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POTENTIAL CONFLICTS OF INTEREST 

AT THE SEC: THE BECKER CASE 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT 

AND INVESTIGATIONS 

OF THE

COMMITTEE ON FINANCIAL SERVICES 

AND THE

SUBCOMMITTEE ON TARP, FINANCIAL 

SERVICES AND BAILOUTS OF PUBLIC 

AND PRIVATE PROGRAMS 

OF THE

COMMITTEE ON OVERSIGHT AND 

GOVERNMENT REFORM 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

SEPTEMBER 22, 2011 

Printed for the use of the Committee on Financial Services and the Committee 

on Oversight and Government Reform 

Serial No. 112–66 

Committee on Financial Services 

Serial No. 112–62 

Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

HOUSE COMMITTEE ON FINANCIAL SERVICES 

SPENCER BACHUS, Alabama, Chairman 

JEB HENSARLING, Texas, Vice Chairman 

PETER T. KING, New York 

EDWARD R. ROYCE, California 

FRANK D. LUCAS, Oklahoma 

RON PAUL, Texas 

DONALD A. MANZULLO, Illinois 

WALTER B. JONES, North Carolina 

JUDY BIGGERT, Illinois 

GARY G. MILLER, California 

SHELLEY MOORE CAPITO, West Virginia 

SCOTT GARRETT, New Jersey 

RANDY NEUGEBAUER, Texas 

PATRICK T. MCHENRY, North Carolina 

JOHN CAMPBELL, California 

MICHELE BACHMANN, Minnesota 

THADDEUS G. McCOTTER, Michigan 

KEVIN McCARTHY, California 

STEVAN PEARCE, New Mexico 

BILL POSEY, Florida 

MICHAEL G. FITZPATRICK, Pennsylvania 

LYNN A. WESTMORELAND, Georgia 

BLAINE LUETKEMEYER, Missouri 

BILL HUIZENGA, Michigan 

SEAN P. DUFFY, Wisconsin 

NAN A. S. HAYWORTH, New York 

JAMES B. RENACCI, Ohio 

ROBERT HURT, Virginia 

ROBERT J. DOLD, Illinois 

DAVID SCHWEIKERT, Arizona 

MICHAEL G. GRIMM, New York 

FRANCISCO ‘‘QUICO’’ CANSECO, Texas 

STEVE STIVERS, Ohio 

STEPHEN LEE FINCHER, Tennessee 

BARNEY FRANK, Massachusetts, Ranking 

Member 

MAXINE WATERS, California 

CAROLYN B. MALONEY, New York 

LUIS V. GUTIERREZ, Illinois 

NYDIA M. VELA ́ ZQUEZ, New York 

MELVIN L. WATT, North Carolina 

GARY L. ACKERMAN, New York 

BRAD SHERMAN, California 

GREGORY W. MEEKS, New York 

MICHAEL E. CAPUANO, Massachusetts 

RUBE ́ N HINOJOSA, Texas 

WM. LACY CLAY, Missouri 

CAROLYN MCCARTHY, New York 

JOE BACA, California 

STEPHEN F. LYNCH, Massachusetts 

BRAD MILLER, North Carolina 

DAVID SCOTT, Georgia 

AL GREEN, Texas 

EMANUEL CLEAVER, Missouri 

GWEN MOORE, Wisconsin 

KEITH ELLISON, Minnesota 

ED PERLMUTTER, Colorado 

JOE DONNELLY, Indiana 

ANDRE ́ CARSON, Indiana 

JAMES A. HIMES, Connecticut 

GARY C. PETERS, Michigan 

JOHN C. CARNEY, JR., Delaware 

LARRY C. LAVENDER, Chief of Staff 

(III) 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

RANDY NEUGEBAUER, Texas, Chairman 

MICHAEL G. FITZPATRICK, Pennsylvania, 

Vice Chairman 

PETER T. KING, New York 

MICHELE BACHMANN, Minnesota 

STEVAN PEARCE, New Mexico 

BILL POSEY, Florida 

NAN A. S. HAYWORTH, New York 

JAMES B. RENACCI, Ohio 

FRANCISCO ‘‘QUICO’’ CANSECO, Texas 

STEPHEN LEE FINCHER, Tennessee 

MICHAEL E. CAPUANO, Massachusetts, 

Ranking Member 

STEPHEN F. LYNCH, Massachusetts 

MAXINE WATERS, California 

JOE BACA, California 

BRAD MILLER, North Carolina 

KEITH ELLISON, Minnesota 

JAMES A. HIMES, Connecticut 

JOHN C. CARNEY, JR., Delaware 

(V) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

DAN BURTON, Indiana 

JOHN L. MICA, Florida 

TODD RUSSELL PLATTS, Pennsylvania 

MICHAEL R. TURNER, Ohio 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

CONNIE MACK, Florida 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

ANN MARIE BUERKLE, New York 

PAUL A. GOSAR, Arizona 

RAU ́ L R. LABRADOR, Idaho 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

JOE WALSH, Illinois 

TREY GOWDY, South Carolina 

DENNIS A. ROSS, Florida 

FRANK C. GUINTA, New Hampshire 

BLAKE FARENTHOLD, Texas 

MIKE KELLY, Pennsylvania 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

EDOLPHUS TOWNS, New York 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

DENNIS J. KUCINICH, Ohio 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MIKE QUIGLEY, Illinois 

DANNY K. DAVIS, Illinois 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

CHRISTOPHER S. MURPHY, Connecticut 

JACKIE SPEIER, California 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

ROBERT BORDEN, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON TARP, FINANCIAL SERVICES AND BAILOUTS OF PUBLIC AND

PRIVATE PROGRAMS

PATRICK T. MCHENRY, North Carolina, Chairman 

FRANK C. GUINTA, New Hampshire, Vice 

Chairman 

ANN MARIE BUERKLE, New York 

JUSTIN AMASH, Michigan 

PATRICK MEEHAN, Pennsylvania 

JOE WALSH, Illinois 

TREY GOWDY, South Carolina 

DENNIS A. ROSS, Florida 

MIKE QUIGLEY, Illinois, Ranking Minority 

Member 

CAROLYN B. MALONEY, New York 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

JACKIE SPEIER, California 

JIM COOPER, Tennessee 

(VII) 

C O N T E N T S 

Page 

Hearing held on: 

September 22, 2011 .......................................................................................... 1 

Appendix: 

September 22, 2011 .......................................................................................... 55 

WITNESSES 

THURSDAY, SEPTEMBER 22, 2011 

Becker, David M., former General Counsel, U.S. Securities and Exchange 

Commission ........................................................................................................... 33 

Kotz, H. David, Inspector General, U.S. Securities and Exchange Commission 8 

Schapiro, Hon. Mary L., Chairman, U.S. Securities and Exchange Commission ........................................................................................................................ 6 

APPENDIX 

Prepared statements: 

Neugebauer, Hon. Randy ................................................................................. 56 

Becker, David M. .............................................................................................. 58 

Kotz, H. David .................................................................................................. 71 

Schapiro, Hon. Mary L. .................................................................................... 92 

(1) 

POTENTIAL CONFLICTS OF INTEREST 

AT THE SEC: THE BECKER CASE 

Thursday, September 22, 2011 

U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON OVERSIGHT

AND INVESTIGATIONS, COMMITTEE ON FINANCIAL SERVICES, JOINT WITH THE

SUBCOMMITTEE ON TARP, 

FINANCIAL SERVICES AND BAILOUTS

OF PUBLIC AND PRIVATE PROGRAMS, COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittees met, pursuant to notice, at 2:56 p.m., in room 

2128, Rayburn House Office Building, Hon. Randy Neugebauer 

[chairman of the Subcommittee on Oversight and Investigations, 

Committee on Financial Services] presiding. 

Members present from the Subcommittee on Oversight and Investigations: Representatives Neugebauer, Fitzpatrick, Pearce; 

Capuano and Miller of North Carolina. 

Members present from the Subcommittee on TARP, Financial 

Services and Bailouts of Public and Private Programs: Representatives McHenry, Guinta, Buerkle; Quigley and Maloney. 

Ex officio present: Representatives Issa and Cummings. 

Also present: Representatives Garrett and Ackerman. 

Chairman NEUGEBAUER. The hearing will come to order. This is 

a joint hearing. I am proud to have my colleagues from the Committee on Oversight and Government Reform joining us in this 

joint hearing of the Subcommittee on Oversight and Investigations 

of the Committee on Financial Services and the Subcommittee on 

TARP, Financial Services and Bailouts of Public and Private Programs of the Committee on Oversight and Government Reform. 

I remind all Members that we may have some Members who 

want to join us. We may have some others who join us after the 

votes. We are going to try to get the opening statements out of the 

way here. I think there will be a vote shortly. I think there are two 

votes. We will go do those quickly and then come back and begin 

the hearing. 

Without objection, all Members’ opening statements will be made 

a part of the record. 

Today, we are having this hearing in order to look into matters 

at the SEC on how ethics are handled within the organization. The 

Inspector General has just released a report, and he will go over 

2 

that. I think one of the things that is alarming about this hearing 

today is that the SEC really holds the entities that they regulate 

to very high standards, particularly when it comes to conflicts of 

interest. And I think it is extremely important that the organization that holds others to these standards must have those same 

standards within their organization. 

As we look at the Inspector General’s report, he thinks there 

were some holes in that system, and one of the things we are here 

for today is to discuss that. 

I think it is alarming to find out that someone who may have 

had a financial interest in the Madoff settlement was actually handling many of the very high-level discussions that were going on 

at the SEC. Many of us believe that was probably not appropriate 

behavior. 

As we move forward with this, I think one of the things we have 

to understand is that the SEC is entrusted to protect shareholders 

and investors, and that some of the behavior that was going on 

within the organization would probably be behavior that would not 

be tolerated by some of the companies and entities and individuals 

that fall under the SEC’s jurisdiction. 

Ultimately, I think the findings of the Inspector General, as we 

will hear, is that there were some lapses and that there are some 

changes that need to be made within the organization, and that the 

leadership on this issue really needs to come from the top. We look 

forward to hearing from Chairman Schapiro on some of her reflections on the report and things that she thinks need to be happening within her organization moving forward, to make sure these 

kinds of issues do not happen in the future. 

I think there is a high expectation that this issue will be dealt 

with and that hopefully things like this won’t happen again, because this was a very high-profile case to begin with and had a lot 

of attention through the Madoff issue; and then to kind of follow 

up and find out that within the organization, we were having 

lapses in other internal control areas was somewhat disturbing for 

a lot of us. 

So I look forward to this hearing today. 

Now, it is my pleasure to yield 2 minutes to the the ranking 

member of the Subcommittee on Oversight and Investigations, Mr. 

Capuano. 

Mr. CAPUANO. Thank you, Mr. Chairman. I would just like to 

welcome the people who are going to give testimony today, the 

members of the panel. Thank you for being here and thank you for 

your patience with our schedule and the demands of our schedule, 

which I know you both know. 

Obviously, I want to know more about this particular incident. 

But I read the report and I actually think it is pretty clear. I will 

find it surprising if you shed additional light. Maybe. For me, everybody make mistakes. Even I have made an occasional mistake 

or have interpreted something wrong or applied something wrong. 

That is one way to judge people. And if it is all about perfection, 

then let anyone who wants to, stand up and be perfect. That is one 

part it of the judgment, though; how bad was it; did innocent people get hurt, and if they did, what was it? But the other part of 

the judgment is to find out what has happened since the problem 

3 

came to light; what has been the reaction; has the reaction been 

proper; has it been appropriately timed; have innocent people been 

protected? Have any wrong decisions been corrected? Again, I think 

I know some of these answers, nonetheless, I would like to hear 

them today, because to me, that is the real judgment. Making a 

mistake is one thing, but how you react to a mistake, to me, is usually more important. 

I look forward to hearing the testimony. 

Thank you, Mr. Chairman. 

Chairman NEUGEBAUER. I thank the gentleman. 

Also, I am pleased to have the chairman of the Oversight and 

Government Reform Committee joining us on the panel as well, 

Mr. Issa. We appreciate your being here. 

I now yield 3 minutes to the chairman of the Subcommittee on 

TARP, Financial Services and Bailouts of Public and Private Programs, Mr. McHenry, whom I look forward to working with on this 

hearing. Thanks for your cooperation. 

Chairman MCHENRY. Thank you. Thank you for this joint hearing today. I want to thank our panel for being here and complying 

with our schedule. I certainly appreciate that. I want to thank you 

both for your service in government. 

In May 2010, then-Ranking Member Darrell Issa released a report that explained how the SEC’s unworkable structure, lawyerdriven culture, and technological backwardness helped to cause one 

of its high-profile failures such as the Madoff scandal. This joint 

committee hearing continues the ongoing efforts of congressional 

oversight. 

The matter at hand today originates with Bernie Madoff’s elaborate Ponzi scheme. Mr. Madoff admitted guilt nearly a decade after 

questions had been raised to regulators about the Madoff firm 

which operated a Ponzi scheme with over $60 billion of fraud and 

thousands of clients. It was clear the SEC’s reputation had taken 

a blow. 

In 2009, Mary Schapiro was named Chairman of the SEC and 

stated her commitment to rebuild the SEC’s reputation. Soon after 

her arrival, she welcomed back David Becker to the SEC as General Counsel. Upon arriving at the SEC in early 2009, Mr. Becker 

informed Chairman Schapiro about his status as a net winner from 

a Madoff fraud case. Despite learning this, Chairman Schapiro 

never asked Mr. Becker to recuse himself from Madoff-related matters or to disclose his financial interests. This was unfortunate and 

this was a mistake. That is now clear. 

Since then, a series of missteps by high-ranking officials of the 

SEC, ranging from Mr. Becker’s communication with the SEC’s 

Counsel to his personal participation in matters in which he had 

a personal financial interest, have put into question the reputation 

of the management and decision-making of the SEC. That is what 

this hearing is really about. We also note, for example, that the 

SEC’s five Commissioners, advised by Mr. Becker, voted on an 

issue that affected Mr. Becker’s personal financial interest, and 

only Chairman Schapiro knew about that, and perhaps not to the 

full extent that she now does. Just yesterday, the SEC’s Inspector 

General referred the Becker situation case to the Department of 

Justice. 

4 

Chairman Schapiro, you have had a distinguished career. You 

have had a long service in government service, and we certainly 

appreciate that. We appreciate your contribution to Federal service. 

You have a wonderful reputation. 

What is clear about this situation is that you did make a mistake. You admitted such, and you said had you known then what 

you know now, you would have acted differently. What we want to 

know in terms of Federal congressional oversight is how we prevent this from happening again; what policies are you going to put 

in place, what actions you have taken, and what actions you will 

take going forward to make sure this never happens again? 

Thank you for being here. Thank you for your testimony. And 

thank you for your service. 

Chairman NEUGEBAUER. I thank the gentleman. I yield 21⁄2 minutes to the gentleman, Mr. Quigley. 

Mr. QUIGLEY. Thank you, Mr. Chairman. Earlier this year, this 

subcommittee held a similar hearing on the SEC. At that hearing, 

we acknowledged a number of issues facing the SEC, including 

budget cuts and the ability of the SEC to complete its responsibilities after they are done. We also discussed internal challenges, including the David Becker potential conflict of interest in handling 

high-profile cases. But at that time, at our last hearing, we didn’t 

have the benefit of the extensive record that we do now, thanks to 

the Inspector General’s report. 

In order to fairly address this important issue and restore the 

public’s confidence in the SEC, we welcome a thorough discussion 

of these matters. To that end, we also welcome the voluntary appearance of David Becker and hope his testimony will advance our 

discussion. 

This case exemplifies how even the appearance of impropriety 

can undermine public confidence in vital institutions like the SEC. 

According to the Inspector General, ‘‘Becker participated personally 

and substantially in particular matters in which he had a personal 

financial interest.’’ That demonstrates the importance of transparency and of ethical decision-making in the agency process, an 

imperative for an objective, independent, and competent Ethics 

Counsel at all government agencies. 

In closing, I look forward to this discussion as well as our consideration of the Inspector General’s recommendations for reforming 

the SEC’s Ethics Office. I would also like to observe that Chairman 

Schapiro deserves credit for steps she has already taken to deal 

with this issue and future issues. She called for the Inspector General’s investigation and has moved to revamp the SEC’s Ethics Office. I hope we can build on her work and restore trust in the SEC, 

a vital public institution that is critical to the soundness of our financial markets. 

Thank you, and I yield back. 

Chairman NEUGEBAUER. I thank the gentleman. 

The chairman of the Committee on Oversight and Government 

Reform, Mr. Issa, is recognized for 2 minutes. 

Chairman ISSA. Thank you, Mr. Chairman. Thank you for convening this joint hearing today. It is in fact always a pleasure to 

see Chairman Schapiro. We consider her to be a consummate professional who, as Chairman McHenry said, has made a mistake. 

5 

Also, I would like to welcome Inspector General Kotz. Your report is important to the reform that this joint group wants to do. 

I recognize that although the reform is in the name of our committee, ultimately a great deal of what is going to be done, overseen, and fixed will be under the Financial Services Committee. 

We are deeply concerned that we now have had two strikes on 

Bernie Madoff; that in fact today many of my questions will be not 

only how did it happen, but how are we going to make sure we 

don’t have a third. It is extremely important that this committee, 

this joint effort, begins looking and saying, how do we get the maximum confidence in the process; how do we get capital moving 

again; because ultimately, dollars sitting on the sideline is in fact 

a national problem. And there is no better place to ensure the confidence comes back than to our public market. 

So I look forward to the hearing. It is going to be tough. There 

are going to be tough questions because mistakes were made. 

Mr. Chairman, as you know, our committee is also working on 

‘‘Operation Fast and Furious’’ with a different part of government 

in which they are still claiming that no problem really occurred; 

that it was simply a botched operation. This was not a botched operation. There were mistakes made that we have to ensure do not 

happen in the future as a process, not just for individuals. So I 

thank you for holding this hearing and I look forward to the questions and answers, and I yield back. 

Chairman NEUGEBAUER. I thank the gentleman. 

I now am going to yield 21⁄2 minutes to the gentleman, Mr. Cummings. 

Mr. CUMMINGS. Thank you, Mr. Chairman, for calling today’s 

hearing, and I welcome the opportunity to work with the members 

of the House Financial Services Oversight and Investigation Subcommittee on this very important issue. 

