At the same time, Bernie never over-played his hand. Market structure issues were particularly divisive. Firms had differing perspectives, depending on their business models. Bernie didn’t try to “roll” the Board and push through issues on which there was not consensus. In the trading committees, he would try to find a middle ground, such as offering a market-wide trade through rule. His approach was shrewd – if he had pushed the Board to adopt positions with which their firms disagreed, he would have damaged his own credibility once the other firms realized what Bernie had tried to do. Such a strategy would have made it even more difficult for SIA to play any role in market structure issues. Bernie didn’t always get everything he wanted, but he sought to shape consensus and used his SIA relationship astutely.
At one SIA Board meeting in New York, Richard (“Dick”) Grasso, the CEO of the NYSE, came to address the Board. Market structure issues were among the contentious issues between some SIA members and the NYSE. Of course, Bernie was the most outspoken SIA member on trying to dismantle the NYSE’s huge market share and add competition. At the end of his presentation, Dick walked around the entire board room and warmly shook hands with all of the board members and staff. Everyone watched when Dick came to Bernie. They embraced like two Mafia Dons in a scene from The Godfather. The whole room erupted in laughter.
Bernie also was involved in the regulatory details and did so conspicuously. The SEC often invited him to participate in roundtables on market structure issues. At one of the roundtables, the topic was transparency of limit order books. Bernie said that most market makers want to see what other market makers were holding, but were reluctant to share the details of their own limit order books. Bernie said, in other words, it’s a matter of “if you show me yours, maybe I’ll show you mine.” Everyone laughed. Bernie also testified before Congress on market structure issues.
Bernie was involved in issues beyond market structure. There had been a dispute between the state securities regulators and the big broker-dealers over access to books and record. When state regulators came in for an inspection, the regulators would demand to see the records. If the inspection occurred at a local office, i.e., in another state, of a big New York-based firm, the firm would say that they didn’t have the records and that they were in New York. Frankly, the firms were not always speedy about providing records to a regulator at another state. The state regulators got frustrated and working through their trade association, NASAA, they started to consider passing state laws to require broker-dealers to keep records within that state. If they had been successful, every state could have instituted its own unique record keeping rule for broker-dealers. The result would have been a nightmare of expense and complexity.
Fortunately, Congress intervened and enacted the National Securities Markets Improvements Act of 1996 (“NSMIA”). Section 103 of NSMIA preempted states from adopting their own broker-dealer book and records rules or capital rules. At the same time, Congress directed the SEC to work with the states to develop a rule for books and records that would accommodate the states’ legitimate need for access to books and records. The SEC organized a meeting in New York City, a few weeks after 9/11, to hammer out a compromise with the firms and NASAA. Bernie was the only CEO who attended and participated in detailed discussion of record keeping rules.
BLMIS frequently sponsored SIA events. SIA always needed member firms and other vendors to sponsor conferences and meetings. Bernie was willing to step up, often on new conferences that had little or no track record. Of course, he was looking for other firms, particularly the retail wire houses, to route customer orders to his firm for execution. Nonetheless, his sponsorship was part of his camaraderie and effort to demonstrate that he was trying to help the industry and not just his own parochial interests. After every SIA conference, I came home with Madoff canvas bags, notebooks, or binoculars. Our kids slept in Madoff tee shirts.
As I have noted elsewhere, after the 9/11 attack when the lawyers in SIA’s New York office needed an alternative place to work, Bernie offered space at his midtown office. I had offers from other firms that were sincere, but I felt the most comfortable accepting Bernie’s offer. I figured that SIA’s lawyers would encounter fewer difficulties than if they went to another firm. When Bernie, as the CEO, issued the invitation, nobody was going to question who the SIA lawyers were and why were they taking up space at the firm. Other, much bigger firms, had much bigger bureaucracies to traverse, even if a very senior executive at that firm issued the invitation. No doubt those firms would have sorted out the mechanics, but I figured it would just be easier. Plus, I just liked Bernie.
