Tag: Madoff

Madoff Litigation: Can the Lost Billions be Recovered? How?

This post contains my notes from the webinar: Madoff Litigation: Can the Lost Billions be Recovered? How? The Webinar was sponsored by NERA Economic Consulting and produced by The Securities Docket. The slides are available on Securities Docket.com: Materials from Madoff Litigation Webcast.

Brad divides the world into those invested direftly through a Madoff account and those that invested through a feed fund or a fund of funds. The two groups of investors have different causes of actions and different approachs. Brad is representing both but focused his piece on direct investors.

The direct investors are in the worst position. Their biggest hope of recovery is from the SIPC. The limit is $500,000 for securities. The SIPC may also take the position that the limit is $100,000 (the cash limit) since Madoff apparently never invested in securities. Recovery is also limited to the dollars put in less the cash returned over time. Of course the direct investors will also have claims against the Madoff bankruptcy estate and should file a claim.

In an audience vote, 70% though Madoff should not be free on bail.

Gerald focuses on the issues arising from indirect Madoff investors.  The feeder funds offer a deep pocket for recovery. In the case of a limited partnership structure, they will need to prove gross negligence or willful misconduct. Recovery will be governed by the partnership agreement and related documents. The other problem is that the general partner may be able to use the assets of the limited partnership to defend and indemnify themselves.  You end up suing yourself.

Fred pointed out that there are lots of “losses”, but also lots of  “damages” and probably very little “recovery.” Among the factors are (1) choice of law, (2) allocation among the parties based on conduct and causation and (3) time at which damages are estimated. The starting point for damages is going to be the differences between the reported value on the account statement and the actual value of the securities in the account.

Losses Due to Fraudulent Reported Value = Loss on Subscriptions – Gain on Redemptions (similar to 10b-5 damage valuations)

Fred cites the case of Goldstein v. SEC (DC Cir. 2006):

If the investors are owed a fiduciary duty and the entityis also owed a fiduciary duty, then the adviser will inevitablyface conflicts of interest. Consider an investment adviser to ahedge fund that is about to go bankrupt. His advice to the fundwill likely include any and all measures to remain solvent. Hisadvice to an investor in the fund, however, would likely be tosell. …It simply cannot be the case that investment advisers are theservants of two masters in this way.

It was a great panel. Thanks to the panelists, sponsors and publishers of the webcast.

Gullibility

NPR’s Science Friday has an interesting broadcast on Gullibility. Ira Flatow interview Stephen Greenspan, author of Annals of Gullibility: Why We Get Duped and How to Avoid It.

Can science explain why some swindles are so successful? Why are some people more likely to try to buy the Brooklyn Bridge or send money to the heir of a deposed Nigerian prince online? In this segment of Science Friday, we’ll talk about gullibility and the psychological principles at work in scams, from the $15 ‘genuine Rolex’ watch to the Bernard Madoff Ponzi scheme.

Mr. Greenspan was also the author of an essay in the Wall Street Journal: Why We Keep Falling for Financial Scams.

One memorable quote was his take on the Madoff scheme.  Mr. Greenspan point out that the scheme was not focused on greed. Madoff was not offering the high returns of typical Ponzi schemes. Instead, Madoff was offering a steady return. Madoff was offering safety. Mr. Greenspan points out that gullibility can be driven by the fear of losing money as much as it can be driven by the greed for money.

Professor Frankel Testifies In Congress

Boston University School of Law professor Tamar Frankel testified before the Committee on Financial Services of the U.S. House of Representatives discussing Ponzi schemes, the importance of trust in the securities markets and the need for regulatory reform in light of the Madoff scandal.

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SEC Inspector General Testifies In Congress

SEC Inspector General H. David Kotz In the first Congressional hearing since the Madoff scandal broke in December, Mr. Kotz said his agency’s handling of the Madoff case may be a symptom of more widespread problems with how the agency handles its examinations and investigations.

Kotz testified on the subject of “Assessing the Madoff Ponzi Scheme.”

Frankly it sounds like the SEC will spend as much time and energy investigating themselves on the Madoff matter as they will actually investigating the Madoff matter itself.

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You Need An Impartial Chief Compliance Officer

As Merritt Maxim of CA points out, Madoff Scheme Highlights Need for Impartial CCO, one of the biggest red flags in the Madoff scandal was that was the disclosure that Madoff’s brother Peter served as the firm’s Chief Compliance Officer.

“While having any sibling or family member serve as a CCO should not be an immediate cause for concern, the results of the Madoff scheme indicate that the only CCO who could have enabled the Madoff scam to persist was someone who was either:

A) Related to Bernard Madoff
B) Complicit in the fraud
C) Did not adequately fulfill their responsibilities as a CCO or
D) All of the Above.”

Is There More White Collar Crime Today?

Sam E. Antar, the convicted felon and former CEO of Crazy Eddie, puts forth the theory that the bad economy is accusing white collar crimes to float to the surface: Is there really more white collar crime today? No.

The Madoff scheme is an example of a scheme that fell apart whent he markets went south. A combination of decreased asset value (at least the few that he actually had) and increased redemptions due to the declining markets prevented him from being able to cover up the scheme.

Mr. Antar draws the parallel to the NYPD pulling more bodies out of the water during the spring months than other months. The warmer spring water just makes them float. The bodies sink in the colder winter months.

The current crash in economic markets is going to cause more bodies to float.

Red Flags in the Madoff Case

Gregory Zuckerman of the Wall Street Journal put together a story on the Multiple Red Flags in Madoff Case.

  • Steady returns  in every kind of market
  • Operated as a broker dealer with an asset management division. Why not simply act as a hedge fund and pocket big gains, rather than profit from trading commissions. “Why work your magic for pennies on the dollar?”
  • No independent custodian involved who could prove the existence of assets
  • Blatant conflict of interest with a manager using a related-party broker-dealer
  • The size of the fund was enormous compared the market in which it operated
  • Questions about where the assets were
  • Used a small auditing firm
  • Inadequate number of employees in relation to the purported size of the operation
  • Inadequate office space in relation to the purported size of the operation
  • Clients did not have electronic access to their trading files
  • Clients experienced delays in getting their money back
  • Madoff would tell you nothing about how he achieved his returns
  • Lack of transparency

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