Category: Fraud

Ex-Madoff Finance Chief Frank DiPascali Pleads Guilty

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Frank DiPascali, the finance chief at Bernard Madoff’s investment advisory business, pleaded guilty to helping his boss carry out a $65 billion Ponzi scheme. DiPascali pleaded guilty to 10 counts, including conspiracy, fraud and money laundering. DiPascali has been cooperating with prosecutors, explaining how he and others helped Madoff defraud investors by using money from new clients to pay earlier ones at Bernard L. Madoff Investment Securities LLC.

Maybe we will get some insight into how the fraud began and what sent Madoff and DiPascali over to the dark side. The crime is done and the victims have lost. I am hoping to get some insight into the fraud so we can apply those lessons going forward.

In addition to the criminal proceedings, the Securities and Exchange Commission also filed a complaint against DiPascali. He has consented to a proposed partial judgment, which would impose a permanent injunction against him. The part DiPascali did not consent to were the issues of disgorgement and a financial penalty which will be decided at a later time.

The judge denied a bail request by prosecutors and DiPascali’s lawyer, who argued that sending him to jail would hamper his cooperation in the investigation. He is expected to provide prosecutors with a road map of those in the Madoff inner circle who were involved in the scheme that swindled investors out of an estimated $64.8 billion.

References:

DiPascali to Plead Guilty as Madoff’s Accomplice

Frank-DiPascali

Frank DiPascali, the finance chief at Bernard Madoff’s investment advisory business, is being charged with 10 crimes related to his boss’s $65 billion Ponzi scheme.

Nobody thinks Madoff was acting alone in his scheme. They already arrested Madoff’s auditor, David G. Friehling.

U.S. Attorney Lev Dassin posted the charges today in a one- page filing on his Web site. DiPascali faces up to 125 years in prison on all the counts. Prosecutors will detail the charges DiPascali will admit before U.S. District Judge Richard Sullivan later today. In a letter to the judge on Aug. 7, Dassin said DiPascali is expected to waive his right to an indictment and plead guilty to charges contained in the information.

Here are the charges against DiPascali:

Count Charge Maximum Penalties
ONE Conspiracy 5 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $250,000 or twice the gross gain or loss; mandatory $100 special assessment; restitution.
TWO Securities Fraud 20 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $5,000,000 or twice the gross gain or loss; mandatory $100 special assessment; restitution.
THREE Investment Adviser Fraud 5 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $10,000 or twice the gross gain or loss; mandatory $100 special assessment; restitution.
FOUR Falsifying Books and Records of a Broker Dealer 20 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $5,000,000 or twice the gross gain or loss; mandatory $100 special assessment; restitution.
FIVE Falsifying Books and Records of an Investment Adviser 5 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $10,000 or twice the gross gain or loss; mandatory $100 special assessment; restitution.
SIX Mail Fraud 20 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $250,000 or twice the gross gain or loss; mandatory $100 special assessment; restitution.
SEVEN Wire Fraud 20 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $250,000 or twice the gross gain or loss; mandatory $100 special assessment; restitution.
EIGHT International Money Laundering To Promote Specified Unlawful Activity 20 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $500,000, or twice the value of the monetary instruments or funds involved, or twice the gross gain or loss; mandatory $100 special assessment; restitution.
NINE Perjury 5 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $250,000, or twice the gross gain or loss; mandatory $100 special assessment; restitution.
TEN Federal Income Tax Evasion 5 yrs. imprisonment; 3 yrs. sup. release; fine of the greatest of $250,000 or twice the gross gain or loss; costs of prosecution; $100 special assessment.

References:

The Rise in Financial Crime in America

The Economist is reporting that there were over 730,000 counts of suspected financial wrongoing recorded in America last year. Financial institutions filed nearly 13% more reports of fraud compared with 2007. The number of mortgage frauds rose by 23% to almost 65,000.

This poses the classic compliance conundrum: Is there more fraud occurring, or is more fraud being detected/reported?

US-financial-Fraud

Corporate Compliance Scam Comes to North Carolina

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A vigilant reader in North Carolina received an “Annual Minutes Requirement Statement” from Corporate Compliance Services. We have seen a similar scam in California, Colorado, Florida, Georgia, Indiana, Illinois, Massachusetts, Montana, New York, Ohio, and Texas.

The very official document cites North Carolina General Statute §55-16-01(a) with the requirement that a corporation must keep a permanent record of all meetings of its incorporators, shareholders and board of directors, and all actions taken.

