Balancing Act

An Interview with Irving H. Picard, Madoff Trustee

By Dick Carozza

2010-JulyAugust-Irving Picard 
Irving H. Picard, trustee in the Bernard L. Madoff case, has a tough job and even tougher critics watching his every move. But this seasoned lawyer and partner with Baker Hostetler is determined to do the best job possible while keeping Madoff victims' financial difficulties in mind.

Irving H. Picard might have one of the tougher jobs in America. He not only has to liquidate Bernard L. Madoff Investment Securities LLC (BLMIS), he has to find and collect the assets of Madoff’s estate and deal with angry – and sometimes desolate – investors who want their shares. He needs a mixture of wisdom, resoluteness, and compassion.  

And yet, Picard has done this before. Granted, not to this degree (and probably, hopefully, never again at this level). But as a lawyer and partner at Baker Hostetler in New York, he normally focuses his practice on representing unsecured and secured creditors, commercial landlords, bankruptcy trustees, and other parties in bankruptcy reorganization cases and out-of-court structuring. In other words, this isn’t his first rodeo.

On Dec. 15, 2008, Federal Judge Louis L. Stanton, in accordance with the U.S. Securities Investor Protection Act, appointed Picard the Madoff trustee. Since then, Picard and his team have recovered $1.5 billion and are working to reclaim much more. His deadline is Dec. 11 to file lawsuits.

During his keynote message at the 21st Annual ACFE Fraud Conference and Exhibition, July 25-30 at the Gaylord National in Washington, D.C., he will, in part:

• Provide a background and context for the Madoff fraud

• Encourage continuing investigation when information comes to the attention of the examiner

• Talk about red flags and what investment managers, feeder fund managers, and others knew or should have known about BLMIS and its business and about which they should have been more skeptical

In your recent third interim report submitted to the U.S. Bankruptcy Court in the Southern District of New York, you wrote that you’ve recouped $1.5 billion in assets so far for Madoff investors. I’m sure it’s difficult to determine, but do you have a dollar goal and an estimated end date for the investigation and your recovery efforts? 

My goal is to collect as much as possible. It is difficult to fix a specific dollar amount at this time because many individuals received fictitious profits which, as trustee, I can seek to recover. However, I recognize that many of those people are elderly, and have financial, medical and/or other hardships or other issues that may affect collectability and thus must be taken into account. This is an area that we are considering and in which we will exercise discretion. To date, we have only brought 14 actions seeking to recover approximately $14.8 billion from parties who were significant net winners. Under the Bankruptcy Code, we must bring our actions seeking to recover payments made by BLMIS within 90 days of the commencement of the proceeding and to recover fictitious profits by December 11.

In some ways, your investigation has the characteristics of a traditional fraud examination. You’re retaining a private forensic and litigation consulting firm, but can you briefly describe some of your investigation methods? At any one point are you personally involved with specific investigations? 

I am involved personally in various aspects of our ongoing investigation working with my counsel and consultants. At this time, because our investigation is ongoing, it would be inappropriate for me to comment on it or the methods we are employing beyond those referred to in my Amended Third Interim Report.

Your expertise is in bankruptcy reorganizations and out-of-court proceedings. But I’m sure you’ve never been involved in a liquidation of this scale. What are the special challenges in the Madoff case? 

You are correct that I have never been involved in a proceeding of this scale and, I dare say, nor has anyone else. The greatest challenge on one hand is to balance the carrying out of my duties as Trustee, and on the other hand, having the necessary information to exercise compassion with respect to the individual victims, especially when considering whether to commence avoidance actions. Many of the individuals invested over their lifetimes, thus I need to have information about their ages, economic and financial situations, medical and disability concerns, family issues and other factors. To develop such information we need the cooperation of the victims.

In March, a bankruptcy judge upheld your “cash-in/cash-out” approach of adjudicating the claims of Madoff investors. [Investors who withdrew more money from their Madoff accounts than they deposited (“net winners”) won’t be compensated while investors who withdrew less than they put in (“net losers”) would be compensated by the U.S. Securities Investor Protection Corporation (SIPC).] Of course, many Madoff investors (from small investors to actor John Malkovich) disagree with this assessment. Can you expound a bit on your reasoning?  

I would like to correct a premise of your question. Persons who deposited more money than they withdrew are not technically compensated by the SIPC. To the extent that their claims are allowed, the SIPC advances funds to the trustee to pay up to the statutory maximum of $500,000 per allowed claim for which the SIPC has a right of subrogation. That advance permits the Trustee to make an early payment so the customer-victim in this case does not have to wait until the conclusion of the case. For the balance of their allowed claims, those persons will receive pro rata distributions from the recoveries. As I have announced publicly, it is my intention to make interim pro rata distributions beginning later this year. That is another effort on my part to get funds to people who need them.

