By Carol S. Remond A Dow Jones Newswires Column
NEW YORK (Dow Jones)--Taking most market participants by surprise, the National Associations of Securities Dealers has drastically tightened one of its rules governing short selling effective 2/20/04
Known as affirmative determination, the NASD rule stipulates that brokers and dealers engaged in a short sale transaction must make sure that shares can be delivered by settlement time, three days later.
"We closed a loophole," said Steve Luparello, executive vice president of Market Regulation at NASD.
Until now, non-NASD members, like specialists, option markets and foreign brokers, weren't covered under the affirmative determination rule. That means that non-NASD members didn't have to represent to the NASD broker through which they conducted a short sale order that they would be able to
deliver the stock by settlement date.
A short seller typically borrows stock from a broker to sell it into the market, betting that the share price will fall so that he can buy the stock back at a lower price and pocket the difference.
The amended NASD affirmative determination rule, which was recently approved by the Securities and Exchange Commission, will particularly affect short sales conducted through foreign brokers, most specifically Canadian brokers which have often been used by investors to sell short the stock of small
U.S. companies trading on the Over-the-counter Bulletin Board or OTCBB.
Because it's often impossible to borrow the shares of companies trading on the OTCBB, investors and hedge funds looking to take negative bets on these often-overvalued development-stage companies have traditionally been trading through Canada where it's not required to borrow stock before selling it short. The practice is known as naked shorting. That trading avenue has
now been effectively closed.
The new NASD rule doesn't cover Canadian brokers, since most are not members of the association, instead it makes it the responsibility of U.S. brokers trading with non-members to make sure that their counterparts will be able to settle a transaction before completing a short sale.
"It's part of (a broker's) supervisory responsibilities," NASD's Luparello said, adding that a non-member's previous failures to deliver should be a good indication of whether or not it will in fact be able to complete the transaction by the settlement date.
Market makers engaged in bone fide market making activities will continue to be exempt from affirmative determination.
Luparello said that, unlike a parallel SEC initiative to tighten short selling rules on the small-cap markets, the new NASD rules did not originate from worries over mounting failures to deliver stock into the national clearing system. But Luparello said the amended NASD rule fits nicely with
the new short selling regulations now under consideration by the SEC.
"I think it addresses a gap and (shows) that we, like the SEC, are looking at a variety of things in this area," Luparello said.
The NASD proposal was first submitted to the SEC in November 2001, well before alleged abuses of naked shorting became the focal point of a campaign lead by some OTCBB companies in the U.S that say they have been victimized by the practice.
While some investors argue that short sellers provide a needed service to the markets, others have called for the complete abolition of short selling because of the undue pressure its puts on the shares of companies.
While market participants in the U.S. and abroad are well aware of the new short selling regulations being put forward by the SEC, known as Regulation SHO, most said they knew nothing of the NASD's plan before it became final.
"It's taken us by surprise," said Richard Thomas, head of compliance at Canadian brokerage firm Pacific International.
Although separate from it, the amended NASD rule fits tightly within the SEC's SHO which is now under review by the SEC staff after a period during which market participants were invited to comment on it.
As it stands, the new SEC short selling rules will make it easier to short large-cap stocks since they would do away with the "uptick" rule, which bans short selling on a stock when the price is falling.
But it when it comes to the small-cap markets, where it's often impossible to borrow stock, the impact of SHO will be the opposite, making it harder to short sale stock.
The new SEC rule sets a predetermined level of so-called clearing fails - cases in which a broker or investor cannot deliver stock within two days after settlement - which will trigger a 90-day blackout whereby the customer will not be allowed to short sell that security. That 90-day exemption would affect trading of U.S. securities in and outside the U.S.
The new NASD affirmative determination rule will take effect on Feb. 20. 2004
(Carol S. Remond is one of four "In The Money" columnists who take a
sophisticated look at the value of companies and their securities and
explores unique trading strategies.)
-By Carol S. Remond; Dow Jones Newswires; 201 938 2074;
carol.remond@dowjones.com
