The Congressional Bailout of Madoff's Investors 28 comments
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On seekingalpha.com's comments board, I've written that investors who invested directly with Madoff ought to get their original investment back from the SIPC, but nothing more. Feeder fund investors who invested indirectly with Madoff should look to their investment fund for recourse, not the SIPC or taxpayer. The SIPC fund was clearly not intended to reimburse mutual fund or feeder fund investors for bad investment decisions or advice. In any case, I assumed that only member banks and brokerages, not the taxpayer, fund the SIPC. I was wrong.
Most writers praised my earlier article, but a few detractors kept focusing on the SIPC coverage. I got curious about the SIPC and did a little bit of research. Guess what? At the end of the day, the SIPC is funded by American taxpayers. In fact, Congress is about to change the law, increasing the SIPC's borrowing limits and enabling the government to print money to give to the SIPC. No wonder the pro-Madoff-investor camp kept focusing on the SIPC--as long as the SIPC received taxpayer-backed funding, Madoff's direct investors would get paid. I naively thought that only private sector financial institutions were contributing to the SIPC fund. Again, I was wrong.
Some of what you will read below is technical. I did not spend more than half an hour researching the law, but I was able to ascertain a lot of information. It is shocking to me that the NY Times or some other major newspaper did not blow the cover off this scheme in early June 2009, when the House of Representatives drafted a special bill--H. R. 2798--for Madoff's investors.
Also, I cannot find anything online about what interest rate the Secretary of the Treasury is charging SIPC members. That number is key. If the interest rate is reasonably high, American taxpayers may eventually make money from SIPC loans; however, if the interest rate is low, then American taxpayers are basically giving Madoff's investors free money. In short, a low-interest-rate SIPC note is tantamount to American taxpayers acting as financial guarantors for Madoff's unconventional investment strategies and investors who voluntarily chose to invest in non-mainstream products.
First, let's cast aside the idea that most of Madoff's investors are going to be destitute. From the WSJ (Jay Miller, 07/02/09):
A total of $2.97 billion in claims has been allowed, including $2.74 billion that exceed the statutory limit of protection.
$231 million has been set aside for claims from victims of the Ponzi scheme, with another $2.74 billion authorized for potential recoveries.
Yes, Madoff's direct investors will divvy up almost $3 billion. If anyone starts talking about how Madoff's investors were poor widows, give them a three word response--three billion dollars--and a link to this article.
On top of the $3 billion, some of Madoff's investors--including the ones who invested through feeder funds--may come out ahead, courtesy of the American taxpayer. After the CPAs and tax lawyers are done exploiting new tax breaks, many Madoff investors will get credits for much more than their original investments.
These changes may result in windfalls for Madoff investors. For example, let's assume you invested $5,000 with Madoff in 1975 (we're using smaller numbers for simplicity's sake). By 1995, your $5,000 investment has become $25,000. Then, from 1995 to 2008, your account balance increases to $50,000, which allows you to withdraw an average of $5,000 each year for thirteen years. Thus, even if you lose your entire investment in 2009, you've still gained much more than your original investment of $5,000. In addition, you will submit an SIPC claim for the full $50,000, even though your original investment was only $5,000.
Now, let's discuss the SIPC. The SIPC is basically a government-backed institution similar to the FDIC. Like Fannie Mae and Freddie Mac, the SIPC is not technically a government entity, but operates in a murky zone that's not quite "private entity" and not quite "government agency." (For the lawyers out there, the SIPC is codified in Title 15 USC Sections 78aaa. The SIPC fund is codified in Title 15 USC 78ddd.)
