The U.S. Justice Department has thrown its weight behind a group of past investors in an African mine who say they were the victims of a bribery scheme by the hedge fund Sculptor Capital Management Ltd.
The publicly traded fund, which until recently was named Och-Ziff Capital Management, should pay the investors at least $150 million in compensation, prosecutors said in a court filing.
The investors are former equity holders of the Canadian mining company Africo Resources Ltd., which held rights in an undeveloped mine in the Democratic Republic of Congo that was at the heart of a $213 million settlement that Och-Ziff struck with prosecutors in 2016.
Africo lost control of its rights in the Kalukundi mine after Israeli billionaire Dan Gertler paid over $100 million in bribes to government officials, using funds from investments by Och-Ziff, to consolidate rights to the country’s valuable copper and cobalt mines, according to settlement documents.
The investors’ restitution claim has thrown the three-year-old settlement into limbo and raised the possibility that the fund could pay substantially more than it agreed to in its agreement with the Justice Department.
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For almost two decades, the U.S. has been active in prosecuting companies that pay bribes to foreign government officials. But restitution claims in such cases haven't been common.
If successful, the Africo investors’ claim could open the door to other requests for compensation by purported victims of companies that run afoul of the U.S. Foreign Corrupt Practices Act.
Exactly how much Sculptor might be on the hook for is the question before a judge in the U.S. District Court for the Eastern District of New York. The judge, Nicholas Garaufis, in August ruled that the Africo investors qualified as victims under the Mandatory Restitution Act of 1996.
Prosecutors in their filing on Friday floated several ways to value the Kalukundi mining rights but said the $150 million figure was the most reliable because it was the value Och-Ziff itself came up with around the time the bribery scheme took place.
“Having used this valuation to harm the victims, the defendant surely must accept it now, when the time has come for the defendant to compensate the victims for the defendant’s crime,” prosecutors wrote.
Friday’s filing is an about-face for the Justice Department, which previously opposed the Africo investors’ restitution claim, saying there was insufficient evidence to link the harm they suffered to the hedge fund’s misconduct.
The Africo investors on Friday submitted their own estimates of the value of the rights to the Kalukundi mine, in which they held a 75% stake.
The current value of the investors’ stake in the undeveloped mine was about $290.4 million, the investors said. If the mine had been developed, the value would have been as much as $1.386 billion, they said.
The values were calculated by an expert hired by the investors. Previously, the investors had argued that they were entitled to as much as $1.8 billion, according to Judge Garaufis.
The figures stand in contrast to Sculptor’s own estimates. In its latest earnings statement, the fund recorded a $19.1 million legal provision related to the restitution claim.
The provision was the fund’s “best current estimate of exposure in the case—what’s informed by our internal work and external experts,” Sculptor Chief Executive Robert Shafir said in a call with investors on Nov. 7, according to a transcript by S&P Capital IQ.
Sculptor has yet to file a response to the briefs filed on Friday. Prosecutors said they expect Sculptor to argue that the restitution amount should be tied to the dip in value of the price of the Africo investors’ publicly traded shares.
The share price approach would result in a value far lower than the hedge fund’s own historical valuation, prosecutors said.
The figures suggested by the government on Friday don’t take into account the Africo investors’ 75% stake in the mining rights. Prosecutors said they weren’t in a position to determine what percentage was stolen from individual investors.
Only some of the former equity owners in Africo—about 50, or around 64%—have so far joined the restitution claim, according to Judge Garaufis’s ruling in August. Any final award given the investors could be lower than the figures cited by the government as a result.
Sculptor has worked to put the 2016 settlement, which resolved violations of the U.S. Foreign Corrupt Practices Act, behind it.
Around the time of its criminal settlement with the Justice Department, Och-Ziff and its founder and chief executive, Daniel Och, also settled parallel civil charges by the U.S. Securities and Exchange Commission, with Mr. Och agreeing to pay a nearly $2.2 million fine.
Mr. Och was replaced in 2018, and the fund changed its name to Sculptor in September. In June, the fund won an exemption to a fundraising rule that it was disqualified from after the 2016 settlements, which had caused several of its largest investors to stop doing business with the fund, according to Sculptor.
Write to Dylan Tokar at dylan.tokar@wsj.com
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