There have been past allegations made by the Stanford Victims Coalition (SVC) that submitting administrative claims under the Federal Tort Claims Act (FTCA) may damage their political efforts for recovery under the Securities Investor Protection Act (SIPA). They even went so far as to appeal to our attorney that SIPC cover will not only definitely be granted, but also widened to $4bn, to cover all the international investors too. We thought all these farcical arguments were in the past, but have become aware that SVC lobbying has been resurrected, following more recent comments from one group of investors.
So where does this actually leave the investors who consider they may be eligible for SIPC, and what are their chances?
Firstly, only the 8,000 Stanford investors who invested through the only SIPC registered broker-dealer, Stanford Group Company (SGC), may be eligible for cover under the SIPA, and the likelihood of widening the cover is non-existent, no matter who would have you believe otherwise. The remaining investors will be ineligible for SIPC (20,000 according to FRP, formerly Vantis, the Antiguan receiver; 13,500 according to Janvey the US receiver; they cannot even agree on how many of us were swindled).
The FTCA claims that we are campaigning for are against the Securities and Exchange Commission (SEC), not against SIPC, so investors who may be eligible for SIPC are not prejudicing their chances by filing a claim against the SEC. To state that filing claims under the FTCA may be political suicide could not be further from the truth. There is in fact the very real possibility that should enough investors file FTCA claims, the heat will be turned up on the US Department of Justice to pressure the SEC to order SIPC coverage. It will ultimately be less expensive for the US taxpayer to foot the bill once SIPC have picked up the first $1.8 billion (or $4bn depending on who you believe). One could argue, with just as much authority, that filing a claim could actually assist Stanford investors get SIPC coverage, not hinder them.
As far as the likelihood of success of SIPC goes, please be aware the Chief Counsel of the SEC has previously stated he will not order SIPA coverage for Stanford investors as he considers his order may be challenged and defeated in court by the SIPC, which they are perfectly entitled to do. Hence the SVC campaign to lobby Congress to broaden the SIPA definition of ‘customer’. Will that happen before the statute of limitations runs out? Somewhat unlikely, since there are just 24 days left. We have seen little progress since the new Congress has re-convened, and remember, all the unsuccessful bills from last year, including the very welcome contribution from Senator Culberson, are now time expired.
And what did the Chairman of SIPC, Stephen Harbeck, tell Congress about the proposed change to SIPA to broaden the definition of ‘customer’? In his letter of August 25th 2010, to the Congressional sub-committee who proposed the amendment he stated:
"[W]e believe that the Amendment is inconsistent with SIPA's history, purpose, and provisions, and if passed, would have serious consequences for the investing public and securities broker-dealers."
"Under these facts, if a fictitious construct is applied such that investors in Stanford Bank CDs are deemed to be "customers" under SIPA with an account at Stanford Broker-Dealer, and are deemed to be eligible to recover their net investments in the Stanford Ponzi scheme in a SIPA liquidation of Stanford Broker-Dealer, it is virtually certain that satisfaction of their claims would exhaust the SIPC Fund."
In his words, even if the amendment to the Act was passed, SIPC would have insufficient funds to pay the Stanford victims (notwithstanding the Madoff victims who are also still waiting for SIPC to pay out, and they are eligible). As Mr Harbeck is still in his job, presumably he was not among the SEC staff caught with their pants down, watching porn on their laptops at work, instead of keeping their otherwise idle hands busy and investigating Stanford.
There have also been other requests from the SVC , both to our attorney, and directly to some of the investor groups, asking them to wait until the last minute to file, thus exposing investors to potential last minute problems of completeness, delivery delays, or other force majure. The Eastern seaboard is currently experiencing snow storms and blizzards disrupting business, and postal services, for example.
Perhaps this is a worthy attempt to give Congress and the SEC as much time as possible to do the right thing, but be aware these are two of the most notoriously slow bureaucracies in the US. Many investors who once trusted the SEC, and were swindled out of their hard earned life savings in return, may never trust them to come through again, in particular now the stakes are so high.
Furthermore, the U.S. Supreme Court ruled some time ago that an investor may not bring a suit against SIPC to compel them to initiate a liquidation. So, there is nothing any attorney can do to help Stanford investors gain SIPC.
'We have been reading about the quest for the holy grail of SIPC fortwo years now, and it still appears no nearer, whereas the opportunityto file a protective claim against the SEC under FTCA expires in just24 days.
It is a matter of fact that FTCA claims are currently being processed and will be submitted before the Statute of Limitation expires, regardless of whether SIPC coverage occurs or not. These claims are for full recovery, open to all Stanford investors, irrespective of nationality, or place of residence, and not limited to just $500k, as is SIPC. Ultimately, the decision whether or not to file a claim under the FTCA is in the hands of each investor, but not submitting a protective claim would be foolhardy in the least.
Finally we should all remember these inopportune and unforgettable words from Angela Kogutt, Founder and Director of the SVC, shortly before she inconscionably abandoned all the non-US investors, within days of being appointed to the Stanford Investors Committee:
“Just so it’s clear, I’m not giving up on the SVC but I am simply going to… represent just the US victims. I will now….limit my efforts to benefit only the 8,000 SGC customers…I haven't met one member of Congress who would go for giving even US citizens who have been severely damaged by the government’s negligence a tax-funded bailout…..The reality is US citizens have no obligation to pay for the private investment losses for investors from around the world…an ungrateful and delusional bunch…who are doing great damage to the recovery efforts of SVC…Just because the US has money and the SEC has admitted to its horrendous mistakes does not mean the US taxpayers should pay for the losses that resulted… I am a US citizen …and have a lot better feel for how things work….and don’t want anyone doing something that hurts what we have so carefully done this past year in Washington…..My hope is that the recent Gag Order prevents these radicals from going too far.
So now we all know where the SVC stands. Fortunately we were not gagged, and the Statute of Limitations has not been allowed to slip quietly by.
FTCA claims take several days to process and must be submitted correctly and timely before the deadline of 16th February 2011, when the Statute of Limitations expires or Stanford investors will be denied any recovery from the US government, forever.
Any Stanford investors who have not yet decided, should contact their attorney at their earliest opportunity, or the attorney submitting the FTCA claims on behalf the Stanford International investors: Kachroo Legal Services of Cambridge, Mass, who already have considerable experience of submitting claims on behalf of the Madoff investors. Email: info@kachroolegal.com
Should any Stanford investors wish for more detail of this campaign and the various arguments, please register for our free and private investor’s forum, which is available to all bona-fide investors in the failed Stanford Financial Group: http://svg.creatuforo.com/profile.php?mode=register
or more information can be obtained on the Stanford Forgotten Victims blog at
http://stanfordsforgottenvictims.blogspot.com/
Written by David Brent
For Stanford International Victims Group
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