SIA had an annual meeting at the Boca Raton Resort and Club. It was a very lavish affair and it attracted many of the most senior people in the securities industry. SIA sponsored entertainers like Ray Charles and Tony Bennett, and speakers, like John Major, Joe Torre, and Walter Cronkite. The meeting included an annual election of officers and a Board meeting, which was my responsibility. It was my responsibility to ensure that the chairman of the SEC attended to give a keynote address at the meeting. I also organized a meeting with the SEC chairman, the heads of the SROs, and SIA leadership. There was a dinner with the SEC chairman, Board, and SRO heads. Although the surroundings at Boca were luxurious, I had many responsibilities over the course of the meetings.
For reasons that I can’t recall, one evening at Boca, my wife Sherry and I were at loose ends for dinner, as was Bernie. We had dinner together, which was not something that I would have expected. As a staff guy, I was not a peer of Bernie and dinner with me would do nothing for his business. Nonetheless, we had dinner together and he was charming. He told us a self-deprecating story of how his family rented a house in Tuscany for a summer. One day, Bernie drove off to do an errand and in the days before Waze, got completely lost. He also realized he had not brought the address or the telephone number of the rental house. Bernie said that he got so lost that he was afraid that he would have to pull into a hotel and stay overnight until he could reach his secretary, Eleanor, when she was back in the office. She would have to provide him with the address and phone number of the rental house. Eventually, he found his way back later that day.
One year, I remember Bernie introducing me to his wife Ruth briefly at the lobby of the “Tower” i.e., one of the hotel buildings at Boca. I also remember asking if Bernie was staying in the Tower, but he said that he was on his yacht that he had docked nearby.
Peter’s daughter, Shana, an attorney, was head of compliance at BLMIS. She also was a member of the SIA Compliance and Legal (C&L) Division, and served on its Executive Committee. Shana was very active in the Division and attended the monthly Executive Committee meetings and at other SIA conferences or committee meetings. I also remember meeting one of Bernie’s sons at an SIA meeting in New York, but I can no longer remember which one. All of these actions helped establish the Madoff family as thoughtful industry leaders, with Bernie as the great statesman.
Proximity to, and familiarity with, regulators achieved two goals for Bernie and Peter Madoff. First, the regulators trusted Bernie and Peter. As a result, regulators were much less likely to scrutinize BLMIS’s activities than they would have with a firm unknown to them. Second, Bernie and Peter’s familiarity with regulators conveyed a sense of legitimacy to investors. A quick internet search would have revealed Bernie and Peter’s working relationships with the SEC and Congress. It also would have shown their leadership roles with organizations such as Nasdaq and SIFMA. Absent more information, it would have been logical for investors to assume that Bernie and Peter were completely honest.
The Madoff Scandal – The News Breaks
On December 1, 2008, I started as general counsel at the Managed Funds Association, just as the Great Recession was under way. Shortly thereafter, Bernie announced that his investment adviser was a Ponzi scheme. The SEC charged him on December 11, 2008. When the news broke, I was in shock. I called my wife Sherry and said “You won’t believe the news.” We both reacted with “Not Bernie!” Friends of mine in the securities industry had exactly the same reaction.
The news reports indicated that Bernie’s Ponzi scheme employed his investment adviser. I didn’t know that Bernie had an investment adviser; I only knew about the broker-dealer. As far as I knew, the broker-dealer, which he used to innovate and compete with the NYSE, was legitimate. A few weeks later at an MFA conference, I heard some fund of funds’ operators say that they didn’t invest with Madoff because the numbers were too good to be true. I never heard anyone say that before the scandal broke.
Certainly, competitive pressures and regulatory changes reduced market makers’ profits. For example, in the late 1990s, SEC Commissioner Steven Wallman and Congressman Mike Oxley and others began to pressure the securities industry to move from pricing stocks in eighths or even sixteenths and adopting decimal pricing. The market makers weren’t excited about that change, partly because of the cost of implementation, but more importantly because it would hurt their profitability. They argued that pricing in decimals would mean less liquidity at each price interval, such that the over price of executing a big order might not be less with decimal pricing. Nobody cared. The only real issue was that the timing for the conversion was not great. The securities industry had to adopt the changes for decimal pricing at the same time as preparing for Y2K. No doubt that the pressures of decimalization reduced the profitability of BLMIS, along with other market makers.
