Circuit Sides With Madoff Trustee Over ‘Net Winners’ In Ponzi Scam


New York Law Journal (August 17, 2011) — A unanimous federal appeals panel ruled yesterday that investors in Bernard L. Madoff’s massive Ponzi scheme who walked away with more money than they put in cannot recover any more on the basis of their fraudulent statements from Mr. Madoff.

The opinion in In re: Bernard L. Madoff Investments Securities, 10-2378-bk, written by Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit and joined by Judges Pierre N. Leval and Reena Raggi, upheld the method used by Irving H. Picard of Baker & Hostetler, the trustee charged with unwinding Mr. Madoff’s scheme to calculate payouts to investors. Mr. Picard has been paying investors based on their net losses, and has pursued clawback actions seeking to recover profits from net winners, like New York Mets owner Fred Wilpon.

The decision affirms a decision last year by Southern District Bankruptcy Judge Burton R. Lifland, who also sided with the trustee against the investors (NYLJ, March 2, 2010). Although appeals from bankruptcy court decisions usually go to the district court first, the Second Circuit agreed to hear the investors’ case immediately.

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