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Did banks collude to freeze the auction rate securities (ARS) market?

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This week, state investigators from Massachusetts and New York revealed more pieces of the scam that was the $330 billion ARS market. Up until this week, it had been known that UBS AG (NYSE: UBS) had told its brokers to dump this toxic waste on its so-called private clients -- individual investors -- to keep UBS from needing to write it off from its own books.

But this week we learned that banks had been colluding for as long as two years to prop up the weekly auctions that were supposed to set the rates on these securities. It looked like there was good evidence that the banks were committing securities fraud when they sold ARS on the premise that they were cash-like and offered slightly higher yields than money market funds. Why the fraud? Because, their internal e-mails and behavior revealed that they were desperate to get rid of the toxic waste.

Moreover, those e-mails show that the banks' claim that the auctions suddenly failed in February 2008 is another fraud. As I posted, Merrill Lynch & Co. (NYSE: MER) e-mails reveal that the auctions started failing in January 2006. And it was public knowledge, according to Financial Week, that ARS auctions were failing last September -- 60 such auctions failed to the tune of $6 billion.

As early as 2005, the writing was on the wall for the ARS market. That's when accounting firms moved to reclassify them from "cash equivalents to short-term investments." That matters because when companies found they could not treat them as cash equivalents, they stopped showing up at the auctions. And in 2006, the SEC fined 15 broker-dealers for intervening in the bidding process -- in other words, the brokers took the place of customers in supporting the auctions.

With the credit crunch that began a year ago, these brokers could no longer afford to prop up the auctions. So it comes as no surprise that the brokers shared information with each other and decided whether they would collectively continue to support these auctions. The failure to support them was amply in evidence in an e-mail from former general counsel to the Treasury Department and current general counsel for UBS's investment-banking arm, David Aufhauser, according to the Wall Street Journal (subscription required).

Aufhauser received an e-mail from Merrill's chief risk officer (CRO) on December 14, 2007 at 3:38 pm, which suggests that the industry was deciding that the time was over for propping up the ARS market. The Journal reports that the CRO's e-mail said: "Watch our competitors closely; if they stop supporting auctions, we have much better freedom to stop [supporting auctions]."

This prompted Aufhauser to use his material inside information about the collapse of the auctions to get out of his ARS holdings. About three hours later, at 6:29 pm, he sent an e-mail to his financial advisor saying, "I want to get out of arcs [Auction Rate Certificates]. Let's talk on Monday." The Journal reports that Aufhauser sold $250,000 of the securities, his entire holding, between December 18 and December 21.

This was two months before the ARS market officially froze up. So UBS was among those firms that sold ARS fraudulently and misled the public as to its awareness of when the auctions began to fail. Was it also among those brokers that colluded in the collapse of the market? If so, its executives were able to profit -- $21 million worth to be exact -- from that collusion by dumping their ARS on an unsuspecting public before closing down the bidding.

If you want a government that allows such practices to flourish, vote for the candidate whose former chief economic advisor, Phil "Americans Are Whiners" Gramm, is a UBS vice chairman.

Peter Cohan is President of Peter S. Cohan & Associates. He also teaches management at Babson College and edits The Cohan Letter. He has no financial interest in the securities mentioned.

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Last updated: November 25, 2009: 04:51 PM

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