posted
StockGate Shocker: DTCC Stuns With Admission It Interfered With News Media Wednesday, April 13, 2005 1:30:42 AM ET Apr 13, 2005 (financialwire.net ) -- April 13, 2005 (FinancialWire) In yet another stunning development in the StockGate saga that has roiled the financial industry, the Depository Trust & Clearing Corporation, through its outside counsel, Proskauer Rose LLP, has admitted it sent communications that resulted in a newswire’s censorship at Yahoo (YHOO) Finance via Investors Business Daily and MarketWatch, now owned by Dow Jones (DJ) but then partly owned by Viacom’s (VIAB) CBS.
This comes hard on the heels of a seeming cancellation of a Dateline NBC purported expose of the DTCC’s alleged role in a controversial "Stock Borrow Program" that lawsuits say aids and abets, in the same week that DTCC publicly posted a "preemptory" challenge to the legitimacy of "broadcasts." NBC is a unit of General Electric Co. (GE), and its producers denied to FinancialWire that the program was cancelled, saying instead that it has been "postponed."
NBC did not respond to follow-up questions as to when a new air date is intended, or to whether the piece is being reedited due to pressure from the corporation or from outside. Ironically, after FinancialWire’s distribution was curtailed via the Investors Business Daily feed, its publishers joked in an email to the producers that Dateline NBC might be "next."
On February 7, Investors Business Daily asked MarketWatch, then co-owned by Viacom (VIAB) but now owned by Dow Jones (DJ) to shut off its FinancialWire feed that it also re-propogated to Yahoo (YHOO).
An investigation by FinancialWire revealed that the newsfeed was shut down at the request of an official of the DTCC, who had complained to Investors Business Daily that FinancialWire publishes "opinions and not news." FinancialWire learned that this is contained in emails sent by Investors Business Daily to the Dow Jones publication.
Despite the purported efforts by the DTCC, however, FinancialWire has since been provided to another 300 outlets.
In a letter to FinancialWire’s attorney, Marshal Shichtman, Esq., Charles S. Sims, a member of Proskauer Rose LLP contended that his client’s communication "is not actionable, and DTCC was fully privileged to send it under the protections for free speech afforded by New York and federal law."
Sims appeared to be more concerned with Shichtman’s characterization of such interference as "cheap thuggery" and "strong-arm tactics more suitable to organized crime than an SRO," and that he was "appalled" by "any conduct of DTCC."
Sims said that "unlike the opinions stated in DTCC’s correspondence, for example that FinancialWire is not a bona fide news provider, these charges assert, and would be understood as asserting, criminal misconduct."
He added that "DTCC takes the matter with utmost seriousness, and will hold you and your client responsible for any resulting harm. DTCC has a sterling reputation, as you seem to be aware, hard-won through years of responsible business meeting the highest standards of conduct, and it ought not be trifled with by careless, reckless charges such as yours.
"We demand that you cease any further dissemination of those charges, and further demand that you identify any and all distributions and copy us on the retraction of these charges that should be forthcoming from you as well."
Shichtman, contacted at press deadline, said that he may have further comments after legal review, but as to the DTCC’s admittance of media interference and possible First Amendment violations, "I am stupefied."
A major protagonist has sprung up via the National Coalition Against Naked Short Selling, with recent posts at http://bobosrevenge.blogspot.comandhttp://www.ncans.net/sanity1.htm.. It includes an open letter to the DTCC regarding what it perceives to be significant holes in the organization’s recently posted interview.
The sudden cancellation of the "Dateline NBC" expose, scheduled Sunday, April 10, has reminded many of the corporate conflicts in NBC’s previous ownership by Westinghouse that resulted in the infamous cancellation of the "60 Minutes" expose on Big Tobacco after Westinghouse was leaned on by Brown and Williamson, an RJ Reynolds (RJR) unit. That resulted in an award-winning movie, "The Insider," starring Al Pacino and Russell Crowe, and produced by Disney’s (DIS) Touchstone Pictures and distributed by its Buena Vista unit.
The DTCC has been accused by many of acting with impunity, and is hardly a role model for unconflicted governance. Its 21 directors include Bradley Abelow, Managing Director, Goldman Sachs (GS); Jonathan E. Beyman, Chief Information Officer, Lehman Brothers (LEH); and Frank J. Bisignano, Chief Administrative Officer and Senior Executive Vice President, Citigroup / Solomon Smith Barney’s Corporate Investment Bank (C).
The largely unregulated DTC has become something of a defacto Czar presiding over the entire U.S. markets system, wielding more day-to-day influence and control than the SEC, the NASD and NASDAQ combined. Transparency is not of the DTCC’s strong suits. In the past it has stonewalled all requests for full and complete trading records.
The DTCC’s two preferred shareholders are the New York Stock Exchange and the NASD, a regulatory agency that also owns the Nasdaq and until recently, the American Stock Exchange.
