Chris Placitella Blog » Important Cases

New Jersey Yaz Litigation- This is Scary stuff

Chris — Fri, 09 Dec 2011 13:24:59 +0000

Bayer Withheld Yasmin Data From U.S., Former Agency Chief Tells Court

By Margaret Cronin Fisk and Jef Feeley - Dec 6, 2011 12:01 AM ET

· A Bayer AG unit withheld from U.S. regulators findings by company researchers of increased reports of blood clots in users of its Yasmin birth-control pills, the former head of the Food and Drug Administrationsaid.

David Kessler, the former FDA commissioner, in a document unsealed yesterday in federal court in Illinois, said Bayer didn’t include an analysis “that demonstrated an increase in the U.S. reporting rate” for venous thromboembolism, or clots, in a 2004 review of Yasmin’s safety provided to the agency.

The report also didn’t include an earlier draft opinion by company researchers that “spontaneous reporting data do signal a difference in the VTE rates for Yasmin” compared with other oral contraceptives, Kessler said, quoting the draft.

“Bayer presented a selective view of the data, and that presentation obscured the potential risks associated with Yasmin,” Kessler said. The company also promoted the oral contraceptive for unapproved uses, particularly for treatment of premenstrual syndrome, Kessler said.

Kessler’s report and four other expert opinions were released yesterday by lawyers representing former users of Bayer’s Yasmin family of contraceptives. The experts were paid by the plaintiffs’ lawyers, who submitted the reports to the FDA, which is considering safety findings on Yasmin and its sister product Yaz at a hearing Dec. 8.

‘Matters of Litigation’

Rose Talarico, a U.S.-based spokeswoman for Bayer, said the company doesn’t comment on ongoing lawsuits. “We have nothing further to add as these are matters of litigation,” she said in an e-mailed statement. “We expect them to be addressed further at trial.”

Morgan Liscinsky, an FDA spokeswoman, didn’t immediately comment on the unsealed documents about the drugmaker’s handling of the contraceptives.

The FDA didn’t accept the documents for the hearing, according to an e-mail sent to plaintiffs’ lawyer Ned McWilliams late yesterday.

“The deadline for all written submissions was on November 23, 2011,” Kalyani Bhatt, of the FDA’s Division of Advisory Committee and Consultant Management, wrote. “We will not be able to accept any written submission at this time.”

McWilliams said in an e-mail response to Bhatt, “I think the American public would want to know why the FDA has refused to consider important safety information that Bayer did not consent to be released to the public or the FDA until after the submission deadline.”

“Why not look at the documents and make your own independent objective evaluation?” McWilliams said.

Bhatt didn’t return a call after regular business hours yesterday seeking comment on that e-mail.

10,000 Lawsuits

Bayer faces more than 10,000 lawsuits over injuries allegedly caused by the contraceptives. Lawyers suing the drugmaker cited FDA reports of at least 50 deaths tied to the pills from 2004 to 2008. The first trials are scheduled for next month in federal court in Illinois and state court in Philadelphia.

Bayer’s contraceptives generated $1.58 billion (1.17 billion euros) in sales last year, making them the company’s biggest-selling drugs after Betaseron, a multiple sclerosis medication. The contraceptives, which contain the hormone drospirenone, have been the focus of regulators who question their safety. Bayer’s Yasmin was the No. 4 oral contraceptive in the U.S. this year as of September, with 4.6 percent of the market, according to data from IMS Health.

In October, the FDA warned that women taking the pills were 74 percent more likely to suffer blood clots than women on other low-estrogen contraceptives. The FDA examined data on 835,826 women who took pills containing the hormone, including Bayer’s Yasmin line of birth-control pills, according to the FDA report. The agency set the Dec. 8 hearing to discuss the findings.

Health Risks

The lawsuits claim Bayer didn’t sufficiently warn patients of the health risks of the Yasmin family of birth-control pills. They also claim Bayer’s Berlex Laboratories Inc., acquired in the 2006 purchase of Schering AG, marketed the drug for unapproved uses.

This marketing campaign, according to the documents unsealed yesterday, included paying $450,000 to Los Angeles gynecologist Judith Reichman to sponsor a tour for a book she was writing on women’s health issues, among other items, Kessler said.

Kessler said the Bayer unit withheld information about Yasmin’s risks of clots before the drug was approved by the FDA in 2001.

Internal Study

Bayer didn’t report to the FDA details on the risks of clots from an internal study and two cases of clots in patients on the pill prior to the drug’s approval by the agency, Kessler said.

“Had I, or a medical review officer, known these facts prior to approval, further investigation would be warranted before a decision on Yasmin’s NDA could be made,” he said, referring to the company’s new drug application.

“These facts would impact the agency’s risk-benefit equation about the drug and whether it could be approved,” Kessler said.

The FDA told Bayer in June 2003 that it was “very concerned” about the number of adverse events, particularly deaths, reported in Yasmin users, Kessler said, citing an agency letter to the company. This included six deaths in the U.S., five of which were first reported to the FDA after April 2, 2003, the agency said.

“Because of these recent reports, we believe that a change in Yasmin labeling and possibly additional actions are now warranted,” the FDA wrote to Bayer, according to the Kessler report.

‘White Paper’

Bayer responded that its data didn’t show a higher risk for Yasmin. Internally, the company decided to produce a “White Paper,” to the FDA, which would be “a scientific write-up that lays out the issues,” according to a Bayer document quoted by Kessler.

The white paper would compare Yasmin to other oral contraceptives, or OCs, covering multiple adverse events including venous thromboembolism (VTE) and pulmonary embolism (PT).

In an early draft of that report, Bayer employees wrote, according to Kessler, “Compared to the three other OCs, Yasmin has a several fold increase in the reporting rates for DVT, PE, ATE and confirmed VTEs.”

In this draft, the employees added: “When considering only serious AEs (adverse events), the reporting rate for Yasmin was 10 fold higher than with the other products.” The total rate of confirmed VTEs per year was three or four times higher than the other three oral contraceptives reviewed, according to the data in the draft, Kessler said. The raw numbers were 6.9 per year for Yasmin and 1.5 for two of the other pills, according to the draft.

‘Spontaneous Reporting’

In a later draft, the Bayer employees said that “spontaneous reporting data do signal a difference in the VTE rates for Yasmin and other OC users.”

Such data wasn’t the “preferred approach to assess the safety of a single product,” the researchers wrote. They said data from a direct comparison, such as two then-ongoing studies “should provide more insight.”

“The spontaneous reporting do NOT signal a difference in VTE rates for Yasmin,” another Berlex employee wrote to company colleagues in commenting on the draft, Kessler said. “Those comments were not accompanied by any additional data,” Kessler said.

Media Attention

Kessler agreed that spontaneous reporting of incidents has limitations, because of the voluntary nature of the reports, effects of media attention, different times of introduction for drugs, among other factors. The information still should have been included, he said.

“Even with its limitations, analysis of spontaneous reporting data is an important, recognized and vitally used tool by the FDA and the pharmaceutical industry for detecting safety signals” Kessler said in his report.

“Bayer’s spontaneous reporting analysis demonstrated a safety signal about Yasmin and VTE risk,” he said. “Bayer had a duty to present a full and balanced view of all the data and analysis concerning Yasmin to the FDA and health-care professionals and failed to do so.”

Women suing Bayer over its line of birth-control pills contend the company and its units went to unusual lengths to market the medication for unapproved uses, according to court papers.

Marketing Drugs

Bayer’s Berlex unit came up with a plan to hire Judith Reichman, a Los Angeles-based gynecologist who writes a blog about women’s health issues, “to engage in off-label promotion” of the Yasmin line of contraceptives, John Abramson, a Harvard medical school professor, concluded in his report.

Abramson was hired by plaintiffs’ lawyers to review materials Bayer turned over about the marketing of the drugs. His report was also unsealed yesterday by a federal judge in Illinois who is overseeing a consolidation of Yaz cases.

Berlex officials said in an e-mail they’d agreed to pay Reichman $450,000 in return for her willingness to “mention off-label benefits of our products,” Abramson noted. The doctor was planning an upcoming book on women’s health issues.

The company also planned to purchase 10,000 copies of the book, which contained “off-label claims” about the Yasmin line of contraceptives, the doctor noted. The purchase was part of a “strategy to have the book appear on the New York Times bestseller list,” Abramson added.

In her 2005 book, “Slow Your Clock Down,” Reichman wrote that Yasmin may help women with PMS-related symptoms such as “fluid accumulation and bloat,” or with depression.

Publicity

The FDA approved Yasmin only as a contraceptive. The regulator hasn’t cleared it as a treatment for any form of PMS or other ailments, according to the agency’s website. Reichman was unavailable to comment about her work with Bayer because her husband died, her assistant, Deborah Cannon, said in an e-mail.

Berlex officials understood the value of such publicity, Abramson noted. For example, Talarico, a then-spokeswoman for Berlex, flagged a copy of a 2006 story about Yaz in Allure magazine that touted the benefits of Yaz for treating PMS.

Richard Salem, Berlex’s vice president for communications, congratulated Talarico for getting the article placed in the magazine.

“The value of these placements is astronomical,” Salem said in an e-mail, according to court filings.

