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University of Baltimore Law Review

Abstract

On June 29,2009, Bernard L. Madoff was sentenced to 150 years in a federal penitentiary for his role in a multinational Ponzi scheme of historic proportions — some $64.8 billion (which included estimated gains from apparently bogus investment returns). The criminal charges against Madoff included securities fraud, investment adviser fraud, international and domestic money laundering, and perjury.

Many of Madoff's investors were regarded as sophisticated investors. Since its adoption in 1933, the Securities Act affords an exemption from the registration requirements for issuers who offer securities to sophisticated investors because these investors have the resources and financial expertise to obtain access to, and evaluate, disclosures concerning the offering they deem significant for their respective investment decisions. Thus, the federal statute recognizes that because sophisticated investors "can fend for themselves, " they do not require the protections that the registration provisions are designed to provide.

At the very least, sophisticated investors would have been expected to act in their own interests and would have had the means to do so. Then why did so many sophisticated investors — institutional and individual — fall prey to Madoff's fraud? Were these institutions and individuals unable to fend for themselves, or in the face of reports that Madoff strongly discouraged questions, were they simply unwilling to fend for themselves? If sophisticated investors cannot (or will not) fend for themselves, is there any rationale for continuing to view the private offering transaction as one for which there is "no practical need" for registration or for which "the public benefits are too remote?"

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