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Allocating Loss in Securities Fraud: Time to Adopt a Uniform Rule for the Special Case of Ponzi Schemes

28 Pages Posted: 2 Aug 2011 Last revised: 22 Nov 2016

Grant Christensen

University of North Dakota - School of Law

Date Written: August 1, 2011

Abstract

The Global Financial Crisis precipitated a condensing of capital and a fall in global equities markets that resulted not solely in the necessity of government bailouts of the financial industry but also exposed a number of Ponzi schemes that collectively will cost investors tens of billions of dollars. With a new wave of litigation by innocent investors against Ponzi scheme operators just beginning, and likely to take years, it becomes important to clearly identify the methodologies used to value the loss and allocate existing assets among remaining creditors. To that end I offer this article to argue that courts ought to use a comparatively new approach – the loss to the losing victim methodology originally pioneered in criminal law – to determine how equally innocent victims share the losses these schemes precipitated. By standardizing the calculation of loss to investors in both criminal and civil law, the courts will not only make the determination of loss considerably easier, but also more equitable.

Keywords: ponzi, ponzi scheme, secured transaction, bankruptcy, fraud, loss to the losing victim, net investment, division of loss, equity, creditor, secured creditor

Suggested Citation

Christensen, Grant, Allocating Loss in Securities Fraud: Time to Adopt a Uniform Rule for the Special Case of Ponzi Schemes (August 1, 2011). William & Mary Law Review, Vol. 3, p. 309, 2012. Available at SSRN: https://ssrn.com/abstract=1903554

Grant Christensen (Contact Author)

University of North Dakota - School of Law ( email )

P.O. Box 9003
Grand Forks, ND 58202-9003
United States

HOME PAGE: http://https://law.und.edu/faculty/profile/christensen.cfm

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