Below is a good summary of the SIPC, from SEC v. GUARANTY BOND AND SECURITIES CORP, 496 F.2d 145 (1974):
The Securities Investor Protection Act was enacted in response to the need to protect the customers of securities brokers and dealers which might fail, thereby jeopardizing the cash and securities that customers had left on deposit with the firm. S.I.P.A. accordingly created the Securities Investor Protection Corporation as a 'non-profit corporation,' not designed to 'be an agency or establishment of the United States Government,' but rather to be 'a membership corporation,' consistent with the self-regulatory nature of the securities industry. 15 U.S.C. 78ccc(a). The S.I.P.C.'s role is primarily one of consultation and cooperation with the self-regulatory organizations which remain subject to the federal securities laws and the rules of the S.E.C. By mandating membership in the S.I.P.C. for certain members of the securities industry and by granting the S.I.P.C. general assessment authority over the members in order to establish an S.I.P.C. fund, Congress accomplished its intention that the cost of providing protection to customers under S.I.P.C. was to be borne by the securities industry itself.
But look at footnote 3:
S.I.P.C.’s first responsibility under the Act was to establish a fund which would consist of all amounts received by S.I.P.C. and from which all expenditures would be paid. 15 U.S.C. Sec. 78ddd(c). It the fund should become insufficient for the purposes of the Act, the S.E.C. is authorized, if necessary for the protection of the customers of brokers and dealers and for the maintenance of confidence in the United States securities markets, to issue notes under certain conditions to the Secretary of the Treasury in an amount up to one billion dollars, which then may be lent to S.I.P.C. 15 U.S.C. 78ddd(g).
Take a look at this bill, H. R. 2798, referred to the Committee on Financial Services in June 2009:
(b) Increasing SIPC line of credit with the Department of Treasury.—Section 4(h) of the Securities Investor Protection Act (15 U.S.C. 78ddd(h)) is amended by striking out “$1,000,000,000” and inserting “the lesser of $2,500,000,000 or the target amount of the SIPC Fund specified in the bylaws of SIPC”.
Congress wants to more than double the one billion dollars limit to make sure Madoff's investors will be paid in full. But that's not all. Congress also wants to increase the amount of money that the SIPC can directly pay Madoff's investors, from $250,000 to a whopping $850,000. See section (d) of the proposed bill:
(d) Eligibility for direct payment procedure.—Section 10(a)(4) of the Securities Investor Protection Act (15 U.S.C. 78fff–4(a)(4)) is amended by striking out “$250,000” and inserting “$850,000”.
Another section of the proposed bill increases the amount of cash payable to investors:
Standard maximum cash advance amount. For purposes of this Act, the term ‘standard maximum cash advance amount’ means [an increase from $100,000 to] $250,000, adjusted as provided under subsection (e) after March 31, 2010.
Don't let the March 31, 2010 date fool you--this proposed law will help investors prior to March 31, 2010, i.e. Madoff's investors. The language in subsection (e) refers to an "inflation adjustment" provision that gives the SIPC the discretion to increase the direct payment amount more than $250,000 after March 31, 2010.
It gets even better if you're a rich investor. There's practically no legal limit to the SIPC's power to increase the $250,000 cash advance amount. Two of the three factors allowing the SIPC to increase the amount are unconscionably vague. One talks about "economic conditions" and another refers to "potential problems affecting members of SIPC."
You'd think Congress would help non-rich Americans, who hold most of their money in bank accounts. The FDIC, not the SIPC, insures these bank accounts. Congress did pass similar insurance coverage for normal bank account deposits, but the coverage reverts to the old $100,000 limit in 2014. Here is a paragraph from the FDIC's website:
The standard insurance amount of $250,000 per depositor is in effect through December 31, 2013. On January 1, 2014, the standard insurance amount will return to $100,000 per depositor for all account categories except IRAs and other certain retirement accounts, which will remain at $250,000 per depositor.
In contrast, the proposed SIPC changes have no sunset provision. Rich investors and Madoff's investors should thank House member Michael Arcuri, who represents New York's 24th congressional district, and House member Dan Maffei, who represents New York's 25th congressional district--these two men are the sponsors of HR 2798. They sure have their priorities right, don't they? After all, isn't it Congress' job to pay rich investors for their losses after they voluntarily invest their money with a reclusive financial advisor?
