[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] A LEGISLATIVE PROPOSAL TO AMEND THE SECURITIES INVESTOR PROTECTION ACT ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON CAPITAL MARKETS AND GOVERNMENT SPONSORED ENTERPRISES OF THE COMMITTEE ON FINANCIAL SERVICES U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION __________ NOVEMBER 21, 2013 __________ Printed for the use of the Committee on Financial Services Serial No. 113-53 U.S. GOVERNMENT PRINTING OFFICE 86-688 WASHINGTON : 2014 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected]. HOUSE COMMITTEE ON FINANCIAL SERVICES JEB HENSARLING, Texas, Chairman GARY G. MILLER, California, Vice MAXINE WATERS, California, Ranking Chairman Member SPENCER BACHUS, Alabama, Chairman CAROLYN B. MALONEY, New York Emeritus NYDIA M. VELAZQUEZ, New York PETER T. KING, New York MELVIN L. WATT, North Carolina EDWARD R. ROYCE, California BRAD SHERMAN, California FRANK D. LUCAS, Oklahoma GREGORY W. MEEKS, New York SHELLEY MOORE CAPITO, West Virginia MICHAEL E. CAPUANO, Massachusetts SCOTT GARRETT, New Jersey RUBEN HINOJOSA, Texas RANDY NEUGEBAUER, Texas WM. LACY CLAY, Missouri PATRICK T. McHENRY, North Carolina CAROLYN McCARTHY, New York JOHN CAMPBELL, California STEPHEN F. LYNCH, Massachusetts MICHELE BACHMANN, Minnesota DAVID SCOTT, Georgia KEVIN McCARTHY, California AL GREEN, Texas STEVAN PEARCE, New Mexico EMANUEL CLEAVER, Missouri BILL POSEY, Florida GWEN MOORE, Wisconsin MICHAEL G. FITZPATRICK, KEITH ELLISON, Minnesota Pennsylvania ED PERLMUTTER, Colorado LYNN A. WESTMORELAND, Georgia JAMES A. HIMES, Connecticut BLAINE LUETKEMEYER, Missouri GARY C. PETERS, Michigan BILL HUIZENGA, Michigan JOHN C. CARNEY, Jr., Delaware SEAN P. DUFFY, Wisconsin TERRI A. SEWELL, Alabama ROBERT HURT, Virginia BILL FOSTER, Illinois MICHAEL G. GRIMM, New York DANIEL T. KILDEE, Michigan STEVE STIVERS, Ohio PATRICK MURPHY, Florida STEPHEN LEE FINCHER, Tennessee JOHN K. DELANEY, Maryland MARLIN A. STUTZMAN, Indiana KYRSTEN SINEMA, Arizona MICK MULVANEY, South Carolina JOYCE BEATTY, Ohio RANDY HULTGREN, Illinois DENNY HECK, Washington DENNIS A. ROSS, Florida ROBERT PITTENGER, North Carolina ANN WAGNER, Missouri ANDY BARR, Kentucky TOM COTTON, Arkansas KEITH J. ROTHFUS, Pennsylvania Shannon McGahn, Staff Director James H. Clinger, Chief Counsel Subcommittee on Capital Markets and Government Sponsored Enterprises SCOTT GARRETT, New Jersey, Chairman ROBERT HURT, Virginia, Vice CAROLYN B. MALONEY, New York, Chairman Ranking Member SPENCER BACHUS, Alabama BRAD SHERMAN, California PETER T. KING, New York RUBEN HINOJOSA, Texas EDWARD R. ROYCE, California STEPHEN F. LYNCH, Massachusetts FRANK D. LUCAS, Oklahoma GWEN MOORE, Wisconsin RANDY NEUGEBAUER, Texas ED PERLMUTTER, Colorado MICHELE BACHMANN, Minnesota DAVID SCOTT, Georgia KEVIN McCARTHY, California JAMES A. HIMES, Connecticut LYNN A. WESTMORELAND, Georgia GARY C. PETERS, Michigan BILL HUIZENGA, Michigan KEITH ELLISON, Minnesota MICHAEL G. GRIMM, New York MELVIN L. WATT, North Carolina STEVE STIVERS, Ohio BILL FOSTER, Illinois STEPHEN LEE FINCHER, Tennessee JOHN C. CARNEY, Jr., Delaware MICK MULVANEY, South Carolina TERRI A. SEWELL, Alabama RANDY HULTGREN, Illinois DANIEL T. KILDEE, Michigan DENNIS A. ROSS, Florida ANN WAGNER, Missouri C O N T E N T S ---------- Page Hearing held on: November 21, 2013............................................ 1 Appendix: November 21, 2013............................................ 35 WITNESSES Thursday, November 21, 2013 Friedman, Neil, a customer of Bernard L. Madoff Investment Securities..................................................... 18 Hammerman, Ira D., Executive Vice President and General Counsel, Securities Industry and Financial Markets Association (SIFMA).. 9 Harbeck, Stephen P., President and CEO, the Securities Investor Protection Corporation (SIPC).................................. 7 Kogutt, Angela Shaw, Director and Founder, the Stanford Victims Coalition...................................................... 11 Shean, Suzanne, a customer of Stanford International Bank........ 16 Stein, Ron, President, the Network for Investor Action and Protection (NIAP).............................................. 13 APPENDIX Prepared statements: Friedman, Neil................................................... 36 Hammerman, Ira D................................................. 39 Harbeck, Stephen P............................................... 50 Kogutt, Angela Shaw.............................................. 67 Shean, Suzanne................................................... 125 Stein, Ron....................................................... 151 Additional Material Submitted for the Record Garrett, Hon. Scott: Written statement of the Financial Services Institute........ 156 GAO report entitled, ``Securities Investor Protection, The Regulatory Framework Has Minimized SIPC's Losses,'' dated September 1992............................................. 163 Email from Stephen P. Harbeck, dated May 21, 2009............ 171 Harbeck, Stephen P.: Written responses to questions submitted by Representative Hultgren................................................... 172 A LEGISLATIVE PROPOSAL TO AMEND THE SECURITIES INVESTOR PROTECTION ACT ---------- Thursday, November 21, 2013 U.S. House of Representatives, Subcommittee on Capital Markets and Government Sponsored Enterprises, Committee on Financial Services, Washington, D.C. The subcommittee met, pursuant to notice, at 9:30 a.m., in room 2128, Rayburn House Office Building, Hon. Scott Garrett [chairman of the subcommittee] presiding. Members present: Representatives Garrett, Hurt, Neugebauer, Huizenga, Mulvaney, Hultgren, Ross; Maloney, Sherman, Perlmutter, Scott, Peters, Watt, and Carney. Chairman Garrett. Good morning, everyone. The Subcommittee on Capital Markets and Government Sponsored Enterprises will come to order. Today's hearing is entitled, ``A Legislative Proposal to Amend the Securities Investor Protection Act.'' I thank all the members of the panel. And before we turn to the panel, we will begin with opening statements. I recognize myself for 10 minutes. Today's hearing is to further examine legislation introduced by myself and also by Ranking Member Maloney, H.R. 3482, the Restoring Main Street Investor Protection and Confidence Act. I want to begin by directly recognizing and commending the esteemed gentlelady from New York, my colleague, for all of her hard work and dedication to this bill and to this issue as well. It has been an honor, and it has been a privilege to work closely with her on this very important issue. I also do want to thank the panelists for coming, especially our two victims who have felt the full brunt of the two largest financial frauds in our Nation's history. I also want to specifically thank all of my fellow members of the committee, and the broader Congress as well, who have formally cosponsored this legislation that we are discussing today. I think right now we are at about one quarter of the committee on the bill. I hope that number continues to rise as Members learn more about this important subject. I also want to express my sincere thanks to Senators David Vitter and Chuck Schumer for introducing companion legislation in the U.S. Senate. Hopefully, now, with this bicameral support, it will aid us in coming to a more expedited resolution to this problem. Now, I want to make it absolutely clear that I am not advocating for this legislation because I am trying to score any political points. I am supporting this legislation because I have studied the law, reviewed past precedent, and analyzed the original congressional intent. And it is very clear to me that SIPC and the trustees are not applying the law as intended by Congress, and they are not adhering to their own past precedent, which has been affirmed by the courts. So the purpose of this legislation today is to reaffirm the original intent of the law and to correct the misapplication of the law by SIPC and the trustees. It is not some retroactive change of the law. It is a reaffirmation of it. SIPC now argues that it is nothing like FDIC insurance. Yet years ago, President Nixon's original signing statement of SIPA stated, ``Just as the Federal Deposit Insurance Corporation protects the users of banking services from the danger of bank failures, so will the Securities Investor Protection Corporation protect the users of investment services from the danger of brokerage firm failure.'' In case that was not convincing enough, I also found this quote from Senator Edmund Muskie during the Senate deliberations of SIPA legislation. He said, ``Mr. President, since 1934, the United States has insured bank deposits under the FDIC and the Federal Savings and Loan Corporation. These insurance programs protect bank depositors from loss of their savings because of bank failures. And the existence of this deposit insurance has become a source of confidence in the soundness of our savings institutions. S. 2348, the Securities Investor Protection Act of 1970, would accomplish a similar purpose for security investors by protecting them from losses because of the failure of their brokers.'' If that wasn't enough, Senator Harrison Williams from New Jersey, then the chairman of the Senate Securities Subcommittee, stated the legislation ``would establish a Federal brokers-dealers insurance corporation. Granted, it is not the FDIC, but the FBDIC is pretty darn close to it.'' I have a 2009 email from from Mr. Harbeck to congressional staff, where in it, he directly compared SIPC to FDIC. I would like to later insert that in the record. In Mr. Hammerman's testimony, he suggested SIPC was never intended to cover frauds, and said the legislation was ``to introduce a new public policy for SIPA and SIPC, namely insuring investors against the risk of loss due to securities fraud.'' Yet when going over the reason for the legislation, Senator Muskie specifically said, ``There remain some very basic problems within certain parts of the securities industry. There are problems of obsolete management techniques, careless business practices, inadequate self-regulation, and occasional fraudulent activities. All of these account for some part of the industry's financial difficulties today.'' To add further clarification to this topic, the head of the New York Stock Exchange, Robert Haack, wrote to the SEC at the time to provide their analysis of the potential loss to new SIPC funds. The letter states, ``I should make it clear, however, that no one can, in our opinion, make a realistic or useful evaluation of the potential dollar exposure to SIPC because there is no known way to measure the liability which might be faced in the event of a broker-dealer failure. The fraud of Allied Crude Vegetable Oil against Ira Haupt, for example, caused the loss of $27 million, which in no way could be anticipated in advance.'' In 1992, GAO conducted a report on the operations of the program and said, ``Within the last 6 years, 26 of the 39 SIPC liquidations have involved failures due to fraud.'' They also stated in the report, ``In essence, SIPC is a backup line of protection to be called upon generally in the event of fraud or breakdown of other regulatory protections.'' With all that, I struggle to see how we are putting a new public policy objective of fraud protection on SIPC when the record is this long and this clear that protecting investors from fraud was a core function of the original statute and has been applied that way throughout its existence. Again, turning to Mr. Harbeck's testimony, he suggests that following a final account statement to determine a customer's net equity somehow legitimizes a Ponzi scheme. SIPC argued for, and the Second Circuit Court agreed, to support using the exact same methodology in the New York Times securitization Ponzi scheme resolution in 2004. That New York Times case is very similar, almost identical, to the Madoff case. You see, time and time again, SIPC changes the rules and its story after the fact when it suits its own purposes. The clear truth and the long and exhaustive record makes it clear that SIPC is an insurance program set up by Congress to protect investors and to ensure the appropriate functioning of our Nation's securities markets, especially in the case of fraud. So, regardless of your views about the original appropriateness of programs like these, it is a current duty as elected Representatives to ensure the law is followed and administered as originally intended by Congress, and that investors receive the protection they are promised. The legislation before us is designed to improve protections of securities investors, particularly the regular retail investor lacking professional expertise in the market. It is the direct outgrowth of a stunning regulatory failure to detect and promptly respond to massive frauds and failures of SEC registered broker-dealers, as in the Madoff and Stanford cases, or now in the McGinn Smith case, which destroyed the principal savings of over 12,000 investors. The devastation of these losses has been compounded by the failure of SIPC to fulfill its obligation as intended by Congress back in 1970. So the provisions are commonsense reform in the bill, specifically to do these things: one, remove the inconsistences in the application of SIPC