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[Senate Hearing 114-163]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 114-163

      OVERSIGHT OF THE SECURITIES INVESTOR PROTECTION CORPORATION

=======================================================================

                                 HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                 SECURITIES, INSURANCE, AND INVESTMENT

                                 OF THE

                              COMMITTEE ON
                   BANKING,HOUSING,AND URBAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                                   ON

   EXAMINING THE SECURITIES INVESTOR PROTECTION CORPORATION'S (SIPC) 
CONTINUING OVERSIGHT AND PROTECTION OF INVESTORS, THE AGENCY'S RESPONSE 
TO RECENT CLAIMS AND CUSTOMER PROTECTION, AND CONSIDERING THE NEED FOR 
                  ANY SPECIFIC SIPC REFORMS TO BE MADE

                               __________

                           SEPTEMBER 30, 2015

                               __________

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                                Affairs
                                
                                
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            COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS

                  RICHARD C. SHELBY, Alabama, Chairman

MIKE CRAPO, Idaho                    SHERROD BROWN, Ohio
BOB CORKER, Tennessee                JACK REED, Rhode Island
DAVID VITTER, Louisiana              CHARLES E. SCHUMER, New York
PATRICK J. TOOMEY, Pennsylvania      ROBERT MENENDEZ, New Jersey
MARK KIRK, Illinois                  JON TESTER, Montana
DEAN HELLER, Nevada                  MARK R. WARNER, Virginia
TIM SCOTT, South Carolina            JEFF MERKLEY, Oregon
BEN SASSE, Nebraska                  ELIZABETH WARREN, Massachusetts
TOM COTTON, Arkansas                 HEIDI HEITKAMP, North Dakota
MIKE ROUNDS, South Dakota            JOE DONNELLY, Indiana
JERRY MORAN, Kansas

           William D. Duhnke III, Staff Director and Counsel

                 Mark Powden, Democratic Staff Director

                       Dawn Ratliff, Chief Clerk

                      Troy Cornell, Hearing Clerk

                      Shelvin Simmons, IT Director

                          Jim Crowell, Editor

                                 ______

         Subcommittee on Securities, Insurance, and Investment

                      MIKE CRAPO, Idaho, Chairman

          MARK R. WARNER, Virginia, Ranking Democratic Member

BOB CORKER, Tennessee                JACK REED, Rhode Island
DAVID VITTER, Louisiana              CHARLES E. SCHUMER, New York
PATRICK J. TOOMEY, Pennsylvania      ROBERT MENENDEZ, New Jersey
MARK KIRK, Illinois                  JON TESTER, Montana
TIM SCOTT, South Carolina            ELIZABETH WARREN, Massachusetts
BEN SASSE, Nebraska                  JOE DONNELLY, Indiana
JERRY MORAN, Kansas

               Gregg Richard, Subcommittee Staff Director

           Milan Dalal, Democratic Subcommittee Staff Director

                            C O N T E N T S

                              ----------                              

                     WEDNESDAY, SEPTEMBER 30, 2015

                                                                   Page

Opening statement of Chairman Crapo..............................     1

Opening statements, comments, or prepared statements of:
    Senator Warner...............................................     1
    Senator Vitter...............................................     2

                               WITNESSES

Stephen P. Harbeck, President and CEO, Securities Investor 
  Protection Corporation.........................................     3
    Prepared statement...........................................    21
Sigmund S. Wissner-Gross, Esq., Senior Partner, Brown Rudnick LLP     5
    Prepared statement...........................................    40
J.W. Verret, Assistant Professor of Law, George Mason University 
  School of Law, and Senior Scholar, Mercatus Center at George 
  Mason University...............................................     7
    Prepared statement...........................................    69
James W. Giddens, Partner, Hughes Hubbard & Reed LLP, and 
  Trustee, SIPA Liquidations of Lehman Brothers Inc. and MF 
  Global Inc.....................................................     9
    Prepared statement...........................................    70

              Additional Material Supplied for the Record

Prepared statement of Richard R. Cheatham........................    73
Prepared statement of Laurence Kotlikoff.........................    77

                                 (iii)

 
      OVERSIGHT OF THE SECURITIES INVESTOR PROTECTION CORPORATION

                              ----------                              

                     WEDNESDAY, SEPTEMBER 30, 2015

                                       U.S. Senate,
                     Subcommittee on Securities, Insurance,
                                            and Investment,
          Committee on Banking, Housing, and Urban Affairs,
                                                    Washington, DC.
    The Subcommittee convened at 10:16 a.m., in room 538, 
Dirksen Senate Office Building, Hon. Mike Crapo, Chairman of 
the Subcommittee, presiding.

            OPENING STATEMENT OF SENATOR MIKE CRAPO

    Senator Crapo. This hearing will come to order.
    I, first of all, want to thank my colleague and Ranking 
Member Senator Warner for his help in working together with us 
on this hearing, and also, I would like to thank Senator Vitter 
for encouraging our Subcommittee to hold an oversight hearing 
on the Securities Investor Protection Corporation, known as 
SIPC, and also thank you, Senator Vitter, for your efforts to 
help the investors.
    SIPC was created by Congress in 1970 to oversee the 
liquidation of member broker-dealers that close when the 
broker-dealer is bankrupt or in financial trouble and customer 
assets are missing. In recent years, SIPC has been the center 
of attention because of the financial trouble and failure of 
Lehman Brothers, Bernie Madoff Investment Securities, MF 
Global, and Stanford Investment Group. Each event has had a 
lasting effect on investors, the broader sanction, and has 
highlighted the function of the SIPC.
    Today, we continue that discussion with our expert 
witnesses. Specifically, how is SIPC protecting investors? 
Specifically, how has SIPC responded to recent claims and 
customer protection? And are there any specific SIPC reforms 
that we should consider or that SIPC should consider and why?
    I look forward to the testimony of our witnesses today. I 
think that we have got a very strong panel of strong witnesses 
who understand this issue well and will give us strong advice.
    And with that, let me turn it to you, Senator Warner, if 
you have any opening statement.

              STATEMENT OF SENATOR MARK R. WARNER

    Senator Warner. Well, thank you, Mr. Chairman. I want to 
also thank you for holding this hearing and echo what you said 
about Senator Vitter.
    This is an area--we have heard of SIPC. Frankly, 
unfortunately, I think we all kind of heard more about it than 
we perhaps wanted to hear about it and post-Madoff, Stanford, 
some of the other schemes that have taken place, I am curious 
to learn more about the fact that different types of 
securities, cash, CDs, others, seem to have different levels of 
protection. So, I am anxious to see where we might see reforms.
    I do think it is interesting to note that 7 years after the 
Madoff fraud, only 10 percent of investment advisors are 
examined annually. That, to me, raises some questions about if 
we are going to be prophylactic going forward. Rather than 
simply trying to make sure we rectify things after the fact, we 
do need some ability to be more proactive on the front end.
    So, Mr. Chairman, I have got other comments. I will keep 
those in reserve so that we can move to the witnesses and get 
to the questions. Thank you.
    Senator Crapo. Thank you, Senator Warner, and I do 
understand, Senator Vitter, that you would like to make an 
opening statement, as well.
    Senator Vitter. If I could, Mr. Chairman.
    Senator Crapo. Certainly.

               STATEMENT OF SENATOR DAVID VITTER

    Senator Vitter. Thank you very much.
    First, I would like to make a few items part of the record 
by unanimous consent. The first is a statement from Richard 
Sheedam, an investor who has filed a lawsuit disputing SIPC's 
statement of facts with the SEC on the Stanford issue.
    And the second is a statement of Dr. Laurence Kotlikoff, 
who was scheduled to testify at a similar hearing on SIPC 
oversight before this Committee earlier this year, but that was 
rescheduled, and his statement as prepared for delivery.
    Senator Crapo. Without objection.
    Senator Vitter. Thank you.
    Chairman Crapo and Ranking Member Warner, I want to thank 
both of you for holding this important hearing on SIPC 
oversight today. I can tell you, not enough attention is paid 
in Congress to SIPC and Wall Street has noticed. Wall Street 
basically runs SIPC their way, and I believe investors really 
need to beware.
    I want to take just a minute before we start to underscore 
an important point that Dr. Kotlikoff makes in his testimony 
when he says, quote, ``Today, no investor can be confident 
their assets are protected by SIPC as Congress intended when 
SIPA was enacted,'' and I think that is the bottom line and 
that should concern all of us. I want to associate myself with 
those remarks.
    I think it is important for investors to notice, because 
broker-dealers across the country plaster the SIPC logo across 
their doors and their Web sites and all of their literature. 
Investors are led to believe that if the broker-dealer fails, 
SIPC will be there to help them. I can tell you from bitter 
experience watching the Stanford case, trying to help those 
victims however I can that this is just patently false. 
Congress owes it to investors to act and to change this. We 
need to decide if we are going to restore SIPC to what Congress 
intended in the 1970s. Otherwise, we just as soon abolish it.
    The status quo is a really perverse and rigged system that 
allows Wall Street to suck in innocent investors with these 
promises that someone is looking out for them to ensure that 
the system is set up fairly. But then when push comes to shove, 
SIPC can easily deny those claims for customer protection. Only 
the lucky few who can find their way into a court with the 
right kind of experience in these complex transactions has any 
hope of relief. Most of the victims are forced to return to 
work with their life savings evaporated.
    Now, Mr. Harbeck in his statement suggests that the Senate 
really needs to act on current SIPC nominees. The first 
nominee, Leslie Bains, is a Managing Director at CITI and used 
to work at Chase Manhattan Bank and HSBC. The second nominee, 
John Mendez, is an equity partner at Latham and Watkins LLP. 
While they may be perfectly nice people, I do not think they 
bring the necessary track record of reform and investor 
protection to SIPC that is desperately needed. If they are 
confirmed without reforming SIPC, Ms. Bains would continue her 
day job, for instance, at CITI. Mr. Mendez would continue to be 
an equity partner at a firm that has grown into a very 
significant securities litigation practice, including 
securities class action, shareholder litigation defense, and 
white collar criminal matters.
    I can assure you, those two nominations will not be 
confirmed until there is real reform at SIPC. We all saw the 
trouble that Sharon Bowen had getting confirmed at the CFTC. 
These nominees, in my opinion, are more of the same. The 
President needs to nominate two individuals with a track record 
of reform and investor protection, and we need to act on SIPC 
reform.
    Thank you, Chairman Crapo, for holding this hearing, and to 
our witnesses on the panel for being here. I look forward to 
our discussion.
    Senator Crapo. Thank you very much, Senator Vitter.
    Senator Reed, do you care to make an opening statement?
    Senator Reed. No.
    Senator Crapo. All right. Thank you very much.
    With that, then, we will turn to our witnesses. We have 
with us today, as I indicated, four very solid witnesses: Mr. 
Stephen Harbeck, President and CEO of SIPC; Mr. Sigmund 
Wissner-Gross, Counselor-at-Law at Brown Rudnick; Professor 
J.W. Verret, Assistant Professor of Law at George Mason 
University Law School; and Mr. James Giddens, Partner at Hughes 
Hubbard and Reed.
    Gentlemen, we will go in the order I have introduced you. 
You have probably already been informed of this. We have a 
little clock that tries to keep you to 5 minutes for your 
introductory remarks. We ask that you try to keep your 
introductory remarks to 5 minutes and allow us time for 
questioning.
    With that, let us begin. Mr. Harbeck.

STATEMENT OF STEPHEN P. HARBECK, PRESIDENT AND CEO, SECURITIES 
                INVESTOR PROTECTION CORPORATION

    Mr. Harbeck. Thank you, Mr. Chairman. Chairman Crapo, 
Ranking Member Warner, and Members of the Subcommittee, I
appreciate the opportunity to testify on the progress of the 
Securities Investor Protection Corporation since the beginning 
of the 2008 financial crisis. The Subcommittee has asked SIPC, 
how is SIPC protecting investors, how SIPC is responding to 
recent claims and customer protection, and if there are any 
reforms Congress should consider.
    The best way to describe how SIPC protects investors, 
responds to claims, and operates the customer protection regime 
mandated by statute is to provide you with an overview of 
SIPC's cases in the recent history. The narrative which 
follows, I think, demonstrates that SIPC has protected 
investors as contemplated by the Securities Investor Protection 
Act, known as SIPA, and I believe the results achieved to date 
are impressive given the challenges that the SIPC has faced.
    Let me turn to Lehman Brothers first. Lehman Brothers is 
the largest bankruptcy of any kind in history. With securities 
customer accounts essentially frozen and substantial customer 
assets at risk, SIPC initiated a customer protection proceeding 
on September 19, 2008. In response to the question, how does 
SIPC protect investors, I would note the following.
    That same day, in what was called the most important 
bankruptcy hearing in history, Bankruptcy Judge Peck approved 
the transfer of 110,000 customer accounts containing $92 
billion in assets to solvent brokerage firms. Judge Peck noted 
that he had heard credible evidence that without the ability to 
transfer those accounts under SIPA, securities markets 
worldwide could cease to function. SIPC is proud to have been a 
major actor in restoring investor confidence in the securities 
markets at that crucial time. The actual transfer of the 
accounts took place in the ensuing 10 days.
    Today, all Lehman Brothers customers have received 100 
percent of the contents of their securities accounts and 
general creditors have received a distribution of 35 percent. 
In short, the bankruptcy processes embedded in the Securities 
Investor Protection Act have worked well in a severe stress 
case.
    I would now turn to Bernard Madoff. That Ponzi scheme 
collapsed in December 2008, shortly after the failure of Lehman 
Brothers. SIPC's intervention resulted in advances to customers 
in the payment of administrative expenses which had results 
which were literally unimaginable at that time in 2008. Every 
customer who has left $975,000 or less with Madoff has received 
all of his or her money back from the trustee. Customers with 
larger claims have received 48 percent of their initial 
investments, and that means that a claimant with a $10 million 
claim against Bernard Madoff's firm has already received $5.3 
million when you take into account the addition of a 
distribution of customer property and advances from SIPC.
    SIPC made the determination that every piece of furniture 
in Madoff was purchased with stolen money, so the liquidation 
of all assets would go into customer property and not for the 
payment of administrative expenses. SIPC picks up all of those 
administrative expenses.
    In addition, substantial painstaking research by the 
trustee enabled the U.S. Attorney for the Southern District of 
New York to create a $4 billion forfeiture fund, which has not 
yet been distributed by the United States Attorney.
    Finally, in terms of the large cases SIPC has had, MF 
Global has had absolutely stunning results. I got a call at 
5:20 in the morning that customers of MF Global were in need of 
protection. That was the first time SIPC had ever heard of that 
need. After receiving authority from SIPC's Chairman within the 
hour, SIPC mobilized and initiated a liquidation proceeding 
that day. That was the eighth largest bankruptcy of any kind in 
history, larger in terms of assets than that of Chrysler. The 
results are, as I said, stunning. Each customer for both 
securities and commodities have received all of their assets, 
and general creditors have received 95 percent of their assets. 
In short, the process worked and it worked very well.
    In terms of SIPC's financial condition, SIPC now has $2.4 
billion, which is more money than SIPC has had to expend on all 
liquidations in its 45-year history. We believe we have 
sufficient assets, but we will continue to monitor the issue as 
to whether our assets are sufficient.
    Since December of 2012, SIPC has only had to initiate four 
new cases. Those new cases have cost SIPC $7 million. I would 
view that as a return to normal, because the large cases that 
we saw were out of the ordinary.
    I do urge the Committee to move on SIPC's nominees, and we 
can discuss that at a later time.
    There are some reforms that have been suggested by the task 
force. Our Board did consider them. Two of them, we are looking 
for an appropriate legislative vehicle to put in place. They 
are in the nature of technical amendments. Some of the larger 
suggestions of the task force report were studied and the Board 
decided not to take action with them for larger macroeconomic 
reasons relating to protection by the FDIC, for example.
    With respect to S. 67, my comments in my written statement 
stand for themselves, but I would be pleased to discuss them 
with you if you wish, and I would appreciate the opportunity to 
answer any of your questions.
    Senator Crapo. Thank you, Mr. Harbeck.
    Mr. Wissner-Gross.

