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Dec. 28 (Bloomberg) — Bernard Madoff’s son Andrew must submit to a bankruptcy judge’s decision to permit a $198 million lawsuit to go forward because he sought that court’s protection when he filed a claim against his father’s estate, a federal judge said.

U.S. District Judge William Pauley in Manhattan last week declined to hear an appeal of the September decision in favor of Irving Picard, the trustee liquidating Bernard L. Madoff Investment Securities LLC, in his claim against Madoff family members including Andrew Madoff and the estate of Mark Madoff, who committed suicide in December 2010. Pauley’s written opinion was filed today in U.S. Bankruptcy Court in Manhattan.

“Because Mark and Andrew invoked the aid of the bankruptcy court by offering a proof of claim and demanding its allowance, they must abide by the consequences of that procedure,” Pauley said in his Dec. 22 decision, citing a U.S. Supreme Court ruling that also described limits to the power of bankruptcy judges. “There is no basis for them to insist that the issue be resolved” by a higher court, Pauley said.

Andrew Madoff asked Pauley in October to allow an appeal. In court papers filed in his own behalf and as executor of his late brother’s estate, he said the judge’s decision would result in a “massive expansion of liability” for managers of banks and large corporations for the wrongs of individual units.

Martin Flumenbaum, a lawyer for Andrew Madoff and Mark Madoff’s estate, said Pauley’s decision to return the case to bankruptcy court “is a procedural issue and has no bearing on the merits of the dispute.”

‘Without Merit’

Picard’s lawsuit is “wholly without merit,” Flumenbaum said in an e-mail today. “Mark and Andrew Madoff had no prior knowledge of Bernard Madoff’s crimes and contacted the U.S. Department of Justice and the SEC immediately after their father told them he had defrauded his investment advisory clients.”

U.S. District Judge Jed Rakoff took a different view from Pauley last month when he began reviewing five so-called clawback lawsuits brought by Picard. Rakoff faulted Picard for trying to keep the cases in bankruptcy court on the basis that the defendants had filed claims against the estate, saying that district judges have a “statutory obligation” to withdraw suits that require consideration of non-bankruptcy law.

Suing the Madoffs in 2009, Picard claimed the con man’s family used the firm as their “family piggy bank” and should be forced to turn over the money to victims of Madoff’s Ponzi scheme. He sued Mark and Andrew Madoff, as well as Bernard Madoff’s brother Peter Madoff and his niece, Shana Madoff Swanson. All the defendants held senior positions at the Madoff firm.

Burton Lifland

Picard claimed that the defendants failed to stop Madoff’s fraud and instead chose to profit from it. In the September ruling, U.S. Bankruptcy Judge Burton Lifland ruled that Picard could pursue most of his claims against the Madoffs and gave him the opportunity to amend his complaint.

Picard, who increased the amount of money he sought in an amendment, asked Lifland yesterday to let him change the suit again, according to a court filing.

Madoff, 73, who pleaded guilty to charges of masterminding the biggest Ponzi scheme in history, is serving a 150-year term in a federal prison in North Carolina.

The case is Picard v. Estate of Mark Madoff, 11-Misc-379, U.S. District Court, Southern District of New York (Manhattan).

