NEW YORK, July 28 (Reuters) - Banks accused of failing to
detect Bernard Madoff's fraud won a big court victory as a
Manhattan federal judge rejected efforts by the trustee seeking
money for Ponzi scheme victims to pursue many of his claims.
U.S. District Judge Jed Rakoff said his decision eliminates
damage claims totaling $6.6 billion against HSBC Holdings Plc
and $2 billion against three dozen defendants, including
Italy's UniCredit SpA and Dublin-based Pioneer Alternative
Investment Management Ltd.
The ruling came the same day the trustee, Irving Picard,
announced a more than $1 billion settlement with Tremont Group
Holdings Inc, one of the largest "feeders" of customer money to
Madoff.
Picard said that accord boosted the amount he has recovered
for victims so far to $8.6 billion. The trustee had filed
roughly 1,050 lawsuits to recover more than $103 billion. Many
Madoff victims are pursuing separate claims.
In his complaint, Picard accused HSBC, UniCredit and
Pioneer of violating a duty to Madoff's customers by failing to
detect the Ponzi scheme and ignoring "red flags" of the fraud.
But Rakoff said a federal law addressing the liquidation of
brokerages "conveys no authority" on a trustee to bring such
claims. These claims included aiding and abetting fraud, aiding
and abetting a breach of fiduciary duty and unjust enrichment.
"Not every litigant has the right to appear in federal
court," Rakoff said.
He directed that what remains of the lawsuit, including
efforts to recover $2 billion of so-called "preferential or
fraudulent transfers" involving HSBC, return to Manhattan
bankruptcy court for further proceedings.
In a statement, a Picard spokeswoman said the trustee and
his lawyers are reviewing the decision.
"Prior to a thorough evaluation of the ruling, we have no
comment," she added.
Marco Schnabl, a partner at Skadden, Arps, Slate, Meagher &
Flom representing UniCredit, said: "We are pleased with the
decision. We're analyzing it to see where we go from here."
HSBC spokeswoman Juanita Gutierrez declined to comment.
Steven Thel, a Fordham University School of Law professor,
said the decision could spur new litigation against the banks.
"The claims, if they're good, can still be brought, but
they'll have to be brought by the customers," he said. "It will
probably come in the form of a class action."
NO STANDING
Picard had argued that case law, consumer protection laws
and common sense allow him to sue banks he believes aided or
abetted Madoff in his fraud, rather than simply try to "claw
back" money from alleged beneficiaries of that fraud.
The Securities Investor Protection Corp, which handles
claims for investors whose brokerages fail, agreed.
Banks disagreed. They said that, while the law allows
Picard to sue to recover investors' property, the trustee had
no right to pursue fraud claims against them, because such
claims could be brought only by victims of a fraud.
Rakoff said "neither the language nor the structure" of the
Securities Investor Protection Act, which created SIPC, lets
Picard raise his claims as he did.
UniCredit is also a defendant in Picard's $58.8 billion
lawsuit against Austria's Bank Medici and its founder Sonja
Kohn and others, which alleges racketeering violations.
One of Rakoff's colleagues, Judge Colleen McMahon, is
handling lawsuits by Picard against two other banks: JPMorgan
Chase & Co and UBS AG.
JPMorgan spokesman Jennifer Zuccarelli declined to comment.
UBS was not immediately available for comment.
Thel said an appeal of Rakoff's decision would likely
fail.
Rakoff "has pressed to protect investor rights in the past,
which is a sign that this ruling is not simply a reflexive
action," Thel said. "My sense is, it's a pretty good opinion
and it's probably right."
Madoff, 73, pleaded guilty in March 2009 and is serving a
150-year prison sentence in North Carolina.
The cases are Picard v. HSBC Bank Plc et al, U.S. District
Court, Southern District of New York, No. 11-00763; and Picard
v. Alpha Prime Fund Ltd et al in the same court, No. 11-00836.
For Picard: Oren Warshavsky and Marc Hirschfield of Baker &
Hostetler.
(Reporting by Jonathan Stempel and Nick Brown; Additional
reporting by Knut Engelmann and Alison Frankel)