 STATEMENT OF SIGMUND S. WISSNER-GROSS, ESQ., SENIOR PARTNER, 
                       BROWN RUDNICK LLP

    Mr. Wissner-Gross. Thank you, Mr. Chairman, and thank you 
for the opportunity to speak before this panel. My name is 
Sigmund Wissner-Gross. I am a senior partner at the law firm of 
Brown Rudnick LLP. I am here not on behalf of the firm, but in 
my individual capacity.
    I had the pleasure, at times the interesting experience, of 
litigating the New Times SIPA proceeding during the period from 
2000 through 2006. Mr. Giddens, who is here, was the trustee in 
that case. What I would like to do is focus my verbal remarks 
on some reforms that I think are needed. I will refer from my 
witness statement for the details of my experience in the New 
Times case, which, I think, illustrates many of the problems 
with SIPC.
    At the outset, let me say that I wholeheartedly endorse the 
way Senator Vitter has framed this situation. There is a real 
problem. The average investor has no idea that SIPC is not 
really the guarantor of its investments. The average investor 
thinks that the SIPC logo on their brokerage statement is akin 
to an FDIC-insured institution. It is not.
    SIPA is a carefully crafted statute that was created and 
passed in 1970 to address circumstances at the time. There have 
been a host of Ponzi schemes--terrible frauds--Stanford and 
others beyond Madoff, that really require a fresh look and a 
need for reform and amendment of the statute to more 
appropriately address the varied circumstances that defrauded 
investors experience.
    My case, New Times, was one, where we can get into it if 
the panel thinks it is appropriate, where all the victims had 
their funds misappropriated. They thought they had purchased 
either mutual fund shares or money market shares, all of which 
were never purchased, and I had to litigate for several years, 
ultimately succeeding, before the bankruptcy, the district 
court, the Second Circuit, to establish that victims who 
thought they had invested in fictitious or non-existent money 
market shares should have their claims treated as claims for 
securities, which at the time would have entitled them to 
$500,000 of coverage. At the time, a claim for cash was only 
allowed $100,000 of coverage, which, for those victims who had 
invested their life's savings, meant all the difference between 
getting some recovery or a significant recovery.
    Let me turn to what I think are some specific reforms that 
are needed. I concur with Mr. Giddens, and I do not want to 
steal his thunder on this, but I concur that SIPC's maximum 
coverage should be increased from $500,000 to $1.3 million. 
That is a sound recommendation. That reflects the fact that the 
times are different and there should be increased coverage.
    I also concur that there needs to be no distinction between 
claims for cash and claims for securities. That may have been a 
sensible distinction at the time of the passage of SIPA in 
1970. I, unfortunately, had to litigate and win on that issue 
before the Second Circuit. I concur with Mr. Giddens that that 
distinction is a distinction without a difference. Customers 
who have other claims for cash or securities should be entitled 
to coverage in the maximum amount available.
    But, I think more is needed, and I think the S. 67 does 
identify a number of very tangible specific reforms that are 
warranted.
    First, I think it is clear that the SEC, which has 
oversight, should have more than that. The SEC, clearly, in my 
view, should have the right, as well as SIPC, to apply for a 
protective decree with respect to a SIPA member. That 
prerogative should not be restricted to SIPC. While I think 
SIPC has done many great things, and Mr. Harbeck has identified 
some of the more notable achievements, the fact of the matter 
is that, in my experience, SIPC at times has taken a very 
narrow and unduly restrictive approach toward investor 
protection. SIPC does have a reputation in the legal 
marketplace as being very litigious, sometimes on an 
unwarranted basis, sometimes to try to establish a point of law 
when it should have exhibited pragmatism and effort to focus 
more on investor protection. I think it would be prudent to 
allow the SEC, which has oversight responsibility, to have the 
ability to appoint or seek to intervene in terms of a SIPA 
proceeding. The Stanford matter, that actually would have 
solved that situation.
    In addition, while I do not concur that trustees should be 
limited to one case, as proposed in S. 67, I think there is a 
significant issue about SIPC using the same trustees time and 
time again. While I respect Hughes Hubbard a great deal as a 
firm, my experience was that, in my litigation with them, they 
invariably looked to SIPC to guide them on particularly 
significant determinations and approaches and policies in the 
case, and my sense was that they always acted in tandem, but it 
was always the trustee acting essentially at the direction of 
SIPC. I think there needs to be some reform so that the trustee 
will, in fact, be independent and do the right thing.
    Finally, with respect to the investor, I appreciate that 
there is a lively debate about whether the rules proposed in S. 
67 in terms of net equity statements, of whether that should be 
a binding approach or another approach should apply. I think 
that there does need to be reform so that customer protection, 
it is advanced so that you do have with these Ponzi schemes a 
whole variety of ways in which customers are defrauded. In my 
experience, it is often the case that the statute does not 
apply on all foras. So, there needs to be a reform to make sure 
that people who have lost money, were innocent victims who, 
frankly, do not fit within the specific definitions or labels 
of the SIPA statute, are protected. I think S. 67 is an 
excellent start in that regard.
    Senator Crapo. Thank you, Mr. Wissner-Gross.
    Professor Verret.

 STATEMENT OF J.W. VERRET, ASSISTANT PROFESSOR OF LAW, GEORGE 
 MASON UNIVERSITY SCHOOL OF LAW, AND SENIOR SCHOLAR, MERCATUS 
               CENTER AT GEORGE MASON UNIVERSITY

    Mr. Verret. Chairman Crapo and Ranking Member Warner, I 
appreciate the opportunity to join you today to talk about this 
important issue. My name is J.W. Verret. As you mentioned, I 
teach at George Mason Law School, corporate and securities and 
banking law. I also serve as a Senior Scholar at the Mercatus 
Center, and until recently, I was Chief Economist and Senior 
Counsel for Chairman Hensarling at House Financial Services, 
where I first started to spend a significant amount of time on 
this issue.
    The explosive growth in federally backed loan and guarantee 
programs has been an appropriate focus of congressional 
oversight in recent years. OMB estimates the Federal Government 
supports over $3 trillion in loans and guarantees. These loans 
and guarantees are often shrouded by indirect Government 
support and unreasonable assumptions in Government accounting 
practices.
    I submit that SIPC's provision of securities custody 
insurance should be an appropriate part of that conversation. 
Government officials appoint SIPC Directors and SIPC enjoys 
access to a $2.5 billion line of credit with the Treasury 
Department. Some may argue that statutory language that SIPC, 
quote, ``SIPC shall not be an agency or establishment of the 
United States Government'' suggests otherwise, and we certainly 
all recall how similar statutory language in the GSEs proved 
entirely meaningless and nonbinding when those entities were 
placed under Federal conservatorship.
    Today, I will argue that privatization of SIPC's custodial 
insurance function is the best solution to protect American 
taxpayers and also is the best solution to insert a level of 
market discipline into SIPC's risk pricing for coverage. It 
will add an element of risk pricing, I think, under a private 
scheme. I will identify some unexplored solutions for victims 
of Ponzi schemes. And though I argue that privatization is 
certainly the first best solution, I am glad to constructively 
engage in this Committee's examination of additional reforms to 
SIPC.
    Most broker-dealers and members of national exchanges are 
required by statute to be members of SIPC, and SIPC is funded 
by assessments on its membership. SIPC thereby enjoys a 
statutory monopoly in the provision of securities custody 
insurance underneath the ceiling of its coverage.
    Now, some of my fellow panelists may argue that SIPC serves 
an important role as a specialized liquidator or receiver of 
broker-dealers and in overseeing that process. Now, assuming 
that argument is true for the sake of argument, it remains a 
tall leap of logic to further contend that a Government 
monopoly in the provision of securities custody insurance is 
thereby warranted.
    SIPC's Board is currently composed of both private sector 
and Government members. I submit--I will reiterate that 
privatization of SIPC's insurance function is the first best 
solution to the problems posed by the current structure of 
SIPC, and we might begin by lowering the ceiling of that 
coverage, where I would disagree with a couple of my fellow 
panelists. I find it hard to accept that a market failure 
necessitates a Government monopoly in this space, particularly 
in the current information era, an era very different from the 
1970s. In fact, there are underwriters at Lloyd's that will 
sell excess of SIPC coverage for the portion of that market not 
crowded out by SIPC.
    In the absence of full privatization, the public-private 
composition of SIPC's Board should not be viewed as a second-
best option. It would be better as a second-best option to 
officially recognize SIPC for the Government entity that it is, 
remove the private sector Board members, establish a similar 
level of congressional accountability to that required of other 
Government agencies, impose a term limit on its Chief Executive 
Officer, as is the case among SEC Commissioners, and also 
increase the level of the SEC's oversight of this entity.
    The controversy and subsequent litigation between the SEC 
and SIPC regarding the Stanford Ponzi scheme and issues with 
respect to the Madoff victim claims also suggest a warning 
label should be provided describing SIPC coverage that, quote, 
``SIPC coverage only applies under limited circumstances and 
SIPC reserves the right to deny claims despite reasonable 
expectations of coverage.''
    SIPC won the Stanford litigation because of a regrettable 
stipulation of fact by the SEC. In the Madoff litigation, SIPC 
utilized an aggressive valuation methodology from among a range 
of methods it had used in prior cases. My impression of both of 
those cases, in my professional opinion as a professor of 
securities law, is that they were close calls that might have 
come out either way. But it is also, nevertheless, very crystal 
clear to me that SIPC's aggressive litigation position was 
designed to minimize claims to a fund unprepared for them, 
which suggests a clear conflict of interest for the receivers, 
liquidators hired by SIPC and SIPC itself in the administration 
of this fund.
    I am not here today to relitigate those cases or to endorse 
particular legislation. I sympathize with the victims. I 
recognize they have been subjected to aggressive posturing by 
SIPC. But, I worry about action that might further entrench 
SIPC's monopoly. I would suggest instead looking at 
undistributed funds in the SEC's Fair Funds, undistributed 
funds that often sits in the CFPB's settlement awards, or 
banking settlement agreements with DOJ and HUD. There is a 
significant stash of money this Committee might consider to 
make those victims whole.
    I thank you for the opportunity to testify and I would just 
reiterate that the design of SIPA in the 1970s may have made 
sense in the 1970s. There were lots of ideas from the 1970s 
that made sense at the time that will not necessarily stand the 
test of time, like bell bottoms and the lava lamp. I think the 
design of SIPC from that era does not stand the test of time 
and needs to be reconsidered 40 years later. So, I thank you 
for the chance to testify.
    Senator Crapo. Thank you, Professor Verret.
    Mr. Giddens.

        STATEMENT OF JAMES W. GIDDENS, PARTNER, HUGHES 
 HUBBARD & REED LLP, AND TRUSTEE, SIPA LIQUIDATIONS OF LEHMAN 
                BROTHERS INC. AND MF GLOBAL INC.

