The U.S. Supreme Court won’t hear an appeal by Bernard Madoff’s investors over whether they can recover lost profit, an action that lets stand the Madoff trustee’s calculation that investors lost $17 billion.
The investors asked the top court for a hearing after federal appeals judges in New York said in August it would be “absurd” to treat fictitious paper profits as real, upholding a lower court ruling. Madoff trustee Irving Picard held back on distributing more money from a $2.3 billion fund for the con man’s customers, not knowing if he must pay 4 cents on the dollar each to the larger pool of investors, or about 13 cents to those who lost principal.
The end of the line for the appellants means the payments can resume to customers who lost principal, Picard said in a statement today. Picard, who has distributed just $333 million to customers in the 3 1/2 years since Madoff’s 2008 arrest, will ask a judge to approve a second distribution “within an expedited time frame,” he said.
“I think the trustee is very sympathetic to investors and it will be at least a dime,” or a total of $1.8 billion, said Joseph Sarachek, managing director of claims trading at CRT Capital Group LLC, which buys and sells distressed debt, including the Madoff brokerage’s.
Picard said the potential distribution may swell if there are no further challenges by July 16 to his $5 billion settlement with Jeffry Picower’s estate. In all, Madoff customers have recovered a total of $1.1 billion, including his first distribution and the Securities Investor Protection Corp.’s $801 million payments to customers, he said.
Asking the top court to hear their appeal, Madoff investors who took more money from their accounts than they put in -- including the owners of the New York Mets baseball team --argued that securities laws require Picard to use their account statements to calculate their losses, and compensate them accordingly.
Lower court judges said Picard can ignore fictitious profits on Ponzi money, and calculate losses by looking at how much of an actual investment disappeared -- money put in minus money taken out.
The Mets owners dropped their appeal to the Supreme Court after settling a lawsuit against them by Picard.
Before conferring June 21 on whether to hear the appeal, the Supreme Court justices asked the U.S. Securities and Exchange Commission to file papers on whether Picard is using the right formula to compensate investors.
The SEC said he was. Moreover, the subject wasn’t of great importance to the nation, and doesn’t justify attention from the U.S.’s top court, the SEC said. In the past 18 years, only seven Ponzi schemes have been liquidated, it said.
“Petitioners thus do not present an issue of recurring significance warranting this court’s review,” the SEC said in a May filing, made on its behalf by the U.S. Solicitor General, who supervises government cases before the high court.
How Ponzi investors should be paid “turns on the details of a particular fraudulent scheme,” with little application for the majority of investors, the SEC said.
“Purported increases in the value of customers’ accounts, moreover, were entirely fictitious,” validating the lower court rulings, it said.
Picard’s formula for compensating victims is to figure their loss of principal, then allot them a share of the money he says he has raised by suing or settling with investors who allegedly knew of the fraud. Investors with net gains, who took out more money than they put in, have to wait until net losers get paid in full.
Most of the $9 billion that Picard has won in settlements, including the $5 billion from Picower’s estate, has been unavailable for disbursement because of court challenges. He has set aside $2.3 billion for customers, which is now mostly available.
The trustee, who filed more than 1,000 lawsuits claiming $100 billion, said last year he hoped to raise enough money to pay all investors back in full, including those with false profits on the account statements. Since then, federal judges led by U.S. District Judge Jed Rakoff in New York have dismissed about $90 billion of Picard’s claims.
Reflecting poor payment prospects, larger claims on the Madoff brokerage’s estate have fallen from about 70 cents on the dollar last year, to about 58 to 62 cents, said Sarachek at CRT Capital Group.
Picard and his law firm have charged $273 million for their Madoff work so far. Madoff is in jail, serving a 150-year sentence for fraud.
Investor Larry Velvel’s appeal is Velvel v. Picard, 11-00986, U.S. Supreme Court (Washington). The main case is Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, 08-01789, U.S. Bankruptcy Court, Southern District of New York (Manhattan).