LAUTENBERG FOUNDATION, THE et al v. MADOFF

Filing 42

MOTION for Summary Judgment as to Count Three of Plaintiffs Complaint by ELLEN LAUTENBERG, JOSHUA LAUTENBERG, LAUTENBERG FOUNDATION, THE. (Attachments: # 1 Brief, # 2 Statement of Material Facts, # 3 Declaration of Joshua S. Lautenberg, # 4 Declaration of Ellen Lautenberg, # 5 Declaration of Eleanor Rigolosi, # 6 Declaration of Ronald J. Riccio, # 7 Exhibits A-D to Declaration of Ronald J. Riccio, # 8 Exhibits E-G to Declaration of Ronald J. Riccio, # 9 Exhibits H-M to Declaration of Ronald J. Riccio, # 10 Exhibits N-P to Declaration of Ronald J. Riccio, # 11 Exhibits Q-S to Declaration of Ronald J. Riccio, # 12 Exhibits T-W to Declaration of Ronald J. Riccio, # 13 Text of Proposed Order, # 14 Certificate of Service)(GRIFFINGER, MICHAEL)

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MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 1300 Mt. Kemble Avenue, Box 2075 Morristown, New Jersey 07962-2075 [phone] GIBBONS, P.C. One Gateway Center Newark, New Jersey 07102 [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY THE LAUTENBERG FOUNDATION, JOSHUA S. LAUTENBERG and ELLEN LAUTENBERG, Plaintiffs, -againstPETER MADOFF, Defendants. DECLARATION OF RONALD J. RICCIO Civil Action No.: 09-00816 (SRC) (MCA) Document electronically filed.

I, RONALD J. RICCIO, ESQ., an attorney duly admitted to practice law in the Courts of the State of New Jersey and the United States District Court for the District of New Jersey, certify as follows: 1. I am an attorney with the firm McElroy, Deutsch, Mulvaney & Carpenter, LLP,

and am one of the attorneys for Plaintiffs The Lautenberg Foundation, Joshua Lautenberg and Ellen Lautenberg ("Plaintiffs") in the above-captioned matter. I submit this Certification in support of Plaintiffs' motion for summary judgment against Defendant Peter Madoff ("Madoff")

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with respect to Count Three of Plaintiffs' Complaint. I am personally familiar with the facts set forth in this Certification. 2. Attached hereto as Exhibit A is a true and correct copy of the Certificate of

Incorporation of The Frank R. and Lois Lautenberg Foundation, dated December 18, 1967. 3. Attached hereto as Exhibit B is a true and correct copy of the Answer of

Defendant Madoff to Plaintiffs' Complaint, dated October 13, 2009. 4. sales literature. 5. Attached hereto as Exhibit D is a true and correct copy of Bernard L. Madoff Attached hereto as Exhibit C is a true and correct copy of Madoff Securities'

Investment Securities LLC's Uniform Application for Investment Adviser Registration, filed with the SEC on or about January 7, 2008. 6. Attached hereto as Exhibit E is a true and correct copy of the transcript of the

criminal proceedings in the action United States of America v. Bernard L. Madoff, before the Hon. Denny Chin, U.S.D.J. in the United States District Court for the Southern District of New York, dated March 12, 2009. 7. Attached hereto as Exhibit F is a true and correct copy of the transcript of the

criminal proceedings in the action United States of America v. Bernard L. Madoff, before the Hon. Denny Chin, U.S.D.J. in the United States District Court for the Southern District of New York, dated June 29, 2009. 8. Attached hereto as Exhibit G is a true and correct copy of the Complaint filed in

the United States District Court for the Southern District of New York, captioned Securities and

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Exchange Commission v. Bernard L. Madoff, Bernard L. Madoff Investment Securities LLC, dated December 11, 2008. 9. Attached hereto as Exhibit H is a true and correct copy of the article Don't Ask