The best part? Although Arcuri's and Maffei's bill is basically a gift to Madoff's investors, it's called "Support Investment Protection for Customers Reform Act of 2009." The second best part? Both Arcuri and Maffei are Democrats. Next time you think there's much difference between Republicans and Democrats, or that Republicans are the party of the rich, just remember these words: "Support Investment Protection for Customers Reform Act of 2009."
Now, who is going to fund all this protection? Well, that’s where it gets confusing. A federal court's website states:
The fund is supported by assessments upon its members. If the fund should become inadequate, the SIPA authorizes borrowing against the U.S. Treasury. An analogy could be made to the role of the Federal Deposit Insurance Corporation in the banking industry.
Then look at 15 USC §78ddd(g) and (h):
In the event that the fund is or may reasonably appear to be insufficient for the purposes of this chapter, the Commission is authorized to make loans to SIPC...The Secretary of the Treasury may reduce the interest rate if he determines such reduction to be in the national interest.
See those words? Secretary of the Treasury? That means the U.S. Treasury, which manages government revenue--otherwise known as the taxes we pay. Have you figured it out yet? Yup, it’s the taxpayers who are going to pay off Madoff's direct investors, because the SIPC doesn't have enough money in the till to make the investors whole. The Treasury may just end up printing money--at a low interest rate--to save Madoff’s direct investors.
I really, really want to know what the interest rate is on these taxpayer-backed SIPC loans. (Where’s the NY Times when you need them?) What’s really funny / tragic is that the SIPC’s members include banks, which are already receiving billions of dollars of taxpayer money. Our government has printed money--to be paid by our children and their children--to give to banks, the SIPC, and Madoff’s investors. You might argue it’s not a giveaway, it’s a loan, but I’m not budging until I see the interest rate charged.
I can’t believe I didn’t see this before. I’m not a securities attorney, so I hadn’t looked at the specific code sections to see how SIPC was funded. (Where are all the articles from securities and tax lawyers? Perhaps they’re too busy figuring out how to make money for Madoff’s investors to do anything for the public interest.)
The way I see it, the American taxpayer has gotten screwed (again), and the rich seem to have a direct line to Congressional lawmakers. Rather than draft legislation that allows the orderly winding down of institutions when complex financial transactions cause multi-party failure, Congress is thinking about how to bail out Madoff's investors. No wonder China unofficially wants a modified reserve currency–our government keeps printing money without rhyme or reason. America’s financial credibility is eroding. Mark my words: unless fiscal discipline makes a comeback, this will end badly.
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This article has 28 comments:
Thank you Gringos!
With currently some, e.g., 100 billion shares traded per month upon the listed exchanges, not incl. derivatives, charging a mere $0.01 per side [buy & sell] per share fee would yield $2 billion per month, or some $24 billion per annum. At the very extreme, if each of the Madoff submitted to SIPC now 15,000 claims were paid the correct inflation adjusted $1.69 million [assuming each account was, at a minimum, valued as such upon their 11/30/2008 statement, adjusted for post 11/30/2008 cash additions & withdrawals], that would amount to $25.35 billion. Furthermore, said fee charge could be continued in order to fund the SIPC indemnification fund for future contingencies, with said funds held in U.S. Treasuries.
Reminds one of AIG's, a private entity, inability to pay on their issued swaps, and we all know how that problem was satisfied.
On Jul 05 11:36 AM OnWallStreetSince1974 wrote:
> You end your story assuming that the taxpayer pays all. This is NOT
> the case. SIPC is authorized to charge a transaction fee for all
> securities transactions in order to raise enough funds to pay back
> their loans, and build up their indemnification fund.
>
> With currently some, e.g., 100 billion shares traded per month upon
> the listed exchanges, not incl. derivatives, charging a mere $0.01
> per side [buy & sell] per share fee would yield $2 billion per
> month, or some $24 billion per annum. At the very extreme, if each
> of the Madoff submitted to SIPC now 15,000 claims were paid the correct
> inflation adjusted $1.69 million [assuming each account was, at a
> minimum, valued as such upon their 11/30/2008 statement, adjusted
> for post 11/30/2008 cash additions & withdrawals], that would
> amount to $25.35 billion. Furthermore, said fee charge could be continued
> in order to fund the SIPC indemnification fund for future contingencies,
> with said funds held in U.S. Treasuries.
www.financialpost.com/...
