Managers at Geneva-based Optimal Investment Services continued investing in convicted fraudster Bernard Madoff despite two 2006 internal reports raising a series of concerns, lawyers said this week.
Optimal, the hedge funds arm of Spanish banking giant Santander, which lost an estimated $3.1 billion to Madoff's fraud, is facing a series of legal actions brought by investors in both the U.S. and Swiss courts.
"Both documents strongly suggest that in 2006 Optimal had identified the critical risks with Madoff, investigated, and did not obtain answers providing any real comfort," said Javier Bleichmar, acting for plaintiffs in a Miami case lodged against Santander, Optimal and certain executives.
"Accordingly, the level of wrongful intent appears to have been higher now than prior to the disclosure of these documents" said Bleichmar, from New York law firm Labaton Sucharow.
The first report was prepared by a senior risk executive after an extensive review of operations at Madoff's New York offices and red flags the inability to verify both trading data and the identity of counterparties.
The recommendations of that report were much sterner than those in the later report drafted by investment analyst Jonathan Clark, said people with knowledge of both reports.
Both reports have been seen by Reuters. Clark could not be reached for comment. A Santander spokesman declined to comment on either report.
"There are some important questions. Why were two reports written within such a short time, and with no new material appearing in the second?" said a person with knowledge of the Swiss complaint.
"We should also ask why the second report was authored by a relatively junior person, even though the Madoff relationship was worth $50 million a year in fees to Optimal," he said.
Sources close to Optimal said the second report was a watered-down version of the first, and made it easier to justify the Madoff investment and continue to rake in fees.
The first report states that 'there is absolutely no reason why Optimal should not be able to review how trades are made and allocated to clients'.
"It is a basic request that has mysteriously disappeared from the second report written only five months later," said one source.
In the Miami action, the filing claimed the huge fees were a sufficient incentive for feeder funds to ignore clear signs of Madoff's wrongdoing given that it was the investors, not the funds, who bore the real risk of loss.
The Miami filing estimated Optimal's assets with Madoff at $3.1 billion at December 2008.
Former Optimal CEO Manuel Echeverria, who left the group just months before the Madoff scandal broke, has been charged in Geneva with criminal mismanagement.
The 2006 reports will be pivotal in the case against Echeverria, who left Optimal for Geneva private bank Notz Stucki - which also had sizable Madoff exposure - in October 2008 but left Notz Stucki 'by mutual agreement' in July last year.
The defense may stress that the second report, while flagging defects in operational procedures and proposing risk monitoring measures, found Madoff's operation to be "efficiently and professionally managed." This qualifier does not appear in the first report.
Manuel Echeverria in a statement sent through his lawyer said he categorically contested allegations of criminal mismanagement.
His lawyer, Saverio Lembo, said he reserves his comments for the investigating authorities.
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