The IG report, which I commend Chairman Schapiro for requesting, clearly describes a procedural breakdown within the SEC’s ethics process that undermines the public’s trust not just in the 

Madoff matter but also in any other matter before the Commission. 

This is simply unacceptable. 

The victims of the Madoff scheme deserve to know that the 

SEC’s decision in this case was not tainted by conflicts of interest. 

I am heartened by reports that Chairman Schapiro has already 

adopted the IG’s recommendations to revisit the SEC’s position regarding the method used to calculate the value of each Madoff victim’s accounts, a method that was advanced by Mr. Becker and 

adopted by the SEC. 

I am also encouraged that Chairman Schapiro took action last 

year to overhaul the Ethics Office, hire new Ethics Counsel, and 

provide the office with greater resources. 

However, I, like other members of this panel, continue to have 

grave concerns and serious questions about the procedural breakdown in the SEC’s ethics process. It is so important that we reestablish trust in this very important office. 

Ms. Schapiro, you have said it yourself, that trust is very very 

important for everything you do. There are so many Americans 

who are depending on this office to do the right thing, and they 

have to know that things are functioning the way they are supVerDate Nov 24 2008 11:21 Mar 16, 2012 Jkt 072607 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 K:\DOCS\72607.TXT TERRIE
6 

posed to function. And so I look forward to your testimony, and 

thank you again, Mr. Chairman. 

With that, I yield back and I look forward to the testimony. 

Chairman NEUGEBAUER. I thank the gentleman. 

Mrs. Maloney is recognized for 1 minute. 

Mrs. MALONEY. Thank you, Mr. Chairman, and ranking members, for calling this important hearing on the potential conflicts of 

interest at the SEC and the Becker case. This is an important case. 

But even more important than this are the steps we can take to 

prevent a Bernie Madoff scheme from happening again and hurting 

American taxpayers. 

The Dodd-Frank Act implemented a strengthened public accounting board, strengthened independent auditors, because the information in the accounts were fraudulent in the Madoff case. It 

strengthened whistle-blower protections, it lowered the aiding and 

abetting standard, and it strengthened the requirement that examiners talk to law enforcement in order to move forward. I very 

much agree with the IG’s recommendation that the vote should be 

reconsidered in a process that is free from any possible bias or 

taint. 

I look forward to hearing from you, Chairman Schapiro, on what 

steps you are taking to ensure that this time the Madoff victims 

and the American people can be confident that this process is untainted and unbiased. Our markets run more on trust than on capital, and restoring trust is extremely important. This is an important hearing. 

Thank you, Mr. Chairman. I yield back. 

Chairman NEUGEBAUER. I thank the gentlewoman. 

Our first panel consists of: the Honorable Mary Schapiro, Chairman of the U.S. Securities and Exchange Commission; and Mr. 

David Kotz, Inspector General of the U.S. Securities and Exchange 

Commission. Without objection, your written statements will be 

made a part of the record and you will be recognized for 5 minutes 

to summarize your testimony. 

STATEMENT OF THE HONORABLE MARY L. SCHAPIRO, 

CHAIRMAN, U.S. SECURITIES AND EXCHANGE COMMISSION 

Ms. SCHAPIRO. Chairmen Neugebauer and McHenry, Ranking 

Members Capuano and Quigley, and members of the subcommittees, thank you for inviting me to testify regarding the report of 

the Securities and Exchange Commission’s Inspector General concerning the Commission’s former General Counsel, David Becker. 

Last March, I requested that the IG conduct this review. I wanted 

to ensure that there was an independent analysis of all relevant 

facts surrounding Mr. Becker’s involvement in Commission matters 

relating to SIPC’s liquidation of the Madoff broker-dealer. Among 

other things, the IG identifies concerns about Mr. Becker’s participation in the Commission’s resolution of those issues, and also 

makes a number of recommendations, several of which propose 

ways to improve the Commission’s already much-improved Ethics 

Office. The Commission’s new Ethics Counsel and I concur in those 

recommendations and agree on the need to take immediate steps 

to implement them. 

7 

The IG also has indicated he will refer, or has referred, the results of his investigation to the Department of Justice. While it 

would be inappropriate for me to comment on that referral, I can 

talk about what I recall of Mr. Becker’s communications to me soon 

after I became Chairman in January of 2009. 

Mr. Becker informed me that his mother had had an account 

with Madoff before she died, and that it had been closed a number 

of years before he returned to the agency. At the time, I was focused on identifying and remediating failures in the agency that 

had allowed the fraud to go undetected for many years, and I was 

focused on the plight of the many victims, some of whose heartbreaking letters I had recently read. It simply did not occur to me 

then that his deceased mother’s account, closed years ago, could 

present a financial conflict of interest. 

There were a number of important facts about Mr. Becker’s situation that I did not either know or appreciate at the time; principally, that he personally could be subject to a clawback suit or 

that the resolution of the SIPC issues affecting the victims of the 

Madoff fraud could potentially affect his financial interest. What I 

did know is that Mr. Becker was a dedicated public servant and 

experienced attorney who had ably served as General Counsel to 

three Chairmen. 

As compliance with ethical obligations is each employee’s responsibility, I assumed that he would seek guidance from the agency’s 

Ethics Counsel, and, indeed, the IG’s report describes how Mr. 

Becker did that on two separate occasions. But while I understand 

that Mr. Becker did obtain clearance from the Ethics Counsel, I 

also realize that as Chairman, I need to have a broader vision that 

goes beyond what may be required in any situation. On such matters I need to be acutely sensitive to any issue that could potentially distract from the Commission’s ability to fulfill its mission 

with the full confidence of the investing public. 

I was sworn in as Chairman on January 27, 2009, a month-anda-half after Madoff was arrested. My highest priority at that time 

was to make whatever changes were needed to ensure that another 

Madoff could never happen again. But I was equally concerned 

about how to provide the most effective relief for the Madoff victims, so that within the contours of the law, we could get the most 

money to investors who were literally losing their homes. That 

issue crystalized for the Commission around the question of how 

the bankruptcy court presiding over the liquidation should calculate the net equity in a Madoff victim’s account. 

In December 2009, after internal discussions and a vote, the 

Commission expressed its position to the bankruptcy court. The 

Commission’s position had two components. First, the Commission 

determined that due to the nature of Madoff’s fraud, customers’ net 

equity could not be based on the fictitious amounts shown on their 

final account statements. Instead, they should be measured by 

their net investment with Madoff—the money-in/money-out approach. 

Second, given the extraordinary duration of the fraud, the Commission concluded that the way to treat different generations of victims most fairly was to adjust their claims to account for the effects 

of inflation over time, what we call the constant-dollar approach. 

8 

The bankruptcy court has ruled on the first question, agreeing 

with the money-in/money-out approach, a decision that the Second 

Circuit Court of Appeals recently affirmed. The bankruptcy court, 

however, has not yet addressed whether the customers’ claims 

should be measured in constant dollars. The IG recommends that 

the Commission conduct a re-vote on its determination that Madoff 

customers’ net equity be calculated in constant dollars. I agree that 

a re-analysis and a re-vote of this issue is appropriate. 

The report also discusses a decision in late 2009 to have a witness other than Mr. Becker testify on behalf of the Commission at 

a congressional hearing concerning the Commission’s views on how 

net equity should be determined in Madoff. The witness at that 

hearing was there to represent the Commission’s legal and policy 

position on a complex, novel question of law. 

When this issue arose, I believed, were Mr. Becker to be the witness, he should disclose to the subcommittee that his mother had 

had an account. Thereafter, it was suggested to me that, notwithstanding Mr. Becker’s clearance by Ethics Counsel, his participation could distract from the core legal and policy positions of the 

Commission, and that therefore our Deputy Solicitor, an experienced litigator and the principal attorney on the Madoff liquidation 

matters, should be the Commission’s witness. And I concurred. 

Ensuring that the agency has the strongest possible ethics program has been a priority of mine. Over the past 2 years, we have 

revamped the structure, function, and personnel of the Commission’s Ethics Office. The IG report makes recommendations on 

ways to further improve our ethics program, including having the 

Chief Ethics Counsel report directly to the Chairman instead of to 

the General Counsel. Notwithstanding the improvements we already have made, I recognize there is more that can be done, and 

we will take immediate steps to implement the report’s recommendations. 

I am proud of how much we have accomplished at the SEC over 

the past 21⁄2 years and I am proud to have the opportunity to work 

alongside an extraordinary staff who work tirelessly to protect investors in the markets. Critical to the performance of our mission 

is protecting the integrity—and the perception of integrity—of our 

decisions and our processes. I can say to you with assuredness that 

we have learned from this experience and are taking and will continue to take all actions necessary to earn and maintain the trust 

the public places in us. 

Thank you for the opportunity to be here today. I am happy to 

answer your questions. 

[The prepared statement of Chairman Schapiro can be found on 

page 92 of the appendix.] 

Chairman NEUGEBAUER. Thank you. 

Mr. Kotz, you are recognized for 5 minutes. 

STATEMENT OF H. DAVID KOTZ, INSPECTOR GENERAL, U.S. 

SECURITIES AND EXCHANGE COMMISSION 

Mr. KOTZ. Thank you for the opportunity to testify before the 

subcommittees on the subject of potential conflicts of interest at the 

SEC, the Becker case, as the Inspector General of the United 

States Securities and Exchange Commission. 

9 

On March 4, 2011, Chairman Schapiro requested that my office 

investigate any conflicts of interest arising from the participation 

of David Becker, the former General Counsel and senior policy director of the Commission, in determining the SEC’s position in the 

liquidation proceeding brought by the Securities Investor Protection Corporation, SIPC, of Bernard L. Madoff Investment Securities, the Madoff liquidation. The Chairman’s request came after she 

received congressional inquiries prompted by press reports beginning on February 22, 2011, that the trustee administering the 

Madoff liquidation had brought a clawback suit seeking to recover 

fictitious profits that had accrued to Mr. Becker and his brother as 

beneficiaries of their mother’s estate when a Madoff account she 

held was liquidated after her death. We opened an investigation 

that same day we received the Chairman’s request. 

During the course of our investigation, we obtained and searched 

over 5.1 million emails for a total of 45 current and former SEC 

employees for various time periods pertinent to the investigation, 

ranging from 1998 to 2011. We also obtained and analyzed internal 

SEC documents, documentation provided by the Madoff trustee, 

court filings, and press reports. In addition, we conducted testimony or interviews of 40 witnesses with knowledge of relevant 

facts or circumstances surrounding the matter. 

On September 16, 2011, we issued to the Chairman of the SEC 

a comprehensive report of our investigation in the conflict of interest matter that contained nearly 120 pages of analysis and 200 exhibits. Overall, the OIG investigation found that Mr. Becker participated personally and substantially in particular matters in 

which he had a personal financial interest by virtue of the inheritance of the proceeds of his mother’s estate’s Madoff account and 

that the matters on which he advised could have directly impacted 

his financial position. 

We found that Mr. Becker played a significant and leading role 

in the determination of what recommendation the staff would make 

to the Commission regarding the position the SEC would advocate 

as to the calculation of a customer’s net equity in the Madoff liquidation. 

Under the Securities Investors Protection Act of 1970, SIPA, 

where SIPC has initiated the liquidation of a brokerage firm, net 

equity is the amount that a customer can claim to recover in the 

liquidation proceeding. The method for determining the Madoff customer’s net equity was therefore critical to determining the amount 

the trustee would pay to customers in the Madoff liquidation. 

Testimony obtained from SIPC officials and numerous SEC witnesses, as well as documentary evidence reviewed, demonstrated 

that there was a direct connection between the method used to determine net equity and clawback actions by the trustee, including 

the overall amount of funds the trustee would seek to claw back 

and the calculation of amount sought in individual clawback suits. 

In addition to his work on the net equity issue, we also found 

that Mr. Becker, in his role as SEC General Counsel and Senior 

Policy Director, provided comments on a proposed amendment to 

SIPA that would have severely curtailed the trustee’s power to 

bring clawback suits against individuals like him in the Madoff liquidation. 

10 

After we concluded the fact-finding phase of our investigation, we 

provided to the acting Director of the Office of Government Ethics, 

OGE, a summary of the salient facts uncovered in the investigation 

as reflected in our report. After reviewing the summary of facts we 

provided, the acting Director of OGE advised us that in his opinion, 

as well as that of senior attorneys on his staff, Mr. Becker’s work 

both on the policy determination of the calculation of net equity in 

connection with clawback actions stemming from the Madoff matter and his work on the proposed legislation affecting clawbacks 

should be referred to the United States Department of Justice for 

consideration of whether Mr. Becker violated 18 USC Section 208, 

a criminal conflict-of-interest provision. 

Based on this guidance from OGE, we have referred the results 

of our investigation to the Public Integrity Section of the Criminal 

Division of the United States Department of Justice. 

Based on the findings in our report, we have also recommended 

that in light of David Becker’s role in signing an advice memorandum and participating in an executive session at which the 

Commission considered the recommendation that the Commission 

take the position that net equity for purposes of paying Madoff customer claims should be calculated in constant dollars by adjusting 

for the effects of inflation, that the Commission should reconsider 

its position on this issue by conducting a re-vote in a process free 

from any possible bias or taint. 

We have also made several recommendations with respect to the 

Ethics Office, including that the SEC Ethics Counsel should report 

directly to the Chairman rather than to the General Counsel, and 

that necessary steps, including the implementation of appropriate 

policies and procedures, be taken to ensure that: one, objective, 

complete, and consistent ethics advice is provided; two, ethics officials have all the necessary information in order to properly determine if an employee’s proposed actions may violate rules or statutes or create an appearance of impropriety; and three, all ethics 

advice provided in significant matters such as those involving financial conflict of interest are documented in an appropriate and 

consistent manner. 

I am confident that under Chairman Schapiro’s leadership, the 

SEC will review our report and take appropriate steps to implement our recommendations to ensure that the concerns identified 

in our investigation are appropriately addressed. I also believe the 

fact that the Chairman asked my office to conduct this investigation, and we completed an exhaustive investigation and issued a 

thorough and comprehensive report in a timely fashion, demonstrates that the Inspector General process within the SEC is 

working effectively. 

In conclusion, I appreciate the interest of the chairmen, the ranking members, and the subcommittee and the SEC and my office 

and, in particular, in the facts and circumstances pertinent to our 

conflict-of-interest report. I will be happy to answer any questions. 

Thank you. 

[The prepared statement of Inspector General Kotz can be found 

on page 71 of the appendix.] 

Chairman NEUGEBAUER. Thank you. 

11 

We will now go to questions from the members. Each member 

will be recognized for 5 minutes. I recognize myself for 5 minutes. 

Ms. Schapiro, you advised Mr. Becker that he would have to disclose his interest in the Madoff interest if he testified before Congress, but you didn’t feel it was necessary to disclose information 

before the Commission when Mr. Becker made a presentation on 

his proposed formula for the liquidation. I am a little confused as 

to why you felt that it was important that he disclose that to Congress but not disclose it to Commission members. Can you shed 

some light on that for me? 

Ms. SCHAPIRO. I would be happy to, Mr. Chairman. I thought it 

was very important that any information be disclosed to Congress 

in the context of his potentially being a witness, so there would not 

be any surprises. He apparently did not tell the Commissioners, 

and it frankly did not occur to me to directly tell the Commissioners, because generally it is not our practice to tell the Commission or to talk about it when somebody does not have a conflict of 

interest and Ethics cleared that he did not have a conflict of interest from appearing and that he did not need to recuse. So we generally haven’t told people when somebody is not recused. 

I wish that he had told them. After we all learned, obviously, 

from reading the newspaper that he had in fact been sued in a 

clawback suit, and, myself included, were very surprised by this 

news, I did go to each Commissioner and apologize to them for not 

having thought to direct David to do exactly that and inform them 

of it. But it simply was because we just don’t have a practice of 

telling people when somebody is not recused. 

Chairman NEUGEBAUER. I think one of the issues about this 

hearing is that some of these practices that were in place at the 

Commission seem to be the problem. There wasn’t that much distance in time between when the Commission voted and when Mr. 

Becker was asked to potentially testify before Congress. So in a 

short period of time, we had an epiphany that, oh, maybe we 

should start telling people about this. 

I think Commissioner Aguilar expressed extreme disappointment—I think ‘‘incredibly disappointed’’ were the words he used— 

that he was not made aware of the conflict that existed. So I think 

that is one of the things we are talking about today; we are going 

to hear people say that it didn’t seem important. 

You did mention that when you originally reached out to Mr. 

Becker, he disclosed that to you. You had just been made the SEC 

Chairman at a time when a very high-profile case was something 

you knew you had to address, and yet one of the people you 

brought into a senior staff position was someone who said, ‘‘You 

know what? I may have a conflict here. My family had an account 

with Madoff.’’ 

I guess the question is: Did you make the decision to pull Mr. 

Becker as the witness when he was going to testify? 

Ms. SCHAPIRO. Mr. Chairman, the decision about who would testify was actually made by our Legislative Affairs Office, but I did 

concur in it. The staff came to the conclusion that it could potentially be a distraction to have this disclosure, even though it had 

been cleared by Ethics. It was a public forum, and it was likely to 

12 

divert attention from the really important technical legal issues 

that the subcommittee was trying to explore at that hearing. 

In addition, Mr. Becker had never testified before. And I think 

there were some concerns about whether he would be a very good 

witness. We had a second great choice in our Deputy Solicitor, who 

was in fact deeply involved in the Madoff litigation issues. So I was 

comfortable with David Becker being the witness, so long as it was 

being disclosed, but I was comfortable with the determination that 

he might not be the best witness. And our goal was to put the best 

witness in front of Congress to explain the Commission’s legal and 

policy analysis. 

Chairman NEUGEBAUER. I am just curious why you weren’t comfortable saying to Mr. Becker, when you make your presentation to 

the Commission—if it is relevant for a person who is testifying before Congress, I would think it is also—these Commissioners, you 

all are charged with making very important decisions—why it 

wasn’t relevant for you to disclose that, or for Mr. Becker to disclose that to the Commission members when he made his presentation? 

Ms. SCHAPIRO. Of course. Had I thought of it, I would have directed him to do that. It didn’t occur to me. I was thinking about 

this in the context of the testimony, and I wasn’t thinking separately about the context of disclosing it to the Commissioners. 

There certainly was no intention to hide it, and I wish it had been 

disclosed. That is one reason why I think it is important that we 

do a re-analysis and re-take the votes so that there can be no question, before the court actually considers this issue, about whether 

there was any taint to the decision. 

