Bank of America, Goldman, JPMorgan, Credit Suisse, Others Face Stock Lending Antitrust Suit

by Ike Obudulu Posted on September 28th, 2018

New York City, USA : A U.S. judge on Thursday ordered Goldman Sachs, JPMorgan Chase Bank, Bank of America Corp, Credit Suisse Group AG, Morgan Stanley and UBS Group AG and other large banks to face an antitrust lawsuit by investors who said they conspired to stifle competition in the nearly $2 trillion stock lending market.

The banks are accused of conspiring to boycott new market entrants to maintain their monopoly grip as prime broker intermediaries and hold onto billions of dollars in revenue – conspiring to prevent the “antiquated” stock loan market from evolving into a transparent electronic exchange.

U.S. District Judge Katherine Polk Failla in Manhattan rejected the banks’ arguments that the investors, led by several pension funds, made implausible allegations and sued too late, and that the defendants’ activity was reasonable.

“While it remains to be seen whether plaintiffs’ factual allegations will be borne out in discovery, the court is not permitted to dismiss them at this early stage of the litigation,” U.S. District Judge Katherine Polk Failla wrote.

The plaintiffs accused units of Goldman, JPMorgan, Bank of America Corp (BAC.N), Credit Suisse Group AG (CSGN.S), Morgan Stanley (MS.N) and UBS Group AG (UBSG.S) of conspiring since 2009 to keep the stock lending market “in the stone age” by boycotting the startup platforms AQS, Data Explorers and SL-x.

They said the banks did this by using their positions on the board of co-defendant EquiLend LLC to co-opt that company as a vehicle to maintain monopoly control over the market and, as a result, charge excessive fees to investors.

The banks countered that the plaintiffs merely alleged that “continuing to execute stock loans under existing standards and rules” somehow amounted to an illegal conspiracy.

But in her 93-page decision, Failla found sufficient “direct evidence” from the plaintiffs to suggest an illegal conspiracy and let them continue their proposed class-action case.

“This dispute boils down to whether the allegations concern conduct by EquiLend alone, or conduct undertaken by the prime broker defendants using EquiLend,” Failla wrote. “The amended complaint adequately pleads that defendants’ concerted actions amounted to an unreasonable restraint on trade.”

Michael Eisenkraft, a lawyer for the plaintiffs, said in an email: “We are pleased with the judge’s ruling and look forward to prosecuting the case.”

The banks have four weeks to formally answer the complaint by the Iowa Public Employees’ Retirement System; California’s Los Angeles County Employees Retirement Association, Orange County Employees Retirement System and Sonoma County Employees’ Retirement Association; and Torus Capital LLC.

The case is Iowa Public Employees’ Retirement System v. Merrill Lynch, Pierce, Fenner & Smith Inc et al, U.S. District Court, Southern District of New York, No. 17-06221.

Securities lending

Securities lending is important to short selling, when an investor borrows securities in order to immediately sell them. Institutional investors with large holdings of stocks profit by lending them out, while borrowers aim to profit by buying the security later at a lower price.

Securities lending is a common strategy used by institutional and sophisticated investors to generate additional income in their portfolios. Securities lending is when an individual or institutional investor (the lender) temporarily loans securities to a financial institution, such as a brokerage firm, bank or hedge fund (the borrower). The loan is usually facilitated by an intermediary, known as the lending agent or clearing broker. All parties enter into a loan agreement that covers the terms of the loan, how the lender is paid, how the revenue will be shared as well as other provisions that should be considered before entering into such an agreement.

The loan agreement provides an overview of the terms and conditions related to the securities lending borrow-and-loan transaction as well as the remedy due to the borrower and lender in the event of a default. The agreements also cover the type of securities that can be loaned, which may include U.S. and foreign stocks, corporate bonds and government debt and may specify that the securities are “fully paid for,” meaning that they are owned outright by the investor, and there is no margin held by the clearing broker.

There are many reasons a financial institution may want to borrow securities, but generally it is done to support a trading strategy, cover short sales or satisfy customer possession and control requirements. Most borrowers seek securities that are considered “hard to borrow,” meaning they are difficult or unavailable to borrow due to limited supply. Can investors sell loaned shares?

Most securities lending programs allow investors who lend their shares to continue to trade as usual and sell them at any time without prior notice.

While investors do not receive dividend payments directly on the securities that are borrowed, securities lending programs traditionally offer substitute payments for dividends. However, investors may lose proxy voting rights on shares that are out on loan.

The borrower provides collateral for the loan—usually cash—to protect the lender in the event of the borrower’s default. To protect investors, cash is usually deposited on their behalf into a special reserve account protected by the Securities Investor Protection Corporation (SIPC®). However, you should consult the loan agreement for specific information.

Securities lending provides a relatively easy way to gain incremental revenue on an existing portfolio. The borrower pays a loan fee for the securities that are borrowed. The lender receives the majority of the loan fee, and the remaining portion of the loan fee is shared with the lending agent or clearing broker and often the borrower’s broker-dealer. This fee will fluctuate based on market demand and securities will only be borrowed for a purpose (a loan or delivery need). Some lending agents or clearing brokers may also pay the lender a portion of the interest earned on the cash collateral in the account.

Securities lending is not appropriate for all investors. Reclassification of dividend income from loaned securities may cause tax ramifications, and proxy voting rights on these securities are forfeited. In addition, loaned securities are not protected by SIPC. Enrollment in a securities lending program does not guarantee that securities will actually be borrowed. Investors are encouraged to consult their tax advisor before participating in a securities lending program.

The main benefit of securities lending for investors is that it can help them to potentially generate additional income on securities they already own. There is also no cost to participate in these programs, and the investor does not usually have to do anything beyond sign the initial loan agreement. If securities are borrowed, loan fee payments are usually made automatically, often monthly, and investors receive substitute payments for dividends on loaned shares.

Investors should talk to their advisors to see if their firm offers a securities lending program. To participate, investors will need to read and sign a loan agreement. Please keep in mind that most programs have eligibility criteria, such as a minimum asset level that must be in the portfolio to participate in the program.

Please keep in mind that securities lending programs will vary and investors should consult the loan agreement for details.

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