Defendants - S YC 12 2000 R: U. L) 161 Rict Co Urt F - D.N.Y

Case 2:08-cv-05026-ADS-AKT Document 1 Filed 12/12/2008 Page 1 of 28
UNITED STATES DISTRICT COURT
-----__------------------- GV - 08 5 026
EASTERN DISTRICT OF NEW YORK
IRWIN KELLNER, on behalf of himself and on be alf

of all others similarly situated,
CLASS ACTION
Plaintiff, ! COMPLAINT
-against- ^ Civil Action No.
BERNARD L. MADOFF, BERNARD L. MADOFF JURY TRIAL DEMANDED

INVESTMENT SECURITIES LLC, and JOHN DOES
1-100 Consisting of Individuals, Corporations, SPA J TT,FILSD
Partnerships and Entities To Be Determined, ilk Ct.C T`^ S ORST E.
U. L)161 RICT CO URT F . D.N.Y.
Defendants . s YC 12 2000 ^r
O FFICE
Plaintiff Irwin Kellner on behalf of himself and on behalf of ah î rssimiârr y
situated , as and for his complaint against defendants Bernard L. Madoff ("Madoff"),
Bernard L. Madoff Investment Securities LLC ("BMIS") and John Does 1-100 consisting
of individuals, corporation, partnerships and entities to be determined (collectively, along
with Madoff and BMIS, "Defendants"), alleges upon personal knowledge as to himself
and his own acts, and upon information and belief as to all other matters, as follows:
PRELIMINARY STATEMENT
1. This case arises from one ofthe.most damaging Ponzi schemes in the
history of Wall Street and the United States, a massive fraud through which individual
defendant Madoff and his accomplices swindled investors out of monies estimated to
exceed $50 billion. Plaintiff' s claims include fraud based on misrepresentations in
connection. with the sale of securities in violation of the Securities and Exchange Act of
1934, violation of the Racketeer Influenced and Corrupt Organizations. Act, and related
state and common law charges.
2. According to news reports, shortly before his stunning, arrest, defendant
Madoff admitted that BMIS is insolvent and has been for years, and has publicly admitted
that losses from this fraud are at. least $50 billion.
3. Upon information and belief, at all relevant times defendant Madoff s
fraudulent conduct was concealed from plaintiffs - who believed that they were actually
purchasing legitimate securities from an enterprise engaged in lawful business activities.
On the basis of the giant Ponzi scheme that lies at the heart of this case, plaintiffs allege
violations of the securities . laws. and related federal laws , as well as claims of fraud,
fraudulent misrepresentation , negligent misrepresentation , breach of contract, conversion,
unjust enrichment; fraudulent conveyance and breach of fiduciary duty.
JURISDICTION AND VENUE
4. Jurisdiction of this Court is pursuant to § 27 of the Securities Exchange Act.
of 1934 (the "Exchange Act"), 15 U.S.C. § 788 et seq.; the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), 18 U.S.G. § 1961 et. seq.; and § 13:31 of Title 28 of
the U.S. Code. The Court has jurisdiction over the common law claims alleged herein
pursuant to principles of supplemental jurisdiction, 28 U.S.C. § 1367(a).
5. Venue is. proper pursuant to 28 U.S.C. § 13.91(b) because upon information
and belief, individual defendant Bernard L. Madoff resides in the Town ofEast Hampton,
New York. Further, a substantial part of the events giving rise to this claim, including
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solicitation of many individuals who became victims of Defendants' Ponzi scheme,
occurred in the Eastern District of New York.
PARTIES
6. Plaintiff Irwin Kellner is an individual residing at 40 Angler Lane, Port
Washington, New York.
7. Defendant Bernard L . Madoff ("Madoff') is a resident of Suffolk County,
New York, with a residence located in the Town of East Hampton, New York.
8. Madoff is the owner of defendant Bernard L. Madoff Investment Securities
LLC ("BMIS"), a New York Limited Liability Company that maintains its principal place
of business within the district at 885 Third Avenue, New York, New York.
9. John Does "1" through "100" consist of individuals, corporations,
partnerships. and entities to be determined, each of whom is believed to have violated
Plaintiffs' rights; and to have aided, abetted and conspired to violate Plaintiffs' rights;. or
is the successor in interest to one or more of Defendants, the identities of which will be
determined through discovery in this matter.
FACTS
10. Upon information and belief, Madoff is an attorney who founded BMIS in
the early 1960s.
11. Upon information and belief, Madoff is a former Chairman of the board of
directors of the NASDAQ stock market.
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12. Upon information and belief, BMIS is both a broker-dealer and investment
advisor registered with the Securities and Exchange Commission ("SEC"). BMIS
engaged in three different operations, namely investment advisor services, market making
services and proprietary trading.
13. Upon information and belief, Madoff oversees and controls the investment
advisor services at BMIS as well as the overall finances of BMIS.
14. Upon information and belief, the most recent filings by BMIS with the SEC
in January 2008 listed BMIS as having over $17 billion in assets under management.
15. BMIS' website states that it has been "providing quality executions for
broker-dealers, banks and financial institutions since its inception in 1960"; and that
BMIS, "[w]ith more than $700 million in firm capital[,] currently ranks among the top
1% of U.S Securities firms."
16. Upon information and belief, Madoff conducts certain investment advisory
business for clients that is separate from the BMIS' proprietary trading. and market
making. activities.
17. In truth and in fact, unbeknownst to plaintiffs, upon information and belief
at all relevant times, Madoff and BMIS have been conducting a Ponzi-scheme through the
investment advisor services of BMIS, and through their scheme have defrauded investors
out of monies estimated to exceed $50 billion.
18. Upon information and belief, Madoff ran his investment advisor business
from a separate floor in the offices of BMIS, Madoff kept the financial statement for the
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firm under lock and key, and was "cryptic" about the firm's investment advisory business
when discussing the business with other employees of BMIS.
19. Upon information and belief, in or about the first week of December,
Madoff told a senior employee that there had been requests from clients for
approximately $7 billion in redemptions, and that Madoff was struggling to obtain the
liquidity necessary to meet those obligations.
20. Upon information and belief,. on or about December 9, 2008 , Madoff
informed another senior employee that he wanted to pay bonuses to employees of the firm
in December, which was earlier than employee bonuses are usually paid,
21. Upon information and belief, also during December 2008 . in a meeting with
one of his senior employees , Madoff stated that his investment advisory business was a
fraud, that "it's all just one big lie," and that it was "basically,. a giant Ponzi scheme."
22. Upon information and belief, MadofFfurther communicated to his senior
employees that he had for years been paying returns to certain investors out of the
principal received. from other, different, investors. Upon information and belief, Madoff
further stated that the business was insolvent, and that it had been for years, and he
estimated the losses from this fraud to be at least approximately $50 billion.
23. Upon information and belief, on or about December 9, 2008, Madoff also
informed his senior employees that he planned to surrender to the authorities, but before
he did that, he had approximately $2.00-300 million left, and he planned to use that money
to make payments to certain selected employees, family and friends.
