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Through the ADventures in Law Blog, BakerHostetler’s Advertising, Marketing and Digital Media team provides updates and analysis on issues and trends in the advertising and marketing industry.

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BakerHostetler successfully defends class actions around the country. Our team consists of seasoned class action litigators who have represented clients in state and federal courts and in multidistrict litigation in areas such as consumer fraud, securities, antitrust, ERISA, RICO, insurance and data breach.

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The use of noncompetes is now shifting across the country. Many states are limiting the use of noncompetes. Several states have enacted or are considering prohibitions on noncompetes. Nationally, the Federal Trade Commission is engaging in a rulemaking that could ban noncompete agreements between employers and employees. What does all of this mean for your business? Are there alternatives to noncompetes that can protect your business?

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On January 21, 2021, the United States District Court for the Southern District of New York (“Court”) appointed Robert A. Musiala, Jr. of the law firm Baker &amp; Hostetler LLP as the Receiver over defendants Virgil Capital LLC, Montgomery Technologies, LLC, Virgil Technologies, LLC, Virgil Quantitative Research, LLC and VQR Partners, LLC, including without limitation the assets of Virgil Sigma Fund, LP and VQR Multistrategy Fund, LP (collectively, “Receivership Entities”) in association with a cause of action filed by the United States Securities and Exchange Commission on December 22, 2020, captioned SEC v. Qin, et al., 20-cv-10849 (S.D.N.Y.) (“SEC v. Qin”).

Below is a list of frequently asked questions (“FAQs”) concerning the SEC v. Qin receivership. The answers to the below FAQs provide information currently available to the Receiver but in some cases are limited to the extent that further disclosure would risk compromising the Receiver’s ongoing efforts to locate and retrieve additional funds for the benefit of all claimants.

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1. Can I still submit a claim?

No. The December 6, 2022, deadline for submitting claims against, or asserting equity interest in, the Receivership Entities has passed. This deadline was established under the claims submission and notice procedures detailed in the Receiver’s July 8, 2022, <a href="https://admin.bakerlaw.com/wp-content/uploads/2023/07/Motion-to-Set-Bar-Date-for-Claims-Against-the-Receivership-Estate7_8_22.pdf" target="_blank" rel="noreferrer noopener">Motion to Set Bar Date for Claims Against the Receivership Estate</a>, which was approved by <a href="https://admin.bakerlaw.com/wp-content/uploads/2023/07/168-Order-Granting-Receivers-Motion-to-Set-Bar-Date-for-Claims.pdf" target="_blank" rel="noreferrer noopener">Order</a> of the Court on August 8, 2022. Subsequently, the Receiver began the claims submission process, which concluded on December 6, 2022.

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2. When will the claims review process begin?

The Receiver began reviewing claims submitted through the <a href="https://www.qinreceivershipclaims.com/register/account_setup" target="_blank" rel="noreferrer noopener">Qin Receivership Claims Portal</a> following the December 6, 2022 claims submission deadline. This review process is ongoing.

3. When will I receive notice regarding the status of my submitted claim?

On April 8, 2024, the Receiver filed a <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/04/Memo-in-Support-of-Motion_ECF-303.pdf" target="_blank" rel="noreferrer noopener">motion</a> setting forth a proposed process for the determination of submitted claims. On December 20, 2024, the Court issued an opinion and Order, <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/12/ECF339-Opinion-_-Order.pdf" target="_blank" rel="noreferrer noopener">granting the motion in full</a>. Per the Court’s December 20, 2024 Order, the Receiver will communicate claim determinations to claimants within 90 days of the date of the Order. In the meantime, the Receiver team continues to review all submitted claims against, and asserted equity interest in, the Receivership Entities to assess the nature, validity and scope of each submitted claim. This process is necessary for the Receiver to make an informed determination as to the appropriate amount and timing for any distribution as part of an overall future plan for the fair, reasonable and efficient liquidation of all Recoverable Assets[<a href="https://www.bakerlaw.com/sec-v-qin-investor-faqs/#1">1</a>] and other Receivership Property.