Chairman NEUGEBAUER. Thank you. My time has expired. Mr. 

Capuano? 

Mr. CAPUANO. Thank you, Mr. Chairman. Mr. Kotz, did you 

make specific enumerated suggestions on how to address the problems that you found? 

Mr. KOTZ. Yes, we did. As indicated, we first had the recommendation that the entire process be reconsidered and that a revote be taken. 

Mr. CAPUANO. Did you make a number of specific recommendations? 

Mr. KOTZ. Yes. 

Mr. CAPUANO. How many recommendations did you make, approximately? Do you know? 

Mr. KOTZ. Four separate recommendations. We made three separate recommendations with respect to the Ethics Office and then 

a recommendation overall about the process. 

Mr. CAPUANO. So, four specific recommendations. Usually, the 

way these things work is you make a recommendation—not you, 

but any IG makes a recommendation, and whomever they are recommending to has a response. Was there any disagreement with 

any recommendations you made? 

Mr. KOTZ. No. We follow up. We actually ask for a corrective action plan to demonstrate that the recommendations have been implemented. But in this case, the Chairman has already indicated 

that she plans to implement the recommendations. 

13 

Mr. CAPUANO. So, to your knowledge, everything that you recommended has either been done or is being done? 

Mr. KOTZ. Correct. 

Mr. CAPUANO. Do you have any plans to do a follow-up to that 

in a month, 6 months, or a year from now, to see if they have in 

fact been implemented? 

Mr. KOTZ. We may do a follow-up to look at the Ethics Office 

overall. It will depend on the information we get about the recommendations being implemented. But if there is any question 

about the complete and full implementation of the recommendations, we will follow up. 

Mr. CAPUANO. Ms. Schapiro, would you have any objections to a 

follow-up again in 6 months or a year from now? 

Ms. SCHAPIRO. No. I would actually welcome it, because we have 

made some very significant changes in our Ethics Office and I 

think it would be very valuable to have the IG’s perception of 

whether those are effective and the appropriate changes to have 

made. 

Mr. CAPUANO. Again, obviously, there were mistakes made. We 

all know that. I actually commend you, Madam Chairwoman, for 

accepting the fact that you made mistakes. It is hard to do. I have 

done it. It is hard to do. At the same time, I also commend you, 

and commend you, Mr. Kotz, for making positive recommendations 

out of a bad situation. And hopefully, this will be better. My expectation is that not only will the process be better, but the implementation of the process. You can have the best processes in the world, 

but if they are not implemented properly and they are not taken 

seriously—not just at the SEC, but anywhere—they are worthless. 

Again, that is what I came for, to make sure that there seems 

to be no malice here. There seem to be screw-ups. But the screwups seems to have been addressed. And they are being addressed. 

I would strongly suggest, Mr. Kotz, that you do a follow-up, even 

if you don’t think it is necessary. If the Chairwoman has no problem—whether she is the Chairwoman a year from now, who 

knows—if not you, then your successor, do the follow-up. Even if 

it is a 1-page follow-up saying, everything is great, or if it is a 1- 

page follow-up that says, nothing has been done, it will certainly 

make me feel better and hopefully it will put a final period at the 

end of this particular issue. 

Mr. KOTZ. We will do that. 

Mr. CAPUANO. With that, I yield back. 

Chairman NEUGEBAUER. I thank the gentleman. Now, Mr. 

McHenry is recognized for 5 minutes. 

Chairman MCHENRY. Thank you for your testimony. Chairman 

Schapiro, thank you for the work you have rendered to your government and your service. As I said, this is an unfortunate situation. There are a few things that we have in terms of what appeared to happen. I just want to confirm that those are in fact the 

case. You can answer how you see fit. 

When Mr. Becker returned to government service in about February of 2009, he disclosed that his late mother’s account was in 

fact a Madoff account. Did you ask him to recuse himself from 

Madoff-related issues at that time? 

Ms. SCHAPIRO. No, I didn’t. 

14 

Chairman MCHENRY. Why? 

Ms. SCHAPIRO. Because he had told me his mother had had an 

account years ago; that she had passed away 5 or 6 years before 

he returned to the Commission. I don’t remember the exact number. The account had been closed. It seemed to me to be so very 

remote to anything we were working on at that time. 

If I can give you have a little context, I had just arrived at an 

agency that was in disarray, quite honestly, and deeply demoralized. We were coming out of a financial crisis. There were a thousand things to do. There was virtually no senior staff on board. 

And I was focused on lots of other things. And I was also focused 

on trying to get the maximum amount of allowable recovery to victims who had nothing; who had lost everything; not people whose 

accounts had been closed 5 or 6 years before, but people who were 

literally moving into their children’s basements because they lost 

their homes because of what this man did. And I was not thinking 

about David Becker’s deceased mother’s account through any of 

this. 

I assumed that as an experienced government lawyer, he would 

go to the Ethics Office, he would do what needed to be done, and 

make a decision about his participation. But honestly, it seemed so 

remote to me to the issues that the agency was facing at that moment coming out of the failure to stop the Madoff Ponzi scheme. 

Chairman MCHENRY. You understand the account valuation 

method would determine how these clawbacks would function. And 

you also knew that he had an account that could possibly be subject to clawbacks. Why didn’t you ask him to recuse himself at that 

time? 

Ms. SCHAPIRO. Sir, not really then did I understand that. At that 

time we weren’t thinking about people whose accounts had been 

closed years before. We were thinking about people who were in 

extremis right at that moment, who needed to have funds returned 

to them as best could be done as a result of the fraud. So I wasn’t 

connecting clawbacks to the issues we were facing at that particular moment. I certainly wasn’t thinking about what was going 

on with his, again, deceased mother’s account from years before. I 

just wasn’t connecting those dots and I didn’t have that kind of information. 

Frankly, I didn’t even know how much was in the account, 

whether it had earned a lot of money or a lot of money had been 

taken out. I just didn’t have that kind of detail. And certainly, I 

didn’t know that he could be subject or that account could be subject to a clawback at that time. 

Chairman MCHENRY. According to the notes that were part of 

this report, you in fact did know about this; is that correct, Mr. 

Kotz? 

Mr. KOTZ. Our report showed that when David Becker initially 

had a conversation with Chairman Schapiro, it wasn’t necessarily 

clear that he told her that he could be subject to a clawback suit 

here. That was some information that he provided to the Ethics 

Counsel. 

Chairman MCHENRY. But June of 2009, there are notes that you 

are aware that it could affect— 

15 

Ms. SCHAPIRO. Mr. Chairman, I was speaking to the time—I 

thought you prefaced your question to when he came back to the 

Commission in February. At that time, I made absolutely no connection. I will tell you, though, that those notes reflect a discussion 

with staff in preparation for a meeting with the management of 

SIPC about the different methodologies that could conceivably be 

used: last account statement; money-in/money-out or money-in/ 

money-out in constant dollars. And there is a note that says 

clawbacks are not possible under the broader approach, I believe. 

I still will tell you I wasn’t connecting that and hadn’t, frankly, 

thought about his mother’s account in many, many months. It was 

a moment in time when he mentioned it to me in February, and 

I just didn’t think of it again in that context. 

Chairman MCHENRY. Let me ask you a different question, Ms. 

Schapiro. Have you recused yourself? In your time in public service, have you taken it upon yourself to recuse yourself? 

Ms. SCHAPIRO. Absolutely. 

Chairman MCHENRY. Absolutely. So you had the judgment to do 

this, and you assumed that Mr. Becker had the same judgment. 

Ms. SCHAPIRO. Each employee’s ethical obligations are their own. 

And their duty is theirs. 

Chairman MCHENRY. And here’s the challenge. What is the process to put in place to ensure this doesn’t happen again? I appreciate the fact you have taken the IG’s recommendations and accepted them. What are you going to do, going forward, to ensure this 

doesn’t happen again? 

Ms. SCHAPIRO. Mr. Chairman, we have a significantly stronger 

Ethics Office today, I believe, than maybe at any time in recent 

history. In fact, our new Chief Ethics Officer is here with me today. 

We have new leadership at the highest level of the Ethics Office. 

We have allocated additional resources to that function. 

We have the first Chief Compliance Officer ever at the SEC operating in that office. We have had a significant expansion of the 

education of employees and training of employees about these 

kinds of issues. We have a new ethics handbook that has been released to employees. And we have a number of ongoing initiatives 

through the Ethics Office, including much more rigorous and routine consultation with the Office of Government Ethics on issues as 

they come up so that we are getting a bit broader input into these 

more technical or more difficult decisions. 

I think across-the-board, we have strengthened this office. And 

we are doing it very much with the goal of preventing exactly this 

kind of thing from happening, which distracts us from important 

work we have to do. 

Chairman MCHENRY. Thank you. 

Chairman NEUGEBAUER. I thank the gentleman. 

Mr. Quigley for 5 minutes. 

Mr. QUIGLEY. Thank you, Mr. Chairman. Let me ask that question in a different light, for either one of you. Walk us through the 

scenario of what happened with Mr. Becker and why the new and 

improved system would catch this before it gets this far. At what 

point and why would the current system, training, education, what 

have you, have stopped this particular instance? 

16 

Ms. SCHAPIRO. I might let the Inspector General speak to walking through with Mr. Becker. I can say that I believe now somebody coming to the Ethics Office with a question like this—first of 

all, I believe my sensitivity to the sort of toxic nature of anything 

related to this is heightened. But even if I don’t know about it— 

and we have 3,800 employees—I don’t know about everybody’s ethical calculations that they have to make about whether they can 

participate in a matter. But going to the Ethics Office now, we 

have centralized all of our ethics guidance under the Ethics Officer. 

They would get a more collaborative look, much more required information and documentation about all of the issues that surround 

the ethical question. There might be consultation with the Office 

of Government Ethics about whether it would be appropriate for a 

person to participate or not participate. There would be documentation of the advice that is given, so that if the issue comes up again, 

we can be consistent in the advice that is rendered. 

Mr. QUIGLEY. When you get put in a position like his, aren’t 

there written documents about his financial situation and his family so this would be caught automatically? 

Ms. SCHAPIRO. I believe that because this was so long ago—and 

I don’t know this, so I am surmising—it would not have been captured in current financial disclosure documents. 

Mr. QUIGLEY. Have you altered the financial disclosure document 

for your agency, Mr. Kotz, that would get to this sort of thing, recognizing now that the recent past may not be far enough back? 

Mr. KOTZ. I think that is a very good idea. The other point I 

would make in terms of how things would be different, implementing our recommendation that the Ethics Counsel should report directly to the Chairman I think would change things. 

We had great concerns about the process used where David Becker went to a subordinate and got the advice with respect to whether he had to recuse himself from that matter. Several months later, 

he performed a performance evaluation of this individual. And so, 

I have to think there is a concern about when you have to give ethics advice for your boss where it is a matter that a person wants 

to work on. So if you move that person out from under the General 

Counsel, then I think in this case the ethics official who makes the 

decision would maybe feel more comfortable giving appropriate advice. I think if that recommendation is implemented, which I understand it will be, that that could potentially make a significant 

difference. 

Mr. QUIGLEY. You mentioned this as potentially a good idea. How 

far back do you go now on your current recommendations in a person’s financial background, who make decisions like Mr. Becker 

was? 

Mr. KOTZ. There are Office of Government Ethics forms that everyone fills out government-wide, and it has current interests that 

you have for that year, so as long as you continue an interest. I 

think that perhaps since this was his mother’s account, the estate’s 

account, that it may not have been picked up for that purpose. 

That may be something that needs to be looked at to add to the 

financial disclosure form, because obviously if you are inheriting 

money, it becomes yours. 

17 

Mr. QUIGLEY. Right. It may not apply to all government employees, but clearly with the decisions like Mr. Becker’s, the people in 

those positions may have to have a different sort of form. 

Mr. KOTZ. I agree. There should certainly be a heightened standard for a senior person in an agency like the SEC. The SEC holds 

itself out—its code holds itself out for the highest level of integrity. 

I think that is an important standard that the SEC has to keep. 

Ms. SCHAPIRO. Congressman, if I could just add, I think one of 

the important things we can do, and it goes back to the comment 

about setting the tone at the top, is really heightening our employees’—all of our employees’—awareness to the impropriety or the 

appearance issues generally. The current Ethics Office is very engaged in exactly that kind of education of our employees. 

Mr. QUIGLEY. I appreciate that. Mr. Kotz, a final point. The recommendation that was made to refer this to the Justice Department—that decision, how was it, if at all, influenced by the fact 

that you had made this decision after getting advice from legal 

counsel within the SEC? 

Mr. KOTZ. According to the regulation, that is a factor that the 

Justice Department looks at in determining whether to bring a 

case. But that is not an absolute bar. In other words, notwithstanding the fact that you have sought ethics advice, that is not a 

bar to engaging— 

Mr. QUIGLEY. Not only sought it, but you got advice. 

Mr. KOTZ. That is right. We provided that information to the Office of Government Ethics, and their determination was it still 

should be referred to the Department of Justice. 

Mr. QUIGLEY. Given that this was a goof-up on many levels that 

compounded itself, it seems to have a very chilling impact on people in the future that maybe they can’t necessarily rely upon this 

advice and not worry about their own situation a little more personally. 

Mr. KOTZ. I think that is why it is very important that the Ethics 

Officer gives appropriate consistent advice. And that is one of the 

reasons why we have made recommendations to the Ethics Office, 

because you are right; people are relying on this and they need to 

make sure that they are getting the appropriate advice so they 

don’t get into trouble because of something that somebody said that 

may not have been entirely accurate. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Chairman NEUGEBAUER. Mr. Issa is recognized. 

Chairman ISSA. Thank you, Mr. Chairman. 

Mr. Kotz, I am going to follow up right where that left off. If I 

give you bad information about something, I want an ethics opinion 

on, and you give me a clean bill of health, that doesn’t preclude 

later recrimination, right? 

Mr. KOTZ. Absolutely. Because in that case you could use the 

process to get yourself out of some later recrimination. 

Chairman ISSA. Ultimately, Mr. Becker, whom we will hear from 

later, is a senior attorney with independent knowledge of many 

things, including, quite frankly, he is a member of the bar. These 

are independent actions which the Justice Department is going to 

look at—whether he knew himself. 

18 

Mr. KOTZ. In fact, he was the alternate designated agency ethics 

official. 

Chairman ISSA. Thank you. You have taken me to the next question, which is: Inherently throughout government, not just in whatever Ms. Schapiro wants to fix, but throughout government, don’t 

we have a need for a greater level of independence that, in fact, 

the head of all the lawyers whom in fact may have lots of lawyers 

working with them and so on, who goes to another person who 

works for them for an ethics opinion, isn’t that a level of independence that is government-wide to be re-thought by this committee? 

Mr. KOTZ. I think it would apply to other agencies as well. Absolutely. It is very hard to be completely independent when you are 

subordinate to somebody, when they are reviewing and evaluating 

you. It is a very difficult thing to do. 

Chairman ISSA. From your study, from your investigation, is 

there an inconsistency in this answer, in your opinion, that Mr. 

Becker got versus similar answers that somebody else would have 

gotten? 

Mr. KOTZ. Yes. We do relate some concerns we have about other 

individuals where, even with respect to the Madoff liquidation, 

there was a much broader request to recuse. And with respect to 

Mr. Becker, the determination was one aspect shouldn’t necessarily 

impact the other. When it came to a lower-level staff attorney in 

the office of the General Counsel, just a small amount of work in 

her law firm on an unrelated bankruptcy matter, the determination 

was made she should be recused from all Madoff-related activities. 

Chairman ISSA. So they erred on the side of caution, except in 

the case of Mr. Becker. 

Mr. KOTZ. That was the concern, certainly. 

Chairman ISSA. Madam Chair, you oversee a great many public 

companies. Do those public companies have to declare contingent 

assets and contingent liabilities that they have on their financial 

statements? In other words, under GAAP accounting, don’t you 

have to actually disclose the fair contingent liability or a contingent 

asset? If you sign, for example—famously, we are all looking at this 

in our companies, and I do have some companies falling under 

some of these requirements—if you have a lease, you have a value 

on that lease, even if you are making the payment every year. You 

have to evaluate that. So all those contingent assets and liabilities, 

public accounting is trying to grapple with how to state them, correct, even though they are not always liabilities that have any effect this year on the P&L? 

Ms. SCHAPIRO. Right. 

Chairman ISSA. In a sense, for this committee, and particularly 

for the reform committee that would be looking government-wide, 

shouldn’t ethics disclosures very much reach out and say, what are 

your contingent liabilities and your contingent assets? Are you the 

signer on your child’s credit card; are you the signer on your mother’s home? 

Aren’t those in fact things which could very much affect, just as Mr. Becker had a $140,000 or so contingent or $130,000-some contingent windfall if he convinced a standard to be in his favor? 

Ms. SCHAPIRO. I think it is a great question. I think some of that 

is actually already required to be disclosed; some of the things that 

19 

are not just personal to you, but to your spouse, your children, 

trusts you might manage for a disabled family member, those kinds 

of things. But I think it is very much worth looking at because anything that has the potential to create a conflict of interest, even if 

it is not directly owned by you, is something we should be looking 

at. 

Chairman ISSA. Mr. Kotz, was there any indication on Mr. Becker’s disclosure of this contingent value or contingent liability if the 

Madoff clawback came in? 

Mr. KOTZ. I think that is an excellent point. In this case we 

found that the ethics official’s advice was based on some incorrect 

assumptions. But we also found that there wasn’t an effort to seek 

out that contingent information. In other words, there wasn’t an effort when Mr. Becker came in and gave Mr. Lenox the information 

to try to understand exactly what this means, how will this impact 

this, what if this happens, what if that happens, just like you are 

saying, in a contingent fashion. 

Had he done that, he would have seen that there was this connection between what Mr. Becker was working on and his financial 

interests. 

Chairman ISSA. So the candid disclosure that we expect from 

public companies didn’t occur in this case. 

Mr. KOTZ. It did not. 

Chairman ISSA. Thank you. Thank you, Mr. Chairman. 

Chairman NEUGEBAUER. I thank the gentleman. Now the gentleman from Maryland, Mr. Cummings. 

Mr. CUMMINGS. Thank you very much. I want to just pick up 

where Mr. Issa left off. 

