Certain Madoff Investors May Find Themselves in an Unusual Dual Role – As Potential Lawsuit Plaintiffs or SIPA Claimants, but also as Potential Clawback Defendants
Hedge Fund Law Report
Various investors in the collapsed investment management business of Bernard L. Madoff Investment Securities LLC (BMIS) may find themselves in an unusual double role, both offensive and defensive. On the offensive side, those investors are trying to recoup all or part of their investments with BMIS, as potential beneficiaries of the Securities Investors Protection Act (SIPA) proceeding being conducted by court-appointed trustee Irving Picard, a Baker Hostetler partner; as claimants on the limited insurance provided by the Securities Investor Protection Corporation (generally, $500,000 for lost or stolen securities and $100,000 for lost or stolen cash); or as plaintiffs in lawsuits against BMIS, its service providers and others (generally alleging claims in the nature of negligence and breach of fiduciary duty). On the defensive side, many of those same BMIS investors may be subject to so-called “clawback” lawsuits, that is, generally, actions by the trustee to recover profits paid out to (and in some cases principal invested by) investors within a certain period prior to the filing of the SIPA proceeding, for distribution to other investors. We describe the specific forms that such clawback actions can take, who can be subject to such actions and whether the trustee would be likely to seek recovery of profits and principal or just profits. We also discuss the various offensive option available to certain direct and indirect Madoff investors. In the course of our discussion, we highlight important points raised at the Madoff Litigation Conference hosted by HB Litigation Conferences on February 25, 2009.