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Given my scathing criticism of most (so-called) “bullion-ETF's”, I frequently get reader questions about the “prospectus” of one fund or another. I freely confess to not having read these documents. My (stated) reasons for not doing so are that I do not, and would not hold such investments, and that I have already provided enough reasons to doubt the legitimacy of these investment vehicles that such an analysis would be moot.

However, at the persistent urging of one reader, I finally caved-in and went through the prospectus of The Mother of all Bullion Scams: GLD. It was at this point I had to deal with my third, unstated reason for avoiding these documents – they make your head hurt. This is especially true for those with a background in law, as we have been trained to attempt to discern the “intent” of every word of such documents, which means attempting to reconstruct the thinking of the lawyer(s) at the time the document was drafted.

At first glance, the SPDR Gold Trust (which trades under the symbol “GLD”) is the epitome of simplicity. In the first paragraph of the Prospectus Summary, it states:

“The Trust holds gold bars...”

Then, a few paragraphs later, is a section titled “Trust's Gold Holdings as of March 31, 2010”. It lists the total holdings as approximately 36.5 million ounces, almost all of it in “allocated” gold bars. So far, so good...The problem is that as soon as one scratches the surface, to attempt to verify that this ETF-behemoth is actually the straightforward “trust” that is presented, we immediately encounter one serious issue after another, which I am labeling the “seven sins” of GLD.

1) Lack of transparency:

In the page which immediately follows details of the Trusts “gold holdings”, is “The Offering”. In that section, it lists the total number of units of the Trust. Two facts leap out at us. First, the total number of units is over 390 million, with the date of that total being May 26, 2010.

Given that GLD is priced, and presented by the media as one unit equaling 1/10 ounce of gold, we immediately see that there are 7% more units than there should be at that rate of conversion, or in other words, the units clearly represent less than 1/10 ounce of gold. The problem is that it is impossible to determine precisely how much less, because of the inexplicable gap in reporting.

“Total gold holdings” are reported only up to the end of March. Presumably, the “custodian” of all that bullion (the infamous bullion-short, HSBC) is keeping track of the bullion it stores in its vault, and thus the time it would have taken to get “total gold holdings” up to May 26 (to synchronize the dates) would be the time it takes to send a fax. Clearly, the fund's Sponsor (none other than the “World Gold Council”) refuses to provide synchronized dates, to make it impossible to ascertain the amount of “dilution” in the fund, or (alternately) the precise “premium” which new unit-holders are paying when they buy in.

Similarly, if this fund were really the simple “trust” which it pretends to be, it would have been very easy for the Sponsor to say that the “objective” of the Trust was to provide “a cost-effective investment in gold” for unit-holders, but the fund deliberately avoids any such language. Instead, it defines the Trust's “investment objective” as merely to “reflect the performance of the price of gold bullion”.

It then immediately goes on to say:

“The Sponsor believes [emphasis mine] that, for many investors, the Shares represent a cost-effective investment in gold.”

The choice of wording here is enormously important, given that in the preceding page of the prospectus, the word “believe” is expressly designated as a “forward-looking statement”. It then says that with respect to all such “forward-looking statements” that:

“They are only predictions. Actual events or results may differ materially.”

Given my background, I fully understand the necessity of including such legal “weasel words” with respect to any statements made in the prospectus concerning future developments in the gold market, such as the price of gold itself. However, with respect to the current holdings in the fund, how can the Sponsor merely “believe” that units represent “...an investment in gold”?

Defenders of this ETF will argue that the Sponsor's “belief” is with respect to “a cost-effective investment in gold”, and thus the Sponsor is unable to warrant that GLD will be “cost-effective”. However, insertion of the words “cost effective” is totally voluntary. The only “warranty” which the Sponsor has chosen to provide (i.e. the “investment objective”) is that the fund will “reflect the performance of the price of gold bullion”. Whether or not there is (actually) any gold in this fund is merely a “belief” of the Sponsor, and thus may not be relied upon by unit-holders.

To provide a hypothetical example, suppose that the “custodian” for the fund (the notorious bullion-short, HSBC bank) has done extensive research and found that the price of chickens tends to be almost precisely correlated with the price of gold (i.e. they closely track each other). Given that HSBC has other things it would like to do with its gold (such as dumping bullion onto the market, or backing its massive short position), it decides that instead of going to all the bother of acquiring and storing such a massive quantity of gold that it will buy and hold chickens instead.

