Tuesday, January 30, 2018

5,000 Reasons Why the Overstock.com Saga is Crazier Than Ever

Byrne is the kindest, warmest, bravest human being.....

It's been a long time since the financial press has cast a skeptical eye on Overstock.com and its CEO, Patrick Byrne, Yet there are multiple reasons to do so. Five thousand to be exact. So I've dusted off my blog for an update on my favorite fraudulent stock.

As in all soap operas, its continuing story line is not new: Byrne wants the stock to go up. The stock has a history of manipulation, mainly through cooking the books, resulting in multiple restatements. But it takes an expert to sniff out accounting irregularities. All you need to detect the latest Overstock scam is a working pair of eyes and an Internet connection.

What's new is that Overstock shares are the subject of an old-fashioned pump-and-dump.

That's where it gets crazy. In promoting the glories of Overstock, Byrne has the help of a former adversary named Marc Cohodes. That person, in turn, has the help of a disgraced ex-social worker named Fraser Perring.

It took nearly six years for Byrne's hatchet man Judd Bagley to be turned into mush by copping a plea to eight felony forgery counts.  Perring enters the Overstock fray pre-discredited, having been expelled from social work in Britain for "deliberate, persistent and dishonest conduct to hide mistakes." Just the kind of background you need to be taken seriously on Wall Street, I have to admit.

As for those 5,000 reasons: for weeks Cohodes has been beating his chest about Overstock, ridiculing skeptics, offering off-the-wall price projections, and even offering side bets on the share price. Yet on December 22, he donated 5,000 Overstock shares to the Southern Investigative Reporting Foundation—an act that contradicts everything he has said about the company and its stock since October 10, when he appeared at a Grant's Interest Rate Observer conference in New York and predicted that Overstock's stock price was going "way the fuck up."

I'll be returning to those 5,000 reasons later. First, let's bring newcomers up to date.

The tawdry background

Patrick Byrne aide Judd Bagley in a Utah lockup  

Before Cohodes entered the picture, Overstock CEO Patrick Byrne intimidated the media,  analysts and critics through his p.r. director Judd Bagley, who created for Byrne a prototypical "fake news" site, Deep Capture. It published nutty conspiracy theories that defamed a host of people. One of them was a Canadian businessman named Aly Nazerali, who was a subject of wild, unsubstantiated accusations on the site.

That was a mistake. Nazerali lives in Canada, the Black Hole of Calcutta for libel defendants.

Byrne's Waterloo
In 2016, Nazerali won a defamation suit and was awarded sizable damages by Canadian standards, including punitive damages and, far more importantly from a libel plaintiff's standpoint, a lengthy, scathing judgment. The court found that Byrne and his subordinates displayed a "reckless indifference for the truth," that their motive was to "inflict damage" on Nazerali, and cited "the overt animosity, even hatred of the plaintiff, expressed by Mr. Byrne."

The court concluded, in throwing the book at Byrne, that "it is clear on the evidence that their intention was to conduct a vendetta in which the truth about Mr. Nazerali himself was of no consequence."

Not long before the libel verdict, Deep Capture founder Bagley copped a plea to eight counts of forging prescriptions and was revealed in court documents to be a raging addictlittle details omitted from the puff pieces that Byrne generated.

Deep Capture was now completely discredited. But Byrne kept it alive to use when journalists threatened to write negative articles, most recently to attack M.L. Nestel of the Daily Beast., who was preparing a 2016 article that was the last critical piece to appear on Overstock.

Byrne has privately sought to make nice with some Deep Capture targets, Cohodes in particular. He removed every reference to Cohodes, cutting out his name from the website in Stalinesque fashion after he acquired Overstock shares and began pumping the stock. But Byrne has kept the site alive and its staff on retainer, never retracting any of its thousands of lies. He has told multiple people in recent months that he remains proud of the website.

Byrne has proven that he is unrepentant and unchanged by deed as well as word, vigorously fighting the Nazerali suit. His lawyers pleaded Byrne's case before an appellate panel in Vancouver on January 15 and 16, 2018.

Byrne's credibility was flushed down the toilet with Deep Capture. Absence of credibility is a serious issue if you want to promise a bunch of stuff to make your share price to go up. That's where Marc Cohodes comes in.

Raymond Shaw, Call Your Office

The classic 1962 thriller The Manchurian Candidate stars Laurence Harvey as Raymond Shaw, an Army sergeant who is captured in North Korea, brainwashed, and programmed by his captors to return to the U.S. and do the commies' bidding.

In this real-life Manchurian Candidate tale, the Shaw character is Cohodes, a retired hedge fund manager turned chicken farmer. He and his partner David Rocker were sued by Overstock for libel in 2005. The suit was settled in December 2009, and Cohodes (Rocker had retired) issued a defiant statement on behalf of his hedge fund, Copper River Partners.

Cohodes's view of Overstock and Patrick Byrne had not changed by November 2011, when he said in deposition testimony that Byrne was "crazy" and "not fit to run a public company."

Nor had it changed by December 2013, when Cohodes sent an email to his then-pal Sam Antar, who he'd been leaning on for free forensic accounting advice, saying about Byrne "all he does is lie."

The turning point in the Byrne-Cohodes relationship involves the demise of Copper River, which collapsed in the wake of the 2008 market crash. It was down 55% in just two weeks during a time in which other shorts were as happy as pigs in clover, gaining 35% on the average in 2008.

Cohodes blames Goldman Sachs for crushing his old firm with margin calls he couldn't meet. But if you read the press coverage carefully you'll find a significant fact buried in there—"Copper River’s funds at the firm [Lehman Brothers] were suddenly frozen." Journalist Roddy Boyd has described what happened as "the fund’s devastatingly ill-considered swap with Lehman Bros. on several equity positions that blew up just as the brokerage collapsed."

Ill-considered is right. The Nobel prize-winning economist Joseph Stiglitz has observed that "people were talking about the failure of Lehman Brothers from the moment of the failure of Bear Stearns in March, or before." That's why hedgies who are familiar with the Copper River collapse don't buy his contention that Goldman was to blame. Cohodes couldn't meet Goldman Sachs' margin calls because of his avoidable Lehman problem.

Ironically, in 2008 Byrne sided with Goldman Sachs, saying sarcastically on Deep Capture that "it's damn inconsiderate of Goldman Sachs to insist that Copper River have funds to back its play," But make no mistake: the attacks on Cohodes were mild compared to the attacks on family members and fabrications directed at myself and other Deep Capture targets.

Over the years his hatred of Goldman has drawn him close to Byrne. While I don't  believe that Byrne has any genuine antagonism toward Goldman—it is, I think, just a pose that he displays for the press—he has sued Goldman as part of his naked shorting dog-and-pony show and that lawsuit has result in discovery that he has hyped to the hilt.

Turns out he was wasting his money. As I noted in a 2012 Barron's article, the suit revealed that if anyone was harmed by Goldman it was hedge funds, not supposed corporate victims like Overstock.

In June 2017, Byrne and Cohodes met and bonded, with Cohodes tweeting a picture of the two men. He accumulated a sizable position in Overstock.They were now joined at the hip. Byrne didn't have to use post-hypnotic suggestion to turn Marc Cohodes into Raymond Shaw. All he had to do was appeal to his vanity.

