CHRISTIAN ROCK CAFE

[shaneyboy]

Posted by: Capt_Nemo
In reply to: Capt_Nemo who wrote msg# 5145 Date:11/15/2004 10:16:15 PM
Post #of 5165

Thursday, at 1 p.m., the Securities Industry of America will conduct a symposium on Regulation SHO at Fordham University at Lincoln Center.
Entitled “Implementing the New Short Sale Rules,”
Moderators are Steven Kessler, Associate General Counsel for Goldman Sachs & Co. (NYSE: GS), and Deborah Mittelman, Deputy Director of Global Compliance for Reuters’ (NASDAQ: RTRSY) Instinet. Panelists include Jeffrey Bernstein, Senior Managing Director of Bear Stearns (NYSE: BSC), and Robert O’Connor, Executive Director of the Law Department for Morgan Stanley (NYSE: MWD).
The sold-out program is on the web at http://www.sia.com/sho/html/program.html
There is a live teleconference, but it costs $195 for members and $295 for non-members.
Dave Patch, editor of “Stockgate Today,” said that the SEC has made claims to members of Congress that mandatory close-out of threshold securities is intended to address the abusive backlog on settlement failures; however, “the SEC remarkably eliminated all references to timelines as it pertains to ‘mandatory’ when it released SHO.
“In the original proposal the SEC admitted to having 2 days listed as the timeline to mandatory close-out but the final draft had it removed presumably on behalf of DTCC requests. An NASD proposal which also defined a timeline for mandatory close-out was in like discarded by the SEC and has yet to see an open public comment regarding its merits.
“With members of the SEC on the panel to address the issues, those attending this symposium will have the opportunity to hear how the SEC explains ‘mandatory’ to the Industry and how the SEC and SRO’s will be enforcing that definition,” Patch concluded.
NBC’s “Dateline” recently confirmed to FinancialWire that it is preparing a comprehensive expose of the “naked short selling” controversy.
The reportage is said to focus on allegations that “brokers, through their wholly owned clearing house system, the Depository Trust Corporation (DTCC), have effectively been creating counterfeit shares of stock through their ‘Stock Borrow Program’, which allows brokers to ‘borrow’ the same shares over and over again, artificially inflating the share count and driving the price of the stock down.
Stockgate, a growing global malady, is being contested on multiple levels, including judicial, legislative and political.
Delegates to the September 20 annual SEC Forum on Small Business passed several resolutions on the issue to be submitted to the SEC. Among them were:
1. Extend Reg. SHO to apply to all publicly traded companies including non-reporting companies.
2. Recommend that the SEC Commissioners reinstate the proposed provision in Regulation SHO that prohibited a selling shareholder from withdrawing his/her profits from the trade until after delivery of the underlying sold shares.
3. SEC should require all SROs, and any clearinghouse for an SRO that receives securities into accounts for security holders to disclose the fact of the ability to loan the securities in the accounts and allow security holders to opt out of allowing the securities to be loaned.
Robert Shapiro, chair of Sonecon LLC, an economic advisory firm and former Under Secretary of Commerce from 1998 to 2001 and principal economic advisor to President William Clinton in his 1992 campaign, has expressed “serious concerns about the impact of the final version of Regulation SHO regarding short sales on the equity and transparency of our equity markets.”
Shapiro holds a Ph.D. from Harvard University and has been a Fellow of the National Bureau
of Economic Research, the Brookings Institution, and Harvard University.
Shapiro said the SEC is correct to broaden the terms of regulation of short sales, and applauded the section directing broker dealers to mark all equity orders as “long,” “short” or “short exempt.” More important, he said, the new “locate and delivery” requirements could substantially reduce stock manipulation carried out through naked short sales -- but only if those requirements are
widely applied and strictly enforced.
“Unfortunately, Regulation SHO does not meet either of these two standards. The troubling result is that the Regulation, in effect, establishes an official level of tolerance for unsettled or naked short sales,” Shapiro charged.