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24. The plaintiff class, as defined and alleged further hereinbelow, is believed.
to have lost $50 billion dollars, all as a result of Defendants' knowing deception, through
which members of the plaintiff class were deceived into investing in a fraudulent Ponzi
scheme.
CLASS REPRESENTATIVE CLAIMS
25. Plaintiff Kellner individually entrusted monies to BMIS for investment on
his behalf based upon materially false and misleading information disseminated by
Defendants, to the effect that BMIS was a legitimate enterprise engaged in the lawful
brokerage and sale of investment securities, when in truth BMIS was a fraudulent Ponzi
scheme predicated upon the satisfaction of interest and dividend commitments through
the distribution of investor principal.
26. Plaintiff Kellner first entrusted monies to BMIS in or about December
1958, in the amount of $1,248,838, ostensibly for establishment of an Individual
Retirement Account ("IRX ), to be supervised and controlled by BMIS.
27. At the time plaintiff Kellner first invested funds with BMIS, defendant
Madoff acting through BMIS falsely misrepresented that BMIS was a legitimate
enterprise operating as a lawful broker and dealer, when in truth and in fact BMIS was a
fraudulent Ponzi scheme, which could remain solvent only by paying out interest and
dividend commitments through the distribution of investor principal.
28. Upon information and belief, when defendant Madoff acting through BMIS
misrepresented the nature of BMIS, defendant Madoff did so deliberately and with the
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intention of inducing . plaintiff Kellner to invest monies with BMIS, and so as to conceal
Defendants' Ponzi scheme.
29. Plaintiff Kellner naturally, reasonably, and justifiably relied upon
Defendants' misrepresentations concerning the nature of BMIS, in determining to invest
plaintiff Kellner's monies. with BMIS.
30. Plaintiff Kellner later entrusted additional monies to BMIS in the additional
amount of $1,000,000 in or about April 2000, for establishment of an ordinary investment
account, to be supervised and controlled by BMIS.
31. In determining to invest additional monies in BMIS in April 2000, plaintiff
Kellner again acted based upon false and materially misleading statements, by defendants
Madoffs and BMIS, to the effect that BMIS was a legitimate enterprise engaged in lawful
broker dealer operations.
32. And just as in December 1998, in determining to invest further monies in
April 2000, plaintiff Kellner naturally, reasonably, and justifiably relied upon Defendants'
misrepresentations concerning the nature of BMIS, in determining to make such
investment.
33. At all relevant times, in or about each month between January 1989 and
December 2008, plaintiff Kellner received account statements from BMIS, delivered to
plaintiff Kellner' s home in Port Washington, New York (the "Monthly Account
Statements").
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34. The Monthly Account Statements were delivered to plaintiff Kellner via the
United States. Mail.
35. The Monthly Account Statements contained materially false statements, and
were an integral part of Defendants' overall scheme to defraud, insofar as the Monthly
Account Statements implicitly and explicitly created the false and misleading impression
that BMIS was a legitimate enterprise engaged. in lawful broker dealer operations, and
thus acted to conceal the fact that BMIS in truth and in fact was actually a fraudlent Ponzi
scheme, which could remain solvent only by paying out interest and dividend
commitments through the distribution of investor principal.
36. As a consequence of Defendants ' fraud as alleged here, plaintiff Kellner has
been damaged in an amount to be proven at trial anal. estimated to exceed $3 million.
CLASS ACTION ALLEGATIONS
37. Plaintiffs bring this action pursuant to Rules 23(a) and 23(b)(3) of the
Federal Rules of Civil Procedure on behalf of the following:
a. All persons and entities who purchased securities sold by or through
defendants Madoff or BMIS, or other selling agents affiliated with Madoff or BMIS,
from as early as the formation of BMIS in the 1960's until December 12, 2008 inclusive
(the "Class Period"), excluding Defendants, all officers and directors of Defendants
during the Class Period, the immediate family of the Individual Defendants and any
BMIS subsidiary (the "Class").
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b. Excluded from the Cl ass are : (1) all persons or entities whose claims
against Defendants with respect to securities purchased and invested by that person have
been finally adjudicated, individually or on a class wide basis, in litigation or arbitration,
before any court or arbitration tribunal; and, (2) all persons or entities who have entered
into valid releases with the Defendants covering all of the wrongs alleged in this
Complaint. To the extent that any person has not had all of his claims with respect to
securities purchased and invested in finally adjudicated or finally released, the Class
includes said person(s), but only to the extent of unadjudicated and/or unreleased claims
arising from damages suffered as a result of an investment in any of the Investments.
C. Also excluded from the Class are Defendants, members of the
immediate family of any Defendant, and their legal representatives, heirs, successors or
assigns..
d. The Class satisfies the requirements of Rule 23(a) and 23(b)(3)
Federal Rules of Civil Procedure:
e. Numerosity. During the Class Period, numerous different securities
were sold to thousands. The number of the Class members is estimated to be in the
thousands.
f. Typicality. The losses to the plaintiffs were caused by the same
events and courses of conduct that give rise to the claims of the other members of the
Class.
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g. Common Questions. Among the questions of law and fact common
to the Class are: (a) whether Defendants violated the Securities and Exchange Act of
.
1934, § 788 etseq. of Title 15 of the U.S. Code, (b) whether Defendants violated RICO,
§ 1962(a), 1962(c) and .1962(d), (c) whether Defendants fraudulently concealed the
corrupt practices outlined in this Complaint from the Class, (d) whether Defendants have
breached their fiduciary duties to the Class, (e) whether Defendants are liable. for common
law fraud for misrepresentations made to the Class, (f} whether the Defendants engaged
in a pattern or practice to tout their securities, regardless of the suitability of such
investments, including whether such investment caused over-concentration in the
portfolios of Plaintiffs and the Class, (f) whether Defendants conspired. to commit any of
the wrongs and violations alleged in this Complaint, and (g) whether the members of the
Class have sustained damages as a result of Defendants' conduct and, if so, the proper
measure of damages.
h. Adequate Representation,. The representative Plaintiff will fairly and
adequately protect the interests of the Class. Plaintiff has retained experienced counsel
qualified in class action litigation that is competent to assert the Class's interests.
i. Superiority. A class action is superior to other available methods for
the fair and efficient adjudication of this controversy. Individual damages to any one
investor may be relatively small, making the expense of non-class litigation prohibitive or
impractical for Class members. Moreover, in light of the disclosures of the SEC
investigation and pending criminal charges, additional lawsuits are likely to be filed. An
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overall resolution, fairly apportioned among all Defendants, is preferable to the result of
inconsistent litigations dealing with individual investors.
FIRST CLAIM FOR RELIEF