coverage, which have led to greater confusion; two, to assure the SIPC protective benefits goes to innocent customers; three, limit the exposure of taxpayers by establishing new accountability measures for SIPC's borrowing authority; four, avoid overtechnical legal interpretation at odds with SIPA's remedial objectives and the original spirit and intent of the law; five, improve the fiduciary character of SIPA's liquidations; six, strengthen SEC's plenary oversight of SIPA; and finally, direct the SEC and FINRA to give high priority to inspection procedures which verify and validate the accuracy and authenticity of information provided by broker- dealers to their customers. All of these proposed amendments seek to assure that SIPA is administered with constant attention to the perspective and the reasonable expectations of the broker-dealer customers, those whose confidence's marked participation SIPA is intended to engender and maintain. Now, a point too often overlooked is that SIPA, while using many of the established practices of the Bankruptcy Code, is unconditionally an amendment to the Federal securities law meant to strengthen the efficient operation of the capital markets by maintaining the confidence of the retail user. It is the backbone of the system. Accordingly, the bill seeks for the future administration of SIPA to clarify that securities law primarily shall have the operative recognition. Now, Mr. Harbeck, your written statement this morning further emboldened me in my determination to put SIPC back on the right course in carrying out SIPA's grand objective of deploying its resources to help the financially devastated, innocent and unsophisticated victims of broker-dealers in bankruptcy, including fraud, such as those who are with us this morning, rather than lawyering up to see how narrowly it can interpret the law's remedial objectives. It is basically your complete confidence in SIPC performing as the 1970 Congress intended that troubles me. I don't doubt for a second that you believe with genuine conviction that SIPC actions are absolutely correct, not only with SIPA's letter, but the spirit of the law. And I don't question your integrity for a moment. But I am deeply disturbed by your satisfaction with SIPC's performance in these massive fraud cases, which have thankfully captured the attention of Congress now with profound concern. Our bill seeks to reaffirm the original intent of Congress in the enactment of SIPA, to make reforms in its administration for the future and, above all else, to change the culture of SIPC to one that seeks to fulfill and not hinder SIPA's remedial purposes. I will close by saying I am thankful to a lot of people today. I said so at the beginning of my statement. But with all the victims and their families still reeling from these frauds, I must say that this is not a thankful day. But I will be thankful once SIPC is reformed and the original intent of Congress is reaffirmed. With that, I conclude, and I now turn to the cosponsor of this legislation, the gentlelady from New York. Mrs. Maloney. Thank you very much, Mr. Chairman, not only for holding this hearing, but for your tireless work on this really important bill. We, unfortunately, share the same situation of representing many people who were hurt by these Ponzi schemes. And I know how hard that you focused on trying to help them. And I welcome all of our panelists, particularly our two victims, who will help put a human face on what we are arguing about today and debating today. Unfortunately, when Bernie Madoff and Allen Stanford's massive Ponzi schemes came crashing down, they exposed several key flaws in the Securities Investor Protection Corporation and how it operates. Our bill attempts to fix these flaws and would reaffirm the primary purpose of the Securities Investor Protection Act, which is to protect customers of broker-dealers and to maintain investor confidence in our securities markets. SIPC is supposed to maintain this confidence by winding down failed broker-dealers in a fair and equitable manner, which above all means protecting innocent customers' assets. Unfortunately, in the Madoff case, SIPC and the trustees have pursued a highly aggressive strategy that in my opinion has unfairly punished some of my constituents who are innocent customers, and has almost certainly reduced investor confidence in our securities markets. In some cases, former Madoff customers who had withdrawn their money many, many years before the firm's failure learned for the first time that their money was being clawed back only when the trustees filed a lawsuit against them. This is hardly the way to promote confidence in the securities market. And our bill would put a stop to these tactics. Now, SIPC has argued that these clawbacks are allowed under the Federal Bankruptcy Code. But it is important to remember that Congress enacted the Securities Investor Protection Act in the 1970s because the Bankruptcy Code was not very useful for winding down broker-dealers. Congress recognized that broker- dealers, like commercial banks, are fundamentally different from regular, nonfinancial companies. And just as commercial banks are liquidated by the FDIC, broker-dealers need to be liquidated by SIPC. It is important to recognize that broker-dealers are different because they are heavily regulated by the SEC, which examines their books and records to make sure that customer money is actually there, makes routine on-site inspections, and requires annual audits of the broker-dealer. It is this seal of approval from the government that customers rely on, and which allows investors to place their confidence in the country's securities markets. They can have confidence in our securities markets because they have confidence in the SEC. Also, because they have confidence that if their broker-dealer fails, they will be protected by SIPC and treated fairly. The account statements are also good enough for the government to rely on. After all, these customers pay taxes to the IRS on the profits that they see on their account statements. Now, SIPC says that they can claim a tax deduction on this IRS payment in the case of a clawback, but most of these people are retired and don't have the income to have a tax deduction. In addition, customers make all of their financial decisions based on the financial statements that they receive from their brokers, which tell them how much money is in their account. For SIPC and the trustee to come in years later, in some cases 10, 20, 30 years later and say, sorry, you actually can't rely on these financial statements that the government has essentially been signing off on for years, they are wrong. SIPC should not be able to claw back money that innocent customers had withdrawn years ago. Our bill would prevent these unfair clawbacks of money that innocent customers had long ago withdrawn. It would, however, still allow clawbacks in cases where an investor actually knew about the fraud when they withdrew their money. That is the way it should be. Innocent people should be protected, while customers who knew about the fraud do not receive the benefit of government protection. The time has now come to reform SIPC. And I believe that our bill is a good starting point toward a lively debate on this issue. I thank the chairman and all of our participants, my colleagues, for being here today. And I thank particularly the chairman's, I would say inspiring, leadership on this. He has been very dedicated in working on this issue for a long time. And I yield to Mr. Sherman for 2 minutes. Mr. Sherman. I want to thank the Chair and the ranking member for these hearings. They have studied this issue, and know far more about it than many of us on the subcommittee. There seems to be a general agreement that the limits on SIPC insurance should be clear and should be prospective. And the payout from any insurance company needs to be limited by the limit of the insurance rather than limited only by our empathy for the insured beneficiary. The FDIC faces many of the same issues because the limit is per customer, in effect, or per depositor. If Three Brothers Moving and Storage Company has a $750,000 deposit at a bank, they only have $250,000 of FDIC insurance. If three brothers each open up a quarter million dollar account at the same bank, those three brothers collectively have $750,000. The account name matters. The entity that is making the investment matters. And whether it be a partnership, a trust, or a corporation, we cannot allow General Motors to have $100 million of FDIC insurance just because General Motors has millions of shareholders. We have cases in progress now, and I think they ought to be decided based on what the law was at the relevant time. And I would count on judicial and quasi-judicial entities to make that determination without a lot of help from Congress. But that doesn't mean that there won't be future Madoffs, and future Lehman Brothers, and future circumstances for which we can't do a much better job in providing. And I look forward to learning more here, even though I will have to leave early because I have another hearing. Thank you. Mrs. Maloney. I now yield 1 minute to Mr. Perlmutter. Mr. Perlmutter. I thank the ranking member. And I thank the chairman for bringing this bill forward. I do think that there are some fundamental questions that we can't forget. The old saying is that bad facts make for bad law. And we have to watch out that we don't do something here that is a problem. Because trying to address a Ponzi scheme, which is a sham, a phony deal from the very outset, and the numbers are not real, and there is sympathy for the people who are drawn into the fraud, obviously. But does the taxpayer in Montana who has nothing do with the folks who were defrauded in Boulder, Colorado, is it their responsibility to cover the fraud? Madoff and Stanford bilked thousands of people of a lot of money. And it was all a house of cards. And somebody who gets into the fraud early gets to benefit from it against the people who got in late. And so, these are very different circumstances. I appreciate the panelists today and their testimony. I appreciate the sponsors for bringing this. But we have to watch this whole area very closely. With that, I yield back. Mrs. Maloney. I thank the gentleman, and I yield back the balance of my time. Chairman Garrett. The gentlelady yields back. The gentlelady's side went over a little bit. Because one of our Members may not be here later, I ask unanimous consent to yield 30 seconds to Mr. Mulvaney, without objection. Mr. Mulvaney. I appreciate that, and I thank the chairman and the ranking member. And I thank the panelists for being here today. In the event I am not able to return, I did want to go on record on one important thing that affects SIPC. It is a little outside of the topic today, but is still very important. I am not sure if folks are aware that SIPC, along with groups like the Tobacco Trust Fund, FDA user fee accounts, the Public Company Audit Oversight Board, the Financial Accounting Standings Board, all of those groups had specific user fee funds sequestered. I think it was an unintended consequence of the sequester. The sequester was designed to limit the use of general account funds, not user-fee funds. What we have is groups that are counting on user fees to operate their various institutions that have been sequestered. All the more reason not to have voted for the sequester in the first place. But in any event, I want to tell SIPC that I am sympathetic, and tell the other groups that I am sympathetic. And as we try and figure out a way to work out various fixes to the sequester, I hope we focus attention on the fact that user fees were unintentionally sequestered as well, and I think that is wrong. Thank you, Mr. Chairman. Chairman Garrett. I thank the gentleman. With the time for opening statements now expired, we will turn to statements from the panel. And again, I wish to say thank you to all of the members of the panel who are here today for this very important topic. We will run down the aisle as we do. Your complete written statements have been made a part of the record. We will now yield to you 5 minutes for a summary of your statements. Many of you have never been here before. There are lights in front of you to indicate how much time you have. It will be green when you start. It will turn yellow when you have one minute left. And it will turn red when you are supposed to have concluded. I also ask each one of you when you do speak, because I am a little hard of hearing up here sometimes, to make sure your microphone is turned on, and that your microphone is pulled close to you, like Mr. Hammerman is doing right now, good, because it doesn't pick up from a far distance. So with that being said, we will start with the president of SIPC, Mr. Harbeck. Good morning. You are recognized for 5 minutes. STATEMENT OF STEPHEN P. HARBECK, PRESIDENT AND CEO, THE SECURITIES INVESTOR PROTECTION CORPORATION (SIPC) Mr. Harbeck. Good morning, Chairman Garrett, Ranking Member Maloney, and members of the panel. My name is Steve Harbeck. I am the president of SIPC. I have been with SIPC for 38 years, the last 10 of which as president. I will dispense with discussing most of the major activities of