Harry Beats Goliath

Debra J. Saunders

2/10/2009 12:00:00 AM - Debra J. Saunders

Back in May 2000, Harry Markopolos, a Massachusetts fraud investigator, provided detailed evidence to the Securities and Exchange Commission that financier Bernard Madoff was a fraud. Eight years later, the SEC figured that out -- albeit after Madoff told federal authorities he had defrauded investors of up to $50 billion.

Last week, Markopolos testified before the House Subcommittee on Capital Markets about how he and three associates -- "four unpaid volunteers" -- figured out what a $906 million bureaucracy failed to uncover.

Asked to replicate Madoff's investment strategy in 2000, Markopolos had begun to look at various Madoff funds. Within five minutes of examining one fund, he suspected fraud, as the returns seemed impossible for the investment strategy. Oddly, another document showed that Madoff "was not a sophisticated enough fraudster to get his portfolio construction math correct" or to mirror market performance.

Markopolos concluded, "You had to have no brains whatsoever to invest into such an unbelievable performance record that bears no resemblance to any other investment managers' track record throughout recorded human history." And: "In less than four hours, I knew I had proved mathematically that (Madoff) was a fraud."

Markopolos went to the SEC in 2000, but the SEC failed to act. Madoff's operation could have been shut down when it had less than $7 billion under management, Markopolos testified.

Markopolos tried the SEC again in 2001. Again, no dice. In October 2005, he met with SEC Boston branch chief Mike Garrity, who referred him to the New York office, which failed to act. He kept prodding investigators through 2006 -- offering names and leads -- but the SEC failed to act. "If the SEC had bothered to pick up the phone and spend even one hour contacting the leads, then (Madoff) could have been stopped in early 2006," Markopolos said.

But, he lamented, the "financial illiteracy among the SEC's securities lawyers was pretty much universal." While many on the political left have blamed the 2008 financial meltdown on a lack of regulation, the Madoff story shows that regulation, too, can fail -- big time.

As Rep. Ed Royce, R-Fullerton, who is on the subcommittee, told me over the phone Monday, even though Markopolos spelled out Madoff's problems in painful detail, SEC staff "were incapable of unraveling" the Madoff mess. And the SEC and other regulators investigated Madoff at least eight times over 16 years -- without matching the findings of Markopolos and friends.

Royce wants to re-engineer the SEC, using as a model the British Financial Services Authority, which hired investigators with experience in the financial sector after the collapse of big bank Northern Rock in 2007.

The Madoff debacle also shows an enormous failure in the marketplace among the overpaid big shots who are supposed to understand complex financial instruments. "We never conceived that any high net worth professional investor would have 100 percent of their money invested in hedge funds," quoth Markopolos. Or that charities and individual investors would put all their eggs in Madoff's slimy basket.

Markopolos also figured that "hundreds of highly knowledgeable men and women" had figured out that Madoff was a fraud, but did nothing about it. More failure.

The media failed, too. Markopolos had extensive contacts with a Wall Street Journal reporter, who was ready to run with an investigation, but whose editors never seemed to give the green light.

Our Betters in Europe also got caught in Madoff's snare. Markopolos said that he realized Madoff was operating a Ponzi scheme during a 2002 trip with French and Swiss bank and hedge fund biggies who "bragged" about how Madoff had closed his funds to new investors, but granted their money "special access."

Madoff's "masterful use of a 'hook' by playing hard to get and his false lure of exclusivity" had them gulled. Flattery emptied their purses.

And so no one listened to Harry Markopolos -- even the people who were paid to.