(RICO 1S U.S.C. 1962) .
38. Plaintiffs repeat and reallege each and every allegation contained in the
foregoing paragraphs as if set forth fully hereat.
39. Defendants Madoff, BMIS and currently unknown additional individuals
and entities who were parties to. the fraud perpetrated by Defendants are each a "person"
within the meaning of 18 U.S.C. § 1961(3).
40. Defendants Madoff, BMIS and currently unknown additional individuals
and entities and the association-in-fact amongst them constitute "enterprises" within the
meaning of 18 U.S.C. § 1961(4), which are engaged in, or the activities of which affect or
affected, interstate commerce.
41. Upon information and. belief, since at least as early as the 1960's, defendant
Madoff has engaged in an ongoing scheme to defraud the public, profit from the
fraudulent sale of securities , and to intentionally injure Plaintiffs financially.
42. In carrying out this scheme, defendant Madoff operated the affairs of
defendant BMIS and the association-in-fact of Defendants by and through a "pattern of
racketeering activity," within the meaning. of 18 U.S.C. § 1961(1)(B) and (5) and in
violation of 18 U.S.G. § .1962(c), including acts indictable under 18 U.S.C. § 1341,
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commonly known as the "mail fraud statute," 18 U.S.C. § 1343', commonly known as the
"wire fraud statute."
43. Madoff participated in the affairs of the enterprise by performing functions
necessary or helpful to the. enterprise's operation and affairs in raising -millions of dollars
in investment capital from thousands of investors in the offering of the securities,
including through the regular distribution of Monthly Account Statements. The
investment capital was raised through the fraudulent course of conduct described above,
including the acts of racketeering within the meaning of 18 U.S.C. § § 1961(1) (B)
and (D).
44. Defendants engaged in the pattern of racketeering activity described herein
with the knowledge that potential purchasers would be defrauded, that the interstate mails
and wires would be utilized in furtherance of the racketeering enterprises identified
herein, in violation of 18 U.S.C. §§ 1341 and 1343, and with knowledge that such mail
fraud and illegal utilization of the interstate wires was essential to further theirfraudulent
scheme.
45. In violation of 18. U.S.C. § 2,, Madoff aided and abetted the violations of the
RICO statute alleged herein as well as the primary. acts. of mail fraud, wire fraud and
fraud in the offer or sale of securities alleged herein.
46. The described acts of racketeering occurred after the effective date of the
RICO statute and within ten years of each other
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Case 2 : 08-cv-05026 -ADS-AKT Document 1 Filed 12/12/2008 Page 13 of 28
47. As a direct and proximate result of the RICO violations described herein,
Plaintiffs and other members of the Class have been injured in their business and/or
property by reason of losses of substantial portions of the money as a result in the
purchasing of securities marketed by and through Defendants. Plaintiffs and the Class
relied on Madoff s misrepresentations and omissions with respect to the securities
purchased by Plaintiffs and the Class and, but for those misrepresentations :and omissions,
Plaintiffs and the Class would not have purchased the securities.
48. Pursuant to 18 U.S.C. § 1964(c), Plaintiffs and the Class are entitled to
recover treble damages in an amount to. be determined at trial.
SECOND CLAIM FOR RELIEF

