Clawback of Fraudulent Transfers from Investors —“Good Faith” Defense Update

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Given the overarching Madoff Ponzi scheme as well as other mini Madoff schemes that surfaced in its wake, many have been following issues arising from the ability of a trustee to claw back transfers (either as preferential or as fraudulent transfers) from investors who redeemed their interests in a private investment fund or managed account that turned out to be a Ponzi scheme. The law generally provides that an investor’s principal investment is protected so long as it is received in good faith and for value. However, the law provides that an investor has no entitlement to fictitious profits although the calculation of such profits, implications of the statute of limitations, burden of proof and other defenses are less than clear.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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