An asset management subsidiary of BNY Mellon has agreed to pay $210 million to settle claims that it advised clients to invest in Bernard Madoff's massive Ponzi scheme despite suspecting Madoff of fraud. Over the course of a ten-year period, Ivy Asset Management, LLC ("Ivy") received nearly $40 million in fees in return for conducting due diligence on Madoff. The settlement with IAM represents the conclusion of multiple lawsuits brought by the New York Attorney General (the "NYAG"), the U.S. Department of Labor, and private plaintiffs. Despite IAM employees voicing "deep" reservations about Madoff's operations, investors were given positive recommendations, with the only concern voiced relating to the difficulty of managing the enormous asset pool purportedly managed by Madoff. Per its terms, the settlement applies only those investors who invested in "feeder funds" that funneled investor monies into Madoff's scheme.
In 2010, the New York Attorney General filed a lawsuit charging IAM with violations of the Martin Act for fraudulent conduct in connection with the sale of securities, as well as fraud in the conduct of business and breach of fiduciary duty. The suit sought damages, payment of restitution, and disgorgement of all fees received by Ivy. Private investors also filed suit against IAM alleging similar claims.
The charges focused on the level of due diligence IAM purported to conduct on behalf of its clients. During the course of this due diligence, authorities alleged that Ivy discovered Madoff was not investing funds as promised. While Madoff's advertised trading strategy featured the purchase and sale of enormous amounts of options, Ivy's investigation revealed that the actual option trading volume fell far short of what would be required. When Madoff was pressed as to this discrepancy, he provided IAM executives with "three vastly different explanations" that failed to allay concerns. Indeed, according to internal IAM documents, one executive piped:
Ah, Madoff, you omitted one possibility – he’s a fraud!
Yet, despite the inconsistent explanations given by Madoff and misgivings by executives, IAM failed to disclose any of these suspicions to investors in an effort to prevent the steady stream of lucrative fees. As a result, IAM's clients, which included individual investors as well as New York union pension and welfare plans, ultimately lost approximately $236 million when Madoff's fraud was uncovered in December 2008.
The settlement sheds light on the "feeder fund" investors, who to date have not been recognized as victims entitled to participate in the Madoff claims process. Irving Picard, the bankruptcy trustee appointed to liquidate Bernard L. Madoff Investment Securities, has made significant strides in marshaling assets and to date has made two distributions to victims. However, Picard's determination that only those who directly invested with Madoff were victims meant that thousands of investors whose Madoff investment was via a feeder fund were not considered victims - and thus not entitled to participate in the claims process.
Indeed, while Picard received 16,519 customer claims, only 2,436 of those claims were "allowed" - with many being denied due to their status as "feeder fund" investors. Under Picard's reasoning, only the feeder fund itself was a victim, with the "loss" suffered by that feeder fund consisting of the cumulative value of investments that fund had with Madoff. Any distributions would thus be made to the feeder fund itself, which would then have the option of making distributions to its investors.
The IAM settlement is welcome news for those investors, which will provide a near-total recovery of their losses. Ironically, while shut out of the Madoff distribution process, these investors now stand to recover nearly triple the amount distributed to Madoff victims. In the press release put out by the New York Attorney General's office, it was estimated that investors were also "expected to receive substantial additional payments at a future date from" Picard. However, any future distribution by Picard would likely not occur until other similar situated victims have received equal distributions.
The settlement also marks the second significant recovery in recent efforts by the office of the New York Attorney General to prosecute those who were involved in the Madoff scandal. Earlier this summer, the NYAG announced that it had reached an agreement with prominent hedge fund manager J. Ezra Merkin to return approximately $400 million to investors in four Merkin funds that lost over $1 billion with Madoff. Picard later objected to that settlement, claiming that it encroached on his exclusive authority to recovery assets for Madoff's victims. According to Picard, if the settlement was approved, it would deprive Merkin of sufficient funds to satsify Picard's pending claims totaling $500 million and leave nothing for the majority of Madoff victims.