Securities Law
Some Madoff Investors Made Money—and Are Now Lying Low
Posted Jan 23, 2009 6:54 PM CST
By Martha Neil
Not everyone who invested with Bernard Madoff lost money.
Some longtime clients of the alleged architect of a $50 billion Ponzi scheme operated under the guise of a hedge fund actually did OK, by taking out money before the music stopped for expenses such as the purchase of a home or their children's college education. Now, however, they are being advised by some lawyers to lay low, reports Reuters.
Instead of seeking possible reimbursement from the Securities Investor Protection Corp. or through litigation against those who recommended the investment, these relative winners could be smarter to try to stay off the radar screen of the trustee who is figuring out how to pursue the Madoff firm's remaining assets—including potential "clawback" recaptures of purported profits paid to early investors, according to the news agency.
Otherwise, by pursuing a claim, such investors could provide the trustee with "a roadmap" for recapturing their assets, Reuters recounts.
"My advice so far is they should wait until more information is available," New York attorney Brian Neville tells the news agency. But "many of these people are beside themselves with this decision."
There is still time to ponder the situation further: the deadline for making an SIPC claim is March 4, Reuters reports. As discussed in an earlier ABAJournal.com post, however, it appears that those who aren't on the trustee's mailing list may have until July 2 to do so.
Related coverage:
Reuters: "Madoff trustee poring over hundreds of claims: SIPC"
Reuters: "Two US businessmen win a round in Madoff lawsuits"
Phildelphia Inquirer: "West Goshen widow's riches-to-rags story"

Comments
Debbie
Jan 25, 2009 8:46 AM CST
People should pay BACK money to Madoff? It was their money. What sense would this make? Madoff shoud be paying the investor money, no? What am I missing here?
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B. McLeod
Jan 25, 2009 4:47 PM CST
It is difficult to see how the trustee would prevail with this, beyond the extent to which some of the more recent payments might be recoverable as bankruptcy “preferences” for the benefit of all unsecured creditors. Especially given the number of times the SEC itself gave Madoff a pass. As far as any of these investors knew (or at least as far as the trustee wil be able to prove any of them knew), this was a straight-up investment where they put their funds in for a legitimate return. Without something more, I don’t see an action that would lie against these investors just because they were lucky enough to decide to get out early.
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Rich
Jan 25, 2009 5:07 PM CST
You are failing to recognize the distinction between principal invested and payment of (false) profits.
Courts have routinely allowed trustees to claw-back on payments exceeding principal invested, based on an implied release of a recission claim in favor of the investor.
Profits, on the other hand, are most of the time never safe from the trustee’s reach.
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B. McLeod
Jan 25, 2009 5:54 PM CST
Logically, would not this be subject to the same statute as the “recission claim”? This thing was apparently operating almost 30 years.
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Allen Sheketovits
Jan 25, 2009 6:14 PM CST
Oy, Madoff is in trouble again? Wasn’t he in trouble before? Will investors get their money back from the company, or maybe the IRS will refund taxes to the people who filed tax returns? If there was no gain, then they should get refunds, no? Maybe this is another bailout in the making?
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