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Recent SEC Releases

Jury Holds Ernst & Young Liable For Madoff Losses

A Washington jury has found accounting firm Ernst & Young ("E&Y") liable for at least $10 million of losses suffered by a Washington investment company that invested in Bernard Madoff's infamous Ponzi scheme through a "feeder fund" audited by the firm.  FutureSelect Portfolio Management ("FutureSelect"), a Washington-based financial firm, obtained a total verdict of $20 million resulting from what it alleged were more than $129 million in losses suffered from its exposure to Madoff's scheme through a Madoff feeder fund, Tremont Partners.  The verdict is significant not only because of the large amount of damages but also because such verdicts have been relatively rare against accounting or auditing firms in Ponzi scheme litigation.  It is expected that E&Y will appeal the verdict.


FutureSelect managed several investment funds, and was approached by a representative of Tremont in 1997 regarding an investment in the Rye Funds.  Tremont served as the general partner of the Rye Funds, which was one of the prime feeder funds that funneled investor funds into Bernard L. Madoff Investment Securities ("BLMIS").  During those discussions, FutureSelect was told it was being given a "rare, and potentially fleeting" opportunity to invest with Madoff and was provided with audit opinions from auditing firm Goldstein Golub Kessler.  Based on these opinions and representations from Tremont about its oversight and constant monitoring of MadoffFutureSelect invested nearly $200 million in the Rye Funds from 1998 to 2007.  E&Y audited several funds comprising the Rye Funds from 2000 to 2003, and also conducted "surprise" audits of Tremont from 2000 to 2008.  In 2008, Madoff's fraud came to light and estimated victim losses were pegged at nearly $20 billion.  FutureSelect's net loss was estimated at nearly $130 million.

Tremont reached a $1 billion settlement with Irving Picard, the bankruptcy trustee appointed to liquidate BLMIS, who had accused the firm of ignoring red flags associated with Madoff.  The settlement allowed claims asserted by several Tremont funds to proceed in the bankruptcy proceeding, providing an avenue for those funds to compensate their investors who were excluded from Picard's claim proceeding due to their status as "indirect" investors.  Claimants with allowed losses in the Madoff bankruptcy have recovered over 50% of their losses to date and are expected to recover most, if not all, of their losses when the bankruptcy proceeding concludes.  However, FutureSelect opted out of the settlement with the intent of pursuing other parties for its losses.  

FutureSelect filed the suit against E&Y, Goldstein, and others in 2010, asserting negligence claims and violations of Washington's State Securities Act.  A trial court dismissed the complaint, but an appeals court subsequently reinstated the suit in 2014.  FutureSelect settled its claims against Goldstein and was compelled to arbitrate its claims against another firm, KPMG, so E&Y was the only defendant left standing to face trial.

The Trial

Trial began in mid-October, with E&Y pinning its defense on the claim that it had done its job and that it was only one of many who failed to detect Madoff's fraud.  E&Y defended its actions, saying it had "scrupulously" followed generally accepted accounting principles in auditing one of the many funds that had used Madoff as its investment adviser.  Lawyers for FutureSelect scoffed at these claims, claiming that E&Y had simply relied and signed off on audits performed by a little-known firm, Friehling & Horowitz ("Friehling").  (editor's note: David Friehling, the principal of that firm, was referred to by Madoff as the "dumb auditor" and was the first to be charged criminally for his role in auditing Madoff's books.  He ultimately received a sentence of probation.)  

FutureSelect argued that E&Y blindly accepted and relied on Friehling's audits of BLMIS and that a simple review would have demonstrated that the firm's purported assets did not exist.  Indeed, if E&Y would have looked into Friehling, it would have discovered that the nondescript firm was not peer reviewed and was in violation of industry standards.  E&Y countered that the accusations were "all based on hindsight" andthat "no audit of a Madoff-advised fund could have detected this Ponzi scheme." 

FutureSelect ultimately sought approximately $200 million from E&Y.  The jury deliberated several days after closing arguments earlier this week and ultimately returned a verdict with mixed findings on the WSSA counts but finding against E&Y on the negligent misrepresentation claims.  The jury awarded damages of $20.3 million, with E&Y liable on half that amount.  Lawyers for FutureSelect estimate that E&Y could be on the hook for nearly $25 million when factoring in prejudgment interest.  