This form does not act as a record of the meetings, but is merely a list of the directors, officers, and shareholders. It does not even meet the requirement of the statute it cites.

North Carolina General Statute §55-16-01(c) requires a corporation to maintain a record of its shareholders in a form that permits preparation of a list of the names and addresses of all shareholders, in alphabetical order by class of shares showing the number and class of shares held by each.

The form provides a list of shareholders and the number of shares, but does not record the class of shares. That appears to make the form defective and would not meet the requirements of the statute.

In fairness to the Compliance Services,  the form and the company’s website both state that they not connected with any government agency.  Throw their form in the garbage and check with your attorney to make sure the proper corporate procedures and record-keeping are in place.

According to a source at the North Carolina Department of Justice, anyone who has lost money to this Raleigh, NC version of the scam is invited to contact Jennifer Pulley of the NC Attorney General’s Consumer Protection Division, tel. 919-716-6000.

See a larger image of the form.

Stanford Arrested

stanford

We saw it coming. It was like OJ in the Bronco. Last night, Sir R. Allen Stanford stepped out of his girlfriend’s house in Virginia, walked over the the FBI car parked out front and asked if they had an arrest warrant. They did. The grand jury had released its indictment.

The surprise was who else is included in the charges. I expected Laura Pendergest-Holt, chief investment officer of Stanford Financial. We knew about her problems as part of her Lawyer’s Noisy Withdrawal from Stanford Case. (He wasn’t her lawyer, which led to all kinds of trouble.)

Prosecutors also alleged that the fraud was aided by Leroy King, administrator of the Financial Services Regulatory Commission in the island nation of Antigua and Barbuda, where the Stanford firms were headquartered. Mr. King is charged with accepting $100,000 in bribes. They claim Leroy King facilitated the Ponzi scheme by ensuring that the FSRC “looked the other way” and conducted sham audits and examinations of Stanford’s books. Mr. King also provided Stanford with access to the FSRC’s confidential regulatory files, including requests by the SEC for assistance in investigating a possible Ponzi scheme.

The complaints also targeted Gilberto Lopez and Mark Kuhrt, accountants for Stanford-affiliated companies. It claims that they fabricated financial statements. Using a pre-determined return on investment number, Lopez and Kuhrt reverse-engineered the bank’s financial statements to report investment income that the bank did not actually earn. Information in Stanford’s financial statements and annual reports to investors about the bank’s investment portfolio bore no relationship to the actual performance of the bank investments.

We also learned that James Davis, chief financial officer of Stanford Financial, is cooperating with the investigation. He was named as a co-conspirator, but was not charged.

Vijay-Singh-StanfordIn other Stanford news, Vijay Singh walked out on the ninth green this morning sporting his sponsor’s logo and attire. The sponsor? Stanford Financial Group. I guess they are still sending him endorsement checks.

References:

Corporate Compliance Scam Continues. . .

. . But some of the perpetrators may have been caught.

California

California businesses have recent reports.  The scam seems to have been operating in California for years.

Colorado

There are reports of the scam in Colorado: State Corporate Compliance fraud. The Secretary of State is also getting complaints about the Colorado Compliance Recorder: Updated Notice Regarding “Annual Minutes” Solicitations

Indiana

Indiana issued a warning that several businesses have reported receiving a deceptive letter that would appear to come from an official government source. The letter solicits an annual fee of $125 or $150 and claims it will be used for record keeping and processing of a company’s annual minutes. It gives the appearance of coming from a legitimate government agency and cites fictitious state law. Scam Alert for Businesses in Indiana. But the Secretary of State has filed a complaint to try to stop the scam.

Montana

Montana has issued a warning, although the Secretary of State has not received any complaints and is not aware of any Montana businesses being affected: Business Scam Alert (.pdf) (I am not sure that I agree that the scam is “potentially dangerous.”)

New York

In the Empire State, it looks like the scam has spread to condominiums and cooperatives: Scam or Useful Service? The Corporate Records Compliance Office Speaks

Texas

It looks like the scam has been operating in Texas for a few years, masquerading as a state agency.  They may have caught the person behind some of it: Californian Charged With Unlawfully Profiting From Fake State Document Scheme.

Others

Previously, I noted that the scam was found in Florida, Georgia, Illinois,  Massachusetts, and Ohio.

