Where Does Picard Stand in Madoff Litigation?

Last Monday, Irving Picard and the owners of the New York Mets settled their acrimonious fight on the eve of trial. In a complicated settlement, the Mets owners agreed to pay $162 million that will come mostly from claims that they or their family members or affiliates have agreed to give up in the liquidation proceedings of Bernard L. Madoff Investment Securities. (The settlement still must be approved by Manhattan federal district court judge Jed Rakoff.) Although this amount is much less than the $1 billion that the Baker & Hostetler partner had initially sought in his lawsuit accusing Saul Katz and Fred Wilpon of turning a blind eye to Madoff’s fraud, it still frees up more money to pay the “net loser” investors.

The Wall Street Journal editorial page, however, saw it differently. Calling the settlement an “unconditional surrender” by Picard, it called for the trustee for to be replaced.

However you view the Mets’ settlement, it’s still just one piece of a much larger puzzle. To date, Picard has recovered or reached settlements for more than $9 billion, which is more than half of the $17.3 billion in principal lost, according to information at the trustee’s website. A large portion of that amount–$6.4 billion–is under appeal by other disgruntled investors, but those cases may be weak. Joe Nocera, in his column Monday in the New York Times, called these appeals “ludicrous” and said they have no chance of succeeding.

Picard has taken aggressive positions in his litigation, and not all of his theories for recovery have succeeded–at least not so far. Some of his biggest cases are now on appeal to the U.S. Court of Appeals for the Second Circuit, including ones in which he’s challenging rulings that have denied him standing to bring common law claims. He’s won some major court battles, including the Second Circuit’s approval of his method of compensating only “net losers” who never got their entire principal investment back.

“His performance has been extraordinary,” said Stephen Harbeck, the president and chief executive officer of the Securities Investor Protection Corporation. “He’s had an astonishing series of recoveries, and he’s not done yet.” Harbeck added, “He’s used his discretion wisely, in terms of who he’s suing at the top and who he’s not suing at the bottom.”

David Sheehan, the Baker & Hostetler partner who has worked closely with Picard in these matters, defended their actions. “We let the law guide our actions,” he said in a statement. “Those who we have to go after by law are always going to think we are too aggressive. Those whose rights we are championing, who are benefitting from our efforts, think we should seek everything possible. It is all about the perspective of who is being asked.”

(Source: madofftrustee.com)