Judge Rakoff ruled late Tuesday that Baker & Hostetler’s Picard, the indefatigable liquidation trustee for Madoff’s investment firm, lacks standing to pursue racketeering claims against UniCredit S.p.A. for allegedly scheming to funnel billions to Madoff. Picard claimed damages over $19.6 billion in investor losses; the damages would be trebled automatically under the Racketeer Influenced and Corrupt Organizations Act.
“We’re pleased with the decision,” said UniCredit counsel Susan Saltzstein of Skadden, Arps, Slate, Meagher & Flom.
A spokeswoman for Picard promised that he would appeal Tuesday’s ruling to the U.S. Court of Appeals for the Second Circuit. The Second Circuit, meanwhile, is already reviewing Judge Rakoff’s July 2011 decision dismissing Picard’s common law claims against UniCredit and HSBC on the grounds that the trustee lacked standing to bring such claims on behalf of Madoff customers. (Baker & Hostetler filed Picard’s appellate brief in the case last week.) In November, Manhattan federal district court judge Colleen McMahon reached a similar conclusion on standing in Picard’s separate suit against JPMorgan Chase.
The racketeering claims at issue in Tuesday’s decision centered on an Austrian banker named Sonja Kohn. Picard claimed that Kohn used the bank she founded in Vienna, Bank Medici, to feed $9.1 billion in investments to Bernard l. Madoff Investment Securities. The trustee alleged that UniCredit and its Bank Austria unit helped further and profit from the scheme by marketing the feeder funds’ and concealing their true natures.
But Judge Rakoff ruled that Picard’s claims amounted to “the kind of causal assertion that is too indirect to satisfy the proximate cause requirement” of the RICO statute. Neither the court nor a jury could reliably determine how much damage Madoff would have caused without the cash from UniCredit, he ruled, and it would be impossible to apportion damages among Madoff investors. Judge Rakoff also noted that investors have “direct causes of action for fraud, in Europe if not the United States,” that would supersede their RICO claims.
In any case, Judge Rakoff concluded, Picard’s racketeering claims couldn’t survive the Private Securities Litigation Reform Act. The Second Circuit held last year that the PSLRA prohibits civil RICO claims that allege facts predicated on securities fraud. Moreover, the judge determined that Picard was effectively seeking to fashion an exemption to the U.S. Supreme Court’s June 2010 ruling in Morrison v. National Australia Bank, which courts have applied to bar RICO claims based on foreign transactions.
“This is too clever by half and would in many cases allow artful pleading to eviscerate either the territorial reach of the Securities Exchange Act or the purpose of the ‘RICO Amendment’ to the PSLRA,” Judge Rakoff wrote.
Unicredit Bank Austria is represented by Sullivan & Worcester. Alessandro Profumo, the former chief executive of UniCredit, is represented by Curtis, Mallet-Prevost, Colt & Mosle.