Kathy Bazoian Phelps
Senior Counsel in Ponzi Scheme Litigation
and Bankruptcy Matters

Kathy is a senior business trial attorney with more than 30 years experience prosecuting and defending claims for high net worth clients involved in Ponzi scheme matters and in bankruptcy proceedings. Kathy’s practice includes recovering assets for clients in complex fraud cases under standard fee and alternative fee arrangements. She also handles SEC and CFTC whistleblower claims. Kathy also serves as a mediator in bankruptcy matters, in complex business disputes, and in matters requiring detailed knowledge about fraud or Ponzi schemes.

Kathy’s Clients in Ponzi Scheme Cases and Bankruptcy Matters
Equity Receivers
Bankruptcy Trustees
High Net Worth Investors
Debtors in Bankruptcy
Secured and Unsecured Creditors

Sunday, December 2, 2012

Ponzi Scheme Distribution Plans: Rising Tide Method Upheld by Seventh Circuit

Posted by Kathy Bazoian Phelps
One of the most hotly contested issues in Ponzi scheme cases is how to distribute to the defrauded investors the funds that are ultimately recovered. It often seems that no two investors are created equal, so their interests are pitted against one another in the pursuit of “equity.”
Designing the most equitable plan for the distribution of the remaining assets to defrauded investors in a Ponzi scheme case is challenging, to say the least. Someone always ends up unhappy. How do you calculate the loss amount, and then how do you treat the amounts withdrawn by investors during the course of the Ponzi scheme? Some investors received partial payments, some investors received full reimbursement of their principal investment, some received profits as well, and others got absolutely nothing back.
How should a receiver allocate the available cash among these different categories of investors? And does the selected distribution plan impact investor behavior in future Ponzi scheme cases?
The Seventh Circuit recently affirmed the Rising Tide methodology for the distribution of the remaining funds in the receiver’s possession at the end of the receiver’s administration in the Ponzi scheme case run by William Huber.  SEC v. Huber, 2012 U.S. App. LEXIS 24547 (7th Cir. Nov. 29, 2012). Huber was sentenced to 20 years in prison for his scheme that defrauded 118 investors of $22.6 million. United States v. Huber, 455 Fed. App’x 696, 697 (7th Cir. 2012).
In that case, the receiver had the choice of distributing the remaining $1 million to the investors on a pro rata basis, or treating the 11 investors that had already received money as withdrawals from the scheme on a different basis. The receiver chose the latter distribution plan and obtained the approval of the district court to count the withdrawals to those 11 investors as partial compensation for those investors’ losses. The court had adopted the “Rising Tide” method, rather than using the “Net Loss” method.
On appeal, the Seventh Circuit stated, “Under the rising tide method, withdrawals are considered part of the distribution received by an investor and so are subtracted from the amount of the receivership assets to which he would be entitled had there been no withdrawals. (When there are no withdrawals, rising tide yields the same distribution of receivership assets as net loss.)”  SEC v. Huber, 2012 U.S. App. LEXIS 24547, at *3-4.
The Method of Calculation
The Seventh Circuit described the difference between the Rising Tide method and the Net Loss methods as follows:
To understand the difference between the two methods, imagine that three investors lose money in a Ponzi scheme. A invested $150,000 and withdrew $60,000 before the scheme collapsed, so his net loss was $90,000. B invested $150,000 but withdrew only $30,000; his net loss was $120,000. C invested $150,000 and withdrew nothing, so lost $150,000. Suppose the receiver gets hold of $60,000 in assets of the Ponzi scheme--one-sixth of the total loss of $360,000 incurred by the three investors ($90,000 + $120,000 + $150,000). We'll call these recovered assets “receivership assets.” Under the net loss method each investor would receive a sixth of his loss, so A would receive $15,000, B $20,000, and C $25,000 . . .
Id. at *4.
The mathematical calculations can get complicated under the Rising Tide method, but are designed to bring the total distributions made to investors (including both amounts withdrawn during the scheme and amounts to be distributed to by the receiver) as close to each other as possible.  The Seventh Circuit described this process as follows:
In our example, the total of withdrawn plus receivership assets is $150,000 ($60,000 + $30,000 + $0 [the withdrawals] + $60,000 [the receivership assets]), but there is only the $60,000 in such assets to distribute. A, having been deemed (as a consequence of the rising tide approach) to have “recovered” $60,000 before the collapse of the Ponzi scheme, is entitled to nothing from the receiver, as otherwise the remaining sum of withdrawals and receivership assets--a total of $90,000 ($30,000 in withdrawals, all by B, and $60,000 in receivership assets)--would be insufficient to bring the remaining investors up to anywhere near A’s level. For remember that under the net loss method each investor would have received the same fraction of receivership assets as his fraction of the loss, and thus A would have received $15,000, B $20,000, and C $25,000. The result, since under the rising tide method withdrawals are treated as compensation, is that A would have been “compensated” to the tune of $75,000 ($60,000 withdrawn + $15,000 in receiver assets), B $50,000 ($30,000 + $20,000), and C $25,000 (the balance of receiver assets, C having had no withdrawals).
Id. at *4-5.
The result of the Rising Tide method of distribution is that those investors who received payments during the Ponzi scheme will receive a lower percentage dividend at the time of the receiver’s distribution. Despite this disparate treatment at the end of the case, the Seventh Circuit affirmed the use of the Rising Tide method, noting that it is “the method most commonly used (and judicially approved) for apportioning receivership assets.” Id. at *5.
The Equities of the Chosen Method of Calculation
Those investors who received payments during the Ponzi scheme argue against the Rising Tide method, commenting that they should not be penalized for having withdrawn some of their money.
The Seventh Circuit analyzed how the ultimate distribution plan in a Ponzi scheme case might affect the behavior of Ponzi scheme investors. For example, if Rising Tide methods were adopted, this would discourage “partial exit in the form of withdrawals because withdrawers are denied any further recovery.” Id. at *7. However, as the court observed, “it also encourages a withdrawer to withdraw his entire investment, since he won’t be treated as well in the distribution of receiver assets if it turns out that he invested in a Ponzi scheme.” Id. at *7.
The court also considered how the equities of a particular case might lead to a different conclusion. For example, if the facts of the case were that a large number of investors would receive nothing under the Rising Tide method, i.e., 45 to 55%, then the net loss method might be preferred. Id. at *8.
The battles among different categories of investors continues as receivers, trustees, and courts struggle with how to balance the interests of investors who have been defrauded, only some of which have already received money back from the Ponzi schemer. While it is clear that there is not a one size fits all answer to the question, it is quite unclear whether the selected distribution plan has any impact on future Ponzi scheme cases. The Seventh Circuit’s focus on deterrence begs the question of whether an investor is at all impacted by what has happened in Ponzi scheme cases before it in making the decision to withdraw funds from an investment program.
The Rising Tide method of distribution as well as other methods of distribution are discussed at length in The Ponzi Book: A Legal Resource for Unraveling Ponzi Schemes (LexisNexis 2012), §20.04 and Appendix 1.

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