Nearly all transactions in listed securities on the US capital markets are settled through a securities settlement infrastructure that generates extensive negative externalities for issuers and securityholders. This model is still advocated by regulators and market structure experts; it is an intermediated structure originally designed for depositing paper certificates in the accounts of a depository to allow book entry transfers of claims on the deposited certificates. The structure dates back at least to 1873. It accelerates transfer by short circuiting endorsement, delivery and cancellation of certificates, as all securities are and remain registered in the name of a single entity or a few intermediaries. The depository in effect issues uncertificated claims on the pool of assets (the underlying securities) kept in its accounts, creating an effect like “dematerializing” the securities, i.e., issuing securities in electronic rather than in paper form. This shortcut severs owners from issuers, inserts intermediaries as new owners, disrupts communication, and can lead to erroneous exercise of securityholder rights. It can also lead the creation of securities that were never issued, as account bookings multiply and exceed the number of securities existing on the primary account of the issuer’s list of securityholders. While directly damaging to issuers and securityholders, it creates significant advantages for intermediaries, as they become the owners of the economy's outstanding securities as well as of all the information about securityholders. They use this information to bind their clients to them and profit from value-added services that issuers cannot perform because they have transferred the information regarding their securityholders to the intermediaries. This structure generates high costs but there is no movement to replace it with a viable alternative based on electronic transfer displayed directly in a securities register available to issuers. The situation can be described as strong-form path dependence, given that a costly model adopted for past historical reasons has not been superseded because of a lack of good information, influential voices set against change, and the failure of regulators to grasp the problem and correct it. This article offers the analysis of the situation that regulators currently lack: it explains the genesis of the current infrastructure, presents the various changes that law and the markets have suffered in adapting to it, exposes its negative effects on issuers and securities holders, and analyzes how its owners and operators have successfully resisted change. By tying together the reasons for the system’s creation as derived from commercial law, the negative effects it has on the optimal operation of the corporate and securities laws, and the organizational and informational impediments that have and continue to hold regulators back from recommending a fundamental improvement of the securities settlement infrastructure, the article would fill the current deficit of information.
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