Treatment Of Customers And Financial Counterparties In Stockbroker Liquidations Under SIPA And The Bankruptcy Code
Introduction
With the possibility of a major stock brokerage liquidation
appearing more likely than it has been in recent periods, the
effect of a liquidation on customers and financial
counterparties has become of great interest to many of our
clients and others. This article summarizes some of the key
issues that may arise in a stockbroker liquidation and, in
particular, the impact upon customers with securities accounts
and counterparties to securities contracts, swaps, repurchase
agreements and other common financial instruments under either
(i) the Securities Investor Protection Act of 1970
("SIPA"),1 or (ii) chapter 7 of the United
States Bankruptcy Code (the "Bankruptcy
Code").2
Liquidation Under SIPA and the Bankruptcy Code in
General
Neither SIPA nor the Bankruptcy Code allow a broker-dealer
to reorganize. Both SIPA and subchapter III of chapter 7
require the liquidation of a failed stockbroker. Both
liquidation schemes, however, prioritize to a significant
extent the repayment of "customer" claims over those
of general unsecured creditors, which may include those who
"lend" their excess cash to the broker, foreign
exchange creditors and more routine creditors such as landlords
and vendors.
SIPA
Among the most important aspects of SIPA is the liquidation
process that is overseen by the SIPA-created Securities
Investor Protection Corporation ("SIPC"). Also
important is the SIPA fund (the "SIPA Fund"), which
is essentially an insurance program funded by SIPC members to
protect customers from loss if a SIPC member fails.
A SIPA liquidation proceeding may only be commenced by SIPC
in federal district court, and then only if SIPC determines
that a member has failed, or is in danger of failing, to meet
its obligations to its customers and one of the following has
occurred:
the SIPC member is insolvent;
there is already a pending proceeding against the member
and a receiver, trustee or liquidator has been
appointed;
the member is in violation of certain financial
responsibility or hypothecation rules promulgated by the SEC
or a selfregulatory organization; or
the member cannot compute whether it is in compliance
with the financial responsibility or hypothecation rules
promulgated by the SEC or a self-regulatory
organization.
If failure has occurred or is likely and one of these tests
is satisfied, the federal district court will issue a
protective order at SIPC's request that will serve to
protect customer accounts and customer property and limit the
failing SIPC member's activities in certain ways described
below. Although the district court enters the protective order,
the SIPA proceeding is then referred to the bankruptcy court
for the district which actually oversees the liquidation.
Except to the extent SIPA mandates different treatment, a SIPA
trustee operates as and has the powers of a bankruptcy trustee
under chapter 7 of the Bankruptcy Code. The protective order,
much like the automatic stay in bankruptcy, freezes customer
activity and unless there is a sale of the customer accounts to
a more stable brokerage firm (which is common but might be more
problematic where a large broker is in liquidation), the
customer may find himself without access to his securities or
cash in his securities account for months.
After a SIPA liquidation is commenced, SIPC will designate a
trustee3 who will then set about the tasks of
notifying customers of the impending liquidation, transferring
customer accounts to a more financially stable brokerage firm
if possible, having customers and other creditors file claims,
and paying customers and other creditors in accordance with the
statutorily mandated priorities.
The Bankruptcy Code
Through subchapter III of chapter 7 of the Bankruptcy Code,
Congress has provided an alternative method for stockbroker
liquidation in the relatively rare instances when the
stockbroker is not a SIPC member.
As with SIPA, under the Bankruptcy Code, stockbrokers are
only entitled to liquidate assets for the benefit of customers
and creditors and may not reorganize. Many of the steps taken
in a bankruptcy case parallel those taken in a SIPA
liquidation. Specifically, a bankruptcy trustee is chosen to
secure and marshal the debtor's assets, return
"customer name" (as opposed to street name)
securities to their owners, invite all creditors to file
claims, and pay those creditors in accordance with statutory
priorities. As discussed in more detail below, the fact that
all securities are liquidated and customer claims are paid in
cash (except for securities registered in the customer's
name which are returned to the customer) is a key distinction
between a bankruptcy liquidation and one under SIPA, where SIPC
and the SIPA trustee will attempt to return securities to
customers in satisfaction of their customer claims.
Priority of Customer Claims
Both SIPA and the Bankruptcy Code seek to return the
customers to the economic position they were in...
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