A forensic accountant and former FBI agent who investigated claims in Allegheny Health, Education and Research Foundation, Adelphia Communications and other high-profile bankruptcies has been named trustee of Le-Nature's, the bankrupt Latrobe beverage producer debilitated by allegations of fraud.
R. Todd Neilson of LECG, an Emeryville, Calif., consulting firm, was appointed yesterday by U.S. Bankruptcy Court Chief Judge M. Bruce McCullough. Mr. Neilson was recommended this week by the U.S. Trustee's office in Pittsburgh.
Meanwhile, a showdown between creditors eager to launch a full-fledged investigation of how millions of dollars of their money disappeared and Wachovia Bank, Le-Nature's financial adviser, was put on hold.
Lenders who hold about 70 percent of Le-Nature's $285 million secured debt have subpoenaed former officers and directors, Le-Nature's accountants and Wachovia in order to determine what happened. Other creditors support the efforts but it is opposed by Wachovia. The bank said untangling Le-Nature's mangled books is the job of the trustee, not creditors bent on going after the bank.
Judge McCullough said yesterday that he would delay a decision on whether to allow the subpoenas for three weeks. That will give Mr. Neilson time to decide whether he will conduct the investigation or let creditors proceed with their own probe.
Creditors dragged Le-Nature's into bankruptcy Nov. 3 after the company's minority shareholders persuaded a Delaware state judge to oust Chairman Gregory J. Podlucky and other executives and put the company in the care of Kroll Zolfo Cooper. The New York firm subsequently found evidence of a massive accounting fraud implicating Mr. Podlucky and others.
The U.S. Attorney's office and postal inspectors are conducting a criminal investigation.
Kroll filed an assessment of Le-Nature's financial plight this week, listing assets of $40.1 million and liabilities of $453.3 million. Secured creditors hold $281 million of the claims against the company. Because the assets cover less than 10 cents of every $1 creditors are owed, creditors could try to seek damages from Wachovia, Le-Nature's accountant and other firms over their failure to uncover the fraud.
Kroll cautioned that the estimates, filed with the court on Monday, might not be reliable because evidence was destroyed and what documents remain, including two sets of books, couldn't be trusted.
The documents show Gregory Podlucky was paid $772,000 and his brother, former executive vice president Jonathan E. Podlucky, received $269,000 in the year before creditors initiated bankruptcy proceedings.
Wachovia acted as Le-Nature's financial adviser and investment banker, arranging the $285 million in secured debt and underwriting a $150 million offering of unsecured notes in 2003. Menachem Zelmanovitz, an attorney for Wachovia, said the bank was not trying to thwart an investigation.
"We're looking for a full and fair investigation," he said.
Mr. Zelmanovitz said creditors should first question former officers and directors, as well as accountants who prepared Le-Nature's financial statements.
But secured lenders say those people and the company's records are of little help. They cited allegations that former management destroyed evidence before Kroll took over, obtained more than $20 million by forging documents, and might have converted lender financing into precious gems and expensive watches recovered at the Latrobe headquarters.
One former officer has already invoked his Fifth Amendment right to not incriminate himself and others are expected to do the same, said James G. McLean, a Pittsburgh attorney representing some of the secured lenders.
In addition to Wachovia and two affiliates, the secured lenders subpoenaed Gregory Podlucky; Jonathan Podlucky; former president Robert B. Lynn; former executive vice president Andrew Murin Jr.; former chief financial officer David E. Getzik; BDO Seidman, the company's current accountant; and Ernst & Young, the previous auditor.