Shapiro said he strongly concurs with the comments of the North American Securities Administrators Association (NASAA) on the draft rule, which said NASAA was “unable to determine why the Commission proposes to permit significant settlement failures at all. While there are instances when settlement may be legitimately delayed, existing regulations provide for extensions for settlement. If the Commission continues to allow settlement failures, it may well facilitate the harm that the proposal is designed to remedy.”
“Until Regulation SHO, this economic counterfeiting has been facilitated by electronic record keeping and the apparent practice of the DTCC and its subsidiary National Securities Clearing Corporation (NSCC) of often disregarding persistent unsettled short positions. With Regulation SHO, the SEC has provided its implicit imprimatur for the same practice in cases covering the vast majority of public companies and billions of dollars.”
Shapiro urged the SEC to “reconsider the provisions of Regulations SHO and, at a minimum, apply the ‘locate and delivery’ requirements for threshold securities to all short sale transactions, and adopt a zero-tolerance policy for significant settlement failures. American investors should feel confident that the SEC will ensure the integrity of every equity transaction they undertake and fully protect their right to receive what they have paid for.”
While the battle is still waged in the U.S., some of the threats to small investors’ investments are being exacted overseas. Despite some 250 companies winning their exit pass, the FaulkingTruth.com website reported that dozens of companies are still being refused delistings from the Berlin-Bremin Exchange, including ImageWare Systems (AMEX: IW) and Action Products International (NASDAQ: APII). FinancialWire also reported that Sontra Medical Corp. (NASDAQ: SONT) is among those whose shares Berlin has resisted delisting.
In all, Faulk said Berliner Freiverkehr CEO Holger Timm reported he has been asked by 386 firms to cease their trading. He is said to have balked at the term delisting, noting that “Trading foreign shares on the third-tier market segment at the Berlin or any other German exchange is not being regarded as a 'listing', therefore it is incorrect to use the term 'delisting' if a company wants to cease trading."
FaulkingTruth said others refused delistings include Endevco Inc. (OTCBB: ENDE), Limelight Media Group (OTCBB: LMMG), IpVoice Communications (OTCBB: IPVO), now NewMarket Technology Inc, (OTCBB: NMKT), Force Protection (OTCBB: FRCP), Cyber Digital Inc. (OTCBB: CYBD), and XRAYMEDIA (OTCBB:XRYM). Others mentioned yesterday included Military Communications Technology (OTCBB: MLTA), Dalrada Financial Corp. (OTCBB: DRDF), and Mannatech Inc. (NASDAQ: MTEX).
Timm sent a letter to companies asking to be delisted, which promised if “after considering the above aspects, should you still prefer your stocks not to be traded in Germany we will respect your wish and apply for delisting on the Berlin stock exchange.”
However, for dozens of companies, that appears to have been an empty offer.
In a comment letter to the U.S. Securities and Exchange Commission, Larry Thompson, Managing Director and Senior Deputy General Counsel for the DTCC, said it is a violation of Section 17A of the Securities Act of 1934 to impose any process or restriction that would cause delays in the settlement process, said the online newsletter, published by http://www.investigatethesec.com.
“Although not the intent of the comment letter, Mr. Thomson has just become part of a growing number of people who contend that the most recent short selling reform package out of the SEC, Regulation SHO, may not be in compliance with federal law.
“The letter submitted to the SEC on August 16, 2004 was addressing the SEC’s proposal to restrict all transfer agents from clearing trades on those issuers who created a ‘Custody Only”’ restriction on the trading of their securities,” noted the newsletter.
“His legal points, presumably unintended, actually shot squarely across the bow of the SEC’s Regulation SHO,” said StockGate Today, pointing to http://www.sec.gov/rules/proposed/s72404/s72404-14.pdf
“Thompson concludes his opinion letter to the SEC by surmising that the SEC should proceed on with this proposal as written because issuers are not authorized to put restrictions on their stock. For transfer agents to clear these stocks would be aiding and abetting unlawful conduct. The point of law being the settlement requirements defined in Section 17A of the Securities Act of 1934.
“Thus, asked the newsletter, with Thompson “claiming that a delay in the settlement of trades is unlawful how can Regulation SHO be grounded by the presumption that trade settlements are not a mandatory part of the Markets?
