As Silicon Valley Bank Collapses, How Former Clients Can Resist "Clawback" Lawsuits

Tom Burroughes Group Editor March 21, 2023


A mark of the litigious culture of the US is how those who withdraw money from a stricken business, even weeks before bankrutpcy and failure, can be open to lawsuits from those seeking to "claw back" such money and redistribute it. One protective option is to use offshore trusts, a US attorney tells this news service.

Stories of clients taking money out of Silicon Valley Bank days before the US lender went bust raise the question of whether lawyers might try and claw back money to redistribute among those unable to hit the exits.

In a litigious country such as the US, a client who had managed to pull money out of a rickety institution weeks before a crash might learn that fee-hungry lawyers see them as prey. And people should protect themselves from such lawsuits, for example, by using offshore trusts, an attorney says.

Blake Harris, managing partner of Blake Harris Law, told Family Wealth Report that clients who fled from Silicon Valley Bank over recent weeks could be targeted in lawsuits, however unfair or capricious such legal action might appear. Harris specializes in asset protection, and the use of offshore trusts is an important and under-appreciated tool.

“I’ve been an attorney for more than a decade and haven’t been as busy as now,” Harris, who divides his time between Denver and Miami, said.

“They [former clients] could be targeted by a lawsuit and there may be some clawback actions. Managers, some staff who had taken profits before the bank went under could be targeted as well,” he said. 

Trusts located in jurisdictions such as the Cook Islands, Nevis and Belize can be used by US citizens to shield themselves from such lawsuits, Harris said. There hasn't been an example of these trusts failing to thwart such attacks, he said.

“We have had clients who reached a favorable settlement,” he said. 

Using domestic US trusts, such as those in South Dakota, New Hampshire, and other states, does not shield people from US lawsuits. Under the full faith and credit clause of the US Constitution, domestic trusts can be compromised, he said. Instead, US courts cannot reach foreign trusts.

An important point is that offshore trusts don’t get US citizens off the hook for filing US tax returns, and these aren’t tax shelters.

Harris said awareness of how foreign trusts can be a lawsuit buffer is rising, but still not as great as it should be. “People are often misinformed,” he said.

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