    Mr. Giddens. Chairman Crapo, Ranking Member Warner, and 
Members of the Subcommittee, thank you for inviting me to 
testify.
    My testimony today is based on my experience with SIPA over 
the past 45 years, most recently as trustee for the Lehman and 
MF Global liquidations. In my experience, SIPA has succeeded in 
protecting customers in these cases, the two largest broker-
dealer failures in history and the greatest challenges to the 
statute.
    In Lehman and MF Global, the 110,000 and 36,000 customers, 
respectively, received 100 percent of their property. The 
customers of these failed entities included mom-and-pop 
investors, farmers and ranchers from all walks of life, from 
every jurisdiction in the country.
    With both Lehman and MF Global, we closely and 
systematically consulted not only with the SEC, but the CFTC, 
the Federal Reserve, and multiple congressional committees. We 
have appreciated their guidance. In Lehman, I was also grateful 
to have the support of Mr. Wissner-Gross, who publicly 
supported my and SIPC's position before the United States 
Supreme Court, seeking a review of a decision of the Second 
Circuit.
    However, I will say that, as with any statute, especially 
one implemented decades ago, I believe there is room for 
modernization and improvement. Consistent with my SIPA duty to 
advance customer protection, I would like to provide three 
considerations that may merit further study and, of course, 
input from regulators,
industry experts, and the public. A more complete discussion of 
these and 26 other recommendations is included in my written 
testimony, which incorporates the detailed public submissions 
of the SIPC Modernization Task Force as well as my own Lehman 
and MF Global reports and prior testimony before the Senate 
Banking and other congressional committees.
    First, as proposed by the task force, I strongly support 
increasing SIPC's maximum coverage from $500,000 to $1.3 
million. That simply corresponds to an increase through 
inflation from what was originally proposed in the 1970s. 
Future coverage limits should also be tied to inflation. This 
would immediately and significantly increase the protection for 
customers, especially those who are not large or professional 
investors.
    Second, also in the task force report, I propose 
eliminating the distinction between claims for cash and claims 
for securities. This reform would resolve the potential 
disparate treatment of customers and increase the amount of 
customer protection available.
    Finally, I believe consideration should also be given to 
expanding the borrowing and guarantee authority available to 
SIPC trustees and other liquidators. The SIPC fund has met the 
demands of all previous SIPA liquidations. However, the Lehman 
liquidation, in particular, demonstrated that just one failure 
of a SIPC member broker-dealer could require at least a 
temporary availability of much more substantial sums. The 
ability to quickly and efficiently return customer property in 
the early days of a liquidation would be enhanced if the 
borrowing limit were increased.
    In concluding, I believe that the SIPA statute has 
succeeded in protecting customers of SIPC member brokerage 
firms. I also believe the shared goal of continuing and 
strengthening protection of investors, particularly 
nonprofessional investors, can be achieved with improvements to 
the statute and related laws.
    Thank you, Chairman Crapo, Ranking Member Warner, and 
Members of the Subcommittee, for the opportunity to testify 
before you.
    Senator Crapo. Thank you, Mr. Giddens.
    I will start out with you, Mr. Harbeck, with some 
questions, and my first question relates to basically the 
appropriate amount for the SIPC fund. I think you indicated in 
your testimony it is currently at $2.4 billion, and I 
understand that the SIPC Board has set a target balance of $2.5 
billion, which matches the line of credit that SIPC has with 
the U.S. Treasury. How did you determine that $2.5 billion was 
the appropriate amount, and given some of the other testimony 
that we have heard today, is $2.5 billion the appropriate 
amount?
    Mr. Harbeck. Mr. Chairman, I can assure you that a subtext 
in every single SIPC Board meeting is whether SIPC has 
sufficient resources. In 2008, when we had $1.6 billion, we 
realized when the Madoff case fell in December of 2008 that we 
should turn on the assessment spigot. We did so. We have 
completed all of the functions required in Lehman Brothers and 
MF Global and Madoff with an expenditure of approximately $1.8 
billion to date. But, we have at the same time increased our 
resources from the 1.6 that we had in 2008 to 2.4.
    I know, based on past experience, that whenever we reach a 
plateau or a target, the Board of Directors takes a long hard 
look, and since that was 7 years ago when they set that target, 
that they will do so again.
    We currently have assessments on all SIPC members of one-
quarter of 1 percent of net operating revenues. That generates 
approximately $400 million a year. SIPC's resources currently, 
the existing $2.4 billion that we have, is sufficient to have 
satisfied all obligations in all cases in our history. With 
that, we are always open to other ways to finance in an 
emergency or to increase the fund if it becomes necessary.
    Senator Crapo. Well, thank you, Mr. Harbeck.
    For Mr. Wissner-Gross and Mr. Giddens, I appreciate your 
perspectives on how SIPC responded to the claims because of the 
financial trouble and failure of Lehman Brothers, Madoff, MF 
Global, Stanford, and New Times. What are the main take-aways 
about how SIPC responds to claims when a member firm fails 
because of fraud as opposed to other financial reasons?
    Mr. Wissner-Gross. If I could address that first, I do 
think, again, I think SIPC has done a fine job in many 
proceedings, but the ones that Mr. Harbeck has identified are 
three of the 328 SIPA proceedings that it has handled since 
1970, and my experience is primarily focused on New Times, so 
let me address that.
    I found that I actually had to fight at every step of the 
way to secure coverage in that case. It was not an atypical 
fraud claim. The Ponzi operator, a guy named Mr. Goren, had put 
several hundred elderly investors into a program where he 
basically embezzled their funds, gave them brokerage statements 
that confirmed that they had purchased mutual funds and money 
market shares, but had not, in fact, done that.
    My recollection is initially that SIPC refused to 
acknowledge customer status for any of them. So, my first job 
was I had to fight both to try to get the SEC as well as the 
bankruptcy judge involved to be supportive of the fact that 
there should be customer claim or customer status acknowledged. 
We ultimately, between the judge and SEC, I think, twisted 
SIPC's arm to--through Mr. Giddens, the trustee--to acknowledge 
that status.
    Having accomplished that, then every individual customer 
had to fight, in my view, with the SIPC trustee to acknowledge 
and determine the fact of whether they had invested funds, the 
amount of funds invested, and it was a very arduous process. We 
represented quite a number of those defrauded investors who 
were innocent beyond belief, and they included Holocaust 
survivors, retirees, and so forth, not atypical of defrauded 
investors in these schemes. Looking back on it, I would have 
preferred that there be more of a presumption of a desire to 
protect them in the first instance rather than to have those 
investors be put through the grill in terms of establishing 
coverage.
    I highlighted one particular investor in my remarks, where 
a woman named Mary Lee Stafford, who lost--who invested $75,000 
and had it embezzled as a result of a purchase of money market 
shares that were never purchased. Single mother, cancer victim. 
This was all the money she had, and SIPC and the trustee denied 
coverage. I fought it. The bankruptcy judge agreed with them. I 
appealed it to the district court. I got it reversed. And they 
should have, frankly, said, fine, let her get her money. It was 
$69,000 out of pocket. That was all of her life's savings. 
Instead, they appealed it to the Second Circuit, which was 
their prerogative, and they were successful, and in the end, 
she did not get anything in terms of coverage.
    To me, frankly, that was a shame, because I think this was 
in the gray area of coverage. She clearly could have been 
acknowledged as a claimant. I would like to see those kinds of 
things not happen in the future.
    Senator Crapo. Thank you.
    And, Mr. Giddens, my time has run out, but if you could 
briefly respond, I would appreciate that.
    Mr. Giddens. Yes. I have a different take on New Times. In 
New Times, there were about 1,000 securities customers. Ninety-
nine-point-nine percent of all those customers received all 
that they claimed on their claim forms and they were paid. SIPC 
advanced millions of dollars. There were only, I think, two 
claimants in the entire case who exceeded the limits of SIPC 
participation. And I am sympathetic to anyone who loses money 
in a Ponzi scheme and the like, but one of the difficulties 
here was--and it was a complicated case--that there was also a 
parallel SEC receivership going on with respect--at the same 
time as the SIPC proceedings.
    And from the 1970s on, one of the principles established in 
the SIPA statute was, from the beginning, that if you loaned 
money to the broker-dealer, that if you were a subordinated 
lender or otherwise a lender or had promissory notes, you were 
treated as a lender as opposed to a securities customer who 
deposited cash in securities.
    In the New Times case, the malefactor in that case 
persuaded many of the individuals--fraudulently--to purchase 
promissory notes from him individually, and these were not 
customer transactions. In that case, we also, to assist 
investors, did a substantive consolidation of certain entities 
because under bankruptcy principles, there was so much 
interrelationship of transactions and the like.
    So, overall, my view is, yes, there always--in any SIPC 
case, you have to apply the statute, and yes, based on 
precedence and the like, I think we applied the law correctly 
and I think the overall result was that virtually 99 percent of 
all those claimants received all that they claimed in New 
Times.
    Senator Crapo. Thank you very much.
    Senator Reed.
    Senator Reed. Well, thank you very much, Mr. Chairman, and 
gentlemen, thank you all for your testimony.
    Mr. Harbeck, it strikes me that they call you at 5:20 in 
the
morning after the other folks have failed, i.e., after 
regulators, and others who were supposed to be governing the 
conduct of these broker-dealers, failed. So, your role cannot 
be isolated from the operations of the SEC and other agencies. 
So, to what extent do you have any sort of insight into the 
broker-dealer activities that might--or any influence over 
their behaviors that might give you the tools to prevent rather 
than just respond to these crises?
    Mr. Harbeck. By design, SIPC is not a regulator. The 
regulatory regime in the United States has a Federal regulator, 
state regulators, self regulators, and Congress when it 
established SIPC made sure that we were not another regulator.
    That said, we work very, very closely with the SEC. The MF 
Global case did, in fact, come up suddenly, but we work hand-
in-glove with the SEC. Even throughout the recent past when the 
Securities and Exchange Commission was litigating with SIPC, 
the relationship on the staff was professional and I can tell 
you that right now, the relationship between the SEC and SIPC 
is at a high point. Chairman Mary Jo White has met with our 
Board of Directors. She is the first SEC Chairperson to do so. 
We hope to have other members of the Commission meet with us 
and meet with our Board of Directors to share common concerns. 
We work hand-in-glove with the SEC. That is the answer to it.
    Senator Reed. Do you think the SEC has the resources or the 
capacity to thoroughly inspect broker-dealers? As Senator 
Warner mentioned in his opening remarks, we are still at a very 
low rate of inspections on a regular basis of broker-dealers.
    Mr. Harbeck. Well, I believe Senator Warner mentioned 
investment advisors, which are not covered by SIPC.
    Senator Reed. Right.
    Mr. Harbeck. But, frequently, the investment advisors 
custody their securities at SIPC members. In fact, that is what 
they are supposed to do. I think it would be an excellent idea 
to increase the resources available for inspecting those 
because that is a possible way to stop fraud ab initio.
    Senator Reed. Mr. Giddens, you have been a trustee in 
several cases, and in your testimony, you suggest that more 
pre-liquidation disaster planning could be helpful. Could you 
elaborate on that?
    Mr. Giddens. Yes. The Lehman case was done on a very ad hoc 
basis and under extraordinary circumstances, and there was not 
sufficient time to involve SIPC or perhaps the SEC and the like 
in the process. A great deal of the activity was dictated by 
the Treasury Department and the Federal Reserve, all attempting 
to avert a worldwide financial crisis. There was not sufficient 
time or planning to fully understand the implications of the 
transfers and the like.
    Contrary to the public assumption, Barclays did not acquire 
all the securities accounts of Lehman. They left behind 
accounts--they could pick and choose assets. They did not 
assume all the liabilities. That is not to criticize those who 
structured that deal. It was--Barclays at the time was the only 
prospective bidder. But, essentially, it took years to unravel 
the intricacies and complications of Lehman through 76 
proceedings around the world.
    There is an attempt by requiring large firms to prepare so-
called living wills to more systematically sort of determine 
where assets are, how assets will be obtained, and the like. As 
I say, in Lehman, just by way of example, the British Prime 
Minister claimed that $8 billion was improperly taken from the 
U.K. and transferred back to the United States. So, that turned 
out not to be correct and they later dropped that sort of 
thing, but there was such confusion and misunderstanding about 
how the system operated, so that preplanning involving those 
who would be involved in a liquidation is very, very important.
    It is also very important to identify the categories of all 
the claimants, not just securities claimants, but unsecured 
creditors and the like. That would help enormously in any 
liquidation if you really had a clearer picture of what you are 
trying to achieve.
    Senator Reed. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you, Senator Reed.
    I am going to just ask one more quick question before I 
turn both the gavel and the time over to Senator Vitter, and 
that is for Professor Verret, I am interested in your argument 
about privatization. Could you just briefly tell me how you 
envision that would work?
    Mr. Verret. Sure. I think that, you know, first, I think 
there would be a substantial transition period, recognizing the 
fact that members have been assessed for the fund that is 
currently there with the expectation of coverage. So, you would 
have to work through some transition issues. I think you would 
begin by lowering the ceiling of coverage. But, I think part of 
the benefit you would get there is for whatever is not crowded 
out by SIPC coverage, I think you would see private sector 
operators doing risk-based premiums, risk-based pricing. That 
would go along with some of the issues we have talked about 
today.
    I mean, I would expect that a private-based provider would 
set your risk-based premium based on the adequacy of your 
resolution planning, your living will. I think that one of the 
problems with the current structure is that not only is there a 
Government subsidy through the Treasury's lending to all firms 
provided with coverage, but there is internal subsidization. 
The best actors subsidize the worst actors with an assessment 
that is homogenous, you know, homogenous assessment. So, I 
think that, for instance, publicly traded broker-dealers that 
have Section 404 internal controls are a very different 
situation from nonpublic broker-dealers, and so you would 
expect the premium to be very different there.
    So, in short, to answer your question, I think there would 
be a transition, but I think--and I think you would probably 
begin by lowering the ceiling of coverage. But I think that you 
would see some risk-based pricing, some market discipline 
inserted into that process. That would be very helpful with a 
lot of the issues we have been describing.
    Senator Crapo. Well, thank you very much, and as you can 
see, it is a busy morning and I, too, am going to be called 
away to another obligation. But, I know this is a critical 
issue to Senator Vitter, and at this point, I am going to turn 
both the gavel and the time over to you, Senator Vitter. Thank 
you.
    Senator Vitter. [Presiding.] Thank you, Senator Crapo. 
Thanks for calling and sharing this hearing. Thanks to all of 
you for being here.
    Mr. Wissner-Gross, I want to step back and sort of start 
with the big picture in terms of some of the comments you 
suggested. Under the current system, we have SIPC, we have this 
SIPC ``Good Housekeeping Seal'' logo, correct?
    Mr. Wissner-Gross. Yes.
    Senator Vitter. And that is very widely used by SIPC 
members. I mean, they put it on all of their Web sites----
    Mr. Wissner-Gross. On every statement.
    Senator Vitter. Yes, every statement, every Web site, every 
piece of literature, every entry door, basically, because it is 
that sort of ``Good Housekeeping Seal'' logo similar to FDIC, 
would you agree with that?
    Mr. Wissner-Gross. Yes, Senator.
    Senator Vitter. And yet the reality is, say, compared to 
FDIC, it is fundamentally different and it is fundamentally 
less protection, would you also agree with that?
    Mr. Wissner-Gross. Yes, Senator.
    Senator Vitter. So, it seems to me the big picture is that 
the average customer is sort of actively being misled, as given 
this ``Good Housekeeping Seal,'' member firms are actively 
using that for their benefit in the market, and it is not there 
when customers need it in many cases. In fact, it is most 
uncertain, it seems to me--correct me if you think this is 
wrong--but it is most uncertain in many outright cases of fraud 
versus simply failure, and it seems to me that is particularly 
ironic, would you agree with that?
    Mr. Wissner-Gross. Well, I am not sure I am going to go all 
the way with you on that comment. I do think that fraudsters 
will typically use the SIPC logo as a means of trying to lull 
their investors into thinking that it has SIPC protection. I do 
not know whether I am prepared to go with you all the way to 
say it is being used by the well-established brokerage firms to 
somehow facilitate a fraud. But I do concur----
    Senator Vitter. No, no, I did not say that or did not mean 
to suggest that. What I am saying is, when push comes to shove, 
often, the victims who have most difficulty being made whole 
are victims of outright fraud versus other cases----
    Mr. Wissner-Gross. That is----
    Senator Vitter.----of market failure.
    Mr. Wissner-Gross. That is correct.
    Senator Vitter. And it seems to me that is particularly 
ironic that it is least certain in many cases of outright fraud 
versus market failure.
    Mr. Wissner-Gross. I will agree with you.
    Senator Vitter. That is all I was trying to say.
    Now, it seems to me we should recognize this fundamental 
disconnect and correct it in some way, either make that ``Good 
Housekeeping Seal'' what it purports to be, or take it off 
everybody's doors and stop the complete misrepresentation.
    Mr. Wissner-Gross. Well, I will agree that if it is going 
to be there, there should be an appropriate disclaimer----
    Senator Vitter. Right.
    Mr. Wissner-Gross.----so that people understand what is at 
issue. But, I think, more to the point, as I said in my opening 
remarks, I concur that you have properly framed the issue and I 
think the proposed legislation identifies several ways in which 
we can hopefully begin to rectify the problem.
    Senator Vitter. Correct. Is not one of the big 
differences--I keep using this analogy with FDIC because I 
think that is how consumers read that ``Good Housekeeping 
Seal''--is not one big difference that SIPC has industry 
members who are clearly active, ongoing industry members who 
have vested interests in SIPC members and private sector 
industry partners?
    Mr. Wissner-Gross. I will agree with you there, as well.
    Senator Vitter. Do you think that poses a potential 
conflict?
    Mr. Wissner-Gross. Yes, Senator. I think--and there are 
various ways in which that could be addressed, particularly if 
you have a board that is truly independent.
    Senator Vitter. Correct. Do you have any particular 
thoughts about the best way to erase that potential conflict?
    Mr. Wissner-Gross. Well, the same broker-dealers are 
regulated by the SEC, and typically when there is fraud, it is 
identified by the SEC. I do not have specific recommendations, 
but I think that you have correctly framed the problem. I think 
there has to be a better path to ensuring that SIPC, true to 
its mandate, is truly independent, truly looking out for the 
best interest of investors, and truly able to protect those 
interests.
    Senator Vitter. And would one partial or whole solution be 
giving SEC more outright authority over SIPC----
    Mr. Wissner-Gross. Yes. I----
    Senator Vitter.----in certain cases, including fraud?
    Mr. Wissner-Gross. I 100 percent agree with you, and in 
fact, I endorse the proposal allowing the SEC to be able to 
initiate SIPA proceedings. And, clearly, they have already a 
statutory right of oversight. I think it would be in the best 
interest of everybody to have the SEC, which can shut down 
firms after identifying fraud, also being much more intimately 
involved with the day-to-day operations and enforcement of 
those situations.
    Senator Vitter. Right. Mr. Harbeck, obviously, I am very 
concerned about the Stanford case. I represent a lot of 
Stanford investors. To date, how many of those Stanford 
investors have gotten any recovery from SIPC?
    Mr. Harbeck. None, sir, as a result of the case of SEC v. 
SIPC----
    Senator Vitter. OK.
    Mr. Harbeck.----where the court stated that the Stanford 
victims did not fall under the statutory program that we 
administer.
    Senator Vitter. OK. So, I just want to make clear, we are 
talking about these other cases, 99 percent, great majority, 
blah, blah, blah. Stanford, just factual basis--I want to be 
clear--everybody has been shut out of recovery.
    Mr. Harbeck. That is correct.
    Senator Vitter. OK.
    Mr. Harbeck. SIPC----
    Senator Vitter. Now, let us walk through SIPC's arguments 
for that, because as I have followed them, they are changing. 
At the district court--let me just ask you if you can put in 
layman's terms, not hyper-technical terms, but in layman's 
terms, the grounds for SIPC not standing behind those 
investors.
    Mr. Harbeck. Senator, as you know, the Securities Investor 
Protection Act is a complex statute. But if you would try to 
reduce it to one sentence in terms of what is protected and 
what is not protected, that sentence would be as follows: SIPC 
protects the custody function that brokerage firms perform for 
their customers and only the custody function. And in the 
Stanford case, it was our consistent view for the 2 years prior 
to that lawsuit that all of the customers that the SEC knew of 
had their certificates of deposit, or they were in the custody 
of another entity that had their certificates of deposit, or 
they were book entry. SIPC----
    Senator Vitter. You are basically talking about Antiguan 
CDs?
    Mr. Harbeck. That is correct.
    Senator Vitter. OK.
    Mr. Harbeck. All money went directly to the Stanford 
International Bank of Antigua, or a bank account owned by the 
Stanford International Bank of Antigua. The SIPC member 
brokerage firm was not holding any assets, nor was it supposed 
to be, for those customers.
    Senator Vitter. Now, Mr. Harbeck, that is the argument that 
you all made in district court. You changed the argument when 
it got to appeal. I will get to that in a minute. But, let us 
start with the district court. Is it not correct that those 
customers were issued these Antiguan CDs and there was never 
money in that Antiguan bank backing them up? That was a 
complete fraud.
    Mr. Harbeck. There was absolute fraud ab initio. However--
--
    Senator Vitter. Was there money in the Antiguan bank 
backing up those CDs?
    Mr. Harbeck. There is some. There is an independent entity 
or receiver in the Stanford--in Antigua that is in charge of 
restoring those customers to the extent he can.
    Senator Vitter. I do not know what that means. Was there 
money in that Antiguan bank backing up those CDs or not?
    Mr. Harbeck. Senator, we do not have investigatory 
authority. Certainly, we do not have it overseas.
    Senator Vitter. There has been forensic accounting that has 
shown that there was no money in that Antiguan bank backing up 
the CDs. Do you agree with that, because that is the record?
    Mr. Harbeck. I do not believe it is the record in the case 
that we litigated. I will assume it is true.
    Senator Vitter. You will assume it is true?
    Mr. Harbeck. For purposes of discussion, of course.
    Senator Vitter. So, in the district court, the argument is, 
well, this was an investment in a foreign bank that is not 
covered under the SIPC law, under SIPA, but the money never 
reached the foreign bank. The CDs were issued. There was no 
cash backing them up. You do not think that is a problem with 
your argument?
    Mr. Harbeck. No, I do not, because I--I do not agree with 
you in this regard. As far as I know and as far as the SEC 
stated, all monies either went to the Stanford International 
Bank or went to a bank account under its control.
    Senator Vitter. Well, you are talking about an SEC 
statement of facts submitted to the district court that was 
incorrect, that is contrary to the forensic accounting. Are you 
aware of that?
    Mr. Harbeck. I am aware that someone has submitted an 
affidavit saying the money did not go to Antigua. The SEC, when 
we asked them about that, did say that the money went to an 
American bank account owned by the Stanford International Bank 
of Antigua.
    Senator Vitter. An American bank account?
    Mr. Harbeck. Correct.
    Senator Vitter. OK. So, Mr. Harbeck, I think you are aware 
of what I just laid out, because when the case went to circuit 
court, you all changed your argument completely.
    Mr. Harbeck. That is not correct, sir.
    Senator Vitter. Well, in the circuit court, your primary 
argument was that somehow this was a loan from the customers to 
the broker-dealers and there is a specific exclusion to cover 
that. Was that not a significant argument----
    Mr. Harbeck. That was----
    Senator Vitter.----that SIPC made in----
    Mr. Harbeck. That was a secondary argument that we made in 
both courts, sir.
    Senator Vitter. And when these customers were buying CDs, 
you think they were loaning the broker-dealers money or 
investing in the broker-dealers?
    Mr. Harbeck. That is not what the court said. The court 
said that----
    Senator Vitter. I am asking what you said in terms of that 
particular argument. You made that argument. So, do you think 
it was a fair characterization in making that argument that in 
buying CDs, these customers were loaning the broker-dealers 
money?
    Mr. Harbeck. The SEC argued that if you substantively 
consolidated these entities, then a SIPC member firm was 
holding assets for the debtor. Substantive consolidation never 
took place, number one. But what the court said is that if it 
did, then people would be--instead of lending money to the 
Stanford International Bank, which is what a CD is, it would be 
lending money to the brokerage firm and that is not protected 
by statute.
    Senator Vitter. Right, except they had a CD and they never 
agreed to lend money to the brokerage firm. The brokerage firm 
stole the money, kept the money. That is cash. That is covered 
under SIPA. Cash is covered under SIPA. CD is covered under 
SIPA. And yet you all concocted this ridiculous theory that, 
no, it was not a CD, even though the customer had a CD piece of 
paper. It was not cash, even though that is what the broker-
dealer stole and diverted. It was somehow a loan to the broker-
dealer, which obviously the customer never agreed to. I mean, 
do you not----
    Mr. Harbeck. Senator, your statement does not comport with 
the stipulated facts.
    Senator Vitter. Well, the stipulated facts were wrong and 
have been disproved by the forensic accountant.
    Mr. Harbeck. I disagree.
    Senator Vitter. OK. Well, I think the broader point here is 
that I do not think an entity like FDIC would have spent tens 
of millions of dollars to do back-somersaults to make those 
sorts of arguments. I think only an entity dominated by 
industry members would have done those back-somersaults and 
spent tens of millions of dollars in legal fees to make those 
sorts of arguments. I guess that is my broader point.
    Let me go to Mr. Giddens, and I have another concern about 
the trustee relationship. And, Mr. Giddens, I acknowledge you 
are a very competent person in the roles you have played and I 
do not question your competence or your integrity. I do 
question the conflict of interest between people who are named 
over and over and over as trustees, make a lot of money doing 
it, and that person's role protecting the investors, and I 
think that is a built-in and serious conflict, that practice.
    So, with that in mind, let me ask you, how many times have 
you and your firm--or your firm--acted as SIPC matter trustee?
    Mr. Giddens. I believe in five or six cases out of the 300 
cases over 45 years.
    Senator Vitter. So, five or six cases?
    Mr. Giddens. Yes.
    Senator Vitter. And roughly how much money do you think you 
and your firm have made doing that?
    Mr. Giddens. I do not, off the top of my head, know. What I 
would say is, one, I have never applied for compensation for 
myself as trustee in a personal capacity. The law firm, of 
which I am a partner, has to apply to the bankruptcy court for 
compensation. That compensation is on notice to all creditors, 
and after a hearing, the compensation has to be approved by a 
bankruptcy court and a bankruptcy judge. The cumulative amount 
of compensation, I do not know. In terms of the----
    Senator Vitter. Can you give us a sense of proportion, a 
ballpark figure?
    Mr. Giddens. I really----
    Senator Vitter. Was it over a million dollars in each case?
    Mr. Giddens. No. It was less than a million in some cases 
and over several million dollars in other cases. Again, the 
compensation is governed by Bankruptcy Code requirements, where 
the compensation should be based on results achieved. There is 
also a public interest discount.
    In terms of--if I may just comment on--I think you raise a 
legitimate question. On the conflict of interest, I would point 
out that, for example, in Lehman and MF Global, we have had 
adversary proceedings against principal firms on Wall Street, 
major, major issues involving billions of dollars in firms such 
as JP Morgan, Goldman Sachs, Morgan Stanley, and the like. So, 
it is not correct that there is a bias toward large Wall Street 
institutions. They equally have disputes with SIPC and the SEC 
about what is covered, for example, repo transactions and 
things of that sort.
    Senator Vitter. Well, just to clarify, I was not talking 
about a bias there. I was talking about a bias of the trustee 
toward SIPC----
    Mr. Giddens. Well----
    Senator Vitter.----because SIPC hires a trustee, in some 
cases, over and over. That is a major book of business. That is 
a major source of compensation for the firm. So, that is the 
bias I was talking about.
    Just to give you an example, you were not named trustee in 
Stanford. If you were, and if you had decided matters in terms 
of customer status and compensation contrary to the way SIPC 
has fought--SIPC has fought the SEC, SIPC has gone to court, 
SIPC has gone to circuit court, SIPC has spent tens of millions 
of dollars on this--do you think you would be a prime candidate 
to be hired as a trustee the next time?
    Mr. Giddens. Umm--I am not sure I fully understand the 
question. If the----
    Senator Vitter. Let me restate it.
    Mr. Giddens. If you are saying, hypothetically----
    Senator Vitter. If you were the trustee in Stanford, and if 
you had disagreed with SIPC on this fundamental question of 
customer status and right to recovery----
    Mr. Giddens. Well----
    Senator Vitter.----which SIPC has fought tooth and nail to 
an extraordinary extent--SEC told them to act otherwise. SIPC 
fought the SEC. SIPC went to court. SIPC went to circuit court. 
SIPC spent millions of dollars fighting this, which obviously 
come out of the assets of the fraudster. Do you think, if you 
had fundamentally disagreed with SIPC on that, do you think you 
would be a prime candidate to be named a trustee in the next 
big SIPC case?
    Mr. Giddens. The answer is, I do not know. The answer is, 
if I--the confusing part is to be appointed a trustee or being 
suggested as a trustee by SIPC to the district court, which has 
to appoint you, that would mean that SIPC had started a SIPC 
liquidation of Stanford. And if I were the trustee, I would 
look at the statute. That would be my job. Obviously, I would 
discuss it with SIPC, the SEC, and others involved and try to 
reach a fair decision. I am sympathetic to any group of people 
who are defrauded, and I think whether it is a SIPC trustee or 
an independent trustee, you ought to use all your resources to 
try to find ways for recovery. There are other avenues, maybe 
not successful, other than simply relying on the SIPC fund.
    Senator Vitter. Right. Well, we can just disagree about 
this. I will answer my own question. I think it is obvious that 
you would not be on the short list by SIPC the next time, and 
that is the conflict I am talking about, similar to the 
conflict in terms of industry members of SIPC.
    Let me end on that note. First of all, thank you all very 
much for your testimony and your participation. I think this 
has been an important and productive discussion.
    I am determined that this discussion moves to action in 
terms of appropriate reform, and I am equally determined that 
there will be no confirmation of outstanding proposed SIPC 
members unless and until that reform happens. So, I look 
forward to all of that.
    Thank you very much. The hearing is adjourned.
    [Whereupon, at 11:20 a.m., the hearing was adjourned.]
    [Prepared statements and additional material supplied for 
the record follow:]
                