“The SEC, in Regulation SHO claims that 4% of all publicly traded companies have levels of settlement failures that exceed an abusive threshold. They also admit that in some cases the failures exceed the entire public float of companies. These are market conditions not only create delays and inefficiencies but fraud and manipulation as well. The SEC’s final package never addressed forced settlements and forced timelines on the failures but instead simply threatened ‘future enforcement’ possibilities and placed “restrictions’ above abusive levels.
The final Regulation SHO rules are at http://www.sec.gov/rules/final/34-50103.htm. The trade reporting requirements are at http://www.nasdr.com/2610_2004.asp#04-54.
Recently it was reported that regulated companies, such as dealers, brokers, mutual fund companies, financing firms, and investment houses, have been told they have to submit revised operating manuals to incorporate changes in the Anti-Money-Laundering Act of 2001 by Oct. 29.
The key is a requirement that regulated firms “must know their customers” to prevent money-laundering practices. The firms have to have a procedure to get satisfactory proof of the customer's identity and ensure that effective procedures for verifying the identity of new customers are in place.
However, FinancialWire interviews with spokespersons at the SEC has determined that individuals may open nominee offshore firms without providing their identities to anyone, and by using a multiple number of such nominee firms can even gain complete control of a public company while never revealing their true identities.
The SEC told FinancialWire that it has no power to require identification of individuals behind such firms.
Columnist Jack Anderson has stated that millions if not billions of dollars are laundered through naked short selling schemes.
Twenty civil cases have now been filed by O'Quinn, Laminack & Pirtle, Christian Smith & Jewell, and Heard, Robins, Cloud, Lubel & Greenwood, LLP, all of Houston, Texas. The consortium of law firms, famed for the giant awards they obtained suing tobacco companies. The group recently brought suit against the Depository Trust and Clearing Corp. for allegedly participating in the short-selling conspiracy through its “stock borrow” program which the attorneys say is nothing more than an illegal electronic printing press for stock certificates.
Lead counsel John O'Quinn said: "We are committed to the relentless pursuit of justice.”
All this has led to some major changes on Wall Street, if not regulatory attentiveness.
Recently observers were surprised to find a comment letter submitted to the SEC by Mike Alexander, Senior VP of Charles Schwab, that admits outright that brokerages regularly ignore rules and regulations, saying it is not rules that need to be written; it is changes in behavior that is needed.
“Schwab opposes the notion that securities intermediaries such as broker-dealers be required to police compliance,” he stated. “The NYSE and other SROs have had trade affirmation rules on their books for some time. However, such rules have not been effective in changing the behavior
of Buy-Side firms or their custodians; nor do the rules provide assurance that the affirmed trade will settle.
“Recognition of this fact is evidence that changes to the settlement cycle not only require overhauling systems, but also changing behavior. We believe that only by holding all market
participants directly accountable for making required affirmations will the necessary changes to behavior,” he stated at http://www.sec.gov/rules/concept/s71304/charlesschwab061604.pdf .
“The SEC claims that the number of companies involved in this ‘threshold security’ category is 4% of all publicly traded companies. If in fact it is that small the process is certainly manageable,” said the website InvestigatetheSEC.com at http://www.investigatethesec.com . “It is also the right of every issuer, in protecting their business and their investors to know the status of their stock trading.”
Some were discussing whether the SEC can keep such information private under the Freedom of Information Act.
The marketplace is already upset over promises by the Berlin Stock Exchange, since broken, that it would delist any company upon request.
“Please understand that cessation of trading in the shares of XRAYMEDIA Inc. (OTCBB: XRYM) is not possible,” the exchange told one such requester.
It’s not just U.S. companies such as Whistler Investments (OTCBB: WHIS), Sonoran Energy (OTCBB: SNRN), Celsion Corporation (AMEX: CLN), and eLinear Inc. (AMEX: ELU) or Israeli companies that have had serious concerns about their unannounced and unathrorized listings on the Berlin-Bremen Stock Exchange.
According to court filings supported by the O’Quinn/Christian legal network, almost $1 billion annually is received by the Depository Trust and Clearing Corp. for its “Stock Borrow Program,” which the lawsuits claim is just a fancy name for counterfeiting, as the DTCC purportedly lends out many multiples of the actual certificates in the float. Apparently the SEC receives a transaction fee for each transaction facilitated by these loans of non-existent certificates, which could knock a hole in its budget should the revenues from the practice be halted.
