Madoff might not have made any trades - Why SEC missed on Madoff

Madoff might not have made any trades
Agency can't find evidence his funds bought or sold through his brokerage
Globe Staff / January 15, 2009
As investigators try to untangle the scheme that Bernard L. Madoff hid from investors and regulators for a decade or more, one basic fact is emerging: He may not have been making any trades at all.

A federal agency that regulates brokerage firms says there is no record of Madoff's investment funds placing trades through his brokerage operation. That leaves only two options - either he was placing trades only through other firms, which would be highly unusual, or he was not placing any trades.

"There was no evidence of the Madoff broker-dealer executing trades for the [Madoff] investment adviser," said Herb Perone, spokesman for the regulatory group, the Financial Industry Regulatory Authority. A broker-dealer is any firm that buys and sells securities.

FINRA and its predecessor, the National Association of Securities Dealers, has been examining the records of Madoff's broker-dealer operation, Bernard L. Madoff Investment Securities, every two years since the firm started in 1960. The last exam was in 2007, Perone said.

The finding is one of many facts investigators are poring over as they seek to piece together Madoff's alleged $50 billion Ponzi scheme, according to a lawyer involved in the case. Evidence that Madoff - who made his name as a trader of Nasdaq stocks - did not process any of his investment funds' trades through his own brokerage is a key indicator that he was not making the trades he claimed.

Ordinarily, a firm that owns both an investment advisory business and a broker-dealer, like Merrill Lynch & Co., would place a large portion of trades through its own broker-dealer. That's because a firm wants to earn fees on its own trades if possible. Investment firms must seek "best execution," or the best deal they can get on trades for their customers, so some trades typically will be handled by other firms. But to farm out every trade is almost unheard of.

A Madoff lawyer, Daniel J. Horwitz, declined to comment on Madoff's trading.

If Madoff was making no real trades, the complicated statements he sent out to customers were apparently fiction - and in fact may have been part of his coverup. Statements were often so complicated that investors had to call representatives of the firm for explanations.

One Boston-area customer's November 2008 statement is six pages long and shows a dizzying list of trades. According to the statement, Madoff purchased stocks including Wal-Mart, IBM, and Intel, as well as options on the Standard & Poor's 100 index. The statement also says he bought and sold shares of the Fidelity Spartan US Treasury Money Market - a fund Fidelity Investments said had been renamed back in 2005.

Moreover, Fidelity, the Boston investment firm, says Madoff was not a client of the firm. That is, Madoff's firm did not interact with any part of Fidelity that deals with investment advisers and other intermediaries that ordinarily make investments for their clients through Fidelity.Continued...

"We are not aware of any investments by Madoff in our funds on behalf of his clients," Fidelity spokeswoman Anne Crowley said.

Some charitable foundations for which Madoff managed reflect heavy trading in their tax filings, trading that may never have happened. For instance, in the Carl & Ruth Shapiro Family Foundation's 2007 tax filing, there was $452 million of trading on $324 million of assets. And for the Sidney R. Rabb Charitable Trust, the foundation of the Goldberg family that owned the Stop & Shop supermarkets, a 2006 tax filing shows $102 million of trading on $20 million of assets. Madoff managed part of the Rabb trust.

Investors with Madoff appear to have asked few questions of the man who sent them statements professing to have earned double-digit profits year in and year out. The Securities and Exchange Commission, too, did not ask questions, despite having been warned by a whistle-blower numerous times that Madoff was running a Ponzi scheme - using the most recent investors' money to pay off earlier investors.

Regulators are investigating whether Madoff's business associates knew he was potentially making up customer statements. One associate, Robert Jaffe, who recruited Boston-area investors, so far has not appeared to provide testimony to Secretary of State William F. Galvin, despite being subpoenaed to do so.

Yesterday, Galvin's office filed a complaint in Massachusetts Superior Court to compel Jaffe to appear. Jaffe, who lives in Weston and Palm Beach, Fla., failed to appear for a hearing Tuesday. His spokesman said Jaffe was ill and that his lawyers had informed state officials he would not appear. The regulators said they were rebuffed in an offer to travel to Palm Beach, where Jaffe spends the winter, to take his deposition, according to the complaint.

The regulators allege Jaffe "has attempted and may further attempt to delay, hinder or avoid appearing," and set a new hearing of Jan. 21 in Boston, at 10 a.m.

Jaffe's lawyer, Stanley S. Arkin, called the allegation that Jaffe was avoiding the hearing "baloney." He said of the complaint, "We will deal with this lawsuit, as we deal with any lawsuit, by defending it appropriately."

Madoff, meanwhile, will remain in his apartment while he awaits trial. A judge yesterday denied prosecutors' efforts to send him to jail for violating his bail agreement. Madoff had sent jewelry to relatives, breaking the terms of his bail conditions. But the judge ruled he is not a flight risk.

"We are not aware of any investments by Madoff in our funds on behalf of his clients," Fidelity spokeswoman Anne Crowley said.

Some charitable foundations for which Madoff managed reflect heavy trading in their tax filings, trading that may never have happened. For instance, in the Carl & Ruth Shapiro Family Foundation's 2007 tax filing, there was $452 million of trading on $324 million of assets. And for the Sidney R. Rabb Charitable Trust, the foundation of the Goldberg family that owned the Stop & Shop supermarkets, a 2006 tax filing shows $102 million of trading on $20 million of assets. Madoff managed part of the Rabb trust.

Investors with Madoff appear to have asked few questions of the man who sent them statements professing to have earned double-digit profits year in and year out. The Securities and Exchange Commission, too, did not ask questions, despite having been warned by a whistle-blower numerous times that Madoff was running a Ponzi scheme - using the most recent investors' money to pay off earlier investors.

Regulators are investigating whether Madoff's business associates knew he was potentially making up customer statements. One associate, Robert Jaffe, who recruited Boston-area investors, so far has not appeared to provide testimony to Secretary of State William F. Galvin, despite being subpoenaed to do so.

Yesterday, Galvin's office filed a complaint in Massachusetts Superior Court to compel Jaffe to appear. Jaffe, who lives in Weston and Palm Beach, Fla., failed to appear for a hearing Tuesday. His spokesman said Jaffe was ill and that his lawyers had informed state officials he would not appear. The regulators said they were rebuffed in an offer to travel to Palm Beach, where Jaffe spends the winter, to take his deposition, according to the complaint.

The regulators allege Jaffe "has attempted and may further attempt to delay, hinder or avoid appearing," and set a new hearing of Jan. 21 in Boston, at 10 a.m.

Jaffe's lawyer, Stanley S. Arkin, called the allegation that Jaffe was avoiding the hearing "baloney." He said of the complaint, "We will deal with this lawsuit, as we deal with any lawsuit, by defending it appropriately."

Madoff, meanwhile, will remain in his apartment while he awaits trial. A judge yesterday denied prosecutors' efforts to send him to jail for violating his bail agreement. Madoff had sent jewelry to relatives, breaking the terms of his bail conditions. But the judge ruled he is not a flight risk.

Beth Healy can be reached at bhealy@globe.com. Casey Ross of the Globe staff contributed to this report.

Beth Healy can be reached at bhealy@globe.com. Casey Ross of the Globe staff contributed to this report.

© Copyright 2009 Globe Newspaper Company.
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