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Stumbled across this when I wrote of Dwight Howard as a 6-9 center. Some of you just could not accept the recorded fact that Dwight Howard is six-foot-nine. This, despite a link to evidence of Howard’s barefoot height. I was astounded, perplexed and in search of even more synonyms to describe a state of utter confusion, shock, and befuddlement. We have his pre-draft measurements–his pre-draft measurements! Why do you insist on listening to some sorcerer’s Magic listing?
Others believed that barefoot height does not matter because “in shoes” is the favored metric. I’ve heard it before, the argument goes: “They play in shoes.” I can be sympathetic to this logic line–for a second.
In-game Dwight Howard may well tower to 6-11. But, do we record NFL player height “in helmet”? Do we weigh boxers “in gloves”? Do we act like jockeys are centaurs and measure them “on horse”? Of course not, because there is no need to tweak traditional human measurements.
Moreover, there are those who aren’t listed “in shoes.” I asked around for some names of infamous height liars, and many thought Kevin Durant shaded short at 6-9. It turns out KD is just the victim of being a truth teller in a liar’s world. Per his draft combine, Durant really is a barefoot six-feet-nine-inches. But how are fans supposed to believe KD when he dwarfs a “6-9” guy who is 6-6 in real life? This is the problem with allowing a flexing metric to govern our perspective.
The good news: We have more accurate information on player height than ever before. Draft prospects used to get measured at the NBA’s pre-draft camp, an experience that was bundled with an intensive five-on-five drill. Many players eschewed the camp’s game action, so they also went unrecorded.
Starting in 2009, the NBA Combine allowed for athletes to undergo a physical while engaging in less strenuous drills. From that point forward, the data filled out–save for the occasional European prospect.
After the draft, teams got to (and get to) determine the height of their employees. This is what you see on the player card, and this is what largely informs the public idea of how tall a player is. There is a yearly physical to keep tabs, though teams rarely make changes. For example, the Warriors informed me that Andris Biedrins is their only player to receive a height alteration over the last decade, due to a spurt that took him from 6-11 to 7-0.
While I believe that teams are mostly honest in their height-recordings, the arbitrary “shoes or no shoes” allowance irks. It seems that a larger body should codify one way of doing this, rather than accept an over two-inch margin of error. And what if a team blatantly lies? I asked NBA spokesman Mike Bass about this, and he responded: “I am not aware of any instance where the team was asked (by the league) to change a player’s listed height.” Perhaps I am cynical and paranoid, but I could easily envision a dystopian future where David Kahn successfully trades “7-1” Michael Beasley.
For now, teams own the means of height deduction. Despite all the hard work Jonathan Givony of Draft Express does in compiling draft height data, the almighty player card is the loudest guy at the bar. When I asked him about team listings, Givony remarked: “Generally these pre-draft measurements are ignored when the NBA puts up the player’s heights on their rosters and bios online. Don’t ask me why.”
My theory: That official NBA seal is mightier than established facts. At least Givony’s numbers give me a reference point for my 2011-2012 All Height Liars Team. Without ado, further:
All Height Liars Team
PG: Jose Juan Barea (“6-0”): We don’t know Barea’s real height, but J.J. looks like he could bathe in a sealed thimble. This is my only data-blind submission, but only because Barea’s height deception is so easily seen.
SG: Tyreke Evans (“6-6”): Leon Trotsky’s political strategy was to announce the next far-fetched program right as you were beginning to mobilize against his current far-fetched program. Sacramento will try to convince you that Evans is a point guard. As your brain bounces like a slapped speed bag, they’ll tell you he’s 6-6. His pre-draft height is 6-4 and unlike Trotsky, he can’t maneuver left.
SF: Thaddeus Young (“6-8”): Thad is really 6′ 5.75.” I could just as easily rank Donte Greene here, but Young gets the edge on account of being a more notable player. Also notable: Three teams (Wolves, Kings, Sixers) have the market cornered on height liars. This may be because they’re replete with tweeners.
PF: Kevin Love (“6-10”): He measured at 6′ 7.75,” but that isn’t what makes Kevin Love’s height deception so dastardly. It’s that K-Love is photographed at the height level of a “6-8” Derrick Williams. Now some would say, “This makes his rebounding all the more impressive.” I’m not so forgiving. Turn in your World Championship trophy, you dirty heightener, you.
C: Spencer Hawes (“7-1”): He measured at 6′ 10.5,” the same as Joakim Noah did. But Spencer somehow gained a two-inch advantage on Noah in the official listing. If Hawes lacks leaping ability, it could be because he’s wearing platform shoes. …
