The chances of the law being enforced on Bank of America or Goldman Sachs in a California court (or a US court for that matter) is slim, regardless of the facts or the law...
Here is how Karen Gullo wrote it up for Bloomberg:
Goldman, Merrill E-Mails Show Naked Shorting, Filing SaysGoldman Sachs Group Inc. (GS) and Merrill Lynch & Co. employees discussed helping naked short-sales by market-maker clients in e-mails the banks sought to keep secret, including one in which a Merrill official told another to ignore compliance rules, Overstock.com Inc. (OSTK)said in a court filing.
The online retailer accused Merrill, now part of Bank of America Corp., and Goldman Sachs of manipulating its stock from 2005 to 2007, causing its shares to fall. Clearing operations at the banks intentionally failed to locate and deliver borrowed shares for clients shorting stocks, including two traders who were fined and suspended from the industry, Overstock’s attorneys said in court filings earlier this year.
Lawyers for Overstock, whose California state court lawsuit in San Francisco was dismissed in January, asked a judge to make public e-mails sent in 2005 and 2006 that it said “reflect business decisions to put profits and corporate ambition over compliance” at Goldman Sachs and Merrill. The banks’ decisions to intentionally fail to deliver Overstock shares caused large- scale naked short selling of the company’s stock, according to the filing.
After a Merrill executive expressed concern that a colleague intentionally failed, or didn’t complete, a short sale, an executive at the clearing unit responded with an expletive, telling the executive to ignore “the compliance area -- procedures, schmecedures,” Overstock lawyers said in the filing, citing an excerpt from a May 2005 e-mail. The Merrill executive later told a judge the statement was a joke, Overstock said in the Feb. 9 court document.
Largest ClientAccording to the Overstock filing, Wolverine Trading LLC, the Goldman Sachs clearing unit’s largest client, was told in an undated e-mail that “we will let you fail,” in response to an inquiry by Wolverine about whether there was an effort “at cleaning up” fails. The sender isn’t identified in the filing.
An e-mail sent by John Masterson included “nonpublic data concerning customer short positions in Overstock and four other hard-to-borrow stocks to Maverick Capital, a large hedge fund that sells stocks short,” Overstock lawyers said in the document. Michael DuVally, a spokesman for Goldman Sachs, said a John Masterson worked at the bank as a managing director.
Fraser Seitel, a spokesman for Maverick, said the company hasn’t been able to locate the e-mail and declined further comment on the Overstock filing.
Clearing UnitIn June 2005, Thomas Tranfaglia, then president of Merrill’s clearing unit, said in an e-mail about the possibility of failing market-maker trades, “Why would we have to borrow them? We want to fail on them,” according to the filing.
“As far as I’m concerned, this is totally unacceptable -- we are failing when we have over a million shares of stock available,” another Merrill executive said in an e-mail cited by Overstock in its filing. “Is there a blanket agreement that we allow every market-maker client to continue failing even if there is enough availability?” the executive asked in the e- mail. “There needs to be some assessment done here, and fails cleaned up regardless of who is causing them.”
The vast majority of Merrill’s fails to deliver in Overstock shares correspond to market-makers Scott Arenstein and Steven Hazan, Overstock’s lawyers said in the filing. Goldman Sachs purchased “conversion” trades, or naked short sales, according to Overstock, from both men through their companies.
In its filing, Overstock’s lawyers said conversions involved the purchase of stock from a counterparty who sold short, combined with options to hedge risk.
An undated Goldman Sachs e-mail cited in the filing refers to Arenstein and his company SBA Trading as “providing very aggressive liquidity to Goldman” in the form of conversion trades with Goldman Sachs’s securities lending group.
MediaFour media organizations, including Bloomberg LP, the New York Times (NYT), Wenner Media and The Economist, intervened in the Overstock case and joined the company’s request to unseal court files. Bloomberg News obtained a copy of the filing describing the e-mails. The document was filed by attorneys for Goldman Sachs and Merrill as an exhibit to another filing, said Karl Olson, an attorney for Bloomberg and other news outlets.
The full text of the e-mails isn’t included in the court filing by Overstock.
