I'm not sure whether to laugh or cry when I read this. Isn't Uncle Benny something?
WASHINGTON — Unseasoned investigators from the Securities and Exchange Commission were alternately intimidated and enthralled by a name-dropping, yarn-spinning Bernard L. Madoff as he dodged questions about his financial house of cards, according to a scathing new report on the agency’s repeated failure to uncover the huge investment fraud.
“Madoff carefully controlled to whom they spoke at the firm,” the S.E.C.’s independent watchdog said in the report released on Wednesday.
When one of Mr. Madoff’s employees was talking to investigators in 2005, an aide to Mr. Madoff broke up the conversation, explaining that it was time for lunch — at 3 in the afternoon.
The incident was one of several recounted by the agency’s inspector general, H. David Kotz, in a report that concludes numerous “red flags” were missed by the agency from at least 1992, not just because of inexperience and incompetence, but because investigators failed to follow incriminating evidence in plain sight and were cowed by Mr. Madoff, who had an inflated reputation on Wall Street.
The report details six substantive complaints against Mr. Madoff received by the agency, which were followed by three investigations and two examinations. Yet the agency never verified Mr. Madoff’s trading through a third party. Time and again, it was noted that the volume of his purported options trades were implausible. When the enforcement staff received a report showing that Mr. Madoff indeed had no options positions on a certain date, the agency simply did not take any further steps.
In fact, the string of lapses was capped by a staff lawyer receiving the highest performance rating from the agency, in part for her “ability to understand and analyze the complex issues of the Madoff investigation.”
Perversely, Mr. Madoff used the S.E.C.’s inquiries as a selling point to reassure investors that the government had looked over his operations and found no problem.
It was not Mr. Madoff’s cleverness that enabled him to fleece thousands of investors out of billions of dollars for years, Mr. Kotz said. It was the fact that, “despite numerous credible and detailed complaints,” the S.E.C. never took “the necessary, but basic, steps to determine if Madoff was operating a Ponzi scheme.”
Perhaps the most egregious lapse was the repeated failure of investigators to verify the trades that Mr. Madoff claimed to be making over the years, bringing in steady profits that turned out to be, quite literally, too good to be true, the inspector general found.
“A simple inquiry to one of several third parties could have immediately revealed the fact that Madoff was not trading in the volume he was claiming,” the report said.
The chairwoman of the S.E.C., Mary L. Schapiro, called the Madoff episode “a failure that we continue to regret” in a statement issued on Wednesday. She said better training, more attention to outside tips and the recruitment of “new skill sets” since she was appointed by President Obama in January would help to prevent future frauds.
“The executive summary makes abundantly clear that the agency bungled numerous investigations and failed to heed numerous warnings about Madoff’s dubious activities,” said Jacob H. Zamansky, a white-collar criminal defense lawyer.
The S.E.C.’s failures have been widely discussed since Mr. Madoff’s scheme collapsed last December, prompting then-Chairman Christopher Cox to say he was “gravely concerned” over the regulatory ineptitude.
Mr. Madoff pleaded guilty in March to securities fraud and was sentenced in June to 150 years in federal prison, leaving in his wake thousands of ruined investors, as well as many charities whose officials had thought their investments with Mr. Madoff were steady and safe.
Although Mr. Kotz’s report did not lay bare any startling new early warnings about the business of Mr. Madoff, it did add embarrassing new details to what may be the S.E.C.’s biggest failure since it was created 75 years ago.
Mr. Kotz recounted incidents in which investigators seemed hopelessly out of their depth, far too credulous and perhaps just plain lazy.
One investigator described Mr. Madoff as “a wonderful storyteller” and “a captivating speaker” after the 2005 encounter in which Mr. Madoff, a former Nasdaq chairman, boasted of his ties to people high up in the S.E.C. and said he was on the short list to be the next agency chairman — the post that went to Mr. Cox.
But Mr. Madoff turned angry — “veins were popping out of his neck,” an investigator said — when asked to produce certain documents, and he tried to dictate what paperwork he would yield. When the investigators reported back to their superior in the S.E.C.’s Northeast regional office, “they received no support and were actively discouraged from forcing the issue.”
The inspector general revisited the failure of the S.E.C.’s Boston office to take seriously the warnings of Harry Markopolos, a private fraud investigator who had been trying since 1999 to get the agency to investigate Mr. Madoff. The failure to heed Mr. Markopolos was almost inexplicable, except that some agency officials did not like him personally, Mr. Kotz said.
From 1992 until the Madoff empire imploded, one inquiry after another went nowhere, the inspector general said. Some investigators “weren’t familiar with securities laws,” and some seemingly refused to believe their own ears even when Mr. Madoff contradicted himself or offered illogical answers to questions.
At one point, investigators drafted a letter to NASD seeking independent trade data, “but they never sent the letter, claiming that it would have been too time-consuming to review the data they would have obtained,” the inspector general wrote.
There were also simple bureaucratic foul-ups, like the one in which different branch offices of the S.E.C. were both looking into the operations of Mr. Madoff. “Astoundingly, both examinations were open at the same time in different offices without either knowing the other one was conducting an identical examination,” Mr. Kotz noted.
“In fact, it was Madoff himself who informed one of the examination teams that the other examination team had already received the information they were seeking from him.”
Jack Hewitt, a former S.E.C. prosecutor who is now a partner at the McCarter & English law firm, said, “There seems to have been a lack of competent coordination between various offices of the commission.”
Mr. Hewitt observed, as have many others, that Mr. Madoff “was remarkable in his ability to conceal his conduct and to communicate an image of integrity to the public.”
A small consolation for the S.E.C. was Mr. Kotz’s conclusion that there had been no improper influence by Mr. Madoff on agency investigators or officials. (One investigative team that examined the Madoff firm was headed by Eric Swanson, who left the commission in 2006 and married Shana Madoff, Mr. Madoff’s niece, in 2007.)
The inspector general’s report could rekindle more outrage at the S.E.C. in particular and Wall Street in general. And there may be more embarrassing details to trickle out: the document released on Wednesday was a 22-page executive summary by Mr. Kotz. The full report runs to some 450 pages.
Scathing Report on S.E.C. Failure to Uncover Madoffs Scheme - NYTimes.com