That became evident when Cohodes appeared before the Grant's conference on Oct. 10  and gave his "way the fuck up" presentation, claiming that Overstock was "ridiculously cheap" and slobbering over his new pal. Cohodes asked his audience, in effect, to pretend that Byrne was not the liar and con man that he had always been. Byrne, he said, had figured out a better way to engage in the stock loan business, based on the blockchain.

The crucial part of the presentation received little attention. Cohodes candidly described how he was conned. 

At about 6:25 in the YouTube link above, Cohodes recounts how Byrne called him and told him that Goldman never had actually borrowed the shares that he was shorting, and that "you were ripped off and they put you out of business because they didn't have the shares."

"It meant a lot to me," said Cohodes. After all, Byrne "didn't really need ever to do that."

Oh yes he did. You would too, if you were an experienced flim-flam man like Byrne. He had figured out Cohodes' weakness, which was a desire to shift blame for the demise of Copper River.

The result was available for all to see in 2017, with Cohodes singing Byrne's praises and giving a Raymond Shaw performance that put Laurence Harvey to shame. It was brilliant from a stock promotion standpoint. How could Cohodes be wrong? Hell he used to hate Overstock! It's a theme I've seen repeated on social media time and again.

But it's really not strange at all. Shorts go "long" all the time. Contrary to the image sometimes presented in the media, short-sellers are not "scam busters" but opportunists, and they are happy to switch sides to make a buck. Strictly-business pairings of former adversaries are not unusual, as evidenced by the friendship of Steve Wynn and Donald Trump after years of acrimony.

What is strange is not that a short went long, but the Manchurian Candidate-style delusional conduct and the facts-be-damned embrace of a crooked CEO.

The media, unfortunately, sometimes put a halo over shorts. It's not surprising, since they feed us good stories, flatter us on social media and want to be our pals. But they're not. To some, Cohodes included, we're tools. While short-selling is an important stock market practice, as I pointed out at length in my 2006 book Wall Street Versus America, it is a mistake to conflate the practice with the practitioners. Some shorts have gone to prison or been barred by FINRA. The conversion of one into a stock promoter is no biggie by comparison.

The pump 

With Cohodes by his side, Byrne had a valuable ally as he repositioned the faltering e-tailer into a supposed future "stock lending" powerhouse aimed at addressing the imaginary naked shorting menace. Byrne, predictably, made claims that grew wilder and crazier with each presentation, as pointed out in a damning report to the Securities and Exchange Commission by an Overstock critic, an abridged version of which was posted on Medium a week ago.

That report is must-reading because it performs a task that the financial press has neglected, which is to investigate Byrne's public statements concerning his hyped stock-loan venture.

The report, written by a thinly disguised Midwestern short-seller, asserts that Byrne's version of reality can be boiled down to three elements, and that each of them "is materially false." He calls the Byrne promotion "largely a fantastical fiction which overstates the business opportunity for tZERO by as much as 25,000 percent in order to mislead investors about tZERO’s true prospects."

What's amazing is not that the claims are fantastical but that anyone would believe a single thing that Byrne would say. Yet the pump of the stock hinges on believing Byrne.

Starting at Grant's and continuing with Twitter posts that sometimes border on the hysterical, Cohodes dismissed as irrelevant Byrne's background of serial lies, behaving as if they were a high school prank circa 2005 or earlier, and not the acts of a CEO who celebrated his 55th birthday on Nov. 29.

Cohodes referred to Byrne in syrupy, adulatory tweets as "Dr. Byrne" and adopted Byrne's smear tactics as he pumped Overstock shares. He never referred to Byrne by the Manchurian Candidate catchphrase "the kindest, warmest, bravest, most wonderful human being I've ever known in my life," but he has come close. Throughout the fall and winter of 2017, Cohodes prostrated himself before Byrne on Twitter, acclaiming him as a visionary genius, a combination Einstein and the Lone Ranger.

Cohodes created not just his own version of reality but his own bizarro-world code of ethics. He regularly ridicules skeptics for having no stock market position, no "skin in the game," claiming that only the opinions of people like himself—in other words, people with major financial conflicts of interest—are worth a damn. In the real world, such conflicts make one less trustworthy.

Meanwhile he regularly generates tweets sucking up to the financial press, people ethically bound to not have "skin in the game," and some lap up his insincere flattery.

He also conflates disagreement with his view of Byrne as a stock-price forecast, and has claimed that the success of his pump proves him right—a hazardous assertion, considering that some of his short picks, notably MiMedx, have performed contrary to his expectations.

Cohodes's big mouth and openly moronic style don't do him very much good when he is sued, as this court decision indicates. But they doubtless help drive up the share price by appealing to naive retail investors and small-fry traders in Overstock, with its volatility, thin float, and susceptibility to short squeezes.

What distinguishes the Cohodes pump from previous efforts to boost Overstock is that he gives share price projections—something Byrne and his surrogates have never done before.  But it seems to work, and Cohodes is proud of his stock-promotion skills. He may have put it best in a tweet shortly after the New Year.


He certainly has been unrestrained and enthusiastic.

On December 10 he tweeted "I have been Long $OSTK since the summer & its going much HIGHER . IMHO"

On Dec. 11 he was talking about the stock at $150-$200 a share. The stock was trading at the time in the 50s. (Click on the images below to enlarge.)



On Dec. 13 he was talking $200 to $400 a share.



On Dec. 15 he spoke of the stock hitting $400 if he was right—and he never publicly budged from the view that he was right as rain.


On Dec. 16 he said Overstock was worth $200-$400 a share "depending upon TZ"—a reference to TZero, about which Cohodes has only had positive things to say.



On Dec. 17, Cohodes tweeted that he had bought more shares in the preceding week.


On Dec. 19, a fairly typical day in the Cohodes pump, he:
His output of hype, invective, threats, hysteria and bullshit did not slacken as Christmas approached.

On Dec. 21, after making a creepy threat against Overstock skeptics, he said that the "best thing that could happen" was being long Overstock.

On Dec. 22 he claimed the retail part of Overstock's business was worth $100 a share. (On Dec. 13 he had put its value as $60-$90. On Dec. 7 he said it was worth $60.)

On that same day he ridiculed a critic's claim that Overstock shares were floating in a "bubble" made of "hot air."

Throughout, Cohodes never wavered from portraying himself as someone who wouldn't part with a share of Overstock unless it was ripped from his cold, dead hands.

In a Dec. 19 exchange, Cohodes gave not an inkling that he would ever dream of parting with Overstock shares. "i have made 5X my money and they are just scratching the surface. i am not a trader," he said. The full exchange is below (click to enlarge).


In a Dec. 18 tweet, Cohodes could not have been clearer that he would never, never, never sell a single share:

To this day it's still only Davidson. So that means that he would absolutely, positively never ever part with a share of Overstock. Right?

Well......

The dump

On December 21, 2017, Roddy Boyd, CEO of the Southern Investigative Reporting Foundation, received a call from Marc Cohodes. He wanted to make a donation consisting of 5,000 shares of Overstock.com.

