A federal judge's ruling has vastly undercut the power of a court-appointed trustee to recover billions of dollars for victims of Bernard Madoff.
Enlarge Image
Close
Bloomberg News
Trustee Irving Picard
The decision on Tuesday by U.S. District Court Judge Jed Rakoff in Manhattan directly applies only to a lawsuit filed by trustee Irving Picard against the owners of the New York Mets baseball team.
But lawyers familiar with the litigation said Wednesday that it curtails the scope of overall funds Mr. Picard can legally seize in the historic Ponzi scheme.
"He's going to get a lot less money," said Helen Davis Chaitman, a lawyer representing former Madoff customers being sued by Mr. Picard and a frequent critic of the trustee.
The latest development is the biggest legal blow in the three-year effort by Mr. Picard, who has helped recover more than $10 billion for Madoff victims so far.
More
Judge: Madoff Trustee Can Seek Up to $386 Million From Mets Owners
A Curveball in Mets-Madoff Case
The legal theory behind the ruling could reverberate across more than 1,000 ongoing lawsuits through which Mr. Picard is attempting to recoup tens of billions of dollars in profit and principal withdrawn by investors before Mr. Madoff's scheme collapsed in 2008, the lawyers say.
It isn't clear exactly how much money the ruling will ultimately affect, with Mr. Picard and lawyers connected to the Madoff lawsuits still digesting the opinion and its impact.
But David Sheehan, a lawyer for Mr. Picard, said at a court hearing related to the Mets case on Wednesday that up to $6 billion—or more than a third of the principal the trustee says was lost in Mr. Madoff's fraud—could be off limits if the ruling is upheld.
Judge Rakoff slashed the amount of money the trustee can pursue in the Mets case from the $1 billion he was seeking to $386 million. The thrust of Judge Rakoff's decision stems from what some judges have called a policy conflict between U.S. bankruptcy law and securities law as to when investors should have to give back money they previously received.
Among its most significant provisions, Judge Rakoff's ruling shortened the period during which Mr. Picard can attempt to recover investors' withdrawal of false profits or principal from six years prior to the bankruptcy of Mr. Madoff's firm—the limit under New York law—to a two-year window allowed under federal law. Mr. Sheehan told reporters after the court hearing on Wednesday that Judge Rakoff's decision "eviscerated" their New York law claims.
That means the pot of money Mr. Picard could ultimately recover would be significantly smaller, and the money individual investors ultimately receive could be smaller still. The trustee has sued people and institutions who invested and allegedly profited off Mr. Madoff's Ponzi scheme, often unwittingly, in order to collect money he can use to repay other investors who lost some or all of the principal they sent to his firm.
A spokeswoman for Mr. Picard said it would be inappropriate for him to comment because of the ongoing litigation.
"If this opinion stands, it substantially reduces the magnitude of clawback recovery the trustee may be able to realize," said Richard Levy, a lawyer who is representing investors in other lawsuits filed by Mr. Picard.
"This is the beginning," said Ms. Chaitman, adding that she hoped for more favorable rulings ahead. Still, up to now, Madoff investors have felt optimistic about recouping more than half their principal investment through the trustee, and it's not clear this ruling would affect the proportion of those recoveries.
Howard Siegel, who invested through a fund with Mr. Madoff, said it wouldn't be fair if the decision reduces the potential recovery and allows the Mets owners, or any other Madoff clients who took out more money than they invested, to keep money at the expense of "net losers," who didn't take profits. "That to me would be outrageous that through the passage of time they get the right to keep other people's money," Mr. Siegel said.
Among those who could benefit are Mr. Madoff's brother, son and niece, who are battling a lawsuit in which Mr. Picard would have to drop claims for millions of dollars if Judge Rakoff's ruling is applied.
The ruling doesn't directly or immediately apply to other cases, but lawyers say it would have to be reconciled with several conflicting rulings by other judges. The decision by Judge Rakoff, who is presiding over a number of other Madoff-related lawsuits, could ultimately be evaluated by the U.S. Second Circuit Court of Appeals, thus far the highest court to rule on any Madoff matter.
Mr. Sheehan, the trustee's lawyer, said in court on Wednesday that Mr. Picard will seek permission for Judge Rakoff's decision to be reviewed by the Second Circuit.
In recent months, Mr. Picard has suffered a string of legal setbacks as district court judges—predominantly Judge Rakoff—have accepted requests by those sued by Mr. Picard to move cases out of bankruptcy court, a friendlier setting for the trustee.
Some lawyers said Judge Rakoff's ruling could force Mr. Picard to re-evaluate all claims for losses and how he distributes money he has collected, a process he was about to begin, to attempt to ensure that Madoff investors aren't being treated unevenly based on how much they withdrew and when. Mr. Sheehan said on Wednesday that a scheduled distribution of money to Madoff victims on Friday would be delayed in light of Tuesday's decision.
In recent months, judges had begun to express skepticism about the broad and aggressive claims filed by Mr. Picard. The trustee has sued individuals and institutions for nearly $100 billion, including fees and damages, in hopes of recovering as much as possible. He is likely to have a harder time reaching the types of settlements, on favorable terms, that fueled his initial success, including the $7.2 billion settlement reached with the estate of Jeffry Picower, a Madoff associate, in December, lawyers say.
In one example of the possible effect, Mr. Picard was seeking $5.8 million in allegedly false profits he said was withdrawn over six years from an account owned by Judith Rechler, a member of a family of real-estate developers in Long Island, New York. But only $625,000 was withdrawn in the past two years, reducing the amount Mr. Picard might recover under Judge Rakoff's ruling by about $5.2 million in profits Ms. Rechler allegedly received for trades that never occurred. Ms. Chaitman, her lawyer, declined to comment on the case.
In another major defeat for Mr. Picard, Judge Rakoff also struck from the lawsuit filed against the Mets owners the trustee's attempt to "claw back" money withdrawn within 90 days of Mr. Madoff's bankruptcy. Mr. Picard has tried to recover those withdrawals under a legal theory that says money leaving a Ponzi scheme shortly before it ends should be returned for the benefit of all investors.
Unless he succeeds in obtaining those funds under a different legal theory, that section of the ruling could impair Mr. Picard's ability to recover hundreds of millions, if not billions, of dollars, from hedge funds and banks that fed money to Mr. Madoff and tried to get their money out as the financial crisis ramped up in late 2008. "The biggest impact is going to be on the hedge funds," said Ms. Chaitman. "The individual investors are chicken feed compared to that."
Other questions lawyers involved in the Madoff lawsuits were exploring related to whether Mr. Picard might have to reopen claims he had denied from some Madoff investors he has called "net winners" because they withdrew more money from the Ponzi scheme than they originally invested. Judge Rakoff's decision said federal law doesn't permit Mr. Picard to "disallow" any claims, although lawyers differed about what that might mean. If he were forced to reopen claims he had denied, that could alter the calculation of how much money is eventually distributed to all investors.
Online.wsj.com
