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Ponzi Schemes and Investment Fraud
How they impact the financial services industryand
What investors can do to avoid the con
Presented to the Risk Management Association, Arizona Chapter
October 8, 2009
By
Mike McCann, CFP®, AIF®
www.MoneyAZ.com
Bernard Madoff: Con Man Extraordinaire
Bernie Madoff was arrested in December 2008 for investment fraud. He had masterminded a Ponzi scheme that spanned more than two decades and defrauded thousands of investors of an estimated $64 billion.
He pleaded guilty in March 2009 and in June was sentenced to 150 years in prison.
U.S. Department of
Justice photograph, 2008
What is a Ponzi scheme?
“The Ponzi scheme is a house-of-cards swindle in which high returns are paid to initial investors out of the funds of later investors. While some initial payments are made to drum up new recruits, the vast majority of investors in a Ponzi scheme end up losing all or most of their money.”
(source: North American Securities Administrators Association (NASAA)
Ponzi Schemes
The con dates back to about 1920 and is named after Charles Ponzi, who developed a scheme to profit on the varying currency exchange rates for International Postal Reply Coupons redeemed for stamps.
The often bewildering variety of investment opportunities available today has created a virtual renaissance of the Ponzi scheme in recent decades.
These schemes often prey on a specific demographic (also known as affinity fraud), such as seniors or a particular religion or ethnic group.
The “last guy” you’d expect to cheat you…
What makes the Madoff scam so fascinating (apart from the sheer size and magnitude of the amount he swindled) is that he was the last person one would expect to cheat investors. Madoff had a long, illustrious career as an investment advisor.
Who is Bernie Madoff?
Madoff founded the Wall Street firm Bernard L. Madoff Investment Securities LLC in 1960.
He actively pursued a presence in the regulatory side of the industry. In the mid-1980s, he was elected to the NASD advisory council and served on several committees and task forces. He also served as non-executive chairman of Nasdaq in the 1990s.
He was a prominent philanthropist who served on boards of nonprofit institutions, many of which entrusted his firm with their endowments.
Madoff is Jewish and his Ponzi scheme preyed heavily on Jews,
destroying the fortunes of numerous Jewish charities and institutions.
Nature or Nurture?
In 1963, the SEC investigated Bernie Madoff’s mother. Gibraltar Securities, registered under the name of Sylvia Madoff, was one of dozens of firms investigated by the SEC for failing to file financial reports. She eventually withdrew her registration, and the SEC dropped the charges.
According to reports in Fortune and The New York Times, Madoff's childhood friends don't remember his mother trading; the Fortune article hypothesized that perhaps Madoff's father, who had previously been in trouble with the IRS, put his wife's name on the application.
"Either way," the authors wrote, "one of Bernie Madoff's parents was involved in securities -- and got into trouble for it."
(source: PBS Frontline)
Another bit of sad Madoff trivia…
Madoff Investment Securities LLC was examined at least eight times in 16 years by the SEC and other regulators, but regulators were never able to uncover the illegal scheme.
(source: Wall Street Journal, January 5, 2009)
Madoff’s Legacy
Four Decades of Deals and Deception1960s Madoff’s firm was initially housed in his father-in-law’s accounting firm in
midtown Manhattan. He earned his living as a market maker – matching buyers and sellers who wanted to trade “penny stocks” that weren’t listed on the big exchanges. The firm eventually became one of the top market maker businesses on Wall Street.
According to SEC documents, by 1962 he was managing investments channeled through his father-in-law’s accounting firm and business partner, Frank Avellino. The first investors were friends and associates.
1970s Madoff's trading business skyrocketed through a controversial practice
known as "pay for order flow,” in which which a dealer pays a broker for the right to execute a customer's order. This practice has long been called a "legal kickback."
Madoff’s Legacy cont.
1980s Avellino and his associate Michael Bienes decided to drop their
accounting services and work full time on recruiting clients for Madoff. By the mid-80s their cut had reached several million dollars a year.
1990s Madoff started getting into bigger money when he took on management
of several hedge funds. He used his position as chairman of Nasdaq to lobby Washington. His power and influence continued to grow. Yet, his investment advisory business was not even registered with the SEC.
The SEC launched an investigation into Avellino and Bienes under suspicion they were operating a Ponzi scheme. They were fined and required to return investors’ money. Madoff claimed ignorance about his two front men operating illegally.
Madoff’s Legacy cont.
2000 Investment professional Harry Markopolos submitted 8-page memo to the
SEC outlining his theory that Madoff was running a Ponzi scheme.
2001 Two major articles published in the financial papers called into question the
legitimacy of Madoff’s dealings. Yet, Madoff’s success continued.
2005 Markopolos continued to write memos to the SEC. By that time, the SEC was
receiving letters from others, as well.
2006 Madoff was finally interviewed by the SEC. Investigators said they “found no
evidence of fraud,” though they did tell Madoff he must register as an investment advisor.
Madoff’s Legacy cont.
Fall 2008 The collapse of Lehman Brothers in the September signaled the
beginning of the end for Madoff’s house of cards. Credit markets froze and the stock market began its free fall. By November, hundreds of hedge funds shut down or stopped allowing withdrawals.
Madoff told one of his sons that he was facing $7 billion in redemptions
and having a hard time meeting those obligations. He also asked his wife to make wire transfers from a brokerage account to her personal bank account – totaling $15.5 million – so they would have cash on hand.
