Madoff - who is to blame?

The US Securities & Exchange Commission (SEC) continues to cop flak over its handling of tip offs regarding the alleged Bernard Madoff Ponzi scheme.

According to a report in the UK's Financial Times newspaper, Lord Jacobs a peer who lost money in the alleged $50 billion scheme, is pointing the finger at the SEC for "the grossest negligence it is possible to conceive" for not fully investigating a whistleblower’s detailed exposé.

He is not alone in his condemnation of the US regulator. Members of the US Senate Committee on Banking, Housing and Urban Affairs also expressed disbelief and amazement at how regulators did not uncover the alleged Madoff Investment Securities Ponzi scheme, citing numerous "red flags" such as the fact that he did not use a separate custodian for his investment advisory business, and that his accountant was not registered with The Public Company Accounting Oversight Board (PCAOB).

However, as a privately held broker-dealer, the Senate hearing heard how Madoff was able to avoid adhering to these requirements. At the same Senate hearing, senior representatives from the SEC defended their investigations of Madoff saying their examinations which were limited to the scope of his broker/dealer business, not his investment advisory business, did not find fraud.

Madoff registered as an investment advisor in 2006. The SEC said it could not examine every investment advisor and that 10% of registered advisors were examined every three years, but that these examinations were limited in their scope and targeted specific activities. The SEC also pointed towards resource constraints.

Nevertheless it seems that the SEC is going to cop a lot more flak over its handling of the alleged Ponzi scheme as a number of investors that have lost money question how detailed tip offs from a reliable source failed to uncover anything. The truth perhaps lies somewhere in the fact that the SEC said it only examined Madoff's broker/dealer activities, not his investment advisory business. Regulatory loopholes appeared to have allowed Madoff's investment advisory activities to escape rigorous scrutiny.