SIPC since the start of the financial crisis because they are listed in my written statement. However, I do want to point out one important point, and that is at no point in the financial crisis was it more important to improve investor confidence than in September of 2008 and the failure of Lehman Brothers. SIPC stepped in to liquidate the brokerage entity in Lehman Brothers and, with the trustee in place, transferred 110,000 customer accounts with $92 billion in them within 10 days. I believe that was absolutely critical to investor confidence in what was clearly the most dangerous period of our time since the Depression. We are here today to talk about a specific bill and more specifically the performance of SIPC in the Madoff case. I appreciate particularly Congressman Perlmutter, who has a bankruptcy background, indicating how difficult these decisions were. But it is SIPC's belief that to do the greatest good for the greatest number, consistent with the law, we have done so. And that we have done so consistently with prior precedent. What I would like to do is take you through something that would occur under the bill if it were passed. And let's go to the Madoff case in particular. If the FBI and the Securities and Exchange Commission and SIPC had arrived in Mr. Madoff's office 2 days later than we did, there were $175 million worth of checks on Mr. Madoff's desk that would have gone to innocent customers of his choosing. But that would have only left under $200 million for the trustee to distribute. And further, under the bill, if you strip it from the avoiding powers that are specifically given under the existing statute, specifically given to a trustee, instead of having the $9 billion that he now has to distribute, he would have less than $200 million. That is an unintended consequence of the activities that this bill would sponsor. I realize how difficult it is for the victims. But the fact remains that this is a zero-sum game. And if one credits Ponzi scheme profits that were generated solely in the mind of Mr. Madoff, and if those profits stand on equal footing with the net amounts that people have not received back, that means that dollar for dollar, people who receive those amounts as profits--those profits would be taken directly from people who did not receive their own money back. That is bad policy and bad law. It is not the law and never has been. In any instance, the first of which was in 1973 in the S.J. Salmon case, and again in the Adler, Coleman case, and yes, even in the cases mentioned by the chairman today, the fact is that at no time have fictional profits ever been recognized under the Securities Investor Protection Act. That is the policy, the consistent policy that was also applied in the Madoff case. What we have here is the trustee acting, again, to do the greatest good for the greatest number consistent with the law. I would like to turn to Ranking Member Maloney's mention of the fact that the trustee has initiated lawsuits. As soon as he initiated those lawsuits, he also initiated what he called a hardship program. Because all a person who has been sued has to show under the scenario that you correctly laid out, that they had used the money over time, the trustee did not know that, but if those facts were brought to his attention, the lawsuit was summarily dropped. Some people have been ill-advised, in my view, by their counsel not to enter the hardship program. I believe that people who can demonstrate the sort of hardship that you rightly empathize with will have those lawsuits dismissed. But make no mistake, the current statute does allow what are called the avoiding powers. And the entire purpose behind those avoiding powers is to do equity. The bill strips those away. I would be pleased to answer your questions. [The prepared statement of Mr. Harbeck can be found on page 50 of the appendix.] Chairman Garrett. Thank you. Mr. Hammerman is now recognized for 5 minutes. STATEMENT OF IRA D. HAMMERMAN, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION (SIFMA) Mr. Hammerman. Chairman Garrett, Ranking Member Maloney, and members of the subcommittee, I would like to express my deepest sympathy for the victims of the Madoff and Stanford schemes. I have family and friends whose financial lives were adversely impacted on December 11, 2008. And I know from personal interactions the havoc caused to individuals, retirees, and wonderful charities by Madoff and the feeder funds that never even disclosed they were investing in Madoff. So I understand and in fact applaud the tenacity being expressed by Chairman Garrett and Ranking Member Maloney as they seek to help their constituents and the investing public at large. I also commend you for recognizing more generally the need to consider changes to SIPA in order to better protect investors and increase investor confidence in the financial markets. I served on the 2012 task force that undertook a comprehensive review of SIPA. And I agree, there are proposals for reform that warrant consideration. Any reform proposal should be made with an analysis of their costs to SIPC, the members of SIPC, and the investing public. This is particularly important with respect to the proposed legislation, which would materially expand SIPC's mandate to provide insurance against the risk of loss due to securities fraud and fictitious profits. Congress enacted SIPA in 1970 in response to the paperwork crisis of the 1960s, a time when stock certificates routinely went missing, trade processing errors were common, and there were multiple failures of brokerage firms. Congress created SIPC to protect the custody function that broker-dealers perform. And while it is certainly within the prerogatives of Congress these 44 years later to expand SIPA's scope to provide insurance against losses due to securities fraud and fictitious profits, we believe the costs would be extraordinarily high. The SIPC Modernization Task Force recommended changes that would increase the protection available to customers in at least 3 important ways: increase the cap on advances from $500,000 to $1.3 million; eliminate the lower cap of $250,000 applicable to customer claims for cash versus securities; and make individuals eligible for advances with respect to shares of their pension plans account. These types of changes would appropriately expand SIPA, while continuing to reflect its core purpose of protecting investors against the loss of cash or securities in the event the brokerage firm holding their property becomes insolvent. The proposed legislation provides that the assets of a customer would be determined on the basis of the last account statement, with customer property in liquidation allocated accordingly. We have significant concerns with this approach since customer account statements in situations involving fraud reflect fictitious transactions and do not truly represent customers' positions. The property held by a Ponzi scheme is simply the pooled investments of all the victims of the scheme less the amounts already misappropriated, and making distributions based on anything other than the victims' net investments would be fundamentally unfair. The net investment method has been used with respect to fraudulent schemes as far back as the 1920s. It has been applied by several trustees and courts in SIPA liquidations, and we believe it should be used to determine net equity for purposes of allocating customer property in situations involving fraud. The proposed legislation would also add to the customer definition any person whose assets were misappropriated by an affiliate of a brokerage firm, whether or not the firm had custody, possession, or control of such assets. Expanding SIPA in this manner could ultimately result in significant increases in the costs borne by investors, and in some cases result in investors losing access to the financial markets altogether. Regarding the effective date, we question whether application of the draft bill to active liquidation proceedings is even feasible. For example, in liquidations in which distributions have already commenced, it is unclear whether customers would be required to return assets to the trustee so that the trustee could redetermine claims and allocations. At a minimum, retroactive application of the proposed bill would significantly slow down the current SIPA proceedings. Finally, it is a very unfortunate fact of life that fraud exists and that crooks will continue to use the financial system to find victims because, to quote notorious bank robber Willie Sutton, that is where the money is. Criminals who steal investors' hard-earned money and life savings should be prosecuted and put in jail, but using fraudulent account statements to insure all of us against the risk of fraud is quite another undertaking, and its ramifications for businesses and investors should be carefully analyzed and debated, lest we inadvertently let the criminals decide which victims recover what amounts. Thank you for allowing me the opportunity to testify. I would be pleased to answer your questions. [The prepared statement of Mr. Hammerman can be found on page 39 of the appendix.] Chairman Garrett. Thank you. Our next witness is making her way up here, I believe. Take your time. Welcome. And just to recap, since I know you just came in, please make sure your microphone is on. You will be recognized for 5 minutes. The little lights in front of you are green, yellow, and red, for that purpose. Your full written statement will be made a part of the record, and we therefore ask all the witnesses to give a summary during their 5-minute presentation. So you are now welcome and recognized for 5 minutes. STATEMENT OF ANGELA SHAW KOGUTT, DIRECTOR AND FOUNDER, THE STANFORD VICTIMS COALITION Ms. Kogutt. Thank you, Chairman Garrett. My name is Angela Shaw Kogutt, and I am the director and founder of the Stanford Victims Coalition, a nonprofit advocacy group for the victims of the Stanford Financial Group Ponzi scheme. Chairman Garrett, Ranking Member Maloney, thank you for holding this hearing today to discuss a much-needed amendment to the Securities Investor Protection Act of 1970. I applaud you both for your leadership in introducing the Restoring Main Street Investor Protection and Confidence Act, which has given hope to thousands of financially devastated investor victims across the country who feel they have been unfairly denied the protection of which the SEC has determined they are entitled. I also thank the distinguished members of the subcommittee who have already joined H.R. 3482, and I ask those of you here today to consider this important legislation. I want to point out right away that I am not the typical face of the Stanford victims. I am a second generation victim. Most of the victims are senior citizens, and for the past almost 5 years now, I have spent a majority of my life serving as their advocate, hoping to help them recover some of their losses. I have done this because I am younger than they are and because they deserve it. Like thousands of other Stanford victims, my life was forever changed by the events of February 17, 2009. As we watched the news and feared the worst in the immediate aftermath of Madoff's confession, we eventually realized that Allen Stanford had stolen what two generations of my family worked 4 generations to build. And he did it through Stanford Group Company, a registered broker-dealer and member of SIPC. The SEC had known for more than a decade that Stanford was operating a Ponzi scheme. While Madoff had outsmarted the SEC, Stanford hadn't. And the SEC knew for 12 years that he was using the U.S. broker-dealer to steal customer funds intended to purchase CDs from Stanford International Bank. In that timeframe, the Stanford Ponzi scheme grew by $5 billion, including the investments of every single U.S. citizen who invested in the CDs. My father-in-law is an 87-year-old World War II veteran and a first-generation American who, again, like so many Stanford victims, was able to live the American dream, only to have it snatched away practically overnight. In 1965, he started a manufacturing business with a few thousand dollars borrowed from family members. He and my mother-in-law put in long hours for several years, and eventually all three of their sons, including my husband, joined the business. The family worked together for more than 3 decades to build the business to more than 300 employees and close to $20 million a year in revenue. At that point, the business had outgrown the family, and they made the decision to sell at just the right time, before the economic collapse of 2008. As soon as the sale of the business closed, our lawyer who handled the transactions suggested we invest with a brokerage firm that specialized in managing large accounts. She then recommended what she called a boutique brokerage firm, Stanford Group Company, which specialized in high-wealth clients. The family had never heard of Stanford but agreed to a meeting. Other firms were also considered, but Stanford really stood out because of their enthusiasm, professionalism, their very high public profile, the top notch credentials of their advisers, and what we misinterpreted as genuine and sincere interest in our investment goals. What we didn't know is that financial