                PREPARED STATEMENT OF STEPHEN P. HARBECK
                           President and CEO
               Securities Investor Protection Corporation
                           September 30, 2015
    Chairman Crapo, Ranking Member Warner, and Members of the 
Subcommittee:
    Thank you for the opportunity to brief you on the progress the 
Securities Investor Protection Corporation (SIPC) has made since the 
beginning of the 2008 financial crisis.
    The Subcommittee has asked how SIPC is protecting investors, how 
SIPC is responding to recent claims and customer protection, and if 
there are any reforms Congress should consider. The best way to 
describe how SIPC protects investors, responds to claims, and operates 
the customer protection regime mandated by statute is to provide you 
with an overview of SIPC's performance since the beginning of the 2008 
financial crisis, which includes the most significant cases in SIPC's 
history. Potential reforms will be addressed at the end of this 
statement. The narrative which follows demonstrates that SIPC has 
protected investors as contemplated by the Securities Investor 
Protection Act (SIPA). I believe the results achieved to date are 
impressive, given the scope of the challenges presented.
How is SIPC protecting investors and how has it responded to recent 
        claims and customer protection?
Lehman Brothers Inc.
    Lehman Brothers is the largest bankruptcy proceeding of any kind in 
history. With securities customers' accounts essentially frozen and 
substantial customer assets at risk, SIPC initiated a customer 
protection proceeding on September 19, 2008. That same day, in what has 
been called the most important bankruptcy hearing in history, 
Bankruptcy Judge James Peck approved the transfer of 110,000 customer 
accounts containing $92 billion in assets to solvent brokerage firms. 
Judge Peck noted that he had heard credible evidence that without the 
ability to transfer those accounts under SIPA, securities markets 
worldwide could cease to function. SIPC is proud to have been a major 
actor in restoring investor confidence in the securities markets at 
that time. The actual transfer of those accounts took place over the 
next 10 days.
    The SIPA trustee proceeded to close the complex, worldwide business 
operations of Lehman. Among the highlights of that work was a victory 
for investors in the Supreme Court of the United Kingdom that resulted 
in additional assets being set aside for customers.
    Today: All Lehman Brothers customers have received a 100 percent 
distribution, and general unsecured creditors in that case have already 
received 35 percent of their claims.
    In short, the bankruptcy processes imbedded in SIPA have worked 
well in a
severe stress case.
Bernard L. Madoff Investment Securities LLC
    Bernard Madoff's Ponzi Scheme collapsed in December 2008. SIPC's 
intervention resulted in advances to customers and the payment of 
administrative expenses with results that were unimaginable at the 
time.
    Every customer who left $975,000 or less with Madoff has received 
all of his, her, or its money back from the trustee. Customers with 
larger claims have received 48.08 percent of their initial investment, 
meaning that a claimant who left $10 million with Madoff has already 
received $5.3 million from the trustee, including SIPC advances. 
Further, SIPC took the position that every single asset of the Madoff 
firm was purchased with stolen money, so all recoveries, of any nature, 
should go into the ``fund of customer property.'' SIPC thus pays every 
cent of the administrative expenses in that case.
    In addition, based substantially upon painstaking research by the 
trustee's staff and paid for by SIPC, the United States Attorney for 
the Southern District of New York has amassed a sizable sum which 
comprises a forfeiture fund. Distribution of that fund, which is in 
excess of $4 billion, has not yet begun.
    The SIPA trustee is engaged in extensive litigation which, if 
successful, will benefit those who have not yet received all of their 
net funds invested with Madoff.
    In summary, the trustee has maximized the returns to victims given 
the tools available to him. He has worked in cooperation with 
regulatory and criminal authorities, and will continue to do so. There 
will be additional distributions as more funds are added to the fund of 
``customer property.''
MF Global Inc.
    On October 31, 2011, the SEC notified me at 5:20 in the morning 
that the customers of MF Global were in need of the protections of the 
SIPA statute. After receiving authority from SIPC's Chairman within the 
hour, the SIPC staff mobilized and initiated a liquidation proceeding 
for that firm that afternoon. This is the eighth largest bankruptcy in 
history.
    The results in the MF Global case are stunning. All securities and 
commodities customers have been paid in full. Last week, the trustee 
commenced the final distribution to general creditors, who will receive 
95 cents on the dollar. Bankruptcy Judge Martin Glenn recently stated 
that ``At the outset of the case, nobody thought that customers would 
recover everything they lost.''
    The trustee and SIPC litigated a number of issues interpreting 
SIPA, some of which were issues of first impression, and have been 
uniformly successful.
    In short, the process worked, and worked well.
SIPC's Financial Condition
    In January 2009 some Members of the Committee expressed concern 
about the financial condition of SIPC. I am pleased to report that SIPC 
has performed all of its statutory duties during the financial crisis, 
and that it continues to be in sound financial condition. In December 
2008, the SIPC Fund stood at $1.7 billion. Immediately upon the 
commencement of the Madoff case, the SIPC Board prudently increased the 
assessments on SIPC member firms to .0025 percent of net operating 
revenues. At the close of 2014 SIPC had $2.152 billion. Even including 
all expenses of the financial crisis, this demonstrates that SIPC has 
the ability to raise funds as needed to protect customers and meet its 
statutory obligations. The SIPC Board has currently set a ``target'' 
balance for the SIPC Fund at $2.5 billion, which matches the increased 
line of credit SIPC has with the United States Treasury.
New Cases
    Since December 2012, SIPC has initiated four customer protection 
proceedings, each of which is very modest in size. SIPC was able to 
serve as trustee in three of the cases, and use the statutory ``direct 
payment procedure'' in the fourth case. This has had the effect of 
expediting claims determination and satisfaction, in order to return 
customer assets as promptly as possible. Indeed two of those cases have 
already been brought to a conclusion. To put these cases in perspective 
with the cases discussed above, the combined cost to SIPC of protecting 
customers and administrative expenses in these four proceedings is 
approximately $7 million.
Are there specific SIPC reforms that SIPC and Congress should consider 
        and why?
Action on SIPC Nominees:
    The Committee can assure that SIPC is in a position to be a rapid 
response team by moving the nomination of SIPC's directors.
    I noted above that SIPC was able to initiate a customer protection 
proceeding for MF Global in a matter of hours. SIPC, by Bylaw, has 
delegated the authority to initiate a customer protection proceeding to 
the Chair. For more than a year, SIPC has been without a Chair, or a 
Vice Chair to serve as Acting Chair. That means that today SIPC might 
not be as nimble as it was on October 31, 2011, when I contacted SIPC's 
then Chairman for authority to protect investors in the MF Global case. 
With no Chair or Vice Chair, should that same urgent situation arise 
today I would have to call a meeting of the entire Board, on literally 
no notice.
    Thus, I urge the Committee to move the nomination of SIPC's vacant 
director positions forward.
The SIPC Task Force, Rulemaking, and Legislation
    In February 2010, SIPC's Board created a SIPC Modernization Task 
Force to formulate possible improvements to SIPA. In February 2012, the 
Task Force made a number of recommendations, five of which would 
require legislative change, and one of which required a rule change. 
(Nine recommendations, which could be implemented as a matter of 
policy, have been adopted.)
    The SEC, working with SIPC, did institute a rule change requiring 
the independent auditors of SIPC member brokerage firms to file copies 
of their Audit Reports with SIPC. This program is part of an ``early 
warning system'' that gives SIPC the opportunity for informed 
discussion with regulators and self-regulators, who are responsible for 
notifying SIPC concerning brokerage firms that may pose a risk to 
investors.
    After extended discussion the Board determined not to propose 
legislation that would increase the maximum level of protection, and 
eliminate the distinction in the levels of protection for cash and 
securities. Among the reasons for the Board's decision was that such 
legislation would create disparate levels of protection offered by the 
FDIC and SIPC which could cause disruption and confusion, and also 
create inappropriate incentives to move funds from banks to brokerage 
firms. The Board also determined not to expand protection to 
participants in pension funds on a pass through basis.
    The Task Force also suggested legislation setting a minimum 
assessment on SIPC members of the greater of $1,000 or 0.02 percent of 
members' gross revenues from the securities business. Further, the Task 
Force suggested legislation authorizing the use of the ``Direct Payment 
Procedure'' where customer claims aggregate less than $5 million. The 
Board discussed these proposals but deferred formally recommending a 
separate bill on these more minor matters until an appropriate 
opportunity arises.
Restoring Main Street Investor Protection and Confidence Act
    While the letter inviting me to this hearing did not ask me to 
address the Restoring Main Street Investor Protection and Confidence 
Act, S. 67, that proposed legislation is relevant in the overall 
context of this hearing. Accordingly, Attachments A and B provide an 
analysis of that proposal.
    I hope this summary has been helpful to the Subcommittee. I would 
be pleased to answer any questions the Subcommittee may have.
                                 ______
                                 