It was a welcome call. SIRF needed the money. Roddy had not taken any salary for the preceding month, and he had borrowed against his house. The donation was unsolicited.

After hurriedly consulting with his board of directors and his lawyer, Roddy accepted the gift. The shares were sold on the open market the following day as soon as they were acquired at a sale price of $65.32 a share, with proceeds coming to $326,600 minus fees and a commission of about $2,000, leaving a net of $324,400. Cohodes had already given SIRF $15,000, and the share donation brought the total given to SIRF to $339,693, more than twice SIRF's expenditures in 2016, when it was running at a deficit.

Cohodes' previous $15,000 donation was listed on SIRF's site as being from Cohodes personally, but Roddy tells me that "we received the initial donation of $15k and the subsequent shares donation in an entity called the Marc Cohodes Charitable Trust. I asked him if he'd prefer to use that name and he said just change the last word to 'fund.'" The entire $339,693 is currently shown on the site as donated by The Marc Cohodes Charitable Fund.

Roddy tells me that his decision to take the shares was consistent with the expert advice he had gotten that he had "a duty (but not obligation) to seek out sources of support that don't conflict with the mission statement." Since opening SIRF, he said, "I've turned down at least $50k, probably more." At the time that he accepted the donation, he said, "we told Marc to leave us out of debates about things he's involved in."

SIRF, he said, "had a board discussion and we simply don't want to be connected to any debate about a public company's market value and its investors that we didn't start. That goes triply for this company."

You have to give credit to SIRF for publicly disclosing the contribution at all. It's not required by IRS regulations and SIRF's policy on donor disclosure exceeds the standards on donor transparency set by the Investigative News Network. However, it would have eventually been disclosed by the Cohodes "charitable fund," assuming it is an IRS-approved private foundation as its name implies. His ex-partner's family foundation's 2016 report, for example, can be found on the Foundation Center's 990 Finder website; its contributions of over $5,000 are listed on the 26th page. Pretty much every private foundation's 990 is available on that and other websites.

I think that Roddy is a good and honorable guy. He was very forthcoming in providing information to me on the Cohodes contribution, which had become common knowledge among people who follow Overstock.

I also think that SIRF risks taking a reputational hit for accepting a large contribution of Overstock shares in the midst of a pump, and for allowing one controversial donor to dominate its donor list. To me, a financial journalism nonprofit taking an actively promoted stock is akin to a cancer charity taking a donation of a tobacco stock. I think that would be so even if the donor was Mother Teresa and not someone who engages in clownish stunts, attacks fellow journalists, celebrates conflicts of interest, and actively advocates and whitewashes a CEO who has a website that smears a number of financial journalists, including Roddy.

But then again, I don't have to borrow against my house to keep a nonprofit alive.

Anyway, what matters is not who got the stock but that the chief promoter of Overstock shares was getting rid of a sizable number of shares at the same time that he was pumping—and vowing not to take profits until there were eight sell-side analysts covering the company.

Was the stock put in the charitable fund by Cohodes or someone else? Like that guy in Utah he likes so much?

Whatever the source, why donate Overstock shares and not something else, or just cash, if one feels that Overstock is going "way the fuck up"? Didn't he have a fiduciary duty to keep a stock with such potential in his charitable fund? I've asked Cohodes these questions, and am awaiting a response.

As of Feb. 1 he hadn't responded, though he did take time out from misogyny—a female MiMedx exec has "very Greasy Hair," he tweeted—to feign delight at seeing his dump publicized. Note the lie at the center of his tweet. The $300K donation to SIRF is not news and was not "recognized" in this blog. It emerged weeks before. The fact that it was a share dump is new, and was never disclosed as a share donation by either Cohodes or SIRF.

On January 3, 2018, just 12 days after he transferred the shares to SIRF, Cohodes talked about the stock hitting $300.



No, make that $400.


I do agree with Cohodes on one of the points that he made above. The media is lazy when it comes to Overstock.

The disgraced social worker

On Twitter, where he has emerged as the Donald Trump of stock pimping, Cohodes is surrounded by an echo chamber. Anonymous sycophants provide a feedback loop as he tweets his often bizarre, juvenile and even paranoid posts, at one point claiming that drones he saw over his chicken farm were sent there by one of his short targets. The sycophants chime in with expressions of concern on such occasions, and also are constantly telling Cohodes what a great guy he is, to the point that I wonder if they are relatives or even Cohodes himself.

They also form a kind of troll army, harassing people who disagree with him. One of the latter stands out from the rest by sheer nastiness and dishonesty. He goes by the Twitter handle of "AIMhonesty" which is ironic since his posts, which are distinguished by garbled syntax, are anything but honest as they concern Overstock, in which he has served as a loyal Cohodes wing man.

He's slippery. When this person claimed I was posting "lies" on Twitter, I demanded that he substantiate his claims and he never responded.. See also this tweet. And this. And this. His twitter feed has a pinned tweet referring to his "debunking" a "report" that I "distributed," which is bullshit from beginning to end.

Who the hell is this prodigious, evasive liar? Well, for one thing, he is persistent. Sam Antar tells  me that "AIMhonesty" sent him private messages via Twitter that began pleasantly last summer, but became abusive and incessant after he started challenging Cohodes on Overstock. When asked to identify himself, he refused. His PMs became threatening.

Here's one that he sent after he was told multiple times to identify himself or go away:


In early December he asked a series of incoherent "questions."


He concluded his bizarre "interrogation" with the following muck:



Cohodes prized his contributions, however, and in December met him "in parts unknown" and was photographed "hanging" with him.


You can imagine my surprise when this babbling fool was identified in the financial press as Fraser Perring, "CEO" of a "research firm" focusing on short-selling called Viceroy Research. Not a word was mentioned about his close relationship with Cohodes, that he partnered with him in pumping Overstock, or that he had been tweeting anonymously as "AIMhonesty,"

Nor that it was unprecedented that a "research firm" would be completely anonymous and therefore unaccountable.

There were other omissions in the coverage. For one thing, the article to which I linked above says that Perring had "stepped forward." But it didn't say that he actually was pushed forward. An online publication, Moneyweb, had already identified him and was preparing an article exposing him. The Bloomberg piece, apparently planted by Cohodes, was clearly intended to preempt the more hostile Moneyweb article.

The story did not mention that attorneys for a company called MiMedx, which has sued Viceroy for libel, were seeking the identity of its principals.

A follow-up Bloomberg article began as follows:
A year before unleashing a damning report that detailed accounting irregularities at Steinhoff International Holdings NV, one of its authors faced a reckoning of his own.
Minutes after Fraser Perring dropped off his 4-year-old daughter at school in December 2016, two men with Eastern European accents trapped him in his Audi. They threatened to harm his family unless he admitted writing extensive reports alleging wrongdoing at Wirecard AG. Frightened, and fueled with adrenaline, Perring lied. He said he had nothing to do with the reports.
“It devastated me, but it made me stronger,” Perring said.
The only words in the foregoing that are believable are these two: "Perring lied." Anyone familiar with organized crime would tell you that mobsters don't threaten in such situations. That's only done in Tarantino movies. And the story doesn't hold water at all. As indicated in the Moneyweb piece, Perring was identified by simply examining the metadata contained in one of his research reports. Any geek would have found that in five minutes. There was no need to send over hoods to force him to "admit" his identity.

