A long-awaited report from the inspector general at the Securities and Exchange Commission concluded that the SEC received six "substantive" complaints from June 1992 to December 2008 that could have uncovered disgraced financier Bernie Madoff's Ponzi scheme as early as 1992 if it had "properly examined or investigated" Madoff's trading practices.
The 450-page report, released Wednesday, outlines a series of fumbles in which SEC staff either failed to follow up on complaints, wrongly accepted Madoff's confusing and inconsistent answers to questions or in some cases involved junior staff who didn't understand options-trading and Ponzi schemes.
"Despite three examinations and two investigations being conducted, a thorough and competent investigation or examination was never performed," the report said.
The report said at least six complaints raised questions about Madoff's trading practices, with some even suggesting a Ponzi scheme was involved. They questioned "Madoff's incredible and highly unusual fills for equity trades, his misrepresentation of his options trading and his unusually consistent, non-volatile returns over several years," as well as how Madoff's alleged strategy and purported returns could not be duplicated by anyone else and had "no correlation to the overall equity markets in over 10 years." One tipster even nudged the SEC that "it may be of interest to you that Mr. Madoff keeps two sets of records the most interesting of which is always on his person."
Yet SEC staff failed to adequately follow up or seek third-party verifications on the trades, the report said. In many cases, the report said, "an inexperienced examination team" was assigned the investigation and many of the team's members were not familiar with trading practices and simply accepted Madoff's explanation that he used his "gut feel" to time the market on the basis of "his observations of the trading room." According to the report, examiners stated that "there was no training" and that "this was a trial by fire kind of job." It also said that examination team was "composed entirely of attorneys, who ... 'did not have much experience in equity and options trading' but 'rather, their experience was in general litigation.' "
"The result was a missed opportunity to uncover Madoff's Ponzi scheme 16 years before Madoff confessed," the report said. "The SEC had sufficient information to inquire further and investigate Madoff for a Ponzi scheme back in 1992."
Harry Markopolos was among those who made repeated complaints to the SEC raising detailed red flags about Madoff's operations. However, the report found that a branch chief had taken an "instant dislike" of Markopolos and declined even to pick up the "several inch thick file folder on Madoff that Markopolos offered."
If the SEC had even consulted third parties, such as the Depository Trust Company (DTC, a special-purpose bank used by securities firms), to verify trades, the scandal would have been uncovered. For example, a January 2005 statement for a Madoff feeder-fund account indicated it held $2.5 billion of S&P 100 equities on Jan. 31, 2005. However, DTC records show Madoff held less than $18 million worth of S&P 100 equities in his DTC account.
"When Madoff's Ponzi scheme finally collapsed in 2008, an SEC Enforcement attorney testified that it took only 'a few days' and 'a phone call to DTC' to confirm that Madoff had not placed any trades with his investors' funds," the report said.