June 13, 2005 (FinancialWire) The counterfeit securities demonstration this past week in Washington and New York were not massive, but the organizers are satisfied enough that they are planning another, this time targeting the Depository Trust & Clearing Corp., set for July 29.
The protests are over what several U.S. Senators have called the failure of the SEC to stop illegal naked short sales in stocks such as Novelis (NYSE: NVL), Martha Stewart Living Omnimedia (NYSE: MSO), Infineon Technologies (NYSE: IFX) and Calpine Corp. (NYSE: CPN).
“We made a big impact on our government and on Wall Street with a small group of protesters this last Monday and Tuesday, we are planning a very large rally in front of the DTCC with hundreds of shareholders from several companies that have been devastated by naked short selling crimes”, stated Hugo Cancio of Fuego Entertainment.
Counterfeiting anything of monetary value in the United States is illegal. Yet shares of stocks involving hundreds or even thousands of companies are counterfeited on a daily basis without penalty, the organizers stated. “This crime affects everybody in America. The counterfeiting of stocks is costing our country in many ways; jobs, retirement accounts, college fund savings, 401K’s, rising inflation and all kinds of ways that the general public is not aware of.”
Fuego is filiming “The Counterfeit Conspiracy” documentary.
The “National Counterfeit Conspiracy” event is profiled at http://www.americaneedstoknow.com/DC_trip.htm
Meanwhile, a stock transfer agent, Transfer Online Inc., has asked U.S. Securities and Exchange Commission Chair William Donaldson to put a stop to the control the Depository Trust & Clearing Corp. and Automatic Data Processing (NYSE: ADP) are fast gaing over the transfer business, and to demand DTCC transparency.
Excerpts from the letter, posted at http://www.faulkingtruth.com/Articles/LettersToEditor/1012.html
The letter to Donaldson and to market regulation states: ”“Over the years as the amount of shares held at DTC has increased it has become more and more difficult to determine who owns the shares, who is trading them and if the trading is proper. This trend, and the resulting problems I will detail below, continues to increase because a minority of the total number of shareholders are reflected on the books and records of the corporation, most activity takes place behind the wall of ownership that is designated as Cede & Co. and neither the company nor the transfer agent has any access to the underlying information.
“Furthermore, DTC recently managed to put through a rule change (Release No. 34-50758A; File No.S7-24-04) that prohibits a transfer agent from representing any company who seeks to withdraw from the DTC system. This change effectively leaves companies with no voice or choice in the management of their stock and their ability to have any transparency as to what is actually taking place in the market in regard to their stock.
“I receive calls from companies seeking information as they watch millions of shares trade in a single day, who watch their share price decrease in value and who have no access to information regarding who is behind the trading of these shares, or if in fact the trades are at all legitimate. As the system now operates, most companies have a large percentage of shares on their books registered to Cede & Co.
“Given the importance of shareholder voting and communication one would assume that the same requirements placed on transfer agents as to accuracy and reporting would be placed on ADP and Cede & Co. as they usually hold or service the majority of the shares owned in any given company.
“I have found; however, that when presented with the tabulation reports from ADP the share totals they report sometimes exceed the total number of shares outstanding for the company. Let me restate this because it is a very important part of my concern about a system that is more and more headed in the direction of increased control by DTC. The shares presented by ADP, that are the shares voted by the brokers on behalf of the shareholders for whom they hold accounts, EXCEED when added to the shareholders of record the total number of shares outstanding.
“Where are these extra shares coming from? Why are there no controls on the number of shares held in the nominee name Cede & Co. vs. the ownership on the books and records of the brokers and why is the company not privy to any information unless it pays whatever fees it is told it must pay by the organizations that control the data?
“In fact, as the system is evolving, DTC is de facto becoming the largest transfer agent in the industry even though it is an organization formed by and working for the interests of the brokerage community. If, ultimately, the S.E.C. is in place to protect investors then this issue can not be ignored because in the end when the market is completely under the control of the brokers and the organizations that represent them then the market can neither be transparent nor fair.”
In other Stockgate news, Senator James Talent (R-MO), has joined U.S. Senators Richard Shelby (D-AL), Susan Collins (R-ME), Robert Bennett (R-UT) and Richard Durbin (D-IL) in questioning U.S. Securities and Exchange Commission Chair William Donaldson about what they call the “failure” of Regulation SHO to curtail unlawful, predatory securities trading.
The current Senate line-up carries significant heft. Senator Collins is chair of the Homeland Security and Governmental Affairs committee, Senator Shelby is chair of the Senate Banking Committee, Senator Durbin is Assistant Democratic Leader and Senator Bennett is Republican Whip. The Senators’ letters are posted at http://www.americaneedstoknow.com
“Stockgate Today” publisher David Patch said that the Senators have 23 good reasons, citing that many companies, including Martha Stewart Living Omnimedia (NYSE: MSO), Delta Air Lines (NYSE: DAL), Krispy Kreme (NYSE: KKD) and Netflix (NASDAQ: NFLX), that remain “not settled” on the official threshold lists maintained by the New York Stock Exchange and Nasdaq five months later.
