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Madoff trustee Picard’s claims are stretching the law to its limits

Bernard Madoff

NEW YORK (Bloomberg) Legal attacks by the owners of the New York Mets and JPMorgan Chase & Co on the liquidator of Bernard Madoff’s bankrupt firm may cut his chances of winning $100 billion of lawsuits, reducing recoveries for its clients and undercutting bets traders have made on customer claims.The liquidator, Irving Picard, has filed 1,000 suits on behalf of Madoff investors. He sued JPMorgan Chase for $19 billion, equal to all the money lost by all investors in Madoff’s Ponzi scheme. He sued HSBC Holdings Plc and a dozen feeder funds for $9 billion, and seeks as much as $59 billion including trebled racketeering charges from Bank Medici AG, its founder, Sonja Kohn, and UniCredit SpA. The Mets owners, Fred Wilpon and Saul Katz, face a $1 billion suit.The banks say that Picard is straining the limits of the law as he tries to grab back money for victims of Madoff’s fraud. They’ve taken their cases out of bankruptcy court to higher district courts, which will decide whether Picard exceeded his powers. If the suits are scaled back, Madoff investors will get less money and lower prices for Madoff claims, now trading at about 70 cents on the dollar.“The general view is, Picard will have enough success with his lawsuits to provide substantial recovery over and above what has settled,” said Andrew Gottesman, who heads bankruptcy claims trading at SecondMarket in Manhattan. “That’s what’s driving pricing. If the trustee loses those lawsuits against the banks, traders’ sense of the risk involved would change.”Many of Picard’s suits are based on the theory that banks and investors had a duty to investigate what Madoff was doing. Instead, he says they ignored signs of possible fraud such as the con man’s low-grade accountants and unusually steady results.JPMorgan, Madoff’s primary banker, could have stopped the fraud if it had passed on its suspicions to regulators, Picard said in his suit, revised on June 24 to triple his demands from an earlier complaint. New York-based JPMorgan, the second- biggest US bank, “knew” that billions of dollars flowing through the Madoff account “could not have been linked to a legitimate business purpose,” he wrote. Banks, though, don’t have a duty to investigate customers, JPMorgan says. Picard’s interpretation of banking law “would impose broad investigative duties on banks that do not exist,” it said in February as it asked a district judge to take the case out of bankruptcy court where Picard filed it.In the US justice system, bankruptcy judges rank below district court judges and they’re not supposed to interpret undecided issues of non-bankruptcy law. That’s what the banks say Picard’s suits require US Bankruptcy Judge Burton Lifland, who is handling the Madoff case, to do. So Picard has to persuade a higher court that he has the authority to sue the banks for damages before he can try to get any money from them.US District Judge Jed Rakoff said on June 6 that he will decide if Picard can use US racketeering law to sue Milan-based UniCredit and other foreign banks, in the biggest challenge so far to the liquidator. Picard’s bankruptcy court suit against these banks represents about 60 percent of the money he is seeking for investors in the Ponzi scheme.