Commercial Success

Internal e-mails also show officials of Bayer and its Berlex unit engaged in an extensive public relations campaign to market Yaz that was “designed to circumvent FDA restrictions on marketing” because they saw the limits “as a threat to the commercial success of Yaz,” Abramson said in his report.

The Kessler and Abramson reports were sent to the FDA by McWilliams, a lawyer with Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor PA in Pensacola, Florida.

“Although these reports were prepared for litigation, they contain relevant information obtained from Bayer that has not been previously provided to the FDA that will assist the committee and the FDA in its own evaluation of the benefits and risks of drospirenone-containing oral contraceptives,” McWilliams wrote to the agency.

The case is In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Product Liability Litigation, 09-md-02100, U.S. District Court, U.S. District Court, Southern District of Illinois (East St. Louis).

NO REASONABLE EXPECTATION OF PRIVACY ON FACEBOOK, JUDGE SAYS

Chris — Fri, 02 Dec 2011 21:41:24 +0000

Even without appellate case law to provide guidance on the discoverability of information on Facebook, the standard is becoming clear: Post at your own risk. Three courts in Pennsylvania have now decided that, if a party in a civil case posts information on his or her Facebook page that appears to contradict statements in discovery or testimony, then the party’s Facebook page falls within the scope of discovery. In the most recent case, Largent v. Reed, a judge ordered a plaintiff in an auto accident case to turn over her Facebook username and password to the defendant, on the ground that her postings brought up questions about the extent of her injuries.

Asbestos & Mesothelioma Pioneer Research Doctor Irving Selikoff Testifies in Landmark Case

Chris — Sun, 29 Nov 2009 23:31:25 +0000

The dangers of asbestos exposure were known to scientists and industry by the early part of the 20th century. The relationship between asbestos exposure and cancer was known and acknowledged by at least the early 1940s. In the 1950s, Dr. Irving Selikoff began his research at the Mt Sinai School of Medicine. While Dr Seikoff certainly did not discover the dangers of asbestos, he did more than any other human being living or dead to publicize the information on asbestos and disease and as a result changed the landscape of occupational medicine forever.

I had the privilege of getting to know Dr Selikoff personally and was able to proudly call him my friend. I spent may hours with Dr. Selikoff at his home and at his office discussing the need to educate and protect workers and the public from the ravages of asbestos exposure. The last project we worked on together was to obtain funding for molecular biological research on the cause of environmentally induced cancer.

Although Dr. Selikoff is acknowledged at the preeminent expert on asbestos related disease, he avoided working as an expert witness because it took time away from his research. By clicking on the following link you can read the rare testimony provided by Dr. Selikoff in the landmark case of Claude Tomplait.

http://www.mesotheliomalegalblog.com/mesothelioma-litigation/documents.html

The Justice System Worked- Read Madoff Sentencing

Chris — Thu, 02 Jul 2009 10:53:39 +0000

One of the greatest swindles and scandals of our time ended with the following:

HON. DENNY CHIN,

New York, N.Y.

June 29, 2009

10:00

a.m.

District Judge

SOUTHERN DISTRICT REPORTERS, P.C.

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1 (In open court)

(Case called)

THE COURT: Please be seated. Good morning. Mr.

4 Madoff, would you please stand.

5 Mr. Madoff, you pled guilty on March 12th, 2009 to 11

6 counts of securities fraud, investment advisor fraud, wire and

8 filing false documents with the SEC and theft from employee

9 benefit funds You are here this morning to be sentenced for

10 those crimes.

11 Have you reviewed the presentence report?

mail fraud, money laundering, ‘making false statements, perjury,

THE DEFENDANT: Yes, I have, your Honor.

THE COURT: Did you discuss it with your lawyers?

THE DEFENDANT: I have.

THE COURT: Mr. Sorkin, have you reviewed the

16 presentence report and discussed it with your client?

MR. SORKIN: Yes, your Honor, we have.

THE COURT: Do you or your client have any objections

19 to the factual recitations or the guidelines calculation?

MR. SORKIN: We do not, your Honor.

THE COURT: Thank you. You can be seated.

22 Ms. Baroni, does the government have any objections to

23 the presentence report?

MS. BARONI: No, your Honor.

THE COURT: Thank you.

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1 I accept and adopt the factual recitations set forth

2 in the presentence report. I accept and adopt the guidelines

3 calculation set forth in the presentence report with one

4 clarification which I will discuss in a moment.

5 The total offense level is 52, the criminal history

6 category is I. The PSR concludes that the guideline range is

7 life imprisonment. That is not quite accurate, however,

8 because the guidelines range cannot be life imprisonment as no

9 count carries the possibility of a life sentence. Rather the

10 most serious counts carry a maximum of 20 years’ imprisonment.

11 I look then to Section 5Gl.2(d) of the guidelines,

12 which tells us that where there are multiple counts, and the

13 guideline range exceeds the statutory maximum for the most

14 serious count, the court must impose consecutive terms of

15 imprisonment to the extent necessary to achieve the total

16 punishment.

17 There is a little bit of ambiguity, however, as to

18 what is meant by “total punishment” where the guideline

19 calculation calls for life imprisonment, but Second Circuit

20 case law makes clear that in such a situation, the district

21 court is to stack or add up the maximum sentences for all the

22 counts.

23 In United States v. Evans, for example, 352 F.3d 65,

24 where the guideline calculation called for life imprisonment

25 but no count carried a life sentence, the court held that the

SOUTHERN DISTRICT REPORTERS, P.C.

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1 guideline range is 240 years, the maximum sentences for all the

2 counts added together.

3 Accordingly, here the guideline range is not life

4 imprisonment, but 150 years, the maximum sentences for each of

5 the 11 counts added together. Of course, in light of Booker

6 and the case law that followed, the guideline range is advisory

7 only. While I must give the guideline range fair and

8 respectful consideration, I am not bound by it. In fact, the

9 Probation Department recommends a sentence of 50 years.

10 Instead I must make an individualized assessment based on all

11 the facts and circumstances, including the factors set forth in

12 the statute. In the end, I must impose a sentence that is

13 reasonable.

14 We will proceed as follows:

15 First we will hear from the victims. Then Mr. Sorkin

16 will speak on behalf of Mr. Madoff. Next Mr. Madoff may speak

17 if he wishes. Finally, I will hear from the government.

18 First the victims. I have received several hundred

19 written statements from victims including “the e-mails and

20 letters submitted back in March. Every victim who made a timed

21 request to speak will be permitted to speak today except in two

22 instances. Two members of the same family asked to speak, and

23 we will permit one person to speak on behalf of the family.

24 Two victims have now withdrawn their request. Accordingly, we

25 will hear from 9 victims today.

SOUTHERN DISTRICT REPORTERS, P.C.

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First we will hear from Mr. and Mrs. Ambrosino. The

2 Ambrosinos can step up to the microphone. Go ahead.

3 Mr. Ambrosino, go ahead. Come up to the microphone so everyone

4 can hear you.

6 Dominic Ambrosino and my

MR. AMBROSINO: Thank you, your Honor. My name is

THE COURT: Sir, just keep your voice up.

MR. AMBROSINO: I thank the court for allowing me to

9 speak today. As a retired New York City Correction Officer, I

10 am very familiar with the inside of a courtroom. However, I

11 never in my wildest dreams ever expected to be sitting in one

12 as a victim of an indescribably heinous crime

13 THE COURT: Mr. Ambrosino, slow down a touch so our

14 Court Reporter can transcribe what you’re saying.

15 MR. AMBROSINO: That dream came true on March 12th as

16 I watched Bernie Madoff stand and be cuffed. However, the

17 dream really started as a nightmare on December 11th. I can

18 remember the exact second my wife told me the news. I

19 immediately knew all the ramifications, but I don’t think she

20 did. The fallout from having your entire life savings drop

21 right out from under your nose is truly like nothing you can

22 ever describe. At first it was the obvious, and how will we

23 pay our bills? How can someone do this to us?

24 We worked honestly and we worked so hard. This can’t

25 be real. We did nothing wrong.

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1 I don’t know if anyone other than another victim can

2 explain what the less obvious effects are, how every decision

3 directly and indirectly hinged on the fact that we had the

4 security of our savings. When I was able to leave the job, we

5 bought a motor home to travel the country. We took out a

6 mortgage since it was better to keep our savings in Madoff. We

7 sold the house my wife lived in for 27 years and also put all

9 We trusted that the savings and planning would see us through

10 our retirement.

11 We had ideas of traveling the country. It all stopped

12 abruptly on December 11th. As a result, we are left with no

13 permanent house, a depreciating motor home, we are upside down

14 on the loan and an income from my pension that is our life.

15 This pension used to be perceived as spending money before

16 December 11th, and now although it doesn’t cover our monthly

17 expenses, we rely on it fully. It is all we have.

18 I sustained a 52 percent hearing loss on my job, and

19 at 49 years’ old I can’t go back to my previous career so I

20 have taken on a job this summer in Arizona as an construction

21 project coordinator. The job will only last until August.

22 Then I don’t know what I am going to do.

23 My wife’s foot was run over by a van while in New York

24 City. There was a plea hearing in March. She had a job lined

25 up before the trip. The expenses of the-trip were given to us

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those profits — and they were high into our Madoff account.

