Ever since Bernie Madoff’s Ponzi scheme collapsed in 2008, it’s been much-rumored that investors included tax dodgers shielding money from the IRS, drug dealers who laundered proceeds through the con man and wealthy moguls hiding assets from ex-spouses.
After all, the scheme wiped out $20 billion of investors’ money, but the victims’ claims for repayment total just $17.5 billion.
Who would walk away from $2.5 billion, and why?
Part of the answer may be far less mysterious or dubious than thought.
Almost half of the unclaimed money can be traced to a couple of Caribbean-based hedge funds. Their reason, while unknown, may have amounted to a calculated decision that any recovery on their $1.2 billion of claims would be tiny compared with what they might be forced to give back if they got tangled up in U.S. courts, according to lawyers familiar with the recovery process. As for the remaining $1.3 billion in unclaimed money, experts are left to ponder. Unlike the two funds, these are likely individual investors who had a variety of reasons to shy away from the claims process, especially at a time when victims were expecting to recover only 4 or 5 cents on the dollar, legal experts say.
"What’s the downside of putting a claim in and seeing what happens, unless somebody doesn’t want their own affairs being scrutinized?" said Richard Scheff, a former federal prosecutor who’s chairman of Philadelphia-based Montgomery McCracken Walker & Rhoads LLP. Some of these people may be kicking themselves now; victims are getting 57 cents on the dollar.
Feeder Funds
The situation underscores the complexities involved in the effort to recover money for Madoff’s victims. So far Irving Picard, the trustee hired to wind down Madoff’s firm, has repaid about $9.2 billion to people who invested directly with the scammer. Tens of thousands of others await some recovery. They couldn’t file claims with Picard because they placed money in so-called feeder funds that invested with Madoff.
"We can’t speculate on the motivations for any customer deciding not to attempt to recover lost principal via the claims process," said Amanda Remus, spokeswoman for Picard and his team of lawyers at BakerHostetler LLP in Manhattan. Picard is barred by law from revealing the names of victims.
The biggest of the two hedge funds that invested with Madoff is Harley International (Cayman) Ltd., managed by the obscure trust company Euro-Dutch Management Ltd. Harley opened an account with Madoff in 1996, around the time the con man began ramping up his fraud with the help of rigged computer programs, court records in New York show.
Lost $1 Billion
Harley ended up investing all its money — more than $2 billion — in Madoff’s firm, according to the court filings. But as the financial crisis accelerated, Harley withdrew $1.07 billion in the two years before Madoff’s arrest. The remaining $1 billion in Harley’s account went up in smoke, and the fund was forced into liquidation by a Cayman Islands court in 2009.
Picard sued Harley in federal court in Manhattan in 2009 for the return of the entire $1.07 billion it had withdrawn. Picard argued the hedge fund "knew or should have known" that Madoff was a fraud, based on the unrealistic and steady returns it received, according to the complaint against the fund.
U.S. Jurisdiction
Harley now faced a decision: Filing a claim for its $1 billion loss would expose the hedge fund to U.S. jurisdiction and Picard’s suit. That trade-off may not have seemed wise at the time, according to lawyers. Harley could conceivably be forced to cough up the $1.07 billion to Picard — and recover maybe $50 million on its loss.
So, Harley didn’t file a claim and ignored the suit. In 2010 a federal judge awarded Picard a default judgment for the full amount he sought. Picard still hasn’t collected the money.
Harley “made a strategic decision not to appear in this jurisdiction,” Elizabeth Scully, one of Picard’s lawyers, said in a 2010 court hearing in Manhattan.
“You can envision someone doing the math and thinking the recovery in the bankruptcy process would be only a few pennies on the dollar,” said Matthew L. Schwartz, a former federal prosecutor in Manhattan who worked on the Madoff case.
Geoff Varga, Harley’s court-appointed liquidator with Duff & Phelps LLP in Manhattan, confirmed that Harley didn’t file a claim in the Madoff case. He declined to say why.
"It shouldn’t be too difficult to figure out why Harley didn’t file a claim in the Madoff liquidation," Anthony Inder Rieden, the chief executive officer of Euro-Dutch, which is still in operation, said in an e-mail. He declined to elaborate.
Ignored Lawsuit
Another feeder fund, Vizcaya Partners, could have filed a claim for $147 million but didn’t, court records show. The British Virgin Islands-based fund also ignored a lawsuit by Picard that sought $180 million withdrawn from Madoff’s firm in the months before it collapsed. They later reached a settlement, with Vizcaya paying $25 million.
Anthony Paccione of Katten Muchin Rosenman LLP in New York, who represented Vizcaya in its dealings with Picard, declined to comment on why the fund didn’t file a claim.
Not filing a claim isn’t automatically a sign of wrongdoing. Some folks may have just missed the deadline or could afford to put the mess behind them and move on.
One thing is certain: the missing claims mean there will be a lot more money to go around for Madoff’s other victims. Picard has said he’d like to pay back 100 cents on the dollar, and now he can get there faster.
