A Risk Once Unthinkable; Are customer accounts at brokerage firms safe? (HINT: No) (New York Times)

A Risk Once Unthinkable

By JAMES B. STEWART

Are customer accounts at brokerage firms safe?

Until the collapse of MF Global, that's a question I thought I'd never have to ask.

Brokerage firms are required by law to maintain segregated accounts holding all client assets, including stocks, bonds, mutual funds, money market funds and cash. The law was passed after the 1929 crash, in the depths of the Depression, to make sure that customer assets were there at all times, ready to be disbursed even if everyone asked for their money at once.

This obligation to protect customer assets "is considered sacrosanct," Robert Cook, director of the division of trading and markets at the Securities and Exchange Commission, told me this week. "It's considered a sacred obligation."

Lehman Brothers may have engaged in many foolhardy practices, but even in the firm's last days, when officials were desperate for cash, no one dared touch customer assets, which remained safely segregated despite the firm's collapse.

And then came the revelation that an estimated $1.2 billion in customer assets had vanished at MF Global, the large brokerage and futures trading firm headed by Jon S. Corzine, the former Goldman Sachs executive and Democratic politician, that collapsed in late October after a catastrophic bet on European sovereign debt.

How could such a thing happen? I had always assumed it was impossible and that strict internal controls existed at all brokerage firms so that firm officials couldn't tap segregated customer funds even if they were willing to break the law. Thanks to MF Global, it's now apparent that isn't necessarily true. "If people are determined to misuse customer funds, they will misuse them," said Ananda Radhakrishnan, the director of the division of clearing and risk at the Commodities Futures Trading Commission.

That's because the commodities and securities industry is mostly self-regulating, and self-regulation ultimately depends on the integrity of the regulated. Broker-dealers — securities firms that execute trades of stocks, bonds and other assets for customers — are overseen by the S.E.C., while futures commission merchants, which trade commodities, derivatives and futures, are regulated by the C.F.T.C. Like most large brokerage firms, MF Global was both a broker-dealer and a futures commission merchant, though its primary business was commodities futures trading.

The federal regulators issue and enforce the rules, but day-to-day oversight for securities firms is delegated to the Chicago Board Options Exchange, a for-profit company, and the Financial Industry Regulatory Authority, or Finra, a nonprofit organization financed by the brokerage industry. For commodity dealers, it's the National Futures Association and the Chicago Mercantile Exchange. They conduct periodic examinations and audits and, in addition, member firms are required to have internal controls and compliance mechanisms to make sure that customer assets remain safely segregated at all times.

Typically, this requires transfers from segregated accounts (other than at the customer's request) to be approved by multiple officials, including in many cases, the firm's chief financial officer and chief compliance officer.

"It's not a low-level functionary," a regulator said. "It's someone who has real standing. Most customer assets are held at the biggest firms and they have scores of people involved in this process."

Susan Thomson, a spokeswoman for Merrill Lynch, the nation's largest brokerage firm, said that any transfer from segregated accounts there required "at least three checks and possibly more." Officials from operations, regulatory reporting and collateral are usually involved and sometimes compliance officials, as well. "There are multiple streams of responsibility. You have management accountability in each of those streams on a daily basis," she said.

MF Global also had internal controls and a chief compliance officer, which raises the question: How did the customer assets ever leave the segregated accounts to begin with? In testimony on Capitol Hill on Thursday, Mr. Corzine only added to the mystery. He said that transferring customer funds was "a complex process" and, asked who could execute such a transfer, said "I wouldn't know probably who that person is."

While Mr. Corzine said he had "no intention" of authorizing any transfer of segregated funds and "didn't intend to break any rules," he left open the possibility that someone might have thought he did. Others at MF Global surely know. A spokeswoman for MF Global Holdings, the holding company for the broker-dealer, said "there was an approval process" for moving segregated funds, but said she was unable to provide more details.

There are legitimate reasons to move assets from segregated accounts, the most common being that they are overfunded. Commodities firms are required to reconcile customer assets with the amounts in segregated accounts every day, and must report any shortfall to the C.F.T.C.

For securities firms, the requirement is only once a week, but many firms do it every day. They are required to report shortfalls to Finra. If there's an excess (many firms deliberately overfund the segregated accounts to make sure there is never an inadvertent shortfall), they can transfer the excess funds. But that usually requires high-level approval from someone like the chief financial officer, and then the transfer can't exceed the amount of the excess. So that wouldn't explain the missing $1.2 billion at MF Global.

The law also allows commodities firms like MF Global to use segregated customer funds as a source of low-cost financing for their own operations, but they are required to replace any customer assets taken from segregated accounts with supposedly ultrasafe collateral of the same value, typically United States Treasuries, municipal obligations and obligations whose payments of principal and interest are guaranteed by the government.

This week, the C.F.T.C. issued new rules restricting how client assets can be invested, which had grown under C.F.T.C. interpretations to include sovereign debt and transactions known as "in-house repos," or repurchase agreements, in which a firm contracts with itself to use customer assets as, in effect, interest-free loans to finance its inventory of Treasury bonds. MF Global was apparently a heavy user of in-house repos, and before his firm collapsed, Mr. Corzine had argued strenuously against the C.F.T.C.'s proposal to ban them.

Making bad bets on European sovereign debt — like making bad bets on United States mortgage-backed securities — isn't a crime, but improperly transferring segregated customer assets is a potential criminal violation of the securities laws and a relatively straightforward one at that. (The United States attorney's office in Manhattan is in the early stages of investigating the removal of customer assets from MF Global.)

I spoke this week to several people involved in the MF Global investigation. No one has reached any firm conclusions about how the assets were transferred, but possible innocent explanations have dwindled to almost none. And James B. Kobak Jr., a lawyer for the MF Global trustee, said in court on Friday that there were "suspicious" trades made from customer accounts. If that's the case, there may have been a deliberate and concerted effort to override MF Global's internal controls to gain access to segregated customer assets, and if that can be proved, those responsible should be prosecuted and, if convicted, go to jail.

Unfortunately for MF Global's customers — and future victims of similar crimes, if that's what it turns out to be — there's no easy remedy and it will most likely be months or even years before they recover their money. The Securities and Investor Protection Corporation explicitly warns that it's "not uncommon for delays to take place when the troubled brokerage firm or its principals were involved in fraud."

SIPC will replace up to $500,000 of securities and cash (but not futures contracts) missing from customer accounts at member firms. A measure of the magnitude of the problem is that since its creation in 1970, SIPC has advanced $1.6 billion to make possible the recovery of $109.3 billion in assets for an estimated 739,000 investors (through the end of 2010).

Meanwhile, the C.F.T.C.'s enforcement capabilities, like the S.E.C.'s, have been starved for lack of funding. "Our funding has declined to such an extent that three to four years ago, just as the industry was taking off, we had less than 500 employees," Mr. Radhakrishnan said. But even with more resources, "We can't be at every firm overseeing every activity. We have to expect people to understand the rules and adhere to them."