha Mar handover was very shady. the government essential hooped on China Constructions back no hesitation. Hopefully Mr. Izmirelian can seize this and not allow one of our countries largest employers to be owned by a Chinese state entity.
Yet alone two of them. If Atlantis get bought this countries economy will be subserviant to the Chinese state.
bahamianson 2 years ago
He needs to call the names of the government officials , family and friends. Did he not make public the email from a cabinet minister whom wanted three contracts for his family? he needs to expose all whom he has proof of because otherwise, we will never know. I want to know.
Flyingfish 2 years ago
Yes hopefully it can weed some of these crooks out. We need a miracle in the spirit of a lawnmower.
themessenger 2 years ago
Repost....... "Even if you gat da proof it don't mean shit! Certain people get catch wid shingles in dey possession and not only did dey get to put dem on dey roof but get paid a multi million taxpayer bonus to help wid da installation costs. SMT!"
ThisIsOurs 2 years ago
Slightly different IF they have proof. Its a US court
Maximilianotto 2 years ago
And what about $400 m stamp duty? Forgotten? The s..t will hit the fan, very shady.
Proguing 2 years ago
What about the $20 million BPL bill that was outstanding?
CommonSense 2 years ago
I can't wait until the truth about all of this comes out. Even if he doesn't get the hotel back, I hope his efforts completely destroys CCA and the legacies of these public officials. Make everything public and I hope they get charged as well.
Sickened 2 years ago
There are some very nervous politicians right now.
tribanon 2 years ago
The following lengthy posting to this website by @Reality_Check back on July 20, 2015 is proving to have been spot on:
OPEN QUOTE
"None other than our State Minister for Legal Affairs, Damian Gomez aka the Minion, states to the Tribune: "We're moving forward to secure a liquidator,....once that's done it's in his {Sarkis Izmirlian} interest to strike a deal as soon as possible otherwise creditors will take over and the restructuring will not be to his liking."
This is tantamount to a public admission that by filing an application for the liquidation of Baha Mar, the Christie-led PLP government is seeking to force Baha Mar and the Izmirlian family to accept whatever unfair terms are put to them by both the Chinese general contractor (CCA) and the Chinese Export Import Bank. In a liquidation supervised by the Supreme Court of The Bahamas, the shots are called by the largest admitted creditors which would be the two aforementioned Chinese stakeholders.
In other words, notwithstanding the appointment of one or more "neutral" liquidators acceptable to the largest creditors, the Chinese stakeholders would be, for all intents and purposes, firmly in the driving seat of the entire liquidation process. This seems to be precisely what the Christie-led PLP government wants to happen notwithstanding that Baha Mar (and the Izmirlian family through Baha Mar) have already found it necessary to seek Chapter 11 bankruptcy protection in Delaware as a result of the severity of its grievances with the Chinese stakeholders, which grievances are the subject of very weighty legal claims that have already been asserted and are now before the High Court in the U.K.
By all appearances, our Christie-led PLP government is wrongfully in bed with the Chinese stakeholders to unjustly wrest control and possession of the Baha Mar project away from the rightful principle developer of the project (Sarkis Izmirlian). It would be a travesty of monumental proportion for the Bahamas and the Bahamian people if the Delaware court (judge) permitted the Christie-led PLP government to effectively nationalize the Baha Mar property for the benefit of the Chinese stakeholders by abuse of due process.
The Christie-led PLP government is notorious for its willingness to wrongfully "lean" on matters before our Supreme Court in an effort to affect a desired outcome.
CLOSE QUOTE
Proguing 2 years ago
Can't we move away from this dama? The project failed twice before it opened, and of course everyone is to blame but Izmirlian...
This is a repeat of the first failure where Baha Mar accused Harrah’s of fraud:
“Judge Charles Ramos, sitting in the New York State Supreme Court, said Baha Mar had alleged that Harrah’s, and its Caesars Bahamas Investment Corporation subsidiary, had “misrepresented their intent” to proceed with the project and close their joint venture deal. This allegation, the judge said, was premised on the claim that despite agreeing to the Supplemental Heads of Agreement that Baha Mar signed with the Bahamian government on January 31, 2008, Harrah’s concealed that its private equity owners, Apollo and Texas Pacific, had already decided not to proceed. This decision was allegedly made at a Harrah’s meeting three days earlier, on January 28, 2008.
However, Judge Ramos found: “Baha Mar’s fraud claim fails because it is unsupported by any evidence that Caesars Bahamas and Harrah’s knowingly intended to deceive Baha Mar with respect to unconditionally going forward with the project.
