On 7th August, Fox Rothschild published a lengthy article that concludes by recommending that those “innocent” institutions caught up in Ponzi schemes, such as those of Bernie Madoff, would be better trying their luck before state than federal courts. It says that Ponzi schemes have spawned thousands of “fraudulent transfer” cases. It says that Anglo-American fraudulent transfer law has a long history dating back 4 centuries to the Statute of 13 Elizabeth, enacted in 1571, and to the first reported fraudulent transfer case, Twyne’s Case, decided in 1601. The article goes on to say that, in an effort to obtain funds for the victims of the Ponzi schemes, bankruptcy trustees and receivers have commenced fraudulent transfer cases to recover payments made by the Ponzi fraudster. It says that many of the defendants had no knowledge of the Ponzi scheme and had innocently loaned money or provided goods and services, and therefore they had done nothing wrong. Nevertheless, most of the defendants lost—at least in federal courts. It says that 2 cases – Finn and The Golf Channel indicate that the transferee-defendant will be more likely to escape the constrictions of the Ponzi scheme presumptions in state court than in federal court.