But the competitive and regulatory factors pale before the size of the fraud relating to Madoff’s so-called investment adviser. In fact, BLMIS, the broker-dealer, was “deeply insolvent,” as a result of the Ponzi scheme. According to the expert that the Securities Investor Protection Corporation trustee retained, BLMIS was insolvent from at least December 11, 2002, by over $10 billion. The Report states that “there is strong evidence to suggest that BLMIS was insolvent even decades before December 2002.”
The Expert Report and indeed the whole scandal raise the obvious question of “When did Bernie stop running a legitimate broker-dealer and start defrauding his advisory customers?” Did the fraud begin when Bernie and Peter were working with the Division of Market Regulation on market structure issues in the late 1970s and early 1980s? BLMIS supposedly used a “split strike” options trading strategy. The trading strategy, when done legitimately, involves using options to hedge positions in large cap stocks. In one interview, Bernie said that “by 1994 or 1995, I basically stopped doing the split strike entirely. I just had the money housed in treasuries.” Bernie was an experienced liar, so it is difficult to know whether this statement was accurate. Nonetheless, this statement seems consistent with other information, such as his sworn allocution as part of his guilty plea.
Would it matter if the Madoffs were engaged in a pyramid scheme starting in the late 1970s and 80s, i.e., when Bernie and Peter were giving public policy advice to the SEC regarding the National Market System? Even if that were true, the development of the National Market System had nothing to do with the fraud. Of course, Bernie and Peter were urging the SEC to make policy decisions that would favor their business. Nearly everyone who submits a comment letter to the SEC does that. Nonetheless, their insights (along with others) and their market making (again, along with others) demonstrated that U.S. equity markets could be more competitive. Their market structure advice had nothing to do with the fraud conducted through the investment adviser.
The SEC’s failure to uncover the fraud was unrelated to SEC rulemaking. The OIG Report documents repeated oversight failures. If BLMIS had been using the split strike strategy, it would have held large positions in equities and options, Unfortunately, the SEC never verified whether BLMIS owned the amounts of securities that it claimed. The OIG Report notes:
A January 2005 statement for one Madoff feeder fund account, which alone indicated that it held approximately $2.5 billion of S&P 100 equities as of January 31, 2005. On the contrary, on January 31, 2005, DTC records show that Madoff held less than $18 million worth of S&P 100 equities in his DTC account
Similarly, the SEC’s Division of Enforcement failed to pursue inconsistencies about BLMIS that it uncovered. When the SEC’s Division of Enforcement asked colleagues in the Division of Market Regulation to inquire whether BLMIS held a large position of options on May 16, 2006, the Division of Market Regulation reported that they “had found no reports of such options positions for that day.” Unfortunately, the Enforcement Division did not seek further information about the discrepancy. In other words, the public policy advice that Bernie and Peter Madoff gave to the SEC had nothing to do with the fraud.
Because of the Enforcement staff’s inexperience and lack of understanding of equity and options trading, they did not appreciate that Madoff was unable to provide a logical explanation for his incredibly consistent returns. Each member of the Enforcement staff accepted as plausible Madoff’s claim that his returns were due to his perfect “gut feel” for when the market would go up or down.
Further, Bernie’s understanding of trading allowed him to overwhelm SEC Enforcement staff that did not have adequate expertise. “The Enforcement staff’s lack of experience not only contributed to their failure to understand that Madoff’s returns could not be real, it also was a factor in their failure to conduct an effective investigation regarding how Madoff was creating those returns.”
In summary, BLMIS was a simple Ponzi scheme and did not depend on the SEC’s National Market System rulemaking. Bernie used his knowledge of markets and carefully cultivated his reputation with regulators to avoid close scrutiny for years. According to the OIM’s report, the Madoffs intimidated SEC Enforcement Division staff, who lacked expertise and were embarrassed to admit that they did not understand what Bernie was claiming. It was a perfect storm of failure.
