Corporate Actions – Dividend Arbitrage – Cumex “Cum-Ex” Transaction Litigation

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Corporate Actions are well defined by Investopedia. A corporate action is any activity that brings material change to an organization and impacts its stakeholders, including shareholders, both common and preferred, as well as bondholders. When a publicly traded company issues a corporate action, they are initiating a process that directly affects the securities issued by that company. Therefore, the board of directors is generally always involved, with shareholder involvement sometimes even required. In the event of a major takeover possibility, for example, shareholders may be required to submit a response giving their input. After researching, it seems the most common corporate actions can be condensed into dividends, stock splits, mergers, acquisitions, and spinoffs.

According to Institutional investor, BNY Mellon has been the largest custodian in the world for the last 8 years. Given that fact, corporate actions can be of particular interest to them. Again, due to their custodianship business, one can imagine how a poorly executed or thought-out take-over, for example, could affect not only the entire company, but furthermore spread to other very large investment institutions, brokerages, hedge funds, etc. that would otherwise be solvent.

What is Dividend Arbitrage?

Options traders in the tri-party repo market would also be familiar with dividend arbitrage. Dividend arbitrage is an arbitrage strategy that may seem complex, but once you break it down it’s relatively straightforward. To understand this strategy, you first need to understand an ex-dividend date. Secondly, I would point out this strategy is typically exercised by options traders. The arbitrage occurs whereby, the options trader buys both the stock and the equivalent number of put options before ex-dividend, then waits to collect the dividend before exercising his put. Let’s look at a hypothetical example to understand that better.

FinYork stock is trading at $90 per share and is paying a $2 dividend tomorrow. A put with a striking price of $100 is selling for $11. Here, an options trader can enter a risk-less dividend arbitrage by purchasing both the stock for $9000, as well as the put for $1100, for a grand total of $10,100.

A second, seemingly more complicated way to engage in a dividend arbitrage occurs using “covered writes”. On the day before ex-dividend date, you can do a covered write by buying the dividend paying stock, then simultaneously writing an equivalent number of “deep in-the-money” call options on it. The call strike, price plus the premiums received, should be equal or greater than the current stock price. On ex-dividend date, assuming no “assignment” takes place, you will have qualified for the dividend. While the underlying stock price will have drop by the dividend amount, the written call options will also register the same drop, since “deep-in-the-money” options have a delta of nearly 1. Then, one can sell the underlying stock, buy back the short calls at no-loss and wait to collect the dividends.

The risk in using this strategy is that of an “early assignment” taking place before the ex-dividend date. If assigned, one would not be able to qualify for the dividends.

Litigation Against “Cum-Ex Transactions”; A Form of Dividend Arbitrage

There have been a number of these lawsuits now, especially civil cases, largely in Europe from my research. However, I believe the litigation has now also spilled over into US courts. From my findings, litigation against “cum-ex transactions” originated in Germany. More specifically, in 2019, in Germany it was reported over 100 banks were being investigated for “cum-ex” or “Cumex” transactions involving ‘huge volumes’ leading up to 2012. A cum-ex transaction is a complex form of dividend arbitrage or dividend stripping.

“For the purpose of dividend arbitrage, traders in alternative tax jurisdictions trade shares around dividend dates. Cum-ex trades specifically serve as a mechanism allowing both the buyer and seller of shares to recover capital gains tax (CGT) paid only once on dividend income. The transactions involve acquiring shares ‘cum dividend’ (including dividend right) just before a dividend is due, and then selling ‘ex dividend’ (without dividend right) after the dividend record date. The various steps are processed very quickly, making it difficult to identify the true owner of the shares, thus enabling multiple parties to claim tax credits or tax compensation payments for CGT paid only once. This process often involves the original owner of the shares, the bank or broker that sells them short, and the buyer who purchases them on dividend day. It has been common for the parties to split the proceeds of the tax refunds.”
-Yorick M Ruland, International Bar Association

As Yorick spells out, this form of dividend arbitrage requires the involvement of corrupt shareholders and brokers alike. Considering the processes complexity and the capabilities to catch perpetrators of these financial schemes alike, many go unaccounted for. That hasn’t stopped the ones who do get caught from facing both criminal and civil penalties.