According to the complaint filed May 29, 2009, had the defendants conducted adequate due diligence into Madoff and BMIS, they would have uncovered many of the red flags referred to above. Instead, they simply relied on the reputation of Madoff without conducting an adequate inquiry into his operations, trading strategies and investment returns which remained consistently positive even during bad market conditions.
Defendants acted with gross negligence and violated their duties by failing to perform, or causing to be performed, appropriate due diligence that would have revealed the fraud being operated by Madoff.
Defendants knew, or, in the exercise of due care in discharging their duties, were reckless in not knowing that Madoff was engaged in a massive Ponzi scheme and purporting to achieve results that could not be verified or explained. Nevertheless, the Defendants knowingly and willfully invested in BMIS and Madoff managed investments. The Defendants had fiduciary obligations to protect the assets of the Fund, which they failed to fulfill. Despite their failure to properly conduct due diligence and failing to ensure that assets were properly invested instead of put into a Ponzi scheme, Defendants nevertheless
collected fees from Plaintiff and other investors.
As a direct and proximate result of the wrongful conduct alleged herein, Plaintiff and members of the Class have lost 100% of their investment in the Fund since it was fed into Madoff and BM1S. In addition, plaintiff and members of the Class have lost their share of the management fees, advisory fees and administrative fees that were paid to defendants. In addition, Plaintiff and members the Class lost the opportunity to make different investments and earn real returns on their investments.
On October 26, 2009, an amended class action complaint was filed in this action by the lead plaintiff.
On May 13, 2010, the Court dismissed the claims with prejudice as to the Defendants Swiss Life Holding AG and Nomura Holdings, Inc.