I want accuracy, I want “in shoes” to be more unfashionable than socks with sandals. But as I look at this list, I can grasp why some cling to height vagaries, why you might prefer a “6-10” Kevin Love to an undersized striver. Disputed height provides more room for myth making, which is the essence of sports entertainment. These are the fables we tell each other, so as to inspire and awe. And if the sheer height of the giants animates our stories, can you blame people for wanting the freedom to embellish another inch or two? “In shoes,” is a license to take a man and make him Paul Bunyan. “In shoes” is so close to reality that it makes Paul Bunyan feel real.
Since he was picked in medieval times, we have no pre-draft record of Kevin Garnett’s stature. In hushed tones, basketball fans rasp, “You know, he’s really 7-1. He just hides his true height.” Perhaps he does. I would be quite disappointed to learn that there really is no psychological reason behind Garnett’s listing, that he really is a barefoot 6-11, that he only seems bigger in my mind’s eye. That one-to-three inch “in shoes” zone means a player can be tall as your imagination reasonably dictates. Even the doubt sown by a short-seeming listing can trigger Bunyan visions.
But I’m an “in socks” fanatic, congenitally averse to myth. I just want to know how tall Kevin Garnett is. And I just want you to know how tall Kevin Garnett is. fmlht111230
Kevin Love and height liars in shoes
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A brouhaha has erupted this week over the Nike shoe company’s release of a twenty-first century version of the wildly-popular “Air Jordan” athletic shoes.
Air Jordan shoes date to the mid-1980s during basketball star Michael Jordan’s NBA heyday. Nike’s re-release of the shoe line just before Christmas resulted in sporadic incidents of violence among young people clamoring to get their hands on a pair of the shoes. Even at a price of two hundred dollars per pair, news reports showed one such incident in Houston, Texas where police were needed to prevent riots from breaking out.
Community leaders pleaded with Nike officials encouraging them to lower the price of the Air Jordan shoes, presumably so that everyone could afford them. The Fox Television affiliate in Houston carried an interview with community leaders who were pleading for law and order. One of these spokesmen was a gentleman named Ben Mendez. Mendez was identified as a local Hispanic “business leader”. Mendez was quoted as saying that,“The people that can least afford these shoes are buying them, and what happens as a result of that? Well there’s more crime.”
One would think that Mr. Mendez, as a business leader, would have a firmer grasp on the principles of capitalism, specifically the laws of supply and demand. If the shoe price of two hundred dollars is resulting in hordes of people fighting over a limited supply of Air Jordans, do the aforementioned community leaders honestly believe that LOWERING the price of the shoes will result in an increased supply? The law of supply and demand states that, given a fixed supply, raising the price will decrease the demand for goods or services. Conversely, with the same fixed supply, decreasing the price will actually INCREASE demand – not decrease it. The fact that demand for Air Jordans is so great already allows one to make the argument that the price is really too LOW – not too high. If Nike were to increase the price, fewer people would be able to afford the shoes, demand would decrease, and we would see fewer incidents of violence, not more.
Look at it another way using gold as an analogy: Right now, gold is trading at around $1500 per ounce. But are people rioting in a frenzied quest to acquire the precious metal? No. And why not? Because it is expensive. Who does not like gold? Not many people. But we don’t hear business leaders imploring that gold producers lower the price so that everyone can have some. Can you imagine what would happen if the gold producers were suddenly forced to drop the price of their product? You would have a sudden rush for it as people would crawl over one another trying to get their hands on it at the reduced price. The demand would soon outstrip the supply and one of two things would have to happen: The price would have to increase to bring supply and demand back into equilibrium or the product would have to be rationed.
Short of instituting some sort of rationing for the Nike shoes, the producer should increase the price to help to quell demand.
Then again, we could merely wait for the government, in its infinite wisdom, to step in. Perhaps what is needed is some sort of taxpayer-funded voucher system. Then, as with cell phones, everyone can have a pair of Air Jordans and We The People would, no doubt, end up footing the bill.
James Sharp
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James Sharp is a middle-aged, middle-class, middle-management salesman who believes in secure borders and fighting our enemies with a strong military. He also believes in limited government, free markets, and unlimited opportunity and personal liberties for all citizens of the U.S. fmlht111230
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