According to a press release dated December 24, 2008, a class action lawsuit has been filed against defendants Family Management Corporation ("FMC"), Seymour W. Zises ("Zises"), Andrea L. Tessler ("Tessler"), Andover Associates LLC I ("Andover"), Beacon Associates LLC I ("Beacon"), Beacon Associates Management Corp., Beacon/Andover Group, Maxam Absolute Return Fund, LP ("Maxam"), Maxam Capital Management LLC, Fulvio & Associates, LLP, and John Does 1-100 (collectively, the "Defendants"), on behalf of all persons, other than Defendants, who invested in the FM Low Volatility Fund, L.P. (the "Fund") from April 8, 2008 until the present (the "Class Period"), and derivatively on behalf of the nominal defendant, FM Low Volatility Fund, L.P., to recover damages caused by Defendants' violations of the federal securities laws and common law claims, including breach of fiduciary duties.
Specifically, the Complaint asserts that during the Class Period, unbeknownst to investors, Defendant FMC, general partner of the Fund, concentrated more than half of the Fund's investment capital with at least three funds of funds ("FOFs") -- Andover, Beacon and Maxam -- that, in turn, all heavily invested in entities managed by Bernard Madoff ("Madoff") or Madoff-related entities. Investors who entrusted their savings to FMC suffered millions in damages as a result of Madoff's fraudulent scheme.
This Complaint alleges that Defendants failed to perform the necessary due diligence that they were being compensated to perform as investment advisors, managers and fiduciaries. Defendants either knew or should have known that the Fund's assets were employed as part of a massive Ponzi scheme orchestrated by Madoff, or that Madoff otherwise reported purported results that would have been impossible to achieve under his split-strike conversion strategy, and took no steps in a good faith effort to prevent or remedy that situation, proximately causing millions of dollars of losses.
Additionally, Defendants FMC, Zises and Tessler issued an Offering Memorandum that was false and misleading because it falsely stated that FMC would not invest more than 35% of the Fund's net asset value with any one investment vehicle, but, in reality, more than 60% of the Fund's assets were funneled through three FOFs - Defendants Andover, Beacon and Maxam - and invested in Madoff-related entities. The Offering Memorandum also falsely stated that FMC would (i) endeavor to verify the integrity of each manager of a FOF in which the Fund was invested; (ii) attempt to monitor the performance of each manager; and (iii) request detailed information regarding the historical performance and investment strategy of each of the selected investments for the Fund. Plaintiffs allege that Defendants, with no or inadequate due diligence or oversight, abdicated their responsibilities and entrusted the Fund's assets to Madoff-run investment vehicles. Plaintiffs have alleged claims on behalf of the class for violations of Sections 10(b) and 20(a) of the Exchange Act, Rule 10b-5, as well as common law fraud, negligent misrepresentation and breach of fiduciary duty claims. Plaintiffs are also suing derivatively on behalf of the Fund for breach of fiduciary duty, gross negligence and mismanagement, and common law fraud.
On May 04, 2009, a First Amended Class Action And Derivative Complaint was filed by the plaintiff against the defendants.
On December 16, 2009, a second amended complaint was filed by the plaintiffs against the defendants in this action.
On October 20, 2010, the Court granted the Defendants' motion to dismiss this case in its entirety.
The plaintiff filed a motion to alter the judgment, which was denied on February 2, 2011. On February 16, 2011, the plaintiff filed a Notice of Appeal as to the October Order and Judgment dismissing the action. The appeal is currently pending in the Second Circuit Court of Appeals.
On August 7, 2013, the court affirmed the district court's decision to dismiss the plaintiff's appeal based on a failure to state a claim.