Let me make sure I understand this. Having represented a lot 

of lawyers in private practice, Mr. Kotz, we had at least seven SEC 

officials who had been informed at one time or another about Mr. 

Becker’s mother’s estate account, including the Chairman, then 

Deputy General Counsel, the current General Counsel, the Deputy 

Solicitor who testified at a hearing in Becker’s stead, the Director 

of the Office of Intergovernmental Legislative Affairs, the Special 

Counsel, the Chairman and two ethics officials, but none of those 

individuals saw a duty to take further action to disclose Becker’s 

interest to others at the SEC or to see that Becker recuse himself 

from the Madoff-related matters; is that correct? 

Mr. KOTZ. Yes. 

Mr. CUMMINGS. And Mr. Issa said something that was very interesting. He said if somebody gives bad information—and I am asking you because I am sure Justice is looking at this hearing—are 

you saying that Mr. Becker gave any of these folks bad information? The reason why I am getting at this is because I want to 

make sure as other members of this panel have said that it doesn’t 

happen again and that we do—that your recommendations are able 

to catch these kinds of problems from happening again. 

But I can tell you if seven people tell my client to do something, 

assuming he hasn’t given them bad information, I have to wonder 

about that. So you are saying that he—remember, Mr. Issa talked 

about bad information. Are you saying that Becker either did not 

tell the truth, did not tell the whole truth? What are you saying? 

20 

Mr. KOTZ. There was no information that Mr. Becker gave that 

was incorrect. 

Mr. CUMMINGS. Say that again? 

Mr. KOTZ. There was no specific information that Mr. Becker 

gave that was incorrect. With respect to five of those seven people, 

there was very limited information given. 

Mr. CUMMINGS. Okay. 

Mr. KOTZ. So there wasn’t a lot of information upon which you 

might be able to make that determination. With respect to the ethics officials, there was more information given. The ethics officials 

had a misunderstanding nevertheless of the gravity of the situation, but no, Mr. Becker did not provide any false information per 

se. 

Mr. CUMMINGS. All right. And did—so—and one other thing you 

said that I was just wondering about. You talked about this whole 

thing of people being subordinate, that is, under him, and you all— 

with the recommendations I think we have gotten, we have addressed that. Is that correct? 

Mr. KOTZ. Yes, they are planning to address that. 

Mr. CUMMINGS. Okay. Are you doing that? 

Ms. SCHAPIRO. Absolutely. We will change the reporting line of 

the Chief Ethics Officer. 

Mr. CUMMINGS. And when is that going to happen? You keep 

saying we are going to. I thought we had done that. 

Ms. SCHAPIRO. It is a matter of however quickly I can get the 

Commission approval to do it, but I would say in a matter of a couple of days. 

Mr. CUMMINGS. Oh, good. Would you let us know when that is 

done? 

Ms. SCHAPIRO. I would be happy to. 

Mr. CUMMINGS. Because I think that is very important. But did 

you refer anybody else to the Justice Department for prosecution 

possibly? 

Mr. KOTZ. No, no. 

Mr. CUMMINGS. I guess what I am trying to get at is that you 

imply that somebody, or somebodies, because of their subordinate 

position may have done something that was not proper. Was there 

any testimony based on what you found of somebody saying, because this Mr. Becker was my superior that I felt some kind of 

pressure or that I needed to do this or is this your conclusion? 

And again, I am just trying to figure out how to make sure this 

doesn’t happen again. 

Mr. KOTZ. Yes. Mr. Lenox did not say that he felt pressure. He 

did say that part of the factor that he used in making his determination was how important it was for Mr. Becker, whom he considered to be a very, very talented individual, to work on this specific significant matter for the Commission. 

Mr. CUMMINGS. I see. And was the ethics advice provided to Mr. 

Becker by the SEC’s Ethics Counsel at the time demonstrably 

flawed? 

Mr. KOTZ. I believe it was flawed, yes. 

Mr. CUMMINGS. Would you agree with that, Ms. Schapiro? 

Ms. SCHAPIRO. I think that is actually now a question for the Department of Justice given the referral. So I would be— 

21 

Mr. CUMMINGS. I understand. 

Ms. SCHAPIRO. —reluctant to answer that. Congressman, could I 

just add one thing— 

Mr. CUMMINGS. Please do. 

Ms. SCHAPIRO. —about the other employees? I think it is important to note that it wasn’t—they might have known a little bit. 

They might have had some understanding that Mr. Becker’s mother had had an account, that he had received ethics clearance. It 

wasn’t their duty to opine on the ethics of what he was doing. 

While I am certainly not condoning anybody turning their back on 

a potential conflict, I am not aware of any of those other employees 

having done that. 

Mr. CUMMINGS. Thank you very much, and thank you, Mr. 

Chairman. I yield back. 

Chairman NEUGEBAUER. I thank the gentleman, and now the 

vice chair of the Oversight and Investigations Subcommittee, Mr. 

Fitzpatrick, is recognized for 5 minutes. 

Mr. FITZPATRICK. Thank you, Mr. Chairman. Mr. Kotz, in his 

email to Mr. Becker clearing him to work on the Madoff victim formula, the SEC Ethics Counsel did not discuss whether it would 

create an appearance of a conflict if Mr. Becker worked on the 

Madoff matters. Is a conflict of interest and an appearance of a 

conflict of interest the same or are they different things? 

Mr. KOTZ. No, they are different, and one should do a different 

analysis as to whether there is an actual conflict or whether there 

is an appearance issue. 

Mr. FITZPATRICK. Can you expand on the differences between 

what—how they— 

Mr. KOTZ. Sure. In fact, the same Ethics Counsel in this case 

who did not state in the email to Mr. Becker that he was doing an 

appearance analysis actually issued an ethics NewsGram. He 

talked about what the appearance analysis would be, and he actually did it in terms of the New York Times or Washington Post 

test: How would it look; what are the optics of the situation; what 

is the context of facts and circumstances; would it pass what has 

often been referred to as the New York Times or Washington Post 

test; if what you propose doing becomes the subject of an article in 

the press, would you not care or would it not look like you were 

doing something wrong; even if you wouldn’t care, what effect 

would the story have on the SEC and your fellow employees. 

That was the test that Mr. Lenox himself set forth for appearances. That is very different from what the Justice Department is 

looking at with respect to an actual conflict. 

Mr. FITZPATRICK. What would have happened if Ethics Counsel 

found, which I believe any reasonable person would have seen, that 

there was an appearance of a conflict? 

Mr. KOTZ. At that point, there could have been a request made 

for an authorization or waiver for Mr. Becker to go forward and 

work on it, notwithstanding the concern. That would have had to 

have been elevated to the Chairman of the agency to make a determination. All the facts would have had to have been disclosed to 

the Chairman in order for her to properly determine whether that 

was appropriate. But that was not done here, and in fact, the apVerDate Nov 24 2008 11:21 Mar 16, 2012 Jkt 072607 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 K:\DOCS\72607.TXT TERRIE
22 

pearance issue did not come up in the email, and there was never 

an opportunity to look at it further. 

Mr. FITZPATRICK. Mr. Kotz, are you familiar with the condition 

of or the state of recordkeeping within the Ethics Office? 

Mr. KOTZ. I do know that one of the recommendations we made 

was that things be documented more. One of the things that the 

previous Ethics Counsel who gave the advice in this case said was 

he didn’t document generally ethics advice, and we think in order 

to ensure that there is consistent advice given to different people 

that there be some documentation. 

Mr. FITZPATRICK. So you believe that deficiencies in recordkeeping could result in inconsistent advice? 

Mr. KOTZ. Yes. 

Mr. FITZPATRICK. Were all the staff at the SEC treated the same? 

Mr. KOTZ. We found that there were other instances of individuals who sought ethics advice about the Madoff liquidation matter 

for whom there was a much broader analysis and there were 

recusals in a much broader way than for Mr. Becker, which is why 

we had the concern with respect to Mr. Becker and Mr. Lenox 

being a subordinate of Mr. Becker. 

Mr. FITZPATRICK. Was there special treatment? 

Mr. KOTZ. I believe that there were different decisions made 

when it came to this decision with respect to Mr. Becker and when 

it came to decisions with respect to other employees in the Office 

of General Counsel. 

Mr. FITZPATRICK. And then if there was an appearance of a conflict of interest in the Becker case, could he have continued to work 

on the matter? 

Mr. KOTZ. If he had gotten a specific authorization or waiver to 

continue to work on that matter. 

Mr. FITZPATRICK. And that waiver would have come from whom? 

Mr. KOTZ. The Chairman. 

Mr. FITZPATRICK. Nothing further. Thank you. 

Chairman MCHENRY. Would the gentleman yield? 

Mr. FITZPATRICK. Yes. 

Chairman MCHENRY. Thank you. Mr. Kotz, can you document 

the Annette Nazareth situation that you have, that you mentioned 

in your report? 

Mr. KOTZ. Sure. In May 2010, Annette Nazareth came forward— 

I am sorry, May of 2009—Annette Nazareth, along with many 

other lawyers, came forward and wrote a letter to David Becker requesting that the SEC consider the so-called last account statement 

approach. Under the last account statement approach, fictitious 

profits would be factored in. Essentially, Madoff victims would get 

compensation for the amount of their fictitious profits. That was a 

matter that David Becker looked at, analyzed, and eventually rejected, but it was brought forward by Annette Nazareth, who was 

a former Commissioner of the SEC, and other attorneys representing Madoff victims. 

Chairman MCHENRY. And she, in fact, knew that Mr. Becker was 

heir to a Madoff account? 

Mr. KOTZ. Mr. Becker had informed Ms. Nazareth about his 

mother’s estate account, yes. 

Chairman MCHENRY. Did that raise concerns? 

23 

Mr. KOTZ. It did. And we looked at that. We did not find any evidence of preferential treatment for Ms. Nazareth. 

Chairman MCHENRY. But the appearance. 

Mr. KOTZ. But the appearance is something that is a concern, 

and that is why all of Mr. Becker’s activities in this matter have 

that appearance concern, and when you have a situation where you 

allow something to occur, even in the space of an appearance issue, 

there becomes sort of a taint or a potential bias, and it erodes the 

credibility of the profits and that is exactly why these questions are 

asked. The Washington Post, New York Times test is one to ensure 

that there isn’t even the appearance of impropriety, and that was 

a concern in this case. 

Chairman MCHENRY. Thank you. 

Chairman NEUGEBAUER. The gentleman’s time has expired. The 

gentlewoman from New York, Mrs. Maloney. 

Mrs. MALONEY. Chairwoman Schapiro, according to the IG report, Mr. Becker’s alleged conflict of interest in the Madoff case 

arose primarily due to his ‘‘significant and leading role in the determination of what recommendations the staff would make to the 

Commission regarding the position the SEC would advocate as the 

determination of a customer’s net equity in the Madoff liquidation.’’ 

So the method used to calculate net equity was, and remains to 

this day, a critical issue because it dictates how much each Madoff 

victim ultimately receives. So, as one who represents many Madoff 

victims who lost their homes, lost everything, and are destitute, 

this is absolutely critical. 

Furthermore, for Mr. Becker’s purposes, the method used to calculate net equity would likely determine whether or not he was 

subject to a clawback to recover the $1.5 million in fictitious profits 

credited by Madoff to his mother’s $500,000 investment, which he 

then inherited in her estate. 

As noted earlier, Mr. Becker rejected the last account statement 

method which was advocated by a number of Madoff clients and, 

if adopted by the Madoff trustees, would have likely protected him 

from the current clawback suit of which he is now a party. Instead, 

he recommended that the Commission adopt the so-called constant 

dollar method which calculates each victim’s net equity position as 

the amount they originally invested minus any withdrawals adjusted for inflation. The IG calculated that this approach would reduce by $138,000 the amount sought in Mr. Becker’s clawback suit. 

But the fact that Mr. Becker did not seem to be acting in pursuit 

of his own financial interests, I agree with the IG’s recommendation that the Commission should reconsider its position on this 

issue by conducting a re-vote in the process so that it is totally free 

of any taint or bias, and I commend you, Chairwoman Schapiro, for 

announcing, I believe yesterday, that you would call for such a 

vote. I think that is important. 

When do you expect the Commission to have this vote? 

Ms. SCHAPIRO. It would be my hope that we could do it in the 

next several days. 

Mrs. MALONEY. And— 

Ms. SCHAPIRO. I am sorry, the changing of the reporting lines in 

the next several days. We actually want to do more than just revote. We want to have a re-analysis of the issue. The issue is not 

24 

before the bankruptcy court yet. They have told us that they will 

set a briefing schedule for it at some time in the future. So we have 

a little bit of time, but the staff will have to do a re-analysis and 

then we will schedule a vote for the Commission, but I have already instructed that the re-analysis be started. 

Mrs. MALONEY. On Tuesday, you stated that, ‘‘you believe the decision the Commission made on the net equity issue was appropriate under the law and in the best interests of investors.’’ However, even if the Commission’s outcome was appropriate, we now 

know the process was flawed, and therefore, you are calling for this 

re-vote just to make sure the process is not tainted, but you agree 

with the outcome of the vote previously? 

Ms. SCHAPIRO. I certainly agreed at the time that it was the most 

equitable way to treat Madoff investors, that the final account 

statement method probably was not supported by the law, that 

cash-in/cash-out probably was. But there is generational unfairness 

because somebody who invested very early on and is quite elderly 

and unable to earn back any of this money that was stolen from 

him would be at a disadvantage to a much more recent investor. 

So that is why constant dollars, which I think is permitted under 

the law, was appealing to me. 

All of that said, I obviously want to see the re-analysis before I 

would declare that I would be in exactly the same place because 

I think it is important to make sure that the analysis is completely 

untainted. 

Mrs. MALONEY. You are taking additional steps to make sure the 

process is unbiased? 

Ms. SCHAPIRO. Right. 

Mrs. MALONEY. Inspector General, do you have any additional 

recommendations of the Commission to ensure that we can have 

confidence in this vote and in this process in addition to what the 

chairwoman has outlined? 

Mr. KOTZ. We would be happy to certainly play a role in monitoring or looking at that process of vote to ensure—I think it is actually a good thing that they are going to take their time to do it, 

to do a re-analysis. I think that the recommendations and the discussion, the debate has to be done without the involvement of 

somebody with the potential bias or taint, and so I would be happy 

to help in any way I can to ensure that process is completely free 

of any taint or bias. 

Chairman MCHENRY. [presiding]. The gentlelady’s time has expired. With that, Mr. Guinta is recognized for 5 minutes. 

Mr. GUINTA. Thank you, Mr. Chairman. I yield my time back to 

the Chair. 

Chairman MCHENRY. Thank you. Ms. Schapiro, I asked Mr. Kotz 

this question about former Commissioner Nazareth. She had 

knowledge of Mr. Becker’s Madoff accounts. There was a letter that 

would, in standard form, be addressed to the Chair of the SEC. She 

specifically addressed it to the General Counsel. These things were 

noted in the IG’s report. What are your thoughts on that process? 

Ms. SCHAPIRO. Mr. Chairman, I should say that I did not know 

that she knew of Mr. Becker’s mother’s account until I read the 

IG’s report. 

Chairman MCHENRY. What do you think now of that situation? 

25 

Ms. SCHAPIRO. I guess I don’t know what to think of it. I was 

surprised by it. I believe that they are friends and—but I don’t 

know. 

Chairman MCHENRY. Was it disappointing? Did it reek of insider 

doing? 

Ms. SCHAPIRO. No, not to me. We have people come back, and 

one of the things the new Ethics Office does extremely well is counsel people on their post-SEC employment obligations and requirements to disclose the work that they are doing that might have 

them appearing before the Commission. We do have people who 

have been at the agency who have left and come back, and so long 

as they follow the ethics rules and there is—and they don’t come 

back within the prohibited time period, it is a fact of life we live 

with. I think it is very important, and I think staff is quite attuned 

to this, that there be no special treatment ever for people who are 

former employees of the agency. 

Chairman MCHENRY. Sure. But Ms. Nazareth knew of his account and knew what was she recommending would benefit him. 

That certainly has the appearance of impropriety, does it not? 

Ms. SCHAPIRO. It is hard—I am sorry, it is just hard for me to 

judge that. 

Chairman MCHENRY. Okay. Then let me ask you a different 

question. I want to give you plenty of time to answer. You testified 

before that knowing what you know now, had you known then 

what you know now, and you have referenced that before and you 

have been very forthright about it, tell me what you should have 

done or what you would like to have done if you were able to rewind the clock. Walk us through that because—and the reason why 

I ask and I ask you about your personal recusal. We are not here 

judging your ethics. There was a decision made that we think was 

inappropriate, that the record shows raised real questions, and so 

you have recused yourself on matters that weren’t even an ethics 

violation, you just were concerned and you recused yourself. So rewind and just walk us through that. 

Ms. SCHAPIRO. Sure, I would be happy to. Even understanding 

that every employee’s ethics obligations are their own—and this is 

a senior government attorney with lots of experience—in hindsight, 

I wish I had asked questions. I wish I had—when he had said his 

mother had an account, she died 6 years ago, it was closed, I wish 

I had thought to say, let’s play this out, what are all the possible 

things that could happen down the road if we were thinking very 

aggressively and very creatively that could impact the fact that this 

account, which seems so remote to me when he told me about it, 

could have any implications whatsoever for your personal financial 

interests or for an appearance issue for the SEC as we deal with 

these issues. In hindsight, I wish I had asked more questions. 

Chairman MCHENRY. At the time, you were coming in to clean 

up the SEC after dealing with all the kinks of the Madoff situation, 

that this was an SEC failure, that they didn’t see it happening; 

that citizen watchdogs had tried to point this out to the SEC and 

the SEC didn’t take action. So, when the former Chairman, Chairman Cox, said those on the SEC staff who even donated to a charity connected to the Madoff situation had to recuse themselves, do 

26 

you think in hindsight you should have simply said step aside, simply because of the appearance? 

Ms. SCHAPIRO. I would say, I wish I had known about Chairman 

Cox’s memo to the staff. It was obviously before I arrived. He was 

still the Chairman, and I didn’t know about it. But I think, as I 

said back in March when I testified, that in light of what I know 

now, yes, I wish he had recused. I wish I had thought to ask him 

to do that but I didn’t. 

Chairman MCHENRY. Did you ask for the IG report before or 

after the hearing back in March? 

Ms. SCHAPIRO. I believe it was before the hearing. Yes, I am confident it was before the hearing. 

Chairman MCHENRY. Okay. 