Rare Recovery

While rare, recoveries from  accounting firms for their role in failing to detect Ponzi schemes are on the rise.  Many liken the firms as gatekeepers between investors and fraud-feasors and argue that they should be held accountable along with other gatekeepers such as lawyers.  While the recovery against E&Y is noteworthy because it represents a jury finding against an auditing firm, the recovery is not unprecedented in Ponzi-related litigation against auditors.  A Florida CPA firm paid $3.5 million in 2007 to resolve claims of inadequate auditing relating to its work for a massive insurance Ponzi scheme. Another Florida-based accounting firm, Kaufman Rossinpaid nearly $10 million in 2010 to settle claims (without admitting liability) brought regarding the firm's work surrounding the Thomas Petters Ponzi scheme.  An Indiana firm, DeWitt & Schraderpaid $1.8 million last year over its accounting work for a $9 million Ponzi scheme.  And BDO USA LLP paid $40 million earlier this year to settle claims for its auditing of several entities connected to the massive Ponzi scheme masterminded by Allen Stanford.  


Madoff: Coming Soon To A Television Near You

Nearly seven years after his arrest on a cold December morning in 2008, the Madoff name has achieved a level of contempt usually reserved for violent killers and depraved criminals.  This is not particulary surprising, considering that the man masterminded the largest Ponzi scheme in history and directly disrupted the lives of thousands and thousands of victims who blindly trusted the Wall Street veteran to manage their wealth. Yet Madoff, unlike the vast majority of his brethren currently serving sentences for the same namesake crime, has not receded into darkness.  Rather, Madoff's current profile is arguably larger than ever - a situation the deeply-private Madoff very likely would have eschewed before his arrest - and the future is even brighter as the conman's story is set to play out in several high-profile television projects.

Madoff's arrest in December 2008 sent shockwaves worldwide and gave the first glimpse at just how extensive the scheme was.  His victim list read as a "Who's Who" of finance, sports, and entertainment circles, and a Spanish law firm estimated that there could be as many as 3 million direct and indirect victims worldwide.  A court-appointed bankruptcy trustee ultimately allowed approximately 2,500 claims out of nearly 17,000 claims received, rejecting the majority due to the indirect nature of their association with Madoff.  Through Madoff's membership in an industry-funded group and the efforts of the court-appointed trustee, it is likely that victims with approved claims will likely recoup most or all of their losses.

As the owner of Bernard L. Madoff Investment Securities, Madoff was intensely private.  While his reputation grew following several high-profile stints with regulatory agencies, including as non-executive chairman of the NASDAQ stock market, Madoff increasingly shunned taking new investors into his exclusive club.  Ironically, many were rebuffed and could never get Madoff to take their money.  Yet despite the size of his firm, which would have ranked him among the top money managers, Madoff enjoyed a life of relative secrecy outside of his devotion to his charitable causes.

Yet while many assumed that Madoff (and the resulting media coverage) would simply fade away with the passage of time, various factors ensured that Madoff remained a consistent news topic.  One was trustee Irving Picard's efforts to collect assets to be distributed to Madoff's victims, including largely-unsuccessful suits against big banks, largely successful suits to recover "false profits" from Madoff's more fortunate investors, and efforts to recoup the riches paid to the Madoff family.  Madoff himself also played a role, as he began to communicate with various journalists intermittently that invariably saw wide coverage.  Whether it was a Christmas letter decrying the pervasiveness of insider trading, an email touting his sons' innocence, or an email that his fraud wasn't so bad, Madoff remained a topic of conversation.

In addition to the constant news coverage, the sheer reach of Madoff's fraud has also inspired other more lasting works.  A 2010 play by playwright Deb Margolin called "Imaging Madoff" was well-received for its depiction of a fictional conversation between Madoff and an unfortunate victim.  At least thirteen books have been written about the scandal, including the well-reviewed book by veteran New York Times reporter Diana B. Henriques that featured the first in-person interview granted by Madoff.

Recently, both ABC and HBO announced plans to develop projects chronicling Madoff's rise and fall.  ABC has commissioned a two-part miniseries starring Richard Dreyfuss and Blythe Danner playing the role of the conman and his wife.  The series is based on The Madoff Chronices, written by Brian Ross, and will focus on Madoff's scheme and the impact and role of his family. 