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and we had to let it go since she was in a cast for eight

weeks. She is now rehabilitating and still feels pain when she

stands for long periods of time.

With that eackground as to who I am, I would like to

share some of the specific problems Madoff’s crime brought to

us. My pension distribution, a one-time decision, and our

health insurance plan, also one-time decision, were based on

the fact that we had savings and security with Madoff. If I

should die, my wife is left without my income or health

insurance.

We sold our horne in New York with the expectation that

someday we would have the finances to purchase another one. We

have no credit now and can’t get a mortgage. We have been

forced to take care of people’s homes while they are traveling

for the summer, as we used to do prior to December 11th.

We have through the generosity of friends been able to

stay rent free on the RV lots of people in the community. This

will corne to a screeching halt in October when the owners

return for the winter season. We don’t know where we’ll go at

that time. We don’t have enough income from my pension to pay

monthly rent.

The most devastating to us is we lost our freedom. We

lost the ability to share our life every day as we explore the

country every day. We lost the time to hold hands as we

walked. As they say in the commercial, this is priceless.

SOUTHERN DISTRICT REPORTERS, P.C.

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1 In closing, I would like to say, Judge Chin,

3 certainly not eliminate any of the issues I wrote about. It

4 probably won’t even gain me satisfaction. As the guard who

5 used to be on the right side of the prison bars, I’ll know what

6 Mr. Madoff’s experience will be and will know that he is in

7 prison in much the same way he imprisoned us as well as others.

8 He took from us the freedom that we held so preciously

9 close to our lives, the very thing I always valued and never

10 took for granted. In a sense, I would like someone in the

11 court today to tell me how long is my sentence.

12 Thank you very much.

13 THE COURT: Thank you. Next we’ll hear from Mr. and

14 Mrs. FitzMaurice.

MS. EBEL: No, Judge Chin. I am next.

THE COURT: I saw the gentleman standing up next and I

17 thought you were Maureen Ebel.

18 MS. EBEL: Yes, I am. I am here with may brother,

19 William Thomas McDonough.

THE COURT: All right.

MS. EBEL: My name is Maureen Ebel and I am a victim

22 of Bernard L. Madoff.

23 I have lost all of my life’s hard-earned savings. I

24 have lost my life savings because our government has failed me

25 and thousands and thousands of other citizens. There are many

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sentencing Bernard L. Madoff to the fullest extent will

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1 levels of government complicity in this crime. The Securities

3 negligence, has allowed a psychopath to steal from me and steal

4 from the world.

5 I am a 61-year-old widow and I am now working full

6 time. I have done many things to survive since December 11th,

7 including selling a lot of my possessions and working three

8 jobs at the same time. I have lost a home that my husband and

9 I had owned for 25 years because of this theft.

10 I have lost my ability to care for myself in myoId

11 age. I have lost the ability to donate to charity, especially

12 the Leukemia & Lymphoma Society. I have lost my ability to

13 donate my time working for that charity as I had done in the

14 past because now I must work full time in order to eat.

15 I have lost the ability to help future generations of

16 my family get an education. I have lost the ability to help

17 them with their housing needs. It pains my so much to remember

18 my husband getting up in the middle of the night. He was a

19 very fine physician. He would get up in the middle of the

20 night year after year in all kinds of weather to go to the

21 hospital to save someone’s life in rain, ice and snow.

22 He would save someone’s life so that Bernie Madoff

23 could buy his wife another party rock. I have lost the ability

24 to move around the world freely at this stage in my life using

25 the money my husband and I have worked so hard to earn. We had

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& Exchange Commission, by its total incompetence and criminal

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worked, saved and planned for our old age so that we could

leave something behind and not be a burden when we became sick

and old.

The emotional toll that this has taken on me has been

devastating. I have had great pain and suffering at the hands

of Bernie Madoff. My health deteriorated rapidly after

December 11th. I could not eat or sleep. I was very agitated

and hyperactive. I had all the signs and sYmptoms of someone

undergoing great stress. I suffered rapid weight loss, rapid

heart rate, sweating, insomnia and sometimes spells.

I had the horrible feeling that I had been pushed into

the great black abyss, but I could not indulge these paralyzing

feelings too long. I had work to do. While experiencing all

these sYmptoms, I had to sell my home of 25 years, sell may

car, sell may possessions and go to work full time. I accepted

gifts of money from family and friends to pay for heat,

electricity, gasoline and food.

I was the recipient of so many kindnesses and saw so

much goodness in people. Goodness in people is something that

you, Mr. Madoff, have been blind to your whole life, and that

goodness is better than all the yachts and all the French homes

in all the world put together.

Sadly, Mr. Madoff not only defrauded thousands of

investors, he mastered the art of manipulating our government.

FINRA and the Securities

SOUTHERN DISTRICT REPORTERS, P.C.

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, 25& Exchange Commission became his

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1 tools. They were willing to relax all regulations that would

2 have uncovered his fraud. The justification for relaxing the

3 regulations was to ease the burden on Wall Street firms, the

4 very firm that bankrupted the world economy.

6 criticize the agencies. That is not before me. What is before

7 me is what sentence to impose, so if you would address that,

8 please.

THE COURT: Ms. Ebel, this is not the time to

MS. EBEL: I will, Judge Chin.

Mr. Madoff, I have read you will be making a statement

11 about your guilt and shame. I do not believe you. Judge Chin,

12 Mr. Madoff should stay in jail until every person who enabled

13 him to cause such a massive devastation is brought to justice.

14 He should stay in jail until the families of everyone of his

15 victims are able to restore their financial stability. That

16 could easily take 150 years. Thank you.

18 Mrs. FitzMaurice.

THE COURT: Thank you. Next we’ll hear from Mr. and

20 us to be heard in your courtroom today.

21 My wife and I here are today representing the

22 thousands of Madoff victims. We have all suffered extensively

23 as a result of his actions. It has been well chronicled that

24 Madoff did not limit his treachery to a few. He stole from the

25 rich, he stole from the poor and he stole from the in-between.

SOUTHERN DISTRICT REPORTERS, P.C.

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MR. FITZMAURICE: Thank you, Judge Chin, for allowing

.’C

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He had no boundaries. He stole from individuals as well as

charitable organizations of all types and denominations.

My wife and I are not millionaires. He has taken our

entire life savings. We have not been overlooked just as many

of his other victims. We have worked hard, long and hard for

all of our lives to provide for our family and to be in a

position to retire someday. I am now forced to work three

jobs. My wife is working a full-time job only to make ends

meet, to allow us to pay our mortgage and put food on the

table.

We are 63 years’ old. It will be no retirement for us

in the next two or three years. There will be no trips to

California to visit our one-year-old grandson. There will be

no vacations of any type. Again we are too old to recoup the

monies that he has taken from us. We can only work as long as

our health will hold up and then we will have to sell our home

and hope to survive on social security alone.

Madoff has shown no remorse. Please do not confuse

his prepared statement as remorse. His crime was premeditated

and calculated. He was attempting to scam investors only days

before his arrest. If he had the opportunity, he would still

be stealing from innocent investors. He has not truly

cooperated with the authorities to recover the money that

rightfully belongs to his investors, whom we are now known as

victims.

SOUTHERN DISTRICT REPORTERS, P.C.

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1 He cheated his victims out of their money so that he

2 and his wife Ruth and their two sons could live a life of

3 luxury beyond belief. This life is normally reserved for

4 royalty, not for common thieves.

5 Your Honor, we implore you to give him the maximum

6 sentence at a maximum prison for this evil lowlife. This would

7 be true justice. Minimum security prison would only allow

8 Madoff too many freedoms that he does not deserve. He would be

9 leading a life better than a lot of his victims. That is not

10 true justice. His was a violent crime without the use of a

11 tangible weapon.

12 His attorney will argue for a lenient sentence of up

13 to twelve years. That is both insulting and another example of

14 Madoff’s arrogance. The scope of the devastation he has

15 wreaked is unparalleled. It is impossible to compare his crime

16 to any past criminal act. The pain he has inflicted will

17 continue for many years. My life will never be the same. I am

18 financially ruined and will worry every day about how I will

19 take care of my wife.

20 Where will we be able to live? How will we pay our

21 bills? How will we get medical insurance?

22 All of his victims worldwide will be waiting to see

23 that true justice is served. True justice is a maximum

24 sentence in a maximum security prison. I have a quotation from

25 my wife, since only one of us could speak. She wants to say:

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1 “I cry every day when I see the look of pain and

2 despair in my husband’s eyes. I cry for the life we once had

3 before that monster took it away. Our two sons and

5 You, on the other hand, Mr. Madoff, have two sons that despise

6 you. Your wife, rightfully so, has been vilified and shunned

7 by her friends in the community. You have left your children a

8 legacy of shame. I have a marriage made in heaven. You have a

9 marriage made in hell, and that is where you, Mr. Madoff, are

10 going to return. May God spare you no mercy.”

THE COURT: Thank you.

Next we will hear from Carla Hirschhorn.

