Friday, September 29, 2023
NYC PUBLIC ADVOCATE’S STATEMENT ON CITY'S RESPONSE TO FLASH FLOODS
U.S. Settles Lawsuit Alleging That Investment Firm Fraudulently Obtained Payments From The Madoff Victim Fund
Defendant Admits Causing Inaccurate Submissions to the Fund and Agrees to Pay $2.5 Million
Damian Williams, the United States Attorney for the Southern District of New York, and Richard C. Breeden, Special Master of the Madoff Victim Fund (“MVF”), announced today that the United States has filed and settled a civil fraud lawsuit against FULCRUM CAPITAL PARTNERS LLC (“FULCRUM”), an investment firm based in Austin, Texas, alleging that FULCRUM fraudulently obtained payments from the MVF, an entity created by the Department of Justice (“DOJ”) to distribute funds collected by the United States through civil and criminal asset forfeiture to victims of the fraud perpetrated by Bernard L. Madoff. Specifically, the United States alleges that FULCRUM, in violation of the False Claims Act, purchased recovery rights from various Madoff fraud victims who had submitted claims to the MVF and required the Madoff fraud victims to conceal these transactions from the MVF. As a result, FULCRUM caused the MVF to make inflated payouts to the victims, which they paid over to FULCRUM. Under the settlement, submitted today to U.S. District Judge Valerie E. Caproni for review and approval, FULCRUM will pay $2,511,084 to the United States. FULCRUM also made extensive factual admissions regarding its conduct, including that it caused inaccurate statements to be submitted to the MVF and received amounts from the MVF to which FULCRUM was not entitled.
U.S. Attorney Damian Williams said: “The Madoff Victim Fund was created to compensate victims who suffered unreimbursed losses from the massive fraud perpetrated by Bernard Madoff. The MVF’s ability to make fair and accurate distributions to Madoff victims depends on claimants’ compliance with MVF reporting requirements, including truthful disclosure of all Madoff-related recoveries received from any other source. Fulcrum obtained a fraudulent windfall from the MVF by purchasing recovery rights from Madoff fraud victims, then compelling them to conceal the sales proceeds from the MVF and transfer the resulting inflated MVF payments to Fulcrum. This Office will not tolerate lying to the MVF and will continue to pursue and hold accountable those who would use deceptive practices to obtain MVF funds.”
MVF Special Master Richard C. Breeden said: “The defendant Fulcrum is a claim buying financial firm that never lost a penny from Madoff’s conduct. After secretively buying claims from real victims, Fulcrum caused others to conceal information from the Madoff Victim Fund with the objective of gaining greater payments for itself. The inevitable consequence of orchestrating false reports to MVF was diminishing the help that we could be provided to real fraud victims. We applaud the SDNY U.S. Attorney’s Office for recovering $2.5 million that the defendants should never have received. Of equal importance is the message that lying to MVF and concealing recoveries is an illegal act that will be prosecuted vigorously.”
From as early as the 1970s through December 2008, Bernard L. Madoff perpetrated the largest Ponzi scheme in history, defrauding thousands of victims of billions of dollars through Bernard L. Madoff Investment Securities LLC (“Madoff Securities”) (the “Madoff Fraud”). The U.S. Attorney’s Office for the Southern District of New York has recovered over $9 billion related to the Madoff Fraud through civil and criminal asset forfeitures. In 2013, the DOJ created the MVF to distribute to victims of the Madoff Fraud certain of the forfeited funds through a process called remission.
As alleged in the Complaint filed in Manhattan federal court:
From at least October 2016 through October 2022, FULCRUM violated the False Claims Act by causing the submission of false claims and statements to the MVF that failed to disclose payments certain MVF claimants had received from FULCRUM. As a result of this scheme, FULCRUM fraudulently received payments from the MVF to which it was not entitled.
FULCRUM is an investment firm that specializes in trading distressed assets, including Madoff Securities feeder fund shares and attendant rights. One Madoff Securities feeder fund whose underlying investors suffered losses from the Madoff Fraud was the Luxembourg-based Luxalpha SICAV Fund (“Luxalpha”). From 2014 to 2019, FULCRUM purchased Luxalpha shares and attendant Madoff-related recovery rights from three investor groups: (i) Carac, a public pension fund based in France; (ii) a group of investors in Fondaco Absolute Return, a fund based in Italy (the “Fondaco Investors”); and (iii) a group of related individual investors based in France (the “Planckes”).
