Class Action Lawsuits - Ming Fong/German Fong Albus
Cuming & Gillespie (“Class Counsel”) has issued a class action lawsuit against Ming J. Fong and Sandra Albus as partners in the law firm of German Fong Albus, with Sandra Albus conducting her legal practice through her professional corporation, Sandra F. Albus Professional Corporation (the “Defendants”). The lawsuit arises out of an investment scheme referred to as the “Spanish Estate” scheme promoted by the Defendants that resulted in the loss of millions of dollars to investors.
Through the class action lawsuit, the Representative Plaintiff seeks to recover monetary damages on behalf of the entire Class for the losses allegedly suffered by investors in the “Spanish Estate Matter” promoted by the Defendants. The Spanish Estate Matter refers to funds solicited by the Defendants to assist in the finalizing of a legal inheritance matter.
The Statement of Claim was filed on December 5, 2013 bearing Alberta Court of Queen’s Bench Action No. 1301 - 14384. An Order dated Feb. 19, 2014 was granted by the Honourable Master J.T. Prowse allowing substitutional service of the Statement of Claim and Notice to the Defendant on Ming Fong.
This matter is currently under Case Management by the Honourable Mr. Justice R.J. Hall of the Court of Queen’s Bench of Alberta in Calgary.
An Order dated February 28, 2017 was granted by the Honourable Mr. Justice R.J. Hall certifying this lawsuit as a class action, naming Tim Tam as the Representative Plaintiff of the Class and defining the members of the Class.
The following is the Notice of Class Action:
NOTICE OF CLASS ACTION
THIS NOTICE AFFECTS YOUR LEGAL RIGHTS
PLEASE READ CAREFULLY
Please read this notice carefully in its entirety. This notice relates to the certification of a Class Action. A class action has been certified by the Honourable Mr. Justice R.J. Hall in Tam v. Ming J. Fong et al, Court Action No. 1301 – 14384). The action was certified on January 23, 2017. The Representative Plaintiff approved by the Court to represent the Class is Tim Tam. The Defendants in the Class Action comprise of Ming J. Fong and Sandra Albus as partners in the law firm of German Fong Albus, with Sandra Albus conducting her legal practice through her professional corporation, Sandra F. Albus Professional Corporation. The Representative Plaintiff seeks to recover monetary damages on behalf of the entire Class for the losses allegedly suffered by investors in the “Spanish Estate Matter” promoted by the Defendants. The Spanish Estate Matter refers to funds solicited by the Defendants to assist in the finalizing of a legal inheritance matter.
This notice is being provided to all potential Class Members, including all individuals, entities or corporations, other than the Defendants, who remitted funds to the Defendants, or any of them, to invest in the “Spanish Estate Matter” at the request of the Defendants, or any of them (the “Fong Scheme”) and suffered losses.
If you are a Class Member, this notice contains important information about your rights described below.
If you are a Member of the Class and you do not opt-out, you will be bound by the determination of the common issues as decided by the Court.
If you opt-out, you will not be able to participate in any monetary recovery, whether by way of judgement or settlement.
This notice has been sent to you in accordance with the Order of the Alberta Court of Queen’s Bench.
Purpose of this Notice
This Notice is being provided because you may be a Member of a Class of persons whose rights may be affected by this lawsuit. The purpose of this notice is to inform you that the Alberta Court of Queen’s Bench has determined that this lawsuit may proceed as a Class Action on behalf of all persons who invested monies in the Spanish Estate Matter with the Defendants, except the Defendants, as noted above.
This notice is not intended to be, and should not be construed as, an expression of any opinion by the Court as to the truth of the allegations in the lawsuit or the merits of the claims or defences asserted in the lawsuit.
Class Members are all individuals, entities or corporations, other than the Defendants, who remitted funds to the Defendants, or any of them, to invest in the “Spanish Estate Matter” at the request of the Defendants, or any of them (the “Fong Scheme”) and suffered losses.