The North American Securities Administrators Association, comprised of state and Canadian regulators, has pointedly told the SEC that either it must rethink its cozy DTCC relationship, or it hints, some of its more aggressive state practitioners (think Eliot Spitzer) may do the rethinking for the SEC.
Naked short selling is worrisome for hundreds of small U.S. companies, including those recently asking to be delisted from the Berlin Stock Exchange, such as Golden Phoenix Minerals, Inc. (OTCBB: GPXM), Nannaco, Inc. (OTCBB: NNCO), 5G Wireless Communications, Inc. (OTCBB: FGWC), CyberAds, Inc. (OTCBB :CYAD), Provectus Pharmaceuticals, Inc. (OTCBB: PVCT), House of Brussels Chocolates (OTCBB: HBSL), InforMedix, Inc. (OTCBB: IFMX), Tissera, Inc. (OTCBB: TSSR), Americana Publishing, Inc. (OTCBB: APBH), Celsion Corporation (AMEX: CLN), ChampionLyte Holdings, Inc. (OTCBB: CPLY), Pickups Plus, Inc. (OTCBB:PUPS), China Wireless Communications Inc. (OTC BB: CWLC), CareDecision Corp. (OTCBB: CDED), Titan General Holdings, Inc. (OTCBB: TTGH), IPVoice Communications, Inc. (OTCBB: IPVO), Whistler Investments (OTCBB: WHIS), WARP Technology Holdings, Inc. (OTCBB: WRPT), BGR Corp. (OTCBB: BGRR), ICOA, Inc., (OTCBB: ICOA), DICUT, INC. (OTCBB: DCUTE), NHC Communications Inc. (TSX: NHC; OTCBB: NHCMF), Stratus Services Group, Inc. (OTCBB: SERV), Golden Phoenix Minerals, Inc. (OTCBB: GPXM).
Small public companies are squeezed not only by hedge funds, naked short sellers, overseas listers such as the Berlin Stock Exchange, and the out-of-control “Stock Borrow Program” run by the governance-conflict-laden Depository Trust and Clearing Corporation, but to the amazement of the industry, as often and not by their own regulators.
A new staff recommendation by Annette Nazareth, director of the division of market regulation at the U.S. Securities and Exchange Commission to “outlaw” ownership of paper certificates at the same time the Depository Trust and Clearing Corporation is under intense scrutiny for alleged electronic counterfeiting has begun hitting the small public company markets, company executives, shareholders and manipulative short-selling opponents like the proverbial ton of bricks.
A Dow Jones (NYSE: DJ) article by Judith Burns sparked the uproar, as the inextricably intertwined web of connections between the SEC and the DTC, which is sagging from the weight of conflicted governance by representatives from a rollcall of industry heavyweights, including NASD, which owns NASDAQ (OTCBB: NDAQ), the New York Stock Exchange, Goldman Sachs (NYSE: GS) and Lehman Brothers (NYSE: LEH), to name only a few.
The Dow Jones report noted that “naked short-selling occurs when sellers don't buy shares to replace those they borrowed, a manipulative practice that can drive a company's stock price sharply lower.
The recent lawsuit filed by Nanopierce Technologies (OTCBB: NPCT) alleges that the Depository Trust and Clearing Corp. has a lot of reasons, almost one billion of them a year, to keep illegal naked short selling in operation. It was the shot across the bow by the legendary Houston law firms of Christian, Smith, Wukoson and Jewell, and OQuinn, Laminack and Pirtle, whose notches already include environmental targets, the breast implant industry and the tobacco industry, all brought to their knees.
In comments to the U.S. Securities and Exchange Commission, C. Austin Burrell, who is providing litigation support and research for the law firms, said that StockGate is more massive than anyone may have imagined. “Illegal Naked Short Selling has stripped hundreds of billions, if not TRILLIONS, of dollars from American investors,” and have resulted in over 7,000 public companies having been “shorted out of existence over the past six years.” Burrell said some experts believe as much as $1 trillion to $3 trillion has been lost to this practice.