“There is simply no evidence that Caesars Bahamas and Harrah’s made a definitive decision on January 28, 2008, to abandon the project, while agreeing to the execution of the Supplemental Heads of Agreement just days later.”
Baha Mar had alleged the fraud was exposed by the affidavit deposition of Harrah’s chief executive, Gary Loveman, who had said that “a view was forming in the late part of January that proceeding with the project was probably not a good idea at that time”.”
https://www.bhahotels.com/2010/02/bah...">https://www.bhahotels.com/2010/02/bah...
And this is how it ended:
"Baha Mar has agreed to pay US gaming giant Harrah's Entertainment $12.174 million to cover the legal costs it incurred in defending itself against the Cable Beach developer's breach of contract and other claims made over their failed $2.6 billion joint venture."
https://www.bahamaslocal.com/newsitem...">https://www.bahamaslocal.com/newsitem...
tribanon 2 years ago
This comment was removed by the site staff for violation of the usage agreement.
John 2 years ago
He certainly is and only trying to muddy the waters. Basically Izmirilian has won his claim in principle against CCA. And it is only a matter of going to trial to cross all the ‘T’s’ and dot all the ‘I’s The matter of quantum or how much Izmirilian will be awarded. That’s why he feels confident in naming corrupt officials at this stage.
tribanon 2 years ago
Talk about The Tribune depriving those visiting this website! LOL
ThisIsOurs 2 years ago
We can. Izmirilian however is free to explore every possible avenue for damages for what he perceives as wrongful action against him..
John 2 years ago
Can the government appoint Rodney Moncur to investigate and name the (then government officials) politicians who t’ief this man’s ( investor) money and rob him of his dream (Bah Mar)? Rodney is good at digging up dirt and when time to throw roc. He hand straight. If you don’t believe me bask Doc. But more seriously: When Izmirilian first filed his claim, he was more focused on the Chinese who t’ief he hotel and was more gentle with the local (gangster) politicians who facilitated probably one of the biggest rip offs for n the modern history of this country. But as it becomes less a possibility that even if Izmirilian prevails with his claims against the Chinese, his dream hotel is gone from him forever. So he no longer needs to worry about operating in the pirates Infested economy of The Bahamas. And some sitting MP’s are amongst those whose names may get called including… hold on lemme answer this phone.
Proguing 2 years ago
Stop dreaming, how many millions was awarded the last accused corrupt official?
Proguing 2 years ago
The coconut is also different:
https://www.bahamaslocal.com/newsitem...">https://www.bahamaslocal.com/newsitem...
The fact is everyone who did business with Baha Mar under Izmirlian ended up in court.
As I stated before I am no fan of the Chinese, but we have to be pragmatic here. They invested billions in this country when nobody else wanted to invest. Without these investments we would still be looking at the Cristal Palace on Cable Beach and an empty lot next to Junkanoo Beach.
tribanon 2 years ago
No matter the import or significance of the ends at the end of the day, the use of illegal means to achieve them is never justfiable. The Baha Mar Project was never a choice of two evils (Izmirlian vs CCP controlled enterprises) that could somehow justify government's very biased involvement in what ended up being an illegal robbery. Foreign courts will settle all of this soon enough, both in the U.S. and U.K.
ThisIsOurs 2 years ago
We can be as pragmatic as we want, "we" didnt file tge lawsuit
Proguing 2 years ago
We will see what the courts say, if we are still alive, because this will get appealed to the highest courts...
The big loser here is Scotia bank. Why are they not part of the lawsuit:?
http://www.tribune242.com/news/2016/j...">Scotia shrugs off Baha Mar collapse
You don't think that Izmirlian is being played by the attorneys, who are not about to let go of this gold mine?
GodSpeed 2 years ago
This man was screwed over big time by corrupt PLP politicians and those responsible deserve to be in prison.
birdiestrachan 2 years ago
If he was up to date with his payments and was in good standing with his creditors. No one could have taken his property from him. It happens all the time when people default on their loans they lose their homes.
I am sorry for him and for all who suffer similar fates.
SP 2 years ago
Secret payments are business as usual in the Bahamas where corruption and piracy thrive from the top down!
Thank GOD the case is being adjudicated in the U.S.A Sarkis would never get any justice with crooked politicians and their crooked judges in the Bahamas.
I pray all the pirates go to jail and hopefully this would be the beginning of the end for our crooked political and judicial systems!
tribanon 2 years ago
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