Catching the Bad Guys

Its not clear if the scams in each state are perpetrated by the same group. The Indiana Secretary of State filed a complaint against Aaron V. Williams of Las Vegas, Lisa Diane Brown of California and several companies affiliated with them. (Of course these people have merely charged and are not necessarily guilty.)

UPDATE:

The Texas Attorney General filed suit against other parties, but the suit was dismissed.

References:

New Frontier: Best Practices in Fraud Investigations and EmergingTrends in SEC and DOJ Enforcement

securitiesdocket

Securities Docket sponsored a webinar addressing critical questions about recent changes in the economic and political climates, emerging trends in SEC and DOJ enforcement, and the potential impact on lawyers, accountants, investigators, and other consultants who perform fraud investigations. It also outlined best practices when conducting investigations for the DOJ and SEC.

Panelists:

  • Gary Kleinrichert, Senior Managing Director in FTI Consulting’s Forensic and Litigation Consulting Practice
  • Pravin Rao, formerly an Assistant U.S. Attorney in the Northern District of Illinois and currently a partner in the Litigation group of Perkins Coie
  • Jose A. Lopez, formerly a Senior Attorney at the United States Securities and Exchange Commission’s Division of Enforcement and currently a partner at Schopf & Weiss LLP

The webcast is available for replay. But if you want to browse, these are my notes:

Gary started the presentation by noting there is a change in regulatory focus and likely to be a new regulatory framework. He also pointed out that the SEC has become aggressive in bringing securities cases.

He noted that the hedge funds and other pooled investments will be regulated although the scope is still uncertain.

After a lengthy run through some other potential and recent regulatory changes, Gary pointed out a few things that you can do right now:

  • Be preventative
  • Review Sarbanes-Oxley, financial reporting, and securities compliance
  • Whistleblowers – Speak with lawyers to ensure internal policies are effective

Jose took over and highlighted President Obama’s impact on the SEC. Again, they are getting more aggressive. How can you survive in this hostile environment:

  • Master the SEC’s Enforcement Manual (.pdf)
  • Conduct an Effective Investigation
  • If Charges Are Filed, Aggressively Seek Information and Documents

Jose advocated requesting a Termination Notice from the SEC. The SEC’s Enforcement Manual (.pdf) provides that the Division should notify individuals and entities at the earliest opportunity when the staff has determined not to recommend an enforcement action against them to the Commission.

There was discussion about witness assurance letters, providing civil immunity for witnesses. In limited circumstances and with specific authorization of the Commission, SEC staff may provide a witness with a letter assuring him or her that the SEC does not intend to bring an enforcement action. There seems to have been little use of this procedure. In practice its use has not materialized.

Pravin focused on the Department of Justice enforcement activities. The DOJ had a focus on terrorism. He has seen a shift back to financial crimes. There is also more white collar crime legislation coming out of Washington.

he offered up two guiding principles for internal investigations:

  • “One size does not fit all“
  • “What you don’t know can hurt you”

You want to conduct an internal investigation:

  • Identify and limit harm to the company
  • Obligations under laws, regulations to self-disclose
  • Assist in criminal defense of company
  • Puts company in better light with government regulators
  • Puts company in better light with shareholders, public

He stressed the need for an developing a game plan for the investigation. You need to define the scope and decided who should be interviewed.

The materials are available on the Securities Docket website: Today’s Webcast (June 15): Materials Available Here for “A New Frontier: Best Practices in Fraud Investigations and Emerging Trends in SEC and DOJ Enforcement”

You’re a Victim of a Ponzi Scheme, But What About Your State Taxes?

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You missed the warning signs and got suckered into a Ponzi scheme. The IRS offered some tax relief for long-term Ponzi scheme investors (like some of the Madoff victims) who have paid taxes on gains from the investment. The IRS clarified the federal tax law governing the treatment of losses in Ponzi schemes. They also set out a safe harbor method for computing and reporting the losses.

The revenue ruling (2009-9) addresses the difficulty in determining the amount and timing of losses from Ponzi schemes and the prospect of recovering the lost money. The revenue procedure (2009-20) simplifies compliance for taxpayers by providing a safe-harbor for determining the year in which the loss is deemed to occur and a simplified means of calculating the amount of the loss.

But what about state taxes?

California: On March 25, 2009, the California Franchise Tax Board announced that the federal guidance (Revenue Ruling 2009-9 and Revenue Procedure 2009-20) regarding the treatment of Madoff-related or other Ponzi scheme losses would be generally applicable for California purposes.

