Merrill Lynch to Pay Fines
Of $25 Million for Scandal
By PETER A. MCKAY
Dow Jones Newswires
Merrill Lynch & Co. agreed to pay $25 million in fines Wednesday for
its
alleged participation as a financier in the Sumitomo Corp. trading scandal
that pummeled world copper markets in 1996.
Along with $10 million to be paid to the London Metal Exchange, the
Washington-based Commodity Futures Trading Commission will receive
$15 million, which officials believe is the first punishment the 25-year-old
agency has levied against a broker for "aiding and abetting" a client's
improper trading.
The sum is also the largest in LME history, the second-largest fine in
CFTC history and the second-largest Merrill has ever paid in any
disciplinary action. In a statement, Merrill Lynch said it negotiated the
settlements "to bring closure to" the regulatory proceedings and "to avoid
the expense and distraction of protracted litigation."
Merrill Lynch negotiated with the two entities
separately and neither admitted nor denied
wrongdoing in the settlements. However, both
the LME and the CFTC alleged the same
thing -- that Merrill provided financing for trading that it knew to be
bogus.
Sumitomo trader Yasuo Hamanaka, who is now serving a prison term in
Japan for fraud and forgery, lost more than $2.6 billion in unauthorized
trades dating back to 1994.
"By failing to appreciate that its clients were attempting to manipulate
the
market and by failing to pursue the concerns of its representatives,
[Merrill] assisted the attempt and failed to observe high standards of
market conduct," LME Compliance Director Alan Whiting said at a press
conference Wednesday.
When the CFTC first filed its complaint May 20, Merrill Lynch issued a
statement saying the agency's allegations were "without merit" and that
the
company intended to defend itself against them. The CFTC's allegations
covered Merrill's dealings with both Sumitomo and another metals trading
firm, New York-based Global Minerals & Metals Corp.
For its part, Global Minerals maintained a defiant tone Wednesday.
"GMMC strongly disagrees with the LME's statements regarding
GMMC's trading activities, which are factually erroneous," company
attorney Peter Haveles said in a statement following the Merrill Lynch
fine.
Phyllis Cela, the CFTC's acting enforcement director, said she believes
the
Merrill Lynch settlement represents the first time the agency has fined
a
broker for aiding and abetting market manipulation.
The Merrill Lynch fine, which approximates the amount of money it
allegedly gained from the Sumitomo scandal during 1995's fourth quarter,
is most likely the second-largest in the CFTC's 25-year history. Only the
$125 million penalty levied in May of 1998 against Sumitomo itself in the
same scandal was larger, Ms. Cela said.
Although such settlements are legally binding only for the companies
involved, Ms. Cela said the CFTC definitely wanted the Merrill Lynch fine
to send a practical message that commodity brokers should be more
vigilant about their clients' wrongdoing.
"Aiding and abetting is really an ancient concept that's been in the law
for a
long time," she said.
"In that respect, we do hope that market participants take something away
from this, that they see it as something of a deterrent to aiding and
abetting."
Such an expansion of the CFTC's enforcement priorities certainly wouldn't
surprise many commodities industry insiders. Under the three-year
chairmanship of Brooksley Born, which ended in May, the agency's
relationship with brokers and exchanges grew particularly contentious as
it
asserted more authority over issues such as the issuance of new derivatives
products and foreign exchanges' access to American markets.
"There has perhaps been something of a shift in their level of intention
and
their level of aggressiveness, which is being brought to bear here as well,"
John E. Gross, a consultant who publishes the Copper Journal, said of
Wednesday's Merrill Lynch fine. Ms. Born's "approach has definitely been
to widen, rather than narrow, the scope and responsibility of the CFTC."
At the LME Wednesday, Whiting and Lord Bogri, chairman of the
exchange, declined to say whether it was continuing to investigate Global
Minerals & Metals or any other firm related to Sumitomo. Other people
close to the LME suggested that its investigation will go on.
-- Jeffrey L. Hiday in London contributed to this article.