Arnold & Porter Kaye Scholer Successfully Represents the Republic of South Africa in Seeking Compensation for Illegal Fishing of Rock Lobster
Arnold & Porter Kaye Scholer, working with co-counsel B. Xulu & Partners of Cape Town, South Africa, has successfully assisted its client, the Republic of South Africa, in seeking compensation from Arnold Bengis in connection with an unprecedented $22 million restitution order. Bengis and his family and associates plundered South African lobster fisheries from 1987 until 2001, depriving South Africa of most of its rock lobster population and depriving many persons in South African coastal communities of their livelihoods. After Bengis's guilty plea on Lacey Act and customs violations, US District Judge Lewis Kaplan in the Southern District of New York (SDNY) issued the restitution order, which Bengis has largely ignored.
On July 19, 2017, in a major win for South Africa Judge Kaplan resentenced Arnold Bengis, based on his failure to comply with the restitution order, ordering him to forfeit $37.3 million and sentencing him to a total prison term of 57 Months.
In 2013, Judge Kaplan had ordered that Bengis and his co-conspirators pay restitution for the Lacey Act violations to the Republic of South Africa in the amount of $22 million. Bengis moved most of this money from the United States to the island of Jersey in the United Kingdom, thereby avoiding having funds in the United States to make payment. Jersey, furthermore, does not recognize foreign restitution orders, precluding the US government from securing those funds for South Africa.
In March 2017, Judge Kaplan decided that he would re-sentence Bengis because of his nonpayment to South Africa. On July 12, 2017, Siphokazi Ndudane, a senior official with South Africa's Dept. of Agriculture, Forestry and Fisheries, told Judge Kaplan that Bengis did massive and lasting damage to the country's vast marine ecosystem and asked the Judge to help ensure that South Africa is compensated for the environmental damage. South Africa argued to Judge Kaplan that a forfeiture order—an unusual request by a victim—was appropriate give that such an order would be enforceable in Jersey, thereby ensuring seizure of Bengis's funds in order to make South Africa whole for the enduring damage caused by Bengis.