advisers at Stanford Group Company were hooked on what they internally called bank crack in the highly lucrative commissions and bonuses they received for selling the CDs from Stanford International Bank. Also, little did we know that none of the financial advisers at Stanford Group Company knew what assets were held, if any, in Stanford International Bank's investment portfolio. How someone who has a fiduciary duty to their clients could recommend putting any of their funds in an investment vehicle for which they didn't even know the underlying investments seems extremely questionable, but that was also an inside secret that Stanford paid them enough to overlook. Ultimately, a substantial portion of the proceeds of the sale of my family's business was invested with two Stanford Group Company financial advisers. At the first meeting, the family explained that they were very conservative and risk- averse. One of the advisers, Bill Leighton, was an estate planning lawyer. The other, Patrick Cruickshank, was a certified financial planner, and NFL, NBA, and NHL-approved financial adviser and Series 7 license holder. They told us their safest, most conservative investment was their exclusive signature product, the Stanford International Bank CDs for accredited investors. We learned at the meeting that the entire Stanford financial group of companies, which included Stanford Group Company, Stanford International Bank, Stanford Trust Company, and more than 100 other Stanford entities all owned by Allen Stanford was headquartered and operated out of Houston, Texas, and regulated by the SEC and numerous State regulators, as the SEC had 33 offices across the country and more than 250 financial advisers who are still working in the business today with no record on their FINRA broker check. We were also told that the bank's portfolio was managed by a team of money managers in Memphis, Tennessee, with a company called Stanford Capital Management, which was also regulated by the SEC. We were told that the international CDs were better than investing in a U.S. bank CD because the international CDs were securities, and they were backed by SIPC, which was up to $500,000, and the FDIC at the time was only $100,000. Many Stanford victims made their decision to make that investment because of the securities product versus the bank product. It is now almost 5 years later and SIPC has continued to deny protection of Stanford Group Company customers by saying we received the securities we purchased through SGC, which simply is not true. Our money was stolen. How could we have gotten a security when the owner of the broker-dealer stole our funds? Allen Stanford is serving a 110-year jail sentence for stealing our money right here in the United States, not for committing an Antiguan bank fraud, which has not even been alleged in the country of Antigua. In November 2009, the Stanford Victims Coalition formally asked the SEC to review the SIPC's determination about SGC customers' right to protection under SIPA. After more than a year of the SVC suffering the burden of proof and producing hundreds of SGC customer documents at a time to the SEC only to have the target moved each time and more documents requested, it appeared the SEC was obviously avoiding making a determination. The SVC's members then asked our political leaders to urge the SEC to make a determination. More than 50 Members of the House and Senate signed on to a letter asking the SEC to give the SVC an answer. Still, no answer, only repeated promises that a vote would happen soon, which I have now learned in SEC language could be months or even years, given the way they have handled the Stanford case. Finally, when it appeared this game would go on forever, while Stanford victims were losing their homes and going without life necessities, Senator David Vitter blocked the nomination of an incoming SEC Commissioner until Stanford victims were given an answer. This was not a political play. Senator Vitter never told the SEC how to vote. He just asked them to give the investors an answer, to just take a fair vote and give us an answer. The vote was taken, and as the SVC and our counsel had hoped, the SEC determined that SGC customers were entitled to protection under SIPA because the SIB CDs were fictitious securities, and SGC customer funds intended to purchase the CDs were either acquired by Stanford Group Company to pay the broker-dealer's expenses or were outright stolen by Allen Stanford. Chairman Garrett. I am going to ask you-- Ms. Kogutt. In closing, I would just like to say one more thing. There are thousands of investors who truly are living in poverty right now. This summer, an article came out in the Baton Rouge newspaper that a food bank was going under, mainly because of the devastation caused by the losses in Baton Rouge of the victims of the Stanford financial fraud. They are living on donations from charity. Chairman Garrett. Thank you. Ms. Kogutt. Thank you for holding this hearing and for allowing me to speak for the victims. [The prepared statement of Ms. Kogutt can be found on page 67 of the appendix.] Chairman Garrett. Thank you. Mr. Stein, you are now recognized. STATEMENT OF RON STEIN, PRESIDENT, THE NETWORK FOR INVESTOR ACTION AND PROTECTION (NIAP) Mr. Stein. Thank you, Chairman Garrett, Ranking Member Maloney, and members of the subcommittee. My name is Ron Stein. I am the president of the Network for Investor Action and Protection, a national not-for-profit organization dedicated to improving our Nation's investor protection system. I am also a registered investment adviser, a certified financial planner, and a member of the financial services industry in good standing. Over 1,000 members of our organization were victims of the Madoff fraud. I am honored to speak to you today, as others have done before me, to give voice to the mostly middle-class investors who were devastated by this fraud, and who are being stripped of protections from SIPC and the SIPC-appointed trustee. Perhaps more, I am here on behalf of small investors, millions of small investors who have not yet been victimized, who depend on Congress, the regulatory apparatus, and the industry for the protection of their life savings should similar financial disaster befall them. So where do we stand today, 5 years after, regarding the Madoff fraud? Frankly, thousands of lives upended with another thousand being sued, story after dismal story of family horrors, depression, premature deaths, suicide, loss of medical care, life savings obliterated, gruesome and devastating stories. This is not what Congress intended when it first passed SIPA law in 1970 amidst the turmoil of hundreds of brokerage insolvencies, recession, massive theft, fraud, and, yes, Ponzi schemes. The creation of SIPC, the insurance-like entity, was the cornerstone of that legislation and an essential step to providing certainty, confidence, and trust to investors as Congress was ushering them away from the certainty of their physical securities to the new, more manageable world of the investment statement. It goes way beyond a custody function; it goes to ensuring confidence in the investment markets themselves. Now, Congressman Garrett quoted President Nixon and several others. I would just like to include one additional excerpt from the original Nixon testimony on signing SIPA legislation in 1970. He said pertaining to the SIPA law, ``It protects the small investor, not the large investor, since there is a limit on reimbursable losses. And it assures that the widow, the retired couple, the small investor who has invested their life savings in securities will not suffer loss because of an operational failure.'' I would like to point out that neither Nixon nor anyone else at that time ever said that profits weren't going to be protected, or mentioned the words ``fictitious profits'' as an exception to this protection. That is revisionist history. Following the passage of this legislation in 1970, every brokerage firm trumpeted SIPC protection to its customers, and every customer was informed that they are/were protected to the SIPC limit based on their account statement values should their broker fail. This was part of every broker's security training, every one. I know. There were no asterisks. There were no exceptions. There was no hint of being sued. And it was upon these promises that the financial services industry was able to gain the trust of the American public and explode in size. Now, how do those promises and Congress' intentions comport with the realities today? Fact: The majority of Madoff investors will not receive a penny of the SIPC advance guaranteed by Congress under SIPA statute as a result of the net investment methodology the trustee has chosen to use. Fact: Over 1,000 investors acknowledged as being innocent by the trustee are being vigorously sued like thieves and criminals, many having already lost everything. Fact: Institutions and professional investors are receiving over 80 percent of the recoveries of customer property. Many of these entities that the trustee himself has indicated should have or could have known about the fraud. Fact: In addition to saving SIPC over $1 billion by the trustee's own calculations, the trustee and his associated consultants have similarly been enriched by almost $1 billion, and that number could grow, and those are funds which could have gone to those who have been devastated and go to needed education to prevent further frauds of this nature. There is simply no rational way to conceive that this is the outcome that Congress would have preferred were it sitting here today. Indeed, this is precisely what Congress would have sought to avoid, and clearly in no way would the American public have supported a SIPA law in 1970 if this was seen as a possible outcome. The implications of this would be disastrous and could be disastrous to all investors today. What investor in their right mind could possibly trust that SIPC would be there or, worse, not sue them for withdrawing funds from their own accounts? What retirees would want to see their protections reduced just when they are drawing on their life savings? Once investors realized their protections don't exist, consider the impact on the financial services industry as investors withdraw and move funds from one firm to another. Let me be clear. I am deeply, deeply troubled as a financial practitioner about the failures of the regulatory entities that were charged with the responsibility to protect or unmask this fraud at a much earlier level. But I am also deeply distressed that members of my own industry, when they had the knowledge or the thought or the concern about a fraud, chose not to come forward. I hope that will change as we go forward. But I am truly infuriated at SIPC's lack of response in a human way to help protect the investors they were charged with protecting, and that they have thumbed their noses at Congress, refused to go to Congress when they could have to ask for guidance in this issue and instead taken it on their own to create the situation we are in today. H.R. 3482, the Restoring Main Street Investor Protection and Confidence Act is an important step to restoring the most basic protections that investors need at this time. I want to thank Congressman Garrett for showing tremendous leadership in this, for Congresswoman Maloney and the rest of the committee in sharing support, and I truly hope the industry will stand with us in supporting this very important legislation. Thank you very much. [The prepared statement of Mr. Stein can be found on page 151 of the appendix.] Chairman Garrett. Thank you. Ms. Shean, welcome, and you are recognized for 5 minutes. STATEMENT OF SUZANNE SHEAN, A CUSTOMER OF STANFORD INTERNATIONAL BANK Ms. Shean. Thank you. I would like to thank Chairman Scott Garrett and Ranking Member Carolyn Maloney for holding this hearing today and allowing me to speak about my experience as a victim of the Stanford Financial Group Ponzi scheme. I would also like to thank you from the bottom of my heart for giving victims like me hope for recovering our stolen retirement savings by introducing H.R. 3482. Thank you also to all the subcommittee members here who have already joined this desperately needed bill. My name is Suzanne Shean, and I am 64 years of age. I live in Carriere, Mississippi. Allen Stanford and the SIPC member broker-dealer Stanford Group Company took more than my life savings of a quarter million dollars invested just 18 months before the SEC took the Stanford group of companies into receivership. He took from me what money can't buy. He took my husband's life, my soul mate, my daughter's daddy, my grandchildren's granddad, and the life we had together. When the news of the Stanford scandal broke, I had just had surgery and was undergoing radiation treatments for breast cancer. My sweet husband Michael sheltered me from the news for months during my treatments and recovery. Michael had also had cancer, colon cancer, and underwent surgery in March of 2008. The doctors were able to remove it all, and they said he did not need radiation or chemo or any kind of other treatment, but being a victim of a Ponzi scheme is like cancer itself. The stress eats away at you. For some, that happens slowly. For Michael, it