Attachment A
Concerns Respecting The Proposed Restoring Main Street Investor 
        Protection and Confidence Act (S. 67)
    The ``Restoring Main Street Investor Protection and Confidence 
Act'' contains provisions that have a number of what appear to be 
unintended consequences. Some of the concerns presented by the proposal 
include:

    The bill requires SIPC to accept as accurate financial 
        statements known to be intentionally fraudulent. Under the 
        bill, SIPC must accept whatever statement a thief issues to his 
        customers.

    The bill legitimizes Ponzi Schemes by guaranteeing that the 
        Scheme's non-existent trades at backdated stock prices giving 
        rise to phony profits are backed by Federal taxpayer funds.

    The bill makes Ponzi Schemes a better investment than 
        legitimate securities market trades by, among other things, 
        eliminating market risk.

    The bill's limitations on the Bankruptcy Code's ``avoidance 
        powers'' in a SIPA case result in demonstrably inequitable 
        distributions of ``customer property.'' For example, had Mr. 
        Madoff's fraud been detected and closed a mere 2 days later, 
        the $175,000,000 in checks on his desk would have gone to 
        arbitrarily favored clients at the direct expense of other 
        clients to whom the funds actually belonged. This was more than 
        half of the liquid assets the firm had when it failed. Further, 
        as the United States Court of Appeals for the Second Circuit 
        correctly noted, ``any dollar paid to reimburse a fictitious 
        profit is a dollar no longer available to pay claims for money 
        actually invested.''

    The bill provides a complex mechanism for honoring a 
        fraudulent final account statement in the interest of equity. 
        In reality, this is an invitation to extended litigation by 
        various claimants with disparate, conflicting and competing 
        interests in a finite corpus of customer property. This will 
        delay the timely return of customer property to injured 
        victims.

    The bill gives unprecedented and unlimited power to the SEC 
        to compel the expenditure of both private and public funds. 
        That power includes the authority to require SIPC to initiate 
        the liquidation of any brokerage firm or other institution 
        regardless of whether statutory criteria are met.

    The bill gives the SEC unlimited authority to change the 
        definition of the term ``customer.''

    The bill renders the SEC's authority unreviewable by the 
        judiciary.

    The bill operates retroactively. It would throw the Madoff 
        case, and the remarkable results achieved to date, into chaos 
        and uncertainty.

    The bill forbids using a trustee on two SIPA cases 
        simultaneously. This eliminates efficiencies and denies 
        customers the benefits of expertise in the most significant 
        cases. SIPC has six ongoing proceedings. Only one individual 
        serves in more than one case. SIPC matches the size and 
        resources of the trustee and the trustee's counsel with the 
        nature and scope of the problem.

    The bill makes it impossible to determine future costs and 
        risk.
The bill would reverse the judicial outcome in the Stanford-Antigua 
        Bank Fraud Case.
    SIPC declined to initiate a customer protection proceeding for the 
Stanford Financial Group in connection with the Stanford-Antigua Bank 
Fraud. For the first time in SIPC's history, the SEC sued SIPC to 
compel SIPC to begin a proceeding. The District Court and Court of 
Appeals examined the circumstances and considered the legal issues in 
the case and determined that the victims of the Stanford Antigua Bank 
Fraud were not ``customers'' that SIPA was designed to protect.
    The Restoring Main Street Investor Protection and Confidence Act, 
S. 67, would require SIPC to underwrite, guarantee, and pay the debt 
obligations, represented by Certificates of Deposit of the Stanford 
International Bank, a foreign bank in an offshore tax haven. The 
Antiguan Bank CD purchasers knowingly sent their money away from a SIPC 
member to an Antiguan Bank where, in the words of the SEC, the 
claimants received ``high rates of return on CDs that greatly exceeded 
those offered by commercial banks in the United States.''
    While SIPC has sympathy for the victims of the Stanford and any 
other fraud, SIPC was not designed to refund the original purchase 
price of a bad investment, even where the investment was induced by 
fraud.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                   PREPARED STATEMENT OF J.W. VERRET
         Assistant Professor of Law, George Mason School of Law
      Senior Scholar, Mercatus Center at George Mason University *
---------------------------------------------------------------------------
    * The ideas presented in this document do not represent official 
positions of the Mercatus Center or George Mason University.
---------------------------------------------------------------------------
                           September 30, 2015
    Chairman Crapo, Ranking Member Warner, and Members of the 
Subcommittee, I appreciate the opportunity to testify today on your 
Subcommittee's oversight of the Securities Investor Protection 
Corporation.
    My name is J.W. Verret. I am an assistant professor of law at 
George Mason University Law School, where I teach corporate, 
securities, and banking law. I serve as a senior scholar at the 
Mercatus Center at George Mason University, and until recently I was 
Chief Economist and Senior Counsel at the House Committee on Financial 
Services.
    The explosive growth in federally backed loan and guaranty programs 
has been an appropriate focus of congressional oversight in recent 
years. The Office of Management and Budget (OMB) estimates the Federal 
Government supports over $3 trillion in loans and guarantees. Those 
loans and guarantees are often shrouded by indirect Government support 
and unreasonable assumptions in Government accounting practices.\1\
---------------------------------------------------------------------------
    \1\ See, e.g., Federal Accounting Standards Advisory Board, 
``Memorandum: Public Hearing on Reporting Entity,'' August 20, 2013, 
http://www.fasab.gov/pdffiles/tab-a2_august-2013.pdf.
---------------------------------------------------------------------------
    I submit that the Securities Investor Protection Corporation's 
(SIPC) provision of securities custody insurance should be an 
appropriate part of that conversation. Government officials appoint 
SIPC directors and SIPC enjoys access to a $2.5 billion line of credit 
with the Department of the Treasury. Some may argue that statutory 
language that ``SIPC shall not be an agency or establishment of the 
United States Government'' suggests otherwise.\2\ We all recall how 
similar statutory language governing the Government-Sponsored 
Enterprises proved meaningless when those companies were placed in 
Federal conservatorship.
---------------------------------------------------------------------------
    \2\ Securities Investor Protection Act of 1970, 15 U.S.C.  78ccc.
---------------------------------------------------------------------------
    Today I will argue that privatization of SIPC is the best solution 
to protect American taxpayers, I will identify unexplored solutions for 
victims of Ponzi schemes. Though I argue privatization is the first 
best solution, I am glad to constructively engage in this 
Subcommittee's discussion about additional SIPC reforms.
REFORMING THE GOVERNMENT MONOPOLY
    Most broker-dealers and members of national exchanges are required 
by statute to be members of SIPC, and SIPC is funded by assessments on 
its membership. SIPC thereby enjoys a statutory monopoly over the 
provision of securities custody insurance beneath the ceiling of its 
coverage.
    Some of my fellow panelists may argue that SIPC serves an important 
role as a specialized liquidator of broker-dealers. Assuming that 
argument is true, it remains a tall leap of logic to further contend 
that a Government monopoly in the provision of securities custody 
insurance is thereby warranted.
    SIPC's board is currently composed of private sector and Government 
members. I submit that privatization of SIPC's insurance function is 
the first best solution to the problems presented by the current 
structure of the SIPC. We might begin by lowering the ceiling of 
coverage.
    I find it hard to accept that a market failure necessitates a 
Government monopoly in this space. In fact, there are underwriters at 
Lloyd's that sell ``excess of SIPC'' coverage for the portion of this 
market not crowded out by SIPC.\3\
---------------------------------------------------------------------------
    \3\ TIAA-CREF, ``SIPC and Excess of SIPC Asset Protection Guide,'' 
2015, https://www.tiaa-cref.org/public/pdf/forms/SIPC_Reference_ 
Guide_FINAL.pdf.
---------------------------------------------------------------------------
    In the absence of full privatization, the public-private 
composition of SIPC's board should not be viewed as a second best 
option, It would be better to officially recognize SIPC for the 
Government entity that it is, remove the private-sector board members, 
establish a similar level of congressional accountability for SIPC to 
that required of other Government agencies, and impose a term limit on 
its CEO.
THE PROBLEM OF PONZI SCHEME VICTIMS
    The controversy and subsequent litigation between the SEC and SIPC 
with respect to the Allen Stanford Ponzi scheme, and issues with 
respect to Bernie Madoff victim claims, also suggest that a warning 
label should be provided as part of the legend describing SIPC 
coverage. This label would warn customers, ``SIPC coverage only applies 
under limited circumstances, and SIPC reserves the right to deny claims 
despite reasonable expectations of coverage.'' SIPC won the Stanford 
litigation as a result of regrettable stipulations of fact by the SEC. 
In the related Madoff litigation, SIPC utilized an aggressive valuation 
methodology from among a range of methods used in prior cases.
    My impression of both cases was that they were close calls that 
might have come out either way. It is nevertheless also clear to me 
that SIPC's aggressive litigation position was designed to minimize 
claims to a fund that was unprepared for those claims, which suggests a 
clear conflict of interest for the receivers hired by SIPC and for SIPC 
itself.
    I am not here today to re-litigate those cases or to endorse 
legislation that might ultimately result in new assessments by SIPC. I 
sympathize with the victims, and I recognize they have been subjected 
to unusually aggressive legal posturing by SIPC, but I worry about 
action that might only further entrench SIPC's insurance monopoly.
    I would suggest instead that this Subcommittee consider whether 
undistributed funds in the SEC's Fair Funds program or in the Consumer 
Financial Protection Bureau's settlement awards would better serve the 
purpose of making these victims whole.
    I thank you for the opportunity to testify, and I look forward to 
answering your questions.
                                 ______
                                 