MS. HIRSCHHORN: Good morning and thank you, your

14 Honor, for allowing me to address you.

15 My husband and I write to you to explain the

16 devastation caused by Bernard L. Madoff to our lives. Since

17 1992 we were invested with Bernard L. Madoff Investment

18 Securities. We have never been rich people. We have worked

19 throughout all our adult lives. Over the years my husband has

20 worked hard to learn a trade as a glazer which afforded him the

21 opportunity to start a small business. I have been a physical

22 therapist and worked through to the day I was graduated from

23 college in 1980. We have both diligently saved our hard-earned

24 money to invest with Bernard Madoff over the years. We used

25 our money to raise our children, purchase our home and put our

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daughter-in~law have rallied with constant love and support.

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savings in Bernard Madoff Securities.

On December 11th, 2008, our world crumbled beneath us

as news of the Bernard Madoff ponzi scheme became public. This

turn of events has been devastating to our family. We lost our

entire life savings. This money was being used to provide our

children with a college education they have worked so hard to

deserve and to provide us with savings for a secure retirement.

Since December 11th, 2008 life has been a living hell.

It feels like a nightmare that we can’t wake from. I am so

thankful that my father died two years ago and was spared from

having to live in his terminal condition without the money to

provide him 24/7 health care which allowed him to die with

indignity.

My father died and left my mother believing she would

be able to live a safe and secure life with the money in her

Bernard Madoff accounts. Now all she has to live on is a

sparce social security check and a small pension which will

last less than one year. She may not have enough money to

maintain her home and living expenses.

It is our hope and in our prayers she does not become

ill and require extraordinary means to sustain her. Our

daughter who sits in this courtroom today to witness this

horrific event is a junior at college and has worked two jobs

since our Madoff accounts were stolen while going to school

full time. The stress and worry about her family’s financial

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1 situation and health of her parents has been devastating to

2 her. We have no idea how we will continue to pay for college

without it being a terrible financial burden and worry on all

5 Immediately after hearing the news of the ponzi

6 scheme, we filed papers for financial aid to sustain our

7 daughter through college. We were informed we were not

8 eligible for any grant money, that our only hope would be to

9 take out loans. However, in this financial environment,

10 without SIPIC insurance and with concern about claw-back

11 litigation, we can’t possibly take loans out to send our

12 daughter to college. The turmoil caused by our financial

13 devastation has caused us serious physical and emotional

14 problems from which we need medical treatment.

15 Your Honor, please understand that we, the investors,

16 have been punished by Madoff’s crime. We were devastated by

17 the SEC’s failure to uncover Madoff’s fraud and its continued

18 stamp of approval behind Madoff over the decades of his crime.

19 We have been abandoned by our elected officials which refuse to

20 require the SEC to find income. We have been betrayed by

21 SIPIC, which in order to save money, has invented a new

22 definition of net equity to deprive us of the $500,000 of

23 insurance of which we were assured.

4 of us.

25 that Madoff is sentenced with the maximum possible time and he

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Please, your Honor, do not fail us. Please assure

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1 is required to serve his sentence in a maximum security prison.

2 This is not a man who deserves a federal country club.

3 Respectfully, Carla Hirschhorn.

THE COURT: Thank you.

It is not up to me, by the way, where Mr. Madoff will

6 be designated. A number of people have made that suggestion,

7 but it is up to the Bureau of Prisons.

8 Next we’ll hear from Sharon Lissauer.

10 your Honor, for letting me speak. I am very emotional, so

11 please bear with me if I break down into tears. As everyone

12 knows, this nightmare has begun six and a half months ago and

13 yet it seems like a lifetime.

MS. LISSAUER: My name is Sharon Lissauer. Thank you,

15 keeps on getting worse. My life and my future have been

16 ruined. I was always so careful with my money, but I entrusted

17 everything I had to Mr. Madoff, my whole life savings from

18 modeling and the inheritance of my mom. She just died last

19 year, and as soon as I got the money, because I just miss her

20 and I trusted Mr. Madoff so much, I gave it all to him, but now

21 I don’t have my mom or the money.

22 I know I am not alone. I know he has ruined thousands

23 of people’s lives. In the March hearing he said that he was

24 truly sorry, which I don’t really believe, but even if it is a

25 little bit true, then I am not asking him, I am begging him, if

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I keep on thinking I am going to wake up from it. It

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he has any money from the offshore accounts or his family has

any money obtained from this horrible fraud, that they disgorge

it and give it back to the victims so they can have a little

bit of their lives back.

With respect to his sentencing, I used to think that

it didn’t matter if he got 150 years, what would that do for

the victims? It wouldn’t get their money back. But now upon

reflection, I think he should spend his whole life in jail

because what he has done is just despicable. He has ruined so

many people’s lives. He killed my spirit and shattered my

dreams. He destroyed my trust in people. He destroyed my

life, and I have no other assets. I make very little money

from modeling and he left me in a very difficult position to

pay my bills and support myself. For the first time in my life

I am very, very frightened of my future.

Thank you, your Honor.

THE COURT: Thank you.

Next we’ll hear from Burt Ross. Mr. Ross.

MR. ROSS: Your Honor, my name is Burt Ross and my

wife Joan and I lost $5 million because of the criminal acts of

Bernard Madoff. Not only have I lost the inheritance of my

father who worked his entire life, not only have I lost the

inheritance of my father who worked for his entire life so that

his children and his children’s children can leave a better

life, I have lost our retirement accounts and funds in trust

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1 for our children.

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2 The fact is though we are one of the fortunate ones

3 because we still have a roof over our heads, food on our table,

4 unlike so many others who have been forced to sell their homes,

5 who have been forced to sell their homes and pick up the pieces

6 of their lives.

7 Years ago I attended a Friends secondary school where

8 we thought that in each person there was an inner light, that

9 of God and everyone. For the life of me, as far as I have

10 searched, I cannot find that inner light in Bernard Madoff.

11 What can we possibly say about Madoff, that he was a

12 philanthropist, when the money he gave to charities he stole

13 from the very same charities he ultimately devastated; that he

14 was a good family man when he leaves his grandchildren a name

15 that mortifies them, a name which will live in infamy; that he

16 is genuinely remorseful for his conduct when the statement he

17 read in this very court was totally without emotion, when even

18 after confessing he fought to keep assets away from those he

19 hurt, when we all know his only regret was getting caught.

20 Can we say Madoff was a righteous Jew who served on

21 the boards of Jewish institutions when he sank so low, when he

22 sank so low as to steal from Elie Weisel, as if Weisel hasn’t

23 already suffered enough in his lifetime.

24 A righteous Jew, when in reality nobody has done more

25 to reinforce the ugly stereotype that all we care about is

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1 money the fact is there are no people on this earth more

2 charitable? But we will survive. We have survived worse than

3 Madoff.

4 What Bernard L. Madoff

5 money. It involves his betrayal of the virtues people hold

6 dearest love, friendship, trust — and all so he can eat at

7 the finest restaurants, stay at the most luxurious resorts, and

8 travel on yachts and private jets. He has truly earned his

9 reputation for being the most despised person to be in America

10 today.

11 Several hundred years ago the Italian poet Dante in

12 his “The Divine Comedy” recognized fraud as the worst of sins,

13 the ultimate evil more than any other act contrary to God’s

did~far transcends the loss of

15 perpetrators of fraud in the lowest depths of hell, even below

16 those who had committed violent acts. And those who betrayed

17 their benefactors were the worst sinners of all, so in the

18 three mouths of Satan struggle Judas for betraying Jesus

19 Christ, and Brutus and Cassius for betraying Julius Caesar.

20 Please Allow me to take a liberty now by speaking for

21 many of those victims who because of frailty, privacy,

22 distance, or other reasons are unable to bear witness today.

23 We urge your Honor to commit Madoff to prison for the remainder

24 of his natural life, and when he leaves this earth virtually

25 unmourned, may Satan grow a forth mouth where Bernard L. Madoff

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greatest gift to mankind love. In fact, he placed the

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1 deserves to, spend the rest of eternity.

2 Thank you.

3 THE COURT: Thank you. Next we’ll hear from Michael

4 Schwartz.

MR. SCHWARTZ: Can everyone hear me?

My name is Michael Schwartz. I am 33 yearS’ old. It

7 was my family’s trust fund that helped fund the money for

8 Bernard Madoff’s organization. Since I was a teenager, I

9 invested into what I thought was a forthright and legitimate

10 investment firm. During this time I made sure I lived well

11 within my means, nothing extravagant. I viewed my investment

12 as a safety net in case I should hit hard times or perhaps face

13 medical issues.

14 Unfortunately, several months ago, my job was

15 regionalized, eliminated. I was handed a letter of

16 recommendation and sent on my way. It didn’t hit me until I

17 got home that the company that you ran had already taken my

18 life savings. At 33, I was wiped out.

20 I am young, I have great friends, got a loving wife.

21 Unfortunately, the money you took from other members of my

22 family wasn’t a minor setback. It was quite a bit more. Your

23 Honor, part of the trust fund wasn’t set aside for a house in

24 the Hamptons, a large yacht or box seat to the Mets. No, part

25 of that money was set aside to take care of my twin brother who

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I am one of the lucky ones by far. I have my health.

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1 is mentally disabled, who at 33, he lives at home with my

2 parents and will need care and supervision for the rest of his

3 life.

