Page last updated at 14:16 GMT, Thursday, 12 March 2009

Madoff scam reveals regulatory failure

By John Mervin
BBC News, New York

Bernard Madoff going to a recent court hearing
US financier Bernard Madoff

Now that he has pleaded guilty, Bernard Madoff's story might be seen to have reached an end of sorts.

But so vast was the scale of his crime that the legacy of his extraordinary fraud will take years, if not decades to reveal itself.

First and foremost of course are the many livelihoods and life savings lost to Madoff's fraudulent scheme.

But behind the personal fortunes that Madoff leaves in ruins, looms the crumbling wreckage of the US's system of financial regulation.

Risk profiles

It's not as if the regulators here were in such good shape anyway.

A banking industry on its knees, threatening to bring down the rest of the economy, has led many on Wall Street and in Washington to conclude that something is fundamentally wrong with the way the US polices its financial markets and the players in them.

Just this week no less than Federal Reserve Chairman, Ben Bernanke, and Treasury Secretary, Timothy Geithner, have spoken of the need for the US, if not the world, to have a full rethink of how the financial industries are regulated.

US Federal Reserve chairman Ben Bernanke
Mr Bernanke has spoken of the need for a rethink

The trouble is that financial regulation, by its nature, can be a pretty abstract business.

Getting to the bottom of how the US's regulators failed will require some of the finest minds being applied to some horribly complex subjects, which, to the general public at least, may be a tad elusive.

The models that investment banks use for risk profiles, for example, are not something that even many investment bankers claim to understand.

What is so striking about Bernard Madoff's story is the way it seems to reveal failings by regulators, in the starkest of terms, which anyone can grasp.

That leaves certain regulators badly exposed at exactly the time when their role is up for grabs.

'To protect investors'

Bernard Madoff wasn't an obscure crook, operating from a remote location, where the surveillance might be expected to be a little lax.

He was based in the financial capital of the world, as New Yorkers still love to call their city, finding some of his clients in its richest, most financially savvy neighbourhoods.

Beyond that, he was a man whose career had taken him to the heart of the financial establishment. At one point he served as chairman of the Nasdaq stock exchange.

So surely some part of the US's vast regulatory network should have been expected to spot such a massive rooking of investors?

Well, yes. That would be the Securities and Exchange Commission which states that its mission "is to protect investors."

That Madoff was able to run the biggest Ponzi scheme in history right under its nose, making a mockery of its mission, has already brought trouble to the SEC and is likely to cause more.

Many in New York's financial world think the fallout from the scandal will mean that as a new framework for financial regulation is stitched together in the coming years, the SEC will either be disbanded or forced to change beyond all recognition.

'Gift-wrapped'

The criticism of it for the Madoff mess has been scathing.

Bad enough that such an egregious fraud was carried out over many years - what has enraged some is that for years, the SEC was told, in ever greater detail, that Madoff's investment fund was a Ponzi scheme.

While the SEC is lining up to be the scapegoat that every big financial scandal demands, Harry Markopolos has cemented his position as the whistleblower whose warnings went unheeded.

 Harry Markopolos
Fraud investigator Harry Markopolos testifies on Capitol Hill in Washington

Between 1999 and 2008 Mr Markopolos, who worked for a rival firm of Madoff's, made increasingly detailed submissions to the SEC which illustrated how Madoff's fund simply couldn't be for real.

As he told Congress in February: "I gift-wrapped and delivered the largest Ponzi scheme in history to them."

Yet the SEC seemed unwilling or unable to act on Mr Markopolos's information, a fact that has led to some of the fiercest criticism it's ever faced.

After Mr Markopolos testified, the House Financial Services committee heard from the department heads of the SEC.

It's said that compared with the British House of Commons, the US congress is much less adversarial and aggressive. If true it doesn't apply to committee hearings.

For hours the SEC department heads were excoriated for their treatment of the Madoff case.

At one point, Representative Gary Ackerman, of New York yelled at them: "You couldn't find your backside with two hands if the lights were on."

'Gravely concerned'

And yet in the face of that, and more graciously worded attacks, the SEC has stayed remarkably quiet about its role, or lack thereof, in the Madoff case.

In December, its then chair, Christopher Cox, admitted the SEC had received credible allegations that Madoff was running a Ponzi scheme.

He said he was "gravely concerned by the apparent multiple failures over at least a decade to thoroughly investigate these allegations or at any point to seek formal authority to pursue them".

He then announced an internal investigation to get to the bottom of those apparent failures.

But with the change of administration Mr Cox has now gone, to be replaced by President Obama's appointee, Mary Schapiro. No result of the investigation has been published.

That means the SEC is almost silent about its biggest apparent failure, just as public attention on the failure is at its greatest.

As Bernard Madoff faces the prospect of ending his life in prison, it's clear the task of uncovering just how he was able to defraud so many for so long has barely begun.



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