SEC pushes investor to repay Philly pensioners, as he faces prison
Liberty enjoyed 'exorbitant' lifestyle, kept millions from retirees: agency
Michael A. Liberty, founder of Mozido, a Texas cloud-communications start-up that its blue-chip investors value at more than $1 billion, is mulling his answer to the SEC's latest arguments that he owes the underfunded Pennsylvania, Philadelphia and Connecticut pension plans millions of dollars, as he awaits sentencing for campaign finance fraud.
Liberty in 2008 agreed to pay the pension plans nearly $6 million after the SEC said he invested $27 million of their money into businesses he controlled, without authorization. SEC said Liberty lost two-thirds of that money on bad investments, and "diverted" the rest to himself and others. In 2010 the SEC agreed to let Liberty pay just $600,000, because he said he lacked the assets to pay the funds back. My earlier story here.
But SEC now says it has found records showing Liberty actually "buried" his use of private checking and credit card accounts handling millions he controlled – and that his own claims to Mozido investors show he was worth at least $89 million when he said he lacked the money to pay.
"We don't believe the SEC has established that Mr. Liberty was not truthful," one of his lawyers, Jay Dubow, of the Pepper Hamilton firm in Philadelphia, told me. "We may file something in response."
The SEC says Liberty used a firm he controlled, Xanadu Partners LLC, which he had told them contained his children's assets, to pay for his own "exorbitant lifestyle," including "limousine rides, boutique shopping in New York City's Soho neighborhood," and "a tour of America's finest restaurants."
The SEC added, "This is not the lifestyle of someone incapable of paying the SEC's judgment. This is the lifestyle of someone who fraudulently protected his own assets from creditors by hiding them." That money should have gone to pay the pension funds, "victims of his fraud."
Dubow also represented Liberty, a Florida resident, when he pleaded guilty Nov. 28 in federal court in his native Maine to accusations of campaign finance fraud for illegally funneling $21,500 above his legal donor limit to Mitt Romney, the Republican Presidential candidate, during the 2012 primaries. More from the Portland Press Herald here, from the Bangor News here.
Dubow says that plea won't affect Liberty's fight against the SEC's attempt to get him to pay $5.4 million it agreed to let slide when it thought Liberty couldn't afford it, plus unspecified interest and damages.
In a previous filing, Liberty said the SEC knew and accepted his high-priced "lifestyle" because he had reported spending $2 million a year "in annual living expenses."
But the SEC in its Dec. 14 response said that $2 million appeared to include business as well as personal expenses; and that Liberty understated his income, since Xanadu alone spent more than triple that $2 million, which Liberty failed to disclose.
The SEC also complained that, soon after promising he didn't have assets to pay the pension funds, Liberty told investors in Mozido that the company's stock was worth $127 million, and he owned 70 percent of it.
Liberty in his filings says that was a valuation estimate for a non-public company, not assets he could use to pay the pensioners.
But Liberty can't have it both ways, says the SEC: "If he was honest" with his investors about Mozido stock, he should have told the SEC he had it when he declared his assets.
In 2006, the SEC sued Liberty and three officers of the Philadelphia-based Keystone venture-capital funds, alleging that Keystone, starting in 1997, had let Liberty invest $27 million - mostly from the underfunded Philadelphia Board of City Pensions and Retirement, the Pennsylvania State Employees' Retirement System, and the Connecticut pension plan - in small businesses, many of them unapproved by the investors, some of them controlled by Liberty.
As noted above, Liberty lost, kept or gave away the $27 million. Three Keystone principals paid penalties to the SEC for allowing unauthorized investments, and the firm never raised another fund, vanishing from the area's modest venture capital scene.
In June 2010, Liberty and the SEC agreed to settle the charges against him, without a finding of wrongdoing, if Liberty paid $5.96 million in "disgorged" profits and interest.
But, "based on his sworn representations in his financial declaration" and supporting documents showing that Liberty, in mid-2009, "had an estimated net worth of negative $29 million," the court blessed a plan to let Liberty pay just over 10 percent of what he promised - with the condition that if his financial statements were later found to be "fraudulent, misleading, inaccurate or incomplete" the SEC could petition the court to make Liberty pay the rest.
That's what the SEC did, on Sept. 28, citing emails and other records that became public in litigation and testimony against Liberty by a former business associate, James G. Stanley, who says Liberty owes him money.
Since Liberty set up Mozido as a "digital wallet" developer and multinational financial-tech company acquirer in the late 2000s, Mozido has raised more than $250 million from investors, including Wellington Management Co.; MasterCard; and the hedge-fund guru Julian H. Robertson Jr. of Tiger Management.
Mozido's executive chairman is Robert Turner, who recently reorganized his investment firm, Turner Investments of Berwyn, after most of its former $30 billion in client assets and many of its stock-pickers departed.