One Step Ahead

[Ignutz]

January 11, 2005. (FinancialWire) Regulation SHO, the U.S.

Securities and Exchange Commission effort to make a Federal case out of illegal naked short selling, is here, and it is turning a broad spotlight on brokerages’ failures to deliver stock certificates purchased from them by investors that appears to be much brighter and more intrusive than either the detractors had expected or perhaps the market makers used to minimal accountability had wanted.

That spotlight is dimming, however, as the over-the-counter list as of yesterday’s midnight deadline still inexplicably contained only 29 companies, including BICO, Inc. (OTCBB: BIKO), Freestar Technology (NASDAQ: FSRT), and Loral Space & Communications (OTCBB: LRLSQ). At the same time, David Simon of Schimatic Technology (OTC: SCTN) asked FinancialWire about the number of “fails to deliver” are associated with its listing.

Apparently, neither the SEC nor NASDAQ are providing the full transparency to the companies and their shareholders that they demand of the companies.

The lists, at http://www.nyse.com/threshold , http://www.nasdaqtrader.com/aspx/regsho.aspx , http://amex.com/amextrader , and elsewhere, initially showed 73 securities on the NYSE list, only 9 of which are U.S. companies, 70 securities on the AMEX list, 22 individual companies, and 374 stocks on the NASDAQ list, including 96 on the exchange, 29 OTCBB and 254 on the Pink Sheets.

NASDAQ initially missed its Friday night deadline, and Dow Jones’ (NYSE: DJ) Wall Street Journal said the list is “far from complete as it stands.” NASDAQ apparently had until noon yesterday to complete the list, but no changes were evident.

“NASDAQ Rule 11830 is identical to SHO except for market making exemptions. This data proves the NASD was not enforcing rule 11830 as the short positions continued to increase on the now ‘threshold securities’. Nobody was enforcing the mandatory close-outs,” alleged Dave Patch, of the website http://www.investigatethesec.com .

In an email to SEC and NASDAQ executives, Patch called the list so far a “fake.”

Regulation SHO was advertised as a solution to what some have said could be the biggest scandal in the history of the securities industry, and regulators have drawn significant fire from both sides of the short selling camp, although “naked” short selling, where short sellers have almost unlimited abilities to sell securities many times over the number of shares outstanding, has long supposed to have been illegal.

The controversy has drawn both legislative and judicial proponents and opponents, and until the Tsunami took over the news, General Electric’s (NYSE: GE) “Dateline” was said to be on the verge of a major expose that will reportedly touch on possible collusion between brokerages that are purportedly impossibly behind in their fails to deliver certificates, the Depository Trust Corporation, whose “Stock Borrow Program” reportedly garners it almost a billion dollars a year in fees for what detractors call “counterfeit trades,” and even the vaunted U.S. Securities and Exchange Commission itself, which makes a fee on every stock transaction, whether legitimate or not.
There is even a blog on the subject, at http://nakedshortingforum.blogspot.com/ .

A poster on the Yahoo (NASDAQ: YHOO) message boards said that due to the new threshold rules, now being implemented, “the pressure is on the market makers to do what is right because all eyes will be placed on them. There will be many key Federal Authorities, economists, mathematicians, etc. that are already lined up to be performing certain studies for historical purposes. All the MMs have to do to not make matters worse is to do what is right and fix what they had broken for years with any fully reporting company that’s a threshold security as soon as possible.”

The poster noted that a stock must be fully reporting and considered a threshold security. A threshold security is one where .5% of its outstanding shares (OS) have been proven to have been naked shorted for 5 consecutive trading days and where the MMs have failed to close out those positions for five consecutive trading days.

“Example: If stock ABCD had 2,000,000 shares outstanding and was a fully reporting company as of 3 Jan 05, the MMs would need to fail to close out the open naked shorted position of .5% of 2,000,000 shares which would equate to 10,000 shares not being “completely” covered for 5 consecutive trading days. This means that the MMs would need to make sure they don’t allow 5 consecutive days to happen where they leave any balance remaining of the 10,000 naked shorted shares as an open account of stock ABCD. They must ‘completely’ close all open accounts of naked shorted positions.