The money in/money out methodology is the approach that has generally been used in resolving claims in Ponzi scheme cases, going back to the fraud perpetrated by Charles Ponzi. The people who already received more money than they deposited have received their payments from the funds put in by those who have not received some or all of their deposits. Thus, as a matter of fairness, the persons who have not gotten back all the money that they paid into the Ponzi scheme, in my view, should get back as much as possible. Those who have been fully paid or received more than they deposited should not get more at the expense of those who have not been fully paid.

You’re not too popular with those Madoff investors who took out more money from their accounts than they put in. You’re refusing to award any SIPC money to them. How successful have you been in retrieving money that was withdrawn in the 90 days (a stipulation of the U.S. Bankruptcy Code) before the Ponzi scheme was exposed? 

During the 90-day period before Dec. 11, 2008, BLMIS paid out some $6 billion. To date, we have recovered more than $500 million of preferential transfers that were made during that period. Those recoveries have been made through settlements. We have some pending litigations and, if necessary and appropriate, will commence others, taking into account hardship and other matters that I mentioned earlier with respect to individuals. My preference is to try to settle potential avoidance actions whenever possible. But, as I noted previously, if we have to commence any litigation seeking such recoveries, we must do so by Dec. 11.

You’ve written in your recent report to the bankruptcy court that “customer property is not sufficient to pay in full the claims” of Madoff investors. How is it possible to explain to disgruntled and litigious investors that the money just doesn’t exist because that’s how a Ponzi scheme works?  

The fact that the customer property we recover will not be sufficient to satisfy all allowed customer claims is unfortunately the nature of Ponzi schemes. A substantial amount of money was used to pay both business and personal expenses. They are impossible to recover.

In connection with sales of assets, it is not likely that we will be able to recover all the amounts paid for them. In that regard, I would note that Mr. and Mrs. Madoff forfeited all of their personal assets to the United States and, thus, they are not available to me to sell. The forfeited assets are being sold under the auspices of the U.S. Marshal Service. The government has announced publicly that it will distribute the net proceeds of those sales to the victims. Another factor is, as I suggested earlier, many persons who received payments that would be recoverable by me pursuant to avoidance actions are not in a position to pay anything back. Furthermore, when a matter is settled, it is because both sides are interested in reaching a reasonable business resolution, taking into account the risks and costs of litigation as well as the time it will take, and thus unlikely that 100 percent will be recovered.

As you coordinated your efforts with the FBI, what general steps did you and your partners take to quickly preserve electronic media at Madoff’s firms? 

As reported in my Amended Third Interim Report, the effort to identity and preserve all evidence at BLMIS’ main office, a disaster recovery site, and a warehouse began on Dec. 11, 2008, upon the appointment of the Receiver in the SEC action. The FBI did not come into the picture until after my appointment on Dec. 15, 2008, at which time I consented to the FBI taking control and possession of the various BLMIS premises and facilities.

The process that my consultants were involved in coordinating with the FBI included the recovery of data from hard drives, servers, and other media that were physically damaged; conducting site surveys to identify and preserve floppy disks, DVD/CDs, etc.; previewing each collected computer hard drive; and extracting for analysis and review data identified for particular named individuals. The preserved data have been forensically imaged and have been loaded into a secure web-based document review program. Similarly stored are e-mails, data from desktop and laptop computers, AS/400 computers, backup tapes, hard drives, network storage, memory cards, and other data.

On May 22, 2009, you reached an agreement with Optimal Strategic U.S. Equity Limited and Optimal Arbitrage Limited in which it will pay $235 million to settle potential litigation claims. The Optimal companies are indirectly owned by a Spanish banking corporation. You write that this settlement is significant because it’s the first feeder fund to agree to pay back investor funds. You concluded there was no fraud involved. What contributed to your success in this case? Do you believe that you’ll soon reach agreements with other feeder funds? 

The settlement was reached because Optimal Funds had business reasons to reach a resolution without litigation. After conducting due diligence, we concluded that Optimal Funds did not knowingly participate in the fraud. Thus, it made sense to reach a settlement on reasonable business terms and avoid the time, expense and vagaries of litigation.

We have other ongoing settlement discussions. Each one is unique and presents different problems. I am hopeful that our various discussions can be successful.

You have been trying to retrieve funds from Madoff family members. So far, how successful have you been? Do you anticipate any criminal charges among Madoff family members? 

We have pending litigation against Ruth Madoff and also against Peter Madoff, Andrew and Mark Madoff, and Shana Madoff seeking to recover some $225 million. To date, there have been no settlements.

Whether or not there will be criminal charges against any of them is a matter to be determined by the United States Attorney for the Southern District of New York.

Do you predict that your investigations will eventually help lead to criminal proceedings among Madoff employees, Madoff family members, and/or feeder funds? 

The BLMIS liquidation proceeding is civil in nature. As trustee, I have no criminal authority. The FBI is conducting the investigation that has, to date, resulted in six criminal cases and could result in more. That, of course, is not to say that we do not communicate with the FBI.

Can you briefly explain the hardship program to speed compensation to Madoff victims facing serious financial emergencies?  