Diane Francis suggests Madoff may have originally set up his 'fund' as a money laundering device and only later came to take on more legitimate investors. The short piece is worth a read.
I think you miss at least part of the point. A 3X plus times increase adjustment to raise a SIPC payout that is, at $250k, higher than the average American's net assets, much less their investable assets, it not reasonable.
The most likely beneficiary of this as a percentage is New York investors, which should come as no surprise given the influence that state's Representatives have on committee...
logicalthought: I understand your point; however, insurance coverage is a non-moral issue. If you have an insurance policy and some event triggers the policy, whoever issued the policy should pay. Here, the taxpayer may become the insurer because the banks and other SIPC members failed to properly fund the SIPC. SIPC members only had to pay $150 per year into the SIPC fund. (That's not a typo--it really is only $150.) The proposed new law only increases the amount to $1,000. Why not increase the minimum annual assessment to $5,000 or $10,000 per year until the SIPC fund reaches a reasonable amount?
The only part of the proposed bill I like is section (d), which creates civil and criminal penalties for misrepresenting SIPC membership or protection. However, even this part is watered down, because the penalties are too low. The maximum financial penalty is only $250,000 and the maximum prison term is five years--hardly enough to faze a future Madoff. You almost have to wonder if white collar criminals have a PAC or group of lobbyists.
This is ridiculous. They should be reimbursing principal, not principal and promised investment returns.
Bailing out Madoff investors is ridiculous. While some Madoff investors were modest every-day americans who lost all, the vast majority of Madoff investors were super-wealthy.
On Jul 05 11:36 AM OnWallStreetSince1974 wrote:
> You end your story assuming that the taxpayer pays all. This is NOT
> the case. SIPC is authorized to charge a transaction fee for all
> securities transactions in order to raise enough funds to pay back
> their loans, and build up their indemnification fund.
>
> With currently some, e.g., 100 billion shares traded per month upon
> the listed exchanges, not incl. derivatives, charging a mere $0.01
> per side [buy & sell] per share fee would yield $2 billion per
> month, or some $24 billion per annum. At the very extreme, if each
> of the Madoff submitted to SIPC now 15,000 claims were paid the correct
> inflation adjusted $1.69 million [assuming each account was, at a
> minimum, valued as such upon their 11/30/2008 statement, adjusted
> for post 11/30/2008 cash additions & withdrawals], that would
> amount to $25.35 billion. Furthermore, said fee charge could be continued
> in order to fund the SIPC indemnification fund for future contingencies,
> with said funds held in U.S. Treasuries.
To become a Madoff client one learned of his expertise by word of mouth @ the yacht club, golf course etc... Big Secret; only the PRIVILEDGED are awarded the opportunity to invest in this company.
Greed!!! Bet these same folks if they had doubled their $ would have shared with all of us incompetents!!! Risk is RISK...REALIZE you have been had and you and yours are not TOO BIG TO FAIL!!!
Do anyone protect the American taxpayer?
So called Hedge Funds were created by fund managers to get around SEC 50% leverage and fees paid to manager rules that protect the smaller individual investor not qualifying as a high net worth investor. The leverage restriction was put in place in 1933 in the aftermath of the 1929 crash, where 10x1 leverage was common... and was the overwhelming source of the 1929 crash and its magnitude.
The theory was that ACCREDITED INVESTORS were rich people who knew how to read all the statements and could afford to take the risk..... AND LOSE ALL THEIR MONEY AND NOT BE REIMBURSED OR PROTECTED BY THE FEDERAL GOVERNMENT! The sponsor's (fund manager's) reason for having a so called Hedge Fund is twofold: (1) to use extreme amounts of leverage... 30 times was not uncommon... instead of 2 times... to be able to "Proforma" or "Project" a huge return to attract the investors ... and (2) get around limitations by SEC on the size and structure of fees and the reporting of same.
