The Wilpons test their defense in the pages of the Daily News

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As has become standard practice, the day after the New York Times says something bad about the Wlipons/Madoff case, the New York Daily News has a story — sourced, quite clearly, by Wilpon’s lawyers — endeavoring to counter it.  Today’s story: explaining the Wilpon defense.

And that defense:  “hey, if the Securities and Exchange Commission had no clue that Madoff was a fraudster, how on Earth could the Wilpons be said to have “known or should have known” that things weren’t on the up-and-up?”

And you know what? That defense has some surface appeal.  It’s the SEC’s job to sniff out such frauds. If they can’t do it, why should the Wilpons be expected to?  But here’s my problem with it, provided by Daily News itself:

In attacking the SEC, the Wilpons are echoing the claims in a civil suit brought against the commission in 2009 by Phyllis Molchatsky and Steven Schneider, two alleged Madoff victims who claim the SEC’s “negligence, incompetence, inexperience, inattentiveness and laziness” is to blame for the epic scandal.

“For at least 16 years, the SEC’s failure to follow basic investigative procedures and practices, or even to observe simple common sense, allowed Madoff to perpetuate his scheme, drawing in innumerable new victims who were totally unaware that the government agency sworn to protect them had fallen down on the job,” their suit says.

As lawyers annoyingly say sometimes, that argument proves too much.  It’s one thing to say that the SEC was itself hoodwinked and unable to uncover Madoff’s crimes, which is how a defense attorney unrelated to the Wilpons characterizes the defense in the story.  If that’s the case — if the SEC, using all of its investigative powers and native experience and intelligence hit a dead end — of course the Wilpons shouldn’t have been expected to do better. But it’s another thing altogether to say the SEC didn’t even try and was epically incompetent, and thus the Wilpons should be judged by that standard too.

Indeed, the other side of the accusations in that above quote is that anyone who “was able to observe simple common sense” or anyone who wasn’t “negligent, incompetent, inexperienced, inattentive or lazy” could have figured Maddof’s fraud out. Just because the federal agency charged with looking into Madoff was utterly incompetent doesn’t mean that reasonable, sophisticated investors with better information at their disposal about Bernie Madoff than the SEC had shouldn’t have been expected to do the basic kinds of due diligence the Wilpons are accused of not doing.

Put differently, if the city cop on the corner “fell down on the job,” people on the street aren’t permitted to break the law and can’t point to the face-down cop as a defense when the more attentive county sheriff comes to arrest them.  People still have a duty to act in a reasonable manner and behave the way the law expects them.

I’d have a lot more faith in the Wilpons’ defense if it was the SEC going after them. Because, yeah, it would take a lot of nerve for the SEC to say “you should have done better than us.”  But it’s not the SEC going after the Wilpons. It’s a trustee appointed to represent the interest of people who were wronged by Madoff. His claim isn’t that the Wilpons should have done better than the SEC. It’s that the Wilpons should have done better than the did based on the information they had at their disposal.  As such, pointing at the SEC as their defense doesn’t totally do it for me.

Andrew Miller left Monday’s game due to reaggravation of patella tendinitis

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Indians reliever Andrew Miller lasted only six pitches in Monday night’s appearance against the Red Sox. He walked Mookie Betts on six pitches before being relieved by Dan Otero. Per MLB.com’s Jordan Bastian, Miller reaggravated the patella tendinitis in his right knee.

Miller, 32, missed a couple of weeks earlier this month with patella tendinitis. He was activated last Friday and got two outs in a scoreless appearance against the Royals that night.

Bastian pointed out that Miller’s velocity has been lower than usual. He averaged 92.1 MPH on his fastball on Friday and 90.1 MPH on Monday, well below his normal average around 94 MPH.

The Indians should have more on Miller’s status after Monday’s game or on Tuesday. The lefty is carrying a 1.65 ERA with a 79/16 K/BB ratio in 54 2/3 innings on the season.

Joey Gallo and Matt Bush both experiencing concussion symptoms after colliding on Sunday

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Rangers third baseman Joey Gallo and reliever Matt Bush collided attempting to catch an infield pop-up during Sunday afternoon’s game against the White Sox. Bush was placed on the 10-day disabled list on Monday with an MCL sprain in his right knee. Both he and Gallo are experiencing concussion symptoms, Evan Grant of the Dallas Morning News reports, and Gallo also suffered a nasal fracture. Gallo has not yet been put on the disabled list.

Losing both players is a big loss for the Rangers, who entered Monday’s action just 2.5 games out of the second Wild Card slot.

Gallo, 23, has had a breakout season, batting .205/.329/.561 with 35 home runs, 65 RBI, and 68 runs scored in 410 plate appearances.

Bush, 31, has been solid out of the bullpen, putting up a 3.04 ERA with a 53/18 K/BB ratio in 47 1/3 innings.