July 20, 2004
The Whitney National Bank Trust Wealth Management Division would appreciate the Securities and Exchange Commission extending the comment period regarding the Gramm-Leach-Bliley Act, Regulation B, beyond the current August 2, 2004 deadline.
After attending the seminar held in Washington, D.C. on June 18, 2004 and our subsequent review and analysis of the proposed regulation, there are several comments and questions that we would like to make to the Commission. However, given the timeframe we have not been able to fully analyze the impact this regulation may have on our line of business. Recognizing the importance of this regulation and the potential impact it could have, the Whitney National Bank has engaged a firm with both legal and accounting knowledge and experience to perform a Gramm-Leach-Bliley assessment of our trust product lines to determine what impact the regulation would have, and to outline an appropriate course of action so that the Bank would not find itself in conflict with the proposed regulation.
A few of the immediate items that we have identified that we believe would be appropriate for the SEC to address would be 1. a broader exemption for specific types of trust accounts i.e., escrow accounts, public trusts, employer retirement trusts, qualified and non-qualified under ERISA, and IRA trusts not currently accounted for in the regulation and 2. a broader exemption for custodian accounts which we believe the bank does not engage in broker/dealer activities but provides an additional level of value and security as a custodian in receiving, holding, and accounting for securities within a trust department.
Immediately following the meeting in Washington you and your staff were kind enough to answer a few questions which we posed to you. You and your staffs time and the guidance imparted to us regarding the SECs objective of providing for the safety, security, and soundness of an investor when transacting security trades and the subsequent safekeeping of the assets was appreciated.
When our custody clients engage in the transaction of investment securities they do so through a registered broker/dealer, thereby providing them with the protection offered by the NASD. Our custody clients are provided additional protection by having their assets held within a trust departments custodial account. Although many individuals or institutions do not recognize the differences between bank trust departments and brokerage firms, some financially sophisticated clients often appreciate the additional security provided them by the segregation of assets along with the protection from claims and creditors should a brokerage firm experience troubled times.
We truly believe that there is a significant amount of value and security that we provide in holding securities in a trust department. One of the values we provide to our clients is safety. It has long been held that fiduciary assets of a trust department are not subject to claims of general creditors of a bank if it should become insolvent and is taken over by the FDIC. The assets of the trust organization are kept 100 percent intact, and held strictly for the benefit of the account owner.
In the event that a registered brokerage firm becomes insolvent and is liquidated, there are procedures that will occur in bankruptcy proceedings that do not guarantee the brokerage customers assets will be safe from the creditors of the brokerage firm. Brokerage firm bankruptcies are governed by the Securities Investor Protection Corporation SIPC. In very brief terms, the following is our appreciation of how the assets of the customers of a brokerage firm are treated in the event of bankruptcy:
All assets are collected in a separate customer property fund. If the customers pro-rata share of all the assets does not make them whole, the customers receive an allocation of only USD 500,000 from SIPC, inclusive of securities and cash, with a limit on cash of USD 100,000. This amount is based on the market value of the account on the date of bankruptcy and would not cover any appreciation occurring after that date. Although most well established brokerages also carry private insurance, they are not required to do so. It is also important to note that the bankruptcy court has certain filing requirements. Customer claims must usually be filed 60 days after the date notice of the proceeding is published. Nonetheless, the time frame could be as short as 30 days. We certainly do not foresee any near term financial difficulties for brokerage firms nonetheless, as fiduciaries, we believe there are distinct and valuable differences between holding ones assets with a banks trust division versus a brokerage firm.
In addition to the safety we provide as custodian, we provide the client with specific accountings to meet their individual needs such as the segregation of principal, income, and invested income, the valuation of closely held securities, performance attribution analysis, along with consolidated accounting for multiple accounts associated with a single owner. Where a client may engage multiple investment managers or have various types of accounts, we can provide the client with consolidated reporting and accounting for each manager.
When transactions are executed by our client through a NASD regulated broker, those securities are then delivered versus payment to accounts maintained for the benefit of Whitney clients by various custodial intermediaries at the appropriate depository institution. We ensure that 1. the correct securities are delivered per the terms of the clients contractual agreement with the trust department, 2. the securities are properly accounted for, 3. the agreed upon price has been paid, and 4. timely and accurate accounting will be provided.
When accounting for these transactions and providing payment to the brokerage firm for the delivery of the securities we charge a fee that we believe should fully cover our costs, and provide us the opportunity to realize a reasonable profit margin for the valuable services we provide. Our institution has provided trustee services to clients since 1920 and custody services dating back as early as 1908. Our custody services have and continue to be an integral and valued segment of our business.
We welcome the opportunity to discuss this with you or to answer any questions you may have at your convenience. You may reach me 504 586-7426.