The Madoff Scandal – Aftermath
As Bernie’s lies unraveled and the news media revealed the scope of the fraud, everyone I knew who had respected Bernie felt like a fool, including me. I came to realize that Bernie was a world class “confidence man” who astutely exploited human weakness to achieve his goals. I was in good company.
After telling people that I knew the Madoffs, the next question was inevitably, “Did you lose any money?” The answer was “No,” because I didn’t know that he had his crooked investment adviser. I wondered why Bernie never invited me to invest. Had I known, I would have given him every cent I had. When I raised this question with colleagues, I posited that the amount I would have “invested” with Bernie was too little for him to bother about. A more flattering view was that Bernie was afraid that I would figure out that he was running a fraud. Before the scandal broke, my friend and former colleague, Stephen Blumenthal, Esq. told me that Norman F. Lent (R-NY), by then a retired Member of Congress for whom we both had worked, told Steve that he (Norm) had invested his retirement money with Bernie. Steve wondered, if Bernie is so smart that he can produce such high, consistent returns, why does he need Norm Lent’s money? Why indeed?
Bernie created a persona as a person above reproach who wouldn’t steal a postage stamp. Bernie’s proximity to senior regulators and Members of Congress further enhanced his credibility. He established credibility with regulators and legislators by working with them constructively on broker-dealer regulatory issues, particularly the vexing market structure matters. Bernie and Peter understood both Wall Street and Washington, D.C. They operated with great skill in both milieus, which is rare.
Bernie did a stunning amount of human as well as financial damage across the world. He caused particularly great harm to numerous Jewish communities, both at the individual level and to Jewish philanthropic organizations. He employed the well-established technique of “affinity fraud.” He used his shared religious connection to cause people to trust him, when they otherwise might have been suspicious or undertaken more due diligence.
After the scandal erupted, everyone involved pointed fingers at everyone else. For example, in a hearing examining the Madoff scandal, the Senate Banking Committee asked FINRA if its examinations of Madoff’s broker-dealer revealed any fraud. FINRA responded that their:
Examination staff reviewed books and records related to the Madoff broker-dealer’s activities and areas of our examination focus. BLMIS did not record any of Madoff’s investment advisory business on its books and records. Consequently, those books and records did not indicate that Madoff was engaged in a Ponzi scheme through his separate advisory business.
Precisely. FINRA (and the SEC’s oversight of FINRA) could not reveal the fraud because BLMIS’s records made no mention of it. Only a fool would have shown evidence of the fraud on the broker-dealer’s books and records. Because Bernie, and to a lesser extent Peter, had established themselves as statesmen, the regulators never suspected anything, notwithstanding the concerns that some repeatedly raised.
The SEC subsequently produced a list of reforms that it instituted to prevent a repetition. These and other changes are important. Nonetheless, I hope that the SEC takes my advice and amends Rule 206(4)(2) its custody rule. The SEC should require that all SEC registered investment advisers use a custodian that is unaffiliated with the adviser. Nothing can prevent another Madoff fraud with complete certainty, but ensuring that the adviser does not control the custodian broker-dealer would make a similar fraud much more difficult to achieve. It also would help reduce the chance of another Madoff pulling the wool over the eyes of regulators and legislators.
Perhaps the more vexing issue that the Madoff scandal raises is the challenge of how regulators can prevent seemingly helpful regulatees from deflecting meaningful oversight of their activities. Regulators need public input on proposed regulations to ensure that the rules they adopt will work well and balance competing concerns. Regulators need comments from those whom the regulation will most directly affect, including affected industries. Regulated industries often provide essential information to regulators about how those industries operate as a practical matter and the real-world implications of a proposed rule. Regulators may choose to ignore industry comment, but without it, they are likely to overlook important information.
It is important for regulators to distinguish BLMIS’s views on public policy questions, with its actual practices. Bernie was able to use the goodwill he generated to deflect close regulatory scrutiny of his fraudulent activities. Examiners need to evaluate carefully the activities of all market participants, including those who have cultivated a good relationship with regulators on policy questions or other matters. Bernie’s manipulation of regulators should serve as a warning to all.