MADOFF SETTLEMENTS


 

The trustee recouping money for Bernard Madoff’s victims on Tuesday announced nearly $371 million of new settlements with two groups of offshore funds that invested with the imprisoned Ponzi schemer, boosting the total recovery to about $12 billion.

Irving Picard, the trustee, said Lagoon Investment Ltd agreed to repay $240.7 million from an account through which Hermes International Fund Ltd invested with Madoff, while Thema Fund Ltd and an affiliate agreed to repay $130.1 million.

Picard announced the settlements with British Virgin Islands-based Lagoon and Bermuda-based Thema one day after revealing more than $23 million of settlements with the estates of Madoff’s late sons Andrew and Mark, and entities affiliated with the Madoff family.

We visited Bernie Madoff in prison. Madoff, a renowned stockbroker turned fraudster, lives in FCI Butner, a medium-security federal correctional institution in North Carolina. Madoff is serving a 150-year prison sentence for orchestrating the biggest Ponzi scheme in history.

Madoff told us: In hindsight, when I look back, it wasn’t as if I couldn’t have said no. It wasn’t like I was being blackmailed into doing something, or that I was afraid of getting caught doing it. I, sort of, you know, I sort of rationalized that what I was doing was OK, that it wasn’t going to hurt anybody.

Madoff exhibits several all-too-familiar cognitive biases, psychological tendencies that can lead to irrational behavior. We hear Madoff describe a multitude of common biases. They’re amplified—biases on steroids, in Madoff’s case. But they’re biases that we all have, that we all experience.

Ambition: Madoff describes his ambition, which is something that every person aspiring to be successful in business—can relate to.

Overconfidence: “I built my confidence up to a level where I…felt that…there was nothing that…I couldn’t attain,” Madoff told us. The “slippery slope” that enables a small transgression to grow into a bigger one: “I started to go off the tracks, and I was able to convince myself that this was, you know, a temporary situation,” Madoff said.

Lack of self-control: “I…probably…just didn’t give it enough thought or wasn’t frightened enough…to say to myself, I can’t, you know, I can’t do this, I can’t take the risk,” Madoff told us.

Rationalization of iffy decisions: The piece that’s most humbling in the recording is the realization of rationalization. Madoff recognizes now that it was all rationalization.

Once our readers recognize that this is a smart guy, and he didn’t need to do what he did, but he still did it anyway, there is a degree of humility in the venitism blog. Madoff is an extreme case in many ways, but in other ways, he is just someone who fell prey to biases and the tendency to rationalize.

It’s especially important for budding entrepreneurs to appreciate the link between Madoff’s ambition and his slippery slope to infamy. While Madoff possesses an extraordinary lack of empathy for his victims, he didn’t explicitly set out to commit the crime of the century.

Madoff is respected in prison because it looks like he was the mastermind of this extraordinary plan. But to say that he sat down and planned a two-decade, multibillion-dollar Ponzi scheme, that’s giving him too much credit as an individual financier, or even as a sinister deviant. He couldn’t have planned such a long-running and extraordinarily devastating fraud in advance even if he tried.

Madoff was once best known for pioneering the controversial but legal practice of payment for order flow, in which he would pay brokerage firms a couple of cents per share to send orders through his firm. This made him popular among investors, who previously had to pay brokers for the service of buying shares; now Madoff had turned the practice upside down and was paying them to trade.

That innovation diverted trading away from the New York Stock Exchange floor, and by the early 1990s, Madoff’s firm was handling upwards of 10 percent of all NYSE-listed stock trading. Outside his brokerage business though, in his growing investment management practice, Madoff started to feel greater strain in generating profits.

He began naked shorting to clients. Another controversial but legal practice, this involved short-selling a stock without first borrowing the security, and then acquiring the security after the sale. But then he started conducting short sales without putting them on the books, which is illegal. Eventually he stopped trading altogether, once he realized he couldn’t generate the profits he continued to promise his investors. A few steps down the slippery slope later, he was running a Ponzi scheme.

“It’s like a comedy of errors,” Madoff told us. “I allowed myself—and I really have to say ‘allowed,’ since no one put a gun to my head—to keep taking in more money. I kept on waiting for the environment to change and of course it never did. It turned into a total fiasco.”

It’s a mundane series of errors, one leading to another, which grew into something of remarkable proportions. Even as famous white-collar criminals go, Madoff is an outlier, both in the size of his crime and in its longevity. But it’s important to appreciate the slippery slope of small crimes often becoming bigger ones, especially in today’s entrepreneurial culture, which tends to accept and even glorify bending the law a little.

Within entrepreneurial cultures, there’s often a feeling that it’s OK to ignore or bend some regulation. Sometimes regulations are legitimately outdated or potentially too restrictive to let innovation flourish. But the challenge for entrepreneurs is that the line between appropriate and illicit is often quite murky.

Case in point, the ride-hailing company Uber, which is thriving in spite of pushing legal boundaries—and fighting its case in court—in cities all over the world. In some places Uber is hailed as a brilliant company, and in other places its executives are convicted criminals. Many well-respected entrepreneurs, from Michael Dell to Steve Jobs, have faced their own allegations of wrongdoing, but still managed to build remarkable enterprises. At the same time, many white-collar criminals also break rules in the process of believing they are on the cusp of doing something great. Navigating the fine line of which regulations might be legitimately broken and which cannot is sometimes difficult. But understanding this distinction is critical for entrepreneurs who want to operate on the most innovative frontiers of business. Entrepreneurs who are trying hard to make their mark often need to be aggressive. This sometimes leads to successful businesses like Uber or Airbnb, and other times it leads to terrible failures like Enron.

Lagoon and Thema were among many feeder funds that sent customers’ money, often without their knowledge, to Bernard L. Madoff Investment Securities LLC.

Picard said the recovered sums represent money withdrawn in the six years before Madoff’s fraud was uncovered in December 2008.

Like many other former Madoff customers that settled with Picard, Lagoon and Thema will be entitled to share in distributions from the Madoff firm’s liquidation.

Picard had previously recovered more than $11.6 billion for Madoff customers who he estimates lost $17.5 billion.

The trustee and Baker & Hostetler have been awarded more than $889 million of compensation for their work on Madoff matters through Nov. 30, 2016, according to an order signed by U.S. Bankruptcy Judge Stuart Bernstein, who oversees the process.

A hearing to consider approving the settlements with Lagoon, Thema and the Madoff sons’ estates has been set for July 26.

Andrew Madoff died of cancer in September 2014 and Mark Madoff committed suicide in December 2010. Bernard Madoff, 79, is serving a 150-year prison term.

The case is Securities Investor Protection Corp v. Bernard L. Madoff Investment Securities LLC in the same court, No. 08-01789.

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