Legal experts weigh in

February, 4, 2011
2/04/11
2:33
PM ET
Here are comments from Charles M. Tatelbaum. His bio is below:

The $300 million is simply the amount trustee Irving Picard alleges they withdrew over principal. But Picard is seeking more than that, correct, in that he's alleging the Wilpons should have known better?

"Right. He is alleging they have identified $300 million of profits. And they're also saying -- and I can explain to you how he gets there -- that everything they got back, even the stuff they put in, they should have to pay back."

The grounds being they should have known better?

"Well, yeah. It's not just known better. That since it was a Ponzi scheme and a fraud, and because they either shut their eyes or knew and didn't say anything, that they are participants in the Ponzi scheme and therefore under the law it's called a fraudulent transfer. And whoever gets it has to give it back. So that if one person gets it and transfers it to another, the third party has to give it back as well."

Sterling/Wilpon's lawyers issued a statement afterward making two points: One, they're actually losers/victims, because they showed they had $500 million invested with Madoff when he was shut down. And, two, that Picard is picking only certain funds to come up with $300 million profit, that other funds lost $160 million.

"This is where, if you look through why they're naming so many individual defendants. ... There's Mets 1 LLC and Mets 2 LLC. Those are two of the defendants. Suppose Mets 1 LLC got $20 million in false profits and Mets 2 LLC lost $40 million. The Sterling people can't combine them. Just because they had common ownership, each individual one of the recipients of the money will be treated on their own. So that if the losses were in one group of entities or people and the gains were in another, they are not going to be able to combine them in a net amount."

And basically the funds that lost money would have to apply through the trustee like any other victim?

"Right, but, but, but ... If they could show that they were part of the grand conspiracy, then one of the things that they're claiming is a doctrine called equitable subordination. Equitable subordination, which is a bankruptcy concept, is: If you have what's called unclean hands and you were part of this thing, your claim -- even if it would otherwise be a legitimate claim -- gets subordinated and you don't get anything until everybody else gets paid in full."

The Wilpons' lawyers are saying they're victims because the Wilpons thought they had $500 million on statements when Madoff was shut down. So in a way are they victims even if people aren't sympathetic? That is, if you believe they were naive/duped?

"If, if, if they had no involvement, no knowledge, never should have known any better and were totally innocent victims, you can say, 'I have sympathy for you.' [However, otherwise] it's like saying, 'I know two horse races are fixed on the day at a racetrack. And I'm going to bet on the two horses where I know there's a fix in.' And it turns out the fix isn't on one of them and they lose, and there is a fix on the other and they won. 'Well, I got screwed because the fix I thought on the one horse wasn't in. Poor me. I should be sympathized.' I mean, that doesn't cut it."

Is there any way to speculate how this might resolve itself? Even though the parties say settlement talks have broken off, will ultimately the Wilpons settle because there's so much money at stake and they have to cut their potential losses with a verdict at trial?

"I think you're right. One, what's the cost of the litigation going to be? Two, we have a bankruptcy saying which is, how much are you willing to risk to lose it all?"

Conceivably, if they go to court, they could get slapped with an $800 million, $900 million, $1 billion judgment and instead of having to sell a portion of their baseball team -- 20 to 25 percent -- they may have to sell the whole thing at that point? If they settle, they're cutting their losses and only need to sell a quarter of the team.

"Right. But follow one other thing here that is interesting: They're alleging the Mets as a team, the entity that owns it, was an investor and participant. So they could wind up that not only the Wilpons would have to pay money back, but the Mets team itself would have to pay money back. If it were $40 million or $50 million, if the team doesn't have that kind of cash, you've got a Texas Rangers situation. It isn't a question of the value of the team. It's does the team have $50 million worth of cash that they could pay to satisfy the judgment? Or do they have $50 million of value that some bank is going to lend them? And if a bank would lend them $50 million, let's assume it's at 10 percent interest, that's $5 million a year of interest that's got to hit the Mets' cash flow. The team may not be able to sustain it."

Going back to unclean hands, I've heard fraudulent transfers can only go back six years. Is that correct? Or if there are unclean hands, can the amount recoverable go back decades to the outset of the fund?

"It's six years in New York for the statute of limitations on unclean hands -- well, for fraudulent transfers.

"[But] what makes it more difficult for them to extricate themselves is this: They're saying because these profits were false, they made the Sterling companies look better on paper. Therefore they were able to get loans and do other things that they couldn't have gotten, because their balance sheets were inflated by the false profits and the false investments. So they are going to do a lot more of permutating as to who has to pay what because of that."

To be open, you have some past association with Irving Picard?

