NASD takes step to eliminate naked shorting
IN THE MONEY: NASD Tightens Short Selling/Delivery Rule
By Carol S. Remond
A Dow Jones Newswires Column
NEW YORK (Dow Jones)--Taking most market participants by surprise, the
National Association of Securities Dealers has drastically tightened one of
its rules governing short selling.
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.
(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
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