That cock-and-bull story strained credulity to its outer limits, calling into question his credibility, as does his posting a photo of his kids on Twitter even after claiming in multiple interviews that his life had been threatened.

The Bloomberg article, though deficient though it was, did provide compelling evidence that absolutely nothing Perring said was worthy of belief.

The article notes that he was thrown out of social work in Great Britain by the Health Care and Professions Council. Perring did not appear at the hearing, either personally or through counsel, to defend himself. 

An HCPC panel found that Perring
 . . . was Child A’s allocated social worker during care proceedings. It was his responsibility to ensure he made contact with the child’s extended family and he had been directed by both the court and his manager to do this. He did not contact Child A’s extended family for over six months and instead recommended a closed adoption.
The Panel further heard that Fraser John Perring’s failure was exposed due to an enquiry from Child A’s guardian, which caused him to contact Child A’s aunt and uncle only a few days before the final hearing of the case. To cover his failings, he then created false entries in the case file to show he had phoned them three times and created a letter to them dated two months earlier.
Panel Chair Clare Alexander Yule commented:
In the Panel’s assessment, the established facts and misconduct are very serious involving deliberate, persistent and dishonest conduct to hide mistakes. Such serious dishonesty continues to cast a shadow over the registrant’s current fitness to practise. He has failed to accept responsibility for any of his failings and subsequent dishonest cover up. 
“The potential consequences for Child A were very serious as there was a risk that he may have been adopted, thereby severing his family ties, denying him contact with the extended family.” (emphasis added)
If any reporter was curious about the significance of the foregoing, all he or she had to do was to examine the coverage in the local newspaper, the Lincolnshire Echo, which covered this case of social worker sliminess on page 9 of its editions of February 20, 2014. It's available on the ProQuest database, which most news organs can access.

The Echo describes the child in question as a "neglected boy," and goes on to say that Perring "had made just one phone call to the child's aunt and uncle a few days before the adoption hearing and, to cover his mistakes, he created false entries into the case file which attempted to show that he had phoned them on three other occasions. He also wrote a letter to the family on June 20, 2012, but put an April date on it, to make it look like it had been sent earlier in the year."

Following "an investigation into Mr Perring's telephone and other records, he resigned from his post," the newspaper reported.

Perring's defence to the foregoing was a Twitter storm in which he contended that he was the innocent victim of a conspiracy. (click to enlarge)



Perring has said on social media that a monetary settlement paid to him to settle an employment suit is exculpatory, which shows how little he knows about litigation. People, companies and governments settle lawsuits all the time to avoid further headaches and legal fees. Copper River is one, paying $5 million to settle the case brought by Overstock to avoid the expense of further litigation.

As for Perring, the text of the settlement makes clear that there was no admission of liability by the Lincolnshire County Council. And the settlement was in 2013, one year before the British regulator kicked him out of social work.

In a detailed description of the 2014 hearing, the HCPC made a direct reference to the earlier litigation. It indicates that, even though he didn't appear to defend himself, it took into consideration Perring's "suggestion that the Management had retrospectively found concerns with his practice once he had communicated his intention to bring legal proceedings." But it still found against him and struck him off the rolls of social workers.

A Council spokesman sent me a statement saying that "we do not share the sentiments expressed by Mr Perring nor is there any evidence to support them." (Interestingly, the Bloomberg reporters who wrote about Perring's legal troubles never bothered to contact the Council, even though Perring makes lurid accusations against it.)

Perring's lawyer in the employment action wouldn't comment, saying he was bound by attorney-client confidentiality rules.

So we are left with an uncontradicted, unappealed, pretty damn disgusting finding of dishonest conduct, made by a British regulatory body concerning someone who is being toasted in the financial press as the epitome of honest, clean securities research. We are also left with the social-media smokescreen that Perring has thrown up about his past. Such as this tweet from his "Viceroy" account after his troubled past was revealed. Note the non-responses to my questions.

Being thrust into the  public eye means that Perring is probably going to be dragged into litigation. In one recent tweet he addressed the possibility of being interrogated in a deposition.

Apparently Perring thinks that giving a deposition is like appearing on the speakers' corner of Hyde Park, and not a tightly controlled proceeding in which the deponent answers questions, not the people who are trying to get the information.

Note the "#sueme" hashtag. MiMedx has sued Viceroy and some hedge funds in federal court for libel, claiming false statements were made in Viceroy's research. On Jan. 12 a  magistrate recommended that everyone except Viceroy be dismissed as defendants, and permitted discovery to identify the identity Viceroy's principals. But the magistrate put tight restrictions on discovery, which turned out to be moot because of the Moneyweb reporters' good work.

So Perring will doubtless get his "#sueme" wish. Which means he is going to be have to hire lawyers and, if they can't get the suit dismissed, sit for that  deposition he's looking forward to.

And thanks to Perring's big mouth, the other side has a big, fat line of inquiry it can pursue if and when he is deposed. He blurted out in a Bloomberg interview that "Viceroy only has one outside investor, a 'significant high-net-worth individual' based in the U.S. he didn’t name." That person's name, and any others backing Viceroy, and all sorts of other interesting stuff, will be extracted from Perring during that deposition, if the suit survives legal challenge.

There may be more legal troubles down the road for Perring. Viceroy has produced a series of very interesting research reports, including one on a firm called Capitec Bank. Capitec denies the allegations, which sent its stock nosediving, and has called for an investigation.

Just to be clear, I have no opinion on any of the companies they've written about. They can be as lousy as billed for all I know. What interests me is  whether Viceroy is legit, given what we know about Perring. Short-selling is unpopular enough without charlatans getting a high profile.

I guess it's possible that Perring and the two young Australians who work with him are investment prodigies, and write up all this great work on their own, and aren't fronts for others, such as hedgies who don't want the limelight.

But given Perring's bizarre behavior and dissembling, his absence of financial background, the fact that he can't seem to articulate a cogent PM or Tweet, and his record of dishonesty, I have my doubts. Big doubts. Big, big doubts.

Comical isn't it? Overstock has always been a barrel of laughs, unless you're the last sucker holding the bag. In the past, the SEC has shrugged at Byrne's complicated accounting games. It may feel differently about the way he's been fibbing about his stock-lending operation. And then there's all that other merriment I've described above.

So I'm going to sign off with the immortal words of Porky Pig: That's all, folks. For now.

This post has been updated to reflect developments subsequent to initial publication.

© 2018 Gary Weiss. All rights reserved.

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Monday, December 19, 2016

Canadian Court Wallops Overstock.com CEO Patrick Byrne

Fake news promoter Mark Mitchell
A Canadian appellate court has a lump of coal for the Christmas stocking of Overstock.com CEO Patrick Byrne: pay a libel judgment for lying on a fake news website, or your appeal will be kicked out of court.