Goldman Sachs’s DuVally said the information allegedly sent by Masterson involved providing “market color information” to clients regarding activity in the securities lending marketplace on a “security specific or sector specific basis.”
‘Short Balances’“In accordance with the firm’s guidelines, Mr. Masterson shared with the client aggregate and anonymous information regarding overall short balances in certain securities,” DuVally said in an e-mail. “The information he provided did not disclose the short positions or any other information of any client.” He declined to immediately comment on the other items in the document.
The e-mails show Bank of America’s efforts to ensure proper handling of short-sale transactions, said William Halldin, a spokesman for the Charlotte, North Carolina-based bank.
“When regulatory requirements changed in early 2005, our compliance team worked closely to implement those changes and, when necessary, address any issues that arose,” Halldin said in a telephone interview.
Tranfaglia is no longer at the bank and didn’t respond to a voice-mail message seeking comment. Both banks have denied any wrongdoing.
Goldman Sachs and Bank of America persuaded a judge to dismiss Overstock’s lawsuit, originally filed in 2007. Judge John Munter in San Franciscoagreed with the banks that the lawsuit had to be thrown out because none of the conduct alleged in the complaint happened in California.
Wolverine TradingCory Burke, a spokesman at Wolverine Trading, a Chicago- based market making firm, declined to comment.
Arenstein and his company were fined $3.6 million in July 2007 for naked short selling by the former American Stock Exchange. He was suspended from the exchange for five years. He declined to comment on the filing.
Hazan agreed to pay $4 million in 2009 to settle Securities and Exchange Commission claims that the firm made naked short sales. Hazan and his New York-based Hazan Capital Management LLC were accused of betting that share prices would fall without borrowing and delivering the shares, the SEC said. Hazan was barred from working with any brokerage.
The New York Stock Exchange in a related action in 2009 said it barred Hazan from trading for seven years. Michael Bachner, a lawyer for Hazan, declined to comment on Overstock’s filing.
Borrowed in AnticipationIn short selling, investors sell shares they have borrowed in anticipation of making a profit by purchasing stock to return to the lender after its price has fallen.
In naked short selling, traders never borrow the stock and can drive down prices by flooding the market with orders to sell shares they don’t have.
A “failure to deliver” or “fail” is when the short- seller doesn’t deliver the shares for a short sale prior to the trade’s settlement date, usually three days later. A “locate” refers to the ability of a broker to find shares that can be delivered on behalf of the short-seller.
Options market makers at the time the e-mails were sent had an exception to trading rules requiring that borrowed shares be located. Market makers had 13 days to clear up fails.
In October 2008, naked shorting mostly ended after the SEC put in place rules that made it harder to short a stock without first borrowing it or locating it.
‘Obsolete Procedures’Overstock lawyers said the information in the e-mails “concerns obsolete procedures from six or seven years ago that were unlawful at the time and that are further blocked by the enactment of new federal regulations in 2008.”
Overstock, based in Salt Lake City, claimed in its lawsuit that large portions of its stock were the subject of naked shorting, leading to instances in which the short position in its stock exceeded the entire supply of outstanding shares.
“We have to be careful not to link locates to fails [because] we have told the regulators we can’t,” an unidentified Goldman Sachs executive wrote in an undated e-mail cited in Overstock’s filing.
“Like all other prime brokers, the firm regularly receives requests for ‘locates’ from its clients and may grant locates when there are reasonable grounds to believe shares will be available by settlement date to cover a short sale by the customer,” said DuVally.
Goldman Sachs can’t link a specific locate to a net fail- to-deliver position that may occur at the Continuous Net Settlement System, he said in an e-mail. The system is a unit of the Depository Trust and Clearing Corp., which provides clearing and settlement of equities and other financial instruments.
The case is Overstock.com v. Morgan Stanley, CGC-07-460147, Superior Court of the State of California (San Francisco).
