Phyllis Molchatsky lost millions investing with Bernard Madoff and, like many other victims, has few options for getting that money back. But her attorney sees hope in a 1955 court case.
For Phyllis Molchatsky, investing with Bernard Madoff wasn't a way to get rich. It was a plan to keep Parkinson's disease from stealing her life.
In 2001, Molchatsky was diagnosed with the degenerative nerve disorder. Doctors told her she needed to quit her job as an office manager, she says. Molchatsky was not yet 55.
Though she had saved nearly $2 million, she wanted assurance that she would have enough to care for herself and have a family. She turned to her broker for help. He showed her a fund that was invested with Madoff.
"I wanted someone who was a little bit more conservative, someone who could let me sleep at night," Molchatsky said.
Molchatsky's investment, which eventually soared to $3.8 million, according to reports from her broker, is now gone. She worries she will someday become a financial burden to her adopted son and her partner, and expects to have to sell her suburban New York home. "It was all my money," Molchatsky said. "I wanted my son to have a better life than I had."
Molchatsky, like many Madoff victims, is desperately trying to recover her losses. But with Madoff insolvent, victims are finding few avenues for restitution. Bankruptcy courts and other entities, some of which provide relief to investors in bankrupt brokerages, will likely have insufficient funds to cover what the Securities and Exchange Commission said could be more than $50 billion in losses.
As a result, many victims are turning against those believed to have willingly, or unwittingly, perpetuated Madoff's alleged fraud by endorsing his business. That includes the investment firms that entrusted Madoff with clients' money, their auditors, even the federal government.
Taking on Wall Street's top cop
On Dec. 23, Molchatsky filed an administrative claim against the SEC, a preliminary step for any lawsuit against a government entity. The claim alleges the SEC was negligent in failing to uncover what may prove to have been the largest Ponzi scheme in history.
"We feel that this was a classic case of negligence by the SEC," said Howard Elisofon, a New York attorney who is suing the SEC on Molchatsky's behalf.
The SEC declined to comment for this story.
Fighting the government will be no easy task. But Molchatsky, like most Madoff investors and financial fraud victims, has few places to turn.
Investors can't go after Madoff. The government has seized his few remaining assets in hopes of dividing them among his investors -- in the event he is convicted. If Madoff is found guilty, it could take years for the government to secure and sell his assets, then determine how to distribute the proceeds, let alone cut checks. Even then, Madoff's remaining millions would likely be little consolation to investors who, collectively, are believed to have lost tens of billions.
The FBI classifies Ponzi schemes -- in which investors are paid "dividends" from money provided by new investors rather than from a business's profits -- as among the most common investment scams. Since Madoff's December arrest, the U.S. Department of Justice has charged at least half a dozen more people with operating multimillion-dollar Ponzi schemes.
In most cases, there's little left for investors once a scheme crumbles.
"The reality is that many, many times the person who has defrauded you has squandered your money," said one federal law enforcement official who asked not to be identified. "They have spent it on things that we cannot recoup, things such as expensive meals, fancy vacations, things that have no value whatsoever."
Tip: How to deduct Madoff losses
'Very little recourse'
Another avenue for restitution is the Securities Investor Protection Corp., or SIPC. The nonprofit, which is funded by its broker-dealer members, provides some relief for investors in failed brokerage firms that still owe their customers cash, stocks or bonds. The SIPC promises to reimburse individual investors in bankrupt member brokerages up to $500,000.
"Although not every investor is protected by SIPC, no fewer than 99 percent of persons who are eligible get their investments back from SIPC," it boasts on its Web site.
Though investors can seek up to $500,000, the amount typically received varies. Investors can seek only their principals -- not believed profits or the interest they would have earned had they, instead, kept their money in a savings account. In cases in which an investor had withdrawn more in "dividends" than the amount initially invested, an SIPC claim could result in a "clawback," through which investors who lost money would seek funds from those who, unwittingly, had profited from the scam.
The scale of Madoff's case would make it difficult for the SIPC to pay out much to victims. Though the SIPC has mailed out claim forms to more than 8,000 Madoff investors, it doesn't have enough to pay them all. According to the SIPC's Web site, the nonprofit has about $1 billion in assets and could borrow $1 billion more from the SEC. That's barely enough to cover the reported losses of a dozen or so prominent funds that had invested with Madoff.
The SIPC is also offering reimbursements only to those who invested directly with Madoff's broker-dealer arm. An investor such as Molchatsky, who put her money in a fund that ultimately invested in Madoff's brokerage, is not eligible. And though intermediaries can apply and then redistribute any funds received to all affected clients, the amount eventually received by individuals is unlikely to provide much relief.
"The people who have invested in Madoff have very little recourse other than to turn to people who helped him carry out his scheme," said Reed Kathrein, a partner in Seattle law firm Hagens Berman Sobol Shapiro. Kathrein's firm has filed a class-action suit against several so-called feeder funds or funds of funds that had placed money on behalf of their investors with Madoff. The suit includes Tremont Group and its owner, Oppenheimer Funds.