Last May, Byrne was hit with a  C$1.2 million judgment for outlandish lies about a Canadian stock promoter, Aly Nazerali, on "Deep Capture," a website that retails fake news, conspiracy theories and personal attacks on journalists and whistleblowers. The court's scathing decision found that Byrne and right-wing conspiracy theorist Mark Mitchell maliciously fabricated wild accusations against Nazerali:
Mitchell, Byrne and Deep Capture LLC engaged in a calculated and ruthless campaign to inflict as much damage on Mr. Nazerali's reputation as they could achieve. It is clear on the evidence that their intention was to conduct a vendetta in which the truth about Mr. Nazerali himself was of no consequence. Their mission was to expose what they conceive to be corrupt business practices damaging to the global economy. Mr. Nazerali became a convenient means to that end, even when he himself could not be demonstrated to be corrupt.
The defendants were hit with substantial punitive damages for their lies.

Judd Bagley after his forgery arrest
Byrne's Deep Capture site was run for most of its lifespan by Overstock's director of communications, Judd Bagley. He founded that and a previous site about ten years ago, making him a kind of fake news pioneer. Bagley got out of the fake news business, leaving Deep Capture at about the time he copped a plea to multiple felony charges for forging prescriptions for addictive drugs.

Byrne, predictably, appealed the court decision. However, that was little more than a delaying tactic. The court's decision was a slam-dunk, based on overwhelming evidence. Byrne did not even put on a defense at the trial, producing no evidence or testimony in support of his case.

Byrne now has a choice.
 
Either he deposits with the court a letter of credit covering the full amount of the judgment, plus appellate court costs—plus Nazerali's attorney's fees from the trial, which he has requested and is likely to get—or he junks the appeal, admitting that it didn't stand a snowball's chance in hell.

This is known as a "lose-lose proposition." 

Libel judgments are no reason for celebration, especially cases in the draconian Canadian and British courts.  However, this is not a brave journalist facing down a malefactor. This is in the tradition of libel cases brought decades ago against the anti-Semite Henry Ford and the red-baiter Westbrook Pegler— a well-heeled heel who victimized an innocent person and now is being humbled by the courts. 

The court order can be found here.

© 2016 Gary Weiss. All rights reserved.

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Tuesday, November 01, 2016

Donald Trump and Lying Liars

The media lately has been calling Donald Trump a "liar" in its own voice. That's accurate. He does lie. But does the media want to be in the liar-calling business? What about all the other liars in the world, from Assad in Syria to Vladimir Putin to a whole bunch of CEOs?

My analysis in Columbia Journalism Review, online this morning, can be found here.

© 2016 Gary Weiss. All rights reserved.

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Thursday, May 19, 2016

Did You Know That Gary Weiss Speaks?


Yes, he does, or to put it another way, I do.

My well-received speaking engagements have spanned many topics, from media bias in the Middle East to Ayn Rand. I've spoken before New York Stock Exchange attorneys on naked short-selling, and I've been on a panel of the North American Securities Administrators Association discussing securities arbitration. Venues have ranged from a college in Texas to Washington to a senior center in Riverdale.

One topic that interests me greatly is weight-loss surgery. I've written twice on the subject, once for Money Magazine and more recently, on the long-term complications, for The New York Times. So if anyone needs a speaker on that, from the patient perspective, I'm you're man.

© 2016 Gary Weiss. All rights reserved.

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Saturday, May 07, 2016

Overstock.com CEO Patrick Byrne Loses 'Deep Capture' Libel Suit

Defendant Mark Mitchell: "the truth was of no consequence"

No libel suit victory is worth celebrating, not even the famous suits against the anti-Semite Henry Ford and the red-baiter Westbrook Pegler. The same goes for the C$1.2 million libel judgment just awarded against Overstock.com CEO Patrick Byrne and his minions for unleashing a campaign of lies.

While occasionally used to advance the cause of truth, as they were against Ford, Pegler and Byrne, more frequently libel suits are used to punish and harass reputable journalists. This is one of those rare cases when a libel suit was used against a corporate astrotufing site dedicating to spreading kooky conspiracy theories and Trumpesque smears.

In a scathing decision released on May 6, a Vancouver court found Byrne and his "Deep Capture" fake news venture had fabricated lurid accusations of criminal conduct against a Vancouver businessman named Aly Nazerali. The damage award consists mainly of punitive and aggravated damages, and the judge found that the conduct of Byrne and his minions was so egregious that he slapped a permanent injunction on the defendants.
Judd Bagley after his forgery arrest

I've written about Byrne quite a bit in the past because he was the very worst of Corporate America, from his bizarre stock-market conspiracy theories to his well-documented accounting games, which he countered by vicious personal attacks on critics and the media. He is a kind of small-bore Donald Trump, a "born on third base who thinks he hit a triple" kind of guy. Byrne lies so frequently and with such gusto that it's hard to say if he can distinguish fact from fiction. He is on indefinite leave from Overstock because of a Hepatitis C infection, a disease ordinarily caused by intravenous drug use—or, if you believe him, a wound sewn up by "barefoot doctor in China."

Byrne's main vehicle to attack his critics was "Deep Capture," a fake news website created by his public relations director, a convicted forger and drug addict named Judd Bagley. Joining Bagley was the right-wing conspiracy theorist Mark Mitchell, who was fired several years ago from Columbia Journalism Review.  (Bagley went back on the Overstock payroll before the Nazerali articles were published. He was dismissed from the case, as was Overstock itself.)

Mitchell wrote the Nazerali articles and was the main architect of this fiasco. His strange behavior—more like a television detective than a journalist—was lambasted in the decision.

The 102-page judgment, which I've embedded at the bottom of this blog item, is worth reading for anyone who has followed the erratic career of this CEO, who lately has reinvented himself as a Bitcoin advocate. Long before this suit was filed, Byrne was noted for his rich fantasy life. Once he recounted how a gangster straight out of a film noir once sat down next to him at a bar and made threats out of the side of his mouth. He fancied himself "Wall Street's worst enemy," and he expended considerable effort finding journalists dumb enough to believe him (his only success outside Utah was Cade Metz of Wired).

Byrne also has political ambitions, once financed a failed school-choice initiative in Utah, is a major GOP donor and is almost single-handedly financing the Utah governor campaign of former Overstock chairman Jonathan Johnson. The latter has repaid the favor by calling the Nazerali suit "spurious."

As recounted in a November 2015 article in The Daily Beast, the articles made wild accusations. If true, you'd think Nazerali would be in Guantanamo, not Vancouver:
. . . Mitchell described Nazerali as a man in cahoots with “Osama Bin Laden’s favorite financier,” and said that he worked with a variety of criminal outfits around the globe, including La Cosa Nostra, the Colombian drug cartel, the Russian mafia, and various “jihadi terrorist groups” including al Qaeda’s Golden Chain. According to court documents, Deep Capture also accused Nazerali of “delivering weapons to war zones in Africa and to the mujahedeen in Afghanistan,” of orchestrating “small-time ‘pump and dump’ scams… [and] bust-outs, death spiral finance and naked short selling,” and of carrying out dirty work for “a Pakistani ISIS asset” who “works for the Iranian regime.”
Nazerali was raked over the coals by Byrne's lawyers in days of pretrial examination. But at the trial the defendants did not put on a case, producing not a shred of evidence. The judge blasted Byrne & Co. for abusing pretrial discovery, saying:
The reasonable inference to draw is that they knew from the beginning of the trial that they could not justify the Articles’ false and extravagant language. Their approach to the defence of the action was an attempt to intimidate the plaintiff and to humiliate him into abandoning his lawsuit.
In justifying the award of punitive damages, the judge pointed to the extreme malice shown by Byrne and Mitchell, "the overt animosity, even hatred of the plaintiff, expressed by Mr. Byrne," their "reckless indifference for the truth," their "reckless disregard for the reputation of non-parties." The decision singles out Mitchell's creepy attempt to blackmail Nazerali, contained in an email published in the decision.