To contact the reporter on this story: Karen Gullo at kgullo @bloomberg.net
 M. Taibbi, Accidentally Released - and Incredibly Embarrassing - Documents Show How Goldman et al Engaged in 'Naked Short Selling', Rolling Stones, May 15, 2012
 K Gullo, Goldman, Merrill E-Mails Show Naked Shorting, Filing Says, Bloomberg, May 17, 2012
 M.V., Short-selling litigation, An enlightening mistake, The Economist, May 15th 2012
Joseph Zernik, PhDHuman Rights Alert (NGO)
The 2010 submission of Human Rights Alert to the Human Rights Council (HRC) of the United Nations was reviewed by the HRC professional staff and incorporated in the official HRC Professional Staff Report with a note referring to “corruption of the courts and the legal profession and discrimination by law enforcement in California.”Human Rights Alert online Flag Counter: 138http://inproperinla.blogspot.
Take away justice, then, and what are governments but great bandit bands?Saint Augustine, Civitas Dei (City of God,4.4)
_____________________________WHAT DID THE EXPERT SAY ABOUT THE CURRENT FINANCIAL CRISIS?
* "I think it's difficult to find a fraud of this size on the U.S. court system in U.S. history," said Raymond Brescia, a visiting professor at Yale Law School who has written articles analyzing the role of courts in the financial crisis. "I can't think of one where you have literally tens of thousands of fraudulent documents filed in tens of thousands of cases." Reuters (Jan 22, 2012)
* About 3 million homes have been repossessed since the housing boom ended in 2006… That number could balloon to about 6 million by 2013 Bloomberg (January 2011)
* "...a system in which only the little people have to obey the law, while the rich, and bankers especially, can cheat and defraud without consequences." http://www.scribd.com/doc/
WHAT DID THE EXPERTS SAY ABOUT THE JUSTICE SYSTEM IN LOS ANGELES COUNTY, CALIFORNIA?* "...judges tried and sentenced a staggering number of people for crimes they did not commit." Prof David Burcham, Dean, Loyola Law School, LA (2001)
* "This is conduct associated with the most repressive dictators and police states... and judges must share responsibility when innocent people are convicted." Prof Erwin Chemerinsky, Dean, Irvine Law School (2001) http://www.scribd.com/doc/
WHAT DID THE EXPERTS SAY ABOUT THE JUSTICE SYSTEM IN CALIFORNIA?* "...corruption of the courts and the legal profession and discrimination by law enforcement in California." United Nations Human Rights Council Staff Report (2010)
WHAT DID THE EXPERTS SAY ABOUT THE STATE COURTS IN THE UNITED STATES?
* "On July 26, 2010, Laurence Tribe, Senior Counsel for the United States Department of Justice, Access to Justice Initiative, delivered an important speech to the Conference of Chief Justices, challenging them to halt the disintegration of our state justice systems before they become indistinguishable from courts of third world nations."Prof Laurence Tribe, Harvard Law School (2010), per National Defender Leadership Institute (2010)
WHAT DID THE EXPERTS SAY ABOUT THE CONDITIONS IN THE PRISON IN MONROE COUNTY, TENESSEE?* "What goes on there is more like gulags of centuries ago."ACLUhttp://www.scribd.com/doc/
WHAT DID THE EXPERTS SAY ABOUT THE SUPREME COURT OF THE UNITED STATES?* "More than 100 law professors have signed on to a letter released today that proposes congressional hearings and legislation aimed at fashioning "mandatory and enforceable" ethics rules for Supreme Court justices for the first time. The effort, coordinated by the liberal Alliance for Justice, was triggered by "recent media reports," the letter said, apparently referring to stories of meetings and other potential conflicts of interest involving Justices Antonin Scalia and Clarence Thomas among others."More than 100 law professors, as reported by the Blog of the Legal Times (February 2011) http://www.scribd.com/doc/
WHAT DID CHIEF JUDGE OF THE US COURT OF APPEALS, 5TH CIRCUIT, SAY ABOUT THE US JUSTICE SYSTEM?
* "The American legal system has been corrupted almost beyond recognition..."
Chief Judge, US Court of Appeals, 5th Circuit, Edith Jones, speaking before the Federalist Society of Harvard Law School (February 2003)
WHAT DID THE CHAIR OF THE SENATE JUDICIARY COMMITTEE SAY ABOUT THE US JUSTICE SYSTEM?* In a speech in Georgetown University, Senator Leahy, Chair of the Senate Judiciary Committee called for a "Truth and Reconciliation Commission" on the US Department of Justice.Transcript of Senator Leahy speech (2009)