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Who is liable when a short seller goes bankrupt?

Personal Finance & Money Asked by philn on September 3, 2021

Suppose a hedge fund that’s short on a bunch of shares goes bankrupt. As I understand it, shorted shares are borrowed (because naked shorts are illegal) so I’m guessing the lender will lose money just like a bank that made a bad loan.

  • Are brokerages typical lenders of short shares and are they typically liable?

  • Does someone with an account at a brokerage need to consent to letting their shares to be borrowed? Is the consent something in the fine print?

  • Unlike FDIC insurance the broker could owe theoretically infinite money (if no one is selling). How does federal insurance (SIPC?) work for such situations?

One Answer

In an over the counter agreement between private parties, the lender is at risk.

For traditional shorting done on exchanges, the lending broker is at risk and is liable. Regulations exist to protect the parties involved but they are not infallible (margin requirements, etc.).

Shares in a cash account cannot be loaned out whereas shares in a margin account can be loaned out (the fine print) unless you sign a do not lend shares agreement. When you open a margin account, you sign a hypothecation agreement and sometimes a rehypothecation agreement where the broker can use your shares as collateral for his own loans and trading. Again, regulations exist to protect the parties involved but they are not infallible (for example, a limit of 140% on rehypothecation).

Share lenders (account holders) tend to have no clue that their shares are being loaned out unless their broker is sharing a portion of the borrow fee with them.

SIPC insurance covers the custodial function of a brokerage firm as well as as protection against unauthorized trading or account theft. It provides up to $500,000 in total coverage per customer for lost or missing assets of cash and/or securities. It covers up to $250k of cash. It does not protect one against loss of security value for their own bad decision making.

Correct answer by Bob Baerker on September 3, 2021

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