Ms. SCHAPIRO. We can double-check the days but I am confident. 

Chairman MCHENRY. Okay. Thank you for your testimony. Mr. 

Miller for 5 minutes. 

Mr. MILLER OF NORTH CAROLINA. Thank you, Mr. Chairman. My 

questions are not about Mr. Becker’s conduct or the decision—the 

investigation by the SEC or the decision to refer, but about the 

SEC’s investigation of conduct generally and decisions to refer to 

the Department of Justice. 

The speech at the Academy Awards by the producer of ‘‘Inside 

Job’’ can sound superficially like an appeal to mob rule, ‘‘Why has 

nobody gone to jail?’’ We don’t put people in jail in this country because something went really wrong and we need somebody to 

blame. Politicized prosecutions really are incompatible with democracy and with the rule of law. 

On the other hand, the Teapot Dome scandal was in part about 

the ability to use—by political insiders to use their political clout 

to keep a prosecution from happening, to protect people from prosecution who clearly were guilty of criminal conduct. And the Supreme Court at that time said that it was a proper role of Congress, Congress’ oversight powers, to investigate how the Executive 

Branch used criminal prosecution powers. 

There is now a lot of civil litigation pending around the country—I am sure you are aware of it—arising out of mortgage 

securitization in the last decade. The allegations in those lawsuits 

are pretty similar, and some of it seems to be very serious and, if 

true, is hard to imagine that it does not rise to the level of crimes. 

There is now a lawsuit in New York by MBIA and Ambac to 

mortgage insurers against—it is against Chase but for conduct that 

Bear Stearns, that was later purchased by Chase, and the allegations are that Bear Stearns bought mortgages from the originators, 

put those mortgages in a pool, sold bonds based on the pools, no 

longer really had any interest in the mortgage, any beneficial interest in those mortgages, and at that point went back to the originators and said those mortgages were not what you said they were 

and we could require you to buy those back from us, but instead 

we will settle for money. And they did settle for money. They kept 

the money and said not a word to the mortgage investors. 

Also, the allegation is that their due diligence firm, Clayton 

Holdings, found lots and lots of mortgages that did not comply with 

the representations and warranties, and what they did was take 

those out of the pool because 1 in 10 came—they examined 1 in 10 

27 

but put them in the next pool, knowing that exactly the same representations and warranties, knowing that those mortgages did not 

comply but figured there is only 1 in 10 chance that that mortgage 

would actually be examined by the due diligence firm. 

Those appear to be allegations of criminal conduct. Is the SEC 

investigating that conduct or the other similar allegations around 

the country, and if not, why not? 

Ms. SCHAPIRO. Congressman, as you know, we don’t have criminal authority although we work closely— 

Mr. MILLER OF NORTH CAROLINA. But you can investigate and 

refer? 

Ms. SCHAPIRO. Yes, and we do work very closely with the U.S. 

Attorney’s offices around the country and State Attorneys General. 

I can tell you that we have a pipeline full of active cases coming 

out of the financial crisis that include issues around the quality of 

mortgages that have been pooled, the adequacy of the disclosure, 

and about whether those mortgages met the representations and 

warranties that were given. And we have brought a number of 

cases, about 70, coming out of the financial crisis naming CEOs 

and CFOs in fact, and we will continue to see those cases from the 

SEC. We are moving very aggressively. 

Mr. MILLER OF NORTH CAROLINA. Has the Inspector General’s 

Office looked at any of these decisions? 

Mr. KOTZ. That wouldn’t be within our area. We as the Inspector 

General’s Office look at decisions involving SEC employees. I am 

happy to explain the process we went through in determining to 

refer this matter to the Department of Justice. 

We essentially gathered the facts in this investigation and provided that information to the Office of Government Ethics. The Office of Government Ethics is the leading body that understands and 

interprets ethics matters, and obviously there were different factors 

to consider in this case. One that was mentioned earlier is that Mr. 

Becker sought ethics advice, another is that we didn’t find evidence 

that Mr. Becker intentionally sought to financially profit from this. 

On the other hand, there were concerns about his personal participation in a matter that could affect his financial interest. 

So, we gathered up all the evidence. We provided it to the Acting 

Director of the Office of Government Ethics. He came back and recommended that we refer it to the Department of Justice for a potential criminal review. We felt it was our obligation that once the 

Office of Government Ethics indicated that it should be referred 

that we do so. 

Chairman MCHENRY. The gentleman’s time has expired. I recognize the chairman of the Oversight Subcommittee of the Financial 

Services Committee, Mr. Randy Neugebauer of Texas. 

Chairman NEUGEBAUER. Thank you, Mr. Chairman. Chairman 

Schapiro, in Mr. Kotz’s report, he makes it clear that before Becker’s arrival, the Commission had been twice briefed on the moneyin/money-out proposition and that the specific payout plan would 

follow and that—and according to Steve Harbeck, he went so far 

as to say that the SEC and SIPC had verbally agreed to move forward with the money-in/money-out method; yet, shortly after Mr. 

Becker arrived, the Commission made a 180-degree turn. 

28 

Can you explain why that happened and Mr. Becker’s influence 

on that process? 

Ms. SCHAPIRO. Sure. I think it is correct to say that very early 

on in the process, the Commission was generally comfortable with 

money-in/money-out, and that was the recommendation of the staff 

in Trading and Markets, but what coincided, actually, I believe, 

roughly with Mr. Becker’s arrival at the Commission, is lots of victims coming forward through letters and emails and in other ways 

very, very unhappy, profoundly unhappy, about money-in/moneyout because it limited the amount of their recovery. And really 

pushing very hard for the Commission to consider whether a final 

account statement was a better way to calculate net equity. 

I think it is incumbent upon us as a government to not just say, 

forget it, we have already made up our minds and even though you 

might be bringing us a new theory, a new legal theory, a new idea, 

we are not going to listen to you. And so the Commission took the 

time to hear out those victims and understand their legal arguments. We concluded nonetheless at the end of the day that moneyin/money-out was the right way to go, that final account statement 

wasn’t appropriate, but I think we have an obligation to hear people. 

Chairman NEUGEBAUER. One of the things that I kind of wonder 

about from your other testimony, you said you had to think about 

whether Mr. Becker’s account had lost or made money; it didn’t 

really dawn on you. But if you were familiar with Mr. Madoff’s 

scheme, everybody always made money, and so, if you got out 

early, then those people who got out early showed in many cases 

substantial gains. In fact, I think Mr. Becker’s family account 

started off with an initial investment of $500,000, and I think 

when they cashed it in, it was for $2 million. And so, from a perspective of looking at a different settlement matter basically for 

those people who got out early, meant that changed the clawback 

calculation. 

I am having a hard time. You are a very smart person and you 

have been in this business a long time. When you keep telling me 

it didn’t dawn on you that there was an issue here, I am shocked. 

Ms. SCHAPIRO. I didn’t know when the account was opened. I 

didn’t know how much was put in. I didn’t know how much was 

taken out at the time it was liquidated because apparently it was 

liquidated as a result of a death. I had none of that information. 

Of course, we all know that Ponzi schemes do make money until 

they don’t anymore, but I had no sense of how long it had been 

open, what had been deposited, and what had been withdrawn. It 

just was not information that I had. 

Chairman NEUGEBAUER. So when Mr. Becker said that his family had an account with Madoff, early in that process, it didn’t cross 

your mind to ask, how much money are we talking about here; are 

we talking about $250 or $2.5 million? It didn’t dawn on you to ask 

because— 

Ms. SCHAPIRO. I know. I understand your frustration, but it 

didn’t. To me, it was an account of a deceased relative from 5 or 

6 years ago. It just didn’t seem to have a live financial component 

to it, to me, at that time, as we were dealing with all these other 

issues. 

29 

Chairman NEUGEBAUER. So when Mr. Becker then later on in 

the process when he is—there are some accounts and some conversations that you had and I think after it was determined he 

shouldn’t testify because of the conflict, you said, ‘‘I believe this, 

that don’t worry, you will have other opportunities.’’ You were all 

kind of making light of the fact that he didn’t get to testify. At that 

point in time, didn’t it dawn on you then, or when did it dawn on 

you, I guess is what I am asking? When the newspaper account 

came out, did it dawn on you then or did it dawn on you before 

then? 

Ms. SCHAPIRO. Obviously, when I read that he had been sued in 

a clawback suit, it very clearly dawned on me, which is why I 

asked the Inspector General to look at it. It did not occur to me 

at the time that he would have a personal financial interest in how 

this issue was resolved. I had nothing to gain by this. 

Chairman NEUGEBAUER. I know that. I am just trying to—I am 

trying to make sense of it, really is what I am trying to do because 

quite honestly a lot of this just seems so commonsense that 

through this whole process, it raises the question of, if these kinds 

of things are falling through the cracks, are there other kinds of 

things that are falling through the cracks here that haven’t come 

to light yet, that we are just quite not aware of. Do you follow what 

I am saying? 

Ms. SCHAPIRO. I do. I won’t tell you there is nothing going wrong 

anywhere in the SEC at any given moment, but I will tell you that 

we have worked tirelessly to improve the operations of the agency 

in almost every aspect of it, and I think we have tremendous results to show for that. 

Chairman NEUGEBAUER. I thank you. 

Chairman MCHENRY. The gentleman from New York, Mr. Ackerman. 

Mr. ACKERMAN. Thank you, Mr. Chairman. I must confess, I am 

not totally amazed. As with almost anything Madoff, nothing is 

really what it seems, and it is quite understandable once you view 

the entire picture what is and what isn’t going on and how easy 

it was to miss so much of this. It seems to me, though, in all fairness that this appears to be, from what everybody has looked at, 

a pretty isolated case within the agency with very limited damage 

most likely done, if any damage whatsoever. 

This is everything being relative, I think we are going to find 

from what I have read from what Mr. Becker has said and from 

my conversation with him some time ago, that he is a fairly substantial financial person from a fairly substantial family, and the 

amounts of money that he might have even benefited from is a relatively, if I could use the word, piddling amount compared to the 

net worth of what he was looking at. 

I do have some concerns, though, about what it looks like from 

an ethical point of view. In the Annette Nazareth case, he actually 

turned down the opportunity to agree with her argument and those 

of her clients that would have, had he accepted those arguments, 

benefited him to the tune of $1.5 million. Instead, he came down 

on the side, as did you, that it appeared that the reasonable way 

to go was with money-in/money-out, plus the cost of constant dollars at the time, which would have benefited him, as I understand 

30 

the back of the envelope calculation shows $138,500, which in Mr. 

Becker’s circumstance, having been a person who took a 90 percent 

cut in salary to take the job, assuming he is making $200,000 a 

year in this position meant he was making $2 million a year previously, which my calculator says he makes up in 24.9 days, had 

he done this for the money, he would have worked a month longer 

in his old job instead of taking this one. A question of judgment, 

yes. 

My question is, as a result of his not recusing himself, was there 

any damage done to anybody at all? 

Ms. SCHAPIRO. I think the answer to that is the damage done is 

unfortunately to Mr. Becker’s reputation, and he is a fine lawyer— 

Mr. ACKERMAN. And your agency. 

Ms. SCHAPIRO. —and was a committed public servant; and to the 

agency and the time that we are all spending sorting through this 

issue. 

Mr. ACKERMAN. The decision made to switch him out as a witness is troubling to me. As I am sure you will recall, there was a 

hearing shortly—I think it was the week of your becoming Chairman and it was a disaster of a hearing, I think, from the point of 

view of the witnesses who were testifying, and there was a lot of 

acrimony going on. And by the time I reached my office that day, 

there was a message from you expressing that you were aghast at 

the way top people in the agency conducted themselves before our 

congressional committee and you said you were going to clean that 

up. I believe that was on a Wednesday, and I went home for the 

weekend and saw in the newspapers on Sunday that you had fired 

almost everybody who was at that table because of the way they 

conducted themselves before this Congress, and I have to tell you 

that I was impressed and remain impressed with what you do. 

So I have a concern about switching out the witnesses because 

of the fact, as I believe you stated, he would have been a distraction in having to reveal that he had a conflict of interest or that 

he had a Madoff account. Is that distraction because—not doing 

that has caused this whole distraction. Is that because Congress 

would have now known and exercised its oversight earlier? 

Ms. SCHAPIRO. No, not at all, Congressman. We didn’t think 

there was a conflict, and recall that our Legislative Affairs Office 

knew that he had, in fact, been cleared by Ethics and determined 

not to have a conflict, but I believe there was a worry that it would 

take away from the focus— 

Mr. ACKERMAN. But his not having—we might have probed it a 

lot more—not having to report to him, we might have probed it in 

a different way than the Ethics Counsel advised him that he didn’t 

have a conflict. 

Ms. SCHAPIRO. I guess that is possible. It just—it didn’t occur to 

me. We actually had a better witness for the subject matter, someone who was very involved with SIPC on the liquidation issues. I 

think there was a concern if you have two great witnesses or one 

great witness and one good witness, you pick the one who does not 

have personal circumstances that can be distracting because this 

was the Commission’s witness to speak to the Commission’s legal 

and policy analysis. And so it was genuinely, I believe, a concern 

31 

that it not distract from the important substance of what the subcommittee was going to be discussing at that hearing. 

Chairman MCHENRY. Thank you. The gentleman’s time has expired. I recognize myself for 5 minutes. 

Mr. Kotz, the criminal conflict statute, does it require a large or 

small financial interest for it to be applicable? Will you explain 

that to us? 

Mr. KOTZ. No, it does not. There is no requirement that it be 

over a certain sum. Any sum at all, where there is a potential conflict, is a potential criminal matter. 

Chairman MCHENRY. Even if you are working against your own 

financial interests? 

Mr. KOTZ. That is right. In addition to that fact that I just mentioned, it is irrelevant for ethics purposes whether you are working 

for or against your interests. You are not supposed to be involved 

in a matter that affects your financial interests whether it is pro 

or con. 

Chairman MCHENRY. So, in this light, it doesn’t matter if the 

gentleman had a high net worth or a low net worth, if he made a 

high salary or a low salary; is that correct? 

Mr. KOTZ. For the purposes of an ethics analysis, that is correct. 

Chairman MCHENRY. Okay. And what I would say furthermore 

is it goes beyond just one individual’s reputation. It goes to the 

trust and reputation of the agency and institution they are a part 

of. 

There is time and the last question here for this panel and the 

last 3 minutes for the panel, Ms. Schapiro, I will give you an opportunity to say whatever you didn’t get an opportunity to say. 

Ms. SCHAPIRO. Thank you, Mr. Chairman. I think this is a tragic 

series of events. I think we have taken great strides here to improve the operations of the Ethics Office of the SEC. We have tremendous new personnel there, very talented, very sophisticated, 

very, very committed, very tough and aggressive in their interpretation of the ethics rules, and I feel confident that we have in place 

the processes and the procedures that will help us prevent something like this from happening again. 

Chairman MCHENRY. Thank you. Mr. Kotz, do you have any 

cleanup you want to make? 

Mr. KOTZ. No. I appreciate the fact that the Chairman is implementing our—or plans to implement all our recommendations. I 

would say that, as I said in my opening statement, the process 

worked with respect to the Inspector General’s Office in this case. 

The Chairman asked us to do an investigation. We did an investigation in a timely manner. The information was brought out 

there, and there are going to be changes to the SEC’s operations 

as a result. 

Chairman MCHENRY. Thank you. With that, Mr. Garrett just arrived so he is entitled to 5 minutes. Mr. Garrett is recognized for 

5 minutes. 

Mr. GARRETT. Thank you. I appreciate the Chair. 

So a lot has been made by some, at least, Mr. Becker through 

his conflict of interest on the Madoff-related matter and participation in SEC policy responses regarding Madoff victim compensation 

stood to gain personally from the compensation proposal put forVerDate Nov 24 2008 11:21 Mar 16, 2012 Jkt 072607 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 K:\DOCS\72607.TXT TERRIE
32 

ward by the SEC versus the one put forward by SIPC and its trustees—the SEC proposal was not adopted by SIPC trustees proposal, 

however. One reason it may not have been adopted, even though 

as Mr. Kotz’ testimony alludes to, is the SEC has the power to 

overrule SIPC. It is because SIPC’s CEO knew of Mr. Becker’s conflict of interest and used this leverage to keep the SEC, from what? 

More aggressively pursuing its alternative net equity formulation. 

Additionally, while much has been made of Mr. Becker’s conflict 

of interest, no one that I am aware of has focused on the major conflict of interest that SIPC and its trustee has in formulating a net 

equity formula for Madoff victims compensation. 

SIPC obviously on behalf of its member broker-dealers wants to 

protect its fund from being drained—understandable—so would 

have an interest in a formula that was less protective of the victims. The trustee has an interest in the formula as well. He has 

an interest to have a formula that produces a lot of litigation. 

Which does what? It then drives up his, and I guess his firm’s, fees 

as well. 

Now, clawback heavy formula, which the trustee openly adopted, 

is indeed very lawyer intensive, and by the trustee’s own calculation, his firm will ultimately bill over $1 billion for the Madoff liquidation. 

So my question then is in your investigation, Mr. Kotz, did you 

go down this road that I have talked about here in any way to investigate SIPC and its trustee, some would say, the clear conflict 

of interest in this case? 

Mr. KOTZ. We did not. Our jurisdictional purview is that of SEC 

employees. We did not look at the issue of a potential conflict of 

interest on the part of SIPC in this case. 

Mr. GARRETT. Okay. So you are saying it is outside of your purview or outside of your authority? 

Mr. KOTZ. Right. My job as Inspector General is to conduct investigations and audits of SEC employees and contractors. We would 

not normally conduct an investigation of someone who doesn’t work 

for the SEC. 

Mr. GARRETT. All right. So how about then investigating Mr. 

Harbeck’s use or knowledge of Mr. Becker’s financial interest? 

Mr. KOTZ. Yes. We weren’t aware that Mr. Harbeck was aware 

of Mr. Becker’s financial interests. While we did interview Mr. 

Harbeck in this investigation, he indicated to us that he was not 

aware of Mr. Becker’s personal interest until it was reported in the 

press. 

Mr. GARRETT. Okay. So you were not aware of it from information provided to you or is there a back of the envelope approach I 

guess to see if there was interest in— 

Mr. KOTZ. Yes. I have not heard before this allegation that Mr. 

