Credit Lyonnais’ legal problems with its U.S. clients continue to escalate.
The court-appointed representative for NSB Corp. (the former Hemdale Film Corp.) filed suit against the French bank, charging breach of contract, racketeering, fraud and equitable subordination. The suit, which listed no specific monetary figures, seeks a jury trial.
The case was filed yesterday in U.S. District Court in Los Angeles against the French lender and its Rotterdam branch, Credit Lyonnais Bank Nederland, which coincidentally yesterday hired Creative Artists Agency to advise it on its entertainment portfolio. (See related story.) Former MGM owner Kirk Kerkorian and ousted Epic Pictures principals Eduardo Sarlui and Moshe Diamant also have suits pending against the bank.
Hemdale had borrowed $ 60 million from CLBN, which grew to $ 90 million with interest. While the Hemdale loan represents a drop in the bucket for the world’s seventh-largest bank, with $ 351 billion in assets worldwide, it comes at a critical time for the lender.
Sources close to parties involved say suit was timed to hit during France’s recent general election, in which support for the Socialist party — which controls the upper echelon of Credit Lyonnais — was greatly diminished.
“This (suit) is mere posturing,” CL spokesman Fred Spar said. “This complaint was filed by lawyers working on a contingency basis.” The law firm hired by the court-appointed Hemdale representative is Lieff, Cabraser & Heimann of San Francisco.
“The claims that they make in this complaint appear to all be beyond the statute of limitations,” Spar continued. “And moreover, none of the issues raised in the complaint were raised previously by the principals running the company all of these years.”
In essence, the suit claims the bank forced a series of transactions that benefited the bank and not its client. It accuses the lender of shuffling problems from one entertainment client to another.
It comes six months after Hemdale tumbled into bankruptcy. Angry creditors filed an involuntary Chapter 7 petition that was converted into a Chapter 11, calling for a reorganization instead of liquidation. Co-founder and chairman John Daly and president Derek Gibson were shoved aside. The court hired John Hyde to steer the company through reorganization.
Hemdale — known for such hits as “Terminator,””Hoosiers,””Salvador” and Oscar-winners “Platoon” and “The Last Emperor”– has a library of 178 titles, which the suit claims CLBN tried to force it to sell at a loss.
The suit attributes Hemdale’s relationship with the bank to Frans J. Afman, who was CLBN’s assistant general manager and head of its entertainment business division. He was also a director for Hemdale, Carolco Pictures and De Laurentiis Entertainment Group.
Afman is not named in the suit and is now a consultant for CAA rival Intl. Creative Management.
Afman resigned from his top CLBN post in July 1988, reportedly because he opposed the bank’s decision to back Giancarlo Parretti’s highly leveraged $ 1.3 billion buyout of MGM.
After Afman left, the suit states, CLBN directors appointed Patrick Bastin to oversee the Hemdale account. “Under (CLBN board director) Jean Jacques Brutschi and Bastin, CLBN began abusing the financial dominion it had acquired over Hemdale,” the suit states.
It claims CLBN forced Hemdale to sell valuable “Terminator” sequel rights to another bank client, Carolco, “for far less than their monetary worth …”
The bank pressured Hemdale exex to sell off the library or surrender the assets and clear the debt, the lawsuit contends, “all to the detriment of Hemdale and its unsecured creditors.”
Hemdale further alleges that through 1987, CLBN’s relationship with Hemdale and other independent producers ran contrary to “prudent banking practices.”
Specifically, it says CLBN:
o Had a “common practice” of advancing funds before completion of necessary documentation;
o Failed to acquire sufficient collateral and to document and perfect its security interest in that collateral;
o Failed to file mortgage and assignment of copyrights;
o Failed to record notices of security interests in property acquired as collateral;
o Failed to obtain financial statements and other necessary documentation from borrowers;
o Had repeated breaches of confidentiality obligations to borrowers, “occasioned in part by CLBN representation on the board of directors of its clients;”
o Improperly required its borrowers to engage in business transactions with other CLBN clients and third parties “on terms dictated by CLBN.”
Attorney Stephen Chrystie, counsel for the unsecured creditors committee in the Hemdale bankruptcy, said: “Based on the allegations in this complaint, this is the strongest lender liability suit I have seen, even stronger than the case against MGM.” Chrystie represented MGM creditors who also forced that CLBN client into a brief bankruptcy.