only took 6 months. His cancer returned with a vengeance and quickly spread throughout his body. The burden of losing our life savings was just too much for him, especially when he carried that burden alone for so long to protect me while I was sick. He died on April 29, 2011, at the age of 66 years old. Before Michael died, he worried so much about me and my future alone without our savings. My greatest hope was that he would be comforted with the knowledge that SIPC would make things right for us before he died. That didn't happen. I only saw my husband cry 3 times in our 43 years of marriage. Tears of joy at the birth of our daughter in 1969, tears of helplessness when neighbors had to help me pick him up after he fell a few weeks before he died, and tears of anguish when he asked me to forgive him. He had liquidated our IRA stock market portfolios to invest in safer IRA CDs with Stanford International Bank, with the Stanford Group Company. He was inconsolable, but it was not his fault. The safety net created to protect investors like us had failed to do so. During our whole lives together, Michael and I worked so hard to put money away so we could retire one day and enjoy our golden years. For him to die thinking that was all in vain is an abomination of the very soul of our society. Discovering that the SEC knew Stanford Group Company was involved in a Ponzi scheme for more than a decade before we invested with them added insult to injury. The double whammy of SIPC announcing it had absolved itself from protecting us was just inconceivable. I am now forced to work two jobs to keep my home. As a working widow under 66 years of age, I am not entitled to my husband's Social Security checks because my salary is over $17,000 a year. I should be enjoying my grandchildren and the fruits of my labor for these past 64 years. Instead, retirement is not an option now that our entire IRA is gone. What will happen to me when I can no longer work? The 1 percent recovered by the Stanford receiver after almost 5 years will just about cover one house note and my trip here today. Michael and I were very conservative investors, and we entrusted Stanford Group Company, a registered broker-dealer and SIPC member, to invest our IRA funds safely. We were told because we had an IRA that Stanford Trust in Louisiana would hold custody of our investments, and we felt comfortable with this investment because every aspect was being managed in the United States and regulated by government. But what we didn't know did hurt us. We had no idea that Stanford Trust Company was created by SGC as a way to tap into a whole new source of money to feed the Ponzi scheme. Hundreds of millions of dollars of innocent investors' IRA funds were lost. The Stanford Trust Company was a subsidiary company of SGC and was created as a State-regulated entity solely to evade oversight by the Federal Government. The Louisiana Attorney General's Office later explained that SGC employees operated the trust company and even served as its board of directors. In short, SGC held custody of our CDs, and our savings never left the United States and never went to purchase securities of any kind. We were shocked when we found out that SIPC announced we didn't qualify for protection because we weren't customers of SGC because it supposedly didn't hold custody of the fictitious Stanford International Bank CDs. But we had a customer contract with SGC, and our account numbers begin with STSGC. What SIPC was telling us seemed like hyper-technical legalese designed solely to avoid covering our losses, despite other similar SIPC cases in which investors were protected. SIPC was behaving as if it was a private insurance company with government immunity, and they have gotten away with it so far at the expense of thousands of victims just like me. Here we are, innocent investors, who used a SIPC member broker to purchase securities that come to find out didn't even exist, and SIPC is treating us as their enemy. The CDs were an imaginary investment vehicle designed to take money from Stanford's right hand, Stanford Group Company, and steal it with its left hand, Stanford International Bank. In short, we have been victimized again and again, first by the SEC for not stopping Stanford Group Company when they were aware of misappropriations of customer funds and other fraudulent activities, and then by Allen Stanford himself, who stole our money, and then a third time by SIPC because they have told us Allen Stanford stole our money the wrong way. Chairman Garrett. Ms. Shean, I would ask you to come to a conclusion. Ms. Shean. Okay. I beg you to please close the loopholes in the law that SIPC has manipulated in order to protect it. It means Michael--I will never have Michael back, but I know his soul will rest in peace if he knew I was taken care of. That would mean the world to me. I am a survivor. Yesterday was my 5th year anniversary of being cancer free. Please don't take hope away from me. Thank you for your time and your attention. It has been my honor to share my story with you today. [The prepared statement of Ms. Shean can be found on page 125 of the appendix.] Chairman Garrett. Thank you, Ms. Shean. And finally, Mr. Friedman is recognized for 5 minutes. STATEMENT OF NEIL FRIEDMAN, A CUSTOMER OF BERNARD L. MADOFF INVESTMENT SECURITIES Mr. Friedman. Thank you, Mr. Chairman, and members of the subcommittee, for the opportunity to be here and to tell my story. My greatest loss is something that SIPC would never cover, the loss of my wife after 53 years of marriage. I am 79 years old. I am a veteran of Korea, and I am left with two wonderful children and four grandchildren. My daughter has MS. My children relied upon me and my account--although it was not large, because I by no means was considered rich--to take care of them if they needed it. I put in--let me go back to my story on how I got involved, if I may, with Madoff. A friend of mine in 1962 had a daughter the age of my son who played in a playground together. Their father was Bernie Madoff's CPA, Jerry Horowitz, and Jerry and I were strictly friends until I went into my own business, which was subsequently in the middle of the 1960s, when I opened a life insurance agency, and he became my CPA. Jerry had been investing with Madoff well before the 1980s, and so I felt that his due diligence, with the SEC as a backup and SIPC as a last resort would take care that if we lost everything, we would at least recover something. I put in my pension plan assets. I even sold Madoff in the early 1980s a retirement program and had free access to his office at 1 Wall Street, walked around, knew all the employees, and was never aware of anything that was not honorable. I am a graduate of NYU. I graduated as an accountant, hated that as a profession, and ended up in the insurance business, which was more personable. I grew moderately, I marketed with 16 different life insurance companies across the United States, actually specializing in impaired risks as well as competitive products. And I was able to amass, I guess, well, the balance was about $2 million in my retirement program, which my employees had the option of not partaking in, thank God, and my personal savings. I am now living on Social Security, with a little money in the bank, which primarily was the result of refunds from Internal Revenue for the taxes I paid in my, was forced to pay mandatory at 70 and a half to withdraw moneys. In essence, that is my story. I got a part-time job, maybe 1 day a week or 2 or whatever they needed me, and I really have no source of income other than Social Security, which is $1,400 a month. I had to put my house in a reverse mortgage just so I could stay there. I would not live with my children. And I thank you all for this. [The prepared statement of Mr. Friedman can be found on page 36 of the appendix.] Chairman Garrett. I thank you for your testimony, and I thank everyone for the testimony, and so we will go to questioning now. I guess I will begin with Mr. Harbeck. Would you agree that when SIPA was passed in 1970, the creation of the SIPC fund capitalized by industry assessments was the feature given the most attention in the Floor discussion in the House and the Senate? Mr. Harbeck. I am not sure I understand. Chairman Garrett. In other words, the establishment of the fund, the focus was in large part in setting up a fund because it provided liquidations at broker-dealer firms with another source of relief coming from the assessments. Mr. Harbeck. That was absolutely one of the major components of the bill, yes, sir. Chairman Garrett. Right. So, by doing that, you are going beyond conventional bankruptcy to try to do what, to mitigate losses, correct? Mr. Harbeck. That is correct. Chairman Garrett. And so in providing for the supplemental relief to customers of failed broker-dealers, is it correct to say that the overarching congressional purpose was to restore and maintain the confidence of investors, particularly nonprofessional investors, in their continued participation in capital markets for the benefit of the economy? Mr. Harbeck. That is also correct. Chairman Garrett. Right. So, a couple of points taken from that. Mr. Stein, what was the number you gave as far as where the distribution is at this point as far as between regular just retail investors versus institutional investors? Mr. Stein. Over 80 percent. Mr. Harbeck. I would love to address that, if I may. Mr. Stein. Over 80 percent of the funds in terms of dollar amount will be going to institutional investors based upon the recovery numbers that the trustee and SIPC have provided. Chairman Garrett. And is it true--overall, have the majority of people who have been taken advantage of in the Madoff situation received compensation payments or have the majority not received payments? Mr. Stein. The majority have--first of all, talking about direct investors, if we added indirect investors, the number of those who have received relief is fractional, but the majority of investors have not received any SIPC protection whatsoever, and significant numbers of those who have received protection have had those protections, those amounts reduced significantly because of the net investment method adopted by the trustee. Chairman Garrett. And I should probably take this moment just to be clear here that we are talking about two, I don't want to call it pots of money here, but two avenues of money of relief, right? One is advances, correct me if I am wrong on any of this, the advances which basically comes from the industry- generated fees, right? And the other is the recaptured or recovered money when the trustee goes out and re-collects, collects the money from the bad actors in this; is that correct? Mr. Stein. Yes. Chairman Garrett. Right. So there are two pots of money here. And in the legislation before us, essentially we are talking about making sure that--we are really not making any changes with regard to the recovered money? I will go to Mr. Stein for that. Mr. Stein. The trustee is given a significant range of opportunity to apply what methodology he feels is most appropriate regarding the recoveries of customer property, but regarding SIPC advances themselves, this legislation is making clear that the trustee does not have the right to change the intent of SIPA law to suit the purposes of the SIPA fund or any other rationalization he can come up with to do so. Chairman Garrett. Right. Mr. Hammerman, I do sincerely appreciate your opening comment with regard to your concern for the victims and also for your statements and your association to try to work with us on this legislation, I do appreciate that. One comment that you did make, though--you did say this point, you said that fraud is a fact of life, and you said something that has been with us always, words to that effect you said. Ponzi schemes, I guess, have been with us always. You didn't say that, but I guess that means that you would agree with that in one way, shape or form or another, right? So if that is the case, then back in 1970 when they created this law, and they created the fund, created the whole--and the focus was on the SIPC fund, they must have known at that point in time that Ponzi schemes existed, but I didn't see anything in the original law, and I certainly didn't see anything in the Senate discussions on this where they created a Ponzi exemption. When did that come about? Mr. Hammerman. Mr. Chairman, there is no Ponzi exemption, as you explain. The way I understand it is the way it would work is if you as a customer gave, let's say, $100,000 to a brokerage firm with the expectation that the brokerage firm would buy securities for you-- Chairman Garrett. Right. Mr. Hammerman. --in the account, and then that brokerage firm turns out to be a Ponzi scheme, for example, then you would be covered for that $100,000 of cash that you gave for the purpose of buying securities, full stop. What would not be covered is, let's say you gave that $100,000 and the monthly statement-- Chairman Garrett. But that was--I know where you are going to go with this, but that was not said in the original law. Isn't that just a creation of later court cases? Mr. Hammerman. That is not my understanding, but I am not an expert in SIPC and the court cases. Chairman