“When the supply of shares of a stock is zero, the supply is zero. It doesn’t matter how you get there, be it by a naked short position or by the float being absorbed. This is where it all starts as a short squeeze will now be formed and grows as demand to purchase shares increase. This is where the misperception exists with Regulation Sho. People think that a new naked short position has to be created for a stock to be eligible for protection and rectification under Regulation Sho. This is not true. It’s even better. All naked short positions of the past will not go away and must be dealt with. The clock begins ticking for covering, and means that any stock that has been naked shorted will automatically start out in a forced short squeeze mode that will only escalate the longer the MMs wait to cover.

“Any buying pressure will cause the increase of the naked shorted position to grow to begin approaching the 5 day consecutive window of not getting covered by the MMs. After the 5 days transpire where the MMs have failed to deliver and close the open naked shorted position, that stock in which they failed to deliver will be placed on a Threshold Security List for the public to view. This is where it starts to get awesome,” said the post.

“With no buying pressure, they won’t have to cover as soon as one might have hoped as shares are sold exceeding the amount of shares being bought for stock ABCD. Still, if they don’t cover the ‘entire’ naked short position for 5 consecutive days, stock ABCD will show up on the Threshold Security List for the public to view on 10 January.

“After such, the MMs have 13 days to close out the ‘entire’ naked shorted position or face being suspended and/or shut down from that security and other penalties to possibly put that MM out of business. The end result will still be the supply being zero and the stock would be forced to be traded correctly based on supply and demand with an already dried up supply. This means the creation of an instant short squeeze!”

The poster said that the market makers will need to get the naked shorted shares out of circulation by increasing the bid to entice shareholders to sell. “The problem comes when they allow for the buying to outweigh the selling due to increased demand for the stock. As orders are placed to buy shares, they must be filled by the MMs. This will worsen their problem when nobody is selling. As the MMs make the mistake and allow for any stock to be placed on the Threshold Security List, it will publicly reveal where the MMs are already having a problem in covering. Us as shareholders will see this list and contribute with forcing the short squeezes for every stock on the list.”

The recent Securities Industry of America symposium on Regulation SHO, which was supposed to curtail illegal naked short selling, only further deepened the U.S. Securities and Exchange Commission divide as a dramatic – some say startling – new 22-page working paper, “Strategic Delivery Failures in U.S. Equity Markets,” was published.

Moderators at the symposium included 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 included 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 referenced working paper by University of New Mexico Professor Leslie Boni was initiated while the author was visiting financial economist at the SEC.

She termed the “failures to deliver,” which litigants have called “counterfeiting,” as being “pervasive.”

The professor said that a whopping 42% of listed stocks at the New York Stock Exchange, NASDAQ and AMEX, and 47% of unlisted stocks in the OTCBB and Pink Sheets had persistent fails of 5 days or more with 4% being above the SEC’s threshold limits for failures.
The standard for settlement is presently 3 days with a concept proposal by the SEC in comment to reduce 3 day settlement to 1 day, noted Patch.

The economist pointed to a study conducted by Evans, Geczy, Musto, and Reed in 2003 that provided evidence that while the SRO’s have buy-in requirements, such buy-ins almost never occur. She noted that an audit of one market maker showed that all or a portion of shares in 69,063 transactions during 1998-1999 were “fails to deliver.”

“The market maker was bought-in on only 86 of these positions,” she stated.

Dave Patch, editor of “Stockgate Today,” said that his own review of the Securities Acts of 1933 and 1934 finds no reference to “strategic failures.” In fact, he said, Section 17a of the 1934 act “mandates prompt and accurate clearance and settlement of trades, and the admission of Strategic Failures is also in direct violation of Rule 15c6-1.”

Rule 15c6-1 defines the settlement cycle for trades executed and states that no Broker Dealer may enter into a contract for the sale of a security whereby the payment for that security and the delivery of that security is greater than 3 business days. For market making activities there is a slight exemption from the delivery in a Bona Fide Market Making activity but as the SEC and SRO’s have repeatedly stated, Bona Fide Market making is not simply supporting the best offer in a naked short sale without also representing the best bid or near best bid in a long trade. They must be actively making a market on both sides of trading to use the exemption, noted Patch.
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.”

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.”

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.” 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!

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.”

The new “threshold lists” could make for an interesting January, and possibly, an interesting 2005.
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