                 PREPARED STATEMENT OF JAMES W. GIDDENS
 Partner, Hughes Hubbard & Reed LLP, and Trustee, SIPA Liquidations of 
                Lehman Brothers Inc. and MF Global Inc.
                           September 30, 2015
    Chairman Crapo, Ranking Member Warner, and Members of the 
Subcommittee: Thank you for inviting me to testify. My name is James 
Giddens, and I chair the Corporate Reorganization and Bankruptcy Group 
at Hughes Hubbard & Reed LLP. I have worked on issues related to the 
Securities Investor Protection Act (SIPA) for more than 45 years, most 
recently as the Trustee for the liquidations of Lehman Brothers Inc. 
and MF Global Inc.--the two largest liquidations under SIPA and two of 
the largest bankruptcies of any kind in history.
    I welcome the opportunity to bring this experience and perspective 
to discuss how SIPA and the Securities Investor Protection Corporation 
(SIPC) have handled the most complex broker-dealer failures, as well as 
to submit for consideration areas for improvement in the statute and 
related laws and regulations.
Lehman Brothers Inc. SIPA Liquidation
    Two weeks ago marked the seventh anniversary of Lehman's collapse. 
Thus far, Lehman's broker-dealer customers and creditors have received 
$114 billion in distributions. This represents the largest distribution 
across the worldwide Lehman insolvency proceedings. Importantly, more 
than 110,000 retail customers, including mom-and-pop investors from all 
walks of life and from all across the country, received 100 percent of 
their property within days of the bankruptcy due to the unique account 
transfer process under SIPA.
    This swift return of customer property was critical to restoring 
stability to the financial system during a time of great doubt and 
avoiding the potential for further financial collapse. The return of 
customer property could not have happened without SIPA's account 
transfer provisions and the ability of the transfers to be backstopped 
by the SIPC fund. Indeed, it took hundreds of professionals working 
hand-in-hand with regulators to accomplish this extraordinary task and 
nearly 2 years to completely reconcile transferred accounts. A claims 
process for these accounts--the result in any other kind of bankruptcy 
proceeding--would have taken years longer.
    At a recent court hearing, the Honorable Shelley Chapman, United 
States Bankruptcy Judge for the Southern District of New York, called 
the distributions ``an incredibly extraordinary accomplishment in this 
case.'' I, and, more importantly the customers and creditors who had 
their funds restored, agree.
MF Global Inc. SIPA Liquidation
    When MF Global collapsed on Halloween of 2011 with revelations of 
more than $1.6 billion of missing commodity customer property, a near 
full return of property to customers and creditors was doubtful. My 
counsel and I testified about the MF Global case before the full Senate 
Banking Committee, the Senate Agriculture Committee, the House 
Agriculture Committee, and the House Financial Services Committee. I am 
grateful for the support of all of these Committees as we worked under 
SIPA to recover funds for customers and creditors, and together we 
achieved a favorable outcome for customers.
    The efforts to recover property around the globe required scores of 
professionals, the invaluable assistance of U.S. regulators, and 
cooperation from foreign insolvency administrators. In conjunction with 
the painstaking resolution of complex claims and the approval of 
innovative motions by the United States Bankruptcy Court, 36,000 
securities and commodities customers, many of whom were farmers and 
ranchers, received 100 percent distributions on their claims.
    Secured creditors also received 100 percent distributions on their 
claims, and a final 95 percent distribution to non-affiliated unsecured 
creditors is now in the process of being completed--all within less 
than 4 years from the commencement of the proceeding.
    Distributions to customers in these two liquidations far exceeded 
initial expectations and demonstrate the flexibility and effectiveness 
of SIPA in complex, large broker-dealer failures.
Considerations
    While SIPA has proven to be a successful mechanism for liquidating 
broker-dealers and is indeed viewed as a model for the prompt return of 
customer property in different jurisdictions around the world, there is 
room for modernization and improvement.
    The considerations that follow stem from my and my counsel's 
experience in Lehman, MF Global and several other liquidations and from 
my involvement, along with investor advocates, regulatory specialists 
and academic experts, in a Task Force that issued recommendations for 
modernizing SIPA.
    Specifically, the SIPC Modernization Task Force report included 15 
recommendations on how to amend and improve SIPA. In addition, my own 
investigation reports in the Lehman and MF Global liquidations included 
eight and six recommendations respectively on improvements to SIPA and 
related laws and regulations.
    I incorporate these three extensive, public documents into my 
testimony today, and I urge the Subcommittee to consider all 29 of the 
reform proposals in detail. Among the recommendations in these reports, 
I would like to highlight the following eight potential reforms for 
your consideration in particular:
Task Force Recommendations

  1)  Increase Maximum Coverage to $1.3 million

    Increasing SIPC's maximum coverage from $500,000 to $1.3 million, 
and tying future coverage limits to inflation, would reflect a 
significant increase in protection for customers and is consistent with 
the level of protection that is necessary to protect nonprofessional 
investors.

  2)  Eliminate the Distinction in the Levels of Protection for Cash 
        and Securities

    Eliminating the distinction between claims for cash and claims for 
securities resolves potential disparate treatment of customers and 
increases the amount of protection available to customers of broker-
dealers. Currently, the level of protection per customer is capped at 
$500,000, up to $250,000 of which may be in satisfaction of a 
customer's cash claim. This distinction leads to arbitrary resolution 
of claims between customers, may no longer reflect the way that cash 
and securities are held at broker-dealers, and has created confusion 
over the way that claims based on fictitious securities are treated.

  3)  International Cooperation

    The collapse of MF Global and Lehman revealed significant gaps 
between protections afforded customers in U.S. and foreign countries, 
such as the United Kingdom, arising largely from differences in 
insolvency laws and the absence of clear legal precedent. Though there 
may not be a one-size-fits-all solution for these issues, customers 
would benefit from greater harmonization of rules governing the 
segregation of customer funds and treatment of omnibus accounts.
Lehman Investigation Report Recommendations

  4)  Pre-Planning

    More pre-liquidation disaster planning, both on an individual 
broker-dealer and industry-wide basis, including a broker-dealer's 
``living will'' and emergency plan, should alleviate the type of 
information gap that I and my staff confronted in the Lehman 
liquidation. Such pre-planning would indicate the categories of 
customer accounts and associated assets that would need to be protected 
and set forth how possible scenarios would be dealt with, ranging from 
complete liquidation of all customer accounts to total or partial 
account transfer solutions, with details of key operational steps and 
the core assets that would have to remain to assure effective 
liquidation of customer accounts.

  5)  Increase in SIPC Borrowing Authority

    In addition to increasing SIPC's maximum coverage as noted above, 
consideration should also be given to expanding the borrowing and 
guarantee authority available to SIPC trustees or other liquidators and 
to permitting more flexibility for use of those funds. While the 
previously existing SIPC fund had more than sufficed to meet the 
demands of all previous SIPA liquidations, the Lehman and Madoff 
liquidations in particular demonstrate that the failure of a single 
major SIPC member broker-dealer could require at least the temporary 
availability of much more substantial sums to support the quick and 
efficient return of customer property.

  6)  Earlier Involvement of a Customer Representative

    A party with potential responsibility for customers interests--
whether SIPC, a putative trustee, a regulator, or a combination of all 
of these--should be involved in the negotiations related to the sale of 
a failed broker-dealer. Parties representing customer interests should, 
with better planning and access to information, bargain against a clear 
baseline of what needs to be transferred and avoid subsequent 
uncertainty and surprises.
    As experienced in the Lehman case, the seller's immediate focus is 
likely to be its own post-transaction survival; the purchaser's is with 
the customers and assets it is taking on, not those it is leaving 
behind.
MF Global Inc. Investigation Report and Prior Senate Banking Committee 
        Testimony Recommendations
  7)  Strict Liability for Senior Officers and Directors

    Because regulations require futures commission merchants (FCMs) to 
segregate customer funds at all times, it may be appropriate to impose 
civil fines in the event of a regulatory shortfall on the officers and 
directors who are responsible for signing the firm's financial 
statements. Where there is a shortfall in customer funds, Congress 
should consider making the officers and directors of the company 
accountable and personally and civilly liable for their certifications 
without any requirement of proving intent and without permitting them 
to defend on the basis that they delegated these essential duties and 
responsibilities to others.

  8)  Commodities Customer Protection Fund

    The liquidation of MF Global would have played out differently had 
there been even a modest protection fund for commodities customers--
that is, a separate and distinct analog to SIPA in the FCM arena that 
learns from and builds on SIPA's record of success. A fund limited to 
protecting these smaller accounts--representing many farmers and 
ranchers--could be of relatively modest size, but would suffice to make 
these customers whole very quickly even in a case with a shortfall the 
size of MF Global's. With such a fund in existence, three-quarters of 
MF Global's commodities customers could have been made whole within 
days of the bankruptcy filing.
Conclusion
    Since 1970, the SIPA statute has succeeded in protecting customers 
of SIPC-member brokerage firms, and I believe strongly that the statute 
has met its policy goals. In particular, the Lehman and MF Global 
liquidations are an indication that SIPA, SIPC, and the concept of the 
liquidation trustee work to protect customers and return assets to them 
as quickly as possible in a manner that is fair and consistent with the 
law. With consideration given to modernizing elements of the statute 
and related laws and regulations, I believe the shared goal of 
continuing and strengthening protection of investors, particularly 
nonprofessional investors, can be achieved.
    Thank you Chairman Crapo, Ranking Member Warner, and other Members 
of the Subcommittee for the opportunity to testify before you and to 
submit this testimony for the full record of the hearing.

              Additional Material Supplied for the Record

               PREPARED STATEMENT OF RICHARD R. CHEATHAM
                           September 30, 2015
    I'm a 72-year-old lawyer in Atlanta, officially retired at 1/1/2015 
but still actively consulting with those who became responsible for my 
former clients. I obtained my undergraduate degree from the University 
of Virginia and my law degree from Harvard. I was fully active for 
slightly more than 45 years in a large firm practice representing 
primarily commercial banking institutions in corporate and regulatory 
matters.
    I am also a slightly embarrassed victim of the Allen Stanford Ponzi 
scheme. I have a good excuse. My broker had and used discretionary 
authority. Prior to having a heart attack in 2007 I managed my own 
investments. Like many lawyers, I clearly see all risks and cannot 
bring myself to invest in anything not guaranteed by the full faith and 
credit of the U.S. Government. After the heart attack, realizing I 
might actually be required to retire, I gave discretionary authority to 
a contemporary of mine who I trusted. He later retired and left his 
clients in the care of his two sons. Against my better judgment, I kept 
my account with the sons, principally because I had a son just starting 
out and empathy kept me from communicating or acting on a lack of 
confidence in youth and inexperience. Subsequently, exercising their 
discretionary authority, without any action or instruction by me, the 
sons sold $300,000 of my securities held by the Stanford SIPC insured 
firm and caused the proceeds to be transferred to the Stanford Ponzi 
scheme.
    Before the SEC sued SIPC I had not paid much attention to the 
possibility of SIPC coverage. I was attempting to recover my losses 
from my individual brokers' insurance policies, an attempt so far 
frustrated by an injunction issued at the SEC's request in the Texas 
Receivership proceeding. I was vaguely aware that the SEC had initially 
taken the position that SIPC did not cover the Stanford victims, but I 
had not attempted to look at the coverage issue myself.
    However, shortly after the SEC filed suit, I looked at some 
documents in the case to get a feel for what was going on. I don't 
recall exactly what I looked at, the complaint and answer or documents 
associated with some motion, but those documents made it apparent that 
SIPC was attempting to defend by creating a largely fictional factual 
scenario in which the Stanford scheme could be characterized as an 
investment gone bad rather than an intentional theft. SIPC also 
asserted, in an effort to avoid the SIPA ``customer'' definition, that 
the Stanford victims had dealt directly with the Antiguan bank and that 
no funds or custody securities held by the SIPC member were involved. 
That fictional scenario characterized the subject investment as a CD in 
an offshore bank. According to that scenario Stanford securities 
brokers ``counseled investors to purchase certificates of deposit from 
an Antiguan bank . . . [and t]he Antiguan bank's CDs eventually became 
worthless.''
    The real facts are that the Antiguan bank was just the cover story 
for a massive Ponzi scheme theft. The CD's did not ``become'' 
worthless. The principal shareholder of the SIPC insured brokerage firm 
was using the funds generated by his firm's brokers (compensated by 
above market commissions) for personal purposes and to cover his prior 
thefts. Legally, that knowledge was imputable to the brokers who 
executed the thefts. The CDs were worthless and fictional from the get-
go, just like Bernie Madoff's fake statements depicting fictional 
investments in his Ponzi scheme whose victims were protected by SIPC.
    To avoid the SIPA ``customer'' definition, SIPC's creative 
``facts'' assumed that each purchaser of the ``CDs'' opened an account 
with the offshore bank and sent a separate check or wire transfer 
directly to that bank and received a CD in return. The suggestion being 
that the transaction was wholly apart from and independent of the 
victim's relationship with the insured brokerage firm. That was 
certainly not true in my case. I had my ``self-directed IRA'' at 
Stanford. It was moved there from Morgan Keegan when my brokers changed 
firms. The Stanford brokerage firm was the fiduciary custodian of my 
securities and funds. As with any IRA I had no direct control over the 
funds and could not write a check or direct a wire transfer from my 
account with the SIPC insured firm. Without any action on my part, my 
Stanford brokers caused the sale of $300,000 in my securities held by 
Stanford and ``invested'' the proceeds in the fake ``Stanford CDs.'' In 
other words Stanford, the SIPC member, sold my custody securities and 
gave the proceeds to Alan Stanford for his personal use. Those facts 
support undeniable coverage by SIPC.
    After looking at SEC/SIPC the case documents, I called Matthew 
Martens who was listed in the pleadings as the SEC's lead counsel. The 
purpose of the call was to describe my fact situation to make the SEC 
aware that SIPC's version of the facts was simply not true, at least 
for a substantial number of victims. The SEC only gets one shot to 
force SIPC to cover claims against an insured defunct broker. If the 
facts support the claim of any customer for SIPC insurance, the SEC can 
force a SIPC receivership and let each individual customer make his/her 
claim. I wanted to make sure that the SEC knew that there were Stanford 
victims who did not fit within SIPC's hypothetical scenario. To my 
surprise Martens answered the call. I told him who I am and fully 
described the facts surrounding my becoming a Stanford victim. I told 
him I thought my facts and those of other IRA beneficiaries were 
``perfect'' to demonstrate that funds and/or custody securities had 
been delivered to the SIPC member contrary to SIPC's theory of the 
case. He sounded appreciative and gave me the impression he was taking 
down my contact information. He assured me that I would receive a call 
from SEC staff.
    I never received a call from SEC staff. That didn't bother me. I 
had just wanted to make sure the SEC was aware of fact patterns like 
mine to prevent its falling for the SIPC story line. I was sure that 
many, if not most, other victims had fact patterns more like mine than 
like SIPC's hypothetical.
    Months later when I read the District Court's decision I was 
dumbfounded by the description of the fact stipulation that the SEC had 
agreed to in the case. The stipulation simply mimicked SIPC's creative 
hypothetical. Because of my conversation with Marten's I knew that the 
SEC was fully aware that the facts it stipulated simply were not true 
for all, perhaps most, of the Stanford victims, that the actual facts 
surrounding my ``investment,'' and I assumed many others, were 
inconsistent with the factual assumptions included in the District 
Court's analysis. As a lawyer I understood that the SEC/SIPC fact 
stipulation, if it became ``final'' in the District Court case, would 
be dispositive on the issue of SIPC insurance for all the Stanford 
victims. Stanford victims could not sue SIPC directly, only the SEC 
could enforce their congressionally created rights. Also, under the 
universally recognized principle of res judicata, the SEC only gets 
``one bite at the apple.'' It has the right to bring one lawsuit to 
force SIPC to live up to its statutory obligations. The facts 
established in that lawsuit are binding on everyone forever. The SEC 
cannot bring a second suit hoping to prove a different set of facts 
supporting its claim.
    After I read the decision, I called one of the law firms 
representing large groups of Stanford victims in various class actions 
to encourage it to intervene in the District Court case before it 
became final in order to contest the fact stipulation. Otherwise all 
Stanford victims would be bound by the stipulation in any efforts to 
recover their losses from SIPC insurance. The law firm, which wasn't 
involved in SIPC coverage issues, didn't seem interested. Thus, I 
reluctantly filed an intervention myself, reciting my facts and 
demonstrating why I believed the District Court would reach a different 
decision on ``real facts'' as opposed to the stipulated facts.
    I didn't have much hope that my intervention would accomplish 
anything. Judges are understandably disinclined to question the 
competence or good faith of Federal administrative agencies. 
Nevertheless, the issue was critical to SIPC coverage for the Stanford 
victims. I had to try to do whatever I could. In my intervention 
petition I described my facts and made what I thought was a compelling 
case for a result different from the one Judge Wilkins reached on the 
stipulated facts.
    In its response to my intervention, the SEC did not really argue 
that I was wrong on the merits. It essentially conceded that my facts 
were materially different from the stipulated facts and, by 
implication, that my facts might result in a different outcome. The SEC 
then cynically assured the District Judge that it would review my facts 
and, if warranted, commence a new action against SIPC to force a 
receivership with SIPC coverage. To me that response was an intentional 
misrepresentation by the SEC to the District Court. The SEC had known 
my facts for months. It did not need to investigate those facts. They 
were not that complicated. In addition, bringing a later action in an 
effort to prevail against SIPC on a different set of facts was 
precluded by res judicata.
    In my reply to the SEC's opposition to my motion to intervene I 
pointed out that the SEC had known my facts for months and that a later 
action based on different facts would be precluded. However, Judge 
Wilkins never read my reply. I filed my reply late on Friday before 
Labor Day weekend. The Judge issued an order denying my intervention on 
Tuesday after the Monday holiday. As a pro se litigant I had to file a 
paper response, rather than an electronic one which would have been 
available to the Judge over the weekend. The Judge couldn't have seen 
my reply until that Tuesday. It's not realistic to assume that the 
judge read and considered my reply and then wrote and entered on the 
same day an order that never mentions my reply. He had obviously 
already written the decision and was just waiting for the time for my 
reply to expire before entering it.
    I don't blame Judge Wilkins. Then, if I were a judge and the SEC 
assured me that it would protect an intervener's interests, I would 
have denied the intervention. Interveners are often ``nut cases.'' 
That's especially true in cases where a
Government agency charged with protecting a group of citizens is acting 
within its expertise and someone mere citizen wants to add in his two 
cents. The District Judge undoubtedly believed that the SEC would and 
could do what it said.
    It was obvious that I couldn't get the District Judge's attention 
in the face of unprincipled SEC opposition. I had 30 days before the 
decision denying my intervention became final. My only chance was to 
see if I could get the SEC to correct its false assertions. 
Accordingly, on September 11, 2012, I sent an email to the SEC's David 
Mendel with a copy to Matthew Martens, as follows:

        I was not surprised that Judge Wilkins did not read my reply 
        brief after both the SEC and SIPC opposed the motion.

        As I told you before, I still can't figure out where the SEC is 
        coming from in this proceeding.

        I didn't know this when I filed my motion, but the Receiver's 
        Web site indicates that there were more than 1,400 Stanford 
        Trust Company victims of the Ponzi scheme. Given the way the 
        scheme operated, each of those victims had his/er IRA with SGC. 
        While I recognize that the IRA relationship with an introducing 
        broker is somewhat ambiguous, there is little doubt that SGC 
        had control over those IRA funds sufficient to meet the 
        ``entrusting'' test applied by Judge Wilkins. Contrary to 
        paragraph 3 of your stipulation, none of those victims opened 
        an account with SIBL and none of those victims wrote a check or 
        wired funds to SIBL. In each case SGC, on its own, transferred 
        money from the victim's IRA with either Pershing or J.P. Morgan 
        and had funds wired from the custody broker to a third party 
        bank (the bank recipients varied I am told). Where the funds 
        went from there, I can only guess, but SGC certainly knew and 
        I'll bet any amount that they ended up in the Ponzi scheme.

        I don't think the SEC can sue SIPC again based on a different 
        set of facts, though I'm certainly open to listening to your 
        contrary theory if you have one. I suspect your suggestion to 
        the contrary convinced Judge Wilkins to deny my motion without 
        even reading my reply. If I appeal Judge Wilkins' order denying 
        my motion, the Court of Appeals may overrule Judge Wilkins' 
        denial, but the odds are against it. The Court of Appeals 
        might, however, be influenced by the undisputed record that my 
        facts are true and leave open my claims (but perhaps not others 
        who didn't intervene). I don't see much hope for the 1,399 
        other IRA victims unless the SEC moves now to reconsider the 
        denial of my motion and blows the fact stipulation.

        There is some chance that the SEC can get a reversal of Judge 
        Wilkins' `entrusting' analysis, though I am doubtful in the DC 
        Circuit. As I said in my reply, I agree with your conclusions. 
        However, to me the `entrusting' issue is a slippery slope. It 
        sounds reasonably convincing on the stipulated facts, but not 
        at all on the IRA facts. If you start your analysis with the 
        IRA facts, you realize that your analysis on the stipulated 
        facts is wrong. The SEC/SIPC fact stipulation starts at the 
        bottom of the slippery slope and hopes that the judge will 
        slide up.

        The SEC can minimize its exposure here by moving that Judge 
        Wilkins reconsider his denial of my motion and essentially 
        reopening the case. If the trial court record closes as it is 
        there are very serious publicity and pending litigation risks 
        for the SEC that you can imagine as well as I can. I'm not 
        going away and this issue is not going away. I am prepared to 
        take the issue as far as I can. $300,000 is a lot of money to 
        me, and I don't have time to earn it back. I'm almost 70 and 
        have time on my hands. I'm not a part of any Stanford victims 
        group and really don't have any sympathy with such heavy-
        handedness. I don't even know (or want to know) any Louisiana 
        Republicans. I'm not a mindless crusader. I am a pragmatic 
        lawyer who prefers solutions that are in everyone's best 
        interest. But, if that is unachievable, I can be a pig-headed 
        lawyer who doesn't tire easily.

        I'm on your side and, consistent with protecting the IRA 
        victims, will do anything to advance our common cause.

Mendel and Martens did not reply. Not easily put off, I followed up 
with an email on September 21, 2012, as follows:

        It has been well over a week since I sent you the email below. 
        Yet, I have no response. Rule imposed time limits on motions to 
        reconsider Judge Wilkins' September 4 order denying my motion 
        to intervene are running. My patience is not limited solely by 
        my psyche.

        I've reached out to you a couple of times in an effort to 
        commence a dialogue about ways we might achieve common goals 
        without acrimony. I recognize that my motion to intervene could 
        be interpreted as critical of your competence and/or good 
        faith. My initial assumption has been that your agreement to 
        the fact stipulation was an innocent mistake. I know you are 
        both very busy. We all make mistakes, particularly in matters 
        that are low on our priority lists.

        Because the SEC initially decided not to bring this action, it 
        has been asserted that the SEC only did so in response to 
        political pressure. In that context, I can understand the SEC's 
        possible ambivalence about the outcome. Politicians will claim 
        credit if the suit is successful, and if you lose, the SEC's 
        initial reluctance will appear more credible. I am sure that 
        ambivalence impacts the SEC's priorities and your consequent 
        attention to this litigation.

        I understand your reluctance to begin a dialogue. If I were 
        you, I would prefer that I just fade away. But, I won't. There 
        is a possibility that no one will notice anything I file with 
        the courts and that you will not be embarrassed by it. Given 
        the emails I've received from Stanford victims I've never heard 
        of, I doubt that. I do not intend to file anything embarrassing 
        to you unless you force my hand.

        At page 5 of your memorandum in opposition to my motion to 
        intervene, you made the following statement:

        `None of this is to say that there is no opportunity for Mr. 
        Cheatham's situation to be addressed under SIPA. Consistent 
        with SIPA, the Commission will consider Mr. Cheatham's factual 
        situation, investigate his claims as necessary, and, if the 
        Commission deems it appropriate, refer the facts to SIPC for 
        appropriate action, including potentially a liquidation 
        proceeding.'

        That statement, based on my understanding of the law, is 
        materially misleading in that it fails to disclose that even if 
        the SEC took the action specified, unless the SEC prevails in 
        this action based on the stipulated facts, SIPC could (and 
        undoubtedly would) summarily deny any recommendation with 
        respect to my claim by the SEC. If so, the SEC could not sue 
        SIPC to overturn that summary denial. SIPC's success in this 
        action would preclude any subsequent action by the SEC to seek 
        the same remedy under principles of res judicata without regard 
        to any differences between my facts and the SEC/SIPC stipulated 
        facts.

        Based on the foregoing misleading representation by the United 
        States of America Government agency with principal 
        responsibility for the protection of investors and the 
        assurance of securities market integrity, I would have done 
        exactly what Judge Wilkins did and denied my motion to 
        intervene. I have asked you to provide me with whatever support 
        you have that demonstrates the truth of your statement. You 
        have not.

        In my view, if your statement about your future ability to 
        protect my interests and those of others similarly situated is 
        not supportable, you are legally required to so inform Judge 
        Wilkins.

    Again I received no response. Undaunted, I sent another email to 
Mendel and Martens, this time simply directing them to the page at the 
DC Bar's Web site setting out its ethics rule 3.3:

Rule 3.3--Candor to Tribunal

      (a)  A lawyer shall not knowingly:

      (1)  Make a false statement of fact or law to a tribunal or fail 
        to correct a false statement of material fact or law previously 
        made to the tribunal by the lawyer, unless correction would 
        require disclosure of information that is prohibited by Rule

  1.6; [3]  Legal argument based on a knowingly false representation of 
        law constitutes dishonesty toward the tribunal. A lawyer is not 
        required to make a disinterested exposition of the law, but 
        must recognize the existence of pertinent legal authorities. 
        Furthermore, as stated in subparagraph (a)(3), an advocate has 
        a duty to disclose directly adverse authority in the 
        controlling jurisdiction that has not been disclosed by the 
        opposing party and that is dispositive of a question at issue. 
        The underlying concept is that legal argument is a discussion 
        seeking to determine the legal premises properly applicable to 
        the case.

Finally, a response from Martens:

        We received your emails of September 11, September 21, and 
        October 1, 2012. While we are aware of your disagreement with 
        our litigating positions, we stand by the briefs filed and the 
        stipulations entered into by the SEC in the SIPC matter. The 
        stipulations are a fair representation of the facts as we 
        understand them. We do not think that your particular 
        circumstances, as described in your communications with us and 
        in your District Court filings, change our analysis of the 
        proper litigation posture for this case. And, for the reasons 
        stated in our response to your motion to intervene, we do not 
        think you met the appropriate standard for intervention in the 
        District Court.

        That said, SEC staff are gathering relevant records that 
        pertain to you so that a determination can be made as to 
        whether to refer your set of facts to SIPC for appropriate 
        action. We are unaware of conclusive authority (nor have you 
        cited any such authority, even in your Reply brief) that would 
        foreclose the SEC from seeking additional action from SIPC with 
        regard to holders of SIBL CDs on a materially different set of 
        facts. If there is a res judicata defense that might be lodged 
        against such a second effort, we do not think that we misled 
        the Court in any way with respect to the potential existence of 
        such a defense.

        We understand your frustration with the outcome in the District 
        Court. However, we disagree with your suggestions that I or 
        other SEC attorneys have not met our professional 
        responsibilities in this matter.

    Another lie: ``The stipulations are a fair representation of the 
facts as we understand them.'' The statement that there is no 
``conclusive authority'' that res judicata would bar a subsequent 
action is a bit more subtle. It is possible that the U.S. Supreme Court 
could hold that the SEC's action against SIPC is an exception to the 
time honored principle of res judicata, but the odds against that are 
more than a million to one. I am not aware of any exception to the 
principles of candor that excuses probable lies that are not 
``conclusively'' false. Finally, the SEC was not ``gathering relevant 
records'' that pertained to me. I had many of those records and was 
never asked for them by the SEC.
    I was virtually certain that the Court of Appeals would affirm 
Judge Wilkins' decision based on the SEC/SIPC fact stipulation. It was 
obvious to me that the SEC legal staff had been totally captured by the 
securities industry. It did not surprise me that Martens soon left the 
SEC to join WilmerHale where he represents the industry. He probably 
made more than my $300,000 in his first 3 months, but it will be a long 
time before he earns more than was lost by the other 1,399 Stanford IRA 
customers he shafted.
                                 ______
                                 
                PREPARED STATEMENT OF LAURENCE KOTLIKOFF
 Senate Committee on Banking, Housing and Urban Affairs Field Hearing 
                         Baton Rouge, Louisiana
                             August 3, 2015
    Mr. Chairman, I deeply appreciate your invitation to participate in 
this hearing of the Senate Committee on Banking and Urban Affairs to 
review the performance of the Securities Investor Protection 
Corporation (SIPC) following the failure of Stanford Group Company 
(SGC), the SIPC member broker-dealer, which played a strategically 
important role in Allen Stanford's massive fraud by which he stole the 
investment deposits of some 8,000 customers for his private, personal 
use.
    Like most Americans who place funds with a federally registered 
brokerage firm for investment in national and international equity and 
debt securities, I had paid little attention to the performance of SIPC 
in its administration of the Securities Investor Protection Act of 1970 
(SIPA), assuming the advertised protection of up to $500,000 per 
account would be readily available should the failure of your broker 
occur. However, the failure of Bernard Madoff's firm following his 
confession of Ponzi fraud--in which I personally know victims who 
suffered serious financial loss, with no help from SIPC--opened my eyes 
to the unsettling and shameful reality of SIPC's quick recourse to 
self-preservation mode.
    If there were any lingering doubts as to self preservation being 
SIPC's prime motivation for its decisionmaking, they should be put to 
rest by its obstinate refusal to initiate a liquidation in the Stanford 
Financial Group fraud--capped by its arrogant judicial challenge to the 
directive from its plenary oversight authority, the Securities and 
Exchange Commission (SEC).
    Certainly many of your colleagues, with constituencies untouched by 
either of these massive Ponzi frauds, simply have not acquainted 
themselves with the extent of SIPC's departure from the congressionally 
intended objectives of SIPA in 1970. That legislation was the product 
of earnest cooperation and constructive negotiation between the 
securities industry's leadership and the Congress with the active 
participation of the Nixon Administration's Treasury Department and the 
SEC. The statute was enacted in response to a rash of broker-dealer 
failures in order to boost investor confidence.
    Today, no investor can be confident their assets are protected by 
SIPC as Congress intended when SIPA was enacted.
    Senator Vitter, I commend you for holding this field hearing to 
build a record to educate your colleagues. I also commend the esteemed 
Chairman of the Senate Banking Committee, Senator Richard Shelby, for 
authorizing you to do so. It is vitally important for the national 
public to understand how SIPC's flawed administration of SIPA has 
denied the customer-victims of Allen Stanford's fraud the protection 
from total financial loss they have rightfully expected. As you well 
know, the personal suffering of your own constituents is a direct 
consequence of SIPC's narrow, hyper-technical perspective of its 
mission under SIPA's remedial provisions.
    It is also vitally important that the public and your colleagues in 
Congress have a clear understanding of SIPC's misguided conduct and 
likewise the remarkably erroneous judicial decisions that have affirmed 
SIPC's actions--or in the Stanford case--glaring inaction.
    It is absolutely beyond dispute that the preeminent congressional 
objective in the passage of SIPA was to bring stability to the national 
securities markets through the restoration--and then maintenance--of 
the general public's confidence in participating as investors in equity 
and debt securities. Maintaining that public confidence is even more 
important in 2015 than it was 1970 because of the exponential growth of 
the rank and file investors who participate in the securities market as 
a means of building a secure financial future.
    It should be duly noted that SIPA was enacted as an amendment to 
the Federal securities laws and not as an amendment to the Federal 
Bankruptcy Act. Not only did SIPA establish a special liquidation 
process for failed SEC-registered and regulated broker dealer firms, 
but it included special provisions not available in a traditional 
bankruptcy liquidation administered under the U.S. Bankruptcy Code. 
These provisions were specially designed to maintain public confidence 
in securities investment and, thereby, stabilize the structure of our 
capital markets by giving priority to broker-dealer customer claims 
over all other unsecured creditors in the liquidation process.
    The three most unique and critical features of SIPA that 
differentiate a SIPC-administered liquidation from a traditional 
bankruptcy proceeding are:

    (1) The SIPC Fund, capitalized by annual assessments of the 
securities firms, which provides a resource for mitigating losses not 
recoverable from the debtor's estate up to a cap of $500,000 per 
customer account;

    (2) ``Customer property,'' a privileged division of the debtor's 
estate, with prioritized claims allocations placing the brokerage 
firm's customers ahead of all other unsecured creditors; and

    (3) Repeated directives throughout the statute for promptness in 
actions for processing customer claims, due to the significant 
disruption to the financial affairs of individual customers.