Garrett. Okay. And I am going to be mindful of the time because we are coming up on votes, so--I have a whole series of other questions, but I will return probably in a second round to the gentlelady from New York. Mrs. Maloney. Thank you, Mr. Chairman. And I thank all the panelists, and I think the basic question is, what does SIPC insure? And going forward, what should it insure in the future? How do we make that clear to investors? Because we heard from victims that in the case of Stanford, they weren't insured in anything. Is that correct, Ms. Kogutt? SIPC did not insure or give any paybacks at all to the Stanford victims, right? Ms. Kogutt. None whatsoever. Mrs. Maloney. None whatsoever. Ms. Kogutt. We actually haven't even been able to file claims because there is no liquidation, so we have had no right of a judicial review of if our claims are valid or not. Mrs. Maloney. So this is a tremendous problem going forward, and in terms of Madoff, were payments done in Madoff or not from SIPC? Mr. Stein. Yes. Approximately half of the Madoff direct customers received SIPC compensation. Mrs. Maloney. What, $500,000 for securities, or what compensation did they get? Mr. Stein. Up to $500,000. The average payment is a little less than that. But for those who were fortunate enough, and I say that very carefully, when they were fortunate enough not to have needed to pull funds out of their plan to live on, they were able to receive SIPC compensation, and that gets to the fundamental problem, and the public policy debacle that SIPC and the trustee are representing here. Witness, as Exhibit A, what Mr. Friedman has experienced. Here is a man who has put his whole life savings into a retirement plan. He retires with the intention of being able to live off that savings, and because he has withdrawn money to live off those savings, precisely as Congress would have wanted him to do, precisely as he needed to do, he is being tortured because those funds are being denied him. Any penny he has taken out in his retirement has been deducted from the amount of money that he has put in. So basically anybody who is utilizing a retirement experience, who has been withdrawing funds for the cost of living over any period of time, has probably exceeded even the amount of money that they have contributed over their lifetime to their savings. We are actually having--we are actually reducing protections for those people precisely for whom we should be going out of our way to improve protections, and that is an unfortunate consequence. Mrs. Maloney. Also they are saying if it is a Ponzi scheme, you are not covered. Obviously, they didn't know it was a Ponzi scheme; the government didn't know it was a Ponzi scheme. And so, I think a crucial issue, and I guess I want to ask Mr. Hammerman, what does SIPC cover now, and if you could get it back to us in writing, and what do you think it should cover in the future? And obviously, the situation of Stanford, of where no determination and an outrageous Ponzi scheme, I would like to know from Mrs. Kogutt in writing where you say the SEC knew about this Ponzi scheme for 12 years, if anyone knew about it and didn't report it or stop it, that is a criminal offense. So, that is a whole other subject. We are looking at the SIPC moneys now. So who do you think--what does it cover now, and what should it cover? And if you could answer some of the salient issues that the victims raised to you today. Mr. Hammerman. Ranking Member Maloney, as I tried to explain in answering the chairman's question, I believe today, SIPC would cover an investor who put in, let's say, $100,000 with a brokerage firm with the expectation that the brokerage firm was going to purchase securities, and if that brokerage firm turned out to be a Ponzi scheme, that amount of money would be covered and advanced by SIPC. When you asked about what it should cover going forward, I think that raises an entirely appropriate-- Mrs. Maloney. Mr. Hammerman, that is not what she testified to. That is not with the Stanford people. They bought securities. They bought CDs that apparently the SEC and other people knew about, and then they are told that is not applicable. Mr. Hammerman. Ranking Member Maloney, I do not profess to be an expert or extremely familiar with every underlying fact with Stanford. From my limited understanding, the investors invested in CDs issued by an Antiguan bank. Now, they may have--that is my understanding of what happened, and what foreign-- Mrs. Maloney. At the very least, going forward, it should be clear-- Mr. Hammerman. No, going forward-- Mrs. Maloney. --any CD from a foreign bank, that nothing from a foreign bank is covered because they can't even get it resolved in the foreign bank, they won't even acknowledge that there was a problem. So the main thing is investors have to know what they are getting, and they were totally misled. They thought it was insured, that they would have this protection, and going forward, we made a mistake, it is in a foreign bank, you are not covered. So, I think we have to be clear at the very least going forward that people know what their situation is. Mr. Hammerman. I agree. I am sorry, Mr. Chairman? I was just going to say I agree on a going-forward basis that we need to be clear, and there is a public policy issue about insuring against all sorts of financial fraud. The FBI estimates $40 billion of financial fraud a year. They also estimate $1 billion to $3 billion in micro cap securities fraud, and the question is, what are we going to be-- Chairman Garrett. Thank you. I know there is--but I want to get to the gentleman from Virginia. Mr. Hurt. Thank you, Mr. Chairman. I want to first of all thank the chairman for holding this hearing. And I want to thank each of you for being here. This is sort of rare in Washington, it seems to me, where you have folks who are not necessarily represented by moneyed interests here testifying before your Congress, a Congress that you own, about how to improve a law that clearly has been implemented in a way that is less than perfect. So I want to, as a former prosecutor who has dealt with people who have been the victim of theft, outright theft, thank you for joining us today. I thank the chairman for spearheading an effort to try to improve the way this works. I guess I would like to begin with Mr. Harbeck, who it sounds like you have been with SIPC for 38 years total. Mr. Stein in his opening statement and in his written testimony indicated, and the chairman alluded to this, indicated that as a fact that institutions and professional investors were receiving over 80 percent of the recoveries in the Madoff case. Over $9 billion has been recovered, and that is a striking--I think that is a striking fact as stated. Mr. Harbeck, I would like to know if you think that is-- first, do you agree with that, and second, if that is true, do you think that is consistent with what the intent of this law was as passed? Mr. Harbeck. Let's connect the dots. Thank you for the opportunity to do so. Mr. Hurt. Yes, but please be-- Mr. Harbeck. The answer, sir, is that if an institution such as a pension fund has a claim with Mr. Madoff, and the pension fund has a thousand indirect victims of Mr. Madoff, by paying that institution, one gets the money to the indirects. That is precisely how the system works. The pension fund had the contract with Mr. Madoff. If it had a $10 million pension fund with Mr. Madoff-- Mr. Hurt. Okay. Mr. Harbeck. They have already gotten 4.2 back. Mr. Hurt. Do you believe that has been applied fairly, and is that the way the law is intended to work? Mr. Harbeck. Yes, sir. Mr. Hurt. Mr. Stein, do you have a response to that? Mr. Stein. I think the first response is that it doesn't take into consideration the fact that you have 1,000-plus victims who have been denied any SIPC protection whatsoever, so let's just start there, that whether or not funds are going to a pension fund is immaterial to the moneys that SIPC should be advancing to those small, middle-income investors who invested directly with a regulated registered broker-dealer, as Congress and the financial service industry intended. Getting to the issue of a pension fund, a very small percentage of the total dollars that have been distributed to the institutional investors are going to pension funds, which is not to say that pension funds shouldn't receive their distribution, but Mr. Harbeck uses an example of an entity that is receiving a benefit. And in using that particular example, he misleads the committee as to the most, what constitutes the majority of the entities that are receiving the funds. And the fact of the matter is that the kinds of funds, the kinds of institutions the trustee himself has alleged could have known and should have known about this fraud were the ones that are receiving most of these funds, and the fact of the matter is that over a thousand innocent victims are being sued. Mr. Hurt. Okay. I hope I have time for one more question. Again to Mr. Harbeck, a second fact that is stated in Mr. Stein's testimony is the fact that in addition to saving SIPC over a billion dollars by the trustee's own calculations, the trustee and his associated consultants have similarly been enriched by almost $1 billion, funds which could have gone instead to the devastated and desperately needed, those who desperately needed it. Is that true? Would you agree with that as a fact? And, again, do you believe that is consistent with the intent of Congress, and is that fair? Mr. Harbeck. The billion dollars in administrative expenses in the Madoff case went to compile the $9 billion fund that the trustee has been able to recover. Mr. Hurt. So you think that is fair? Mr. Harbeck. I think that is an extraordinary return, yes, sir. Mr. Hurt. Mr. Stein? Mr. Stein. That is kind of patently absurd on its face because $7.2 billion or approximately was immediately recovered by the Department of Justice. Early in the trustee's proceedings, long before the number had reached $100 million, another 2.2 was negotiated with another estate. So the amount of money the trustee has actually utilized to effectively recover funds has been an enormous amount. If you look at the investment quality of the return on investment for the trustee for the majority of that $1 billion in expenditures, a relatively small amount of money has been recovered from the large institutional investors. Mr. Hurt. Okay. Thank you. My time has expired. Chairman Garrett. Thank you. The gentleman from Colorado. Mr. Perlmutter. And I, again, want to thank the Chair and the ranking member for tackling what is a very difficult and unsatisfying problem because no matter how you push the balloon, somebody gets hurt, because this is all a sham, and everybody has been robbed from the beginning to the end. Now the way I look at it is, there are three pots of money--we talked about two. There really are three pots of money. And I am sorry, ma'am, you are Ms. Kogutt? How do you say it? Ms. Kogutt. ``Kogutt.'' Mr. Perlmutter. ``Kogutt,'' pardon me. There really are three pots of money: You have the insurance fund, and how big are we going to make that insurance fund so that we can cover people who have been lost, and how many tiers down? Is it the direct investor, is it the second direct, indirect investor, third? Then, you have the recovery that goes on among the people who have been defrauded. So, Ms. Shean, you get, your husband gets in at the end of Stanford, okay? You are helping the guys who got in earlier into the fraud than your poor husband and you. You are in 18 months before they close it down, but there were people in 3 years, 4 years, 5 years; they are the ones getting interest payments off of your money. So, that is the second. Then, you are trying to figure out how do we resolve it so that everybody is treated equally, the early guys get paid, but the late guys don't get paid? They are hurt? And then there is the third pot of money, which, Ms. Kogutt, you reminded me of, is those people who got you into the deal, okay? Whether it was the lawyers or the accountants or the advisers or some other company, and then there are all those lawsuits about-- Ms. Kogutt. Actually, there are no lawsuits. Mr. Perlmutter. There certainly are in the Madoff side. Ms. Kogutt. There should be. Mr. Perlmutter. I don't know about on the Stanford side, but there certainly are on the Madoff side. Ms. Kogutt. There should be on the Stanford. There is a litigation stay that has been in place since February 2009. Mr. Perlmutter. Here is the question, and I appreciate the ranking member and the chairman for tackling this. Do we try to even it out? Is equity--everybody was robbed, so everybody is going to be treated equally, or do the first people get to make out better than the guys who put their money in at the end? That is a policy question. For me, I think the equality, everybody being treated equally is appropriate. You then have the lawsuits against the advisers, and then you have the question of how big should we have this insurance fund? And will the broker-dealers or the taxpayers add to that insurance fund? Because the losses from Madoff and the losses from Stanford are so huge, they swamp the fund. It is just gone. It is bankrupt because we haven't made it that big because