Among the highlights, so to speak, of the decision:
• "Mitchell did not attempt to contact the plaintiff before posting the Articles;" and blew off Nazerali's effort to get him to remove his lies. "No effort of consequence was made after Mr. Nazerali contacted Mr. Mitchell to review the Articles to determine if they were false. On the contrary, Mr. Nazerali’s approach to Mr. Mitchell was treated with scorn."

•  Byrne said to Nazerali during a deposition, in the presence of the court reporter and parties: "I know your kind, you are not the kind that does the dirty work themselves. You employ others to do your dirty work.  I hate your kind of people."

• Mitchell emailed Byrne “this is going to be fun” and said, "I am open to changing the story if he can provide other verifiable information that would be valuable” and “I might even suggest that I will be willing to remove his name from the story altogether if he were to provide me with, say, trading records" on a "global terrorist."

• Mitchell added: “if Nazerali agrees, nothing lost, after he gives me the information I will just put him back in the story. Sleazy, but, well it is what it is”;

Sleazy is putting it mildly. The decision concluded:
Mitchell, Byrne and Deep Capture LLC engaged in a calculated and ruthless campaign to inflict as much damage on Mr. Nazerali's reputation as they could achieve. It is clear on the evidence that their intention was to conduct a vendetta in which the truth about Mr. Nazerali himself was of no consequence. Their mission was to expose what they conceive to be corrupt business practices damaging to the global economy. Mr. Nazerali became a convenient means to that end, even when he himself could not be demonstrated to be corrupt.
"The tortious misconduct of Mitchell, Byrne and Deep Capture LLC demonstrates an indecent and pitiless desire to wound," the decision continued.

The court imposed a permanent injunction on Mitchell, Byrne and Deep Capture, as well as Google, given the likelihood that they will seek to evade payment of the judgment, as well as their "apparent intention to inflict as much damage on the plaintiff." The judgment also provides for imposition of costs, which means that Nazerali can petition the court to award him his legal fees.

The verdict, while not in the megabucks frequently awarded in U.S. courts, is large, perhaps even a record, by Canadian and especially British Columbia standards. At the current rate of exchange it comes to about $925,000 (U.S.), which is well within the capacity of Byrne's trust fund. His father was the insurance mogul John J. Byrne.

Like I said, no libel verdict is worth celebrating, not even this one, brought by the victim of faux journalism written by a faux journalist in the pay of a deranged CEO. I hope that this one doesn't become weaponized against real journalists who have written real articles about bad people. If that happens, it will mean that Byrne, described a decade ago as a "menace" by Joe Nocera of the New York Times, has once again stuck it to the press.


Some previous posts on the libel suit; see also posts tagged "Deep Capture":
© 2016 Gary Weiss. All rights reserved.

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Thursday, March 31, 2016

Announcement re Mideast Dig (formerly "Mideast Reporter")

A note to readers:

"The Mideast Dig"
Please be advised that I am no longer associated with The Mideast Reporter (N/K/A "Mideast Dig;" Federal EIN 46-4772869; New York State Reg. No. 44-20-78), which I co-founded and co-edited from its inception in 2013 until November 2015. I have had no editorial or marketing role in the venture since then. I had my name removed from the Mideast Reporter's "Masthead" and "About" sections, but it was on marketing and fundraising materials that were widely distributed, as well as public documents, databases, and this recent Jerusalem Post article.

"The Mideast Reporter"
I also resigned from the board of directors. Board member Brooke Goldstein, one of two independent directors, resigned in mid-December 2015, leaving two persons on the board of directors, one of whom is the co-founder. The managing editor, Robert J. Rosenberg, resigned in early December 2015, leaving one person (the other co-founder) on the editorial staff.

To fulfill its mission, such a venture must be nonpolitical, avoid advocacy, eschew personal attacks in its media criticism, and reflect multiple viewpoints. Its management needs to devote itself full-time to the project, avoid conflicts of interest and cronyism, and eschew the natural tendency to turn it into a personal platform or "ego trip." Otherwise the venture risks becoming yet another pro-Israel blog, and, by over-promising, perhaps does more harm than good.

(Originally posted December 7, 2015; subsequently revised.)

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Wednesday, March 23, 2016

The Vindication of Steve Emerson?

In a pair of blog posts early last year I examined the smearing of Steve Emerson, the terrorism expert who was keel-hauled through the media after referring to "no-go zones" in European cities. That was an overstatement at worst, and he apologized for it, but nevertheless he was attacked and denigrated.

Then came the terrorist attacks in Paris and, yesterday, in Belgium. The State Department issued a travel alert for all of Europe in the aftermath of the latter. It says as follows:

The State Department alerts U.S. citizens to potential risks of travel to and throughout Europe following several terrorist attacks, including the March 22 attacks in Brussels claimed by ISIL.  Terrorist groups continue to plan near-term attacks throughout Europe, targeting sporting events, tourist sites, restaurants, and transportation.  This Travel Alert expires on June 20, 2016.

U.S. citizens should exercise vigilance when in public places or using mass transportation. Be aware of immediate surroundings and avoid crowded places. Exercise particular caution during religious holidays and at large festivals or events.

It goes on to discuss the steps that visitors to Europe need to take, including "Monitor media and local information sources and factor updated information into personal travel plans and activities."

I'm not traveling to Europe but I am monitoring the media, and what it says to me is that
  • Europe's airports aren't safe;

  • The European security services are bumbling fools;

  • Europe's open borders have effectively made that continent an extension of the Middle East.
In short, all of Europe is a no-go zone, at least at the present time. If I can't go to the airport or take a subway without a risk of being blown to pieces, that indicates to me that I simply shouldn't go there.

Ironically, after Emerson's comments, a great deal of fuss was made about the safety of traveling in Birmingham and other cities with large Muslim populations. I have no doubt about that.  The problem is taking public transportation to and within those areas and then heading to the airport to get out of there.

UPDATE: An article in the New York Times, published March 24 and online the day before, notes that "The enemy’s hide-outs are ghettoized parts of Paris, Brussels and other European cities that amount to mini failed states inside their own borders." François Heisbourg, president of the International Institute for Strategic Studies, refers to them as “'no-go areas for the authorities, who have found it very difficult to get informants and human intelligence,' noting that many of the French citizens who carried out attacks in France lived or were hosted in Brussels neighborhoods like Molenbeek."

© 2016 Gary Weiss. All rights reserved.