Carac, the Fondaco Investors, and the Planckes (the “Claimants”) had previously filed claims with the MVF seeking remission payments for losses they claimed to have incurred as a result of their investments in Madoff Securities through Luxalpha. FULCRUM entered into a series of Purchase and Sale Agreements (“PSAs”) with Carac, one of the Fondaco Investors (a foundation called Compagnia di San Paolo (“CSP”)), and the Planckes, pursuant to which FULCRUM bought their rights to receive remission payments from the MVF. In particular, under the PSAs, Carac, CSP, and the Planckes each agreed to deliver all payments received from the MVF to FULCRUM; permit FULCRUM to act in each of their names, places, and steads with respect to the MVF; and take all actions requested by FULCRUM regarding the MVF.
FULCRUM was aware that the MVF requires all claimants to disclose collateral recoveries received from any other source, including proceeds from the sale of MVF recovery rights. The MVF issued multiple Collateral Recovery Update (“CRU”) Notices to each of the Claimants, requiring them to report all collateral recoveries. FULCRUM instructed Carac, CSP, and the Planckes to fraudulently conceal in their CRU responses the payments they had received from FULCRUM for the sale of their Luxalpha shares and rights to remission payments from the MVF. The MVF was required to reduce the Claimants’ remission payments by the amount of their collateral recoveries to prevent the Claimants from receiving duplicative recoveries. As a result of FULCRUM’s fraudulent scheme, the MVF made inflated remission payments to the Claimants. Carac, CSP, and the Planckes then transferred these amounts to FULCRUM.
As part of the settlement, FULCRUM made extensive admissions of conduct alleged in the United States’ Complaint, including the following:
- FULCRUM knew that the MVF remission process was governed by remission regulations and the MVF’s Plan of Distribution, pursuant to which DOJ requires that remission payments be reduced by the victims’ collateral recoveries, including any payments victims received, directly or indirectly, from any source for the victims’ Madoff losses. Furthermore, FULCRUM knew that the MVF issued multiple CRU Notices to each of the Claimants requiring them to disclose any recoveries they received from any source other than the MVF, including proceeds received from the sale or assignment of Madoff feeder fund shares and rights and from the purported sale or assignment of MVF remission claims.
- Despite the stated requirement that victims disclose all collateral recoveries they received, FULCRUM instructed or otherwise caused the Claimants to submit inaccurate CRU responses to the MVF that failed fully to disclose the amounts the Claimants had received from selling their Luxalpha shares and related rights and remission claims to FULCRUM.
- Under their PSAs with FULCRUM, Carac, CSP, and the Planckes agreed that they would retain no beneficial interest in any distributions they received from the MVF, that they would hold any such distributions as agents of FULCRUM, and that they would deliver any such distributions to FULCRUM within five days of receipt. Carac, CSP, and the Planckes further agreed to grant FULCRUM irrevocable power of attorney with respect to the remission claims, to deliver all correspondence they received from the MVF to FULCRUM, and take all actions requested by FULCRUM to effectuate the terms of the PSAs.
- In September 2017 and May 2019, respectively, pursuant to the PSA and at FULCRUM’s behest, Carac submitted two CRU responses to the MVF that inaccurately represented that Carac had received no collateral recoveries, when, in fact, it had received significant sales proceeds from FULCRUM.
- From February 2017 through July 2019, pursuant to the PSA and at FULCRUM’s behest, CSP submitted four CRU responses to the MVF that inaccurately failed to disclose the full amount that CSP had received from FULCRUM for its Luxalpha shares and related rights. CSP stated that it had sold its remission claim to an unidentified secondary market player for a specified amount, but this amount reflected only the amount CSP received from FULCRUM for the purported sale of its remission rights rather than the total proceeds CSP had received from FULCRUM for the sale of its Luxalpha shares and related rights. During the same time period, the other Fondaco Investors likewise submitted 28 documents to the MVF that inaccurately represented that these investors had received no collateral recoveries, when, in fact, they had received significant sales proceeds from FULCRUM.