Violations of 18 U.S.C. 44 1962(a) and d
50. This claim for relief arises under 18 U.S.C. § 1962(a) and (d) of RICO.
51. Plaintiffs and the Class are "persons " as defined in 18 U.S.C. § 1961(3).
52. Madoff is a "person" as that term is defined in 18. U.S.C. § 1961(3).
53. Each of the securities in which Plaintiffsand the Class were induced to
invest pursuant to the scheme alleged in detail above constituted an enterprise engaged in
interstate commerce within the meaning of 18 U.S.C..§ 1961(4).
54. As more fully alleged above, Madoff has engaged in a pattern of unlawful
acts including, but not limited to, the issuance, transmission through the United States
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mails and filing of false and misleading Monthly Account Statements, sales documents,
reports, releases, financial statements, prospectuses, confirmation letters and telephone
calls and has utilized and directed its agents to utilize materially false and misleading
scripts and descriptions in telephone calls, wire communications and personal
conversations with Plaintiffs and the Class, constituting multiple acts of mail fraud, wire
fraud and fraud in the offer and sale of securities . In violation of 1.8 U .S.C. § 2, Madoff,
together with BMIS and currently unknown additional individuals and entities aided and
abetted violations of the RICO statute as more fully alleged above as well as the primary
acts of mail fraud,. wire fraud and fraud in the offer or sale of securities by Defendants.
The aforementioned activities constitute "racketeering activity" as that term is defined in
18 U.S.C. § 1961 of RICO. Each such act of racketeering activity had similar purposes,
involved the same or similar participants and methods of commission and had similar
results impacting upon similar victims, namely Plaintiffs and the Class, and thus
constituted a "pattern of racketeering activity" as that term is defined in 18 U.S.C.
§ 1961 (5) of RICO.
55. In violation of 18 U . S.C. § 1962(d), Madoff agreed with BMIS and the
currently unknown additional individuals and entities to enter into a conspiracy to derive
and did, in fact, derive substantial proceeds through the above described pattern of
racketeering activity, and conspired to use and invest and, in fact, used or invested such
racketeering proceeds in the operation of the enterprises in which Plaintiffs and the Class
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invested in a manner that wrongfully diluted the ownership interest of Plaintiffs and the
Class and otherwise injured Plaintiffs and the Class as alleged above.
56. Pursuant to 18 U.S.C. § 1964(c), Plaintiffs and the Class are entitled to
recover treble damages in amounts to be determined at trial.
THIRD CLAIM FOR RELIEF

iolations of 10 (b) of the Exchan ge Act and of Rule 10b-5
5.8. As more fully set forth in the factual allegations above, Defendants , through
the use of the mails and the means and instrumentalities of interstate commerce
fraudulently induced Plaintiffs and the Class to purchase investments, being marketed by
Madoff and BMIS through the use of materially false and misleading Monthly Account
Statements, sales materials and oral presentations.
59. Defendants knowingly transmitted to Plaintiffs and the Class and
disseminated, directly and through its agents, materially false and misleading statements,
as more fully described above, describing and recommending the purchase of the
securities purchased. by Plaintiffs and the Class.
60. At the time of the misstatements and omissions described above,
Defendants knew or should have known that such statements were materially false and
misleading and omitted facts required in order to make the statements made, in light of
the circumstances under which they were made, not misleading, but knowingly or
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recklessly made such statements to Plaintiffs and the Class in order to induce them to
purchase the investments.
61. Plaintiffs and the Class reasonably relied upon the information provided to
them and statements made by Madoft BMIS and its agents recommending the purchase
of the securities. At the time of.such investments, Plaintiffs and the Class had no
knowledge that the. information and recommendations provided by Defendants contained
material misstatements and omissions.
62. Plaintiffs and the Class would not have purchased the securities but for the
materially false and misleading information provided to them by Defendants.
63. As a result of their investments , Plaintiffs and the Class have been damaged
and their original investment capital has been substantially depleted.
FOURTH CLAIM FOR RELIEF

(Violations of Section 12 of the Securities Act
65. Defendants sold the securities to Plaintiffs by means of oral and written
communication which contained material misstatements and/or omissions and was
disseminated by use of the means and instruments of transportation or communication in
interstate commerce or of the mails.
66. Plaintiffs and the Class, without knowledge of the falsity of the Defendants'
statements and of the material omissions in the written materials provided by Defendants
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including, but not limited to, Monthly Account Statements and other misrepresentations
made by the Defendants, as described above, and reasonably believing such statements to
be true and complete, purchased investments from Defendants..
67. Plaintiffs and the Class would not have purchased the investments but for
the materially false and misleading information provided to them by Defendants.
68. By virtue of the foregoing, Plaintiffs and the Class have been damaged and
are entitled to damages and other relief for the Defendants' violations of Section 12 of the
Securities Act as alleged herein.
FIFTH CLAIM FOR RELIEF

(Fraud)
70. Plaintiffs and the Class , without knowledge of the falsity of the Defendants'
statements and of the material omissions described above, and believing such statements
to be true and complete, and in reasonable and justifiable reliance upon the statements
and representations made by the Defendants, as previously set forth herein, purchased
investments in reliance upon the truth and completeness of the statements contained in the
written materials including the Monthly Account Statements , and other representations
made by the Defendants . Plaintiffs and the Class would not have purchased their
investments except for their reliance upon the representations made by the Defendants in
offering such investments for sale.
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71. At the time the statements and representations were made by the
Defendants, they were false, the Defendants knew them to be false and they intended to
deceive Plaintiffs and the Class by making such statements and. representations.
72. At the time of the false statements, misrepresentations and omissions, set
forth above, each of the Defendants intended that Class members, including Plaintiffs, act
on the basis of the misrepresentations and omissions contained in the materials and
representations in deciding whether to purchase the investments and Plaintiffs and the
Class members reasonably relied. thereon.. to their detriment in making such decisions.
73. All the wrongful acts of the Defendants set forth herein are incorporated by
reference. Each wrongful act alleged constitutes. a separate injury suffered by Plaintiffs
and the Class.
74. Had Plaintiffs and the Class known of the material facts which the
Defendants wrongfully concealed and misrepresented, and the falsity of the Defendants'
representations, Plaintiffs and the Class would not have made any such purchases.
75. Plaintiffs and the Class , as a result of their purchases and by reason of the
Defendants' wrongful concealments and misrepresentations, have sustained damages,
suffered mental and emotional distress and have lost a substantial part of their respective
investments, together with lost interest and general and incidental damages in an amount
yet to be determined, and to be proven at trial.
76. By reason of the foregoing , the Defendants are jointly and severally liable
to Plaintiffs and the Class members.
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77. In addition , the Defendants ' fraudulent acts were Willful, wanton and aimed
at the public generally. Therefore, Plaintiffs and the Class are entitled to punitive
damages.
SIXTH CLAIM FOR RELIEF