"I have known Irving Picard for 40 years. He was the head of the SEC's bankruptcy division, and I had a case against him way back. And then we became very good friends. One time when I was practicing in Baltimore, I tried to recruit him to join my law firm."

Anything else relevant to the topic?

"I don't know if you've ever heard of the name Jerry Wolman. He owned the Eagles. They went bankrupt in the largest individual bankruptcy in the history of the country for an individual. And I handled his Chapter 11. And we sold the Eagles to Leonard Tose for $16 million. When you think of what the value of the Eagles or any NFL team is today, that was the first professional sports franchise that was ever sold in a bankruptcy court."

Charles Tatelbaum is a Partner in the Firm’s Fort Lauderdale office of Yoss LLP. He is chair of the Bankruptcy and Creditors' Rights department. Mr. Tatelbaum has earned the distinction of being board-certified in business bankruptcy by the American Board of Certification. Mr. Tatelbaum’s primary areas of practice include bankruptcy and creditors’ rights, complex business litigation, transactions and litigation involving the Uniform Commercial Code and other types of secured transactions, and domestic and international letters of credit. As such, Mr. Tatelbaum is able to coordinate, plan and carry out complex business and bankruptcy-related litigation and transactional issues throughout the United States. As a result of Mr. Tatelbaum’s prior work for the U.S. State Department in eastern Europe, he is also able to handle complex business and insolvency issues that develop in foreign countries.

Mr. Tatelbaum regularly represents Fortune 150 companies, and has been featured on “60 Minutes” and “Good Morning, America.” As counsel to the National Association of Credit Management and Vice President of Research for the American Bankruptcy Institute, Mr. Tatelbaum authored a number of the provisions of the bankruptcy law changes that have been enacted within the last 15 years, including the changes that were signed into law in April 2005. Mr. Tatelbaum’s practice concentrates in representing secured and unsecured creditors, as well as creditors’ committees, complex business litigation, bankruptcy proceedings, products liability defense based on warranty, as well as representing secured and unsecured creditors in distress business transactions and litigation. Mr. Tatelbaum also is well versed in dealing with all aspects of domestic and international letters of credit from the transactional stage through litigation. Mr. Tatelbaum’s litigation experience and background permit him to work with other interdisciplinary substantive law groups within the firm and within the client’s legal and business staff to help coordinate sophisticated planning and litigation issues.

And here are comments from Michael Kline, a partner at Fox Rothschild LLP in Princeton, N.J.:

Opening thoughts?

"I had written about six months ago about the Judy and Fred Wilpon family foundation, which they started, which you can get the tax returns from online because they're matters of public record as a private foundation. In the 2008 one, filed in 2009, it's interesting. It indicates a loss -- they filed that they were victims. And what was interesting, if you look more closely, it appears the foundation got distributions of $1 million more than the foundation actually paid into Madoff on a separate form they attached. And you'll note the foundation is not a defendant in this. So he was selective. He clearly was selective. Maybe he felt he wasn't going to sue a charitable foundation.

"The Wilpons, and obviously the other members of the extended family, have morphed over just slightly two years -- Dec. 11, Madoff's sons, one of whom is now dead turned their father in -- from victims to alleged profiteers. Under Picard's definition, they took out more than they put in. And now they are being alleged participants, or perpetrators or participants in the whole scheme. So they've gone from victims to alleged fictitious profits of $300 million to alleged participants in this scheme, which is interesting. The trustee is trying to make even more money than the clawback theory. In other words, he's trying to indicate really they should be paying more money than the $300 million because they were participants and deeply involved over the years in making it possible for Madoff to continue his scheme.

"What's interesting that in my view, [Picard is seeking the extra money] because he has bigger fish to fry down the road. JPMorgan Chase and I think it's HSBC, he's trying to get billions from on the grounds that they in effect gave Madoff image and cover and they should be paying billions. And so my feeling is that the Wilpons are visible and vulnerable because they are the owners of the Mets. A guy like you who has absolutely no interest in Madoff really is interested really because of who this family is."

But if the Wilpons legitimately withdrew $300 million more than they invested, shouldn't they be obligated to pay that back, because there are other people who lost principal?