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Tuesday, March 15, 2016

Announcement re The Mideast Reporter DBA "Mideast Dig"

A note to readers:

Please be advised that I am no longer associated with The Mideast Reporter (N/K/A "Mideast Dig"), which I co-founded and co-edited from its inception in 2013 until November 2015. I have had no editorial or marketing role in the venture since then.

I had my name removed from the Mideast Reporter's "Masthead"and "About" sections, but it was on marketing and fundraising materials that were widely distributed, as well as public documents and this recent Jerusalem Post article.

I also resigned from the board of directors. Board member Brooke Goldstein, one of two independent directors, resigned in mid-December 2015, leaving two persons on the board of directors, one of whom is the co-founder. The managing editor, Robert J. Rosenberg, resigned in early December 2015, leaving one person (the other co-founder) on the editorial staff.

To fulfill its mission, such a venture must be nonpolitical, avoid advocacy, eschew personal attacks in its media criticism, and reflect multiple viewpoints. Its management needs to devote itself full-time to the project, avoid conflicts of interest and cronyism, and eschew the natural tendency to turn it into a personal platform or "ego trip." Otherwise the venture risks becoming yet another pro-Israel blog, and, by over-promising, perhaps do more harm than good.

(Originally posted December 7, 2015; subsequently revised.)

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Tuesday, February 09, 2016

The Pathetic Irwin Lipkin: a Bernard Madoff Reminiscence


Irwin Lipkin being wheeled out of court

The recent Madoff two-part series on ABC, starring a very convincing Richard Dreyfuss, brought back a flood of memories of my own very limited experience with this long-vanished but still fascinating story. Apart from this article in the old Condé Nast Portfolio I haven't written much, but I did have the interesting experience of attending one of the last acts of this drama. It was the last criminal proceeding in the case, the August 2015 sentencing of a Madoff factotum named Irwin Lipkin.

Lipkin, who was 77 years old, was Madoff's controller. He wasn't important enough to have been mentioned in the miniseries. His defining characteristic is that he was as pathetic as he was guilty. If you weren't acquainted with what he had done, you might feel sorry for him.

Yes, I realize, there is nothing more to be said about Madoff. He's been the subject of umpteen and half books, fifteen umpteen documentaries (one of which followed the ABC film), and an HBO movie in the works, based on the definitive Diana Henriques best-seller. But still, forgive me if I pile on.

It was a gorgeous day in Manhattan—temperature in the lower eighties, low humidity, nice cumulus clouds in the sky—and the view from Courtroom 12D of the federal courthouse on Pearl Street was a stunning vista of Midtown Manhattan to the north. Outside on Broadway there were TV satellite trucks, some parked on the sidewalk. They were there because of the sentencing of a New York City police officer who participated in a motorcycle gang attack on a motorist on the West Side Drive. That's news. Madoff wasn't news anymore, and certainly Lipkin was not.

Lipkin, in his wheelchair, was talking to his attorneys in a seat outside the courtroom as I arrived at about 1:30 p.m., and left soon after for the cafeteria. I heard Lipkin remark that they let his wheelchair right through the metal detector.

The courtroom was filled with about two dozen college students who have been attending court sessions as part of the Columbia University's American Language Program. They were foreign-born students, largely Asian, and were accompanied by two not very talkative faculty members. They took up most of the seats. There were about five reporters present, no federal officers as you sometimes see at these things, no victims, no phalanx of family members of the accused.

Lipkin was wheeled in, pushed by his son Marc, dressed in blue shirt and khaki pants. Irwin Lipkin was wearing a baseball cap that he didn’t remove until later, and a navy blue track suit with two white stripes running down the leg. He was wearing a dark grey warm-up jacket even though the air conditioning wasn’t that high and it was hot outside. He had another outer garment behind him, not worn.

Lipkin was very bald, his head possibly shaved. He had splotches on his face and was very pale. As he sat waiting for the judge he fingered his metal-rimmed reading glasses and a typed piece of paper he had unfolded, the statement he was going to read. He had a box of tissues in front of him that he didn’t need. Two prosecution lawyers and one federal agent occupied the front row of tables and Lipkin and his lawyer were in the row behind them.

U.S. District Judge Laura T. Swain came in at 2:07 p.m. and thanked everyone for attending, including the press. It was the first time I had ever heard the press thanked in such a situation. It made me feel all warm and fuzzy. Judge Swain proceeded to mechanically, for the record, review the various documents agreed to by both sides.

After a brief conference at the bench, Lipkin spoke for the first time in court. He acknowledged in ritualistic fashion, for the record, that he had read and approved some documents. He spoke in an old man’s voice, a bit horse as you’d get from not speaking in public much, but not frail at all, perfectly distinct. At one point his lawyer pointed out that Lipkin cannot stand up. I don’t happen to believe that, but that’s just my hunch. No problem. The judge understands. The prosecution, the judge, everybody is in agreement about what a death’s-door guy this is. The judge talked about his “mental health condition” and the possibility of home confinement.

'The Virtual King of Wall Street'
His defense lawyer, Hackensack attorney Richard Galler, said that he met Lipkin for the first time in 2008, that Lipkin knew Madoff as the “virtual king of Wall Street” and that Madoff had asked him to sign documents that were “not appropriate” and “not accurate.”

In an exchange with the judge, the lawyer said that Lipkin “didn’t understand the greater fraud” and should have “checked further as to the accuracy” of the documents he filed. In the years since Lipkin “voluntarily offered a plea” in 2012 (voluntarily?) his health has deteriorated, said Galler. He has lost 50 to 75 pounds.

“He’s a hunchback,” he added, “He’s a frail gentleman who had a pacemaker replaced as recently as Friday.” He requested a "downward departure" from the sentencing guidelines for bad health. “He couldn’t get around” in prison, said Galler.

Judge Swain responded that there are facilities for sick people. Galler replied that “they’re not as good as the ones outside the prison,” and said that he can now get an ambulance in five minutes, something he couldn’t get in prison. I remember thinking at the time that this attorney was named “Galler” because of his unmitigated gall. But that wasn't fair. Lawyers are paid to represent to give their clients the best possible representation, no matter who they are.

He went on to note that a Dr. Goldstein, a psychiatrist who teaches at Columbia, described Lipkin as a “sad-looking elderly male who looks older” than his age and seemed depressed. That seemed to be the extent of his “mental health condition”—that he’s depressed, evidently because of the crimes he committed. Depressed he got caught.

Galler poined out that all of Lipkin’s kids worked at the firm, and he was proud to bring them into the firm “not knowing the greater fraud.” He added that the government does not dispute his health condition and that the presentence report says there is no chance of recidivism. Lipkin was portrayed as being as meek and harmless as a mouse. He does not leave the house except to go to the doctor or go out on the driveway, and Galler said that he has had to go to Lipkin's house on legal business, and that Lipkin  hasn’t come to the office in a long time.

He went on and on. Mrs. Lipkin was not there “because of prior strokes.” Lipkin “requires mental health treatment. . . . Home confinement is reasonable under the circumstances.” In other words, since he is already confined to his home—no punishment.

