Vine Street property in Cincinnati
According to Baidu Baike (a Chinese on-line encyclopedia), there were 5539 Chinese EB-5 investor lawsuits filed in U.S. courts just within the 18 months between February 2014 and August 2015, or more than 300 investor lawsuits per month. That’s a large number considering that only 10,000 EB-5 visas are allocated per year.
In most cases, the Chinese investors are suing their own regional centers for fraud, embezzlement or mismanagement. Regional centers pool investors’ funds to develop real estate projects in most cases. Some were suing US Citizenship and Immigration Services for denial of their permanent visa applications, but with each denial, it was the regional center that failed to perform up to job creation expectations, which mainly require that each investor prove that he or she created at least 10 permanent jobs lasting up to 2 years.
For those investors who want their money back, navigating the U.S. Justice System can be tricky, as evidenced this week in a U.S. District Court for the Southern District of Ohio in the matter of Hu et al v. Chan et al.
Ten Chinese investors contributed $545,000 each to the Midwest EB-5 Regional Center based on false statements allegedly made by some defendants in the Private Placement Memorandum as well as in presentations made by some defendants in China. The job creation project was to renovate retail buildings on Vine Street in Cincinnati, Ohio in order to create a “restaurant row” consisting of 9 restaurants. Renovations started but never finished, and all of the Chinese investors’ money disappeared. The false statements in the PPM were that investors’ funds were guaranteed by the Ohio state government, that investors’ funds would be kept in escrow accounts and only released upon USCIS approval of an I-526 (conditional green card) for the investor, and that investors’ funds would be supplemented by bank loans and tax credit financing, none of which were true.
The lawsuit was dismissed “with prejudice” (preventing other suits on the matter) on August 16th by U.S. District Judge Sandra Beckwith on the grounds that the fraud claim lacked “sufficient particularity” as required by Rule 9(b) of the Federal Rules of Civil Procedure, stating “The complaint does not identify with any specificity the time, place, or identity of the speaker of the alleged false and misleading statements." This was a surprising ruling to me, given the falsehoods contained in the Private Placement Memorandum, which would seem to be prima facie proof of false and misleading statements, plus the fact that the investors lost all of their money and did not get green cards. The USCIS even terminated this regional center in February 2015 due to failure to create jobs and misuse of investor funds.
Rule 9(b) is as follows:
(b) FRAUD OR MISTAKE; CONDITIONS OF MIND. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
I should disclose that I am not an attorney and do not provide legal advice. I report this case as a cautionary tale to aggrieved foreign investors. One recommendation that comes to mind is to hire an experienced securities attorney who already knows these rules of procedure.
There has been a growing trend among attorneys to “just sue everyone”, but perhaps there is a lesson to be learned here, which is to document who said what, when, how and where so that guilt can properly be placed on the appropriate defendant without the complaint being dismissed.
The plaintiffs are still allowed to file suit in Ohio state courts, as this was a Federal court decision.
A reader may ask, “Who cares about Chinese millionaires?” Stereotypes abound of “princelings” and relatives of government officials who get sweetheart government contracts.
In the first three of my 5 trips to China, I brought a neighbor, a Chinese immigrant, to interpret for me. When I finally asked him how so many Chinese people became millionaires, his answer was disarmingly prosaic – “By investing in real estate”. Many who bought condos in Beijing and Shanghai 15 years ago are now millionaires on paper, but not necessarily in cash. The same can be said for most California millionaires. His mother, a seamstress in Shanghai, had also become wealthy that way.
Having obtained their wealth through real estate investment rather than entrepreneurial activity, such EB-5 applicants are naturally attracted to the regional center concept of gaining an EB-5 visa, which is to pool funds with other similar investors in order to develop real estate. About 90% of EB-5 visa applicants choose to invest in a regional center rather than starting their own business. They are not experienced businessmen.
Some Chinese EB-5 applicants are not truly wealthy people. There have been some hard luck stories where the investor had to mortgage his own home to raise the minimum $500,000 plus administrative costs investment. If that money is stolen by a crooked regional center, that can create desperate circumstances for the family, including foreclosure.
As a Certified Fraud Examiner, I try to help aggrieved investors find a solution. If you have been cheated by an EB-5 regional center, you may feel free to e-mail me about your complaint, and I can present some options to you at no cost, but I am not an attorney and cannot file a lawsuit for you. All I can do is catalog the bad players in the industry and notify authorities.
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