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Posted by: Matthew Goldstein on December 12, 2008
For years there were whispers on Wall Street about Bernard Madoff’s hedge fund. The cynics said the returns were too good, too steady and Madoff’s operation always looked too slim for the tens of billions of dollars it was managing. But given Madoff’s more than four-decades of experience as trader and past service as chairman of the Nasdaq Stock Market the wealthy kept giving him their money.
Well, it looks like those concerns were right all along now that federal prosecutors have charged the 70-year-old Madoff with securities fraud, in what could amount to one of the biggest Wall Street scams ever. Securities regulators, in a civil complaint, say Madoff’s scheme may have cost investors up to $50 billion—although that figure appears to be based on Madoff’s own bravado. At a minimum, it appears the $17 billion Madoff was managing earlier this year may be gone.
The allegations against Madoff describe a classic Ponzi scheme, in which money is taken in from new investors to pay out money to earlier investors. Madoff, authorities allege, even told his sons earlier this week that the hedge fund was nothing more than “a giant Ponzi scheme.’’
It didn’t take long for investors in Madoff’s fund to begin crying foul. Hours after the news of Madoff’s arrest broke, investors were contacting lawyers to determine how they can get their money back—assuming there is any money left over. The Securities and Exchange Commission is moving to appoint a receiver to take control of the Madoff fund to protect whatever assets remain. Scott Berman, a lawyer who represents a number of Madoff investors, says the fear in a case like this is that the investors will be left “fighting over the crumbs.”
Many of the investors in Madoff’s hedge fund were so-called fund of funds, investment vehicles that invest in a wide array of hedge funds to spread around the risk of anyone hedge fund collapsing or incurring steep losses. But fund of funds, which often juice their returns with leverage, are getting hit hard in the market plunge. On average, fund of funds have suffered greater losses this year than the average hedge fund.
It’s way to soon to know how long the alleged scheme had been going on, although authorities allege it began years ago, after Madoff tried to cover up for past losses. But it appears Madoff ultimately was unmasked by the worst financial crisis since the Great Depression. Just like many hedge fund operators, Madoff received a wave of redemption notices in recent months, from investors looking to preserve cash. Authorities say investors sought to pull-out some $7 billion from the fund—money Madoff apparently did not have.
In the end, most Ponzi schemes collapse when too many investors seek to pull their money out at the same time, and the operator doesn’t have the cash on hand. Many a scheme has failed when the markets turn south. One potential red flag that investors failed to notice along the way is that the hedge fund was being audited by a small outfit in Rockland County, NY—not one of the large accounting firms.
But the financial crisis appears to be hastening the unwinding process of potential scams, as it has dried-up all sources of liquidity. Banks are unwilling to lend and investors are fleeing hedge funds, stocks, bonds, commodities and other asset classes for the safety of cash.
In September, another alleged Ponzi scheme collapsed, when federal prosecutors arrested Minnesota businessman Tom Petters. Federal prosecutors allege that much of Petters’ empire, which consisted of buying up distressed businesses, was based on a series of lies. He’s been charged with bilking some six-dozen hedge funds out of $3 billion. Petters’ alleged scheme came undone when some of the hedge funds that lent him money had gotten redemption requests from their investors and began asking Petters to pay-off his debt. Just like Madoff, Petters apparently couldn’t come up with the cash. Several of the hedge funds that lent money to Petters are in tatters, and some are shutting down.
A lack of liquidity may have been behind the bizarre scheme involving New York attorney Marc Dreier. Earlier this week, federal prosecutors charged the high-profile attorney with allegedly scamming several hedge funds into giving him up to $100 million by selling shares in what appears to be a fraudulent real estate venture. It appears Dreier’s 250-lawyer firm was running low on cash and had failed to make payments on a bank loan.
As the financial crisis deepens, don’t be surprised if other scams get flushed out in the coming weeks and months.
Update — Dec. 13, 2008
The Madoff scandal beyond causing pain for the investors in these hedge funds is causing some discomfort for securities regulators. Late Friday, the Securities and Exchange Commission, in response to questions about its past oversight of Madoff’s operatoin, says it twice investigated his firm but apparently found no wrongdoing. Over the years, the SEC had received a number of tips of potential problems at the Madoff fund. Now, uncovering fraud is no easy task. But this episode raises new questions about just how aggressive regulators are when they conduct periodic examinations of the brokerages they oversee.
Update 2 - SIPC coverage
I haven’t researched this issue lately, but a number of people have asked about SIPC so I’m throwing in my 2 cents. If a person was a customer of Madoff’s broker-dealer arm, SIPC coverage would be available. It’s unlikely SIPC would cover losses sustained by Madoff’s hedge funds customers. Although SIPC can offer some coverage in a case of outright theft by a brokerage firm. Either way, it’s best to contact a lawyer, given this mess will take a long time to sort out.
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