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Finance and Economics;Short-selling litigation;An enlightening mistake;

Defence lawyers reveal more than they meant to in a closely watched legal case;

A rare slip-up by lawyers has helped shed some light on a high-profile legal battle, the details of which some of the largest Wall Street firms have been fighting to keep under wraps. The case concerns allegations of illegal “naked” short selling, where the rules have been tightened several times over the past seven years.


In 2007 Overstock sued 11 brokers, alleging that they had caused its share price to fall by helping their clients to naked-short the Utah-based retailer. In a normal short sale, shares are borrowed (or at least “located”) with a broker’s help before being sold. In the naked version, there is no attempt to borrow or locate the stock. This can create “fails to deliver”, where the trade is not settled when it should be, and messes with the laws of supply and demand, allowing shorting to take place beyond the natural limits set by the number of borrowable shares.


As the pre-trial discovery period proceeded, Overstock narrowed its focus to two firms, Goldman Sachs and Merrill Lynch, now part of Bank of America. Before the case was set to go to trial in California, however, the judge dismissed it on jurisdictional grounds, ruling that not enough of the alleged wrongdoing had taken place in the state. Overstock appealed and pushed for all of the evidence to be unsealed. The defendants objected. Four media groups, including The Economist, opposed a motion to seal on public-interest grounds. The judge decided that some of the documents should be released but stayed his ruling, pending appeal.


That was how things stood until May 11th, when the defendants’ lawyers served the other parties in the case with their opposition to a plaintiff’s motion. Inadvertently included in this was an unredacted version of an earlier filing by Overstock containing excerpts of e-mails from Goldman and Merrill employees.


In these they discuss deliberately failing to settle client trades. One Merrill executive suggests the firm “might want to consider allowing…customers to fail,” to which a colleague replies: “We are going to look into that.” Another asks: “How and when can we prevent the delivery [of shares]?” To a question from a large client about efforts at “cleaning up” fails, a Goldman man says that “we will let you fail.” Compliance officers questioned this behaviour, according to the filing. One at Merrill is quoted calling it “totally unacceptable—we are failing when we have over a million shares of stock available.”

在这些(邮件)当中他们慎重讨论了客户交易无法完成一事。一位美林高层建议公司“也许想要考虑让客户(交易)失败,”一位同事则回复到:“我们将对此进行研究。”另一位问道:“我们能够何时、用怎样的方式防止股票交割?”针对一个由大客户提出的关于努力澄清(交易)失败的问题,一位高盛员工说道“我们将会让你(的股票交割)失败。”文件显示,合规性监察官员质疑这一行为。一位美林(监察员)被引述曾称此事 “绝对无法接受——我们手上有超过一百万股股票,但却不予交割。”

The e-mails also suggest close commercial links between the two firms and at least one trading outfit that was a target of regulatory probes into shorting violations, SBA Trading. A Merrill employee forwards a sanctions order against SBA’s Scott Arenstein to a counterpart at Goldman, referring to Mr Arenstein as “our boy” and asking: “You think there will be any fallout on clearing firms?” In another e-mail, the deputy head of Goldman’s securities-lending group describes Mr Arenstein as being “the other side of a lot of our activity.”

电子邮件中同样暗示了存在于两家公司之间紧密的商业联系,以及至少一家受法规限制的交易机构——SBA交易正在探索违规卖空。一位美林员工向高盛的同行发出了对SBA的Scott Arenstein的批准命令,提及Arenstein先生是“我们的人”并质问“你以为清算公司还会有任何附带后果吗?”在另一封电子邮件中,高盛的证券借贷部副总把Arenstein先生描述为是“我们许多业务的对应方。”

Other missives suggest a cavalier attitude to the rules. The president of one of Merrill’s stock-clearing businesses responds to internal concerns about failed trades thus: “Fuck the compliance area—procedures, schmecedures.” He later assured the court that this statement was a joke, according to the filing.


Goldman and Merrill deny that they participated in unlawful naked shorting. Their supporters argue that the legal action brought by Overstock is a crude tactic by its mercurial boss, Patrick Byrne, to divert attention from its long history of underperformance. Some question the link between failed trades and naked shorting.

高盛和美林否认他们参与了非法的裸卖空。他们的支持者辩护说这起由Overstock挑起的官司是该公司狡猾多端的老板Patrick Byrne的一个粗糙战术,旨在将注意力从该公司长期的欠佳表现转移开来。一些人质疑在交易失败与裸卖空之间的联系。

Nevertheless, the release of the e-mail excerpts will have done the brokers no favours. They suggest that trades were being intentionally failed; that some of the firms’ internal policemen were unhappy with the explanations they received for the proliferation of fails; and that at least one executive had an unusual attitude towards compliance. The e-mails are just a small part of the material unearthed during the four-year discovery process. If the court of appeal unstays the partial unsealing order, there will be much more to pore over.


重点单词   查看全部解释    
settle ['setl]


v. 安顿,解决,定居
n. 有背的长凳

illegal [i'li:gəl]


adj. 不合法的,非法的
n. 非法移民

deputy ['depjuti]


adj. 代理的,副的
n. 代表,副手

broker ['brəukə]


n. 经纪人
vt. 安排,协商(协议的细节,

unusual [ʌn'ju:ʒuəl]


adj. 不平常的,异常的

unlawful ['ʌn'lɔ:ful]


adj. 非法的,私生的

nevertheless [.nevəðə'les]


adv. 仍然,不过
conj. 然而,不过

commercial [kə'mə:ʃəl]


adj. 商业的
n. 商业广告

delivery [di'livəri]


n. 递送,交付,分娩

partial ['pɑ:ʃəl]


adj. 部分的,偏袒的,偏爱的
n. 泛音


关键字: 经济学人 启发 失误



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