Ne li cot Misrepresentation )
79. The Defendants owed to Plaintiffs and the Class a duty: ( a) to act with
reasonable care in preparing and disseminating the information set forth in written
materials including. the Monthly Account Statements, and other representations relied
upon by Plaintiffs and the Class in deciding to purchase the investments; and (b) to use
reasonable diligence in determining. the accuracy of and preparing the information
contained therein.
80. The Defendants breached their duty to Plaintiffs and the Class by failing to
investigate. confirm, prepare and review with reasonable care the information contained
in the written materials and other representations and by failing to disclose to Plaintiffs
and the Class, among other things, the facts alleged above, and in failing to correct the
misstatements, omissions and inaccuracies contained therein.
81. As a direct, foreseeable and proximate result of this negligence, Plaintiffs
and the Class have sustained damages, suffered mental and emotional distress and have
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lost a substantial part of their respective investments, together with lost interest, general
and incidental damages in an amount yet to be determined, and to be proven at trial.
82. By reason of the foregoing, the Defendants are jointly and severally liable
to Plaintiffs and the Class.
SEVENTH CLAIM FOR RELIEF

(reach of Fiduciary Duty)
83. Plaintiffs repeat. and reallege each. and every allegation contained in the
84. Defendants breached their fiduciary duties to the Plaintiffs and the Class.
85. The duties expressly assumed by the Defendants and owed to. the Plaintiffs
and the Class include, inter alia:
a. The duty to act with reasonable care to ascertain that the information set
forth in the written materials, including the Monthly Account Statements, and other
presentations communicated to and relied upon by Plaintiffs and the Class in deciding to
purchase the Investments was accurate and did not contain misleading statements or
omissions of material facts.
b. The duty to allow individual representatives selling the investments to
act with reasonable care to ascertain. that the investment opportunity presented to
Plaintiffs and the Class was suitable and in accordance with their investment goals and
intentions by providing to such representatives truthful sales information concerning such
investments.
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c. The duty to deal fairly and honestly with Plaintiffs and. the Class.
d. The duty to avoid placing itself, himself or themselves in situations
involving a conflict of interest with Plaintiffs and the members of the Class.
e. The duty to manage the accounts of Plaintiffs and the members of the
Class and to manage and operate the Investments exclusively for the best interest of the
Plaintiffs and the members of the Class.
f. The duty to make recommendations and execute transactions in
accordance with the goals, investment . objectives, permissible degree of risk and
instructions of Plaintiffs and the members of the Class.
86. The Defendants failed to fulfill their fiduciary duties owed to Plaintiffs and
the members of the Class in the following respects:
a. Failing to act with reasonable care to ensure that the information set
forth in the written materials and other presentations communicated to and relied upon by
Plaintiffs and the other members of the Class in deciding to purchase the investments was
accurate and did not contain misleading statements. or omissions of material facts.
b. Failing to act with reasonable care to provide truthful sales information
to representatives agents to ensure that the investment opportunity presented to Plaintiffs
and the Class was suitable and in accordance with their investment goals and intentions.
c. Engaging in transactions which resulted in a conflict of interest between
the Defendants and Plaintiffs and the Class whose financial interests the Defendants had
undertaken to advance, supervise, manage and protect.
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d. Failing to adequately and fully disclose to Plaintiffs and the Class the
full extent and nature of the conflicts of interest in which the Defendants and their
affiliates would be engaging.
e. Profiting and allowing all Defendants and their affiliates to profit at the
expense of Plaintiffs and the Class.
f. Engaging in transactions that were designed to and did result in a profit
to all Defendants and their affiliates at the expense of Plaintiffs and the Class.
87. The acts of the Defendants in breaching their fiduciary obligations owed to
Plaintiffs and the members of the Class show a willful indifference to the rights of
Plaintiffs and the other members of the Class.
88. As a proximate result of the Def'endants' breaches of their fiduciary duties,
Plaintiffs and the other Class members have. sustained damages, suffered mental and
emotional distress, and have lost a substantial part of their respective investments,
together with lost interest and general and incidental damages in an amount yet to be
determined, and to be. Proven at trial.
89. By reason of the-foregoing, the Defendants are jointly and severally liable
to Plaintiffs and the other Class members.
90. In addition, the Defendants' acts were willful and wanton and aimed at the
public generally. Therefore, Plaintiffs and the Class. are entitled to punitive damages.
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EIGHTH CLAIM FOR RELIEF

(Violations of General Business Law 349
92. Defendants' acts and conduct in furtherance of their scheme or artifice
constitute deceptive acts and practices in the conduct of a business or in the furnishing of
a service , within the meaning of section 349 of the New York General. Business Law and,
as such, are unlawful.
93. Upon information and belief, the same acts and conduct used by Defendants
to defraud Plaintiffs have been used. repeatedly and are of a recurring nature.
94. The acts and conduct of Defendants, by which they knowingly fraudulently
represented to potential purchasers the fraudulent nature of the investments that
Defendants were selling to Plaintiffs, affect the public interest.
95. As a result of Defendants unlawful acts and conduct in violation of section
349 of the New York General Business Law, Plaintiffs have been damaged in an amount
to be proven. at trial and now estimated to exceed of $50 billion.
NINTH CLAIM FOR RELIEF

(Violations of General Business Law 350 )
97. The false representations by Defendants concerning the true nature of the
investments being sold by Defendants to Plaintiffs, including those made in the Monthly
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Account Statements, constitute false advertising within the meaning of sections . 350 and
350-a of the New York General Business Law and, as such, are unlawful.
98. As a result. of Defendants' false advertising, Plaintiffs have been injured
within the meaning of section 350-e of the New York General Business Law,. and are
entitled to damages in an amount to be proven at trial and now estimated to exceed $50
billion.
TENTH CLAIM FOR. RELIEF