4 In the final analysis, my family wants to remember

5 that in addition to stealing from retirees, veterans, widows,

6 Bernard Madoff stole from the disabled. Every time he cashed a

7 check and paid for his family’s decadent lifestyle, he killed

8 dreams. My parents had a simple dream for my brother, a week

9 at summer camp, someday being able to live in a good, a good

10 group home. Thanks to Bernard Madoff’s greed, complete lack of

11 ethics, that dream will be delayed.

12 At the end of the day my twin brother will be taken

13 care of. My family is strong enough to weather this storm but,

14 your Honor, I say this without any malice, Bernard Madoff

15 should no longer be allowed back in society. I only hope that

16 his prison sentence is long enough so that his jail cell

17 becomes his coffin. Thank you.

18 THE COURT: Thank you.

We’ll hear next from Miriam Siegman.

MS. SIEGMAN: I was born a few blocks from this

21 courthouse. I still live here. On a cold winter’s day just

22 before my 65th birthday, the man sitting in front of me

23 announced to the world that he had stolen everything I had.

24 After that he refused to say another word to his victims. I am

25 here today to bear witness for myself and others, silent

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1 victims.

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The streets of my childhood felt safe. The streets I

3 wander now feel threatening. The man sitting in this courtroom

4 robbed me. In an instant his words and deeds beat me to near

5 senselessness. He discarded me like road kill. Victims became

6 the byproduct of his greed. We are what is left over, the

7 remnants of stunning indifference and that of politicians and

8 bureaucrats.

10 the end of the month I sometimes scavage in dumpsters. I

11 cannot afford new eyeglasses. I long to go to a concert, but I

12 never do. Sometimes my heartbeats erratically for lack of

13 medication when I cannot pay for it.

14 I shine my shoes each night, afraid they will wear

15 out. My laundry is done by hand in the kitchen sink. I have

16 collected empty cans and dragged them to redemption centers.

Six months have passed. I manage on food stamps. At

18 is I’m fine, but it is not always true. I have lived with

19 fear. It strikes me at all hours. I calculate again and again

20 how long I can hold out.

21 It is only a matter of time. I will be unable to meet

22 my own basic needs, food, shelter, medicine. I feel grief at

23 no longer being able to help support my beloved sister. I feel

24 shame and humiliation asking for help.

I do this. People ask how are you? My answer always

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I also feel overwhelming sadness. I know that another

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1 human being did this to me and to all victims, but I don’t know

2 why. What I do understand frightens me. The man who did this

3 had deep contempt for his victims.

4 There are many victims including those we never hear

5 from or see; union members, pipe-fitters, laborers, women who

6 work in nursing homes, bricklayers, firemen, working people.

7 One victim shot himself. The inquest informs us he was a

8 highly decorated former soldier who could not face the shame of

9 his ruin, his last words on a humanitarian mission in

10 Afghanistan. By self-admission, this thief among us knew his

11 victims were facing a kind of death at his hands, yet he

12 continued to play with us as a cat would with a mouse.

13 What shall be the punishment for such a man? What

14 sentence? Carry the burden we carry, feel his shame,

15 humiliation and isolation as I do. Feel it each day wherever

16 you are until life ends.

17 Face an acknowledge the murderous effects of your

18 life’s work. I long for the truth that might become of a trial

19 and hope justice had placed a higher premium on truth and

20 expediency. Forgiveness for now, it will have to come from

21 someone other than me.

23 Weinstein.

THE COURT: Thank you. Finally weill hear from Sheryl

MS. WEINSTEIN: Hello, your Honor.

THE COURT: Good morning.

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MS. WEINSTEIN: I was introduced to Bernard Madoff 21

2 years ago at a business meeting. At the time I was the chief

3 financial officer of Hadassah, a charitable women’s

4 organization. I now view that day as perhaps the unluckiest

5 day of my life because of the many events set into motion that

6 would eventually have the most profound and devastating effect

7 on me, my husband, my child, my parents, my in-laws and all

8 those who depended upon us for their liveliness.

9 You have read and you appear from many of us, the old,

10 the young, the healthy and infirm about the unimaginable extent

11 of human tragedy and devastation. According to a Time Magazine

12 article, there are over 3 million individuals worldwide who

13 have been directly or indirectly affected. They, the press and

14 the media, speak of us as being greedy and rich. Most of us

15 are just ordinary working people, worker bees, as I like to

16 refer to us.

17 My husband and I are now both in our 60′s and have

18 been married for 37 years. We have saved for most of our lives

19 by living beneath our means in order to provide for our

20 retirement. This past Thursday at 2:00 o’clock my husband and

21 I sold our home of 20 years. People are always asking how much

22 did we lose? My reply is that when you lose everything, it

23 really doesn’t matter because you have nothing left, and we

24 have lost everything.

25 Many have told us we were lucky — I no longer know –

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1 to be able to sell in this depressed market although at a

2 greatly reduced amount. We had to sell because four years ago

3 we refinanced our mortgage and gave the excess cash to Bernie

4 Madoff. There was very little left over after all was said and

5 done at the closing.

6 It is difficult to describe how it feels due to

7 circumstances outside of your control to be virtually forced

8 out of your home, to leave unwillingly. Last Tuesday I walked

9 out following the movers with a thought I would be back before

10 the closing, but knowing in the back of my mind that I

11 wouldn’t.

12 My husband was the last to be in our home. He shared

13 with me his hesitation of not wanting to leave, of wanting to

14 remain, but realizing that staying was no longer an option. We

15 chose not to go to the closing because it would have been too

16 difficult and painful for either of us to be there. For months

17 after December 11th I would wake in the dark hours of the night

18 and early morning and to my horror realize that there were no

19 calming, soothing words I could say to myself because it wasn’t

20 a dream. The monster who visited me was true, a reality.

21 Those same thoughts would occur to me upon waking in the

22 morning and during the day and a deep, heavy depression would

23 surround me and not lift.

24 This went one for many months. I went on after bad

25 dreams, virtually not unable to eat. The sight of food was

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making me feel sick, unable to escape the reality of my

personal devastation. At times I could not even bear to be

alone. I would ask my friends to either stay with me at the

office even if there was very little work to do. It wouid

prompt me to pick up the phone to call my husband to be

reassured I was not alone.

This continued until March 12th when Madoff entered

his plea of guilty. I began to speak out to the media, and the

helpless and hopeless feelings began to retreat and I began to

feel empowered. It came together for me while being

interviewed by Katie Couric. She asked me wasn’t I embarrassed

being a CPA losing all my money? At that moment I realized and

responded no, I am not embarrassed because I did not lose my

money. My money was stolen from me.

Ms. Couric said to me you sound angry, and I said yes,

you’re right. When someone steals from you, you get angry.

That was the beginning of my healing process.

I felt it was important for somebody who as personally

acquainted with Madoff to speak. My family and I are not

anonYmous people to him. He knows my husband’s name is Rob and

my son’s name is Eric. In fact, Eric worked for him one summer

while in college many years ago. Eric would continue to call

him over the years to ask for his advice and input. Eric

entrusted him with his money that he worked and saved. a few

months before all this happened Eric had spoken to him and

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1 thanked him for doing such a good job.

2 I would now like to have the opportunity to share with

3 you my personal feelings about Madoff and to speak to his

4 sentencing.

5 I remember when my son was perhaps a few weeks’ old

6 and I would watch him as he slept and he would whimper, not a

7 cry of hunger, but a whimper. Even at a few weeks’ old there

8 was something in his subconscious that could frighten him. It

9 amazed me such a young child, an infant can have nightmares.

10 All of us from our earliest ages remember those times

11 when the terror, the monsters and goblins would come visit us

12 in those dark hours. Eventually we would be so frightened that

13 we would awake sometimes calling out to our parents because of

14 the fear.

15 It was calming to have our parents remind us it was

16 only a dream. As we got older, we could wake ourselves and

17 self-assure ourselves it was only a dream. That terror, that

18 monster, that horror, that beast has a name to me, and it is

19 Bernard L. Madoff. I will now attempt to explain to you the

20 nature of this beast who I called Madoff.

21 He walks among us. He dresses like us. He drives and

22 eats and drinks and speaks. Under the facade there is truly a

23 beast. He is a beast that has stolen for his own needs the

24 livelihoods, savings, lives, hopes and dreams and futures of

25 others in total disregard. He has fed upon us to satisfy his

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1 own needs. No matter how much he takes and from whom he takes,

2 he is never satisfied. He is an equal opportunity destroyer.

3 I felt it important for you to know in appearance, he

4 would be just like everybody else and it is for this reason I

5 am asking your Honor to keep him in a cage behind bars because

6 he has lost the privilege of walking and being among us mortal

7 human beings. He should not be given the opportunity to walk

8 into our society again.

9 I would like to suggest that while any man, woman or

10 child that has been affected by his heinous crime still walks

11 this earth, Madoff the beast should not be free to walk among

12 them. You should protect society from the likes of him. I

13 have reread Madoff’s March 12th statement to you. Certain

14 quotes jumped out at me. His continuing self-serving

15 references, and I quote, that his proprietary trading in the

16 market making business managed by his brother and two sons was

17 legitimate, profitable and successful in all respects, or that

18 he felt, “compelled to satisfy my clients’ expectations at any

19 cost.”

