The Madoff Scandal: Suits Seeking Recovery

The Madoff scandal is spawning an array of law suits. The basic cases are those filed by the Department of Justice, he SEC and SIPC. U.S. v. Madoff, Case No. 1:08-mj-02735 (S.D.N.Y. Filed Dec. 11, 2008); SEC v. Madoff, Case No. 1:08-cr-10791 (S.D.N.Y. Filed Dec. 11, 2008); SIPC v. Bernard L. Madoff Investment Securities, LLC, Case No 08-01789 (U.S. Bk. S.D.N.Y. Filed Dec. 11, 2008); see also Rosenman Family, LLC v. Picard, Case No. 09-1000 (U.S. Bk S.D.N.Y. Filed Jan. 1, 2009)(adversary proceeding against Trustee for SIPA Liquidation). These are typical government actions although the claimed fraud on which they are based is anything but typical.

Also typical are the investor suits against Mr. Madoff and the entities he once controlled. The allegations are the millions and in some cases billions were invested. To date nobody seems to know quite where the funds are despite some reports that Mr. Madoff is cooperating with prosecutors. Typical of these cases are:

Sciremammano v. Madoff, Case No. 08 CV 11332 (S.D.N.Y. Filed Dec. 30, 2008). The plaintiffs in this case are individuals who have invested with Mr. Madoff since at least 1995. They claim to have invested over $1.7 million. The suit, based on claims of “ongoing fraudulent offerings of securities and investment advisory fraud by Madoff . . .’ seeks injunctive relief to halt the fraud, disgorgement and damages.

Kellner v. Madoff, Case No. CV-08 5026 (E.D.N.Y. Filed Dec. 12, 2008) is a class action alleging violations of the securities laws and RICO. The complaint seeks damages in an unspecified amount.

Chaleff v. Madoff, Civil Action No. CV 08-8260 (C.D/ Cal. Filed Dec. 15, 2008) is a class action which alleges violations of the securities laws. It also seeks damages.

Less typical are the suits based on the alleged Madoff fraud but which have not been brought against him and his entities but others. These suits are being brought by those who invested with another entity which in turn invested with Mr. Madoff — the so-called “feeder funds.” Examples of these cases include:

New York Law School v. Ascot Partners, L.P., Civil Action No. 08 CIV 10922 (S.D.N.Y. Filed Dec. 16, 2008). This is a class action by those who invested in Ascot Partners, L. P., against the fund, its general partner J. Ezra Merkin, and the auditors of the partnership BDO Seidman. The complaint alleges that virtually all of Ascot’s assets were invested with Madoff. That $1.8 billion investment has been wiped according to plaintiffs. The suit alleges that defendants missed numerous “red flags” and breached their duty regarding the investments. The claims are based on alleged violations of the securities law as well as common law principles. See also The Clibre Fund, LLC v. J. Ezra Merkin, Case No. 08 Civ. 11002 (S.D.N.Y. Dec. 18, 2008)(similar complaint by fund that invested over $10 million with Ascot).

Group Defined Pension Plan & Trust v. Tremont Market Neutral Fund, L.P., Case No. 08 CV 11359 (S.D.N.Y. Filed Dec. 3, 2008). This is a class action against an investment partnership, related entities, and its auditors, Ernst & Young, LLP. The complaint alleges that about 27% of the investment capital of Tremont, was invested with Madoff. The suit alleges violations of the federal securities laws and seeks damages.

No doubt the number of law suits will continue to rise in the days to come. In view of the magnitude of the projected losses and what appears to be the relatively small amount of assets available to pay them, it seems apparent that the feeder fund type of suit will become all the more prevalent.

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