DTCC Applauds Court Decision To Dismiss Nanopierce Lawsuit.
The Nevada court adopted DTCC's argument that DTCC's clearing and settlement functions are subject to the oversight and approval of the U.S. Securities and Exchange Commission (SEC) and therefore, under the U.S. Constitution, cannot be challenged under state law, as Nanopierce sought to do.
As stated by Judge Brent Adams in dismissing the case, "(S)tate law may not be applied as to impose damages on (DTCC). To do this would be to forbid Defendants from doing what the SEC authorized them to do."
Nanopierce had filed the case in May 2004 seeking to hold DTCC responsible for the drop in its stock price, claiming that DTCC's Stock Borrow Program had somehow enabled brokerage firms to engage in "naked short selling" of Nanopierce shares. DTCC responded by demonstrating that its clearing and settling activities are extensively regulated by the federal government and that the specific program challenged by Nanopierce, the Stock Borrow Program, had been approved by the SEC. DTCC demonstrated that Nanopierce's attempt to use state law to forbid DTCC from utilizing this program is barred by an established legal doctrine known as federal preemption. The Nevada court agreed and dismissed the case.
"We are extremely gratified that the court agreed with us that neither DTCC nor its subsidiaries are proper defendants here," said Larry Thompson, DTCC's First Deputy General Counsel. "All of our operations are taken in accord with our SEC-approved rules and subject to strict federal regulatory oversight. The Nevada court agreed with us that plaintiffs like Nanopierce cannot attempt to use the laws of 50 states to challenge DTCC's SEC-approved operations designed to ensure stability and uniformity in clearing and settling the nation's securities transactions."
While focusing its decision on the federal preemption doctrine, the court heard extensive argument and reviewed voluminous documents regarding the Stock Borrow Program and DTCC's clearing and settlement activities.
"Plaintiffs' claims that the Stock Borrow Program results in the manufacture of artificial shares is pure invention," Thompson stated. "Only shares that are actually on deposit in a broker's account can be borrowed. We hope that Judge Adams' decision will be taken to heart and the ill-considered litigation and media campaign against DTCC will come to an end."
The judge's decision to dismiss the case against DTCC follows a series of nine other case that have been dismissed or withdrawn against DTCC.
DTCC is the parent company for the nation's principal clearing and settling firm, National Securities Clearing Corporation (NSCC) and the nation's principal securities depository, The Depository Trust Company (DTC). NSCC is registered with the SEC to record, clear, and settle equity, bond, money market, government, mortgage-backed, insurance, and other security transactions. NSCC's services are utilized by the country's major brokerage firms, the U.S. government, the New York Stock Exchange, NASDAQ, the American Stock Exchange, and other markets. DTC is the nation's principal securities depository. DTCC's subsidiaries are regulated by the SEC, which approves the rules under which they operate.
The Stock Borrow Program was established and approved by the SEC in 1981 to permit NSCC to borrow shares from its members and use the shares to fulfill delivery obligations where selling brokers had failed to deliver their shares. The Program, as the court found, "operates in a automated fashion without the exercise of discretion by NSCC as to whether any particular open transaction should be covered by (the Program)."
The Stock Borrow Program does not in any way release sellers from their legal obligations to complete deliveries. In addition to regulatory and enforcement action, those sellers remain subject to "buy-ins" by brokers from whom shares have been borrowed, as well as other brokers whose purchase orders remain open.
The SEC, the national exchanges and the Nasdaq regulate the activities of broker/dealers engaged in the purchase and sale of securities, including short selling.
|Printer friendly Cite/link Email Feedback|
|Date:||May 3, 2005|
|Previous Article:||Homemade Chalk, Tin-Can Telephones and Eight Other Ways to Help Children ``Grow Slow''.|
|Next Article:||Apogee Begins Phase I Drilling Program at Buena Vista Project.|