Meanwhile, HBO has been at work at a film version based in part on Diana Henriques' Madoff book, with an impressive cast that includes Robert De Niro playing Madoff, Michaelle Pfeiffer cast as Ruth Madoff, and Hank Azaria as Madoff right-hand man Frank DiPasquali.  Henriques even lands a role as herself.  The film is being directed by Barry Levinson, who is perhaps best known for his Oscar-winning directing of Rain Man.  It appears that ABC's mini-series will be the first-to-tv, as ABC has scheduled the project to air on February 3 and 4, 2016.  While HBO has been mum on a release date, the film is expected to be released sometime in 2016.  The film will be released solely on HBO and will not be in theaters.

Madoff is not scheduled to be released until November 14, 2139.



Ex-Lawyer Accused Of $3.4 Million Ponzi Scheme

A disbarred lawyer was arrested in New York and charged with operating a Ponzi scheme that duped his victims out of at least $3 million.  James A. MacCallum was arrested after a federal grand jury returned an indictment charging him with mail fraud.  MacCallum was arraigned last week and released on bond, though Magistrate Judge Jeremiah J. McCarthy warned MacCallum against any attempt to flee to his native Canada.  If convicted, MacCallum could face up to twenty years in prison for each mail fraud count.

According to authorities, MacCallum devised a scheme while he was a practicing attorney to solicit investors with the promise of outsized returns that resulted from real estate and life insurance policies.  Through Andrew Mitchell Holdings, LLC ("AMH"), a company that he controlled, MacCallum issued promissory notes to investors bearing annual interest rates of at least 15%.  MacCallum allegedly encouraged potential investors to liquidate other investments so that they could invest with him.  In total, MacCallum raised over $3.4 million from investors.  However, prosecutors allege that MacCallum was running a classic Ponzi scheme in which he used new investor funds to pay fictitious returns to existing investors.  In addition, MacCallum is accused of misappropriating investor funds for his own personal use, including personal travel and office expenses.

MacCallum also entered into a settlement agreement with the New Brunswick Securities Commission ("NBSC") in February 2013 relating to the same allegations.  A settlement agreement evidencing that settlement includes a section indicating that:

MacCallum is remorseful of his inability to repay the investments and the resulting losses to the investors. This has had an extremely detrimental effect on his family relations and his financial well-being. MacCallum is presently insolvent, and has been suspended from the practice of law in the State of New York as a result of his capital raising activities. 

At his first appearance last week, a federal prosecutor warned that the estimated $3.4 million loss was preliminary and could ultimately be much higher.  


Accused Ponzi Schemer Solicits Victims To Fund Private Defense

A Michigan man accused of operating a $1.5 million Ponzi scheme - which collapsed when he told victims that his account had been "hacked" - has been permitted to retain private counsel in lieu of continuing with his public defender using funds he had solicited in "donations" from friends that included several victims of the alleged scheme for which he faces charges.  Jerry Stauffer, 66, was charged earlier this year by civil and criminal authorities with operating a $1.5 million Ponzi scheme that promised substantial profits from purported foreign currency trading.  In addition to charges from the Commodity Futures Trading Commission alleging violations of the Currency Exchange Act, Stauffer was also indicted on wire fraud and money laundering charges.   Stauffer has maintained his innocence.

The Alleged Scheme

According to authorities, Stauffer operated solicited potential investors beginning in 2009 by promising that he would use his foreign currency ("forex") trading expertise to generate significant returns of up to 10% monthly.  Stauffer told potential investors that he was a highly successful forex trader, that he taught forex trading classes, and that he would conduct his forex trading at commodity broker Interactive Brokers.  Stauffer also showed at least one investor past performance charts which were allegedly characteristic of the returns he promised.  Based on these and other promises, Stauffer raised at least $1.5 million from victims.

However, authorities alleged that Stauffer was not the savvy trader he held himself out to be.  According to the CFTC, Stauffer conducted minimal forex trading and ultimately incurred approximately $50,000 in trading losses.  Despite conducting little trading, Stauffer made Ponzi payments to victims of approximately $1.2 million representing both returns of principal and the returns he had promised.  However, in August 2013, Stauffer contacted his investors and claimed that his Interactive Brokers account had been hacked and that he had incurred significant losses as a result.  In support, Stauffer provided a July 2013 account statement showing nearly $700,000 in purported losses.  Stauffer told investors that he had contacted Interactive Brokers and been informed that the attack had occurred through his computer.  Investors were also told that Stauffer hired a company called Cyber Investigation Services to look into the attack.  According to the CFTC, this was all false.