Conversion
foregoing paragraphs as if set forth. fully hereat.
100. Plaintiffs are the rightful owner of monies paid to the. Defendants for
securities sold under false pretenses.
101. Plaintiffs' interest in these monies is superior to any interest the Defendants
have in these monies.
1.02. In unlawfully taking Plaintiffs' monies and controlling and expending the
funds for their own purposes, Defendants have converted funds belonging to Plaintiffs.
103. Defendants have intentionally exercised dominion and control over such
funds in a manner inconsistent with and. in willful disregard of Plaintiffs" interest.
104. As a result of the conversion , Plaintiffs have. been damaged in an amount to
be determined at trial.
24
105. In converting these monies, Defendants. acted wantonly, willfully, and in
knowing and reckless disregard of the rights of Plaintiffs. Accordingly, an award of
punitive damages is appropriate and in the public interest.
ELEVENTH CLAIM FOR RELIEF

(U njust Enrichment)
106. Plaintiffs repeat. and reallege each and every allegation contained in the
107. Defendants received money or property belonging to or provided by the
Plaintiffs.
108. Defendants benefited from the receipt of the money.
109. Under principles of equity and good conscience, Defendants should be
required to pay back Plaintiffs the amount of the unjust enrichment.
TWELVTH CLAIM FOR RELIEF

(NY Debtor and Creditor Law Section 273
110. Plaintiffs repeat and reallege . each and every allegation contained in the
11 I. Defendants incurred or caused to be incurred obligations without fair
consideration rendering themselves insolvent.
112. These obligations include the various amounts owed to Plaintiffs as a result
of their investments.
113. As a result of the. foregoing, Defendants owe substantial sums to the
Plaintiffs in an amount to be determined at trial.
25
THIRTEENTH CLAIM FOR RELIEF

Debtor and Creditor Law Section 274
foregoing. paragraphs as if set forth fully her-eat.
115. Defendants made conveyances without fair consideration leaving remaining
property to constitute an unreasonably small capital.
116. Such conveyances included various improper payouts to Defendants'
employees , family and friends.
117. Asa result of the foregoing, Defendants owe substantial sums. to the
Plaintiffs, in an amount to be determined at trial.
FOURTEENTH CLAIM FOR RELIEF

Debtor and Creditor Law Section 275)
foregoing . paragraphs as if set forth fully hereat.
119. Defendants made conveyances without fair consideration intending or
believing that they would incur debts beyond their ability to pay as they matured.
employees, family and friends.
121. As a result of the foregoing,. Defendants owe substantial sums to the
26
FIFTEENTH CLAIM FOR RELIEF

(NY Debtor and Creditor Law Section 276
123. Defendants made conveyances and incurred obligations with actual intent to
hinder, delay or defraud either present or future creditors.
employees, family and friends.
125. As a result of the foregoing, Defendants owe substantial sums to the
PLAINTIFFS DEMAND TRIAL BY JURY
WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly
situated, request the following procedural orders and demands judgment against
Defendants, equitable relief and damages, as follows:
An order certifying the proposed class of investors, together with any
necessary or appropriate subclasses, under Federal Rules of Civil Procedure Rule
23 and appointing Plaintiffs and their counsel to represent the Class;
2. Compensatory damages in an amount estimated to exceed $50
billion;
3. Consequential damages in an amount to be determined at trial;
27
4. Treble damages for Defendants ' civil RICO violations of 18 U.S.C.
§§ 1961, et seq.;
5. General damages for all injuries resulting from the negligence, fraud,
breaches of contract and breaches of fiduciary duty committed by the Defendants
in an amount to be ascertained at trial;
6. Disgorgement and restitution of all earnings, profits, compensation
and benefits received by Defendants as a result of their unlawful acts and
practices;
7. Costs and disbursements of the action;
8. Reasonable attorneys' fees; and
9. Such other and further relief as this Court may deem just and proper.
Dated: Uniondale, New York

December 12, 2008
RUS CO SCHEI, P.C.
By:
Mark S. Mulholland
Kimberly B. Malerba
Attorney for Plaintiffs
1425 RexCorp Plaza, East Tower
Uniondale, New York 11556
(516) 663-6600
To: Bernard L. Madoff
Montauk Highway
Montauk, New York 11954
Bernard L. MadoffInvestment Securities LLC

885 Third Avenue
New York, New York. 10022
28
Case 2:08-cv-05026-ADS-AKT Document 1-2 Filed 12/12/2008 Page 1 of 2
mss 44 (Rev. 12107) CIVIL CO RS
The JS.44 civil cover sheet and the information coniai Ia u ;the to ar other.papcrs a3 req. ssiredby law, except as pnavided
by eal rotes vfrntut. This form, approved
sheet- (SEE
dy
theJn tîe t in Sept A'a, is
19 dr a use c`WClerk ofCatut for the purpose of imhatang
the ..Civi I dpcket FNSTRUCTIONS ON '('HF V S^FTHE FO
1. (a) PLAINTIFFS DEFENDANTS BERNARD L. MADpFF Sly AID L. ^p pFF