Harbeck was aware of Mr. Becker’s interest and there was a conflict of interest as a result. This is the first I am hearing of it, and 

because I wasn’t aware of that allegation, we didn’t have any evidence, although we didn’t look for that in this case, it wasn’t part 

of our investigation. 

Mr. GARRETT. I understand. I guess I know the answer, but did 

you investigate the trustee’s interest then and the potential for 

33 

compensation as being a factor or a potential driving factor in the 

equity formula that he was advocating? 

Mr. KOTZ. We didn’t look at the entire process of how either the 

trustee or SIPC arrived at their particular approach. We looked 

specifically at the conduct of Mr. Becker, who was an SEC employee. 

Mr. GARRETT. I see. So clearly then, SIPC did not intend the financial conditions of SIPC to drive the handling of the victim claim 

not before or after the failure of the regulator broker-dealer as a 

result of the fraud then? 

Mr. KOTZ. Again, I don’t know—I can’t say with certainty what 

SIPC’s motivations were either way because that wasn’t an issue 

that we looked at in our investigation. 

Mr. GARRETT. I appreciate that. I will say this then. The GAO 

study that I requested will then hopefully shed some more light on 

some of these issues, not only for me, but then the SEC will also 

benefit from that information and should then, therefore, I would 

think, defer its reconsideration vote on the net equity until the report is complete. Do I see you shaking your head? 

Ms. SCHAPIRO. No, I just—I hadn’t thought about that and I 

wasn’t sure when the GAO report was due. 

Mr. GARRETT. Okay. So even though not knowing, what do you 

think you want to do then? 

Ms. SCHAPIRO. I guess I would like to think about that. 

Mr. GARRETT. Okay. 

Chairman MCHENRY. The gentleman’s time has expired. I thank 

the chairman of the Capital Markets Subcommittee. I want to 

thank the panel for your testimony. Thank you for your service to 

our government, to our people. Thank you for your time today. 

This panel is dismissed. We will recess for votes, and when we 

return, we will take testimony from Mr. Becker and have a series 

of questions. 

[Recess.] 

Chairman NEUGEBAUER. The hearing will resume. Our second 

panel consists of Mr. David Becker, the former General Counsel of 

the U.S. Securities and Exchange Commission. Mr. Becker, welcome. Just to let you know, your written statement will be made 

a part of the record, and you are recognized for 5 minutes to summarize your testimony. 

STATEMENT OF DAVID M. BECKER, FORMER GENERAL 

COUNSEL, U.S. SECURITIES AND EXCHANGE COMMISSION 

Mr. BECKER. Thank you very much, Mr. Chairman. Chairman 

Neugebauer, Ranking Member Capuano, Chairman McHenry, I appreciate the opportunity to testify before you, and I thank you for 

listening to me. I welcome all your questions. 

I am eager for this because for the past 6 months, there have 

been many incomplete, misleading, or just plain false things written about me, and I am eager to answer any and all questions to 

put this matter to rest once and for all. 

At all times during my service at the Securities and Exchange 

Commission, my abiding goal was to advise the Commission as to 

the course that provided the greatest benefit to investors and that 

was consistent with the law. I am confident that any fair review 

34 

of my actions will demonstrate that this was the only motivating 

principle behind them. Such a fair review has not yet been forthcoming. 

In sum, I was informed by the SEC’s Ethics Office that I had no 

conflict of interest in the Madoff liquidation and that there was no 

appearance of such a conflict. I did precisely what I was supposed 

to do. I identified a matter that required legal advice from the 

SEC’s Ethics Office, as was my usual practice. I almost never started a new matter without getting clearance from the Ethics Office. 

I sought that advice because I firmly believe that no one should be 

the sole judge of the ethics of his own actions. 

I have followed the advice of the Ethics Office completely. The 

Office of Inspector General report contains no findings to the contrary. Indeed, the report confirms that I disclosed the existence of 

my deceased mother’s Madoff account to at least seven people at 

the SEC, including my boss, Chairman Shapiro. I took no steps to 

conceal the existence of that inheritance. 

The apparent recommendation of the Office of Government Ethics that this matter be referred to the Department of Justice is, 

upon review of the Office of Government Ethics, less than it seems. 

The recommendation stems from the fact that OGE is precluded by 

law from making any determination that the criminal conflicts of 

interest laws may or may not have been violated. And here I am 

quoting from their letter, a sentence that appears in a footnote in 

the next to last page of a 118-page report. And in fact, the Office 

of Government Ethics expressed no opinion on that issue. 

I came back to the SEC because I care deeply about the agency 

and its people, because my friend Mary Shapiro asked me to, and 

because I thought it was my duty. I knew the SEC was in crisis 

and in need of revitalization and reform. I was flattered that Chairman Shapiro thought I could help. And I thought so, too. 

While I had enormous affection for the SEC, my years of SEC 

service and of representing clients before the agency had given me 

a clear-eyed view of its shortcomings and of the measures that 

might be taken to revitalize it. I still care deeply about the SEC, 

and I have seen firsthand how the process I have been through 

over the last 6 months harms the agency and the public interest. 

This has been a dreadful experience for me in ways that there 

is no need for me to detail here. I am extremely depressed and very 

sad that this has been a dreadful experience for my friend Mary 

Shapiro and the SEC as well. I feel that this process has been very 

damaging to the public interests in ways that just cannot be apparent to the subcommittees. And so I thought I would comment a little bit about that. I am going to comment about that simply by repeating what I said to Commission members and the staff about 

this very point when I took my leave of the SEC last February. 

And I quote from my remarks here. 

‘‘From the day I walked in the door 2 years ago, until today, I 

have been asked how this time around is different than the previous time. The answer is that it is a hell of a lot harder. In some 

ways, we have made it harder on ourselves. In others, we live with 

constraints not of our own making. And in other ways we just live 

in times that are much meaner than they were 10 years ago. It is 

riskier to work here than it used to be. As you may know, I am 

35 

having some experience with this myself. Unfortunately, too many 

people have experienced those risks firsthand. 

‘‘This time around, I have had more than a few people in my office weeping with fear about what might happen to them because 

one person or another was looking into their behavior. I have been 

shocked by that. That shouldn’t be. It is a symptom of the times 

and a political culture that is quite frankly seriously ‘nuts.’ To 

some extent, this enrages me. But mostly it makes me very sad. 

I am sad for the agency and for my friends, and I feel terrible that 

I haven’t been able to help people more. And it is the source of my 

biggest worry for the Commission as I leave. 

‘‘When I left here in 2002, I worried a bit that the agency might 

be too complacent. I have the opposite worry today. I worry that 

all the risks that people run will make the institution gun shy. It 

is only natural, but I hope I am wrong. I hope people here have 

the capacity to listen to the agency’s critics, be intensely self-critical, keep an open mind to a better way to do things, and in the 

end never ever back off from doing what we believe to be right. No 

one should take imprudent risks, and we shouldn’t sugarcoat what 

may befall the best intention of us. But in the final analysis, we 

can’t live scared. 

‘‘In the end, what has made this agency great is people who say 

‘the hell with it,’ I am going to do what is right, knowing that we 

are imperfect beings who often can’t know what is right, and knowing that the risks are real that we will be called to account for our 

failures, or for our successes, or just for being here. It is so important that people here bring cases, drop cases, adopt rules, walk 

away from rules, solely on the basis of what is best for the people 

we serve. 

The people in this room believe that, I know. That is why I love 

you all and why the privilege of having been with you for a time 

leaves me deeply in your debt.’’ 

I spoke from the heart when I said those words. I will speak from 

the heart today. 

I welcome your questions. 

[The prepared statement of Mr. Becker can be found on page 58 

of the appendix.] 

Chairman NEUGEBAUER. Thank you, Mr. Becker. You made a 

couple of points—and I wanted to go back to that—that you came 

to the SEC for the second time at the request of the Chairman, 

with good intentions. Would you say that was correct? 

Mr. BECKER. I would say they were good intentions, yes. 

Chairman NEUGEBAUER. But I think one of the things we have 

to differentiate here is good intentions and good judgment don’t always coincide. Would you agree with that? 

Mr. BECKER. As a general proposition, sure, I would agree with 

that. 

Chairman NEUGEBAUER. So the point of this hearing today is 

about people using good judgment. Because as you know—and you 

have been around the SEC for a number of years. You represented 

people before that. You know the very high standard that the SEC 

requires of the people that they oversee. Is that a fair statement? 

Mr. BECKER. Yes, it certainly is. 

36 

Chairman NEUGEBAUER. I think the point that a lot of us are 

concerned about is someone with your intelligence and your background, your reputation, coming into the agency at a time when 

they were obviously under a lot of scrutiny, very high-profile case, 

they missed it. They screwed up. So you come in, Mary has brought 

you in, and you obviously have some financial interest or consequence or benefit from the outcome of some of the distributions 

to the victims of this. Because I believe if these numbers are correct, I believe your testimony is that I guess it is your dad or your 

mom put about $500,000 in the Madoff and cashed it out at about 

$2 million. Are those close numbers? 

Mr. BECKER. Those are numbers that I first heard of in late February of this year. When I arrived at the SEC, all I knew was that 

some time before my father died—my father died in 2000—he had 

opened an account in my mother’s name. I didn’t learn directly that 

my father had opened it, but my mother was a social worker and 

an academic, and she didn’t do any investing. I didn’t know what 

he had put in. I didn’t know when he put it in. 

Chairman NEUGEBAUER. But the question is: Are those fairly accurate numbers? 

Mr. BECKER. No, actually, I don’t think so. I think— 

Chairman NEUGEBAUER. Are they more, are they less? 

Mr. BECKER. I will be delighted to tell you. I believe the records show that my—the account was opened for $500,000, and that 

when my brother, acting in a representative capacity for my mother’s estate, liquidated it, there was about $2 million in the account. 

The amount that came to me was much, much less than that because what I got from my mother’s will came after estate taxes 

were paid. The money went to everybody else designated in the 

will. So I got my share. And I don’t remember what the number 

was. 

Chairman NEUGEBAUER. Let me just go— 

Mr. BECKER. Much, much less than that. 

Chairman NEUGEBAUER. So are you familiar with the concept of 

net equity? 

Mr. BECKER. Yes, I am. 

Chairman NEUGEBAUER. What is that? 

Mr. BECKER. Net equity is a statutory term in the Securities Investors Protection Act that determines how a customer’s claim— 

that is, how much is paid out to the customer. Customers who have 

open accounts at the bankruptcy, how much they get. 

Chairman NEUGEBAUER. So basically, if I understand net equity, 

your basis is what you paid in less what you were paid out? 

Mr. BECKER. I think that was the issue. 

Chairman NEUGEBAUER. And the SEC before you came had already kind of had an informal agreement with SIPA that the number that they would use, the net equity position. But shortly after 

they got there, you were arguing that they should consider the constant dollar approach. So my question is, if you use those two 

methods and you assume that the trustee is successful in his lawsuit against you and your estate or however they are bringing that, 

would those two methods have a different impact on you? 

Mr. BECKER. There is so much sort of thrown into a basket in 

your question. Let me see if I can take— 

37 

Chairman NEUGEBAUER. I don’t have a lot of time. It is either 

a yes or no. Yes, there would be different calculations. 

Mr. BECKER. I can’t give you a yes or a no because there are all 

sorts of premises in your question about what the SEC agreed to 

that just aren’t factually accurate. 

Chairman NEUGEBAUER. Let’s not talk about what is agreed to. 

Let’s talk about using those two methods. Would there be a difference in the amount of settlement that you would have with the 

trustee? 

Mr. BECKER. I had no idea that was the case. 

Chairman NEUGEBAUER. I didn’t ask you— 

Mr. BECKER. The principal method that we were— 

Chairman NEUGEBAUER. Excuse me. I didn’t ask you if you had 

any idea. What I am asking is, would it have had an impact? 

Mr. BECKER. I have been told that circuitously by SIPC. I do not 

know that to be true. I think it is probably true to a relatively 

small amount. 

Chairman NEUGEBAUER. What is relatively small to you? 

Mr. BECKER. I would say $10,000, $15,000. 

Chairman NEUGEBAUER. The clawback under the cash net equity 

would be, based on what you just told me a while ago, about a million and a half dollars. 

Mr. BECKER. No, I don’t think I told you that. I think I told you 

that that is what the trustee has claimed. I think that the numbers 

that the trustee is using are just wrong. But I knew none of this 

at the time. 

Chairman NEUGEBAUER. Should you have known that? 

Mr. BECKER. No, I don’t think so. I did not even know at the time 

that this was knowable. 

Chairman NEUGEBAUER. And so your defense of all of this is that 

you went to the Ethics Officer and said, ‘‘I might have a conflict,’’ 

and he said, ‘‘You’re fine.’’ 

Mr. BECKER. I told him everything I knew. And I said, ‘‘Tell me 

what to do.’’ And he said, ‘‘You should participate in this.’’ 

Chairman NEUGEBAUER. So if I am an entity or broker or dealer 

or something that the SEC is investigating and I make a trade that 

you find fault with, my defense is that I asked my supervisor if I 

could make that trade and they said it was all right, and so I am 

vindicated? 

Mr. BECKER. In most individual cases, I would say that is right. 

Certainly, when it is advice of counsel, absolutely. I have had many 

cases like that. 

Chairman NEUGEBAUER. But if I have broken the law because 

somebody in my organization thought it was all right, that doesn’t 

change my guilt, does it? 

Mr. BECKER. But the notion of knowledge is, in the case of this 

particular law, included in the law. It is what an employee does to 

his knowledge. An employee has to know that there is a direct and 

predictable effect on his financial interest by virtue of the action 

that he is asked to participate in. And interestingly enough, I did 

not hear the words ‘‘direct and predictable’’ at all in the first panel. 

Chairman NEUGEBAUER. I think my time has more than expired. 

Mr. Capuano. 

38 

Mr. CAPUANO. Thank you, Mr. Chairman. Mr. Becker, first of all, 

thank you for being here, though I have to be honest, I am a little 

surprised that you would come to testify in an open hearing like 

this when you have another matter pending. But it is your prerogative. 

Mr. Becker, I want to be clear. From my perspective, I don’t really concern myself too much with your specific details, if you want 

the truth. My concern here, as I said earlier, is whether the overall 

process within the SEC is working as myself and other Members 

of Congress think it should be working. The outcome of a given 

case raises questions about whether the process worked. 

I am not here as one member to judge you. I am not qualified 

to do it. I don’t know enough information to do it. And there are 

other entities that will do it. So be it. I will tell you that from the 

limited review I did read within the IG’s report, there was no indication that I read there, no hint, no indication, of anything of any 

criminal wrongdoing. So my expectation is that maybe it was 

kicked up simply to pass the buck along. But we will see. 

For me, I would have to tell you that regardless of your specific 

actions or the actions of the ethics lawyer at the time, knowing 

what I now know, it strikes me that the process of ethical review 

within the SEC at the time was the shortcoming. And that has 

been my focus. That is why I asked the first panel: What did you 

learn, what are you doing about it going forward? Not so much 

your specific case. But it strikes me that anybody with an investment in somebody they are investigating, no matter how it is, no 

matter how much it is, somebody should have said, wait a minute, 

maybe you shouldn’t be doing this. 

I have recused myself. I know you have recused yourself in other 

matters. I have recused myself on matters in my professional life 

because it was maybe somebody would see it differently. I would 

be honest, I wouldn’t expect you as an individual to make that 

judgment. That is what the Ethics Office is for. And that is why 

that office should be very clear and very precise about its actions. 

And that is why, to me, I think some of the proposals that have 

been made by the IG have been pretty good. 

From that perspective, sitting where you are today, having been 

through these difficult situations—I know you read the IG’s report. 

Mr. BECKER. I have read it once. 

Mr. CAPUANO. The proposals that were made relative to fixing 

the process, moving forward, would you agree that they are good 

proposals or bad? 

Mr. BECKER. I haven’t thought hard about them. They look fine 

to me. I would not—if it were my call, I would say having Ethics 

report to the Chairman is not a good idea. If you are worried about 

the impact of having a superior, someone giving advice to a superior, I would worry more if the superior is the head of the agency 

than I would if the superior wasn’t the head of the agency. 

I have to say lawyers, the Attorney General gives legal advice to 

the President of the United States. Every General Counsel, just 

about, of large companies reports to the CEO. Every lawyer in private practice gives legal advice to people who can hire and fire 

them, retain them or not. I don’t see this as this big red flag. 

39 

Mr. CAPUANO. I appreciate your opinion, but I would respectfully 

disagree, based on—and there is no perfect process because there 

is no way you can have somebody who doesn’t answer to somebody 

somewhere along the line. The question is, as far as I am concerned, getting them to answer to as few people as possible. It has 

nothing to do with you or anybody else. I think the IG should report directly to the head of whatever agency they are in, anyway. 

It has nothing to do with you or the SEC. Even then, I know it is 

not a perfect system. We have an ethics system here in Congress 

that is not perfect. But you do the best you can. That is a matter 

of opinion. 

Again, I want to thank you for coming. I want to wish you good 

luck because I know it is a difficult situation. From what I saw, 

your record is pretty good. I am hoping there were no lines crossed. 

But that will be decided by other people. I want to tell you that 

I respect you for coming here today and talking about what I know 

is a difficult matter for you. 

Mr. BECKER. Thank you very much. 

Chairman NEUGEBAUER. I thank the gentleman. 

Chairman McHenry. 

Chairman MCHENRY. Thank you. I thank you for being here 

today. You certainly had a distinguished time in government over 

a period of years, and you certainly have had a long and distinguished career in private practice as well. Today, though, this is a 

subject matter that is very sensitive. With hindsight, I think people 

are looking at this stuff differently. 

But back in March, in my subcommittee, Representative Mack 

asked Chairman Shapiro, ‘‘Do you believe that Mr. Becker was sufficiently aware of the need to avoid actual or apparent conflicts of 

interest?’’ Chairman Shapiro responded, ‘‘Do I wish now that he 

had been more sensitive to the potential of this issue to raise an 

appearance of conflict? Yes. I wish that had happened.’’ 

Do you agree with this judgment? 

Mr. BECKER. I certainly agree that she wishes it hadn’t happened, and I personally found that statement extremely distressing 

to me. I don’t like to think that I let her or the agency down in 

any way or that anybody feels that way. 

Having said that, when you go to a doctor, you put yourself in 

the doctor’s hands. When you go to—when you seek legal advice, 

you seek—you put yourselves, in this case the Ethics Counsel’s 

hands. I followed that advice. 