While much bulkier than gold, the “storage costs” associated with stationing a sleepy, security guard outside the freezers of a few meat-packers certainly cannot compare with the overhead of managing a bullion-vault capable of storing billions of dollars worth of bullion, not to mention the logistical costs associated with transporting (and insuring) all the bullion being bought and sold by this massive fund.

Critics will scoff at my hypothetical example as being too absurd to be of any analytical value, since if GLD was actually holding chickens instead of gold, then the Sponsor would be sued, and/or the “custodian” of the fund. This brings us to the second “sin”.

2) Damages:

Even without reading the prospectus, I have warned unit-holders that if there was some fraud or default associated with the fund, that all that unit-holders would ever be able to recover from the fund is “paper”. In other words, they could sue to get their (paper) money back, but they could never sue to force the Sponsor (and/or “custodian”) to provide them with the gold they thought they had bought. Such a legal remedy is known as “specific performance”, and (under the best of conditions) is a relatively rare outcome to any civil action.

Given this underlying reality, the language used in the Prospectus to protect the Sponsor and the “custodian” (HSBC) from liability can only be characterized as “over-kill”. Not only does the document seek the normal waiver with respect to “acts of God”, “war”, or “terrorism”, but it also seeks to indemnify both the Sponsor and custodian from “fraud”, “negligence”, or “willful default”.

Specifically, even under the worst acts of malfeasance, investors could never recover anything other than the “market value” of their holdings (i.e. paper money) as of the day the fraud was discovered, or default occurred. While (to some extent) language like this is common in such legal documents, we must attach considerable importance to the deliberate choice of the words “willful default”, rather than just the generic term “default” - which most reasonable readers would assume would imply some involuntary event.

Instead, if HSBC defaults on its custodian agreement, and even if it actually did have enough gold currently in its possession to cover its obligation, it could simply refuse to turn over the gold it held. Suddenly, my example of the hypothetical chickens doesn't sound quite so preposterous. In the event of a willful default, it could liquidate its chickens to cover its “custodian agreement”, keep all its gold – and unit-holders could do nothing.

3) Structure:

GLD does not sell its “shares” directly to unit-holders. I hesitate to use the word “shares” to describe these units (despite how the Trust does so again and again) because the Prospectus clearly states on many occasions that unit-holders do not possess many of the rights of a normal shareholder. It is hard not to construct the analogy that GLD sells “shares” that aren't really shares, as an equitable interest in “gold” that isn't really gold.

Beyond that, GLD has chosen to market its shares exclusively in “baskets”, with each basket having a current market-value of over $10 million. Only those institutions capable of buying these $10 million “chunks” of units are able to directly retail them to the general public. This seems like a deliberate device for steering most of the commissions for the purchase of these units to big-banks. Presumably, smaller institutions could (in turn) pick up smaller blocks for themselves – but only from the big banks (who presumably take a “cut” for themselves at that point).

This needless injection of extra banker commissions is clearly a cost which must ultimately be passed along to unit-holders – despite the appearance that GLD is the “cheapest” way to buy/own “gold”, and brings us to our next “sin”.

4) Fees:

As stated earlier, the Sponsor of GLD certainly wants to create the appearance (or “belief”) that GLD is a “cost-effective” means for investors to buy/hold gold. Media talking-heads and a legion of investment shills depict each unit as representing 1/10 ounce of “gold”, making the administrative fees of the fund appear to be near-zero. Indeed, I have referred to that outward facade as yet another reason to doubt the legitimacy of the fund. However, the truth is that no one (outside of the fund) can ascertain the precise quantum of fees, due to lack of transparency.

It is here that we come to another inexplicable “reality” with this fund: ever-increasing administrative costs. Keep in mind that the entire purpose in designating one of the largest offenders in gold-manipulation as “custodian” for this supposed hoard of bullion is “economies of scale”. If you're going to hire the fox to guard the hen-house, then at the least the fox should give you a better rate (per hen) as the flock that it is “guarding” grows larger. This is not how GLD operates.

It explicitly states that (over time) the gap between the 1/10 ounce of “gold” per unit which it is purported to hold, and the actual amount of “gold” actually held by unit-holders will steadily increase. This makes no sense. Indeed, the only justification for having a “custodian” hold the Trust's “gold” is that it should minimize administrative costs.