The SEC rule served America well since 1933 and only in the past ten years (Long Term Capital.. a single hedge fund... was enough of a threat in collapsing in 1998 that Greenspan went outside his legal authority and cobbled together a buyout of LTC by the Wall Street Majors.. and cut interest rates to keep the world afloat.) have so much world capital buypassed the regulated market into Hedge Funds.
The US Fed Govt has failed America in allowing Hedge Funds to bypass sound SEC rules, suck up most of the capital in the known world... borrow outrageous amounts of money... and pi** it away on risky Poor Credit loans. Failure to regulate has allowed this to happen.
All stock market activity should be limited to 50% leverage if the public is going to have to pay to bail out. Shut down all the Hedge Funds because we taxpayers cannot keep them from borrowing from banks insured by us.
On Jul 05 10:09 PM RatWatcher wrote:
> Not my area of expertise, but is there anything we can do about it?
> Ripped off left, right, up down....there's gotta be some smart honest
> lawyer/banker/broker (and judge, of course) to put an end to this
> nightmare carousel we're all riding in a spiral down to hell.....
What could be a greater incentive to criminal behavior than for the gov't to do something that allows perps to think what they do to others is just fine because no one is really hurt?
I appreciate your research and article pointing this out to you, and my first reaction was outrage, but then I looked more closely and now I see the SIPC's coverage, which is limited, and covers only certain investors who directly invested in Madoff, I don't see this as a bad thing.
There's FDIC insurance to protect our bank accounts, and there's SIPC insurance, which is similarly limited in amount, to protect us if the brokerage firms we use go belly up. Similarly, there's SIPC protection to cover brokerage accounts, up to a limit.
Madoff investors who invested through Hedge Funds or Feeder Funds will not get SIPC protection.
Remember that the SEC let down Madoff investors horribly. I think it's appropriate to let Madoff's direct investors apply for the limited recovery under SIPC that anyone who had a brokerage account covered by SIPC anywhere else would have.
Also, just like the FDIC, which has bank members pay in hefty fees to share in the insurance coverage, the SIPC works the same way too, so this is not entirely coming out of taxpayer money.
Investor confidence - in banks and brokerage firms - is key, or we'll all be worse off. In the great Depression, one of the biggest problems was that when banks failed, depositors lost all their money. One of the reasons our economic system didn't fail completely last fall was that we have things like the FDIC in place. That goes for SIPC too. If everyone had become terrified of the solvency of their brokerage firm and had yanked their money out all at once, just like with their bank accounts, the country - and we as taxpayers - would have suffered worse.
One of the reasons the dollar is staying strong (for now anyway) is that the safeguards and policies of the US Govt make the USA look better to foreign investors than their own currencies. We are fortunate as a country that we can have some safeguards such as SIPC and FDIC.
"
Great article. Throughout this economic collapse you can see our entire political system being exposed for the fraud it truly is. The Dems and Repubs have both gotten too powerful and corrupt through this two-party only system. The wealthy individuals and corporations control the laws and use their lobbyists and special interest groups to legally influence
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Exactly what I was going to say so thanks for saying it first.
Two capitalist parties of different stripes will never work for the greater benefit of the masses of the working/middle class, that much has also been exposed by the fabricated "financial crisis". The USA needs multiple parties, of different economic persuasions, not just capitalists of slightly different persuasions.
We get diversity of thought, or the experiment in American civilization is finished, as it might yet as this "financial crisis" is playing itself out.
Related information below:
The Quiet (American) Coup - IMF insider (crony capitalism)
www.theatlantic.com/do...
Communism on rise in recession-hit Japan
news.bbc.co.uk/2/hi/as...
"The Fed's War on the Middle Class"
mises.org/story/2983
"How to Avoid Another Depression"
mises.org/story/3103
I include the link below for those readers which might think I'm some kind of "liberal" or even "leftist".
The Obama Deception Full Length
video.google.com/video...