- From August 2019 through October 2020, pursuant to the PSA, and at FULCRUM’s behest, the Planckes submitted 20 CRU responses to the MVF that inaccurately represented that the Planckes had received no collateral recoveries other than those they received from a financial intermediary in connection with a litigation settlement, when in fact they had received significant additional proceeds from FULCRUM for the sale of their Luxalpha shares and related rights.
- As a result of FULCRUM instructing or otherwise causing the Claimants to submit inaccurate collateral recovery information as described above, the MVF distributed remission payments to the Claimants that they were not entitled to receive. Pursuant to the PSA, Carac, CSP, and the Planckes then transferred the amounts they had improperly received from the MVF to FULCRUM.
FULCRUM will pay $2,511,084 to the United States under the settlement. In addition, FULCRUM agreed that it and the Claimants are not entitled to receive any amounts from the MVF in the future, and that FULCRUM shall not seek to obtain, on behalf of itself or the Claimants, any further amounts from the MVF. In connection with the filing of the lawsuit and the settlement, the Government joined a private whistleblower lawsuit that had been filed under seal pursuant to the False Claims Act.
Mr. Williams thanked the Federal Bureau of Investigation and the MVF for their assistance with the case.
CONSUMER ALERT: Attorney General James Warns New Yorkers of Price Gouging on Essential Goods in Aftermath of Heavy Rainstorms in New York
AG James Encourages New Yorkers to Report Price Gouging of Essential Items to Her Office
New York Attorney General Letitia James today issued a consumer alert warning against price gouging of essential goods and services in the aftermath of heavy rainstorms that caused flash flooding and significant damages in New York City, Long Island, the Hudson Valley, and other parts of the state. A state of emergency has been declared in counties impacted by the heavy storms. New York’s price gouging statute prevents businesses from taking advantage of consumers by selling essential goods or services at an excessively higher price during market disruptions or emergencies. Attorney General James urges New Yorkers who see higher prices on essential goods and services, including ride-hailing, to report the issue to her office.
“Heavy rain and flash flooding have devastated New York City and parts of the state and I am reminding businesses that they cannot use this storm as an excuse to jack up prices,” said Attorney General James. “Families and neighbors should not have to pay extra for basic necessities as they are dealing with flooding, damages, and road closures. I urge New Yorkers to report any unreasonably high prices for essential items to my office. I also encourage New Yorkers impacted by the storms to follow local guidance to stay safe.”
New York law prohibits businesses from taking unfair advantage of consumers by selling goods or services that are vital to health, safety, or welfare for an unconscionably excessive price during emergencies. The price gouging statute covers New York state vendors, retailers, and suppliers, and includes essential goods and services that are necessary for the health, safety, and welfare of consumers or the general public. These goods and services include food, water, gasoline, generators, batteries, flashlights, hotel lodging, and transportation options.
When reporting price gouging to the Office of the Attorney General (OAG), consumers should:
- Report the specific increased prices, dates, and places that they saw the increased prices; and,
- Provide copies of their sales receipts and photos of the advertised prices, if available.
Price gouging violations can carry penalties of up to $25,000 per violation. New Yorkers should report potential concerns about price gouging to OAG by filing a complaint online or calling 800-771-7755.
NYC Comptroller Lander Celebrates Astoria’s Vibrant MENA Community and Advocates for Small Business Empowerment
New York City Comptroller Brad Lander joined Malikah Founder and Executive Director Rana Abdelhamid on a Middle Eastern and North African (MENA) Business Walk in Astoria, Queens, yesterday. The walk aimed to engage with local businesses and celebrate the vibrant immigrant community that built the neighborhood’s cultural richness, culinary diversity, and economic vitality.
“Immigrants have been at the heart of Astoria’s transformation. Through hard work, entrepreneurial spirit, and cultural contributions, MENA communities not only revitalized the neighborhood but wove themselves into an essential part of New York City’s history,” said Comptroller Lander.
Comptroller Lander addressed the community’s most pressing needs for pandemic recovery and the kinds of assistance that were deemed most useful in informing longer-term recovery, particularly in the context of sunsetting pandemic programs with a focus on the anticipated challenges related to rent control and relief for small business owners.
The Comptroller also sought to identify areas where better language access is needed to connect the neighborhood with the city’s small business and social service resources.
