Madoff: Where was FINRA?
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by Bill Singer
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Madoff: Right Under FINRA's Nose
Written: December 12, 2008
By Bill Singer
As many of you likely imagined, I have been flooded with press calls today about FINRA member firm Bernard Madoff Investment Securities, Bernie Madoff, and the Madoff siblings and employees. The Madoff empire was a major player on NASDAQ and a long-time kingpin (if not king maker) for many things once NASDAQ, once NASD, and now FINRA. Just look up the various elected and non-elected seats that the Madoff clan held among industry regulators and trade groups.
As a lawyer, I will abide by the golden rule that folks are presumed innocent. I have read the indictment and it is sad, chilling, and disheartening. I also know that not everyone at the firm was a crook and not everyone will even be implicated. Still, it's yet more mud thrown onto the reputation of Wall Street.
All of which brings me to my point--yes, the "Singer Point" as many of you likely view it. That tired, oft-repeated, mantra-like condemnation of the self-regulatory system that has failed the public investor and the securities industry alike. In the spirit of the holidays, let me keep this uncharacteristically short.
The criminal allegations are not naming defendants who are small-fry pennystock hucksters or boiler-room fraudsters. This is the cream of FINRA's crop.
If a major player such as Bernie Madoff and his FINRA-member firm can pull off a multi-billion dollar scam right under the nose of FINRA, then of what value is that regulator? And let me at least be blunt. Madoff and his firm were no strangers to FINRA. To the contrary, they were welcomed if not esteemed. They sat on Boards, on committees--even on the National Adjudicatory Council that reviews enforcement matters. Those folks had the ears of the powerful and likely helped formulate policy.
Everything I have read today and everything that I suspect that I will read in the weeks to come apparently went on right under the nose of FINRA. When its staff did its yearly examinations, either things were disregarded, missed, or overlooked (and quite probably there was a fair deal of obfuscation by the firm as well). It will be interesting to follow the criminal case and see how much of FINRA's dealings with the firm was at arm's length and whether the judgments of many supervisors and executives was clouded by the knowledge that this was Bernie's firm.
I have said it far too many times, but now it bears repeating: Self-regulation is a failure. What more proof can I offer than to point to this current cause celebre? If FINRA couldn't detect this--when it went on right under its nose--then just how effective is this regulator?
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Not only is FINRA a failure, but also the:
Credit rating agencies
Office of Thrift Supervision
Comptroller of Currency
and finally, the Federal Reserve.
Before this is over, we will all have to start from scratch. It seems like lower, middle and upper classes are all converging at the bottom. Our system...based on "confidence and credit" has come to an abrupt halt.
I guess FINRA was distracted with trying to hijack indexed annuities for their coffers. You know....those bad products that have never lost anyone any money.