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Madoff, Dodgers, Vitro, TerreStar, GSC, Scovill: Bankruptcy

(This report contains items about companies both in bankruptcy and not in bankruptcy. Add Madoff as first item; O’Hare InterContinental, Dodgers and TerreStar in Updates; section on Feature Story; and OfficeMax in Downgrade.)

July 8 (Bloomberg) -- Fred Wilpon, Sterling Equities Inc., the owners of the New York Mets baseball club and Wilpon’s friends, family and associates filed papers yesterday telling U.S. District Judge Jed Rakoff that the $1 billion lawsuit by the trustee for Bernard L. Madoff Investment Securities Inc. should be dismissed on a variety of grounds.

The Wilpon group contended in court papers that brokerage customers have “special protection under federal and state securities laws” immunizing them from allegations they received fraudulent transfers when the broker was conducting a fraud. They said in their 94-page brief there can be no fraud from the perspective of a customer because all payments “discharge the broker’s legal obligations to its customers.”

The Madoff trustee will file his opposition papers on July 22. The Wilpon group can submit another filing on Aug. 12 in advance of oral arguments before Rakoff on Aug. 19.

The Madoff trustee is looking to recover $300 million in what he calls fictitious profits plus $700 million in principal taken out in years before fraud was uncovered.

For the trustee to have a recovery, Wilpon says the trustee must prove the group’s members forfeited their status as customers by knowing they were investing in a fraud. On that score, they say there are no facts to prove “willful blindness” or “conscious avoidance” that Madoff was a Ponzi scheme.

An investigation by even a “sophisticated investor” would have been “futile” because “Madoff fooled the Securities and Exchange Commission,” Wilpon argued.

The Wilpon motion attacks the trustee on the facts as well as the law. He explains why 14 allegations erroneously imply knowledge of fraud.

Pointing to a provision in bankruptcy law know as the safe harbor, Wilpon submits that Section 546(e) of the Bankruptcy Code precludes the trustee from making any recovery because all payments were on account of transactions in securities. Wilpon’s lawyers argue that 546(e) precludes even recoveries for preferences received within 90 days of bankruptcy. The section would allow the trustee to prevail only when a customer was involved in an intentional fraud, Wilpon says.

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The Southwestern Reporter, National Reporter System, Volume 46

Montgomery County, Tn

Jack Hinson's One-Man War

Reports of civil and criminal cases decided by the Court of Appeals of Kentucky

Christian County, Ky