I recognized early on that for many customer-victims the payments that they received from BLMIS, many on a monthly basis, were by and large what they were living on. As a result of the BLMIS liquidation proceeding, many of them were having difficulty meeting ordinary living expenses including medical insurance, housing and food costs, taking care of disabled family members, etc. In fact, we became aware that a number of these people were losing their homes through foreclosure. Thus, I instituted the hardship program in an effort to expedite the claims process for such customers who had deposited more money than they received back and to get them some funds quickly.

Dr. Joseph T. Wells, CFE, CPA, began the Association of Certified Fraud Examiners with the goal of not only teaching fraud examination principles, but tenets of fraud prevention and deterrence. It’s a contentious issue, but do you believe the federal government needs to impose stricter regulations to help prevent at least some of the more egregious fraud cases? 

Various reports issued by the SEC’s inspector general, the Financial Industry Regulatory Authority, and Congressional hearings have focused on reasons that such frauds as Madoff and others were not ferreted out on a timely bases. There also are various ongoing task force reviews looking into whether the regulatory system needs to be updated and whether stricter regulations are necessary. I have not had time to think about or form any conclusion whether Congress needs to pass laws on whether agencies need to impose stricter regulations. I will leave that task to those who are studying the matter.

What are some of the methods your team members are using to disentangle some of the international Madoff investments? 

This is an area of ongoing investigation and litigation. Under the circumstances, it is inappropriate for me to comment until all these matters have been concluded.

You’ve been actively investigating and seeking to recover assets in numerous jurisdictions including England, Gibraltar, Bermuda, the British Virgin Islands, the Cayman Islands, the Bahamas, Ireland, France, Luxembourg, Switzerland, Canada, Austria, and Spain. You’ve retained international counsel to assist you in those investigations. Widely differing laws and cultures must endlessly complicate the retrieval processes. What are the basic procedures in working with these firms in this colossal task?

We regularly consult with counsel in the countries you mentioned. They advise us as to the laws in their local jurisdictions so we can make some initial decisions about what we can and cannot do. They assist us in our investigation in their respective jurisdictions as we seek to follow the money trail. In addition, in matters that are in litigation, we collaborate with counsel concerning strategy and, where necessary, work with them in the preparation of pleadings.

How much money laundering have you turned up to this point in the United States and abroad in which financial institutions were complicit? 

All I will say at this time on this subject is what has already been stated publicly by the United States Attorney in criminal case pleadings. That is, that Madoff Securities International Limited was used in part for money-laundering purposes. Since it is my understanding that the criminal investigation is ongoing, it would be inappropriate for me to comment any further.

Through your investigations, have you gained a more clear understanding of the mind of Madoff? Have you asked yourself, “How could he think that he could continue to keep this scheme going when he knew that market conditions would eventually erode?” What have you learned about Madoff that the public doesn’t already know? 

We have not “gained a more clear understanding of the mind of Madoff.” It is hard to understand what was going on in his mind. From what I have read and what I have seen in Ponzi schemes with which I am familiar, the fraudster generally believes that he or she can work his or her way out of it and make the victims whole.

What advice can you give our members who are fighting fraud every day in the trenches? 

Keep digging and keep up the good work!

Are you an analyst at heart? What motivates you to do this type of work? 

Yes, to a degree, I am an analyst at heart. I was a security analyst and trader at an early stage of my professional career. I still use some of those tools on a regular basis. I am motivated to do what I believe is the right thing for the victims who have lost money and recover as much as possible for them. I have sympathy for the individual victims and get satisfaction from doing the best that I can on their behalf. I view my work as being in the nature of public service.

As I noted earlier, a real challenge is to balance my duties as the Trustee in seeking to recover funds for the victims against needing to be compassionate with the plight of individuals from whom we might seek to recover fictitious profits and who now face significant financial, medical, or other difficulties.

How do you motivate your staff members who probably won’t be receiving many thank-yous? 

My staff members share the same goals and views as I do including the challenge of finding as much money as we can to distribute to the victims who lost money. The staff understands that many of the victims are individuals who require our sympathy, respect, and our best efforts even if we do not receive thank yous. Each day we endeavor to do the right thing, and we get satisfaction from those efforts.

I imagine a case this size can become tedious, but what’s the fascination?  

Every day is a new day and brings new challenges. I like to say that “every day is ground hog day!” Some will cite Yogi Berra’s saying that “it’s déjà vu all over again!”

Judging from the devastation this one individual has caused, do you think Ponzi should fade into history, and this type of fraud should be renamed a “Madoff Scheme?” 

There is no question that Bernard Madoff has caused the most financial devastation. While Charles Ponzi appears to be the first reported schemer of this nature, I do believe that over time his name will be superseded by Madoff for this type of fraud. One can say that Ponzi’s scheme was nickel and dime by comparison to Madoff’s. Nevertheless, Ponzi will always have his place in history as the first one to practice this form of fraud.

Dick Carozza is editor-in-chief of Fraud Magazine. 

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