Don't Tell; Bernie Madoff is so secretive he even asks his investors to keep mum, by Erin E. Arvedlund, published by Barron's, dated May 7, 2001. 10. Attached hereto as Exhibit I is a true and correct copy of the article Madoff Tops

Charts; Skeptics Ask How, by Michael Ocrant, published by MAR/Hedge (RIP), dated May, 2001. 11. Attached hereto as Exhibit J is a true and correct copy of relevant excerpts taken

from the United States Securities and Exchange Commission Office of Investigations Report No. OIG-509, Investigation of Failure of the SEC to Uncover Bernard Madoff's Ponzi Scheme (the "OIG Report"), dated August 31, 2009. A complete copy of the OIG Report is available online at the SEC's website at http://www.sec.gov/news/studies/2009/oig-509.pdf. Moreover, a complete set of the exhibits cited in the OIG Report are available online at the SEC's website at http://www.sec.gov/news/studies/2009/oig-509/oig-509_exhibits.htm. 12. Attached hereto as Exhibit K is a true and correct copy of Exhibit 432 to the OIG

Report, a letter from the SEC to Peter B. Madoff, dated January 6, 2004. 13. Attached hereto as Exhibit L is a true and correct copy of Exhibit 434 to the OIG

Report, a letter from the SEC to Peter B. Madoff, dated February 18, 2004. 14. Attached hereto as Exhibit M is a true and correct copy of Exhibit 422 to the OIG

Report, a letter from the SEC to Peter B. Madoff, dated April 8, 2003.

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15.

Attached hereto as Exhibit N is a true and correct copy of Exhibit 29 to the OIG

Report, the transcript of the proceedings before SEC in the matter of OIG-509, dated April 27, 2009. 16. Attached hereto as Exhibit O is a true and correct copy of Exhibit 7 to the OIG

Report, the transcript of the proceedings before SEC in the matter of OIG-509, dated March 9, 2009. 17. Attached hereto as Exhibit P is a true and correct copy of Exhibit 235 to the OIG

Report, an e-mail from William D. Ostrow to John Nee, dated April 28, 2005. 18. Attached hereto as Exhibit Q is a true and correct copy of Exhibit 245 to the OIG

Report, the SEC's Northeast Regional Office Summary of May 25, 2005 Interview with Bernard Madoff. 19. Attached hereto as Exhibit R is a true and correct copy of Exhibit 292 to the OIG

Report, an e-mail from Doria Bachenheimer to Meaghan Cheung and Simona Suh attaching September 2, 2005 violation-related correspondence concerning Bernard L. Madoff Investment Securities LLC. 20. Attached hereto as Exhibit S is a true and correct copy of Exhibit 535 to the OIG

Report, a memorandum from Office of Compliance Inspections and Examinations ("OCIE") Staff Attorney to Eric Swanson re: examination of Madoff Execution Quality, dated November 10, 2003. 21. Attached hereto as Exhibit T is a true and correct copy of a report from Harry

Markopoulos to the SEC, titled The World's Largest Hedge Fund is a Fraud, dated November 7, 2005.

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22.

Attached hereto as Exhibit U is a true and correct copy of Exhibit 218 to the OIG

Report, an e-mail from John Nee to William D. Ostrow and Peter Lamore attaching NASD Exam Report for Bernard L. Madoff Investment Securities LLC. 23. Attached hereto as Exhibit V is a true and correct copy of excerpts taken from the

Complaint filed in the United States Bankruptcy Court for the Southern District of New York Adversary Proceeding No. 08-01789 by the Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff, dated December 11, 2008. 24. Attached hereto as Exhibit W is a true and correct copy of the transcript of the

deposition of Peter Madoff, dated November 12, 2009.

I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

March 12, 2010 Newark, New Jersey

By: s/Ronald J. Riccio, Esq. Ronald J. Riccio, Esq. MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 1300 Mt. Kemble Avenue, Box 2075 Morristown, New Jersey 07962-2075 [phone]

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