Subclass 1: All individuals, entities or corporations of the Class who met with Fong at the GFA offices to invest in the Spanish Estate Matter and/or remitted funds to the GFA account.
Subclass 2: All individuals, entities or corporations of the Class who met with Fong outside the GFA offices to invest in the Spanish Estate Matter and remitted funds to Fong personally.
Rights of the Class Members
If you are a Class Member, you may receive the benefit of and will be bound by the terms of any order of the Court with respect to the common issues.
If you are a Class Member, you have the following options:
1. You may await the outcome of the proceedings, following which you may be entitled to the benefit of any settlement or judgment. If you choose this option, you will remain a Class Member and, subject to proving your loss, you will share in the proceeds of any settlement or judgment.
2. You may elect to opt-out of the Class. If you opt-out of the Class, you will not participate in any settlement or judgment and you will not receive the benefits of any settlement or judgment. However, you will also not be bound by any settlement with or judgment against the Defendants and your claim, if any, will remain unaffected. If you wish to opt-out of the Class, you must mail or deliver a written request for exclusion in the appropriate Opt- Out Form by no later than April 15, 2017. Opt-Out Forms may be completed in the form at the end of this document, downloaded from the website www.cglaw.ca or obtained by phoning 1-800-682-2480.
Time to Opt-Out
Class Members who want to be excluded from the class action must mail or deliver a signed Opt-Out Form in the form provided to Class Counsel at the address indicated on or before April 15, 2017. Class Members who do not complete and mail or deliver an Opt-Out Form to Class Counsel on or before April 15, 2017, will automatically be part of the Class Action.
Legal Fees and Disbursements
Pursuant to the fee agreement entered into with the Representative Plaintiff at the commencement of the litigation, Class Counsel will seek approval of a fee of 30% of any amount recovered, plus disbursements, which will be funded by Class counsel, and interest thereon plus applicable GST.
Description of the Proceeding
On December 5, 2013 an action was commenced against the Defendants, Ming J. Fong, German Fong Albus, Sandra Albus and Sandra F. Albus Professional Corporation (collectively, the “GFA Defendants”).
The Representative Plaintiff alleges that he suffered losses as a result of investments in a matter promoted as an investment to assist a client of Fong to secure an inheritance, in what was referred to as the ‘Spanish Estate’. The proceedings seek the following relief:
(a) A declaration that there is due and owing to the Plaintiff Investors from the GFA Defendants, or any of them, the total amount of the Contributions provided by the Plaintiff Investors, in the amount of not less than $20,000,000;
(b) Interest from the GFA Defendants, or any of them, on the Contributions, calculated in accordance with the Plaintiff Investors’ costs of borrowing, or in the alternative, pre-judgment interest pursuant to the Judgment Interest Act;
(c) In the alternative, judgment in the total amount of the Contributions, in the amount of not less than $20,000,000.00 plus interest, for the unjust enrichment of the GFA Defendants, or any of them, or on a quantum meruit basis, or on such further or other equitable basis as this Honourable Court deems just in the circumstances;
(d) Damages for breach of contract and negligence by the GFA Defendants, or any of them;
(e) In the alternative, damages for fraud from the GFA Defendants, or any of them;
(f) An accounting of the GFA Defendants’ financial activities in relation to the Contributions and the Spanish Estate Matter, and specifically, in relation to the use of the monies provided to the GFA Defendants by the Plaintiff Investors by way of the Contributions;
(g) A declaration that any judgment obtained against the GFA Defendants arises due to a fraud committed by one, any, or all of them, or a combination of them and others and, as such, judgment shall survive any discharge from bankruptcy of any of the GFA Defendants;
(h) A declaration that the Plaintiff Investors are entitled to relief pursuant to Alberta’s Civil Enforcement Act, including, but not limited to attachment orders, orders enjoining the GFA Defendants from disposing of assets, and any other relief the Court may see fit to grant;
(i) An order that any monies or negotiable instrument held by the GFA Defendants, or any of them, and that can be traced back to the Contributions, are held pursuant to a constructive or resulting trust in favour of the Plaintiff Investors;
(j) Interest pursuant to the Judgment Interest Act;
(k) Costs, including costs on a solicitor and client basis; and
(l) Such further and other relief as this Honourable Court deems just and appropriate in the circumstances.