If the fund were “actively managed”, that is, if it was continually active in the gold market buying and selling gold to look to capitalize on imbalances/opportunities which occasionally present themselves, then it would be understandable how administrative costs would/could increase over time as the fund grew larger. However, the Prospectus explicitly states that the fund is not “actively managed”. Given that, in even a worst-case scenario per-unit administrative costs should be flat, but more likely “economies of scale”should operate to reduce those per-unit costs.

This leads to one of two implications. Either the Sponsor or (more likely) the custodian simply plans to “skim more off the top” for itself each year, or the “gold” in HSBS's vault is “evaporating”, causing the actual amount of “gold” held by unit-holders to steadily decrease over time. What should greatly alarm current unit-holders is that the long-term (guaranteed) rise in administrative “costs” is currently being hidden for the first seven years of this fund's existence, because there is a “cap” on those fees. When this seven-year period expires on November 11, 2011 (or the 11^th day, of the 11^th month, of the 11^th year) we can only refer to this event as...

5) “D-Day”:

Readers can choose what they want the “D” in “D-Day” to represent, with my own suggestions being “default” or “destruction”. Indeed, the deliberate choice by the Sponsor of such a memorable date for termination seems to indicate that they expect this date to represent a dramatic event in the evolution of this fund.

Given that there is no economic reason for the Trust to incur ever-increasing costs, the fund is essentially being “managed” according to “principles” very similar to those of a Ponzi-scheme. Specifically, only those buyers who get in (and get out) early are able to extract their undiluted gains in this fund, with later buyers receiving less “gold” when they buy in, and even less than that when they subsequently dispose of their units.

Given the deliberate lack of transparency of the fund, the price-gouging fee structure, and the clear warning to unit-holders that “all bets are off” when the 11^th day of the 11^th month of the 11^th year arrives, surely even those unit-holders who have remained oblivious to the many reasons to question this fund won't be reckless enough to continue to hold those units until “D-Day”?

6) Quality:

By now, every investor even pondering investing in gold bullion has heard the rumors of “tungsten-filled” gold bars being littered about various gold vaults around the world. What is the attitude of GLD's Sponsor and custodian regarding this rumor? To sum it up in three words “ignorance is bliss”. Neither the Sponsor or custodian will guarantee that any of the “gold bars” it claims to possess today are legitimate, despite the fact that such testing is both relatively quick and easy. (Of course, if GLD is actually holding chickens instead of gold, then “testing” for tungsten-fillings would be totally unnecessary).

7) Custodian:

The World Gold Council, who “sponsors” GLD is itself an association which primarily represents the world's largest gold-miners, who founded and funded it. As I have written previously, these mining companies have a “long relationship” with the handful of “bullion banks” in the world – in much the same manner that victims of serial child-abuse often have “long relationships” with their abusers.

Given that “checkered” past, and given that a close examination of the fund reveals that there are no long-term economic benefits in entrusting $10's of billions of investor dollars to the promises of bankers (see “Morgan Stanley Pays Damages for Precious Metals Fraud”), the choice of the world's largest “shorter” of gold as “custodian” for this fund is nothing less than Machiavellian. Indeed, it follows the pattern of abuse-victims in giving their abuser additional opportunities to commit further crimes.

While I hope that my analysis of the GLD prospectus can help investors to avoid the obvious dangers of this fund, it really shouldn't be necessary. This is a document which screams caveat emptor (“buyer beware”) in almost every paragraph. We already know that a “fox” has been put in charge of the “hen-house” - and for all we know that “hen-house” may (in fact) actually hold nothing but hens.

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written by Jeff Nielson, August 03, 2010

Sssd, I stress in my commentaries that the "physical" bullion we are accumulating is "insurance" in the most-literal sense of the term. In a recent commentary, I suggested that (long-term) people should be thinking about "spending" rather than "selling" their bullion.

(see "Preventing Your Government From Stealing Your Gold" http://www.bullionbullscanada....Itemid=131)

If what you REALLY want to do is TRADE gold, rather than accumulate bullion as "insurance", then you have to stay with "paper gold", since it is much too cumbersome (and expensive) to "trade" the actual metal.

On the other hand, for all the "traders" out there, why risk trading in risky vehicles like GLD, when there is (literally) more than a hundred gold miners to choose from, at various stages of development, providing a near-infinite selection in risk and leverage?

You get "natural leverage" with the miners - without having to use margin, or other risk-increasing strategies which ARTIFICIALLY increase leverage.