IRI i ICEI^LNEi±,on behalf of himself and on INVESTMENT S G ITIES LLG, and 7 ^ DOES I:-TO O
Consisting of Individuals, Corporations,
behalf of all others similarly situated
Partnerships and Entities To Be Determined
(b) County ofResidenCc:af First Listed plaintiff Nassau County of "Residence of Eiiyt Listed Dtjferic t
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY.)
NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE
LAND INVOLVED. F ± fw E D
(C) Attorney's (Firth Name, Address. and Teiephoe Nmntcc) Attoineys (tf Known)
Ruskin M.oscou Faltischek, P.C., East Tower, 15th Floor, U.S. D1SI tÌC'CUB ! L} Y
1425 RexCa Plaza, Union dAle, New York 11.556 (516):663-66-00
II. BASIS OF JURISDICTION (PIece au'•X" in Onc oxoajy) III. CITIZENSHIP OF PRINCI.P* PAR Pia a ^' gox tar . atirr
For Diunrsity.Casn Only) and One Box for Defendant}
11 1 U.S: [iovemawat ]al 3 Fedcral.Questidu PTF AEF PTF 13EF
Plaintiff (U.S. Govcrmndnt Nota Par;y) citizen ofnis state ❑ 1 d 1 Incorporated or Principal Place 0 4 0 4
6f ed"&AND OFFICE
© 2 L1.5. Gtlvernment Cl 4 Divcreity Citizen afAn6lher State 17 2 0 2 Incorparacpd pod Principal Place r) 5 Q 5
De&ndant C1 of HusiRear In Another Stara
(Indicate Citizenship of Parties in Item If]) Sp^
h' it it 3 p 3 Fo reign Pfatidn 0 6 ❑ 6
Farei n Coon
IV. NATURE OF SUIT Plzen-X-inOaeBox
❑ 110 Insurance PERSONAL INJURY PERSONAL INJURY 22 28 U Q 400StatcRetppoitiapmen4

0 120 Marine ❑ 3.10 Ai plane r] 362 Personal Injury - ff d al ❑ 410 Antitrust
fJ 130 Miller Act 11 315 Airplane Product Med. Malpractice 62 Drug Rdated Seizure 28 USC 157 ❑ 430 Sank) and Bunking
0 140 Negotiable lawnsawst Liabiliry D 365 Personal Injury - of Property 2l USC 88 i !w3 450 { ununeteir
t7 150 Recovery of Overpayment 13 320 Asaault. Libel & Product Llsbility (7 630 Liquor Laws: C1 460 UeporYatkn
&Warcementofludgmen Slander A 368 AsbesWa PeiSdual ❑ 040 R,IO. &Truc$ Q 620-Copyrights 1. 470 Rocketeer Infuenceds d
0 151 Medicare Act Q 330 Fedora] Employers' Injury Product Cl 650 Airline Regs. ❑ 830 Patent Corrupt Organizwcgse
C] 152 Recovery ofOefaulted Lialiitity L}ability r] 660 Ocoiipatiisaal Q 840 Trademark 0 480 Cs neumer Credit
Student. Loans ❑ '3411 Marine PERSONAL PROPERTY Softly/Hra)ds Q 490 CabkJSat TV
{Excl. Vctcrans).. ❑ 345 Marine Product (3 37* Other Fraud [I 49.0 other O 810.Selective Service.
0 155 (ccnvcry•gfO vepay^nen[ Liatiility t"'1 37I Tnph in Lending 85 0 Secw ities/Co^wditira
of Vctanut's Benefit, Q 350 Motor Veluck Cl 380 Other Personal 0 710 Fair Labor Standards ❑ 961 1-IlA (]39s0) Exchange
O 160 Stackholdess' Suits Q .355 Mater Vehicle Property Damage Act 13862 Black Lung (923) 0 875 Cwtmner o xif ro e
0 190 Other Contract Product Liability Q 385 Property {3rttnge. Cl 720 Labor/Mgnu. Relations C3863 f7IW(JDIW W (403(g)) 12 L1SC3410
Cl 191 Contract Product I lability 0 360 other Personal Product Liability ❑ 736 Ls horlMgetn.Seporting fl854 SEIU Title XVI 0 59t1 Odter Statrstcry Actions
Q 196 Franchise Injury &. Disclosure Act f38651St (465 1) 891 Agrirulmral.Acts
1 Ti - :° ° R1 RUSGEELPI^ Q 740 Railway Labor Act MWW . T -SU8TS 13 892 Esngnrnic SfabilisaiiaR Act
C] 210 I and Condcmnntimt ❑ 441 Voting 510 Motions.to Vacate Cl 7l*.Other Labor Litigation Q 870 Tuxes (U.S. Plaintiff Cl 893 Enrirnamental Matters
0.. 2.20 Foreclosure 0 442 Employment Sentence O 791 E.mpL Pet Inc. or Defendant) 17 894 Energy Allocation. Act
0 230 Rent Lem & Eject-nett l7 443 Uausiag7 Habeas Corpus:. Security Act Q 871 IRS-Third Party Cl $95 Freedom of information
0 240 Tote to Land Accommodations 530 General 26 Li'&C 7609 Act
t] 245 Tort Product Liability 0 444 Welfare p 555 .YDtath Penalty 900Appealôf Fee Deremtination
Cl 290 All Other Real Property ❑ 445 Amer. w/ inabilities - Q 540 Mandamus & Other 13 462 Natund= zetwtt A pp tcauon Under Equal Access
Empleyntent Q 550C" Rights Q 463 Habeas Corpus - to.Iustice
13 446 Amer. w/Oisabdities - 0 555 Prison Condition Alien Detainee ❑ 950 Constitutionality of
Other Q 465 Other Immigration State Statute)
❑ :440 Other Civil Rights Actions
V. ORIGIN (Place on "X" in One Dan Only) A ai tv District

f$ 1 Original 0 2 Removed from 0 3 Remanded frorn 5 Transferred from r] 6 Multidistrict
0 4 Reinstated err [] 1J 7 Ju e ft m
Proceeding State Court Appellate Court Reopened aothar d Litigation ju
magWrate
(s pm i fy) NcImeat
Cite the U.S. Civil Statute under which you are tiling (Dp not cite juri8dktlonal statutes unless diveraky):
10 i1 ..7.1s. V ti= or
Y L S!'C!^
VI. CAUSE OF ACTION Brief
+J y • ^ u •
description of ==ass Action Claims seeking monetary damages material misrepresentations : in n with
the sale or exchange of securities in violation Of federal securities law, R.I.C.O., and state law
VII. REQUESTED IN M CHECK IF THIS IS A CLASS ACTION DEMAND S . CFIECK YES only if dernantled in 4omplaint:
COMPLAINT: UNDER. F.R.C P. 23 $550,.0005 000 1.000 JURY DEMAND: R' Yes O No
VIII. RELATED CASE(S) (sue