He stated that the restrictions on short selling were deliberately put into the Securities Acts of 1933 and 1934 because of the first-hand evidence then available that the “sheer scale of the crashes was a direct result of intentional manipulation of US markets through abusive short selling by a massive conspiracy.”
Burrell noted that the 65-lawyer team presided over by lead lawyers Wes Christian and John O’Quinn has uncovered more than 1,200 hedge fund and offshore accounts working through more than 150 broker-dealers and market makers in a joint cooperative effort to strip small and medium size public companies of their value.
According to lawyer Christian, et.al., the DTC is at the very heart of the problem, and has almost a billion dollars a year at stake in keeping the problem.
The Depository Trust Company (DTC) is a member of the U.S. Federal Reserve System, a limited-purpose trust company under New York State banking law and a registered clearing agency with the SEC. The depository supposedly brings efficiency to the securities industry by retaining custody of some 2 million securities issues, effectively "dematerializing" most of them so that they exist only as electronic files rather than as countless pieces of paper. The depository also provides the services necessary for the maintenance of the securities it has in “custody.”
According to the suit, the DTCC has an enormous pecuniary and conflicted interest in the entire short selling scandal through the huge income stream they were realizing from it every day. They have made literally billions of dollars lending individual real shares, in most cases over and over, getting a fee each time they made a journal entry in the “Stock Borrow Program.”
The Stock Borrow Program was purportedly set up to facilitate expedited clearance of stock trades. Somewhere along the line, the DTCC became aware that if it could lend a single share an unlimited number of times, it could collect a fee each time, according to Burrell. “There are numerous cases of a single share being lent ten or many more times,” giving rise to the complaint that the DTCC has been electronically counterfeiting just as was done via printed certificates before the Crash.
“Such re-hypothecation has in effect made the potential ‘float’ in a single company's shares virtually unlimited and the term ‘float’ meaningless. Shares could be electronically created/counterfeited/kited without a registration statement being filed, and without the underlying company having any knowledge such shares are being sold or even in existence.” Burrell said the Christian/O’Quinn lawsuits will seek to show that the “counterfeiting/creation of unregistered shares is a specific violation of the Securities Act of 1933, barring the ‘Sale of Unregistered Securities’.”
One lawsuit alleges that the DTC has a colossal disincentive to stop the “stock borrow” program, booking revenues from services of $425,416,000 and similarly, the NSCC deriving revenues of $293,133,000.
Further, the suit alleges that “open positions” resulting from this activity at the close of business on December 31, 2003, “approximated $3,025,467,000” due to NSCC, and $2,303,717,000 due by NSCC, and unsettled positions of $721,750,000 for securities borrowed through the NSCC’s “Stock Borrow Program.”
Nanopierce claims that DTCC and NSCC have joined in a “scheme” to “manipulate downward the price of the affected securities, thereby reducing the market value of the open fail to deliver positions.” The suit also claims that the s have permitted sellers to maintain open fail to deliver positions of tens of millions of shares for periods of a year and even longer.
It quotes the National Association of Security Dealers as admitting that “concerns have been raised by members, issuers, investors and other interested parties about potentially abusive short selling activities occurring in the marketplace. In particular, naked short selling, or selling short without borrowing securities to make delivery, can result in long term failures to deliver, including aggregate failures to deliver that exceed the total float of a security. NASD believes such extended failures to deliver can have a negative effect on the market. Among other things, by not having to deliver securities, naked short sellers can take on larger short positions than would otherwise be permissible, which can facilitate manipulative activity.”
The largely unregulated DTC has become something of a defacto Czar presiding over the entire U.S. markets system, wielding more day-to-day influence and control than the SEC, the NASD and NASDAQ combined.
The Depository Trust and Clearing Corp.’s two preferred shareholders are the New York Stock Exchange and the NASD, a regulatory agency that also owns the NASDAQ (OTCBB: NDAQ) and the embattled American Stock Exchange! Regulators, regulate thyself?