Unlike Madoff's bankrupt firm, many of the funds that invested in him still have significant assets. But proving that investors are entitled to that money is no simple task. Many investment firms are set up as limited-liability corporations, which prevents investors who lose money in one fund from seeking compensation from other funds controlled by the same firm.
A paucity of scrutiny?
Investors also face hurdles in proving that such firms are liable. Under U.S. securities laws, plaintiffs must show that the brokers, hedge funds or money managers actively urged investors to do something that was not in their best interest, Kathrein said. "Congress has made it difficult in the past few years to get people who are aiders and abettors," he said.
Kathrein and other lawyers hope they will have a strong argument under state fiduciary-duty laws. They plan to argue that executives of the funds that invested in Madoff, and their auditors, violated those laws by failing to provide sufficient care in vetting Madoff before investing client funds.
"Our view is that this was a total breakdown in the due-diligence process," said Gregory M. Nespole, a New York attorney who is pursuing a class-action suit against Andover and Beacon funds, which lost money in Madoff's alleged Ponzi scheme. "When I entrusted my money to a money manager, it is my understanding that money was going to be carefully invested and that the places where it was going were going to be investigated."
The funds are not admitting any mistakes. Their lawyers will argue that Madoff simply hid his fraud too well. They will likely point to the sheer number of investment professionals and savvy, high-net-worth individuals allegedly defrauded as evidence that standard checks could not uncover fraud. Even the SEC, after all, didn't figure it out until someone from Madoff's firm, reportedly one of his sons, came forward.
"Like the tens of thousands of investors swindled by Bernard Madoff, the Andover and Beacon funds are shocked by the circumstances and unprecedented scope of the Madoff situation," the funds' managers said in a statement e-mailed by a spokesman. "The funds are exploring their legal remedies in an effort to recover the losses caused by Madoff's conduct."
Tremont issued a similar statement. "Tremont believes these claims are wholly without merit and will vigorously defend itself while continuing to maintain a focus on efforts to pursue avenues for recovery that may be available to its funds and investors," spokesman Montieth Illingworth said.
The SEC's dimmed lighthouse
Unlike the funds, the government has admitted missteps. In a Dec. 16 statement, then-SEC Chairman Christopher Cox expressed regret that the agency had not looked more deeply into Madoff's activities. He said that "credible and specific allegations regarding Mr. Madoff's financial wrongdoing, going back to at least 1999, were repeatedly brought to the attention of the SEC staff." However, the SEC never requested a formal investigation.
"A consequence of the failure . . . is that subpoena power was not used to obtain information, but rather the staff relied upon information voluntarily produced by Mr. Madoff and his firm," Cox said.
That's one reason Molchatsky and her lawyer are taking on the government.
"It is quite admirable for Chairman Cox to stand up to the plate and actually make public statements that there was credible evidence. . . . It's very admirable, but it is also very telling," said Elisofon, Molchatsky's attorney. "That will go a long way to proving liability."
Molchatsky knew Elisofon through a mutual friend. After learning about Madoff's alleged scheme, she reached out in hopes of finding some way to get back her money. She was still in shock. She wanted to know how Madoff could have perpetrated such a large fraud without a long history of violations and fines.
Madoff's record appeared unassailable. Though Molchatsky didn't know that Madoff was a former head of the Nasdaq or considered an electronic trading guru, the past performance of the American Masters Broad Market Fund, which invested in Madoff's brokerage, was impeccable. It never rose as high as competing funds during market rallies, but it never lost significantly when the market was down, said Molchatsky.
"I would not have given a penny . . . if there was the slightest blip on the radar," Molchatsky said. She blamed the SEC.
Elisofon's initial reaction was to push another option, he said. He didn't believe he could sue "king and country." Though Molchatsky could ultimately receive some restitution from a successful class-action suit against the third parties that invested in Madoff -- since she invested through an intermediary -- she and her law firm opted not to sue those who gave money to Madoff. Even if one of these lawsuits by another firm is successful, the sheer number of investors eligible for restitution makes it unlikely that Molchatsky would receive much of her investment back.
Eventually, Elisofon decided that Molchatsky's best option was to sue the government under the Federal Tort Claims Act. After all, while feeder funds could try to claim they were blameless victims, the government had admitted mistakes, Elisofon said.
Elisofon likened the case to a 1955 court decision in which the government was successfully sued for failing to maintain a lighthouse. In the case, Indian Towing Co. v. the United States, the company was awarded damages after its barge ran aground on an island where the Coast Guard had a lighthouse. The light, at the time, was broken.
"They (the SEC) left the light out in the lighthouse," Elisofon said. "We feel ultimately that we can prevail on that."
The government has six months to respond to the administrative claim. If it denies Molchatsky's claim for restitution or ignores it, Elisofon can proceed with a lawsuit. He expects that could take years.
In the meantime, Molchatsky will likely have to sell her home and uproot her family. And, though Elisofon is hopeful the government could take other steps, such as creating a fund for the victims or giving the SIPC more money and a broader mandate for compensation, Molchatsky knows she faces a long struggle to get her life back.
"My future," she said, voice breaking, "the only thing that remains the same for my future is the love I have for my son. . . . Everything else is upside down."
Produced by Darragh Worland/Graphics by Joe Farro