    For SIPA to fulfill its priority objective of maintaining public 
confidence in our securities markets, it is essential for SIPC and the 
Federal courts to be attentive to giving effect to these special 
features that are provided for in the unique liquidation proceedings 
administered under SIPA. Conflating SIPA's unique provisions, which are 
utterly separate from those of a traditional bankruptcy proceeding, is 
contrary to the very spirit in which SIPA was enacted.
    Yet that is exactly what SIPC has done, and it has done so in the 
name of self-preservation--at the expense of innocent brokerage 
customers who entrust their savings to a SIPC-member firm.
    SIPC's principal, self-serving misapplication of SIPA in the 
Stanford case was most evident in its abuse of discretion in its 
interpretation of the term ``customer.'' SIPC chose to dance on the 
head of a pin by advancing legal arguments that gave credibility to a 
fraudulent shell company organized under the laws of Antigua and 
Barbuda, Stanford International Bank (SIB), rather than accepting the 
factual finding of U.S. Federal courts that landed Allen Stanford in 
prison with a 110-year sentence and a $6 billion forfeiture fine.
    By not recognizing the Stanford fraud as a closely controlled, 
unified scheme in which SGC served as the engine of a massive scheme 
created solely to misappropriate customer funds, SIPC was able to argue 
that the SIB CD investors were not SGC customers. SIPC, in its self-
preservation mode, shockingly made legal arguments in direct conflict 
with the factual findings in numerous judicial proceedings in the 
District Court for the Northern District of Texas, and affirmed by the 
Fifth Circuit Court of Appeals.
    Instead of accepting the findings of the other Courts, SIPC argued 
the legitimacy of SIB, and insisted it was a completely separate entity 
from the SIPC-member, SGC. By making this argument, SIPC had found its 
loophole to deny protection to investors whose funds were stolen by the 
owner of one of its member firms. SIPC determined those investors were 
SGC clients, but not its ``customers'' under SIPA, which SIPC 
astonishingly deemed a ``statutory term of art'' Congress used when 
enacting SIPC's singular guiding statute--SIPA. The SEC, in the true 
spirit of SIPA, disagreed.
    Allen Stanford owned and controlled the Stanford Financial Group of 
Companies, which included numerous corporate entities, including SGC 
and SIB. The U.S. Courts all the way up to the Supreme Court had 
already determined and/or acknowledged that ALL of Stanford entities 
operated as one unified, fraudulent enterprise operating out of 
Houston, Texas. SIPC disagreed.
    While the District Court overseeing the Receivership proceedings of 
the Stanford entities determined that corporate disregard doctrine 
applied to SIB because, ``It would defy logic and run afoul of equity 
to treat a fictitious corporation as a real entity.'' But SIPC was not 
looking to see the logic.
    The Receivership Court stated, ``This Court will not engage in 
semantics that obfuscate the purpose of the statute'' (in this 
instance, the Chapter 15 provision under the U.S. Bankruptcy Code). 
SIPC deemed itself a higher authority than the Receivership Court, and 
chose to engage in semantics in order to obfuscate the purpose of its 
guiding statute.
    The Receivership Court determined that ``not aggregating the 
entities . . . would perpetuate an injustice.'' SIPC chose to 
perpetuate an injustice.
    SIPC found none of the factual findings in dozens of civil 
litigation proceedings related to the liquidation of the Stanford 
estate to be persuasive. Instead, SIPC refused to accept the holistic 
view of Stanford's fraudulent enterprise and remained adamant in its 
refusal to initiate a liquidation of SGC, the broker-dealer entity, 
with which all U.S. purchasers of the SIB CDs were obligated to sign 
customer agreements.
    Faced with an implacably negative SIPC, customers of a failed 
broker-dealer such as SGC have only one avenue of recourse to have 
their cause reviewed by a Federal court--and that is to petition the 
SEC. The Stanford Victims Coalition (SVC), to its great credit, refused 
to surrender to SIPC's arrogant obstinacy to recognize the facts in the 
Stanford case. The SVC generated thousands of pages of documentary 
evidence of the pivotal role played by the SIPC-member broker-dealer in 
the conduct of the fraud. With strong support from more than 100 
Members of Congress, led by you, Senator Vitter, and Senator Cassidy, 
the SEC agreed with the view of Federal District Court that the 
Stanford fraud had to be viewed as a singular entity that acted through 
its most logical and obvious pubic interface--SGC, the SIPC-member 
broker dealer. By obliging prospective investors to register as 
customers of SGC, Stanford was assured that a sales force of FINRA 
Registered Representatives who would have direct access to wield their 
sales magic (and of course to be compensated generously from the 
customers' deposited funds).
    Using its express authority under SIPA, which gives unquestioned 
vitality to SEC's role as plenary oversight authority over SIPC, the 
SEC Commissioners voted to direct SIPC to initiate a SIPA liquidation 
of SGC. After months of fruitless discussion with SIPC and its 
appointed Board, the SEC turned again to the statute and applied to the 
Federal District Court in the District of Columbia for an order in 
support of its directive for SIPC to initiate a liquidation of SGC. 
This marked the first time in the 44 years of SIPA's history that the 
SEC had felt compelled to exercise this extraordinary power in its 
oversight authority.
    The next chapter of this inconceivable saga should surely infuriate 
a preponderant majority in the Congress, and awaken all to their sworn 
obligation to ensure that the intent of the Congress--most particularly 
in remedial statutes such as SIPA--is faithfully fulfilled by those 
charged with administrative responsibility. In an act of indescribable 
arrogance and disobedience, SIPC refused to comply with the SEC's 
directive and formally contested the SEC's application for an order 
enforcing its directive to SIPC. The SEC had no choice but to invoke 
its legislative authority to initiate an enforcement action against 
SIPC by filing a lawsuit for its blatant failure to discharge its 
obligations under SIPA.
    Regrettably, SIPC's insolent and irresponsible performance in this 
case has been eclipsed by decisions of both the District Court and the 
Circuit Court of Appeals for the District of Columbia upholding SIPC's 
legal challenge and denying the SEC's application for a Court order to 
enforce its directive to SIPC. The two Courts take different 
interpretive reasoning to reach the same indefensible conclusion. What 
their decisions have in common, other than outcome, is the application 
of SIPC-manipulated interpretations of SIPA that are completely devoid 
of logic and commonsense. Both decisions benefited from an inexplicable 
trial-level error by SEC counsel, by entering into a stipulation of 
facts, which erroneously asserted that SGC customers had direct contact 
with SIB and made their payments directly to SIB. The reality is that 
the contact was exclusively with SGC, and payments were executed on 
SGC's instruction.
    It is vitally important for the Congress to understand the faulty 
interpretive reasoning of each Courts--particularly so because the 
Circuit Court's decision is now the current controlling case law 
concerning the extent of the authority granted by the Congress to the 
SEC in the oversight of SIPC's operations. Beginning with the District 
Court, it devoted most of its interpretative efforts to a determination 
of the standard of proof, which the SEC must meet to obtain the Court 
order enforcing its directive to SIPC. Since the SEC's request was 
unprecedented, there was no guiding case law, and SIPC used that 
reality to its advantage. Was the standard to be based on ``probable 
cause,'' the standard applicable to SIPC applications to initiate SIPA 
liquidation? No, the Court decided that ``due process'' required a 
sterner burden, namely, ``a preponderance of the evidence.'' It reached 
that conclusion by reasoning that since SIPC is a private entity funded 
by private firms, it should be accorded the same ``due process'' 
applicable to other private parties within the SEC's regulatory ambit--
for example, a securities firm facing an enforcement action for alleged 
violation of the Federal securities laws. Even one trained in the 
``dismal science'' rather than the law might conclude that the Court's 
reasoning doesn't pass the ``apples and oranges'' test. But that 
tortured reasoning, coupled with the SEC's stipulation blunder, was 
enough for the District Court to deny the SEC's application and 
effectively neuter the SEC's directive to its subsidiary agency.
    The SEC took the matter to the Circuit Court of Appeals. Certainly 
this Court would see the folly of the District Court's analysis. And it 
did, but it also conjured a folly of its own. It didn't bother with the 
``standard of proof'' issue. Moreover, it seemed to embrace the unified 
enterprise view that within Stanford's controlled empire, all of its 
parts were essentially interchangeable. But what appeared to be an 
enlightened view suddenly darkened when the Court embraced an equitable 
theory of consolidation by which a customer's legal relationship with 
the SIB as a CD holder is transferred to the broker-dealer, SGC. This 
finding opened the door for SIPC's back-up legal argument.
    SIPC argued that ``if'' equitable consolidation was considered by 
the Court, the fact the CDs were ``debt instruments''--as many 
securities are--the CD investor was ``lending'' money to the SIB; and 
therefore a claim with SIB for debt owed to its customers would be 
equivalent to a claim for SGC's debt--triggering a rarely used customer 
exclusion provision under SIPA which restricts claims that are for the 
for the overhead of the broker dealer. This exclusion was created in an 
amendment to SIPA to address claims for creditors who intentionally 
loaned funds to a brokerage firm that then became insolvent. Basically, 
the amendment to create this particular customer exclusion was to 
maintain the priority status a SIPA liquidation affords to investors 
who purchase securities from a brokerage firm over creditors who became 
a part owner of the firm--in other words, to protect those who invested 
WITH a brokerage firm, rather than IN a brokerage firm. By the way, 
SIPC advanced this same legal argument in at least three other very 
similar cases, which three different Circuit Courts deemed an invalid 
argument because--just like in the SIB CD purchasers--the customer's 
expectation was they were purchasing securities, not lending their 
money to their broker. Buttressing that argument three different times 
in three different cases didn't stop SIPC from making a last-ditch 
attempt to shun its obligation to protect investors. Such legal 
jabberwocky is adored by SIPC and its hired counsel, who make millions 
of dollars in profit in order to further SIPC self-preservation 
culture. Customer perspective and reasonable expectations be damned, it 
is what works for SIPC that counts.
    At the end of all the excuses, which did pan out for SIPC merely 
because it out-lawyered the SEC, SIPC protection for securities 
investors cannot possibly deliver the confidence-building benefits 
contemplated by the Congress because investors are subject to highly 
technical rules and exclusions never intended when SIPA was enacted. 
Such an approach destroys the remedial purposes of the statute.
    Additionally, Congress never intended to give legislative deference 
to a non-Government authority over the SEC. The result is SIPC 
operating above the law without regard for the intent of the remedial 
statute that created the organization.
    Senator Vitter, I like to believe that our elected representatives 
much prefer commonsense over arcane legal theories. If I'm correct, 
then you and your colleagues will conclude that a Congress which, in 
drafting the SIPA, made repeated calls for prompt action would not give 
the SEC the express authority to direct SIPC to initiate a 
liquidation--then turn on a dime to give SIPC the right to challenge 
that directive. Such an inconsistency is sharply at odds with the 
intent for SIPA liquidations to proceed with promptness in order to 
protect investors and facilitate investor confidence. Moreover, it is 
highly destructive of the SEC's legal authority as plenary overseer of 
SIPC.
    In conclusion, I'd like to express my strong support for S. 67: The 
Restoring Main Street Investor Protection and Confidence Act of 2015, 
which you have introduced in the Senate as a companion to the 
legislation authored in the House of Representatives by Congressman 
Garrett and Congresswoman Maloney, the Chairman and Ranking Member of 
the House Subcommittee on Capital Markets and Government Sponsored 
Enterprises. Passage of this legislation is urgently needed in order 
for investors across this country to be protected not only from thieves 
like Stanford and Madoff, but also from SIPC. Until Congress acts to 
restore the confidence building purposes of SIPA and to rectify the 
deeply flawed decision of the Second Circuit in the Madoff case and the 
equally problematic decision of the DC Circuit Court of Appeals in the 
Stanford case. Until then, the rank and file investor must be made 
aware of their own Government's lack of authority to force SIPC to 
protect their missing assets if their brokerage firm becomes insolvent. 
These investors must also keep in mind what level of protection covers 
his or her account if their brokerage firm fails and SIPC and its 
Trustee are permitted to value their Net Equity after the fact by using 
an absurd cash-in minus cash-out methodology Madoff customers have been 
stuck with.
    Regrettably, until your legislation is enacted, that is the very 
real uncertain state of affairs confronting American investors. I 
earnestly hope that you and Chairman Shelby and your original co-
sponsor from the 113th Congress, Senator Schumer will begin serious 
discussions among yourselves and with the co-sponsors of the House 
companion legislation, H.R. 1982, aimed at moving the legislation. It 
is my sincere belief that SIPC's misguided administration of SIPA and 
the Circuit Courts of Appeals' decisions affirming SIPC's actions pose 
a very real threat to U.S. investors. And the victims of the Madoff and 
Stanford frauds, numbering a total of over 10,000 innocent account 
holders including thousands of your own constituents here in 
Louisiana--most of whom are at, or near, retirement--have suffered for 
6 years waiting for a just resolution of their victimization by SIPC. 
Please awaken your colleagues to their plight. Thank you again for this 
public hearing.
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