Other DTCC board members include Michael C. Bodson, Managing Director, Morgan Stanley (MWD); Gary Bullock, Global Head of Logistics, Infrastructure, UBS Investment Bank (UBS); Stephen P. Casper, Managing Director and Chief Operating Officer, Fischer Francis Trees & Watts, Inc.; Jill M. Considine,Chairman, President & Chief Executive Officer, The Depository Trust & Clearing Corporation (DTCC);
Also, Paul F. Costello, President, Business Services Group, Wachovia Securities (WB); John W. Cummings, Senior Vice President & Head of Global Technology & Services, Merrill Lynch & Co. (MER); Donald F. Donahue, Chief Operating Officer, The Depository Trust & Clearing Corporation (DTCC); Norman Eaker, General Partner, Edward Jones; George Hrabovsky, President, Alliance Global Investors Service; Catherine R. Kinney, President and Co-Chief Operating Officer, New York Stock Exchange; Thomas J. McCrossan, Executive Vice President, State Street Corporation (STT); Eileen K. Murray, Managing Director, Credit Suisse First Boston (CSR); James P. Palermo, Vice Chairman, Mellon Financial Corporation (MEL); Thomas J. Perna, Senior Executive Vice President, Financial Companies Services Sector of The Bank of New York (BNY); Ronald Purpora, Chief Executive Officer, Garban LLC; Douglas Shulman, President, Regulatory Services and Operations, NASD; and Thompson M. Swayne, Executive Vice President, JPMorgan Chase (JPM).
In their comments to the U.S. Securities and Exchange Commission regarding Regulation SHO in January, the 50 state regulators, through their association, the North American Association of Securities Administrators (NASAA) issued what many consider to be a strong warning that if the DTCC is not dealt with in the final regulations, state regulators such as New York State Attorney General Eliot Spitzer may step to the plate.
In what many considered to have been explosive comments, Ralph Lambiase, then-NASAA president and Director of the Connecticut Division of Securities, warned "NASAA urges the Commission to reconsider its stance regarding the role of the Depository Trust and Clearing Corporation (the DTC). As a threshold matter, NASAA believes that the Commission should explicitly prohibit the DTC from lending more shares of a security than it actually holds. The ability of the overall proposed rule would be severely impared unless the Commission undertakes to implement such a prohibition."
Many of the lawsuits believed to have been part of the program allege that the DTCC operates a "stock lending" program that aids and abets illegal naked short selling, and in doing so, admittedly takes in $1.67 million annually.
In a further rare display of transparency, however, while framing it in terms of a small percentage of daily transactions, Thompson has admitted in an interview posted at http://www.dtcc.comthat some $4.9 billion, involving an estimated 20,000 daily transactions remain unresolved "fails to deliver and receive."
"The markets check to see if the amount of fails to deliver is more than 1/2 of 1% of the total outstanding shares in that security," said Thompson.
"If it is, then it goes on a ’Threshold List.’ If it is then on the Threshold List for 13 consecutive settlement days, restrictions on short selling then apply. The "close-out" requirement forces a participant of a registered clearing agency to close out any "fail to deliver" position in a threshold security that has remained for 13 consecutive settlement days by purchasing securities of like kind and quantity. If the participant does not take action to close out the open fail to deliver position, the participant is prohibited from making further short sales in that security without first borrowing or arranging to borrow the security. Even market makers are not exempt from this requirement."
In his questioning of SEC Chair Donaldson, Senator Robert Bennett (R-Utah) suggested, however, that a loophole in the regulation allows market makers to "pass along" these "fails to deliver" from one to the other, leaving them "unclosed out" indefinitely. A video of that exchange is posted at http://www.investrendinformation.comWhilein the overall scheme of the U.S. markets system, the fails to deliver of that magnitude may "seem" insignificant, it actually represents the entire market caps of upwards of 500 smaller public companies every trading day, which if victimized in this admitted fashion, can find their survivals and the safety of the entire investments of their shareholders questionable indeed.
This comes hard on the heels of an ad in the New York Times (NYT) from The Washington Legal Foundation, located at http://www.wlf.org,which has considerable clout in the Bush administration, with ten of its board members now serving in various capacities, including three, headed by U.S. Attorney General John Ashcroft, in the Bush cabinet. Its "In All Fairness" advertorial, "What’s Up With The SEC?" may be seen at http://www.wlf.org/upload/032805IAFSEC.pdfTheadvertorial alleges that class action lawyers are colluding with short sellers "right under the noses of SEC investigators," whose abuses cause "investors, employees, pensioners and companies" to "lose millions of dollars in stock value each year."
The WLF said that the SEC has been "sitting on several complaints of misconduct" that it and the U.S. Chamber of Commerce have filed that detail "examples of questionable stock manipulation by short sellers and class action attorneys."
The group says that the SEC is "looking the other way while class action attorneys enjoy a free-for-all, reaping millions in windfall fees to the detriment of shareholders," and asks "why isn’t the SEC taking legal and regulatory action to prevent stock manipulation and to protect investors from the looting by plaintiffs’ lawyers? Shouldn’t there be rules and oversight to deter these trial lawyer abuses?"
For up-to-the-minute news, features and links click on
FinancialWire is an independent, proprietary news service of Investrend Information, a division of Investrend Communications, Inc. It is not a press release service and receives no compensation for its news or opinions. Other divisions of Investrend, however, provide shareholder empowerment platforms such as forums, independent research and webcasting. For more information or to receive the FirstAlert daily summary of news, commentary, research reports, webcasts, events and conference calls, click on http://www.investrend.com/contact.aspTheFinancialWire NewsFeed is now available in multiple formats to your site or desktop, free. Click on: " target=new>http://www.investrend.com/XmlFeeds?level=268
(C) 2005 financialwire.net, Inc. All rights reserved.
UBBFriend: Email this page to someone!
Printer-friendly view of this topic
