Madoff Costs Surpass Victim Payouts as Strategy Fails
Irving Picard, who said last year he hoped to pay investors in Bernard Madoff’s defunct firm as much as $65 billion, has only put his hands on about $2.6 billion to actually give back to customers.
More than three years after Madoff’s epic swindle collapsed, Picard, the trustee responsible for liquidating the firm, has paid investors back about $330 million, while holding about $2.3 billion in customer accounts. About $6.4 billion that Picard has won in settlements with former Madoff investors is being challenged in court and is unavailable for disbursement.
So far, winding down the Madoff estate has cost more than Picard has sent to customers, with total administrative spending as of March 31 at about $554 million, including fees for Picard, his firm and consultants he hired, according to his April 25 report. At the same time, Picard’s strategy of filing $100 billion of lawsuits to claw back money from Madoff winners has largely collapsed, as federal judges led by U.S. District Judge Jed Rakoff in New York have dismissed about $90 billion of Picard’s claims.
“There is a huge risk about making predictions, because you can never be sure what a court will do,” said Chip Bowles, a bankruptcy lawyer with Bingham Greenebaum Doll LLP in Louisville, Kentucky. “People can object to his fees if he spent millions on litigation and promised a lot of stuff and it didn’t work out.”
Claim Prices Slump
As a result of Picard’s setbacks in court, bids for claims on the Madoff estate, which peaked at about 70 cents on the dollar in January 2011, now sell in “the low 50s,” said Joseph Sarachek, CRT Capital Group LLC’s managing director of claims trading.
The price also reflects the likelihood that the payoff for investors who lost money in Madoff’s fraud may be far off, Sarachek said. That in turn makes it harder for claimholders to sell their IOUs at attractive prices.
“It does look like the case is going on for several years,” he said.
Amanda Remus, a Picard spokeswoman, didn’t immediately respond to an e-mail asking if the trustee has revised his estimate of how much he will ultimately pay Madoff customers.
Picard’s latest estimate of the con man’s fictitious customer statements is $52 billion. That includes $17.3 billion in actual money invested, with the rest being the fake profits Madoff invented for customer statements. As of December, Picard estimated the total at $65 billion, before the withdrawal of some claims.
The $330 million he has sent to customers, out of the $2.6 billion set aside for them, contrasts with about $800 million they’ve received from the insurance program of the Securities Investor Protection Corp., which hired Picard and pays him.
SIPC, which is funded by brokerage firms, no longer expects Picard to pay all currently allowed claims of $17.3 billion in full, “based on current trustee assets, lawsuits filed, and the estimated possibilities for recoveries arising from that litigation,” the U.S. Government Accountability Office said in a March report.
Even if Picard gets all of the $9 billion he says he has raised, he would need another $8 billion or so to pay the claims, the GAO said.
“SIPC does not now expect this level of recoveries to occur,” the report said.
As of March 31, Picard himself has been paid about $5.1 million in fees. His law firm, Baker & Hostetler LLP, has been paid about $262.2 million in fees. All professional fees and expenses now stand at about $522 million, with about $31.7 million having been spent on general administrative costs such as office rent and telephones. By 2014, the bill will top $1 billion, Picard has estimated.
Most of the money Picard says he has raised came from settlements, not court victories for his lawsuits, and he is fighting to preserve his exclusive right to sue parties that allegedly profited knowingly from the fraud.
Some customers say he is usurping their rights. After a district judge in March upheld Picard’s $5 billion agreement with Jeffry Picower’s estate -- his biggest settlement by far -- lawyer Helen Chaitman appealed on behalf of a client. Chaitman will “absolutely” take the case as far as the U.S. Supreme Court if necessary, she said in an e-mail -- a process that could take more than a year.
Picard’s 2009 suit claimed that Picower, one of the con man’s largest individual investors, should have known Madoff ran a Ponzi scheme when he withdrew $7.2 billion from the brokerage. Sarachek said Madoff claim prices were around their peak in January 2011, when a judge approved the Picower forfeiture, with $5 billion going to the Madoff estate and $2.2 billion to the U.S.
Some customers regard the Picower settlement as unfair because it stops them from suing the Picower estate themselves.
Picard says he can’t distribute the Picower money until there’s a final court order that can’t be appealed. He didn’t have to lock himself into waiting for finality, as Picower’s estate didn’t make that a condition of forfeiting money, Chaitman said in a court filing.
The delay in paying customers “is totally of the trustee’s own making,” she said. Chaitman has also challenged most of his fee requests.
“Unfortunately, Madoff’s victims have not received the benefits of Mr. Picard’s services,” Chaitman said in an e-mail.
Picard opposes her right to sue the Picower estate, saying her claims overlap with his, which take priority as he is trustee. Moreover, if Chaitman wins the right to sue the Picower estate for her customers, and wins her suit, she may be choosing who gets the money. Only the trustee can claw back and allocate money allegedly stolen from Madoff customers, Picard has said.
Picard’s claim to an exclusive right to sue for Madoff recoveries has embroiled him in a battle with California Attorney General Kamala Harris over investment adviser Stanley Chais’s estate. Harris is trying to pursue a $270 million action against the estate, alleging Chais passed himself off as an “investment wizard” and collected fees for “doing nothing more than funneling all of his investors’ capital into an epic Ponzi scheme.”
Picard sued Harris Jan. 4 in U.S. Bankruptcy Court in Manhattan, saying her suit interferes with the collection of assets needed to help compensate Madoff victims. A Manhattan court hearing is set for May 17.
Madoff customers also have challenged Picard’s $1 billion deal with Tremont Group Holdings Inc. and a $220 million settlement struck with the heirs of Norman F. Levy. Chaitman alleges that Levy, who died in 2005 at age 93, financed Madoff’s Ponzi scheme to the tune of about $100 billion.
Picard also won’t pay out any more from the customer fund without a “final unappealable decision” on whether he owes them not only the money they invested, but also the fictitious profit on their brokerage statements, according to his website. The owners of the New York Mets baseball team, whom Picard had sued for $1 billion, were among those challenging Picard’s calculation of how they should be paid, until they reached a $162 million settlement that doesn’t require them to pay any money for at least four years, if ever.
The U.S. Supreme Court delayed a scheduled conference on whether it will consider an appeal by Madoff customers who say they should be compensated for loss of profits reported on their brokerage statements until after May 25, when it wants the U.S. Securities and Exchange Commission to weigh in on the subject. Allowable claims would treble to $52 billion if the judges agreed with the customers -- Picard’s current estimate of total fictitious profits in the Ponzi scheme.
The case is Picard v. Katz, 11-cv-03605, U.S. District Court, Southern District of New York (Manhattan).
To contact the reporter on this story: Linda Sandler in New York at firstname.lastname@example.org