There's a very good chance that former Securities and Exchange
Commission general counsel David Becker owes absolutely nothing
to the folks who lost money in Bernard Madoff's Ponzi scheme.
Nevertheless, on Monday, Becker and his two brothers agreed to
turn over every penny of the proceeds they received from their
mother's long-ago Madoff investment account, a total of
$556,017. Becker, a partner at Cleary Gottlieb Steen & Hamilton,
didn't return my call seeking comment. But he is doubtless
hoping that the $556,017 settlement with Madoff bankruptcy
trustee Irving Picard of Baker & Hostetler puts an end to the
ugliest chapter in his career.
For a brief while last year, you'll recall, Becker was the
favorite whipping boy of Madoff victims and their congressional
champions. Becker and his two brothers were what's known as net
winners in the Madoff pyramid. After their mother's death in
2004 they transferred the approximately $2 million in her Madoff
investment account to a Smith Barney probate account. By
September 2006, the will was probated and the account was
liquidated. But in December 2010, Picard sued Becker and his
brothers, demanding the return of $1.5 million in allegedly
fraudulent profits from their mother's estate.
At the time, Becker was the SEC's general counsel. And
though he informed the agency's ethics office of his inheritance
(and SEC Chairman Mary Schapiro was aware of Becker's Madoff
proceeds), the GC was not asked to step out of SEC deliberations
-- and did not recuse himself from the debate -- on the
appropriate method for compensating investors. When word got out
of Becker's Madoff money, Schapiro took a beating in Congress.
Becker faced even more potentially serious consequences. An
exhaustive September 2011 report by then-SEC Inspector General
David Kotz concluded with the finding that Becker's actions
merited a referral to the Justice Department's Office of Public
Integrity for a criminal investigation. Becker, who had resigned
from the SEC in February 2011 to return to his partnership at
Cleary, defended himself before a congressional committee
buzzing about Kotz's allegations; in November, the Justice
Department told Becker's counsel, William Baker of Latham &
Watkins, that it was not opening a criminal investigation of the
former SEC GC.
Meanwhile, U.S. Senior District Judge Jed Rakoff issued a
ruling in Picard's case against the owners of the New York Mets
that could have wiped out any Picard claims against Becker and his brothers. Rakoff determined that Picard could not attempt to
claw back allegedly fictitious profits dating back more than two
years before Madoff's firm collapsed. By any measurement, the
Beckers' ties to Madoff ended more than two years before
December 2008, when the Madoff fraud was exposed. If Rakoff's
reasoning is upheld on appeal, Becker and his brothers would be
off the hook entirely.
Instead, they chose to give back every penny they received
from their mother's Madoff investment. (The difference between
Picard's clawback claim and the $556,017 settlement is the fees
and taxes the Beckers paid on their inheritance.)
A Picard spokesperson said the settlement "represents the
recovery of an amount equal to 100 percent of the subsequent
transfers received by the sons," noting that to recover more
than that, Picard would have had to reopen the probate
proceeding, "a time-consuming, expensive and difficult
undertaking under Massachusetts law."
Becker's lawyers at Latham & Watkins issued a statement
pointing out that the Becker brothers are "returning 100 percent
of the fictitious profits distributed to them," which is
entirely consistent with David Becker's previous statements on
his Madoff inheritance. "He always expected that he would return
any fictitious profits that he unknowingly received," the
statement said. "Mr. Becker has done everything possible, both
at the SEC and in his private affairs, to assist the victims of
the Madoff fraud."
(Corrects one misspelling of Becker's last name.)
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
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