dog DOCKET NUMBER
IF ANY JUDGE
12/12(2008
RECEIPT 0 AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 2:08-cv-05026-ADS-AKT Document 1-2 Filed 12/12/2008 Page 2 of 2
ARBITRATION CERTIFICATION
1, Mark S. Mulholland , counsel for Plaintiff do hereby

certify pursuant to the Local Arbitration Rule 83.10 that to the best ofrny knowledge and belief the damages
recoverable. in the. above captioned civil action exceed the sum of $]50,0.00 excIusive. of interest and costs.
Relief other than monetary damages is. sought.
DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1
Identify any parent corporation and any publicly held corporation that owns 10% or more or its.stocks:
None
Please refer to NY-E Division of Business Rule 50.1 ( d)f21
1.) Is the civil action being filed in the Eastern District of New York removed from a New York, State court located
in Nassau. or Suffolk County: No
2.) If you answered "no" above:
a.}. Did the events or omissions. giving rise to the claim or claims, or a.substantial part thereof, occur in Nassau
or Suffolk County? Yes
b.) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the
Eastern District? Yes
If your answer.to question 2 (b) is "No," does the defendant (or a majority of the defendants, if there is. more than
one) reside in Nassau or.Suffolk County, or, in an interpleader action; does the claimant (or a majority of the
claimants, if there is more than one) reside in Nassau or Suffolk County?
(Note: A corporation shall be considered a resident of the County in which it has the most sign ifi cant contacts)-
I am currently admitted in the Eastern District of New York and currently a member in good standing of the
bar of this court.
Yes ,( No
Are you currently the subject of any disciplinary action(s) in this or any other state or federal court?
Yes (If yes, pllease explain) No V
Please provide your E-MAIL Address and bar code below . Your bar code consists of the initials of your first and.last
name and the last four digits of your social security number or any other four digit number registered by the attorney
with the Clerk of Court.
(This information must be provided pursuant to local rule 11.1(b) of the civil rules),
ATTORNEY BAR CODE: MM9649
E-MAIL Address: mmulholland@rmfpc. com
I consent to the use of electronic filing procedures adopted by the Court in Administrative Order No. 97-12, "in re
Electronic Filing . .. M"; and electronic service of all papers.
Signature:

Defendants - S YC 12 2000 R: U. L) 161 Rict Co Urt F - D.N.Y

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Case 2:08-cv-05026-ADS-AKT Document 1 Filed 12/12/2008 Page 1 of 28

UNITED STATES DISTRICT COURT

IRWIN KELLNER, on behalf of himself and on be alf

-against- ^ Civil Action No.

BERNARD L. MADOFF, BERNARD L. MADOFF JURY TRIAL DEMANDED

of individuals, corporation, partnerships and entities to be determined (collectively, along

exceed $50 billion. Plaintiff' s claims include fraud based on misrepresentations in

state and common law charges.

2. According to news reports, shortly before his stunning, arrest, defendant

3. Upon information and belief, at all relevant times defendant Madoff s

purchasing legitimate securities from an enterprise engaged in lawful business activities.

fraudulent misrepresentation , negligent misrepresentation , breach of contract, conversion,

unjust enrichment; fraudulent conveyance and breach of fiduciary duty.

JURISDICTION AND VENUE

4. Jurisdiction of this Court is pursuant to § 27 of the Securities Exchange Act.

pursuant to principles of supplemental jurisdiction, 28 U.S.C. § 1367(a).

5. Venue is. proper pursuant to 28 U.S.C. § 13.91(b) because upon information

solicitation of many individuals who became victims of Defendants' Ponzi scheme,

occurred in the Eastern District of New York.

6. Plaintiff Irwin Kellner is an individual residing at 40 Angler Lane, Port

Washington, New York.

7. Defendant Bernard L . Madoff ("Madoff') is a resident of Suffolk County,

8. Madoff is the owner of defendant Bernard L. Madoff Investment Securities

9. John Does "1" through "100" consist of individuals, corporations,

partnerships. and entities to be determined, each of whom is believed to have violated

determined through discovery in this matter.

the early 1960s.

directors of the NASDAQ stock market.

services and proprietary trading.

advisor services at BMIS as well as the overall finances of BMIS.

1% of U.S Securities firms."

out of monies estimated to exceed $50 billion.

when discussing the business with other employees of BMIS.

liquidity necessary to meet those obligations.

20. Upon information and belief,. on or about December 9, 2008 , Madoff

22. Upon information and belief, MadofFfurther communicated to his senior

to make payments to certain selected employees, family and friends.

CLASS REPRESENTATIVE CLAIMS

25. Plaintiff Kellner individually entrusted monies to BMIS for investment on

the distribution of investor principal.

26. Plaintiff Kellner first entrusted monies to BMIS in or about December

1958, in the amount of $1,248,838, ostensibly for establishment of an Individual

Retirement Account ("IRX ), to be supervised and controlled by BMIS.

dividend commitments through the distribution of investor principal.

Defendants' Ponzi scheme.

29. Plaintiff Kellner naturally, reasonably, and justifiably relied upon

Defendants' misrepresentations concerning the nature of BMIS, in determining to invest

plaintiff Kellner's monies. with BMIS.

amount of $1,000,000 in or about April 2000, for establishment of an ordinary investment

account, to be supervised and controlled by BMIS.

31. In determining to invest additional monies in BMIS in April 2000, plaintiff

broker dealer operations.

32. And just as in December 1998, in determining to invest further monies in

misrepresentations concerning the nature of BMIS, in determining to make such

United States. Mail.

commitments through the distribution of investor principal.

been damaged in an amount to be proven at trial anal. estimated to exceed $3 million.

CLASS ACTION ALLEGATIONS

Federal Rules of Civil Procedure on behalf of the following: