Last Thursday, lawyers for Marc Rich & Co. AG, a multibillion-dollar Swiss commodities trading firm, deposited a $1.35 million check with the clerk of the federal district court in Manhattan.
The check was the first payment on a $50,000-a-day contempt of court fine levied by U.S. District Judge Leonard B. Sand on June 29. The fine, one of the largest ever issued for contempt, will continue to accumulate until Rich produces documents about its 1980 oil dealings with its New York subsidiary, Marc Rich International Ltd.
For more than a year, Marc Rich & Co.--founded nearly a decade ago by secretive American trader Marc Rich--has battled with a federal grand jury probing whether the firm illegally moved tens of millions of dollars from its New York subsidiary to the parent in order to evade U.S. taxes.
Until last month, the Rich companies were directed out of New York, although it has been theoretically headquartered in Switzerland. Last month, founder Marc Rich and associate Pincus Green moved to Switzerland.
Even though its subsidiary, Marc Rich International, does billions of dollars of business in the United States (and complied with the subpoena served on it), the parent company all along has contended that it is not within the jurisdiction of the U.S. courts. A federal appeals court decided otherwise last May, and the Supreme Court refused to hear Marc Rich's appeal.
The case has created an international legal tangle that officials on both sides of the Atlantic are trying to unravel. Recently, U.S. investigators ran into a new snag, the Swiss secrecy laws that have frustrated more than one U.S. probe. In May, the company took itself to court, so to speak, in Switzerland and was ordered not to hand over the documents on grounds that to do so would violate Swiss laws prohibiting disclosure of "business secrets" to a foreign government.
Although Rich & Co. surprised some observers when it paid the $1.35 million--until Thursday the company's lawyers told the court they were not sure whether Rich planned to pay--the check failed to mollify federal prosecutors, who feared the company might convince its bankers and others to release assets attached by the court.
Judge Sand appeared to agree with government attorneys. Two weeks ago, he issued orders to freeze any Rich assets at a variety of companies the firm was thought to do business with. On Thursday he expanded his attachment order to include three more companies, including the parent of 20th Century-Fox, which is half-owned by a Dutch company controlled by Rich.
Rich & Co. confounded prosecutors, the court and, apparently, its own attorneys when it surreptitiously sold the New York subsidiary on June 30, the day after Sand ordered the Swiss firm to pay the $50,000-a-day fine. (Government lawyers said the new owners are the same as the old, except for Rich and Green.)
Meanwhile, the fine continues to grow. Government lawyers said it could reach $27.5 million--the amount the fine could total during a standard 18-month grand jury session.
But $27.5 million is a fraction of the many millions of dollars government investigators think the Rich New York subsidiary, Marc Rich International Ltd., shifted to the Swiss parent in order to avoid U.S. taxes.
According to a memo from a federal agent investigating Marc Rich and the Marc Rich International subsidiary, in 1980 the New York firm bought $345 million of oil from the parent at a loss of about $110 million. Government investigators reportedly believe that the sales took place to transfer profits out of the more highly taxed U.S. firm.
The FBI agent, Gerard J. Lang, said the New York subsidiary's tax return reported sales of $1.417 billion and purchases of $1.513 billion in 1980. Nearly all of Marc Rich International Ltd.'s loss that year could be attributed to its dealings with the Swiss parent.
Little is known about the founder of Rich, whose purchase of 20th Century-Fox thrust him closer to the limelight than he has ever been voluntarily. But Rich's partner in the film company deal, Denver oil man Marvin Davis, has garnered most of the publicity, which those who know Rich say is much to the commodity trader's liking.
Rich founded the company in 1974 after a salary dispute with his former employer, the giant commodities trading firm Philipp Brothers, which is now the commodity trading arm of Phibro/Salomon.
Rich's canny trading of petroleum during the 1973 Arab oil embargo earned fabulous sums for Philipp Brothers. But Rich felt Philipp failed to compensate him adequately and left in a huff--after a 20-year career--to form his own firm. He took with him a key associate, Green.
Green and Rich are the only two Americans on the five-member board of directors of Marc Rich and Co. AG. The Rich companies reportedly have annual revenues between $10 billion and $15 billion a year.
Rich's reputation as a trader is well established in the narrow world of commodity trading. He and his firm buy and sell billions of dollars of commodities such as oil and tin each year. But few know Rich the man well. Even his age is hard to come by. "I'd put him in his late 40s," said one associate.
Rich may be secretive, but apparently he is shrewd. Before the Iranian revolution, Rich obtained rights to large quantities of Nigerian oil. When the Atlantic Richfield Co. lost rights to its Iranian production it turned to Rich, paying the company a $5-to-$8-a-barrel premium to replace its lost Iranian crude oil.
Arco was one of the firms ordered to freeze any Marc Rich & Co. assets it might have in its posession. The other firms included Rich's bank, Chase Manhattan; Clarendon Co. AG, the successor firm to the former New York subsidiary, and two other major oil companies with which Marc Rich does business--Standard Oil of Ohio and Amerada Hess.
Rich's legal efforts have been headed by former New York jurist Marvin Frankel. Assistant U.S. Attorney Morris Weinberg has directed the government's case. Although the case may involve lofty issues of international legal jurisdiction, it sometimes devolves into personal acrimony between Frankel and Weinberg, who has called into question not only Rich & Co.'s motives but those of the defense team as well.
At a testy point in a recent hearing, when Frankel said he was planning a vacation and said he expected Weinberg to "exploit" his absence rather than "consider it," Judge Sand interjected that it would be "regrettable" if the case "should degenerate to a matter of personalities between counsel."
"Your honor, it has happened," Frankel said.
The Swiss parent, which insists it maintained an arms-length relationship with the subsidiary, argued that the U.S. courts did not have the authority to subpoena documents owned by a company that does almost no business in the United States.
Because grand jury investigations are secret, exact details of the allegations are unclear. But presumably the grand jury believes it needs to see the parent company's side of the oil sales in question to decide whether the sales did amount to illegal shifting of profits to evade U.S. taxes as the government claims..
Weinberg, according to court transcripts, contends that company officials, including Rich, set out to use the Swiss secrecy laws to frustrate the federal probe after the company lost its appeal on jurisdiction.
Rich and Green, the two U.S. directors of the parent and its former U.S. subsidiary, sued Marc Rich & Co. in Swiss courts, demanding that the company produce the documents. The remaining three directors voted that the company should defend itself. The Swiss court in Zug prohibited the parent from producing the documents, ruling that such a transfer would violate Swiss laws that bar Swiss companies from revealing "business secrets" to foreign governments.
Weinberg claims that the Swiss proceeding was a farce, designed by Rich and other officials of the trading firm to set up a situation in which the U.S. courts could not punish a foreign company for complying with a court order of its host nation.
Swiss legal officials and the Justice Department are conferring on the case, Frankel said in a brief filed recently in connection with Marc Rich & Co.'s second appeal.
Meanwhile, the huge fine continues to accumulate. By the time the check was cashed Thursday Rich & Co. already owed an additional $150,000. By the time this article appears it will have grown to $300,000. By the time the appeals court takes up the issue Aug. 9, as now expected, the company will owe an additional $750,000.