20 It sounds as if he is laying the blame on his clients’

21 expectations and never admitting the truth he was stealing from

22 these clients and the lives he ruined. If he was attempting to

23 protect his family, he should not be given that opportunity

24 because we, the victims, did not have the same opportunity to

25 protect our families. Madoff the beast has stolen our ability

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1 to protect our loved ones away from us. He should have no

2 opportunity to protect his family.

3 We, the victims, are greatly disappointed by those

4 agencies that were set up to protect us. SIPIC has now

5 redefined what we are entitled to. The IRS approved their

6 office request to be a custodian of our lRAs and pension funds

7 and the SEC appears to have looked the other way on numerous

8 occasions. This is a human tragedy of historic proportions and

10 failed us in the past through acts of omissions, step up to the

11 plate, fulfill their responsibilities. I thank your Honor for

we ask no, we implore — that those whose agencies may have

13 justice is served.

14 Thank you.

your indulgence and I feel comfortable you will make sure

THE COURT: Thank you.

Thanks to all the victims who spoke today and to all

17 those who wrote. I appreciate hearing your views.

Mr. Sorkin.

MR. SORKIN: Good morning, your Honor.

THE COURT: Good morning.

MR. SORKIN: Before I speak, would your Honor

22 respectfully acknowledge you have received both the

23 government’s sentencing memorandum and two responses?

25 yesterday and your reply brief. I have the government’s

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1 memorandum as well.

Sentence

MR. SORKIN: Thank you.

THE COURT: I have read them all.

MR. SORKIN: Thank you, your Honor.

May I proceed?

THE COURT: Yes.

MR. SORKIN: Your Honor, I know I speak on behalf of

8 all Mr. Madoff’s counsel as well as Mr. Madoff who will speak.

9 We cannot be unmoved by what we heard. There is no way that we

10 cannot be insensitive to the victims’ suffering.

11 This is a tragedy as some of the victims have said at

12 every level. There is no doubt Mr. Madoff will speak. We

13 represent a deeply flawed individual, but we represent, your

14 Honor, a human being. We don’t represent a statistic. We

15 don’t represent a number. We speak to the victims. We have

16 heard what they’ve had to say and we can only imagine, your

17 Honor, what we would have heard from others.

18 I say again, forgive me for being redundant, we

19 represent a very flawed individual, an individual who appears

20 before this court facing a sentence that is sufficient but not

21 unreasonably necessary to carry out the mandate that this court

22 has to carry out.

The magnificence of our legal system, your Honor, is

7_._

24 that we do not seek an eye for an eye. To be sure, if it is

25 any consolation to the victims, we have worked hopefully

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1 diligently with the u.S. Attorney’s Office in an atmosphere of

2 trying to recover assets. To that extent, your Honor, we have

3 provided the government with what we believe to be the assets

4 that Mr. Madoff has gathered over the years which the victims

5 have referred to, and again if it is any consolation to them,

6 to the extent that the government has left him and his family,

7 his wife impoverished, we are just about there with respect to

8 everything the government believes it can show in order to

9 obtain the appropriate assets for forfeiture.

10 Vengeance is not the goal of punishment. Our system

11 of justice, your Honor, has recognized that justice is and must

12 always be blind and fair — not blind to the criminal acts that

13 Mr. Madoff pleaded guilty to and certainly not blind to the

14 suffering of the victims, but blind to the extent that it will

15 achieve a sentence that has been set out over the years in the

16 guidelines and the cases interpreting the guidelines, and the

17 guidelines and the courts and the statutes, your Honor, do not

18 speak of vengeance and revenge.

20 cited United States versus Ellison on this point, your Honor.

21 For the government to ask for 150 years so that Mr. Madoff gets

22 out of jail at the age of 221 because he is 71 now, he will

23 face supervised release. By the same token, your Honor, it

24 defies reason for the Probation Department to suggest that he

25 be sentenced to 50 years in prison for the very same reasons.

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There is something bordering on the absurd, and we

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I point out to the court, and forgive me, your Honor,

for repeating what is in the letter we sent you most recently,

that Mr. Madoff, as he pleaded to, as appears in the

presentence report and appears in the information in which the

government agrees, for most of the period of time that Mr.

Madoff is alleged to have engaged in this ponzi scheme and, in

fact, it was a ponzi scheme, it was money in and money out.

Most of the money, and I am quoting from the PSR, went

for redemptions. People who invested money were given back

money. To be sure, it was a fraud. To be sure, it was a ponzi

scheme. To be sure, it was a crime, but nevertheless, your

Honor, I point out, and in response respectfully to some of the

victims, the PSR noted, and I think it is common knowledge in

the industry that Mr. Madoff built up this firm on the

proprietary trading side to the point in 1991, as the

presentence report points out, the proprietary trading side

which at the point of his arrest had approximately 200

employees separate and apart from the fraudulent advisory

business, a hundred traders making markets and in 1991, your

Honor, accounted for almost 10 percent of all transactions on

the New York Stock Exchange.

Sufficient to provide revenue at the same time Mr.

Madoff engaged in taking money in and taking money out, most of

that money went for redemptions. As we point out in our letter

of yesterday, and as the government notes and as the PSR notes,

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“

the loans, the comingling, and we we do dispute this with the

government, but I don’t think it is a relevant issue, the

comingling, the loans.

(Continued on next page)

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sentence.

$250 million over the last eight or so years, of advisory

The PSR points out, your Honor, as we noted in our

and alone, he will have paid a terrible price. He expects,

we, his defense counsel — in

letter to you, that the loss in this case is $13,226,000,000.

I think it’s important to note, your Honor, again that

We also said, if your Honor is inclined, your Honor

MR. SORKIN: The loans, the commingling, commenced

Mr. Madoff is 71 years old, your Honor. Based upon

Mr. Madoff ever sees the light of day, in his 90s, impoverished

Mr. Madoff’s authorization, permission, and blessing.

short, based upon the statistics that we have, of a life

his health, which is in the PSR, his family history, his life

obviously makes the decision, 15 to 20 years. So that if

Mr. Madoff stepped forward. He chose not to flee. He chose

assisting the government, at the request of the government, to

that voluntarily, and we have been trying to help, with

expectancy, that is why we ask for a sentence of 12 years, just

obtain assets located overseas, as we speak, and we submitted

not to hide money. To the extent money is overseas, we are

still actively engaged

money, as well as money in, money out of investments.

your Honor, to live out his years in prison.

say, things began to collapse. And there was commingling with

within the last eight to ten years. And as Mr. Madoff will

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1 The exact numbers are in the PSR. What has not been heard

2 publicly, your Honor, is the fact that over $1,276,000,000 is

3 held by the SIPC trustee, and we have no control over how that

4 money is

5 heard. Again, we have no control over what the SIPC trustee

6 does with the money that he obtains, nor do we have any control

7 over what the SEC will do, nor do we have any control as to how

8 the government to whom we have forfeited all of the assets but

9 a few, which the government and we have agreed were weighed

10 against the risk of litigation, we have no control how that

11 money is disbursed.

12 Additionally to the $1,276,000,000, the SIPC trustee,

13 according to the PSR, has recovered $1,225,000,000, has sent

14 demand letters to individuals for 735 million, and has

15 commenced litigation to seek a clawback from some very large

16 funds to obtain redemptions and interest paYments in the amount

17 of $10,100,000,000. It is our hope, your Honor, our sincerest

18 hope, that all that money is collected, in an amount in excess

19 of $13,226,000,000, that that will be provided to investors.

20 The frenzy, the media excitement, that Mr. Madoff

21 engaged in a Ponzi scheme involving $65 billion and that he has

22 ferreted money away, as far as we know, your Honor, that is

23 simply not true, and it is not borne out either by the

24 government or by the PSR, and we take no issue with the PSR.

25 In closing, your Honor, there is no question that this

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disbur~ed. And I say this for the victims we have

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1 case has taken an enormous toll, not only on Mr. Madoff and his

2 family, but to the victims to be sure. But it has also taken a

3 toll, your Honor, as Mr. Madoff will say, on the industry that

4 he helped revolutionize, that he helped grow, and now has

5 become the object of disrespect and abomination, and that is a

6 tragedy as well.

7 We ask only, your Honor, that Mr. Madoff be given

8 understanding and fairness, within the parameters of our legal

9 system, and that the sentence that he be given be sufficient,

10 but not greater than necessary, to carry out what this Court

11 must carry out under the rules, statutes and guidelines.

12 Thank you, your Honor.

14 Mr. Madoff, if you would like to speak, now is the

15 time.

16 THE DEFENDANT: Your Honor, I cannot offer you an

17 excuse for my behavior. How do you excuse betraying thousands

18 of investors who entrusted me with their life savings? How do

19 you excuse deceiving 200 employees who have spent most of their

20 working life working for me? How do you excuse lying to your

21 brother and two sons who spent their whole adult life helping

22 to build a successful and respectful business? How do you

23 excuse lying and deceiving a wife who stood by you for 50

24 years, and still stands by you? And how do you excuse

25 deceiving an industry that you spent a better part of your life

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THE COURT: Thank you.

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1 trying to improve? There is no excuse for that, and I don’t

2 ask any forgiveness.