"Here's the thing: The appellate courts have not yet decided that principle that Picard has. He's brought hundreds, it may be a thousand, lawsuits against people he's seeking clawbacks from. And he's been selective as to whom he's sued. I mean, he's sued some people and he hasn't sued others. As a matter of fact, what's different about this is, I know people who could be potentially sued. They don't know whether they've been sued yet or not. And here we have this whole thing with this publicity arising regarding the Wilpons. I think the Wilpons are a test case in some respects for other cases he is bringing. Look, if he's able to be successful, or if he's able to get a large settlement, I think he's going to be able to use that in trying to get other large settlements. The average person doesn't care as much about JPMorgan Chase being sued, or another bank holding company, or a brokerage firm being sued by Picard for participation. They care about the Wilpon family because of who they are with the New York Mets. They're visible and they're vulnerable and obviously it's tremendously embarrassing to the Wilpons. And so I suspect one of their strategies -- and they're talking about selling a portion of the Mets -- is to try to settle the case because this 1,000-count complaint is a tremendous public embarrassment to the family and the extended family and all of the people involved."

I presumed 'clawback' principles were established under law. In fact, the Wilpons even settled under similar circumstances two years earlier in the separate Bayou Ponzi scheme.

"But Picard is seeking even more than just clawback from the Wilpons. The Wilpons are saying, 'We really lost hundreds of millions of dollars. We got these statements from Madoff over the years that said we had half a billion dollars, and it turns out those all got turned to zero, so we lost.' But he's taking the theory just money-in versus money-out. And that's what the standard is. It is somewhat established by other precedents, but there are people involved in this case who are challenging the fact -- that even though the bankruptcy court has said it, there is a case going on in appellate court that it is not the limitation that it should be, that if I get a statement and I have $0 now, I should be able to recover from the SIPC irrespective of this. Those are what the people are challenging. I don't know that they're going to be successful. And I think that the whole clawback theory -- which I think has been greatly expanded in this case -- is still under challenge with respect to this case.

"But the point is that's not the way this case may go down. It's possible the Wilpons are going to try to settle this, and they don't want to get into the merits of the case. Some of their lawyers have asserted that they've lost a lot of money, that he's excluded a lot of money they actually lost, that they were selective. And so there's a number of things going on here that take it out of the realm of what are the rights that the trustee has with respect to clawback.

"I think it's more interesting that he is seeking to establish that they were part and parcel of the scheme itself. And therefore as part and parcel of the scheme itself, they should be on the hook for even more money than the standard clawback. Let's assume you're right, that the clawback was well-established and objections to it are going to be thrown out. What the trustee is seeking is money beyond that. In Paragraph 57, in the overview, on Page 17, it says in addition to fictitious profits, which is the $300 million or so of clawback, this complaint seeks to recover from the Sterling defendants additional fraudulent transfers of principal in an amount subject to discovery and proof at trial based on the trustee's investigation concluding they knew or should have known of the fraud.

"So they're going beyond 'OK, you put in $100 million. You pulled out $400 million. Whatever the numbers are, you made $300 million in hard cash more than you put in.' He's going further than that. He's saying you got all of these returns over the years, you knew him so well, he invested in your hedge fund too. You were involved with him. And so you have a potential liability for even more. And so I don't know what Picard would settle for. Maybe he would settle for the clawback amount."

Michael concentrates his practice in the areas of corporate and securities law, including complex corporate transactions, mergers and acquisitions, financing, federal securities regulations under the Securities Act of 1933 and the Securities Exchange Act of 1934. Michael also counsels and assists hospitals, nonprofit foundations, skilled nursing facilities, and other clients in handling overlapping business, financial, governance, and legal issues. For over 25 years, he has served as general counsel to Deborah Heart and Lung Center and Deborah Hospital Foundation in Browns Mills, N.J.

From 2000 to 2008, Michael served as Chair of the firm's Corporate Department. From 2003 to 2006, Michael served as a member of the Executive Committee of Fox Rothschild.

Before Fox Rothschild, Michael was the Managing Partner of Cohen, Shapiro, Polisher, Shiekman, and Cohen in Philadelphia and Lawrenceville, N.J., and a member of its Executive Committee. As an undergraduate at the Wharton School of the University of Pennsylvania, he received the Beta Gamma Sigma award for the highest overall grade point average in his graduating class and the Haskins & Sells Award for excellence as an accounting major.

Michael frequently writes and speaks on topics such as corporate compliance and business ethics, bioethics, and business and nonprofit law. In recent years Michael has been a guest lecturer on the Sarbanes-Oxley Act of 2002 and business ethics in classes in the Graduate and Undergraduate Divisions of the Wharton School. In 2010, he will teach several classes at Wharton on Sarbanes-Oxley and the Madoff scandal. Past president of the Jewish Geriatric Home in Cherry Hill, N.J., he has also served as a public member of the Advisory Graduate Medical Education Council of New Jersey.
Adam Rubin has covered the Mets since 2003. He's a graduate of Mepham High School on Long Island and the Wharton School of the University of Pennsylvania. He joined ESPNNewYork after spending 10 years at the New York Daily News.
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