Asarco mines were fraudulently transferred, judge rules

McClatchy NewspapersSeptember 2, 2008 

WASHINGTON — A federal judge in Texas ruled that a firm with ties to one of Mexico's richest families fraudulently transferred control of Asarco LLC's majority interest in two Peruvian copper mines to another subsidiary as part of a strategy that all but assured the century-old mining and smelting company's bankruptcy.

In the 192-page opinion, U.S. District Judge Andrew Hanen said the directors of Americas Mining Corp. and its parent company, Grupo Mexico SAB, dictated the terms of the transfer in an effort to shield the mines from creditors knowing full well that Asarco was insolvent.

The Peruvian mines could be valued between $8 billion and $10 billion. Hanen has not set damages in the case but has given both sides two weeks to submit additional briefs.

Asarco sought bankruptcy protection in 2005, two years after it lost control of the Peruvian mines.

The decision, filed late Saturday, is the latest twist in the largest environmental-related bankruptcy ever, and one of the most complicated. Asarco had operations at dozens of sites nationwide, including what are now 20 federal Superfund sites.

Under its reorganization plan, Asarco would pay off its major secured creditors and provide nearly $2.4 billion to settle roughly $9 billion in environmental and asbestos-related claims. The environmental claims were filed by more than a dozen states, federal agencies including the Environmental Protection Agency, and several Indian tribes. In addition, 95,000 asbestos-related claims were filed involving Asarco subsidiaries.

Grupo Mexico, which lost control of Asarco when the company filed for bankruptcy protection, filed a separate reorganization plan last week. The bankruptcy judge is expected to rule on the competing plans around the end of the year.

Though the bankruptcy case in Corpus Christi, Texas, and the Peruvian mine case in Brownsville, Texas, are separate, with separate judges, they ultimately will be intertwined.

Asarco filed the Peruvian mine lawsuit against AMC last year, and Grupo Mexico has figured prominently in the case. German Larrea, the chairman and chief executive of Grupo Mexico, testified in Hanen's courtroom. The Larrea family is one of Mexico's richest and most influential.

Asarco filed the Peruvian mine lawsuit because, under federal bankruptcy laws, Asarco's current directors have a fiduciary responsibility to the company's creditors and were required to pursue any possible claims.

Hanen, in his decision, quoted testimony during the trial indicating that no actions involving Asarco could have been taken without the approval of Larrea and Grupo Mexico. Six of the nine former Asarco directors who approved the transfer of the Peruvian mines also served on the boards of Grupo Mexico and AMC.

Grupo Mexico purchased Asarco in 1999 for $2 billion. With the price of copper falling, Asarco teetered on the edge of bankruptcy. In 2003, Asarco's 54 percent stake in the Peruvian mines was transferred to AMC.

While Asarco received $727 million for the mines, the transfer resulted in no cash infusion for Asarco; the money was used to pay off the company's debts, Hanen said.

Though Hanen said the sales price of the mines was reasonable, there was both "direct and circumstantial evidence, which the court finds credible, to support an inference AMC/Grupo intended to isolate Asarco's 'crown jewel' from Asarco's creditors."

Hanen said the deal proceeded even though AMC/Grupo knew it would leave Asarco in a financial hole. AMC/Grupo "concealed information, broke promises and ultimately closed the transaction over the objections and advice" of independent directors, outside consultants and members of Asarco's management, Hanen said.

Asarco had proven during a four-week trial that there has been a "fraudulent transfer" of the mines in a transaction that was initiated by the directors of AMC/Grupo and Asarco, Hanen ruled.

"We won," said Irv Terrell, a Houston lawyer who represented Asarco in the proceedings. "I am delighted. It's on to the damages."

Terrell said Asarco wanted its shares in the Peruvian mines returned, along with the $1.8 billion in dividends AMC/Grupo had paid itself since the mines were transferred.

In a statement, AMC said it was pleased the judge had decided that Asarco received a reasonable price for the mine shares.

"AMC, however, is surprised by and intends to appeal that part of the decision adverse to AMC's interest," the statement said.

Early in the case, Hanen ordered the Peruvian mine shares frozen so that they couldn't be transferred to another party or sold, Terrell said. AMC is a U.S. company, and even though it's owned by a Mexican company, Terrell said he didn't anticipate problems recovering any damages.

MORE FROM MCCLATCHY

Check out McClatchy's environmental coverage

Mexican drug traffickers wage PR war over image

Mexico City's abortion-rights law is upheld

McClatchy Newspapers 2008

McClatchy Washington Bureau is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service