Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC (In re Madoff Securities)

501 B.R. 26, 2013 WL 5813881
District Court, S.D. New York·Decided October 28, 2013·No. No. 12 MC 115(JSR)·Published·Cited by 124 cases

Opinion

OPINION AND ORDER

JED S. RAKOFF, District Judge.

Section 550(a) of the Bankruptcy Code empowers the trustee of a bankruptcy estate to recover property transferred by the debtor from “the initial transferee of such transfer or the entity for whose benefit such transfer was made” or “any immedi[28]*28ate or mediate transferee of such initial transferee,” but only “to the extent that a transfer is avoided” under one of the Bankruptcy Code’s avoidance provisions. 11 U.S.C. § 550(a) (emphasis added). The question raised in this consolidated proceeding is whether this limitation requires Irving Picard (the “Trustee”) — the trustee appointed under the Securities Investor Protection Act (“SIPA”), 15 U.S.C. § 78aaa et seq., to administer the estate of Bernard L. Madoff Investment Securities LLC (“Madoff Securities”) — to obtain a judgment of avoidance of Madoff Securities’ transfers before he can recover those transfers from a subsequent transferee, and, if so, against whom he must obtain that judgment.

The Court assumes familiarity with the underlying facts of Madoff Securities’ fraud and ensuing bankruptcy, and recounts here only those facts that are relevant to the instant issues. Prior to its bankruptcy, Madoff Securities derived much of its funding from large investments by so-called “feeder funds”: investment funds that pooled their own customers’ assets for investment with Madoff Securities. Throughout the course of such investment relationships, these feeder funds periodically received from Madoff Securities payments based on the profits stated in their monthly customer account statements. The feeder funds then used these withdrawals to pay their investors, fund managers, and other entities.

The instant consolidated proceeding involves entities that received payments from two such feeder funds: Fairfield Sentry Ltd. (“Fairfield”), one of Madoff Securities’ largest feeder funds,1 and Kin-gate Global Fund Ltd. (“Kingate”). In April and May of 2009, the Trustee brought adversary proceedings against Kingate and Fairfield, respectively, asserting claims for avoidance and recovery of transfers of customer funds from Madoff Securities. See Deck of Adam A. Shajn-feld dated Oct. 5, 2012 (“Shajnfeld Deck”), Ex. C (Am. Compl., Picard v. Fairfield Sentry Ltd., Adv. Pro. No. 09-1239 (Bankr.S.D.N.Y. filed July 20, 2010); Compl., Picard v. Kingate Global Fund, Adv. Pro. No. 09-01161 (Bankr.S.D.N.Y. filed Apr. 17, 2009). Shortly thereafter, having lost in the wake of Madoff Securities’ collapse substantial amounts of what turned out to be fictitious profits, both Fairfield and Kingate entered into liquidation proceedings in the British Virgin Islands. See Deck of Yavar Bathaee dated Oct. 5, 2012, Ex. A (Compk ¶ 2), Picard v. Standard Chartered Financial Servs. (Luxembourg S.A.J, No. 12 Civ. 4328 (S.D.N.Y. Apr. 26, 2012) (“Standard Chartered Compk”). In 2011, the Trustee and Fairfield’s liquidators entered into a settlement agreement that terminated the Trustee’s adversary proceedings, pursuant to which Fairfield agreed to entry of a consent judgment in favor of the Trustee for the entire amount of transfers sought to be avoided. See Shajnfeld Deck Ex. D (Settlement Agreement); Ex. E (Consent Judgment). That consent judgment was entered on July 13, 2011. The Trustee’s adversary proceeding against Kingate remains pending.

In addition to seeking the avoidance of transfers from Madoff Securities to Kin-gate and Fairfield, the Trustee has also brought adversary proceedings against those who received transfers of customer funds from the feeder funds (the “subse[29]*29quent transferees”), seeking recovery of those transfers pursuant to 11 U.S.C. §§ 550(a) and 551, as well as N.Y. Debtor and Creditor Law § 278. See, e.g., Standard Chartered Compl. ¶¶ 58-67. In each of these actions, the Trustee alleges that Fairfield and/or Kingate received avoidable transfers of customer property from Madoff Securities, that portions of those initial transfers were then transferred to the subsequent transferees, and that those amounts are now recoverable under section 550(a). See, e.g., id. ¶¶ 43-46, 50-53; Shajnfeld Decl. Ex. A (Compl. ¶¶ 182-89, Picard v. Citibank, N.A., Adv. Pro. No. 10-05345 (Bankr.S.D.N.Y. Dec. 8, 2010)) (“Citi Compl.”).

It is these subsequent transferees of Fairfield and Kingate who have raised the issues related to the interpretation of section 550(a) now before this Court. Specifically, the defendants have moved to dismiss the Trustee’s complaints in their respective adversary proceedings, arguing that the Trustee has failed to avoid the relevant transfers from Madoff Securities, thereby precluding recovery from them under section 550(a). See 11 U.S.C. § 550(a) (permitting recovery of transfers “to the extent that a transfer is avoided” under one of the Bankruptcy Code’s avoidance provisions). The defendants here also moved to withdraw the reference to the Bankruptcy Court, which the Court granted with respect to the following issues: “(1) whether, as a precondition for pursuing a recovery action against a subsequent transferee under 11 U.S.C. § 550(a), the Trustee must first obtain a fully litigated, final judgment of avoidance against the relevant initial transferee under 11 U.S.C. §§ 544, 547 or 548 or (2) whether the Trustee’s recovery action against a subsequent transferee under 11 U.S.C. § 550(a) must be dismissed unless the Trustee has obtained a judgment against the relevant subsequent transferee avoiding the initial transfer or he asserts a claim against the subsequent transferee to avoid the initial transfer within the period prescribed by 11 U.S.C. § 546(a).” Order at 2, No. 12 Misc. 115, ECF No. 314 (S.D.N.Y Aug. 22, 2012). The Court received consolidated briefing on each of these issues from the defendants, the Trustee, and the Securities Investor Protection Corporation (“SIPC”), and heard oral argument on December 3, 2012. On December 5, 2012, the Court denied the defendants’ motions in a “bottom-line” Order. See Order, No. 12 Misc. 115, ECF No. 422 (S.D.N.Y. Dec. 5, 2012). This Opinion and Order explains the reasons for that decision and directs further proceedings to be returned to the Bankruptcy Court.

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Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC (In re Madoff Securities), 501 B.R. 26, 2013 WL 5813881 (S.D.N.Y. 2013).

501 B.R. 26 (Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC (In re Madoff Securities)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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