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Investor sues the SEC over Madoff losses

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New York retiree Phyllis Molchatsky lost nearly $2 million in Bernard Madoff's alleged Ponzi scheme -- and she's as mad as hell and not going to take it anymore.

Realizing that suing Mr. Madoff won't lead anywhere, she's trying an innovative strategy: suing the Securities & Exchange Commission, alleging that the SEC was negligent in failing to detect and put a stop to the financial crime in progress. Ms. Molchatsky filed an administrative claim for relief, and if the SEC doesn't respond or negotiate within six months, she will have the option of suing the Commission in federal court.

SEC Chairman Christopher Cox has already admitted that the SEC failed to respond to specific and credible allegations of wrongdoing by Mr. Madoff over the years and said that he was "gravely concerned by the apparent multiple failures over at least a decade to thoroughly investigate these allegations."

Still, experts say it will be an uphill battle to win any damages from the SEC. As Law Professor Gregory Sisk said (subscription required) in The Wall Street Journal, "The government undoubtedly would argue that if liability is imposed here it creates a disincentive for the government to do any regulation in the future."

Of course the SEC screwed up badly here, but that's nothing new. If the SEC were held responsible for losses incurred as a result of its many failures to do its job, the damages would make the $700 billion bailout look like a breakfast buffet at Friendly's.

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Last updated: November 11, 2009: 02:15 PM

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