A group of hedge fund investors, including over 20 pension funds representing unions in New York State, has received a welcome Christmas present — a court decision that will allow them to eventually recover money they invested in funds operated by Bernard L. Madoff Investment Securities. In 2009, Madoff pleaded guilty to operating what may have been the largest financial fraud in U.S. history, with losses now estimated at around $18 billion and is serving a 150-year sentence. But his victims won’t see their money any time soon, a lawyer representing the plaintiffs told Institutional Investor in a recent interview.
The total sum to be recovered is modest — $206 million — and may have been higher if the plaintiffs had taken the Madoff estate to court. But investors in the two White Plains, N.Y.–based hedge funds that acted as Madoff feeder funds, Beacon Associates and Andover Associates, decided to negotiate a settlement with the trustee in charge of liquidating Madoff’s firm instead of taking the case through litigation. In addition to individual and family-office clients, investor clients of the two funds included local unions all over New York State representing carpenters, electricians, engineers, plumbers and other working people. “Negotiating gave us certainty that the investors would be made whole and potentially make a profit, and we’d be able to recover the funds faster,” says their lawyer, Arthur Jakoby, an attorney with Herrick, Feinstein of New York.
It will not be all that fast, however. Although the U.S. Bankruptcy Court, Southern District of New York, approved the settlement on December 4, the U.S. District Court still has to approve the class-action claims. That verdict is unlikely to occur before the second half of 2013, according to the lawyers for the case.
Still, it is a victory that didn’t come easily. The funds had asked for a total of $141 million to replace their losses, working with the New York State Attorney General’s office, the U.S. Department of Labor and several other law firms in addition to Herrick, Feinstein. In December 2010, after representatives for Andover and Beacon and their investors had petitioned Madoff trustee Irving Picard and Ivy Asset Management, Beacon and Andover’s former outside investment advisor, the trustee started an adversary proceeding against Andover, Beacon and other investors involved in the case.
There has been discussion in legal circles about the extent to which Madoff’s victims should have placed more responsibility on the auditors and accountants for feeder funds. In a complaint filed in bankrupty court, the trustee said the funds “had or should have had concerns about the validity of Madoff’s operations going back to the early 1990s” and accused them of purposefully choosing to disregard the indications of fraud “in favor of the generous fees and returns being generated.”
After multiple mediation sessions and extensive negotiations, however, the trustee agreed to seek a resolution rather than litigate. The legal team worked out a settlement with Ivy and Picard at the same time. The terms require the Madoff estate to pay back the $141 million plus most of an additional $28.31 million that the funds had withdrawn from their Madoff accounts, along with interest and lost profit, bringing the total settlement to $206 million.
“With all of the settled amounts combined, the investors are likely to recover more than 100 percent of their principal investment and make a profit on their Madoff investment,” says Jakoby. The distribution is still to be determined after the district court approves the settlement. That should be in plenty of time for Christmas 2013.