4. Has an accounting of the Sigma and VQR Funds’ books and records been completed?

An accounting of the books and records of Virgil Sigma Fund LP (“Sigma Fund”) and VQR Multistrategy Fund LP (“VQR Fund”) (collectively, “Funds”) has been compiled with the information currently available to the receiver team. However, both Funds had limited books and records, neither Fund had been audited, and neither Fund had any level of third-party accounting verification in the months leading up to the Receiver’s appointment. Therefore, as new information and investor data is located through the Receiver’s ongoing investigation, it is analyzed and compiled (as is relevant) within the books and records of each Fund accordingly.

5. Where can I find information regarding the value of assets recovered by the Receiver to date?

Information regarding the value of assets recovered by the Receiver to date is available in the Receiver’s sixteenth status report, filed with the Court on October 15, 2024. The information provided on Exhibits A and B of the report is correct as of the date it was filed but does not reflect collection and recovery amounts pending or related expenses. Additional information will be provided in future status reports as well as in a final accounting at the conclusion of the Receivership. Status reports are filed within thirty (30) days after the end of every quarter.

6. Will Virgil and VQR be treated as separate legal entities for purposes of asset distribution?

On April 8, 2024, the Receiver filed a <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/04/Notice-of-Motion_ECF-302.pdf" target="_blank" rel="noreferrer noopener">motion</a> setting forth a proposed process for the determination of submitted claims, , along with a supporting <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/04/Memo-in-Support-of-Motion_ECF-303.pdf" target="_blank" rel="noreferrer noopener">memorandum</a> of law and <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/04/Flemmons-Declaration_ECF-305.pdf" target="_blank" rel="noreferrer noopener">declaration</a>. On December 20, 2024, the Court issued an opinion and Order <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/12/ECF339-Opinion-_-Order.pdf" target="_blank" rel="noreferrer noopener">granting</a> the motion in full. Among other things, the Court’s opinion concurred with the Receiver’s assessment to treat the Virgil Sigma and VQR Funds as a single commingled entity for purposes of valuing and determining claims.

7. What is the total value of all claims submitted to the Receivership Estate?

In order to assess the total value of claims submitted to the Receivership Estate, the Receiver must review all submitted claims against, and asserted equity interest in, the Receivership Entities to assess the nature, validity and scope of each submitted claim. As further explained in FAQ No. 3 (above), this process is undertaken in order for the Receiver to make an informed determination as to the appropriate amount and timing for any distribution as part of an overall future plan for the fair, reasonable, and efficient liquidation of all Recoverable Assets and other Receivership Property. The Receiver will disclose the total value of all claims submitted to the Receivership Estate through a forthcoming status update or other form of notice filed with the Court to be made available on the public record.

8. Will the Receiver consider all requests and information included in my submitted claim?

As indicated in the Receiver’s July 8, 2022, <a href="https://admin.bakerlaw.com/wp-content/uploads/2023/07/Motion-to-Set-Bar-Date-for-Claims-Against-the-Receivership-Estate7_8_22.pdf" target="_blank" rel="noreferrer noopener">Motion to Set Bar Date for Claims Against the Receivership Estate</a> and as was communicated through the <a href="https://www.qinreceivershipclaims.com/register/account_setup" target="_blank" rel="noreferrer noopener">Qin Receivership Claims Portal</a> during the claims submission process (the deadline of which was 11:59 p.m. prevailing Eastern Time on December 6, 2022), creditors and interest holders of the Receivership Entities and/or the Funds were required to provide the information specified by the proof of claim and proof of interest form (“Claim Form”) that was available to potential claimants during the claims process.

The Receiver is reviewing and assessing all information and requests submitted through the Qin Receivership Claims Portal.

