When the owners of the New York Mets and Madoff bankruptcy
trustee Irving Picard announced a settlement on what would have
been the first day of their trial today, Manhattan federal judge
Jed Rakoff pronounced it something of an anticlimax.
Anitclimax or no, two groups are feeling like winners --
Mets owners Saul Katz and Fred Wilpon, and court watchers who
enjoy Rakoff's wry quips from the bench.
At first glance, the $162 million payment looks like a
victory for Picard, of Baker Hostetler. The amount equals 100
percent of the "profits" withdrawn by the Mets owners from their
accounts with Bernard L. Madoff Investment Securities in the six
years before Madoff's Ponzi scheme was discovered. Six years of
forfeited profits contrasts with a two-year limit that counsel
from Davis Polk & Wardwell won for the Mets owners in a ruling by Rakoff last September.
"It is not an overwhelming victory, but it is a sizable
amount that will go to people who were truly victims," Michael
McCann, director of the sports law institute at Vermont Law
School, said of the $162 million.
But it is considerably less than what Picard was seeking
from the Mets owners. He originally asked for $1 billion, a
figure that was whittled down to $386 million after Rakoff's
ruling in September.
What's more, Katz and Wilpon don't have to pay any money
out-of-pocket for at least three years after the settlement is
approved, according to terms presented to the court. During that
period, any funds Picard would have paid to the Mets owners to
reimburse them as wronged customers of Madoff will be assigned
to the trustee. The defendants will have to pay the balance --
what the owners owe from the settlement minus what they've been
"reimbursed" -- in two equal payments at the end of the fourth
and fifth years.
Picard could even end up owing the Mets owners -- up to $16
million -- in the unlikely event that he manages to recover more
than $162 million for them as Madoff customers.
David Sheehan of Baker Hostetler, who serves as chief
counsel to Picard, said in a statment the settlement was "fair
and just" and the best possible outcome for investors who lost
money with Madoff.
That's not how an attorney that represents hundreds of other
Madoff investors sees it. "It was an incredible defeat for
Irving Picard," said Helen Chaitman of Becker & Poliakoff.
That is because the settlement will also include an
announcement by Picard that he will no longer pursue a "willful
blindness" claim against the Mets owners.
Chaitman, who was not involved in the Mets settlement talks,
said the owners were willing to give up the six years of
fictitious profits in exchange for Picard agreeing to drop the
willful blindness and bad faith claims against them.
The settlement puts the Mets owners "on the same basis as
all of the other settlements the trustee has concluded with
other good faith victims of the Madoff fraud," Davis Polk's
Robert Wise, for the owners, said in a statement.
It was not all bad for Picard, however. The six-year time
frame agreed in the settlement gives him bargaining power when
he pursues other clawbacks, in the face of the two-year limit
Rakoff decided on in September. (We should get a decision from
the U.S. 2nd Circuit Court of Appeals eventually. Rakoff has
hundreds of Madoff-related cases pending before him in which
he'll likely issue the same ruling, which are then likely to be
The 2nd Circuit seemed to be very much on Rakoff's mind at
today's hearing. As he discussed the settlement with the
parties, Rakoff confirmed that Mets owners could get money back
if Picard recovers more for them than the $162 million they
would owe under the settlement, prompting Sheehan to remark,
"From your lips to God's ears, your Honor."
"I would prefer, 'From my lips to the 2nd Circuit,'" Rakoff
(Hats off to Sheehan for managing to score points with both
benches with his response. "Same thing," he said.)
Rakoff also seemed to be making a reference to a rebuke he
received from the 2nd Circuit last week for refusing to approve a proposed settlement between the Securities and Exchange
Commission and Citigroup. As he was reading aloud a portion of
today's settlement requiring Picard to make a statement that
"willful blindness" claims will not be pursued against Mets
owners, Rakoff proclaimed he would "pause there."
"I won't ask the trustee if that means ... that he no longer
thinks he can prove his claim against the defendants, because
I'm not permitted to ask those questions anymore," he said.
Rakoff said he was honored to have former New York Gov.
Mario Cuomo, who served as a mediator in the settlement, in
court today. And, he said, he would just have to get over the
fact that potential Mets witness and Hall of Fame pitcher Sandy
Koufax would not be making an appearance in his courtroom.
(Reporting by Erin Geiger Smith; additional reporting by
(This blog post has been corrected. An earlier version
incorrectly stated that the 2nd Circuit seemed to be on Madoff's
mind. It has been corrected to say Rakoff.)
(Reporting by Erin Geiger Smith)
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