Comptroller Lander’s visit began at MoMA PS1 museum, where he joined New York City Council Member Julie Won and community leaders for a tour of the Malikah showcase. The installation is co-designed with twelve women from Little Egypt and the North African communities in Astoria, Queens who weave together stories of migration and belonging.
The second stop brought Comptroller Lander to the Malikah Center, where he joined Council Member Tiffany Cabán for a tour of their new space. There he met with the center’s women’s and youth programs for a group discussion on the challenges and opportunities impacting working class Muslim women and youth.
The walk continued to Dar Yemma, a Moroccan café that opened its doors in March 2022. Here Comptroller Lander and Council Member Cabán met Saber Bouteraa, the owner, who immigrated to the US from Algeria at the age of 16 and now owns a thriving business in Astoria. The conversation touched on the immigrant experience, the challenges of starting a business post-pandemic, and rising rent.
The walk ended at the Egyptian restaurant Mombar, a personal favorite of Comptroller Lander, where he and Council Member Cabán met chef and owner Mustafa El Sayed, who is also one of two employees running the restaurant since 2001.
At each stop, Comptroller Lander presented certificates recognizing the outstanding organizing, leadership, and individual accomplishments that have helped transform Astoria into the thriving MENA community it is today.
“Malikah is thrilled to have partnered with Comptroller Lander, and Council Members Won and Cabán to showcase vibrant MENA businesses in Astoria and our ongoing MoMA PS 1 exhibition. An opportunity to celebrate the contributions of working class immigrants to our community and to advocate for economic empowerment, we hope that this business walk helped raise awareness of the challenges that our communities face and encourage New Yorkers to support small immigrant owned business,” said Rana Abdelhamid, Malikah Founder and Executive Director.
Malikah is a grassroots anti-violence organization advocating against gender and hate based violence through self-defense training, healing justice, economic empowerment, and community organizing for safety and power. They facilitate, train and organize women and girls across all five boroughs in New York City through partnerships with CBOs, public schools and religious institutions. Through their trainer model, they equip women and girls in their communities with their four programmatic pillars 1) healing 2) self-defense 3) organizing and 4) financial literacy.
Governor Hochul Updates New Yorkers as Significant Flooding Impacts Evening Commute in Downstate Region
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More Than Seven Inches of Rain Fell in Brooklyn over Past 24 Hours, More than Six Inches of Rain Reported in Manhattan, Queens and the Bronx; Parts of NYC Facing Additional Two to Four Inches of Rain this Evening by 7 P.M.
Metro-North Restores Limited Service from Grand Central on Hudson, Harlem and New Haven Lines; Harlem Line Service Between Grand Central and Fleetwood
Flash Flood Warnings in Effect for Nassau, Suffolk and Westchester Counties; Rest of Downstate Region Under Flood Advisory Through this Evening
New Yorkers Urged to Use Caution and Limit Unnecessary Travel Until Flood Warnings Are Lifted; Avoid Walking or Driving Through Floodwaters
Governor Kathy Hochul urged New Yorkers to exercise extreme caution if traveling this afternoon and evening, given more rain is on the way for the New York City area, following a widespread six to seven inches of rain since last night across the city. Parts of New York City, Long Island and the Hudson Valley remain under a Flash Flood Warning, which indicates an imminent threat of fast-moving water that can make travel dangerous and threaten life and safety.
“Today Mother Nature has shown us unprecedented rainfall in a matter of just 24 hours, with more than seven inches of rain in parts of Brooklyn and six inches of rain for other parts of New York City,” Governor Hochul said. “Our focus now is ensuring everyone gets home safe tonight and uses extreme caution when commuting this evening, as more rain is on the way.”
Governor Hochul and MTA CEO Janno Lieber announced this afternoon that Metro-North Railroad will be able to restore limited service from Grand Central Terminal on the Hudson, Harlem and New Haven Lines. Harlem Line service will operate between Grand Central and Fleetwood. Governor Hochul urged New Yorkers to take all necessary precautions on their commute home this evening.
MTA Chair and CEO Janno Lieber said, “I want to thank all the MTA employees who showed up today and will be working throughout the weekend to get us through the storm. They’ve unfortunately been getting a lot of practice for these situations in recent years, and they are rising to the occasion as always.”