3 Although I may not have intended any harm, I did a

4 great deal of harm. I believed when I started this problem,

5 this crime, that it would be something I would be able to work

6 my way out of, but that became impossible. As hard as I tried,

7 the deeper I dug myself into a hole. I made a terrible

8 mistake, but it wasn’t the kind of mistake that I had made time

9 and time again, which is a trading mistake. In my business,

10 when you make a trading error, you’re expected to make a

11 trading error, it’s accepted. My error was much more serious.

12 I made an error of judgment. I refused to accept the fact,

13 could not accept the fact, that for once in my life I failed.

14 I couldn’t admit that failure and that was a tragic mistake.

15 I am responsible for a great deal of suffering and

16 pain. I understand that. I live in a tormented state now

17 knowing of all the pain and suffering that I have created. I

18 have left a legacy of shame, as some of my victims have pointed

19 out, to my family and my grandchildren. That’s something I

20 will live with for the rest of my life.

21 People have accused me of being silent and not being

22 sympathetic. That is not true. They have accused my wife of

23 being silent and not being sympathetic. Nothing could be

24 further from the truth. She cries herself to sleep every night

25 knowing of all the pain and suffering I have caused, and I am

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1 tormented by that as well. She was advised to not speak

3 complied with that. Today she will make a statement about how

4 she feels about my crimes. I ask you to listen to that. She

5 is sincere and all I ask you is to listen to her.

6 Apologizing and saying I am sorry, that’s not enough.

7 Nothing I can say will correct the things that I have done. I

8 feel terrible that an industry I spent my life trying to

9 improve is being criticized terribly now, that regulators who I

10 helped work with over the years are being criticized by what I

11 have done. That is a horrible guilt to live with. There is

publicly until after my sentencing by our attorneys, and she

13 and suffering I caused them, but I will live with this pain,

14 with this torment for the rest of my life.

nothing I can do that will make anyone feel better for the pain

16 I am sorry. I know that doesn’t help you.

I apologize to my victims. I will turn and face you.

Your Honor, thank you for listening to me.

THE COURT: Thank you.

19 Mr. Sorkin, did I understand Mr. Madoff to say that

20 Mrs. Madoff wanted to speak?

MR. SORKIN: No, your Honor. Mrs. Madoff after the

23 Mr. Madoff said about belaboring it, that she was advised by

24 counsel to wait till after sentence.

sentencing will be giving a statement. And I add what

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, 2

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speak. Thank you.

I will hear from the government.

MS. BARONI: This defendant carried out a fraud of

unprecedented proportion over the course of more than a

generation. For more than 20 years he stole ruthlessly and

without remorse. Thousands of people placed their trust in him

and he lied repeatedly to all of them. And as the Court heard

from all of the victims, in their words and in the letters, he

destroyed a lifetime of hard work of thousands of victims. And

he used that victims’ money to enrich himself and his family,

with an opulent lifestyle, homes around the world, yachts,

private jets, and tens of millions of dollars of loans to his

family, loans of investors’ money that has never been repaid.

The guideline sentence in this case, as your Honor

knows, is 150 years and the government respectfully submits

that a sentence of 150 years or a substantial term of

imprisonment that will ensure that he spends the rest of his

life in jail is appropriate in this case.

This was not a crime born of any financial distress or

market pressures. It’ was a calculated, well orchestrated,

long-term fraud, that this defendant carried out month after

month, year after year, decade after decade. He created

literally hundreds and hundreds of thousands of fake documents

every year. Every time he told his clients that he was making

trades for them he sent them trade confirmations filled with

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lies. At every month end he sent them account statements that

were nothing but lies. And the defendant knew that his clients

made critically important life decisions, as your Honor heard

today, based on these lies. Decisions about their children’s

education, their retirement, how to care for elderly relatives,

and how to provide for their families. He knew this, and he

stole from them anyway.

In doing so, he drove charities, companies, pension

plans and families to economic ruin. And even on the most

dispassionate view of the evidence, the scale of the fraud,

which is at a conservative estimate, your Honor, $13 billion,

when you look at the duration of the fraud, which is more than

20 years, when you look at the fact that the defendant could

have stopped this fraud and saved the victims’ losses, all of

these facts justify a guideline sentence of 150 years.

And ‘to address briefly some of Mr. Sorkin’s arguments,

despite Mr. Sorkin’s arguments, the defendant here deserves no

leniency and certainly does not deserve a sentence of l2 years’

imprisonment.

Mr. Sorkin tries to argue that the loss amount is

actually going to be less than 13 billion because the trustee

may recover some assets in clawback proceedings. As your Honor

knows, that has nothing to do with the loss amount in this

case. Further, the defendant shouldn’t get any credit for

anything the government or the trustee does after the fraud to

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‘c”

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recover money.

In asking for 12 years, your Honor, the defendant is

asking you to impose a sentence that a defendant would receive

in a garden variety fraud case in this district, a case with

about $20 million of losses and far fewer victims. In imposing

a 12 year sentence in this case, on the facts and circumstances

here, would be profoundly unfair. Not only would it not

reflect the seriousness and the scope of the defendant’s

crimes, but, also, it would not promote the goals of general

deterrence going forward.

Mr. Sorkin’s argument that the defendant should get

some credit for coming forward and turning himself in is also

entirely meritless. The defendant continued his fraud scheme

until the very end, when he knew the scheme was days away from

collapse, when he was almost out of money and when he was faced

with redemption requests from clients that he knew he could not

meet. And even at that point, rather than turning himself in,

he tried to take the last of his victims’ money. He prepared

$173 million in checks that he planned to give to his family,

his friends, and some preferred clients. It was his final

effort to put his interests above those of his clients, and had

the FBI not arrested him when they did, he might well have

succeeded.

Your Honor, in sum, for running an investment advisory

business that was a complete fraud, for betraying his clients

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1 for decades, and for repeatedly lying to regulators to cover up

2 his fraud, for the staggering harm that he has inflicted on

3 thousands of people, for all of these reasons and all of the

4 reasons your Honor heard so eloquently from the victims, the

5 government respectfully requests that the Court sentence the

6 defendant to 150 years in prison or a substantial term of

7 imprisonment that ensures that he will spend the rest of his

8 life in jail.

9 Thank you.

10 THE COURT: Thank you.

11 I take into account what I have read in the

12 presentence report, the parties’ sentencing submissions, and

13 the e-mails and letters from victims. I take into account what

14 I have heard today. I also consider the statutory factors as

15 well as all the facts and circumstances in the case.

16 In his initial letter on behalf of Mr. Madoff, Mr.

17 Sorkin argues that the unified tone of the victims’ letters

18 suggests a desire for mob vengeance. He also writes that

19 Mr. Madoff seeks neither mercy nor sYmpathy, but justice and

20 objectivity.

21 Despite all the emotion in the air, I do not agree

22 with the suggestion that victims and others are seeking mob

23 vengeance. The fact that many have sounded similar themes does

24 not mean that they are acting together as a mob. I do agree

25 that a just and proportionate sentence must be determined,

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objectively, and without hysteria or undue emotion.

Objectively speaking, the fraud here was staggering.

It spanned more than 20 years. Mr. Madoff argues in his reply

letter that the fraud did not begin until the 1990s. I guess

it’s more that the commingling did not begin until the 1990s,

but it is clear that the fraud began earlier. And even if it

is true that it only started in the 1990s, the fraud exceeded

ten years, still an extraordinarily long period of time. The

fraud reached thousands of victims.

As for the amount of the monetary loss, there appears

to be some disagreement. Mr. Madoff disputes that the loss

amount is $65 billion or even $13 billion. But Mr. Madoff has

now acknowledged, however, that some $170 billion flowed into

his business as a result of his fraudulent scheme. The

presentence report uses a loss amount of $13 billion, but as I

understand it, that number does not include the losses from

moneys invested through the feeder funds. That’s what the PSR

states. Mr. Madoff argues that the $13 billion amount should

be reduced by the amounts that the SIPC trustee may be able to

claw back, but that argument fails. Those clawbacks, if they

happened, will result in others who suffered losses. r-1oreover,

Mr. Madoff told his sons that there were $50 billion in losses.

In any event, by any of these monetary measures, the fraud here

is unprecedented.

Moreover, the offense level of 52 is calculated by

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……

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using a chart for loss amount that only goes up to $400

million. By any of these measures, the loss figure here is

many times that amount. It’s off the chart by many fold.

Moreover, as many of the victims have pointed out,

this is not just a matter of money. The breach of trust was

massive. Investors — individuals, charities, pension funds,

institutional clients — were repeatedly lied to, as they were

told their moneys would be invested in stocks when they were

not. Clients were sent these millions of pages of account

statements that the government just alluded to confirming

trades that were never made, attesting to balances that did not

exist. As the victims’ letters and e-mails demonstrate, as the

statements today demonstrate, investors made important life

decisions based on these fictitious account statements — when

to retire, how to care for elderly parents, whether to buy a

car or sell a house, how to save for their children’s college

tuition. Charitable organizations and pension funds made

important decisions based on false information about fictitious

accounts. Mr. Madoff also repeatedly lied to the SEC and the

regulators, in writing and in sworn testimony, by withholding

material information, by creating false documents to cover up

his scheme.

