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poach among themselves Some firms, such as Merrill, Lazard, and Salomon Brothers, were sympathetic to the suit and tried to help the Justice Department make its case They wanted to see more competitive bidding for new issues and for industry sectors like railroads and public utilities, which seemingly were handled by the same firms year after year with little or no price discovery by the issuer3 Issuing companies accepted that the price they were being charged to raise capital was the best price Companies did not shop around to get the lowest fees and cheapest funds The process favored the incumbent banker The Justice Department s position was that over the years, the top Wall Street firms maintained a hold on their businesses through the use of syndicates where only other banks invited could help underwrite a new security issue Proof of those syndicates had excluded smaller investment banks while keeping the lion s share of the business for themselves was evidence of monopoly concentration 4 The defense claimed, however, that the naturally high barrier of capital that needed to be committed to the long-standing relationships explained the lack of new entrants into the business It was exclusive in that it discriminated against those unwilling to put their money at risk to support their clients The government charged that there was a remarkable similarity in the firms that dominated the underwriting of securities, and that the pattern of who won the business was not a random competitive process The trial did not open until 1950, because it took more than three years to gather testimony and witnesses Wall Street understood the stakes; it had seen this line of attack before, so it gathered a lot of resources to defend itself But Wall Street was not the behemoth it had been These firms were so small that they did not have $5 million in capital among
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120 DON T BLAME THE SHORTS
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them5 The investment banks were smaller, spun-out versions of their Depression-era parent banking operations: J P Morgan, Chase, and National City As Ron Chernow wrote in his book, The House of Morgan, If one added up the combined capital of Morgan Stanley and the next seven investment banks, together they were only a third the size of Chase and National City securities affiliates of 1929 6 In September 1953, after ruling two years previously that no evidence prior to 1935 was permissible, Judge Harold Medina dismissed the Justice Department s case without hearing the defense Medina never got a satisfactory answer from the prosecution as to why the rankings of the underwriting firms moved around so much Some firms moved up the ranks and then down If their actions were to be collusive, why then would firms bother to change places The firms would move on a much more predictable basis and rotate positions, and in that way share the wealth of the syndicate Medina also saw that one firm was at the top of the tables, and that was Morgan Stanley It defied logic that the lead runner would always be the same firm if there were collusion among the participants7 Medina observed that it was illogical for a fixed and rigged system to always have interchanging parts He observed that competition among the firms in the case was intense and that firms occupied different rankings over the time in question This undermined the idea that the system was uncompetitive The government, not without some logic, argued that the firms were nothing but the continuation of pre Glass-Steagall Wall Street, where Morgan Stanley, the investment bank, was just the extension of Morgan, the bank Medina found this line of reasoning implausible I have come to the settled conviction and accordingly find that no such combination,
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