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BNY Mellon unit sued by NY Attorney General for alleged Madoff deceptions

12 May 2010  |  2427 views  |  0 Source: NY Attorney General

Attorney General Andrew M. Cuomo today filed a lawsuit against Ivy Asset Management, LLC ("Ivy"), its former Chief Executive Officer Lawrence Simon, and its former Chief Investment Officer Howard Wohl, for deliberately misleading clients about investments tied to Bernard L. Madoff. The suit alleges that Ivy and the two principals kept their clients in the dark about damaging financial information about Madoff so Ivy could bring in millions in advisory fees.

Ivy is a New York-based investment adviser that is wholly owned by Bank of New York Mellon. Between 1998 and 2008, Ivy was paid over $40 million to give advice and conduct due diligence for clients with large Madoff investments. The lawsuit alleges that while conducting this due diligence, Ivy learned that Madoff was not investing funds as advertised. However, internal e-mails reveal that Ivy did not disclose this information to clients for fear of losing revenue from fees. As a result, Ivy's clients lost over $227 million after Madoff's Ponzi scheme collapsed. Among the victims were hundreds of investors as well as dozens of New York union pension and welfare plans.

"Ivy and its former co-principals saw the trouble with Madoff coming around the bend, but instead of guiding their clients through the financial waters, they sold them down the river," said Attorney General Cuomo. "These defendants violated their basic responsibility as investment advisers by putting their own financial interests ahead of their clients. They shamelessly profited off of their own clients' impending misfortune and we are holding them accountable for their actions."

The damaging information that Ivy discovered about Madoff and then failed to disclose includes:

* In 1997, Ivy learned that there were not enough options to support Madoff's purported trading strategy. Specifically, the volume of Standard and Poor's 100 Index options ("OEX") available would only support half of the amount of assets Ivy believed Madoff had under management. This strongly suggested that the trades Madoff had been reporting were not actually being made.
* Between 1997 and 1998, Madoff gave Ivy three vastly different explanations as to where and with whom he traded OEX options, all of which were inconsistent with Ivy's observations and understanding of OEX options.
* Ivy received information from industry contacts indicating that Madoff was misusing client assets to fund his broker-dealer business is business is broker-dealer business instead of investing the money as he claimed he was doing.

Internal documents obtained through the Attorney General's investigation reveal that Ivy, Simon, and Wohl knew that investing with Madoff was too much of a risk:

* An internal Ivy memorandum from 1997 about Madoff states, "[t]his is a clear example of our inability to make sense of Madoff's strategy, and one where his trades for our accounts are inconsistent with the independent information that is available to us."
* When writing to a subordinate in 2002, Wohl wrote "Ah, Madoff, You omitted one possibility - he's a fraud!"
* When listing managers who should be recommended to a prospective client in 2003, Wohl wrote, "Madoff (NOT!)."

Internal e-mails reveal that Simon and Wohl intentionally failed to disclose their doubts about Madoff to their clients with heavy Madoff-related investments:

* On December 16, 1998, the day after Madoff gave Ivy his third explanation about his option trades, Wohl recommended to Simon that Ivy withdraw all of the funds they personally managed from Madoff, including some of their own money, writing:
"I'm concerned that he [Madoff] now admits that he does not execute all of the index options on the exchange that there are 'unknown' counterparties that if these options are not paid off he'd lose less than 100%. It remains a matter of faith based on great performance - this doesn't justify any investment, let alone 3%."
* In response, Simon argued that Ivy should not withdraw the investment it had placed with Madoff because that could lead Ivy's clients to withdraw their money from Madoff as well, which would significantly impact their total revenue, writing:
"Amount we now have with Bernie in Ivy's partnerships is probably less than $5 million. The bigger issue is the 190 mil or so that our relationships have with him which leads to two problems, we are on the legal hook in almost all of the relationships and the fees generated are estimated based on 17+% returns …. [to be] $1.275 Million… Are we prepared to take all the chips off the table, have assets decrease by over $300 million and our overall fees reduced by $1.6 million or more, and, one wonders if we ever "escape" the legal issue of being the asset allocator and introducer, even if we terminate all Madoff related relationships?"

The suit further alleges that Ivy, Simon, and Wohl deliberately misled clients with heavy Madoff-related investments:

* In 1999, Ivy sent letters to clients falsely stating that, "we have no reason to believe there is anything improper in the Madoff operation."
* Between 1998 and 2004, Ivy sent numerous letters to their heavily Madoff-invested clients falsely listing Ivy's only concern about Madoff to be an "ability to manage what must be an enormous pool of capital with such consistently outstanding results."

The lawsuit charges Ivy, Simon, and Wohl with violating New York's Martin Act for fraudulent conduct in connection with the sale of securities; violating Executive Law 63(12) for persistent fraud in the conduct of business and for persistent illegality; and breaching their fiduciary duty in connection with the advice they gave to their clients.

Attorney General Cuomo's lawsuit seeks payment of restitution, damages, and penalties from Ivy, Simon, and Wohl, as well as the disgorgement of all fees that Ivy received. The lawsuit also seeks to bar Simon and Wohl from acting as investment advisors.

The lawsuit was filed in New York State Supreme Court in Manhattan and is available at www.ag.ny.gov.

This investigation is ongoing.

This investigation is being conducted by Senior Enforcement Counsel Roger Waldman, Assistant Attorney General Kate Burson, and Assistant Attorney General Shmuel Kadosh, under the supervision of Special Deputy Attorney General for Investor Protection David A. Markowitz and Executive Deputy Attorney General for Economic Justice Maria Vullo.

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