"A Novice's Guide to Precious Metals, Part II: the miners"
http://www.bullionbullscanada.com/index.php?option=com_content&view=article&id=523:a-novices-guide-to-precious-metals-part-ii-the-miners&catid=48:gold-commentary&Itemid=131

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written by sssd, August 03, 2010

Great info., would love to buy physical gold but can we have an article on how to sell for spot? seems like that's the biggest problem with the "real" stuff. Any suggestions?

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written by Jeff Nielson, July 17, 2010

Sorry Alpha but I'm not familiar with how Soros has handled his gold investments.

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written by alpha, July 16, 2010

I believe GLD is the ETF in which George Soros has invested heavily, and from whom the ETF has derived much credibility. Has anyone ever had any comments on that endorsement?

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written by Jeff Nielson, July 11, 2010

Sorry, Beach Bum - sometimes you focus upon one aspect of a question to a degree which causes you to forget the other parts.

With respect to damages, this is the entire problem with ANY fund which has a "custodian" (i.e. a third-party with no DIRECT ownership-interest in the fund). As I said in the commentary, judges are ALWAYS very reluctant to demand "specific performance" (i.e. forcing the custodian to produce the amount of gold supposedly being held).

What this means is that damages can NEVER be written in a way which will protect investors - other than simply giving their paper back to them. This is the fundamental problem with bullion-ETF's or even "allocated" gold accounts. If the party holding YOUR gold defaults, it's almost certain that all you will ever get back is paper.

However, what makes GLD especially bad is how it deals with the issue of liability - where it expressly allows the custodian to engage in "willful default" (simply REFUSING to honour its contract). The one situation where a judge MIGHT order "specific performance" with respect to a custodian agreement is when its known that the custodian is holding enough bullion to honour the contract, but simply doesn't want to.

For a WILLFUL breach of contract, no responsible party would/should EVER enter an agreement which permits the other side to simply "walk away" from the deal anytime, for any reason - and the offender only has to refund the PAPER which was originally invested.

In fact, in such situations of "willful default", "punitive damages" are nearly automatic - for obvious reasons: contract law is intentionally designed to encourage compliance with contracts and to CERTAINLY punish those parties who refuse to honour their agreements.

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written by Beach Bum, July 11, 2010

Jeff, my question specifically related to your #2 problem with GLD. How could they have written the liability and damages section to avoid your worries about it.
I'm not so worried about their listed fund "objectives". I understand they have to use the legal "weasel words" to cover their butts. That's the fault of the legal system, as you state.

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written by Jeff Nielson, July 10, 2010

I'm afraid we have only the LAWYERS to blame for the length and complexity of documents.

Here's how this devolution of contractual language occurs. A lawyer originally drafts a document using normal, understandable English. Then, 100 other lawyers start some kind of litigation based solely on trying to twist the plain meaning of the original words.

Out of those 100 lawyers, 10 will be successful. And thus the NEXT time a similar document has to be drafted, it will be ten times as long (lol). And THEN 100 lawyers will start some litigation involving the NEW contractual language - and the whole legal "merry-go-round" starts again, with the lawyers getting paid MORE each time the contract gets longer.

The lawyers are ALMOST as good at "wealth extraction" in our societies as the bankers. Compared to those two groups, doctors are a distant third.

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written by Grumley, July 10, 2010

"litigious" dammit

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written by Grumley, July 10, 2010

Let's not forget that how we approach a contract is just as important as how we "word it". How many of our problems can be related to how letigous we have become? The US Declaration of Independence from Britain was three pages. THREE PAGES. Our new Health Care and Financial Regulation bills are each over 2,000 pages. Further how many of our grandparents would have signed a mortgage contract that was over 100 pages long and never actually revealed how much they would end up paying?

I have to believe that when the dust settles, the collapse has to return us to a more accountable mentality. Continuing to allow people and corporations to escape responsibility by use of legal loop holes is just as "morally" unsustainable as our current financial system is mathematically.

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written by Jeff Nielson, July 10, 2010

That's certainly a fair question.

When the "investment objective" was stated, that should have been an UNEQUIVOCAL statement of GOLD OWNERSHIP, not some weak B.S. about merely tracking the PRICE of gold. Thus instead of the statement that "the Trustee BELIEVES this fund represents a cost-effective investment in gold", it should have read as follows:

"The investment objective is to provide OWNERSHIP of gold for unit-holders. The Trustee BELIEVES this fund represents a cost-effective option to hold gold."