The National Weather Service issued a Flood Watch for most of the New York City, Long Island and Hudson Valley regions. Flash Flood Warnings are being issued as conditions change. Coastal Flood Advisories are also in effect.
For a complete listing of weather alerts and forecasts, visit the National Weather Service website at alerts.weather.gov. New Yorkers are encouraged to sign up for NY Alert, the State's free emergency alert system, at alert.ny.gov. County-by-county emergency information can be pushed by text or email.
The National Weather Service issued a Flood Watch for most of the New York City, Long Island and Hudson Valley regions. Flash Flood Warnings are being issued as conditions change. Coastal Flood Advisories are also in effect.
For a complete listing of weather alerts and forecasts, visit the National Weather Service website at alerts.weather.gov. New Yorkers are encouraged to sign up for NY Alert, the State's free emergency alert system, at alert.ny.gov. County-by-county emergency information can be pushed by text or email.
State Agency Response
Customers are encouraged to check new.mta.info for the latest service updates if they must travel, and to use caution while navigating the system. Customers should also sign up for real-time service alerts via text or email. These alerts are also available via the MTA's apps: MYmta and TrainTime.
NYSDOT is reporting the following highway closures as of 3:45 p.m. Friday:
Westchester County:
- Hutchinson River Parkway at Exit 9A/B New Rochelle
- Hutchinson River Parkway between Exit 8 - Cross County Parkway and Bronx-Westchester County Line, New Rochelle
- Taconic State Parkway, between Stevens Ave and Cleveland St, Mount Pleasant
- Saw Mill River Parkway between Exit 4 - Cross County Parkway and start of Saw Mill River Parkway Bronx-Westchester County Line, Yonkers
- Saw Mill River Parkway Northbound, ramp from Exit 4A - Rumsey Rd, Yonkers, entrance ramp closed
- Saw Mill River Parkway between Exit 16 - Lawrence St and Exit 13 - Farragut Avenue, Greenburgh, Saw Mill River Parkway between I-287 Ramp and Exit 20 - I-87, Greenburgh
- Saw Mill River Parkway between Exit 23 - Old Saw Mill Road; CR 303 and Exit 26 - Taconic State Parkway, Greenburgh
- Saw Mill River Parkway ramps to Exit 27 - Marble Avenue, Mount Pleasant
- Saw Mill River Parkway Southbound, at Exit 33 - Readers Digest Road, Mount Kisco, exit ramp closed
- Bronx River Parkway, between City of Yonkers; City of New York Line and Exit - Sprain Brook Parkway, Yonkers
- Bronx River Parkway between Exit - Sprain Brook Parkway and Exit 22 - NY 119 - Tarrytown Road; NY 100 -Central Avenue, Yonkers
- Sprain Brook State Parkway between start of parkway and Exit - NY 100, Eastchester
- Sprain Brook State Parkway between Exit - Grasslands Road; NY 100C and Bradhurst Avenue, Greenburgh
- Cross County Parkway Eastbound, ramp to Exit 9 - Hutchinson River Parkway, Mount Vernon
- Cross County Parkway ramps to Exit 6; Bronx River Parkway S/B, Mount Vernon
- NY 9A at Old Country Rd, Greenburgh
- NY 9A south of West Main Street; NY 119; East Main Street, Greenburgh
- NY 9A at Ryder Rd, Ossining,
- NY 117 at Old House Lane, New Castle
- NY 35 east of Mark Meade Road, Lewisboro
Monitor 511 for the latest road conditions in your area.
New York's utilities have approximately 5,500 workers available to engage in damage assessment, response, repair, and restoration efforts across New York State for this event. Agency staff will track utilities' work throughout the event and ensure utilities shift appropriate staffing to regions that experience the greatest impact.
Flash Flooding Safety Tips
- Never attempt to drive on a flooded road. Turn around and go another way.
- If water begins to rise rapidly around you in your car, abandon the vehicle immediately.
- Do not underestimate the power of fast-moving water. Two feet of fast-moving flood water will float your car, and water moving at two miles per hour can sweep cars off a road or bridge.
For more information on personal preparedness and how to stay safe during severe weather, visit: https://www.dhses.ny.gov/safety-and-prevention.
Bronx Chamber of Commerce - Bronx Business News You Can Use
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