More On Legal & Compliancefrom The Advisor's Professional Library
- Conducting Due Diligence of Sub-Advisors and Third-Party Advisors Engaging in due-diligence of sub-advisors isnt just a recommended best practice it is part of the fiduciary obligation to a client. An RIA should be extremely reluctant to enter a relationship with a sub-advisor who claims the firms strategy is proprietary.
- Updating Form ADV and Form U4 When it comes to disclosure on Form ADV, RIAs should assume information would be material to investors. When in doubt, RIAs should disclose information rather than arguing later with securities regulators that it was not material.
A three-judge appeals panel ruled Wednesday that Bernard Madoff’s investors can’t sue the U.S. Securities and Exchange Commission for failing to uncover his massive Ponzi scheme. The ruling deals a final blow to investors who claimed negligence on the part of the regulatory body.
Bloomberg reports that while the court said the regulator’s action was “regrettable,” it is also shielded by law, citing the “discretionary function” exception to a law permitting people to sue the U.S. government, which it said applies in cases filed by Madoff victims. In its finding in the case, titled Molchatsky v. U.S., 11-02510, U.S. Court of Appeals for the Second Circuit, the New York-based panel upheld a lower-court decision to the dismiss suits.
“Despite our sympathy for plaintiffs’ predicament (and our antipathy for the SEC’s conduct), Congress’s intent to shield regulatory agencies’ discretionary use of specific investigative powers” defeats the investors’ claims, the court said, according to the news service.
As Bloomberg notes, in April 2011, U.S. District Judge Laura Taylor Swain in Manhattan threw out a $2.5 million suit filed two years earlier by investors Phyllis Molchatsky and Steven Schneider, who blamed the SEC’s grossly negligent oversight of Madoff’s firm for their losses.
Madoff pleaded guilty to orchestrating what is widely considered one of the largest financial cons in history. He was sentenced to a 150-year term, which he is serving in federal prison in North Carolina.
Read Madoff Letter: Insider Trading Has Gone on ‘Forever’ on AdvisorOne.