If the question is, notwithstanding that advice should I have said 

well, it is just too risky for me or for the agency, I will say I didn’t 

predict in any way what happened. I didn’t think the trustee was 

going to sue me. I didn’t think the sports section of the Daily News 

in New York was going to make a big deal out of this. I didn’t 

think, frankly, that this committee would respond in the way it 

did. I didn’t anticipate any of that. 

Would it have been better if I did? You bet. 

Chairman MCHENRY. In February of 2009, were you aware that 

Madoff trustees were considering clawbacks? 

Mr. BECKER. I don’t think so. I think what I was aware of was 

that there had been clawbacks recently instituted in very large 

40 

amounts for people whom the trustee alleged had been complicit in 

the fraud. 

Chairman MCHENRY. So you are not aware of clawbacks of 

Madoff beneficiaries, outside of large beneficiaries? 

Mr. BECKER. Large beneficiaries who the trustee said had been 

involved in the fraud. That is correct. 

Chairman MCHENRY. So in that March hearing that I mentioned 

before, Chairman Shapiro was asked whether she regretted your 

situation. Her response was, ‘‘I wish Mr. Becker had recused himself, absolutely.’’ 

Do you agree with that judgment? 

Mr. BECKER. Again, I take that as a sincere statement of her 

views. 

Chairman MCHENRY. I am not asking your judgment on her sincerity. Do you agree with that judgment that you should have 

recused yourself? 

Mr. BECKER. Forgive me. I know I talk in a little bit of a roundabout way, but I am getting there. I think—still think—that I did 

what I was supposed to do. I will just have to live with the fact, 

unhappily, that Chairman Shapiro has a different view. 

Chairman MCHENRY. Is it your view that you should have 

recused yourself at that time, knowing what you know now? 

Mr. BECKER. I don’t know what you mean by knowing what I 

know now. Do you mean knowing the trustee would sue me? If I 

had known the trustee was going to sue me, of course I would have 

recused myself. 

Chairman MCHENRY. You said you did not know that certain 

items were knowable about the inheritance you received; the nature of the Madoff account. 

Mr. BECKER. Yes. 

Chairman MCHENRY. Do you know more about the nature of that 

inheritance today than you did in February of 2009? 

Mr. BECKER. Sure. I didn’t know— 

Chairman MCHENRY. With that knowledge, knowing the details 

of that inheritance and that Madoff account, with that knowledge, 

would you—with the knowledge that you possess today just simply 

about that transaction, would you have recused yourself? 

Mr. BECKER. I don’t know the answer to that. I truly don’t. I 

don’t know exactly or even close to exactly what the rationale of 

the Ethics Office was. I did not, for example, see the link—just 

didn’t see it—between taking a position on measuring the amount 

that folks in the bankruptcy can claim and clawbacks. I don’t know 

how important that was to the Ethics Office. I don’t know how important the sense of imminence of a lawsuit was. I don’t know that 

merely the fact of the account would have changed my view. 

Chairman MCHENRY. Thank you. 

Chairman NEUGEBAUER. The gentleman from Maryland, Mr. 

Cummings. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. First of 

all, I want to thank you for being here today. I know that this must 

be difficult, considering the fact that your case has been referred 

to Justice. I must tell you that I kind of agree with Mr. Capuano. 

This case troubles me from a standpoint as a lawyer and one who 

41 

is giving advice many times to many people, that you went and got 

the advice of folks and now you find yourself in this difficulty. 

So I want to go to some things that were testified to earlier and 

just to clear up some things. 

Earlier, Mr. Kotz talked about subordinates. And you had gone 

to subordinates. One of the things that they have cleared up in the 

new recommendation—I know you have been concentrating on 

other things—is to make it so that I guess you would report directly, these kinds of things, to the top person. 

Did you in any way feel when you were being interviewed and 

you talked to these seven other people who cleared you, said you 

were okay to do this, that they were under any pressure whatsoever? 

Mr. BECKER. No. In fairness to them, I think the point of my 

talking to those seven other people is that I didn’t make any effort 

to conceal this. In fairness to them, not all of them were people 

who would have had any responsibility to clear me or not. I did 

think it was inappropriate of Mr. Kotz to say in his report that he 

saw seven people and none of them said anything about this. This 

had nothing to do with most of their responsibilities. 

Mr. CUMMINGS. Let me get through these questions because I 

want to make sure we are clear. 

Mr. BECKER. Yes, sir. 

Mr. CUMMINGS. You have people who are probably going to look 

at this film 50 million times. 

Mr. BECKER. I may reconsider, then. 

Mr. CUMMINGS. Okay. Mr. Becker, who exactly had a duty to 

identify that there was a potential conflict of interest and disclose 

that information appropriately throughout the Commission to Commissioners and the relevant staff? Who would have that duty? Can 

you answer me very briefly? 

Mr. BECKER. I don’t think anybody has a duty to report things 

that aren’t conflicts of interest. You either have a conflict of interest or you don’t. 

Mr. CUMMINGS. You didn’t believe that you had a conflict? 

Mr. BECKER. That is correct. 

Mr. CUMMINGS. As the IG found in his report, you seem to not 

believe there was a strong possibility that the Madoff trustee would 

bring a clawback action against you. Specifically, as you explain in 

a May 2009 email to the SEC Ethics Counsel, Mr. Lenox, ‘‘your instinct is that any claim would be much too small and of dubious 

merit to bring in any event.’’ 

Could the fact that you viewed the possibility of a clawback suit 

to be remote have led you to misjudge whether or not you had a 

conflict of interest? 

Mr. BECKER. I was very careful not to make that judgment. That 

judgment was made by the Ethics Office. I just told them what I 

knew. 

Mr. CUMMINGS. A little earlier there was a question by Mr. Issa, 

and he asked a question about—I guess it would be referring to 

you—if you presented bad information to the people you talked to— 

it talked about what the result would be. In your mind, did you 

present any misleading information or something that was not 

true? 

42 

Mr. BECKER. No. 

Mr. CUMMINGS. Could the fact that others also viewed the possibility of a clawback suit to be remote have led them to misjudge 

whether or not you had a conflict of interest? 

Mr. BECKER. I just can’t say what was in their head. 

Mr. CUMMINGS. If you thought that you would be subject to a 

clawback lawsuit, what would you have done differently, if anything? 

Mr. BECKER. It’s hard to say, but I probably would not have participated in the matter. 

Mr. CUMMINGS. If others at the SEC thought you would be subject to a clawback lawsuit, do you believe they would have done 

things differently? 

Mr. BECKER. I guess you mean the Ethics Office. They probably 

would have, yes. 

Mr. CUMMINGS. Why did you come here today to testify? I know 

we asked you to come. What is your objective? 

Mr. BECKER. My objective is to get the truth out. As simple as 

that. I have nothing to hide. 

Mr. CUMMINGS. And you believe that you did nothing wrong, is 

that right? 

Mr. BECKER. That is correct. 

Mr. CUMMINGS. You informed William Lenox, head of the SEC’s 

Ethics Office, of your mother’s Madoff account—shortly before—or 

after I arrived at the SEC—‘‘and I never asked Chairman Shapiro 

or Mr. Lenox not to share the information about my mother’s account.’’ 

What was that all about? 

Mr. BECKER. I didn’t treat this as some deep, dark secret. I went 

to the Ethics Office for advice. I didn’t say, ‘‘Don’t tell anybody.’’ 

I didn’t tell lots of people just because I frankly didn’t think about 

it. But I didn’t take any steps to protect this information or conceal 

it or anything like that. 

Mr. CUMMINGS. Mr. Chairman, I see my time has run out. 

Chairman NEUGEBAUER. I thank the gentleman. 

Mr. Becker, in a letter you wrote me and my colleagues you stated that you recognized that it was conceivable that this issue could 

affect your financial interest because the issue could affect the 

trustee’s decision to bring clawback actions against persons like 

you. 

Mr. BECKER. Correct. 

Chairman NEUGEBAUER. Mr. Becker, you concede it might affect 

your financial interest. If you had recognized that, wouldn’t that 

have triggered that maybe this will have an appearance of a conflict? Let’s just get past the legal part. It goes back to what I was 

saying a while ago. Sometimes good intentions and good judgment—as a lawyer who has been practicing for a number of years, 

particularly in an agency like the SEC, where you are very sensitive to either actual conflicts of interest or appearance of conflict 

of interest, that didn’t resonate with you? 

Mr. BECKER. Appearance is used in two senses. There is a rule 

that talks about appearance. I don’t think it is a close question; 

that I was well within the four corners of the rule. There is appearance in the sense we have heard talked about earlier today as the 

43 

Washington Post test, the New York Times test. That is very subjective. You can’t even get people to agree which newspaper is the 

relevant one. 

Sure, I thought of that. But in all candor, I did not anticipate either that the trustee was going to sue me or the reaction would be 

what it has been. 

Chairman NEUGEBAUER. But you—if I misunderstood your letter—you did anticipate that was a possibility, did you not? 

Mr. BECKER. ‘‘Conceivable,’’ I think was the word I used, which 

means there are a whole bunch of things conceivable. The level of 

probability is what governs. 

Chairman NEUGEBAUER. But when you conceive of it, you are 

thinking about it, right? So you are aware of it. In other words, you 

had knowledge that you potentially could be subject to a clawback 

lawsuit in this matter. 

Mr. BECKER. Yes, conceivably, possibly, maybe. But I did not 

think that was going to happen. 

Chairman NEUGEBAUER. And so, I want to go back to there was 

someone—Congress asked you to come and testify. You all had a 

little team meeting and it was decided that you would have to disclose these interests in the Madoff issue. It was determined that 

you should not testify, is that correct? 

Mr. BECKER. No, not quite. That is not quite how it worked. 

What happened was I was going to testify. I came to the head of 

the Office of Legislative Affairs, just like I went to Ethics, and said, 

‘‘Listen, this is a political calculus. This is not the world I know. 

I want to know what you think about it.’’ He first said, ‘‘Oh, I think 

it is fine.’’ Later in the day, he called me up and said, ‘‘Well, I am 

a little worried that it is going to be a distraction.’’ I said, ‘‘If it 

is going to be a distraction, you can be— 

Chairman NEUGEBAUER. What is going to be a distraction? 

Mr. BECKER. The fact that my mother had an account. 

Chairman NEUGEBAUER. So you disclosed that to the Legislative 

Affairs folks? 

Mr. BECKER. Sure. I also told them that I would mention it upfront to take any question that I wasn’t disclosing it off the table. 

And I said, ‘‘You guys make the political judgment.’’ Later in the 

day he called me and said, ‘‘I don’t think it is such a good idea. 

Let me check with the Chairman.’’ He checked with the Chairman 

and that evening said to me, ‘‘I spoke to her and I think we would 

be better off with somebody else.’’ I saw her the next morning and 

she confirmed that. That is basically all that happened. 

Chairman NEUGEBAUER. You all had a conversation and some 

kind of laughing and joking that oh, you will get another opportunity. 

Mr. BECKER. Yes. I don’t think this is what she had in mind. 

But, yes. 

Chairman NEUGEBAUER. Here is the other question, then. If you 

felt like it was appropriate to disclose to the Leg Affairs people before you went to Congress, I am still trying to reconcile why you 

didn’t think when you are making a very important presentation 

to the Commission between encouraging them to use constant dollar, that you didn’t think it was appropriate to say to those folks, 

and by the way, this could impact me. If I was a Commissioner or 

44 

if you were a Commissioner, wouldn’t you? Because subsequently 

to this all those Commission members were not happy that you did 

not disclose that. 

Mr. BECKER. I don’t know the questions that were asked of them. 

The quotation from Commissioner Aguilar said he was upset that 

this conflict wasn’t disclosed to him. I didn’t think I had a conflict. 

I was told I didn’t have a conflict. And you don’t generally make 

a habit of going to people and saying, ‘‘I don’t have a conflict, but 

I think you ought to know about it.’’ You say that to them and they 

think: What message is he trying to send me? 

When it came to Congress, which is not the world that I am familiar with, I needed to take someone’s advice. 

Chairman NEUGEBAUER. But you are familiar with the world at 

the SEC? 

Mr. BECKER. I am indeed. 

Chairman NEUGEBAUER. Going back to the high standards of 

ethical behavior that you hold, the people the SEC regulates, and 

the fact that you stated in that letter that it was conceivable that 

you had an issue there and that you had felt later on to disclose 

that. I agree with my good friend Mr. Capuano that it is a process 

here, but there is some personal responsibility that goes with these 

positions. And that you didn’t think that there was some potential 

conflict there, I am still having a hard time reconciling that. 

Mr. BECKER. I take complete responsibility for my actions here. 

Frankly, it is easy for me because I think I behaved appropriately. 

It is passing strange, I think, to say to people, I have something 

to tell you that I have been told doesn’t affect my judgment, that 

I don’t believe affects my judgment, that doesn’t color the advice 

that I have given them. I don’t think it would have been inappropriate to tell them. It is not a bad thing to tell them. But I didn’t 

think of it. And I think the reason I didn’t think of it is it really 

was not germane to what they were doing. 

Chairman NEUGEBAUER. I see my time is up. The gentleman 

from New York. 

Mr. ACKERMAN. Thank you, Mr. Chairman. Mr. Becker, count me 

among those who are surprised you are here today and also impressed with the fact that you are here today. You have been very 

thoughtful with us. You were very forthright with me when I spoke 

to you when the story first broke in the New York Daily News, despite the fact that it was your scheduled last day to be on the job. 

And I appreciated that. 

Mr. BECKER. I was glad to do it. 

Mr. ACKERMAN. Am I correct in restating that it was your father 

who opened the account for your mother? 

Mr. BECKER. I believe so. I don’t know who else it could have 

been. I am quite certain that it wouldn’t have been my mother. 

Mr. ACKERMAN. It had to be somebody other than your mother, 

and that logically would have been your father? 

Mr. BECKER. Yes, it would have. 

Mr. ACKERMAN. Nobody else was going to give her half a million 

dollars in an account? 

Mr. BECKER. My father traveled from time to time. Nothing that 

I knew about. 

45 

Mr. ACKERMAN. He also opened accounts for charities that he 

gave money to? 

Mr. BECKER. I don’t know whether he opened accounts for charities. I know he gave money to charities. 

Mr. ACKERMAN. He had a particularly favorite charity in Westchester, a Jewish seminary; a rabbinical school? 

Mr. BECKER. Outside of Philadelphia. 

Mr. ACKERMAN. I am sorry, outside of Philadelphia. 

Mr. BECKER. It was a rabbinical school to which I believe he gave 

a great deal of money. 

Mr. ACKERMAN. He gave a great deal of money to them. They did 

have a Madoff account that they sold the year after he died, I understand. 

Mr. BECKER. As I mentioned to you on the telephone in February, that is the first I had heard of it. It may be that someone 

that he knew there was recommended— 

Mr. ACKERMAN. But he endowed that seminary. 

Mr. BECKER. He contributed money to them. They were endowed 

from many sources. 

Mr. ACKERMAN. Did your father know Madoff? 

Mr. BECKER. No. I shouldn’t say that. I would be amazed if he 

did. 

Mr. ACKERMAN. You do not know how he or your mother wound 

up with a Madoff account? The Madoff game was, he played hard 

to get. You had to know somebody who knew somebody. 

Mr. BECKER. I don’t know. When you are 85 years old and you 

have a lot of money to invest—$500,000—I suspect it was much 

easier than it appeared. 

Mr. ACKERMAN. Would you have thought your father had a reason to know that it was a Ponzi scheme? 

Mr. BECKER. My father? No. My father was the most ethical man 

I have ever met. And I am 64 years old, so there still may be others. But, no. 

Mr. ACKERMAN. Your mother would not have suspected that she 

had an investment in a Ponzi scheme? 

Mr. BECKER. No. 

Mr. ACKERMAN. When did you suspect that Madoff was a Ponzi 

scheme? 

Mr. BECKER. I never suspected until I read it in the newspapers 

or however—when it broke. 

Mr. ACKERMAN. You knew who Madoff was? 

Mr. BECKER. I had heard the name when I was at the SEC the 

first time, that— 

Mr. ACKERMAN. There were indeed reports to the SEC that it 

was a Ponzi scheme by Mr. Markopolos and others? 

Mr. BECKER. Not that I saw, not that I heard of. We now know 

there were. But I had no idea of that. 

Mr. ACKERMAN. So you had no way of knowing or should have 

known that it was a Ponzi scheme. 

Mr. BECKER. That is correct. 

Mr. ACKERMAN. Could anybody have known that it was a Ponzi 

scheme? 

46 

Mr. BECKER. Could anybody? I think once the thought enters 

your mind that it is a Ponzi scheme, it is not that hard to figure 

out. 

Mr. ACKERMAN. When it was brought to your attention by Annette Nazareth that there was an alternative view to last statement, she brought the case to your attention, is that not accurate? 

Mr. BECKER. I don’t want to insult Ms. Nazareth—and she may 

be sorry to hear this—but I don’t remember that she brought anything to my attention on this. I remember other lawyers who were 

involved. 

Mr. ACKERMAN. I think the report had stated that she wrote a 

letter on behalf of her clients. 

Mr. BECKER. That is interesting. That is, I have to say, a characteristic of this report. She was one of, I don’t know, 10, 12 signatories to that letter. She didn’t write the letter. 

Mr. ACKERMAN. But there were others who had that view? 

Mr. BECKER. Yes. 

Mr. ACKERMAN. Indeed, there is a subcommittee Chair on our 

committee who has a bill that says that we should be using that 

methodology. 

Mr. BECKER. Yes. I am aware of that. 

Mr. ACKERMAN. If you had gone along with that suggestion, 

which is a bill before this Congress, and proposed by people and 

written to the Commission, among others, if you had adopted that 

view, you would have been a greater beneficiary? 

Mr. BECKER. That is what I have been told. I guess that is correct. But, frankly, the thought never crossed my mind. 

Mr. ACKERMAN. Why did you decide that the view should be the 

cost of money? 

Mr. BECKER. We struggled through that literally for months. We 

were very worried about the impact of this. 

Mr. ACKERMAN. You knew at that time you were the beneficiary 

of an account? 

Mr. BECKER. I knew I was the beneficiary—I knew that I got 

money from my mother’s estate. I didn’t get an account. 

Mr. ACKERMAN. Your brother handled it, from what you said, 

and your brother never said there was a $2 million account? 

Mr. BECKER. I learned that in February of 2009. 

