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<i>Forest Capital</i><br><i><font size="-1">Is It a Case of UCC Article 8 Versus 9?</i></font>
Institutions that maintain and manage securities accounts for businesses and other customers perform a critical function for the securities and lending industries. These intermediaries, consisting primarily of investment managers, broker-dealers and banks, manage more than $62 trillion in assets for both individual and institutional clients. In so doing, they enable customers to hold and borrow against investment property. See Amicus Brief of the Securities Industry and Financial Markets Association, Forest Capital v. Blackrock, No. 15-1551 (4th Cir. Sept. 21, 2015), at 1 (ECF No. 28-1).
UCC Article 8 provides what has been described as the “modern legal structure” for the system of holding securities through intermediaries. And through the interaction of Articles 8 and 9, the UCC both governs and facilitates the use of securities as collateral for obtaining credit. Note, UCC § 8-102(a)(14) defines a “securities intermediary” as a clearing corporation or a “person … that in the ordinary course of its business maintains securities accounts for others and is acting in that capacity.” U.C.C. § 8-102.
For the system to function smoothly, securities intermediaries and their customers need clarity as to their mutual obligations. Id. These obligations are usually spelled out in agreements between the securities intermediary and their customer, but they are also subject to Articles 8 and 9. However, they have not always meshed seamlessly when it comes to the duties of securities intermediaries.
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