Clawback activities to recover “false profits’’ from investors with Tom Petters can date back significantly further than the normal six-year statute of limitations, a bankruptcy judge ruled this week.
U.S. Bankruptcy Judge Gregory Kishel ruled that the trustee in the Petters corporate bankruptcy can go back up to 13 years from the 2008 bankruptcy filing to the beginning of the Petters Ponzi scheme in an attempt to collect alleged “fraudulent transfers” of money between the Petters operation and his early investors.
Bankruptcy trustee Doug Kelley said Kishel’s ruling means that up to $60 million in purported fraudulent transfers beyond the six-year statute of limitations can be subject to clawback attempts.
In a 58-page opinion, Kishel notes that the U.S. system of commerce relies on the fact that “a deal is a deal.”
“And yet,’’ the judge added, “there is that nagging point under it all: The money given to earlier recipients was likely [swindled] from later-coming investors and lenders; so how ‘just’ is it to allow earlier participants to keep the benefit of funds that had been ‘stolen’ from others before they received them?”
Petters raised money in his $3.65 billion fraudulent scheme by telling investors that they were financing the purchase and sale of consumer electronic goods when no goods existed. Instead, funds from new investors were used to pay off old investors.
According to federal authorities, the Petters operation dated from 1995 until the government shut it down in 2008.
“This addresses one of the inequities in the law of Ponzi schemes,” Kelley said in an interview Friday. “If investors got out early they could keep their principal and any false profits they made at the expense of those who got in at the end.”
Kelley originally filed 205 civil clawback cases. His bankruptcy teams have since settled or dismissed 80 of those. Of the 125 that remain, nearly $1.1 billion is being sought as false profits.
To date, the trustee has collected $310 million for the bankruptcy estate, including clawbacks.
The June 19 conviction of hedge fund manager James Fry, who lost $100 million of his investors’ money doing business with Petters, resolved the last remaining criminal case in the Petters Ponzi scheme.