Avoidance Actions against Investors in Ponzi Schemes: The Fundamentals Revisited

Jan 28, 2013, 18:50 ET from Michael A. Hackard, Hackard Law, a Professional Law Corporation

SACRAMENTO, Calif., Jan. 28, 2013 /PRNewswire/ -- U.S. District Judge David Godbey's 32-page Order allowing the Receiver in the R. Allen Stanford Receivership Estate to "clawback," or recover, all back interest payments paid to Stanford investors is a worthy read as a remedial lesson in the character of Ponzi-based clawback actions. Court-appointed receivers often file lawsuits or clawback actions against investors who were "Net Winners" in Ponzi schemes. Net Winners are those investors who received payments in excess of their principal investment.

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Judge Godbey's ultimate decision reinforced "the general rule that investors may keep principal payments but must return interest payments." The Court noted that the "investor has a claim for fraud or restitution for the principal he or she was fraudulently induced to lend." The Court acknowledged that "in at least some circumstances, the Receiver would like to recoup the Net Winners' principal as well. That argument is for another day…"

At a time when adversary actions against duped Ponzi investors are being brought with great frequency by court-appointed receivers, it's beneficial to revisit the nature of many of these actions that dot the national legal landscape. Ordinary citizens, not schooled in the particularities of clawback litigation, often recite that all Ponzi investors who received less than promised have been defrauded. Cases like that decided by Judge Godbey note or allude to the more definitive fundamentals that separate Ponzi victims.

Net Losers are Ponzi victims who did not receive all of their principal investment back. Judge Godbey acknowledged that the Stanford Receiver would "at least in some circumstances" like to recoup the Net Winners' principal as well. It's worthwhile to separate Net Winner cases from Net Loser cases. Net Winners, like those in the Stanford receivership, have received something in excess of their principal invested. Net Losers have received something less than their principal invested.

Simple actions against Net Winners do not carry the same burdens as those against Net Losers. Net Winners have no legitimate claim to interest in Ponzi scheme cases while Net Losers do have legitimate claims to investment principal. This fundamental divide has resulted in emotionally charged and spirited defenses asserted by Net Losers against ambitious Receivers. Opinions like Judge Godbey's Order make possible a broader discussion into the nature of adversary actions against defrauded Ponzi investors.

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Hackard Law, a Professional Law Corporation, focuses on transactional and litigation matters. Michael A. Hackard is the principal attorney of Hackard Law - a Northern California law firm which represents families with extensive business interests as well as clients impoverished by the wrongdoing of others. For information about Hackard Law's work in representing adversary defendants in bankruptcy matters, please visit www.ponziclawbacks.com.

SOURCE Michael A. Hackard, Hackard Law, a Professional Law Corporation