Madoff winners may have to pay back gains

As the story unfolds, winning investors find that even though they took their funds out, they may have to repay some of their gains. That's because of something called "clawbacks." A court could rule that anyone who gained money from Madoff's Ponzi scheme must repay some of the gains even if the person had no idea the gains were fraudulent.

When it comes to a Ponzi scheme, unknowing early investors make their profits because the money from later investors is used to pay those profits. In the New York Times story this morning, the Times reviews the records of one investor who made millions with Madoff, even though he still had several million dollars in his account when the fund collapsed last week. The Times did not reveal his name because he is afraid he could be sought out to repay some of his gains.

Based on previous court rulings involving other frauds, winners have reason to worry. In past scandals they have had to give up some of their gains to even up the losses. Losers are likely to receive just 20 to 40 percent of their original investment. Clawbacks will help in an attempt to repay some of the losses.

Clawbacks could impact investors who received gains over the last six years, but how far back the courts will decide to go will be determined in the future when all the facts are known. Some believe investors could also sue other investors who drew them into this fraud. Whatever happens Madoff-related lawsuits will probably fill the courts for years.

Right now the Times reports only $20 billion of the possible $50 billion in losses have been identified, but more losers are expected to come forward. The $50 billion estimate is the number suggested by Madoff when he confessed to the fraud.

Lita Epstein has written more than 25 books including "Reading Financial Reports for Dummies."