As of May 26, 2015:
TOTAL RECEIVED CLAIMS
DENIED CLAIMS (THIRD PARTY)
DETERMINED (NO CLAIM)
DEEMED DETERMINED PENDING LITIGATION
TOTAL VALUE OF ALLOWED CLAIMS
All amounts approximate
The Securities Investor Protection Act (SIPA) Trustee and his counsel are governed by the SIPA process, which includes:
Claims Procedures Order
On December 23, 2008, the United States Bankruptcy Court for the Southern District of New York entered the Claims Procedures Order that specified the procedures for the filing, determination and adjudication of customer claims in the Securities Investor Protection Act (SIPA) liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS). This order specified that BLMIS customers would share pro rata in customer property, based on their net equity.
The last date for filing customer claims under SIPA and the Claims Procedure Order was July 2, 2009. The SIPA Trustee published notices to BLMIS customers in all major newspapers regarding the liquidation, mailed thousands of customer claim forms to those who requested them and made request forms available for download via this website.
Once a claim is determined, a letter of determination is sent to the claimant by the SIPA Trustee. Every six months, the SIPA Trustee files a detailed interim report on the status of claims. In addition, claims numbers are updated weekly on this website.
If a claimant disputes the SIPA Trustee's determination, the claimant may object and request a hearing before the United States Bankruptcy Court for the Southern District of New York. This must be done within 30 days of the date of the determination letter unless the time is extended. If the claimant fails to request a hearing within those 30 days or fails to appear at the scheduled hearing, the SIPA Trustee's determination is final.
Customer claims may be transferred in full in the BLMIS liquidation proceeding. On November 10, 2010, the Court entered an order approving certain uniform procedures and forms with respect to the trading of claims. Notice of a claim transfer must be provided in accordance with those procedures.
The SIPA Trustee does not take a position with regard to claims trading.
General Creditor Claims
All “good faith” BLMIS customers were defrauded. Regardless of whether their claims for distributions from the Customer Fund are denied or approved, their claims are also deemed to be general creditor claims against the General Estate. Other creditors in the liquidation, such as service providers and vendors, also have claims against the BLMIS General Estate. Once the SIPA Trustee fully satisfies the net equity claims of BLMIS customers, the next step in the BLMIS liquidation is to distribute customer property in accordance with the other priorities in SIPA. After customer net equity claims, the next priority is to distribute customer property to SIPC as subrogee. Thereafter, any customer property remaining becomes part of the General Estate.
Once those priorities are satisfied, the next step is to allocate recoveries to the General Estate and to distribute those recoveries pro rata to general creditors in the order of priority established in the Bankruptcy Code.
Net Equity Methodology
The SIPA Trustee determined that he would calculate a customer's net equity based on the real assets that customers lost to Madoff's scheme: the cash deposited, less any amount withdrawn (the "Net Investment" or "Cash In/Cash Out" Method).
Certain claimants disagreed with the SIPA Trustee as to the definition of "net equity" in the Madoff fraud and how that term should be applied to determine the amount of the valid customer claim of each claimant. They argued that the SIPA Trustee should have calculated their net equity – which determines their percentage of recovered customer property – based on the amounts shown on the final customer statements issued by BLMIS in November 2008 (the "Last Statement Method").
The SIPA Trustee rejected that method, as those statements were fiction.
United States Bankruptcy Court for the Southern District of New York
After the filing of a number of objections, the SIPA Trustee filed a motion with the United States Bankruptcy Court for the Southern District of New York seeking an order affirming his use of the Net Investment Method in calculating "net equity."
Both SIPC and the SEC submitted briefs supporting the SIPA Trustee's motion.
A hearing was held at the United States Bankruptcy Court for the Southern District of New York on February 2, 2010.
On March 1, 2010, the United States Bankruptcy Court for the Southern District of New York granted the SIPA Trustee’s motion for an order denying customer claims for amounts listed on the BLMIS last customer statement and affirming the SIPA Trustee’s determination of net equity and entered a memorandum decision. On March 8, 2010, the United States Bankruptcy Court for the Southern District of New York entered an order implementing that decision.
The memorandum by the Honorable Judge Burton R. Lifland noted that “[a]ny dollar paid to reimburse a fictitious profit is a dollar no longer available to pay claims for money actually invested.” Further, the order noted that those claimants who withdrew funds from their BLMIS accounts that exceeded their initial investments “would receive more favorable treatment by profiting from the principal investments of [those claimants who have withdrawn less money than they deposited], yielding an inequitable result.”
Finally, the memorandum noted that the Net Investment Method, unlike the Last Statement Method, allowed The SIPA Trustee to “unwind, rather than legitimiz[e], the fraudulent scheme.”
Appeal to the United States Court of Appeals Certified
Certain claimants elected to appeal the decision. The appeal was certified directly to the United States Court of Appeals.
On September 20, 2010, both the SIPA Trustee and the Securities Investor Protection Corporation (SIPC) filed briefs in support of the "Cash In/Cash Out" net equity methodology.
On September 21, 2010, the SEC filed an amicus brief that supported the SIPA Trustee's Net Investment Method, asserting that it is required by SIPA and is consistent with precedent.
Oral arguments were held on March 3, 2011 before a panel of three Justices of the United States Court of Appeals for the Second Circuit.
On August 16, 2011, the United States Court of Appeals for the Second Circuit issued an order affirming the decision of United States Bankruptcy Court for the Southern District of New York as "legally sound," noting that "Use of the Last Statement Method in this case would have the absurd effect of treating fictitious and arbitrarily assigned paper profits as real and would give legal effect to Madoff's machinations."
Petition for Panel Rehearing, or, in the Alternative, Rehearing en banc Filed
A petition was filed with the United States Court of Appeals for the Second Circuit for a panel rehearing, or, in the alternative, for rehearing en banc.
Panel Rehearing or Rehearing en banc Denied
On November 8, 2011, the petition was denied.
Petitions for Writs of Certiorari Filed with Supreme Court of the United States
Three petitions for writs of certiorari were filed with the Supreme Court of the United States seeking review of the United States Court of Appeals decision. The SIPA Trustee submitted briefs in opposition on March 9, 2012. SIPC submitted briefs in opposition on March 9, 2012, and the SEC submitted a brief in opposition on May 24, 2012. On June 4, 2012, one of the writs of certiorari was withdrawn, a result of settlement with the SIPA Trustee.
Petitions for Writs of Certiorari Denied – Net Equity Upheld
On June 25, 2012, the Supreme Court entered an order that it refused to grant the petitions, thereby upholding the net equity methodology, ending the appeals process and resolving the matter.
The Supreme Court of the United States announced, on June 25, 2012, that it had denied two writs for certiorari which had asked the Court to review the SIPA Trustee’s net equity methodology. The Court’s action finalized the SIPA Trustee’s “cash-in, cash-out” formula as the measure for determining eligibility for pro rata distributions from the BLMIS Customer Fund.
On July 26, 2012, the SIPA Trustee filed a motion in the United States Bankruptcy Court for the Southern District of New York seeking approval for an allocation of recovered monies to the BLMIS Customer Fund and for a second pro rata interim distribution from the Customer Fund to BLMIS customers with allowed claims.
However, over time, more than 1,200 objections had 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, sought by certain claimants.
On August 22, 2012, the Honorable Burton R. Lifland approved the SIPA Trustee’s motion for the allocation and a second pro rata interim distribution distribution and, at the same time, ordered the SIPA Trustee to establish a reserve representing 3 percent of all BLMIS Customer Fund recoveries, should the time-based damages matter be resolved in favor of the appellants. To date, that reserve amount totals $1.449 billion.
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 certain objecting parties on September 24, 2013. 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.
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 was originally scheduled for May 28, 2015. For more information on this filing, click here.
On May 26, 2015, the SIPA Trustee filed a notice of adjournment of the May 28 hearing for approval of the sixth interim distribution motion. The notice, filed with the United States Bankruptcy Court for the Southern District of New York, adjourns the hearing until July 29, 2015.
The May 28 hearing was originally scheduled for seven days after the expiration of the time period within which claimants could ask the Supreme Court of the United States to review the Second Circuit decision by filing a petition for a writ of certiorari. If no petitions had been filed, the SIPA Trustee’s sixth distribution motion hearing would have been able to go forward on that date.
Although as of May 26, 2015, no petitions for certiorari have been filed, certain parties requested an extension of the deadline to file a petition for certiorari. The request was granted by the Supreme Court of the United States and the deadline was extended to July 20, 2015.
The SIPA Trustee is hopeful that no petition for certiorari will be filed with the Supreme Court by July 20 so that the hearing regarding the sixth distribution motion may go forward on July 29, 2015. If the distribution motion is approved, the SIPA Trustee will release $1.249 billion of the reserved $1.449 billion, with $904 million available for immediate distribution to customers with allowed claims.
However, if a petition for certiorari is filed by July 20, 2015, the sixth distribution motion hearing will be adjourned again, until such time as the Supreme Court resolves the petition for certiorari.