December 2008 On December 10, Madoff's sons told authorities that their father had just
confessed to them that the asset management arm of his firm was a massive Ponzi scheme, and quoted him as saying it was "one big lie.” The next day, FBI agents arrested Madoff and charged him with securities fraud.
(sources: PBS’s Frontline, Wikipedia)
How does a scandal like this impact reputable professionals in the financial services industry?
Madoff was a smooth operator; the ultimate con man.
Because of his misdeeds, we must raise the bar on our communication with clients. It means we have to work harder.
This is not necessarily a bad thing.
Improving communication & better educating clients are worthy goals, regardless of the circumstances that inspired them.
Spotting the Red Flags
One of the easiest ways to spot an investment scheme is if the opportunity promises high, guaranteed profits.
All legitimate investments involve some degree of
risk. And, generally speaking, the higher the
potential return, the higher the level of risk involved.
Another red flag of Ponzi schemes is when investors are pressured to reinvest or roll over profits.
While long-term investing is generally a wise
approach, investors should be suspicious of any
promoter or advisor who is reluctant to let them
cash out gains.
Ponzi schemes only work when investors are kept in the dark.
There are several good pieces of general advice that will help the average person shed light on their situation and avoid Ponzi and other investment scams:
Work with financial advisors who were referred to you from a trusted source
Make sure your advisor is acting as a fiduciary (get it in writing)
Ask for disclosures on all forms of compensation Ask questions about the advisor’s style of investment
management Make sure you are truly diversified across a wide variety of
asset classes Check with either the SEC or FINRA for the advisor’s
background
If it sounds too good to be true…
This advice is no guarantee, unfortunately. Following it would not necessarily have helped Madoff’s victims avoid being conned.
The Associated Press recently reported on telephone transcripts released from the investigation. In one tape from 2005, Madoff coached a potential witness about fooling federal regulators, saying “you don't have to be too brilliant” to get away with it.
"The guys ... ask a zillion different questions and we look at them sometimes and we laugh, and we say are you guys writing a book?“ (Source: Associated Press, Sept. 10, 2009)
Bottom line:Madoff was a liar, a con man, a thief. He was really good at it.
It Happened Before. It Will Happen Again.
Even with all the attention this scandal has gotten, we continue to hear news of more Ponzi schemes and more victims. The SEC's failure to uncover Madoff's massive scheme for so many years, of course, has led the agency to beef up its enforcement efforts. Here are some recent news release headlines from the SEC:
SEC Charges Detroit-Area Stock Broker Who Lured Elderly into $250 Million Ponzi Scheme
SEC Charges New York-Based Money Manager in $40 Million Ponzi Scheme SEC Halts $50 Million Offering Fraud and Ponzi Scheme in Detroit Area
SEC Freezes Assets of Illinois-Based Hedge Fund Manager Who Was $2 Billion Feeder to Petters Ponzi Scheme
SEC Charges Calif.-Based Hedge Fund Manager for Operating Ponzi-Like Scheme
SEC Charges Operators of $80 Million Ponzi Scheme Targeting Korean-Americans
SEC Charges Colorado Advisor for Conducting Multi-Million Dollar Ponzi Scheme
The list goes on…
Keep Your Guard Up
These are just a handful of the SEC investigations into Ponzi schemes in the past few months.
They are all examples of how the average person can still fall prey to a Madoff-type scam if they don’t take steps to protect themselves.
This type of scam happens in cities all over the country, not just in New York.
Con artists will continue to use the Ponzi scheme because, sadly, it works.
Beware the Façade
Investors should not rely solely on the character or reputation of their advisor. The Madoff scandal is a stark reminder that that so-called reputation can be hiding something sinister.
The good news is that investors and financial professionals can do more than simply “be careful.”
They can follow specific practices for investment fiduciaries designed to protect investors.
The Investor’s Best Defense – Global Fiduciary Practices
The Center for Fiduciary Studies (Fiduciary 360) has developed
Global Fiduciary Practices as a guide for investment fiduciaries to
follow to demonstrate prudence in managing investment decisions.
These have been compiled in a series of handbooks:
Prudent Practices for Investment Fiduciaries
In addition to listing and explaining the minimum process
prescribed by law, the handbooks include criteria that represent the
Global Standard of Excellence.
Separate Functions
If you walk away today with just one piece of useful Information today, let it be this.
The investor’s best defense against fraud is to maintain three separate functions of portfolio management.
Investment Custodian Investment Advisor Investment Manager
Separating portfolio management functions is a key recommendation from Fi360. It provides a proven system for checks and balances against potential fraud and conflicts of interest.
Periodic Table: Global Fiduciary Practices
This Fi360 table shows how the functions are separated. A PDF version is available online at www.fi360.com.
Learn More
The Center for Fiduciary Studies provides training for the Accredited Investment Fiduciary (AIF) designation, through Fi360.
Fi360 offers a range of investment fiduciary education, practice management, and support to the industry.
This organization is a great resource if you want to learn more about investment fiduciary responsibilities and how to best serve and protect your clients’ assets.
http://www.fi360.com
Additional Resources
http://www.MoneyAZ.com
http://sec.gov/investor/brokers.htm
http://www.finra.org/Investors
A copy of this Power Point presentation is available for download at
http://blog.MoneyAZ.com
About Mike McCann, CFP®, AIF®
President and FounderInvestment AdvisorPerspective Financial Services, LLC
Mike has worked in the financial services industry since 1991, interacting directly with individuals as an investment advisor and alsobehind-the-scenes in high-level trading and managerial positions.
He is a Certified Financial PlannerTM practitioner and an Accredited InvestmentFiduciary®
