Justice won’t probe SEC’s David Becker in handling of Madoff case

November 7, 2011

The Justice Department has decided not to seek charges against former Securities and Exchange Commission general counsel David M. Becker, whose handling of an alleged conflict of interest involving the Bernard L. Madoff bankruptcy was the focus of congressional hearings and a recent inspector general probe.

“The Justice Department recently informed us that after careful review of the information we sent them, they have decided not to pursue a criminal prosecution with respect to the Becker matter,” the SEC inspector general’s office said in a statement Monday.

A lawyer for Becker went a step further. He said he heard from Justice that it had decided not to open an investigation.

“It’s consistent with our view of the facts that [Becker] did exactly what he was supposed to do,” lawyer William R. Baker III said.

Justice’s decision was previously reported by Bloomberg News.

SEC Inspector General H. David Kotz referred the Becker matter to Justice in September when he issued the findings of his investigation.

Kotz concluded that Becker helped shape the SEC’s policy toward victims of Madoff’s massive fraud while having a personal stake in the matter — he inherited proceeds of an investment account his mother held with Madoff.

But there were several points in Becker’s favor. He had told SEC Chairman Mary Schapiro about the issue; he had discussed the account with the agency’s ethics officer, who gave him a green light to participate in the SEC’s policymaking; and in one of the instances in which he allegedly had a conflict of interest, he had advocated a policy that went against his self-interest.

The complicated controversy began years ago, before Madoff’s investment business was exposed as a giant Ponzi scheme in which seemingly strong financial returns were actually an illusion and some investors were paid with other investors’ money.

After Becker’s mother died, he was an heir to her estate and benefited when the estate withdrew the entire account balance of about $2 million.

By his own testimony, when Becker became SEC general counsel in 2009, he recognized that a trustee trying to sort out Madoff’s finances might come after him demanding repayment of Ponzi payouts. Becker has said he considered that prospect “doubtful.”

But at the end of 2010, the trustee did just that, suing Becker and his brothers to “claw back” about $1.5 million of allegedly fictitious investment profits.

By then, Becker had helped shape the SEC’s position as to how much money investors should be allowed to recover. He had championed the idea that investors were entitled to more than just the nominal amount they had deposited with Madoff; they should also be entitled to an inflation adjustment reflecting the amount of time their money was entrusted to him.

Becker and his family have not yet resolved the trustee’s lawsuit, Baker said. Baker would not say whether Becker thinks he is entitled to an inflation adjustment.

In written testimony to Congress in September, Becker said he “never, ever would have held on to money that came from fraud victims.”

“If it turned out that there were indeed fictitious profits in my mother’s account, all the Trustee had to do was notify me and explain his calculations, and I would return any excess funds in my possession,” he said.

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