Afternoon:
14°c
As more casualties of the Madoff scandal emerge, lawyers are looking for potential defendants with rather deeper pockets than the disgraced US financier.
William Foxton, 65, a highly decorated former military officer, shot himself near his home in Southampton. In a suicide note, he said he had lost his entire life savings, worth up to £1 million, in Bernard Madoff's allegedly bogus investment scheme.
Lord Jacobs, 77, a former Liberal party treasurer who made part of his fortune by selling the BSM driving schools, spoke at the weekend about how he had lost a "significant amount" through investing in Madoff.
Claims have been lodged against investment managers in the United States for violation of securities legislation, fraud, breach of contract, unjust enrichment, breach of fiduciary duty, gross negligence and negligent misrepresentation.
And although no proceedings have yet been launched against financial advisers in the English courts, Barclays Wealth may be regretting a letter it sent to investors in December.
Kevin Lecocq, chief investment officer at the bank's private-client arm, told its customers that Madoff Investment Securities had acted as sub-adviser, prime broker and sub-custodian to a feeder fund run by Fairfield Greenwich Group. Investors in Fairfield would be "impacted" by Madoff's alleged fraud, Lecocq added.
Why had Barclays recommended these funds to its investors? "Having submitted Fairfield and Madoff to our comprehensive Due Diligence program [sic]," Lecocq wrote, "we concluded that this fund was an attractive opportunity for our clients."
That phrase has been seized on by David Greene, head of litigation at Edwin Coe. "It's quite difficult to understand, at least now, how you can have carried out comprehensive due diligence and yet end up losing all your money in a fraud," he says.
Greene is acting for 25 individual investors who are claiming a total of $150 million (£106 million) between them from advisers who either promoted or recommended failed schemes. Some have been left destitute, he says. One is selling his house. Typical of the investors he represents are retired directors who sold their businesses, and asked financial advisers to recommend the safest and most reliable funds.
Surely a successful entrepreneur should understand risk? Not at all, says Greene. He gives the example of a computer specialist who sold her business. "She knows about computers, not investments. She was entirely reliant on her advisers."
So what are the chances of success? "If you were advised to invest in companies such as Madoff, KSF Isle of Man or AIG Financial Products - and that advice has proved to have been wrong - then you may well have a claim," says Greene.
But he stresses that everything depends on the contract between the investor and the financial adviser. And that's confirmed by Herbert Smith, a City law firm that acts for a number of investment banks.
"At one extreme, you may have a relatively unsophisticated retail client - a high net worth individual - who is clearly relying on the intermediary for advice," says Martyn Hopper, a litigation partner. "The obligation on that intermediary to look carefully at the investments that they are advising their client to go into is very high.
"At the other end of the spectrum, if you have a highly sophisticated investor - such as an insurance company or a fund manager - then the obligations on the intermediary may be much less."
Barclays Wealth certainly treated its customers as if they understood the most esoteric investment-babble. It recommended the Madoff/Fairfield fund because it gave access to "the particularly attractive and high-quality strategy known as 'split-strike conversion' (based on the purchase of stocks from the S&P 100 index and a 'collar' achieved through the sale of call options and the purchase of put options on the S&P 100 index)".
That's one way of describing a scheme, I suppose.