Mr. ACKERMAN. At the same time you came back to the SEC, the 

same month? 

Mr. BECKER. Slightly before, yes. I had already agreed to come 

to the SEC. 

Mr. ACKERMAN. Your brother liquidated a $2 million asset within 

an account to which you were a beneficiary without you knowing 

there was even that account. Is that what you are telling us? 

Mr. BECKER. That is exactly what I am telling you. 

Mr. ACKERMAN. There was a lot more money in that account, 

that $2 million was not a significant thing to tell you? 

Mr. BECKER. I don’t know why my brother didn’t tell me. I think 

the money, when he did tell me about it, was basically he called 

me up and said, isn’t this interesting, in effect. This guy Madoff, 

we sold out of his account to pay estate taxes a few years ago. That 

is all he told me. And that is when he told me. 

47 

Mr. ACKERMAN. And at that point, you felt no compunction to reveal that again—is that when you revealed it to the ethics people? 

Mr. BECKER. Yes, pretty much. Yes. When I arrived at the SEC, 

I sat down with them for, I don’t know, an hour, 2 hours, and reviewed anything and everything. 

Mr. ACKERMAN. And you knew what clawback was at that time? 

Mr. BECKER. Yes, I knew what it was. 

Mr. ACKERMAN. Do you think that the people in the ethics business knew what clawback was at that time? 

Mr. BECKER. I don’t know the answer to that. 

Mr. ACKERMAN. They are not necessarily the sophisticated person 

in finance as are you, though? 

Mr. BECKER. I really don’t know what they knew. 

Mr. ACKERMAN. But even though there was only a slight possibility of you being subject to clawback, you did not think that it 

was appropriate to suggest to them that you might have that problem? 

Mr. BECKER. Oh, I am sure that when it became relevant to anything that I was doing, that I did mention that to them. 

Mr. ACKERMAN. You went back to them and told them that you 

might be subject to clawback? 

Mr. BECKER. Absolutely. 

Mr. ACKERMAN. And they did not suggest at that time a different 

answer than they gave you the first time? Because if there was 

clawback, you would be subjected to legal action. 

Mr. BECKER. No. No, they didn’t. The short answer is no, they 

didn’t. 

Mr. ACKERMAN. My time is up, Mr. Chairman. 

Chairman NEUGEBAUER. I thank the gentleman. 

Now, Chairman McHenry. 

Chairman MCHENRY. Thank you. The Commissioners all told the 

Inspector General in his report that by November 9, 2009, when 

you recommended the constant dollar approach to them, that they 

understood that this choice would affect the amount that the trustees could seek in clawbacks. Did you? 

Mr. BECKER. No, I didn’t. I read the Inspector General’s report 

in reference to all sorts of things, conversations that apparently 

took place before I got to the SEC. And no, I did not know that. 

Chairman MCHENRY. You did not know that the Commissioners 

testified knew what effect the amount the trustees could seek in a 

clawback. You didn’t know this? 

Mr. BECKER. That is correct. And I have to say— 

Chairman MCHENRY. I wasn’t saying like your account. I am just 

saying generally speaking that this constant dollar approach would 

affect the value of what they could seek in clawbacks. 

Mr. BECKER. The only area that we as an office and I as a 

human thought about that was clawing back moneys that had been 

paid by SIPC. I am not sure at all that in fact the definition of net 

equity will control what you can get in clawback cases. I know very 

well that if I were representing the trustee, there are a lot of arguments I could come up with that it wouldn’t. 

Chairman MCHENRY. That is being argued right now in court. 

Mr. BECKER. Yes. 

48 

Chairman MCHENRY. Now, in terms of, you said that the possibility of a clawback for the account you are an heir to was remote, 

right? 

Mr. BECKER. I thought of it as remote. 

Chairman MCHENRY. In February of 2009, just for context. 

Mr. BECKER. Correct. 

Chairman MCHENRY. This is what I am trying to understand. 

Mr. BECKER. Sure. 

Chairman MCHENRY. The SEC Commissioners within the IG’s 

report say that they are angry that you didn’t disclose this to them. 

They were your client, in essence. You are General Counsel. But 

you disclosed this as a matter of optics, is really the discussion; as 

a matter of appearance, to the Legislative Affairs Office. You mentioned it to the Chairman at the very beginning. You went to the 

Ethics Office. They said it was fine. But then you bring it up later 

to the Legislative Affairs Office. Why not just tell the SEC Commissioners? 

Mr. BECKER. I don’t remember considering telling this to the 

SEC Commissioners. I will say that this is a different arena requiring different judgments. Frankly, when you are testifying in front 

of Congress, politicians have been known to be political. You think 

about things differently than when you think about simply what do 

I need to tell my clients. I was out of my depth when it came to 

political judgments. 

Chairman MCHENRY. Interesting. I just have to ask you this. 

Mr. BECKER. Sure. 

Chairman MCHENRY. With the mess that you were coming back 

to the SEC to help clean up, which is the ramifications of this missing Madoff, right? Why not just recuse yourself? Why not just say, 

look, I know Ethics says I am fine. I have disclosed this to the 

Chairman. You know what, it is such a hot button issue, and this 

is the SEC. We want to be above reproach. I am just going to 

recuse myself. 

Why wouldn’t you do that? 

Mr. BECKER. I think that is a great question, and I am glad— 

Chairman MCHENRY. Thank you. I thought so, too. 

Mr. BECKER. Excellent. So we agree on that. There are two sides 

of this. If I am looking—I am trying to think of a delicate way to 

put this. I worry sometimes that people spend too much time worrying about covering their rear ends rather than doing the right 

thing. I had a job. And I wanted to do my job. Sure, if my principal 

concern was I want to take no risk that I am going to be criticized 

and the agency is going to be criticized, that is what I would have 

done. But the risk that what would happen happened, that this 

would get all this press, that David Kotz would write a dreadful 

report, and that we have two hearings on the same subject did not 

occur to me. 

Chairman MCHENRY. So you just didn’t consider recusing yourself? 

Mr. BECKER. Oh, I considered it. That is why I sought guidance 

from Ethics. I was told, in effect, there was no need for me to 

recuse myself. 

Chairman MCHENRY. Have you recused yourself previously? 

49 

Mr. BECKER. I would say when I was at the SEC, I recused myself 50, 100 times from things. 

Chairman MCHENRY. Was it because Ethics Counsel said you 

must every time? 

Mr. BECKER. I would never say never to any question, but I 

would say certainly the vast majority of the times. 

Chairman MCHENRY. Were there some where you just said, out 

of appearance sake, I shouldn’t. So I should recuse myself. 

Mr. BECKER. I can’t remember a time when I didn’t follow the 

advice of Ethics. And frankly, Inspector General Kotz mentioned 

that I got treated differently from other people, and he couldn’t be 

more wrong. But yes, I always followed Ethics’ advice. I guess as 

a lawyer, I expect my clients to follow my advice. And as a nonhypocrite, I behave the same way. 

Chairman MCHENRY. And because you are a member of the Bar, 

you should have a higher ethical standard as well? 

Mr. BECKER. I will match my ethical standards against anybody 

in this room in a heartbeat. 

Chairman MCHENRY. Do you see how people have a problem 

with the appearance that you are an heir to a Madoff account, that 

a decision that you recommended to the SEC, a governmental regulator, then affected your financial well-being, even if it is small? Do 

you think that is a problem? 

Mr. BECKER. The problem with this is the standard that you are 

using as sort of an appearance standard is it is almost like a perpetual motion machine. You say, I think it is a problem, so it must 

not look good. And in truth, over my career, I have been pretty 

careful about ethical matters. I do see what has happened. I am 

not pleased about what has happened. I think that there is a whole 

range of reactions ranging from absolutely sincere to a lack of understanding as to the facts, a lack of understanding as to the legal 

standards, and some people whose motives I must say I don’t trust 

entirely. 

Chairman MCHENRY. Finally—thanks for the Chair’s indulgence—knowing that you were subject to a clawback, knowing that 

if you knew just that fact, would you have recused yourself? 

Mr. BECKER. If you mean subject to a clawback that I was—that 

someone was going to institute an action against me, I do believe 

I would have recused myself. 

Chairman MCHENRY. Okay. Thank you. 

Chairman NEUGEBAUER. I thank the gentleman. The gentleman 

from New York, Mr. Ackerman. 

Mr. ACKERMAN. You were in the agency previously? 

Mr. BECKER. Yes. 

Mr. ACKERMAN. You left? 

Mr. BECKER. Yes. 

Mr. ACKERMAN. You went into the private sector? 

Mr. BECKER. Yes. 

Mr. ACKERMAN. You were earning a lot of money. Why did you 

come back? 

Mr. BECKER. It is sort of hard to answer that in a non-self-serving way. I came back because Mary Shapiro asked me to, because 

I care a lot about what the agency does, because I saw Madoff— 

Madoff was a kick in the gut to the agency. I represented clients 

50 

before the agency for a long time, and I thought the agency needed 

to look at things differently and do things differently. And I 

thought it was my duty to do it. Mary called me up and her words 

were, David, your country needs you. How do you refuse that? 

Mr. ACKERMAN. You came back because it was a challenge? 

Mr. BECKER. That, too. 

Mr. ACKERMAN. You came back because your talents were needed? 

Mr. BECKER. I was flattered into believing that, yes. 

Mr. ACKERMAN. If you would have recused yourself, you would 

have taken yourself out of the action and your ability to help, 

which is the reason you came back, evidently? 

Mr. BECKER. I think that is correct, yes. 

Mr. ACKERMAN. In your exuberance to do that, do you think that 

colored your view as to whether or not you should have recused 

yourself? 

Mr. BECKER. That is why I didn’t rely on my view. That is why 

I basically had someone else make the decision. Because I truly believe when it comes to one’s own conduct, no one is a very good 

judge. 

Mr. ACKERMAN. The fact that you stood to gain even what to you 

might be a small amount didn’t color your view to make that decision to go with constant dollars or the cost of money, or however 

you want to phrase it? 

Mr. BECKER. I can honestly say I did not give that a thought. 

Mr. ACKERMAN. Why did you decide that constant dollars was 

the best of the various proposals? In support of that, you wrote an 

amicus, submitted it to the court, supporting that position. Why did 

you think that was the best way to go? 

Mr. BECKER. Our attitude, frankly, was to find theories that 

would enable us to get as much money as possible within the law 

to victims. And we sort of bumped around into other things— 

among other things and we came up with something. We came up 

with constant dollar, and the more I thought about it, the more I 

became convinced that where I had judged I would say that is the 

right interpretation of the law. So I said, let’s go with it. 

Mr. ACKERMAN. I will reveal to you that I am among a group of 

people and the main sponsor of legislation because I came to the 

same conclusion you did and thought that would help the greatest 

number of people who were Madoff victims and have introduced 

legislation to use constant dollar. So I have now laid that on the 

table and revealed it. 

If I now said to you that I discovered that I have a Madoff account, what do you think I should do? I just made that up, by the 

way. 

Mr. BECKER. Yes. I think it is time to sell it. I don’t know. 

Mr. ACKERMAN. I made the second part up. The first part is true. 

My question is, is it easier to see it on me than it is on yourself? 

Mr. BECKER. I think that is a fair question, and this is a part 

of the country in which one’s motives are constantly questioned, 

and as I said, I did not see this coming, and if I had, it might well 

have affected my judgment. 

Mr. ACKERMAN. Nobody asked me but I will tell you what I 

think. I think you got blindsided slightly while trying to do the 

51 

right thing and are paying a personal price for it, and that is politics and it happens here very often. But if I am a judge—and I am 

not and I hope you don’t have to have a real one give you a determination—but it seems to me that you acted on the best of instincts in exercising judgment that some people may want to question for political reasons and for judgmental reasons and appropriate reasons as well, but if it means anything—and it certainly 

doesn’t in a court of law—but I think your dad would be proud of 

you. 

Mr. BECKER. Thank you very much. That is a very kind thing to 

say. 

Chairman NEUGEBAUER. I thank the gentleman, and now Chairman McHenry. 

Chairman MCHENRY. Thank you. I just have a few questions. 

Commissioner Nazareth was mentioned earlier in the testimony 

and early in questioning, and I just wanted to ask you about this 

because former SEC Commissioner Annette Nazareth told the Inspector General that she knew that you had received proceeds of 

your late mother’s Madoff account; is that true? 

Mr. BECKER. She says it; it must be true. I have no recollection 

of that, but she is a completely honest woman. 

Chairman MCHENRY. Did you discuss your mother’s Madoff accounts with Commissioner Nazareth? 

Mr. BECKER. As I say, she—if she says so, it must be true. I don’t 

have any recollection of it. 

Chairman MCHENRY. Okay. And so by your own omission, according to the SEC’s Inspector General’s report, that is what she 

said. So when she is an attorney and these other lawyers wrote in 

May of 2009, looking through the typical correspondence with SEC, 

it was a little odd that it was directed to you as the General Counsel rather than the Chairman or the board but— 

Mr. BECKER. No, not at all. It is asking for the SEC to take a 

certain position in court, and so I would be the one who got that. 

Chairman MCHENRY. Oh, okay. Then I will accept what you are 

saying, but they asked for a particular intervention on the Madoff’s 

trustee’s choice of an account evaluation, the last account statement method, didn’t she, if you recall? 

Mr. BECKER. I believe so, yes. 

Chairman MCHENRY. Okay. So isn’t—did you consider your—the 

account you are an heir to in light of this, did this enter into your 

thought process when you were considering this? 

Mr. BECKER. First of all, I wasn’t the heir to an account. I got 

a check—I got a check that included— 

Chairman MCHENRY. You were the heir to the proceeds of the account. I am so sorry, but it is a big difference. 

Mr. BECKER. And I got a check and the proceeds of that—and 

that check included money that apparently came from an account 

that I didn’t know anything about. That letter was what led me to 

consult with the Ethics Office. So, yes, I did consider that. 

Chairman MCHENRY. Okay. So you consulted in May of 2009 

with the Ethics Office? 

Mr. BECKER. I consulted twice. I consulted at or about the time 

I came and on this particular matter in May. 

Chairman MCHENRY. Okay. And they cleared you again? 

52 

Mr. BECKER. Yes. 

Chairman MCHENRY. Okay. So did you consider—so obviously— 

so you considered that this could have an effect on you at that 

point or potentially? 

Mr. BECKER. I considered, as my email says, that it was conceivable that it could have an effect. 

Chairman MCHENRY. Okay. So why didn’t you recuse yourself at 

that point? 

Mr. BECKER. Because there are all sorts of things that are conceivable, and it is all about probability, and based—I did not know 

facts. I basically put all the facts in front of the Ethics Office, said 

here is what I know, advise me as to whether this falls within the 

relevant statute and rule, and I was told, no, it doesn’t. 

Chairman MCHENRY. Okay. And you said that you—that certain 

items about this, about the proceeds of this account which you were 

the heir of, just to say it correctly, that you didn’t know it was 

knowable to have this information about the account? 

Mr. BECKER. Correct. 

Chairman MCHENRY. Why not in May when this came up and 

you went back to the Ethics Office did you ask further questions 

of your brother, executor of the estate? 

Mr. BECKER. I don’t remember what I asked my brother and 

whether I did or I didn’t. I now know for certain that he did not 

know and simply did not have the information as—when the account was opened and how much was put into the account. So that 

information just wasn’t available. 

Chairman MCHENRY. In terms of estate tax, that wasn’t important information? 

Mr. BECKER. No. Estate tax isn’t based on the gain during the 

lifetime of the decedent. It values the assets as of the time of 

death. So it was not relevant at all. 

Chairman MCHENRY. Okay. Do you think it was troubling, 

though, that Commissioner Nazareth, knowing that you had received these proceeds of a Madoff account, that you could be subject 

to this clawback, do you think that was—and actually taking official action, do you think that is questionable? 

Mr. BECKER. I think you are attributing a lot of knowledge to me 

and all knowledge that I had to Commissioner Nazareth, and I 

doubt that was the case. I am a professional. Commissioner Nazareth is a professional. We represent clients, and we advocate the 

views of clients, and had she thought about it, I am sure she would 

have thought that recusal or not was between me and the Ethics 

Office. I don’t know that she thought about it. 

Chairman MCHENRY. Okay. Professionals make mistakes. 

Mr. BECKER. Yes, they do, and thank God for that or I wouldn’t 

have a living. 

Chairman MCHENRY. That is correct. But knowing what you 

know now, you would have recused yourself, wouldn’t you? 

Mr. BECKER. No—you say knowing what I know now, if I knew 

that I was going to be sued, sure. 

Chairman MCHENRY. You are testifying before Congress because 

of this appearance of impropriety. You have an Inspector General’s 

report that has been referred to the Justice Department because of 

53 

this. You have been sued. You would recuse—if you were able to 

rewind the tape, would you have recused yourself? 

Mr. BECKER. I would have recused myself if I knew I was going 

to be sued for legal reasons. The fact that Inspector General Kotz 

is making a big fuss about having sent something to the Justice 

Department doesn’t move the needle as far as I am concerned. I 

have seen Inspector General Kotz do this before, make a big fuss, 

lots of publicity about sending reports to the Justice Department. 

Nothing has happened with any of them, and some of them that 

I recall from my time at the SEC were laughable. 

Chairman MCHENRY. Is this laughable? 

Mr. BECKER. They say comedy is what happens to someone else 

and tragedy is what happens to you. So this is a tragedy. 

Chairman MCHENRY. Should I review it as a comedy? 

Mr. BECKER. I think you should review this as someone who 

shoots straight, did what he was supposed to do, and is not deserving of the type of public criticism that he has gotten. That is how 

I think you ought to look at this. 

Chairman MCHENRY. Thank you. 

Chairman NEUGEBAUER. I thank the gentleman. I also want to 

thank the gentleman for having the joint hearing with us. I think 

it has been a very good day. We have had a lot of good testimony. 

Mr. Becker, we appreciate you coming. 

Mr. BECKER. My pleasure. 

Chairman NEUGEBAUER. And for giving us your time. The Chair 

notes that members may have additional questions for this panel 

which they may wish to submit in writing. Without objection, the 

hearing record will remain open for 30 days for members to submit 

written questions to these witnesses and to place their responses 

in the record, and Mr. Capuano, thank you. 

This hearing is adjourned. 

[Whereupon, at 6:53 p.m., the hearing was adjourned.] 

(55) 

A P P E N D I X 

September 22, 2011 

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