Even after two years, the Madoff scandal continues to fascinate. Following close on the heels of last week’s news of Mark Madoff’s tragic suicide is the absolutely arresting news of Jeffry Picower’s estate’s $7.2 billion settlement with the U.S. government – to be specific, the precise amount of the settlement is $7,206,157,717, according to the Southern District of New York U.S. Attorney’s December 17, 2010 press release.



According to the press release, the settlement amount represents “all the profits Picower withdrew over the years.” Picower apparently first invested with Madoff in the late 70’s, and withdrew billions over time. After Madoff’s scheme was exposed “it became clear” that Picower had “profited at the expense of more recent [Madoff] investors.”




One aspect of the settlement, and apparently a critical condition on which Picower’s widow had insisted, is the provision that “neither Picower nor any of the related entities participating in the settlement had any involvement in, or knowledge of, Madoff’s fraud.”




This settlement will not leave Picower’s widow destitute. Most of this money had been intended for a philanthropic foundation, not for Picower’s heirs. According to the Washington Post (here), Picower’s widow will retain $200 million and his daughter will retain $25 million, the funds for all of which reportedly derived from sources other than Madoff-related profits.




Those readers who are curious to know exactly how a $7.2 billion civil forfeiture works will want to take a look at the U.S. Attorney’s December 17, 2010 forfeiture complaint. The complaint, which can be found here, is styled as an action by the United States against the “Defendant in rem” – specifically, “$7,206,157,717 on Deposit at J.P. Morgan Chase Bank, N.A..”




Among other interesting tidbits, the complaint reveals that, in order to generate those $7.2 billion in profits, the total amount that Picower had invested with Madoff’s investment advisory services was $617,456,578 – which by my calculation means that Picower’s investment with Madoff had supposedly generated lifetime returns of over 1,100%)




The estate’s December 17, 2010 stipulation of settlement with the government, which can be found here, represents in effect the estate’s agreement to forfeit the Defendant in rem to the government, to be effected, the stipulation recites, by the Clerk of Court’s issuance of “a warrant for the arrest of the Defendant in rem.”




Southern District of New York Judge Thomas Greisa approved the forfeiture case settlement. The settlement remains subject to the bankruptcy court’s approval.




This dual judicial approval is required because the settlement actually represents two different funds to be paid in settlement of two different matters. One fund, in the amount of $5 billion, is to be paid in settlement of the adversary proceeding the SIPC Trustee Irving Picard had filed against Picower in the bankruptcy court. The remaining $2.2 billion is actually in settlement of the civil forfeiture proceeding itself. Picard is to administer both funds for the benefit of the Madoff victims according to the detailed procedural specifications in the settlement stipulation.





The New York Times speculates that as a result of this and other recoveries, those who lost the amount of their principal investment by investing with Madoff may recover as much as 50 percent of their losses.




Special thanks to a loyal reader for providing the Picower settlement documents.




The Next Act of this Icelandic Saga Will Not be Staged in New York: Many readers may recall my May 2010 post about the events surrounding the failure of Iceland’s Glitnir Bank and the subsequent lawsuit filed in New York state court against the bank’s controlling shareholder and his wife, certain former bank directors and officers, and the Bank’s auditor.




At the time, I noted that “the obvious question about this case is what the heck is it doing in state court in New York?”




Apparently, the New York state court judge in charge of the case had exactly the same question. As reflected in Julie Triedman’s December 17, 2010 Am Law Litigation Daily article (here), on December 15, 2010, Judge Charles Ramos has thrown out the lawsuit on forum non conveniens grounds.




According to the article, among other issues with which Ramos was concerned was the practical problem associated with language translation. Judge Ramos seemed to accept the argument of counsel for one of the defendants, who had asked the Judge to “imagine the burden of trying to translate that all? We can’t even pronounce the names, much less translate this all.” (In that regard, I note that in typing my prior post about this case, I was unable to accurately reproduce the individual defendants’ names, as the requisite typographic symbols are simply unavailable.)




Judge Ramos also seemed annoyed by the very idea that this case could be added to his judicial burdens. The article reports that Judge Ramos said “you know something, we don’t need extra work. How many cases does the average judge in Iceland have in their inventory?…I’ve got 350.”




Demonstrating the true New Yorker’s perception of geography, Ramos added that “what I see unfolding is a case that is going to show me that the conspiracy was hatched in Iceland or Denmark or some place, but not necessarily New York.”




Ramos conditioned his dismissal on the defendants’ acceptance of jurisdiction in Icelandic courts. He advised the plaintiffs’ counsel to “get yourself a plane ticket.”




And Speaking of Failed Banks: Meanwhile, while everyone was distracted with other things, the FDIC quietly closed six more banks this past Friday night, bringing the 2010 YTD total to 157. There could be more bank failures yet to come this year, but given that next Friday is Christmas Eve and the following Friday is New Year’s Eve, the FDIC might be done closing banks, for this year at least.




Though the monthly totals fluctuated throughout the year from a monthly low of seven failed banks in February 2010 to a monthly high of 23 in April 2010, it definitely seems as if the bank closure pace slowed as the year progressed. There have been only 71 bank failures in the second half of 2010, compared with 86 in the first half. Moreover, after the FDIC closed 22 banks in July 2010, the agency closed only 49 banks over the following give months (an average of just under 10 banks a month).




The six bank closures this past Friday included three more bank in Georgia. There have been 51 bank failures total in Georgia since January 1, 2008, the highest total for any state during that period.




But the state with the highest number of bank closures in 2010 is Florida, which with one more bank closure this past Friday now has had 29 bank failures this year. (Georgia is second in 2010 bank failures with 21.) Florida also has the second highest number of bank failures since 2010, with 45.




Since January 1, 2010, there have now been a total of 322 bank failures. With 860 banks ranked as “problem institutions” in the agency’s most recent Quarterly Banking Profile, it seems likely that bank failure will likely continue as we head into 2010.




A Spectral Italian Vintner, Perhaps?: Novelist Jay McInerney’s wine column in this Saturday’s Wall Street Journal (here) contained this sentence: “When the elder brother died, he returned to Italy to run the family business.” In fairness, the surrounding context makes some sense out of this otherwise incomprehesible sentence. Nevertheless, The D&O Diary feels compelled to throw a flag on this sentence for unnecessary roughness in the use of the English language.




And Finally: If you have not yet had someone send you a link to the marvelous December 16, 2010  “Let it Dough!” illustrations on Christoph Niemann’s Abstract City blog on the New York Times website, give yourself a treat and take a few minutes to check them out here. (The “Hot Toddies” illustration alone justifies the time to visit the site.)