9. From what activities do the Receiver team’s fees arise?

The Receiver’s quarterly Fee Applications are filed with the Court and list the activities undertaken by the Receiver team during the applicable period. Each quarterly Fee Application includes a table that breaks out the hours worked, and total fees based on the following Task Descriptions: Asset Analysis and Recovery, Claims Administration and Objections, Case Administration, Data Analysis, Tax Issues, and Status Reports. The Receiver team considers the cost of any investigation as compared to the potential recovery, consistent with the Court’s Order, in which the Receiver is “directed to investigate the manner in which the financial and business affairs of the Receivership Entities were conducted” and “to institute such actions and legal proceedings, for the benefit and on behalf of the Receivership Estates” in a reasonable and cost- effective manner. <a href="https://admin.bakerlaw.com/wp-content/uploads/2023/07/032-Order-Appointing-Receiver-4820-4533-4490-v-1.pdf" target="_blank" rel="noreferrer noopener">OAR</a> § IX.35.

10. When will the Receiver team’s work conclude and a distribution be made to claimants?

The Receiver is committed to completing the work required by the OAR and making a distribution to the claimants as soon as practicable. As of the date of this FAQ, the Receiver has made significant recoveries for the benefit of investors. However, significant legal action may still be required to recover millions of dollars of known outstanding funds for the benefit of the Receivership. As explained in FAQ No. 9, the Receiver is directed to investigate the manner in which the financial and business affairs of the Receivership Entities were conducted and to institute such actions and legal proceedings in a reasonable and cost-effective manner.

On April 8, 2024, the Receiver filed a <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/04/Memo-in-Support-of-Motion_ECF-303.pdf" target="_blank" rel="noreferrer noopener">motion</a> setting forth a proposed process for the determination of submitted claims. &nbsp;On December 20, 2024, the Court issued an opinion and Order <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/12/ECF339-Opinion-_-Order.pdf" target="_blank" rel="noreferrer noopener">granting the motion in full</a>. Per the Court’s December 20, 2024 Order, the Receiver will communicate claim determinations to claimants within 90 days of the date of the Order. Thereafter, the Receiver will seek approval from the Court to begin the process of distributing the Receivership funds to allowed claimants. The foregoing are necessary steps that must be completed before the Receiver is able to distribute the Receivership funds to the allowed claimants.

11. How will my claim be treated or classified?

On April 8, 2024, the Receiver filed a <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/04/Memo-in-Support-of-Motion_ECF-303.pdf">motion</a> setting forth a proposed process for the determination of submitted claims. On December 2, 2024, the Court issued an opinion and Order <a href="https://admin.bakerlaw.com/wp-content/uploads/2024/12/ECF339-Opinion-_-Order.pdf" target="_blank" rel="noreferrer noopener">granting the motion in full</a> on December 20, 2024.&nbsp; Section V.B.1. of the motion sets forth the Receiver’s proposed procedures for determining and classifying each claim, while Section V.B.2. sets forth the Receiver’s proposed method for valuing allowed claims. Per the Court’s December 20, 2024 Order, these proposed methods and procedures will be used by the Receiver to determine claims.

12. Are the Receivership funds earning interest?

The OAR directs the Receiver to take such action as necessary and appropriate for the preservation of Receivership Property. Accordingly, the Receiver maintains the Receivership funds in an account at one of the largest U.S. banks to mitigate against risks related to bank failures. The account is an interest-bearing account that has earned $1,752,878 in interest ("Interest") as of September 30, 2024. The Receiver Team reviews the account terms periodically and will seek to identify opportunities to increase the amount of interest earned. The Interest earned is represented in the Receiver’s sixteenth status report, Exhibit B, in the “Interest income” line item under the “Recoveries” heading.

1 Definitions for all capitalized terms used but not defined in this FAQ can be located in the January 21, 2021, <a href="https://admin.bakerlaw.com/wp-content/uploads/2023/07/032-Order-Appointing-Receiver-4820-4533-4490-v-1.pdf" target="_blank" rel="noreferrer noopener">Order Appointing Receiver</a> (“OAR”).