Switching Counsel

In September, Stauffer sought court approval to hire private defense counsel in the place of his then-current public defender.  While Stauffer was subject to an asset freeze order, he disclosed that he planned to fund his requested private counsel with more than $20,000 he had raised in donations through an email campaign to his "friends."  However, further inquiry by the court revealed that at least four of those donors were, in fact, victims of Stauffer's alleged fraud who declared they were "firmly aligned" with Stauffer.  Indeed, the government - which ultimately did not take any position with regard to Stauffer's request - revealed that these victims had actively resisted speaking with the government and had gone so far as to conceal their location to prevent the government from contacting them.  

The court noted that a number of risks were presented in the unusual scenario where Stauffer's donors were also likely to be called as a witness, including the potential that Stauffer's counsel might "want to avoid questions suggesting that the donor witnesses themselves engaged in reckless or even potentially criminal wrongdoing."  However, the court reasoned, these were risks that could - and would - be waived by Stauffer after full disclosure.  Ultimately, in an order entered last week, the court sided with Stauffer and ruled that:

The Court is satisfied that there is good cause for the substitution; that the risk of conflict--though real--is not disqualifying; and that the risk of other distortion of the trial process can be managed through full disclosure of funding solicitations and sources, which defendant has agreed to provide. The defendant has been fully apprised of his rights and the risks, and has unequivocally recited his desire to proceed with prospective retained counsel, and his willingness to provide full disclosure to the government of his solicitations for funds, and the source of all funds provided for his defense.

A copy of the Order is below.


Motion Substitition



Criminal Charges Filed Against Co-Founder Of "Triple Algorithm" Ponzi Scheme

North Carolina prosecutors have filed criminal charges against a Michigan man accused of masterminding a massive Ponzi scheme that duped over 10,000 victims out of at least $7 million by telling them he could deliver outlandish returns exceeding 700%.  Troy Barnes, 53, was charged with one count of wire fraud conspiracy and three counts of wire fraud in an indictment unsealed today.  The charges come after Barnes' accused co-conspirator in the scheme, Kristine Louis Johnson, was indicted earlier this summer and is currently awaiting sentencing after pleading guilty.

Johnson and Barnes operated Work With Troy Barnes Inc. ("WWTB"), which was subsequently rebranded as "The Achieve Community" ("Achieve") in April 2014.  Johnson served as CFO of WWTB and Achieve and was responsible for day-to-day activities.  Achieve solicited investors to purchase "positions" costing $50 each that in turn promised a pay-out of $400 per position in the subsequent three-to-six month period - a return of 700% and an annualized return exceeding 1000%. In a short video on Achieve's website, Johnson touted Achieve as a "lifetime income plan," and explained:

How are we a lifetime income plan? It’s simple. Every $50 position you purchase, you make $400. With two positions, you make $800. With five positions, you make $2,000. Want to go bigger? With twenty positions, you make $8,000. With one hundred positions, you make $40,000. This is limitless.

Barnes made similar claims, narrating a different Achieve video claiming that Achieve “will teach you how to take $50 and turn it into thousands of dollars, and that’s a fact.”  Investors that questioned Achieve's ability to pay such exorbitant returns were assured that Achieve utilized a "triple algorithm" and "matrix" created by Johnson and Barnes.  Johnson attempted to explain the "3-D matrix" as follows:

I thought, what can I do, what can I make, what can I design, that has only what works and none of what doesn’t, and one day, honestly this is what happened, I just saw it. I just saw it in my head. This matrix is 3D, which is why we can’t put it on paper. It’s a triple algorithm. And I can’t for the life of me tell you why I could figure that out in my head. But I could.

Investors were encouraged to re-invest their returns, with Barnes assuring investors that such a strategy would make it "very easy to make six figures."  In total, Achieve took in at least $6.8 million from investors.

However, despite its claims that it was "not a pyramid scheme," both civil and criminal authorities alleged that Achieve was a pure Ponzi and pyramid scheme.  For example, Achieve's sole source of revenue allegedly originated from investor contributions.  Nor were any profits derived from legitimate business activities; rather, Achieve used funds contributed from new investors to make principal and interest payments to existing investors.  Johnson admitted to taking more than $200,000 in investor funds for her own personal use.  

Barnes' indictment marks a final chapter in authorities' investigation of the alleged Ponzi scheme, as some had speculated that Barnes may have avoided criminal prosecution given that he was not indicted along with Johnson back in June 2015.    

The indictment is below.  Special thanks to Don at ASDUpdates.

Indictment (2)