Bar Baron at the Gate: An Argument for Expanding the Liability of Securities Clearing Brokers for the Fraud of Introducing Brokers

The securities brokerage industry is divided into those brokers who process their own trades and those brokers who use other firms to process their trades. The latter group, called “introducing brokers,” send their customers’ trade orders to “clearing brokers,” who then make the actual trades. Recent highly publicized cases of fraud by introducing brokers have led to closer scrutiny of the introducing broker-clearing broker relationship, and in particular, speculation over whether clearing brokers should be liable when they clear the trades of introducing brokers who are committing fraud. As the law now stands, clearing brokers are effectively immune from this type of liability, and the clearing broker industry has argued that any expansion of their liability would lead to clearing brokers abandoning the market. This Note uses the analytical structure of gatekeeping liability to argue for expanding clearing brokers’ liability for introducing brokers’ fraud.