It has been just over two years since the world learned about the Ponzi scheme perpetrated by Bernard Madoff. It was a scheme, according to the Madoff trustee, that was facilitated through a complex network of individuals, feeder funds and advisers who pooled investments with Madoff and, in the process, deliberately or recklessly ignored red flags of fraud. While the Madoff trustee seeks to recover whatever he can for the many victims of the fraud, we have seen a number of cases outside of trustee-initiated lawsuits analyzing the complex relationships among investors, advisers and funds. These cases have the potential to further shape securities law jurisprudence in ways that, depending on the issue, might embolden or give pause to the plaintiffs' bar. Of particular note are three recent cases out of the Southern District of New York--relating to a seldom-used "fraud on the agent" theory and, separately, what it means to give advice "in connection with the purchase or sale of a security."
In re Beacon Associates Litigation, F.Supp. 2d, 2010 WL 3895582 (Oct. 5, 2010 S.D.N.Y.) involved claims, including federal securities claims, by a group of investors against, among others, the feeder funds in which they invested and advisers to the feeder funds. On the advisers' motion to dismiss, the advisers argued that they had no direct contact with the plaintiffs and, therefore, that the plaintiffs could not have relied on any of the allegedly misleading statements. The plaintiffs acknowledged that the advisers made no statements directly to the investors, but argued, under principles of agency law, that misrepresentations made to an agent--here, the feeder funds--are made to the principal as well.