Financial Consequences of the Class Proceeding
Class Members will be entitled to the benefit of a successful judgment of the Court or settlement on the common issues. Class Members who opt-out of the Class will not benefit from any successful judgment or settlement.
The Representative Plaintiff has entered into a fee agreement with Class Counsel that provides for the Plaintiff Class Counsel to be paid, for legal services rendered, 30% of the settlement or favourable judgment, and to be reimbursed for disbursements incurred in the litigation with interest. The fees and disbursements will form a first charge on any recovery, in favour of Plaintiff Class Counsel, if the settlement is approved or a favourable judgment is obtained. Plaintiff Class Counsel will apply for Court approval of their fees and disbursements.
No Class Member will be responsible for Plaintiff Class Counsel's legal fees or disbursements unless money is by way of settlement or judgment.
If the claims of the Class are dismissed against some or all of the Defendants, then those Defendants may seek to recover their legal costs for defending the claims against the Representative Plaintiff, but not against Class Members.
The following were determined to be common issues:
a) Was there a contractual relationship between the Defendants, or any of them, and the Class Members by virtue of a Loan Agreement and/or Promissory Note with respect to the Spanish Estate Matter? If so, did the Defendants, or any of them, breach the agreement(s)?
b) Did the Defendants, or any of them, owe a duty of care, fiduciary duty or contractual duty to the Class Members? If so, what were the duties? Were any of the duties breached?
c) Did the Defendants, or any of them, negligently or fraudulently make misrepresentations to the Class Members? If so, can reliance on the misrepresentations be inferred by the Class as a whole?
d) Were the Defendants, or any of them, unjustly enriched?
e) Are Sandra Albus, Sandra F. Albus Professional Corporation and German Fong Albus, or any of them, vicariously liable for the acts or omissions of Fong?
f) Did the Defendants, or any of them, conspire?
g) Did the Defendants, or any of them, commit a breach of trust?
h) Are the Class Members contributorily negligent for their damages? If so, how much is attributable to contributory negligence?
i) Are any of the claims of the Class Members barred by the provisions of the Limitations Act?
j) Are any of the Class Members barred from recovering against the Defendants, or any of them, by virtue of the doctrine of merger?
k) Are the Class Members entitled to restitution or repayment of monies from the Defendants or alternatively, are the Class Members entitled to a constructive trust?
l) Are the Class Members entitled to damages against the Defendants as more fully particularized in the Statement of Claim?
m) Are the Class Members entitled to an accounting and/or tracing of all monies received by the Defendants pursuant to the Fong Scheme?
n) Should interest be assessed on amounts found to be owing by the Defendants in accordance with the Class’ costs of borrowing, or alternatively, pursuant to the Judgment Interest Act?
o) Are costs payable?
Disclosure Consequences of the Class Proceeding
Class Members will be deemed to have consented to the disclosure by Plaintiff Class Counsel to Defendants’ Counsel of all information relating to their respective claims. The information will go to the Defendants’ Counsel for use in the litigation or settlement, but cannot by law be used outside the litigation.
Class Counsel in this matter is:
Cuming & Gillespie
Barristers & Solicitors
4050, 525 8th Avenue SW.
Calgary, Alberta, T2P 1G1
Phone: (403) 571‑0555
Toll Free: 1‑800‑682‑2480
Fax: (403) 232‑8818
E-mail: [email protected]
Class Members who wish to obtain more information about the Class Action should contact Dee-Anne Kuyten ([email protected]) at Cuming & Gillespie.
Click here to download the Opt Out Form. **Completed opt out forms must be faxed, emailed or mailed to Cuming & Gillespie by April 15, 2017.