The Madoff Fraud: How Culpable Were the Auditors?

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Douglas Healey / AP

The city of Fairfield, Conn., lost money in the Madoff fraud. Attending a meeting in Fairfield on Dec. 15 were (front row, from left) attorneys Robert Morris and Robert Saxl and Tom Bremmer, the city's chief of staff

Add the nation's largest accounting firms to the list of watchdogs and regulators that didn't catch the multibillion-dollar Madoff investment scam.

KPMG, PricewaterhouseCoopers, BDO Seidman and McGladrey & Pullen all gave clean bills of health to the numerous funds that invested with Bernard Madoff and his asset-management firm. Clients say the large accounting firms signed off on statements that said the Madoff investment vehicles had billions of dollars in assets as well as an unlikely track record showing years of always-positive returns. The billions have vanished, and the impressive returns now look to have been made up. See the top 10 financial collapses of 2008.

"It's surprising that the auditors for these various funds didn't identify that the underlying assets were not there," says Christopher Wells, a partner at the law firm Proskauer Rose who specializes in hedge funds. "You would think that is something they test."

On Tuesday, New York Law School sued BDO Seidman along with the fund it audited, Ascot Partners. Investors in Ascot, which was managed by GMAC chairman J. Ezra Merkin and invested all its money with Madoff, lost a reported $1.8 billion. New York Law School said its endowment fund had $3 million in Ascot. It's the first suit to name an accounting firm in connection with the Madoff case.

Lawyers predict lawsuits against the other accounting firms will soon follow. "The fact that they didn't catch the fraud leads me to believe that they blew it," says Scott Berman, a lawyer at Friedman Kaplan Seiler & Adelman who has reached settlements with auditors in similar cases in the past. "I am going to look hard at whether there is liability there."

The difference between this case and other hedge fund frauds in which auditors have been held liable is that Madoff was not actually a client of any of the large auditing firms. Madoff's firm used the small New City, N.Y., accounting firm Friehling & Horowitz — which reportedly had offices in a strip mall and had only three employees, including a secretary, an accountant and a partner in his seventies who lived in Florida. Industry experts now say that the size of Madoff's accounting firm should have been a giant red flag.

Of course, many of the people who invested money with Madoff didn't know they were relying on a rinky-dink accounting firm to watch over their investments. That's because more than half of the $25 billion-plus in losses investors have so far claimed came to Madoff through so-called feeder funds. These funds were set up by outside firms, which would then funnel the money they received from investors to Madoff. Unlike Madoff's, all the firms running feeder funds had well-known accounting firms listed as their auditors. So, for instance, when investors put money in the Rye Select Broad Market fund, one of the largest Madoff feeders, its statement said that their investments had been audited by KPMG.

In fact, it now appears KPMG, along with the other auditors of the Madoff feeder funds, did very little to ensure investors weren't being ripped off. Observers say it's likely that all the accounting firms did was check the statements that Madoff himself produced. In the 64-page document Rye Select sent to all its potential investors is the statement "Valuation provided by the counter party affiliate [Madoff] will not be subject to independent review."

A spokesperson from KPMG says that the firm's audit of the Rye Select Broad Market fund conformed to all professional standards and that the firm would vigorously defend its work. A BDO Seidman spokesperson says that his firm is not and has never been the auditor of Madoff Securities. The BDO spokesperson also says that his firm's audit of Ascot Partners met professional standards and that the firm would defend its work. "It is unfortunate that these investors would bring legal action before all of the facts are known and seek to blame others for their own investment decisions," the BDO spokesperson says.

Cindy Fornelli, executive director of the Center for Audit Quality, which is a Washington-based public-policy organization that represents public-company auditors, contends that all the Madoff case amounts to is a lack of sufficient regulation, not a failure of the accounting profession. "It is not the responsibility of the accountant for a capital-management firm to audit the underlying investments of the firms it invests in," says Fornelli. "The auditor is not in a position to test the existence of the underlying securities — especially in a fund-of-funds situation."

Accountant Ronald Niemaszyk, whose firm, Jordan Patke & Associates, specializes in reviewing the books of hedge funds, agrees that in many cases it is common to rely on brokerage statements when auditing funds. But in this case, Niemaszyk says, the auditors most likely should have looked deeper. "You have to look at the auditors' work that you are relying on," he says. What's more, Madoff acted as his own broker instead of going through another firm.

Niemaszyk says it is up to auditors to decide how far they go to verify a fund's assets and trades. But the fact that Madoff used an unknown auditor and was reporting his own trades probably should have prompted the auditing firms to do more than usual to check that the fund's assets were indeed there.

"All they really had to substantiate the gains of these funds was Madoff's own statements," says Harry Susman, a lawyer at Houston-based Susman Godfrey. "They were supposed to be the watchdogs. Why did they sign off on these funds' books?"

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