“Net Winner” Madoff Investor’s ERISA Action Against The Bank of New York Mellon and Others Dismissed

On September 16, 2015, Cleary Gottlieb clients The Bank of New York Mellon (“BNY Mellon”), its subsidiary Ivy Asset Management LLC (“Ivy”), and Ivy’s two founding principles, secured dismissal of claims under the Employee Retirement Income Security Act (“ERISA”) by a former “net winner” Madoff investor. The claims were brought by an Ivy client that invested in Madoff’s Ponzi scheme beginning in the early 1990s. The client, an upstate New York pension plan, withdrew over $32 million more in “fictitious profits” than it invested before Madoff’s Ponzi scheme was finally revealed in December 2008. Among other arguments, the plaintiff contended that Ivy’s alleged failure to earlier disclose certain concerns about Madoff’s firm prevented it from earning greater returns by withdrawing its entire investment before the Ponzi scheme collapsed. In a 45-page decision, the Hon. Paul G. Gardephe of the United States District Court for the Southern District of New York concluded that the plaintiff had no legally-protected entitlement to the “fictitious profits” that Madoff reported, and that it therefore could not claim against Ivy and others for failing to advise it to withdraw those funds. The Court also found that the plaintiff’s status as a “net winner” meant it lacked any “legally cognizable injury,” precluding it from seeking other forms of damages. The Court also dismissed the claims against BNY Mellon and the named individuals on various grounds.