Actor John Malkovich is seeking to recover $2.3 million from an account he had with the securities firm of Bernard Madoff, who conducted the biggest Ponzi scheme in U.S. history.
Irving Picard, the trustee liquidating Madoff's firm, in August approved a claim for $670,000 for the actor's pension plan and trust, more than $1.5 million short of the value of the securities in Malkovich's account listed on his November 2008 final statement, attorneys for the actor said in a filing yesterday in federal bankruptcy court in Manhattan.
Picard told Malkovich he wasn't entitled to the full amount because no securities were purchased for his account and the approved claim reflects what he deposited with Madoff's firm, according to the filing. The actor's lawyers said Malkovich is owed the full amount on his final statement.
“The trustee's determination assumes that Bernard Madoff never earned funds and therefore all gains reported to customers were ‘fictitious,'” according to the filing. “This assumption is contrary to fact. There is significant evidence that, at some time, BMIS was at least in part a legitimate business and therefore all or a portion of the gains were not fictitious.”
Thousands of Madoff customers objected to Picard's methodology for calculating what they are owed, arguing he wrongfully set claims based on their cash deposits minus withdrawals instead of using the amounts on Madoff's final account statements.
Picard, hired by the Securities Investor Protection Corp. to repay victims of the $65 billion fraud, has said that using account statements to set claims would let Madoff decide who gets what, and include profit from trades that didn't really happen. Under the trustee's calculation, some Madoff victims may end up owing money if they took out more than they put in.
The convicted con man's customers are appealing a ruling that upheld Picard's methodology.
Madoff, 71, pleaded guilty last year and was sentenced to 150 years in prison for using money from new clients to pay earlier investors.
The case is Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, 08-01789, U.S. Bankruptcy Court, Southern District of New York (Manhattan).