I thought back to a mousy little accountant named John McAndris, the 57-year-old chief financial officer of the A.R. Baron penny stock scam firm, who was sentenced to five to fifteen years in state prison in 1998. Hard time, not home confinement. Punished because he didn't let the AR Baron scam continue for another few years until he was old and sick at the time of sentencing.

The prosecutor, Assistant U.S. Attorney David Abramowicz, offered a crisp rebuttal. He noted that fifteen people have pleaded guilty or been found guilty “and only one was named Bernard Madoff.” He was the most culpable and got a severe penalty. The lesson from the parade of guilty pleas is that “Bernard Madoff didn’t do it alone.” He probably wanted to do it alone but he couldn’t. He got help from people like Lipkin.

The prosecutor pointed out that when Lipkin pleaded guilty he admitted he was controller of Madoff Securities and falsified records. He knew it was illegal, so it was not just a case of his being obedient and following orders. Abramowicz noted that Lipkin “did very well for himself,” drawing a salary of $225,000 a year. He wasn’t following orders when he ordered sham trades on his account.

Abramowicz agreed that Lipkin was sick, and that his condition had deteriorated, but felt that reducing the penalty from 10 years (under the guidelines) to zero was “too drastic.” He said the defense hasn’t established that the Federal Bureau of Prisons is incapable of handling someone in his condition.

Yes he is at great risk of falling or suffering injury and that could happen anywhere. He noted that people who are convicted of serious crimes would love the “ability to choose their preferred medical provider.”

Lipkin was impassive as the prosecutor went point by point. Abramowicz said that Lipkin was older than many defendants because he was “so successful at his crime.” He agreed that there was little chance of recidivism but said there was a need for “general deterrence,” so that people committing crimes doesn’t feel that can “keep digging and digging till they get old.”

Lipkin was given his chance to talk. He bent over the desk to read the type on the paper. His old-man’s voice was distinct as he reads from the paper, with occasional out-of-sequence pauses as take place when you read something and aren’t trying to make it seem spontaneous.

He said he was the first person who went to work for Madoff. “Smarter people than myself were taken in by him. . . . If I had known what I know now, I would never have done these things to my family. . . . If I was so smart and knew anything, why would I have given my own money to this man?”

The answer to that last question, I guess, might have been that he knew what he was doing and that he expected to rob people to pay him. That's how Ponzi schemes work. Lipkin talked slowly, apologizing in rote fashion to the victims and his family, his wife and three sons “for what I had caused them during this period of time.”

He gestured now and then with his hands, and you could see his thin, bony fingers. “I don’t know how I can explain this to my wife,” he says. ("Explain what?" I wondered. It had already been seven years since the Madoff scandal broke.) He noted that his son Marc lives with him and his wife and takes care of them.

“This gentleman”—he gestures to the prosecutor—“spoke—I know how he feels—and there’s nothing I can do to change his mind. I only hope you can have sympathy for my wife and family and myself.”

The statement is over. The judge asked a question to Lipkin because she says she is “puzzled” by something he said,. He had admitted in the plea allocution that he had changed figures. If he was now denying what he had previously admitted in his plea allocution, that would upset the apple cart, and upend the lax sentence she was about to impose. So she asked: did he change figures on the books of Madoff Securities?

Lipkin responded that “I honestly and truly do not remember” what happened 18 and more years ago.

Uh oh. Not a good answer. The judge asked his lawyer to talk with him, which he does. Then his lawyer asks him in open court if he’s not denying what he had said concerning changing of numbers. “You may not remember specific ones” but he did commit that offense? “Correct,” says Lipkin. So hard to stop lying when you've lied for so many years.

Through this ritualistic questioning, the judge allowed Lipkin to put the toothpaste back in the tube via the ridiculously leading questioning from his lawyer. The judge then spent ten minutes sifting through papers on her desk and considering her sentence, which she delivered at 2:52.

First she thanked the spectators for their patience. Then she went through the rote remarks, found that Lipkin suffers from physical illnesses, adopted the presentence report, and said Lipkin is “frail and in exceedingly poor health.” He has cardiac and coronary artery problems, reaction to medication, balance and ambulation and falling risk issues. Also he has “mental health disorders” (another reference, apparently, to being depressed he got caught).

Thus there is medical evidence “outside the heartland” of the sentencing guidelines. She went over his offenses—one of the first employees of Madoff until his retirement in 1998. He knew financial information was false. He falsified books and records. Entered fake trades. Arranged for his wife to be on the company payroll and for himself to be on the payroll beyond the period to which he was entitled. He filed false documents with the U.S. Department of Labor concerning that. But she notes he was “not privy to the scope of client-related fraud.”

She points out that the letters sent to her show a “dedicated family man” and that he and his family have suffered financial loss. (How terrible!) She says he has expressed remorse “but he minimized his conduct and recollection of conduct”—apparently a reference to his comments in court today—which destroyed lives, etc etc.

“The court recognizes he has already faced significant repercussions” including a “substantial forfeiture obligation” as well as ostracism and guilt. A lengthy incarceration would be appropriate if not for the health issues. For that a “very substantial departure” is warranted. She then sentences him to six months in prison on each of the two counts, concurrently. Three years supervised release, with 18 months of home detention included in the latter.

The judge reeled off the mandatory conditions of the great, big, walloping slap on the wrist she was giving him for being a key participant  in the Madoff crimes. No weapons. Has to keep taking his meds. No supervised drug testing, that waived because of his medical condition. No caller ID on his phone, no call forwarding. Devils Island conditions, as you can see. No caller ID! Must wear an ankle bracelet.

Judge Swain then proceeded to say that she will recommend to the BOP that he get confined to a medical facility or home confinement, within their discretion, and notes that if there is home confinement it will be in addition to the 18 months he gets as part of his supervised release. Viewed from the rear, as I can't see his face, Lipkin seems impassive during all of this. Galler says Lipkin needs a “hospital setting” and Swain suggests that she get in touch with the “designation officer” of the BOP on that point.

At this point, in a moment of legally required levity, the judge advised Lipkin directly that he can appeal this wet kiss within 14 days, and that if he can’t afford it U.S. taxpayers can appoint a lawyer to rep him. She then directs him to report to the designated facility on Oct. 22, 2015. Finally, the judge said “Mr. Lipkin, the crimes in which you participated are serious and you are paying a heavy price.” In the disruption of his retirement “you have much in common with the thousands of victims of the Bernard Madoff fraud.”

That was so absurd. This man was a perpetrator, not a victim. That was like comparing old Nazi camp guards with survivors, as both are elderly. A shocking statement, or so it seemed to me at the time. The letters sent to her on his behalf, she said, show that he is “much loved and relied upon by the community.” But she didn’t mention that none of these people who love him so much showed up in court. She ended by wishing the family “continued strength and courage.” The proceedings were over at 3:17 p.m.

Postscript: the U.S. Bureau of Prisons was not as lax on Lipkin as Judge Swain was. He went to prison. As of today he was confined to FMC Devens, a federal medical facility in Massachusetts. He is scheduled to be released on April 20, 2016.

His victims, of course, are only part of the way through their life sentences.

© 2016 Gary Weiss. All rights reserved. No republication permitted, in whole or in part, without express written permission.

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