we hadn't seen those kinds of losses before. And in my previous life as a lawyer, I represented victims of Ponzi schemes. I represented trustees trying to collect money for the victims of Ponzi schemes. These are horrible situations because everybody is--and I want to use a crass term, but I am not going to since I am on the microphone--robbed, and I don't know that there is a good answer. Ms. Shean, please? Ms. Shean. One of the things that confuses me is that we invested in Stanford Trust Company. Mr. Perlmutter. It is all phony. Ms. Shean. But Stanford was a member of SIPC. Mr. Perlmutter. Absolutely, I agree. Ms. Shean. As an investor, when I purchase an IRA government-approved account, or I should say my husband did, and my statements come from Baton Rouge, Louisiana; there is no mention of Antigua. I have-- Mr. Perlmutter. I know, but it is snake oil. It is not real. That is the problem. And when you told--when you brought up that the SEC knew 12 years in advance, okay, that is horrible. And I don't know how we want to try to compensate you for that. That is terrible. Ms. Shean. So since Stanford was a member of SIPC, what is SIPC covering? Mr. Perlmutter. There ought to be something from the insurance fund available to you, and I don't know why you are not getting some recovery, but there were so many people making a claim against that fund, it is gone. Ms. Shean. So they were accepting money from a brokerage firm that was being run illegally? Mr. Perlmutter. Correct. Ms. Kogutt. Can I comment on that? Mr. Perlmutter. Sure. Ms. Kogutt. Part of the provisions of SIPA, 78eee(a)(1), if the SEC or any self-regulatory organization is aware of facts which lead it to believe that any broker or dealer subject to its regulation is in or is approaching financial difficulty, it shall immediately notify SIPC. However, in 1997, the SEC had an item of interest in their very first exam-- Mr. Perlmutter. That is a troubling fact, and I am not sure what the heck to do with that, because you don't have to have a claim against the United States, I am not sure you could do it, but I feel like you have a claim-- Ms. Kogutt. There have been lawsuits against the SEC. The one that has moved forward the most is the one that has alleged the SEC's violation of SIPA for this particular role because the broker-dealer had a negative 1,400 percent loss year after year, so they are at a negative operating loss, and it grew every single year. Mr. Perlmutter. And, look-- Ms. Kogutt. Why didn't SIPC know that? Mr. Perlmutter. Your testimony is very compelling, but my time has expired. Chairman Garrett. The gentleman's time has expired. Mr. Perlmutter. I appreciate you all coming here and sharing with us. This is a tough deal, and I appreciate them tackling it. I am not sure they have the right answer. Chairman Garrett. I appreciate that the gentleman's time has expired. I also appreciate the fact that the gentleman indicated that Ms. Shean probably should receive something from the SIPC fund. I now recognize Mr. Hultgren. Mr. Hultgren. Thank you, Mr. Chairman. I, too, thank you all for being here today. I know this is a very difficult thing. I would like to focus my questions for on, Mr. Harbeck, if that is all right, just for me to help understand a little bit more of some of the challenges here. Focusing on the SIPC Modernization Task Force report, I know one of the recommendations is to eliminate the distinction between claims for cash and claims for securities during the resolution of a failed broker-dealer. First, I wondered if you can explain why this distinction between cash and securities claims may have existed before and, second, why SIPC feels the distinction is no longer appropriate or necessary? Mr. Harbeck. First of all, that is not SIPC's position; it is the task force's position. And SIPC will be responding to the task force on or before its next February board meeting. What the original distinction tied the amount of cash directly to the amount of cash available for the FDIC, and rose with that dollar number. But in point of fact, sometimes cash gets literally caught in the form of a check going to someone when they didn't really want to leave cash with the brokerage firm, it just happened to be caught as cash as the brokerage firm failed. The task force looked at that and said it might be appropriate to simply abolish the difference. Mr. Hultgren. I wonder if you could explain how fictitious securities are categorized in this process. And as you talk about that, are claims for fictitious securities considered cash claims or security claims? I understand there has been some confusion over that in the courts, and I wonder what SIPC's position is on that? Mr. Harbeck. There is a split in the circuits on this. The Sixth Circuit has taken the position that the only conceivable way to measure cash legitimately deposited for the purpose of purchasing a security which does not ever exist would be protected as a claim for cash. The Second Circuit has taken a different view, and protected it as a claim for securities. But one important thing with respect to any claim for securities is that SIPC, under no circumstances and in no case, was ever intended to guarantee the underlying value of a security. SIPC was designed to get you your security back. If it went up, excellent. If it went down, that is the way the marketplace works. Under no circumstances, regardless of why a security moves up or down in value, does SIPC protect the underlying value. It simply returns the security to you. Mr. Hultgren. I know another recommendation from the SIPC Modernization Task Force report is to increase the maximum level of protection from $1.3 million and index it to inflation. If the distinction between cash and security claims is eliminated, effectively eliminating any cash maximum, and the level of protection is raised to $1.3 million, this means that all cash up to $1.3 million would be SIPC-covered. That is over 5 times the level of FDIC coverage. Is that desirable? And how might that affect cash holdings in deposit accounts and brokerage accounts? Mr. Harbeck. I think there may be unintended consequences to the task force's recommendation. And I am sure that the SIPC board will be actively debating that and has begun that debate already. Mr. Hultgren. And that response will be in the next few months? Mr. Harbeck. It is my understanding that the board intends to reply to the task force on or before its February board meeting in 2014. Mr. Hultgren. One last thing. Appreciating that one of the fundamental principles guiding SIPC is to certainly protect small investors, I wonder how raising the maximum coverage level would affect small brokers. Surely you would think this would raise broker-dealer assessments. Mr. Harbeck. The fact of the matter is that what we will do when we reach the target of $2.5 billion, which matches the Federal line of credit that we have against the United States Treasury, I am confident that the board will assess whether at that particular point in time--our current assets are $1.9 billion--whether a target of $2.5 billion is appropriate or whether it should be increased. I think we will take a hard look at where we stand and where our obligations are and what our legal obligations are as to whether the assessments should be raised, lowered, or stay the same. Mr. Hultgren. Thank you all. My time has almost expired. I yield back. Mr. Chairman, thank you so much. Chairman Garrett. Thank you. The gentleman yields back. Mr. Carney is recognized. Mr. Carney. Thank you, Mr. Chairman. I would like to thank you and the ranking member for having this hearing today, and particularly for your tenacity on behalf of your constituents. Knowing how important our constituents are, I have great sympathy and appreciation for the work that you are doing. I appreciate in particular the victims who have come here today. For me, I think our role is at some level to establish what the facts are and to try to come up with the best public policy, not just for these two terrible cases, the Stanford case and the Madoff swindle, but also going forward for everything else. So I am going to try to I think address most of my questions to Mr. Harbeck and Mr. Hammerman. First, I want to have some more discussion about the treatment of institutional investors versus retail investors. Mr. Stein, I think, said that 80 percent of the institutional investors were protected, and obviously, a lot of retail investors were not getting assistance. Mr. Harbeck, you mentioned the situation with pension funds. Mr. Stein seemed to take some exception to that. What is it? Is that the full explanation, or what other institutional investors might we be talking about here? Mr. Harbeck. The statute makes no distinction between a corporate investor, a large investor, or a small investor. The measurement is how much and, in the Madoff case, how much net did that investor put in. Mr. Carney. So is it the case that the institutional corporate investors put in more money than the retail investors? Is that part of the explanation? Mr. Harbeck. Whatever the net amount in was for any individual, whether it is a corporation, a hedge fund, or anything else. Mr. Carney. So it would be your view that in fact SIPC is not treating institutional investors any differently than retail investors in terms of the methodology that you are using. Mr. Harbeck. The methodology is the same for all. Mr. Carney. So should we look at that methodology if the effect is to maybe, this is my word, favor institutional investors over retail investors? Or is there something in the methodology that gives preference to institutional investors? Mr. Harbeck. It gives no preference to institutional investors. It gives preference, on a pro rata basis, to a larger contributor to the fund. Mr. Carney. Which at some level is fair, right? Mr. Harbeck. Especially when you consider that the institutional investor, whether it is a hedge fund which has partners, or whether it is a pension fund which has pension participants, if that institutional investor is an innocent institutional investor, it will get a proportional share. One thing that I take strenuous exception to is the fact that any institution that should have known about this or is alleged to have known about this has not shared, nor will it. Mr. Carney. Quickly, Mr. Stein, you are jumping out of your chair to get a point in here. Please feel free. My time is running out, but go ahead. Mr. Stein. I get back to the words that Mr. Garrett stated initially when he was referring to the opening comments that President Nixon made. This legislation and the statute was intended--its very purpose was to protect the small investor. I don't know how many times that point has to be reiterated for it to sink in to SIPC's conceptual thinking. But that is the essential point. It is understood that professional investors and institutions have the resources and the recourse to be able to protect themselves and their investors. Mr. Carney. Fair enough. So should the methodology then slant towards the retail investor? Mr. Stein. I think it is a legitimate question to pose going forward. But I interpreting the law as it is written now, I think first of all it is from a public policy point of view, it is essentially we protect the smaller investor and the middle-class investor, as it was intended in the law. Mr. Carney. That makes a lot of sense to me. There is something to be said for that. But does the kind of the fundamental part of the bill going from a calculation of actual net investment to last statement method, does that do that? Mr. Stein. Actually, the bill that Congressman Garrett has written gives the trustee the ability to determine what is in the best interests when it comes to the recovery of customer property, that second pool of money that Congressman Perlmutter was referring to. So those moneys that are recovered--we are talking about everybody getting their $500,000--the pool of money that is recovered, the trustee now has the ability to look to the SIPA legislation and say, what is the most equitable way to distribute this money? Do we give most of it to the small investor? Do we give most of it to the large investor? How are we going to split it? Mr. Carney. That seems to me to be a fundamental question. My time has run out. I may have additional time at some point. But I appreciate everybody coming in. Again, thank you to the chairman and the ranking member for your tenacity on this issue. Chairman Garrett. Thank you. And we are going to stay for 5 more minutes and then go to vote, or 10 more minutes, to go a second round, without objection. So, Mr. Hammerman and Mr. Harbeck, you have heard the testimony or the statements by Ms. Shean and Mr. Friedman as to how Mr. Shean invested and how Mr. Friedman invested. Can you tell the committee, and I guess all the American public who is watching them as just regular investors going forward, can you tell us what exactly did they do as regular investors that was wrong in their process of making their investments? Mr. Harbeck. Chairman Garrett, these victims did nothing wrong, nor has anyone ever said that they did. Chairman Garrett. Okay. Mr. Hammerman, as far as the clients or the institutions in your association, would you say on their behalf that either