There are two primary reasons why significant funds are not available for distribution at this time: required reserves and ongoing appeals.
Required Customer Fund Reserves for Deemed Determined Claims
First, while the number of allowed claims is – to date – 2,557 and the dollar amount of allowed claims to date is approximately $14.092 billion, both the number of allowed claims and the dollar amount will increase. There remain 117 claims which have been "deemed determined" by the SIPA Trustee; however, the final status of each claim remains contingent on the outcome of its respective litigation. If a “deemed determined” claim becomes allowed, it would become eligible for all pro rata distributions to date, currently totaling up to 48.802 percent of the amount of the allowed claim. For this potential scenario, the SIPA Trustee has, to date, reserved approximately $2.017 billion.
Court-Ordered Reserves for Time-Based Damages Issue
More than 1,200 objections have been filed relating to the time-based damages issue. The objections relate to additional payments based on the New York state statutory pre-judgment interest rate of 9 percent, inflation, or other damages calculations. On September 10, 2013, the United States Bankruptcy Court for the Southern District of New York approved the SIPA Trustee’s motion to deny time-based damages adjustments to customer claims. That decision was appealed by objecting parties on September 24, 2013 and on the same day an order was filed by the Bankruptcy Court certifying the order of September 10, 2013 for immediate appeal to the United States Court of Appeals. The appeal was accepted by the Second Circuit on January 22, 2014, and oral arguments were heard on Tuesday, October 14, 2014. Due to ongoing litigation related to the time based damages issue, the SIPA Trustee was required to hold approximately $1.449 billion in reserve, should the matter be resolved in favor of the appellants.
On February 20, 2015, the Second Circuit reaffirmed the decision of the Bankruptcy Court that claimants in the SIPA liquidation of BLMIS are not entitled to time-based damages. On April 15, 2015, the SIPA Trustee filed a motion in the Bankruptcy Court seeking to allocate $1.249 billion which had been held in reserve related to the time based damages issue, to the BLMIS Customer Fund and requesting authorization for a sixth pro rata interim distribution from the Customer Fund to BLMIS customers with allowed claims. A hearing has been scheduled for May 28, 2015. If the motion is approved, $904 million will be available for immediate distribution to customers with allowed claims and approximately $345 million will be held in reserve for claims that are “deemed determined” pending the resolution of litigation and other issues. The only obstacle that could stand in the way of this additional distribution if the defendants petition the United States Supreme Court to review the decision. The SIPA Trustee is hopeful that further delay will be viewed as pointless and that no petition will be filed.
Other Customer Fund Required Reserves
As of May 21, 2015, approximately $120.8 million must be reserved in the Customer Fund for certain deferred payments, unallocated funds and other matters related to the liquidation.
Amount Unavailable to the Customer Fund Due to Required Reserves and Appeals
Portions of recoveries and settlement agreements have not yet been collected, due to appeals, the timing of payments of certain settlement monies and other issues. Therefore, these funds cannot be either allocated to the Customer Fund or distributed to BLMIS customers with allowed claims until these issues are resolved. As of May 21, 2015, approximately $236.7 million relating to settlement reserves and other matters must be held in reserve.