It is true that Mr. Madoff used much of the money to

pay back investors who asked along the way to withdraw their

accounts. But large sums were also taken by him, for his

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..”"‘~~ .. 1

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1 personal use and the use of his family, friends, and

2 colleagues. The PSR shows, for example, that Mr. Madoff

3 reported adjusted gross income of more than $250 million on his

4 tax returns for the ten year period from 1998 through 2007. On

5 numerous occasions, Mr. Madoff used his firm’s bank accounts

6 which contained customer funds to pay for his personal expenses

7 and those of his family, including, for example, the purchase

8 of a Manhattan apartment for a relative, the acquisition of two

9 yachts, and the acquisition of four country club memberships at

10 a cost of $950,000. Billions of dollars more were paid to

11 individuals who generated investments for Mr. Madoff through

12 these feeder funds.

13 Mr. Madoff argues a number of mitigating factors but

14 they are less than compelling. It is true that he essentially

15 turned himself in and confessed to the FBI. But the fact is

16 that with the turn in the economy, he was not able to keep up

17 with the requests of customers to withdraw their funds, and it

18 is apparent that he knew that he was going to be caught soon.

19 It is true that he consented to the entry of a $100 billion

20 forfeiture order and has cooperated in transferring assets to

21 the government for liquidation for the benefit of victims. But

22 all of this was done only after he was arrested, and there is

23 little that he could have done to fight the forfeiture of these

24 assets. Moreover, the SIPC trustee has advised the Court

25 Mr. Madoff has not been helpful, and I simply do not get the

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sense that Mr. Madoff has done all that he could or told all

that he knows.

Mrs. Madoff has stipulated to the transfer of some $80

dollars in assets to. the government for the benefit of victims,

but the record also shows that as it became clear that

Mr. Madoff’s scheme was unraveling, he made substantial loans

to family members, he transferred some $15 million of firm

funds into his wife’s personal accounts, and he wrote out the

checks that the government has just described.

I have taken into account the sentences imposed in

other financial fraud cases in this district. But, frankly,

none of these other cases is comparable to this case in terms

of the scope, duration and enormity of the fraud, and the

degree of the betrayal.

In terms of mitigating factors in a white-collar fraud

case such as this, I would expect to see letters from family

and friends and colleagues. But not a single letter has been

submitted attesting to Mr. Madoff’s good deeds or good

character or civic or charitable activities. The absence of

such support is telling.

We have heard much about a life expectancy analysis.

Based on this analysis, Mr. Madoff has a life expectancy of 13

years, and he therefore asks for a sentence of 12 years or

alternatively 15 to 20 years. If Mr. Sorkin’s life expectancy

analysis is correct, any sentence above 20 or 25 years would be

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2 But the symbolism is important, for at least three

3 reasons. First, retribution. One of the traditional notions

4 of punishment is that an offender should be punished in

largely, if not entirely, symbolic.

proportion to his blameworthiness. Here, the message must be

sent that Mr. Madoff’s crimes were extraordinarily evil, and

that this kind of irresponsible manipulation of the system is

not merely a bloodless financial crime that takes place just on

paper, but that it is instead, as we have heard, one that takes

a staggering human toll. The symbolism is important because

the message must be sent that in a society governed by the rule

of law, Mr. Madoff will get what he deserves, and that he will

be punished according to his moral culpability.

Second, deterrence. Another important goal of

punishment is deterrence, and the symbolism is important here

because the strongest possible message must be sent to those

who would engage in similar conduct that they will be caught

and that they will be punished to the fullest extent of the

20 Finally, the symbolism is also important for the

law.

22 life. The victims include charities, both large and small, as

23 well as academic institutions, pension funds, and other

24 entities. Mr. Madoff’s very personal betrayal struck at the

25 rich and the not-so-rich, the elderly living on retirement

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1 funds and social security, middle class folks trying to put

2 their kids through college, and ordinary people who worked hard

3 to save their money and who thought they were investing it

4 safely, far themselves and their families.

5 I received letters, and we have heard from, for

6 example, a retired forest worker, a corrections officer, an

7 auto mechanic, a physical therapist, a retired New York City

8 school secretary, who is now 86 years old and widowed, who must

9 deal with the loss of her retirement funds. Their money is

10 gone, leaving only a sense of betrayal.

11 I was particularly struck by one story that I read in

12 the letters. A man invested his family’s life savings with

13 Mr. Madoff. Tragically, he died of a heart attack just two

14 weeks later. The widow eventually went in to see Mr. Madoff.

15 He put his arm around her, as she describes it, and in a kindly

16 manner told her not to worry, the money is safe with me. And

17 so not only did the widow leave the money with him, she

18 eventually deposited more funds with him, her 401(k), her

19 pension funds. Now, all the money is gone. She will have to

20 sell her home, and she will not be able to keep her promise to

21 help her granddaughter pay for college.

22 A substantial sentence will not give the victims back

23 their retirement funds or the moneys they saved to send their

24 children or grandchildren to college. It will not give them

25 back their financial security or the freedom from financial

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1 worry. But more is at stake than money, as we have heard. The

2 victims put their trust in Mr. Madoff. That trust was broken

3 in a way that has left many — victims as well as others –

4 doubting our financial institutions, our financial system, our

5 government’s ability to regulate and protect, and sadly, even

6 themselves.

7 I do not agree that the victims are succumbing to the

8 temptation of mob vengeance. Rather, they are doing what they

9 are supposed to be doing — placing their trust in our system

10 of justice. A substantial sentence, the knowledge that

11 Mr. Madoff has been punished to the fullest extent of the law,

12 may, in some small measure, help these victims in their healing

13 process.

14 Mr. Madoff, please stand.

15 It is the judgment of this Court that the defendant,

16 Bernard L. Madoff, shall be and hereby is sentenced to a term

17 of imprisonment of 150 years, consisting of 20 years on each of

18 Counts 1, 3, 4, 5, 6, and 10, 5 years on each of Counts 2, 8,

19 9, and 11, and 10 years on Count 7, all to run consecutively to

20 each other. As a technical matter, the sentence must be

21 expressed on the judgment in months. 150 years is equivalent

22 to 1,800 months.

23 Although it is academic, for technical reasons, I must

24 also impose supervised release. I impose a term of supervised

25 release of 3 years on each count, all to run concurrently. The

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1 pronounce it as part of the sentence.

2 THE COURT: The forfeiture order is hereby

3 incorporated.

MS. BARONI: Special assessment.

$1,100.

THE DEFENDANT: I did the special assessment of

MS. BARONI: Thank you.

THE COURT: Mr. Madoff, please stand one more time.

Mr. Madoff, you have the right to appeal at least

10 certain aspects of this judgment and conviction. If you wish

11 to appeal, you must do so within ten days. If you cannot

12 afford an attorney, the court will appoint one for you.

13 We are adjourned.

Minnesota Appeals Court Upholds 4.6 Million Dollar Asbestos Verdict

Chris — Wed, 24 Jun 2009 00:39:24 +0000

To read an analysis of this holding in this mesothelioma case please see:

http://www.mesotheliomalegalblog.com/2009/06/minnesota-apellate-court-upholds-4-6-million-dollar-verdict/

Some cookies may literally kill you

Chris — Sun, 21 Jun 2009 15:06:39 +0000

The FDA, CDC and Nestle USA Baking Division is warning consumers to immediately stop consuming Nestlé® TOLL HOUSE® refrigerated cookie dough products due to possible contamination with E. coli bacteria. Since March 2009 CDC and health officials have been investigating a E Coli outbreak occurring over 28 states, with 25 hospitalizations so far.

Injuries to be on the lookout for are the kidney failure (HUS) post confirmed E. coli infection.

Supreme Court Clears the Way for $500 Million Dollar Asbestos Settlement

Chris — Thu, 18 Jun 2009 21:00:26 +0000

In 1982 when Johns Manville declared bankruptcy, a significant percentage of the money used to fund the asbestos bankruptcy trust came from the Travelers Insurance Company. After that time, a number of plaintiffs began to sue Travelers directly alleging Travelers had acted wrongly in its own right by suppressing information concerning the dangers of asbestos and supporting its other insured’s efforts to assert improper and factually incorrect defenses. Thereafter Travelers sought protection from the bankruptcy court arguing that the plaintiffs direct claims against the giant insurance carrier should be enjoined because the Manville bankruptcy plan precluded such claims.

While in the bankruptcy court, the asbestos plaintiffs and Travelers settled their claims for $400,000,000. Other parties challenged the ability of the bankruptcy court to approve and enforce the settlement which also would not allow any more direct action cases against Travelers.

In a relatively narrow opinion, Justice Souter ruled that the basis for challenges against the bankruptcy court’s jurisdiction should have been made long ago. According to the Court “Almost a quarter-century after the 1986 Orders were entered, the time to prune them is over.” The opinion is filled with extensive language concerning laws governing bankruptcy proceedings. This language may be important for companies and insurance carriers involved in bankruptcies resulting from the current economic crisis and will no doubt be carefully studied by the attorneys. The practical effect of the decision is that it will make it far more likely that the asbestos victims will get paid and hopefully in the not too distant future.

You can read the full opinion at http://www.supremecourtus.gov/opinions/08pdf/08-295.pdf