Risk & Compliance

Merrill Lynch Fined $8M Over ADR Trades

"An entity like Merrill may not avoid liability by using another broker to obtain fraudulently issued ADRs on its behalf," the SEC says.
Matthew HellerMarch 25, 2019
Merrill Lynch Fined $8M Over ADR Trades

Merrill Lynch has become the latest bank to be reprimanded by the U.S. Securities and Exchange Commission for improper handling of American Depositary Receipts.

The SEC said Merrill had agreed to pay $8 million to settle allegations that it improperly borrowed “pre-released” ADRs from other brokers when it should have known that those brokers — who had obtained the securities from depositaries — did not own the actual foreign shares represented by the ADRs.

In agreeing to the settlement, Merrill joined JPMorgan Chase, Citibank, Deutsche Bank, and brokers ITG Inc. and Banca IMI Securities Corp. among the financial institutions that have been swept up recently in the SEC’s crackdown on mishandling of pre-released ADRs.

The settlement includes the disgorgement of about $4.4 million in net revenues that JPMorgan generated from transactions with pre-release brokers between June 2012 and November 2014. The bank will also pay $724,000 in prejudgment interest and a $2.89 million penalty.

“We are continuing to hold accountable financial institutions that engaged in abusive ADR practices,” Sanjay Wadhwa, senior associate director of the SEC’s New York regional office, said in a news release. “Our action conveys the message that an entity like Merrill may not avoid liability by using another broker to obtain fraudulently issued ADRs on its behalf.”

According to the SEC, Merrill at one time obtained pre-released ADRs directly from depositaries but discontinued that practice by at least the mid-2000s, choosing instead to obtain ADRs from pre-release brokers, who, in turn, had obtained them from depositaries.

“When borrowing ADRs from pre-release brokers, Merrill securities lending personnel should have recognized the risk that, in effect, Merrill may have been engaging in indirect pre-release transactions in which neither the pre-release brokers nor Merrill could satisfy” the requirement that the ADRS be backed by actual shares, the SEC said in an administrative order.

The commission said the transactions resulted in an inflation of the total number of a foreign issuer’s tradeable securities, “which resulted in abusive practices like inappropriate short selling and dividend arbitrage that should not have been occurring.”