Former Merrill Manager Sues for Billions Over Illegal Use of Customer Funds
A former Merrill Lynch manager sued the retail brokerage firm on Tuesday for allegedly failing to pay him and tens of thousands of other customers interest on billions of dollars they allegedly lent unwittingly to Merrill’s trading desk from 2009 to 2012.
The lawsuit, which seeks class-action status, stems from a landmark consent order that Merrill Lynch, Pierce, Fenner & Smith and an affiliate broker-dealer signed in June with the Securities and Exchange Commission. They agreed to pay the U.S. government a penalty of $358 million, disgorge $57 million in trading profits and admit to financing complex trades with customer cash that was supposed to be segregated. The Merrill units also acknowledged lax operating procedures that permitted several of their clearing banks to illegally hold liens on more than $60 billion of customer securities from June 2009 to April 2015.
“I was livid when I heard about the SEC charges,” said James Jiao, who worked at Merrill from 1997 through 2015 as a broker and for a time as head of its international southwest complex.
Jiao, now with independent broker-dealer Bolton Global Capital. said he found the ploy to finance proprietary trades by manipulating customer reserve accounts particularly galling because Merrill instructed managers during the 2008-2009 financial crisis to assure brokers and clients that their cash and securities were safely segregated from the company’s loss-scarred businesses.
Merrill Lynch spokesman William Halldin said the company will seek to dismiss the lawsuit.
“As the SEC noted at the time this was resolved, there were no customers harmed in this matter and, as a result, there is no basis for this lawsuit,” he wrote in an email.
The regulator noted in one paragraph of its 23-page consent order that “although no customers were harmed” during one 19-month iteration of its trading strategy that depleted its reserve account by 28% to 40%, Merrill “put them at risk by reducing the customer money it was required to deposit into its Reserve Account.” It calculated that Merrill removed some $5 billion a week during the relevant period from customer’s segregated reserve account.
Jiao’s lawsuit, filed in a federal district court in San Diego, names as defendants Merrill Lynch Pierce, Fenner & Smith, an affiliate broker-dealer for professional traders and William Terrell, the former head of Merrill’s regulatory reporting unit who the SEC said helped arrange the trade funding scheme that violated its Customer Protection Rule.
Terrell did not immediately return a call left with a woman answering his home telephone.
The lawsuit does not seek a specific amount of damages, but says that Merrill deprived tens of thousands of customers in “excess of several billions of dollars over approximately a four-year period,” including about $50 million in profits that the SEC indicated Merrill earned from customer-funded trades as well as lost “opportunity cost, interest and other income.”
The purported class-action complaint alleges fraud, negligence (under federal and California State law) and two counts of violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), which permits successful plaintiffs to collect triple damages.