In an era when corporate governance is the primary interest for the SEC and state regulators, the DTCC is hardly a role model. Its 21 directors represent a virtual litany of conflict:
They include Bradley Abelow, Managing Director, Goldman Sachs (NYSE: GS); Jonathan E. Beyman, Chief Information Officer, Lehman Brothers (NYSE: LEH); Frank J. Bisignano, Chief Administrative Officer and Senior Executive Vice President, Citigroup / Solomon Smith Barney's Corporate Investment Bank (NYSE: C); Michael C. Bodson, Managing Director, Morgan Stanley (NYSE: MWD); Gary Bullock, Global Head of Logistics, Infrastructure, UBS Investment Bank (NYSE: UBS); Stephen P. Casper, Managing Director and Chief Operating Officer, Fischer Francis Trees & Watts, Inc.; Jill M. Considine,Chairman, President & Chief Executive Officer, The Depository Trust & Clearing Corporation (DTCC);
Also, Paul F. Costello, President, Business Services Group, Wachovia Securities (NYSE: WB); John W. Cummings, Senior Vice President & Head of Global Technology & Services, Merrill Lynch & Co. (NYSE: MER); Donald F. Donahue, Chief Operating Officer, The Depository Trust & Clearing Corporation (DTCC); Norman Eaker, General Partner, Edward Jones; George Hrabovsky, President, Alliance Global Investors Service; Catherine R. Kinney, President and Co-Chief Operating Officer, New York Stock Exchange; Thomas J. McCrossan, Executive Vice President, State Street Corporation (NYSE: STT); Eileen K. Murray, Managing Director, Credit Suisse First Boston (NYSE: CSR); James P. Palermo, Vice Chairman, Mellon Financial Corporation (NYSE: MEL); Thomas J. Perna, Senior Executive Vice President, Financial Companies Services Sector of The Bank of New York (NYSE: BNY); Ronald Purpora, Chief Executive Officer, Garban LLC; Douglas Shulman, President, Regulatory Services and Operations, NASD; and Thompson M. Swayne, Executive Vice President, JPMorgan Chase (NYSE: JPM).
In their comments to the SEC regarding Regulation SHO in January, the 50 state regulators, through their association, the North American Association of Securities Administrators (NASAA) issued what many consider to be a strong warning that if the DTC is not dealt with in the final regulations, state regulators such as New York State Attorney General Eliot Spitzer may step to the plate.
In what many considered to have been explosive comments, Ralph Lambiase, NASAA president and Director of the Connecticut Division of Securities, warned "NASAA urges the Commission to reconsider its stance regarding the role of the Depository Trust and Clearing Corporation (the DTC). As a threshold matter, NASAA believes that the Commission should explicitly prohibit the DTC from lending more shares of a security than it actually holds. The ability of the overall proposed rule would be severely impared unless the Commission undertakes to implement such a prohibition.”
Recently, leading market makers and brokers named in various lawsuits and other actions, including FleetBoston (NYSE: FBF), Goldman, Sachs & Co. (NYSE: GS), H. Myerson & Co., Inc. (NASDAQ: MHMY), Olde / H&R Block (NYSE: HRB), Charles Schwab (NYSE: SCH), Toronto-Dominion’s (NYSE: TD), TD Waterhouse Group, Bank of America's (NYSE: BAC) Banc of America Securities LLC, Societe Generale's (OTC: SCGLF) SG Cowen Securities Corp. vFinance, Inc. (OTCBB: VFIN), Knight Trading Group, Inc. (NASDAQ: NITE), A.G. Edwards, Inc. (NYSE: AGE), Ameritrade Holding Corp. (NASDAQ: AMTD), Deutsche Bank AG (NYSE: DB), and ETrade Group, Inc. (NYSE: ET), were forced to comply with new short-selling market regulations imposed by the NASD after the SEC had “sat on” the NASD request to plug material loopholes for almost 2-1/2 years.
“The new rules expand the scope of the affirmative determination requirements to include orders received from broker/dealers that are not members of NASD ("non-member broker/dealers").
The new rule is on the web at http://www.nasdr.com/2610_2004.asp#04-03
http://www.investrend.com/articles/article.asp?analystId=0&id=11696&topicId=160&level=16....