Connecticut: On April 9, 2009, the Connecticut Department of Revenue Services released Connecticut Announcement No. 2009(7), which describes the effect for Connecticut income tax purposes of the reporting of Madoff-related or other Ponzi scheme losses under the Revenue Procedure 2009-20 safe harbor and under Revenue Ruling 2009-9. In general, Connecticut does not allow federal itemized deductions for Connecticut income tax purposes. Thus, any theft loss deduction claimed by a taxpayer under the Revenue Procedure 2009-20 safe harbor will not affect a taxpayer’s 2008 Connecticut income tax liability. However, if the amount of a taxpayer’s theft loss deduction allowed under Revenue Ruling 2009-9 or Revenue Procedure 2009-20 creates an NOL, then the taxpayer must file amended Connecticut income tax return(s) for the year(s) to which such NOL may be carried back for federal income tax purposes.

Massachusetts: On March 20, 2009, Massachusetts issued: “Notice—Individual Investors; Investments in Criminally Fraudulent Ponzi-type Schemes and Reporting of Fictitious Investment Income.” Massachusetts did not adopt the Revenue Procedure 2009-20 safe harbor in the case of individual investors since Massachusetts tax law does not recognize the theft loss deduction provided under federal tax law.

New Jersey: On April 2, 2009, the New Jersey Division of Taxation had issued guidance on the treatment of Madoff-related
or other Ponzi scheme losses for New Jersey gross income tax purposes. Under this guidance, taxpayers are allowed a theft
loss deduction for New Jersey gross income tax purposes in an amount equal to the original investment plus the income
reported in prior years minus distributions received in prior years. New Jersey does not allow NOL carrybacks or carry
forwards.

New York: On May 29, 2009, the New York State Department of Taxation and Finance issued guidance TSB-M-09(7)I (.pdf) on the
reporting of Madoff-related or other Ponzi scheme losses. In general, New York State will recognize the Revenue Procedure
2009-20 safe harbor.

For more information, Seyfarth Shaw put together some information: Some States Have “Weighed In” on Tax Treatment of Madoff-Related and Other Ponzi Scheme Losses (.pdf)

Watch Frontline’s “The Madoff Affair” Online

For those of you who missed last night’s airing of “The Madoff Affair” it’s now available online.

The program has a startling interview of Michael Bienes, one of the first people to set up a feeder fund for Madoff. Bienes describes those early years as “easy, easy-peasy, like a money machine.” When asked if he had ever questioned Madoff about his approach, Bienes says: “Never. Why would I ask him? I wouldn’t understand it if he explained it.” Bienes didn’t know how Madoff was doing it. “How do I know? How do you split an atom? I know that you can split them; I don’t know how you do it. How does an airplane fly? I don’t ask.”

My previous assumption was that Madoff started off legitimate and went bad somewhere along the way. Based on the Bienes interview I am rethinking that assumption. It sounds like Madoff went bad very early on, maybe even from the beginning.

You can watch the video below:

There is additional material on the Frontline website for The Madoff Affair:

“Hello, Madoff” What the Secretary Saw

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The June issue of Vanity Fair continues its coverage of Bernie Madoff. This issue centers around Eleanor Squillari, who spent two decades as Madoff’ private secretary.

The article, entitled “Hello, Madoff!,” is accompanied by more than a dozen intimate photos of Madoff and his family from as far back as the 1970s.

According to Eleanor Squillari, Bernie Madoff was a sexist, egomaniacal, short-tempered control freak—yet everybody loved him.

At first, I was not interested in the story. It looked a little sordid for me. Then I saw this quote:

Squillari recalls an unusually prescient conversation she had with Madoff years earlier, after a client’s secretary had been arrested for embezzlement. “You know, [he] has to take some responsibility for this,” Madoff told Squillari. “He should have been keeping an eye on his personal finances. That’s why I’ve always had Ruth watching the books. Nothing gets by Ruth.” Squillari says she was surprised when he added: “Well, you know what happens is, it starts out with you taking a little bit, maybe a few hundred, a few thousand. You get comfortable with that, and before you know it, it snowballs into something big.”

Perhaps the story will give us some insight into what makes a person go bad.

For a preview, there is a video of Vanity Fair’s Mark Seal interviewing Eleanor Squillari: Bernie Madoff’s Secretary Spills His Secrets.

Part I of Vanity Fair’s coverage of Madoff was in the April issue: Madoff’s World.