In other words, the only place where unit-holders can tolerate a mere "belief" (which the fund clearly states they CANNOT rely upon) is with respect to GLD being "cost-effective" - since the fund managers cannot KNOW that GLD will be the lowest-cost choice for owning gold.

What cannot be tolerated by unit-holders is that the "investment in gold", itself is a mere "belief" of the fund managers, and may not be relied upon by investors.

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written by Beach Bum, July 10, 2010

Jeff, given the problems you cite with #2 Damages, how would you, with your legal background, have written the prospectus to better protect the average investor as it relates to willful default, fraud and negligence. It seems that the GLD language is fairly standard with regards to those items, but there must be a better way.

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written by mikem54321, July 10, 2010

techperson-- I assume it is you that stated, "GLD is audited by Deloitte & Touche. Gold is counted twice a year; every bar at fiscal yearend, and a statistically random count in the spring, with the Trustee records reconciled to the Custodian records and to the physical gold bars. The count is done by Inspectorate International Limited. No anomalies were found."

Can you supply some verification links to these statements please? Thanks in advance. --Mike

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written by Jeff Nielson, July 09, 2010

Nice to see you HERE, HA65MPH!

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written by HA65MPH, July 09, 2010

GOOD AS ALWAYS JEFF !...

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written by Jeff Nielson, July 08, 2010

Hockmir, I don't have a problem with the miner-ETF's, in fact I think they are a great vehicle for those investors who want exposure to the miners (since they provide natural leverage on the price of gold), but who are not (yet) familiar with these companies.

That said, I have a definite preference for junior producers (since there are less hedge-book "surprises") so I would recommend GDXJ ahead of GDX. Indeed, with the juniors you NEED to hold a basket (as Hockmir already has done), while with the large caps, you SHOULD be more selective - since there are definitely companies to steer away from among the large caps.

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written by hockmir, July 08, 2010

Following one step further into the logic of this discussion, I have decided to sell my GDX and GDXJ holdings. Just as GLD is alleged to provide a surrogate to owning the physical metal, GDX and GDXJ ETF's are alleged to provide a surrogate to owning Miners or Junior Miners. As I already own a basket of Miners and Juniors anyway, I will be redistributing the funds that I had in GDX and GDXJ directly into some other Gold and Silver issues.

Its not a bad time in the swing of the the market to do this anyway.

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written by Jeff Nielson, July 07, 2010

Techperson, please explain to everyone here why the TRUSTEES of this fund have entered into a "custodian agreement" with HSBC which makes provisions for a "willful default" by that bankster.

If I ever held units in a bullion ETF, it would be in one where the Trustee(s) is more concerned with protecting unit-holders than their bankster buddies.

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written by techperson, July 07, 2010

Jeff, this silliness is beneath you. Trying to find bogeymen in boilerplate legal language is goofy. The only serious question is: Is the gold there, allocated, numbered, in the vault, counted and audited? The answer, as you know, is absolutely yes.

All the gold bars in GLD are allocated and in a London facility. The GLD prospectus says: “The gold bars in an allocated gold account ar specific to that account and are identified by a list which shows, for each gold bar, the refiner, assay or fineness, serial number and gross and fine weight. Gold held in the Trust’s allocated account is the property of the Trust and is not traded, leased or loaned under any circumstances.”

GLD is audited by Deloitte & Touche. Gold is counted twice a year; every bar at fiscal yearend, and a statistically random count in the spring, with the Trustee records reconciled to the Custodian records and to the physical gold bars. The count is done by Inspectorate International Limited. No anomalies were found.

So in order for there to be a shortage of physical gold in GLD, all of the following would have to be in cahoots:

State Street Global Markets, the sponsor
Bank of New York, the Trustee
HSBC, the Custodian
Inspectorate International, the inventory counter
Deloitte & Touche, the auditor
And a couple of law firms, I’m sure

Tell me again why you are worried about “paper” gold?

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written by Jeff Nielson, July 07, 2010

Thanks for the comments. Yes, GATA has been very supportive in publishing our material - and we definitely appreciate the exposure we get there.

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written by KKPSTEIN, July 07, 2010

Nice one Jeff - This was just featured on GATA's site.

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written by Grumley, July 06, 2010

Excellent breakdown Jeff. Thank you for taking the time for those of us without a legal background. I shudder at the thought of what lies ahead for these poor "shareholders".

Two words of advice: BAT CAVE

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