The Crackdown on Stock-Loan Schemes
A criminal probe by the feds may reveal some of the mysteries of short sellers
It may not have the cachet of mergers and acquisitions or leveraged buyouts, but the little-known business of securities lending is one of Wall Street's most lucrative. Investment banks rake in roughly $10 billion a year on the fees they collect for lending stocks and bonds to so-called short sellers—intensely secretive hedge funds and other professional traders who bet on falling prices.
Now a long-running criminal investigation may reveal some of what actually goes on among the traders, Wall Street investment firms, and independent intermediaries who help make the mysterious deals happen. BusinessWeek has learned that federal prosecutors in Brooklyn, N.Y., may be close to charging a number of current and former employees of several Wall Street firms with taking part in a complex kickback scheme that may have collectively cost the financial houses and short sellers millions of dollars in higher and unnecessary fees. Already, at least three people have taken pleas in exchange for cooperating with prosecutors, according to some people close to the nearly 18-month-long probe. Drawing the most scrutiny from investigators are current and former employees at the stock loan desks of Bear Stearns (BSC) and Morgan Stanley (MS), say sources close to the investigation. Former and current employees of Goldman Sachs (GS), Janney Montgomery Scott, Merrill Lynch (MER), and Nomura Securities are also being investigated. Officials at all of the financial firms and a spokesman for Roslynn Mauskopf, U.S. Attorney for the Eastern District of New York, declined to comment.
Sources say authorities from the U.S. Attorney's office are looking into allegations that some employees on the stock loan desks received kickbacks or other improper cash payments from so-called stock-loan finders, independent middlemen who sometimes track down shares for Wall Street firms to lend to investors. It is anticipated that the prosecutors will likely claim that some employees on the stock loan desk unnecessarily referred work to the finders, who did little to justify their fees and only added to the cost of arranging a stock loan.
A Word of Warning
In a classic short sale, a trader borrows shares from an investment firm and sells them. If the stock falls as expected, the short seller can pay back the loan and make a profit by repurchasing the shares at a lower price. When the investment firms don't have enough shares on hand in their inventory, they sometimes seek out independent finders, who work the phones, calling friends, relatives, and buddies at other stock loan desks to make up the difference. This chummy relationship between finders and stock loan employees, say people familiar with the investigation, is what first piqued the interest of prosecutors, who may worry that the finders aren't providing a legitimate service.
This isn't the first time that the business has come under fire. Two years ago the New York Stock Exchange (NYX) issued an advisory opinion, cautioning Wall Street firms about continuing to do business with finders, saying: "We have seen only limited instances where a finder is actually providing services that an effective [in-house] stock loan department could not provide." The NYSE then began cracking down on abuses, fining two firms with paying "unjustified" and "sham" finders' fees to arrange stock loans. But regulators at the NYSE, along with the Securities & Exchange Commission, put much of their investigation on hold as the criminal inquiry into the alleged kickback scheme began heating up.
Michael Bachner, a New York criminal defense attorney who represents two individuals involved in the current investigation, says he's still hoping prosecutors will determine that what they've found amounts to nothing more than regulatory infractions. John Tabacco Jr., chief executive officer of Locatestock.com, a company whose software program helps brokers and hedge funds track down shares of hard-to-borrow stocks that traders are interested in shorting, says that until recently securities lending was "loosely regulated." He says he fears prosecutors "are going too far in pursuit of criminal charges."