one of them did something wrong as far as their selection? Mr. Friedman told how he went out and knew about it, actually went to the company and went through it, which is sort of amazing. That, to me, is due diligence. Do you think they did anything wrong? Mr. Hammerman. Absolutely not, Mr. Chairman. These are victims of terrible financial crimes. Chairman Garrett. So if America is watching right now, and they put themselves in the shoes of Ms. Shean and Mr. Friedman, and that those two people did absolutely everything right, and looking, they went in and they saw the SIPC logo there, Mr. Harbeck, and they saw that there was a guarantee that SIPC would protect them, and now America realizes there is no protection, as you were saying before, both of you were saying before, for fraud or these Ponzi schemes, what is the answer then for other Americans? Mr. Hammerman, should there be an addendum, or Mr. Harbeck, should there be an addendum on the SIPC logo that when they go into Mr. Hammerman's, any of the firms in his association, should there be a bold statement saying that you are protected by SIPC; however, if there is fraud by this firm or if there is a Ponzi scheme by this firm, you will not be protected? I am willing to do that. Are you? Mr. Harbeck. Chairman Garrett, SIPC has given $800 million-- Chairman Garrett. Answer the question. Mr. Harbeck. I am. $800 million to the victims of a Ponzi scheme. Chairman Garrett. But you are not to this one. Mr. Harbeck. Yes, sir, $800 million. Chairman Garrett. Not to Ms. Shean, you haven't. Not to Mr. Friedman, you haven't. Mr. Harbeck. No. We have not started a liquidation proceeding for Stanford because the courts have upheld the position that it is inappropriate to start such a case. Chairman Garrett. Ms. Kogutt? Ms. Kogutt. That is under appeal right now with the D.C. Circuit Court. Chairman Garrett. So, in the Madoff situation, then, are you willing to say that if they had invested in Madoff, as opposed to in Mr. Stanford's case, you are saying in this case, you are willing now to have SIPC advances being made so that they can be guaranteed that those payments will be made? Mr. Harbeck. SIPC advanced $800 million to the victims of the Madoff Ponzi scheme. Chairman Garrett. In the case where they are in similar situations, where they have withdrawn more than they have invested in the fund? Mr. Harbeck. If you wish to put an addendum saying SIPC does not permit the payment of fraudulent, fictional profits, we would be in agreement. Because the courts have consistently-- Chairman Garrett. How about this situation, then? Say I put $1,000 into one of Mr. Hammerman's firms or clients a few years ago, and I have been taking out, like Mr. Friedman says, I took out enough just to pay my taxes, I took out just to pay my medical bills and so on. So after so many years, I have taken out my $1,000. But my statement says I still have a thousand or more, right? Under your understanding, how much would I get from advances? Mr. Harbeck. If the entire--if the entire scheme is a Ponzi scheme-- Chairman Garrett. Right. Mr. Harbeck. --then the answer is-- Chairman Garrett. Zero, right? Mr. Harbeck. The answer is zero. And the reason the answer is zero, sir, is because it would take money away from people who did not get their own money. Chairman Garrett. Wait. The time is mine. So what you are advising to do, what I have to do and what they should do in the future, everyone watching this should do in the future, is when you go to a broker-dealer and you make an investment, you should keep track every day that you take money out of that broker-dealer--every day you take out money to make a tax payment, every day you take your money out to make a payment for your insurance or your health care--keep track so that you say, as soon as I get to that limit, in my case my hypothetical, I took out my $1,000 original investment, you are telling me at that point my coverage with SIPC ended, so you know what I would do as a prudent investor? I would close my account with that dealer, and I would walk across the street to another dealer, and at that point, it resets. Is that true that it would reset when I walk across the street? Mr. Harbeck. I think what you-- Chairman Garrett. Answer that question, please. Would it reset? Mr. Harbeck. I am trying to answer it, sir. Chairman Garrett. Yes or no? Mr. Harbeck. The answer to your question is that if you did that, you would be protected. But it is not necessary. And it is not necessary because-- Chairman Garrett. Tell me how else I would be protected for that thousand dollars. Mr. Harbeck. The answer is, in the history of SIPC-- Chairman Garrett. No, tell me how I should be protected. Mr. Harbeck. You should be protected by the regulatory system, you should be protected by the auditors of the firm. Chairman Garrett. Okay. So you have been there for 38 years. You know you are not protected that way. So how am I going to be protected? Mr. Harbeck. I believe that one of the things that has come out of the financial crisis is heightened review by the PCAOB of auditors of-- Chairman Garrett. So, we don't need SIPC any more because my protection is not from SIPC at that point; it is from the SEC and the other agencies. Is that what you are telling me? Mr. Harbeck. Certainly, that is the first line of defense against fraud, yes. Chairman Garrett. That is. But I thought SIPC was my second line, my final line. You are telling me SIPC is not going to be there for me. I think that is one of the takeaways from today is that first, you are willing to change the SIPC logo to say that there is a caveat and that your members will now have a caveat or statement, and that should be indicated to them on a regular basis--I think that is significant that we are going to have to do that. And second, your takeaway is that to be a prudent investor, as Ms. Shean and Mr. Friedman should be going forward, is that you should roll your money every so often from one broker-dealer to another broker-dealer as soon as you have come to that capstone, because my only reliance is on the regulators, and we know how good regulators are, and we know, you have just stated, that SIPC will not be there to protect me. I think that is a significant takeaway from this hearing. Ms. Kogutt? Ms. Kogutt. That is assuming that the Ponzi scheme has gone on long enough for all of the investors to have withdrawn anything. In my case, we invested 9 months before the collapse of the Stanford Ponzi scheme. But I want to point out that SIPC's Web site right now says that SIPC helps individuals whose money, stocks, and other securities are stolen by a broker-dealer or put at risk when a broker fails for other reasons. But Mr. Harbeck has said SIPC doesn't cover fraud. How do you steal a customer's funds without defrauding them? Isn't that burglary? There has to be some level of fraud to steal money. Chairman Garrett. Yes. This issue is so frustrating on so many levels. Mr. Harbeck, you indicated you have been there for 37 years. Can you tell me, prior to this collapse, what was the insurance rate that you charged the member firms during that period of time? Mr. Harbeck. It has varied dramatically over that 38-year period. Chairman Garrett. Okay. Just prior to the crisis in-- Mr. Harbeck. Just prior to the crisis, when we had $1.6 billion, we felt that was enough. And there was a token assessment of $150 per firm. Chairman Garrett. $150. Ms. Kogutt. Stanford paid $1,750 for their protection for their-- Chairman Garrett. So Goldman Sachs in New York, what were they paying? Mr. Harbeck. At the time, they were paying $150 a year. Once we turned the assessment spigot back on, they paid tens of millions of dollars. Chairman Garrett. Right. Just coincidentally, I am in the market right now to buy a used truck. It costs $1,500. So I called up the insurance agent last night and said, how much does it cost me to insure this truck that I bought for $1,500? They said, it is going to cost you $1,000 a year to insure that truck. If I have homeowners' insurance, it is going to cost me about $1,000 on my house. If you go to a Sears and you go and you buy a large TV or something like that, when you leave, they try to sell you one of these insurance policies, which will cost you $200 or $300. Goldman Sachs was paying $150 for basically--for coverage. That doesn't seem irresponsible to you? Mr. Harbeck. I will refer to my written statement, where I have gone through SIPC's financial condition, Chairman Garrett. And we are currently in a stronger position than we were in 2008. Chairman Garrett. Right. But you were not in a strong enough position in 2008 not to have to make these draconian, what appears to be draconian increases, sudden increases, which I can understand completely when I meet with Mr. Hammerman, some of your smaller members, and they are saying, hey, I budgeted, or I planned, and this is my operating budget, my budget for this much. And all of a sudden, wham, I am going to be hit this much. I can understand that. If your guys--I am sorry, if your members had known back in 1980, it was this much; in 1990, it was this much; and in 2000, it is this much, as a business owner, you could probably have planned for that and made for appropriate adjustments in your operation, and I can understand that completely. But to go from next to nothing, less than it costs to buy insurance on a TV at Sears, to go to what some of your members, Mr. Hammerman, are going to right now, you can tell us, is this significant to them, the changes? The increases that some of your members are going to have to-- Mr. Hammerman. It sounds like, from Mr. Harbeck's testimony, that it is multiples of millions of dollars. Chairman Garrett. Right. And I can understand that is probably unconscionable to your members' situation, and that they just can't adapt to it. That is why, Mr. Harbeck, when you say you have been there for years and you have seen this ramping up to this, and the preparation wasn't made, it goes back to my opening questions. What did they do wrong? Nothing. What did the regulators do wrong? A lot. What did SIPC do wrong? Apparently not a significant amount with regard to preparing the fund and being in preparation for cases like this. Ms. Shean? Ms. Shean. Nothing. Chairman Garrett. The committee will stand in recess. Mr. Stein, do you-- Mr. Stein. Yes, Chairman Garrett, I just wanted to thank you very much. I think you have hit a lot of the key points. I think there are two things that I would just ask for consideration here. I think we are finally getting a chance to shine a light on the culture of SIPC. I think it has been largely opaque for probably the 38 years that Mr. Harbeck has been there. I think the transparency is essential. I think we are getting to see some of the warts, but I think we need to dig deeper. I think we need to truly see whether SIPC is in fact even worthwhile. Is bad insurance better than no insurance at all? The second point, more of an overarching issue, is getting back to what the concept was in setting up basic issues of certainty for the banking industry and the financial services industry, and that means that when people see a bank deposit statement or a bank statement or an investment statement, there has to be a certain level of certainty in order for those markets to operate with the kind of confidence and trust that allows this economy to prosper. Once we start chipping away and nuancing at those very, very fundamental assumptions, we are threatening great damage to our financial and banking systems. If we applied the same characteristics that Mr. Harbeck and Mr. Hammerman have just been speaking about to the banking industry, to bank statements, to bank depositors, imagine the horrific result that would take place. I have to encourage the committee to consider, again, in all these decisions what the impacts are going to be to the financial industry and the importance of creating certainty and confidence in the markets, particularly now after what we have gone through collectively in this country. Chairman Garrett. Thank you. Without objection, and it doesn't look like I am going to have any objections, I am going to put into the record: a statement from the Financial Services Institute; the GAO report of 1992; and an email of May 21, 2009, from Mr. Harbeck relative to the matters that we somewhat touched upon during the course of this hearing. We are in votes, and I know that the other Members will be leaving town. So I want to take this opportunity to thank each and every one of the witnesses who have come here today. I appreciate your concern for this issue, and I very much appreciate the testimony. We look forward to any input that any of you have on suggestions as we move forward on this legislation. The Chair notes that some Members may have additional questions for this panel, which they may wish to submit in writing. Without objection, the hearing record will remain open for 5 legislative days for Members to submit written questions to these witnesses and to place their responses in the record. Also, without objection, Members will have 5 legislative days to submit extraneous materials to the Chair for inclusion in the record. And with that, this hearing is adjourned. 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