“Stockgate Today” is published at http://www.investigatethesec.com
. The Senators’ letters to shareholders and the SEC are posted at http://www.americaneedstoknow.com
Patch said that most of the 23 companies hardest-hit by unlawful stock manipulations in full sight of market regulators, including those at the SEC, such as Annette Nazareth, head of market regulation, who belittles complaints as coming from those who “want to see their stock go up,” have had double-digit declines in stock valuations over the 94 days they have been on the highly-public list.
He also noted that in the March, 2005 Euromoney Magazine article on illegal naked short selling, Head of Market Regulation Annette Nazareth’s assistant, James Brigagliano said that prior lawbreakers were “grandfathered” because “we were concerned about generating volatility where there were large pre-existing open positions, and we wanted to start afresh with new regulation, not re-write history.”
“So does Ken Lay, but he can’t,” retorted Patch.
This disputed “grandfathering” has not yet been taken up by Congress, but the 23 companies on the threshhold list for over days are new transgressions, and presumably they can’t be dealt with either because Nazareth and Brigagliano are concerned about “generating volatility.”
Also, in a blockbuster event almost equal to the mysterious “postponement” of the announced expose of the Depository Trust and Clearing Corp. by General Electric’s (NYSE: GE) “Dateline NBC,” the U.S. Securities and Exchange Commission has inexplicably given the DTC’s National Securities Clearing Corp. “immunity” in the form of limited liability for willful misconduct or violations of Federal securities laws.
The Notice regarding the SEC’s action is at http://www.nscc.com/impnot/notices/notice2005/a6029.pdf
These and other events, including the proposed nomination of Director of Market Regulation Annette Nazareth, who has characterized opponents of illegal market manipulation as people “who just want their stock to go up,” to become a Commissioner, is providing more and more fodder for the organizers of public demonstrations and lobbying in Washington June 6 and in New York June 7. The organizers, who are filming a documentary, say demonstrators now number over 600.
Some legal experts are questioning whether the SEC, without the approval of Congress, has the authority to limit the NSCC’s liability. There have been similar questions about the SEC’s authority to unilaterally “grandfather” securities violations prior to Regulation SHO.
The new regulation is sure to be litigated since the DTCC and the NSCC were the subject of lawsuits claiming their “stock borrow program” is illegal counterfeiting, prior to the rule approval by the SEC.
The DTCC has also admitted to interfering with the media in impacting the distribution of FinancialWire on Yahoo (NASDAQ: YHOO) and elsewhere through malicious interactions with Investors Business Daily. The “Important Notice” from the DTCC regarding the NSCC demonstrates that the entities are a “self-regulatory organization” under the auspices of the SEC, which ramps up the media interference to First Amendment violations. FinancialWire’s counsel, Marshal Shichtman, Esq., is returning to the U.S. today and will be reviewing the new evidence.
The DTCC said that the “approved changes create a uniform standard limiting NSCC’s liability to direct losses caused by the NSCC’s gross negligence, willful misconduct, or violation of Federal securities laws for which there is a private right of action.”
In addition, the organization stated, “the changes memorialize an appropriate commercial standard of care that will protect NSCC for undue liability, permit the resources of NSCC to be appropriately utilized for promoting the accurate clearance and settlement of securities, and are consistent with similar rules adopted by other self-regulatory organizations and approved by the Commission.”
The DTCC had asked for the rule December 8, 2004. It is not known how the proposed rule slipped through the cracks on the public and Congressional levels prior to the approval.
The National Coalition Against Naked Shorting stated that the action was sought and approved hastily because “they have been willfully violating securities laws for years, know that it will come out in court, and want to have a piece of paper to fall back on,” adding that it corroborates “the theory that the stock borrow program violates a host of securities laws, that the NSCC knows it, and that they have been counterfeiting stock for years and just now are starting to catch on to the idea that they will get caught.”
Nazareth was quoted in February in the New York Times (NYSE:NYT) as “doubting” that threshold companies such as Overstock (NASDAQ: OSTK), Martha Stewart Living (NYSE: MSO) or Novastar Financial (NYSE: NFI) were being “manipulated,” and that victims of illegal naked short sales are simply people who want their “stocks to go up.”
She said those who complain of their losses to illegal trading activity have an attitude that “it’s a criminal conspiracy when stocks move the wrong way, and the government should do something about it.”
“What is criminal,” said one who believes Nazareth’s appointment, so far championed by U.S. Senators Charles Schumer (D-NY) and Harry Reid (D-NV), would be disastrous for small investors who someday expect justice and a fair playing field in the markets, “is that someone could be in a position of authority at all with this kind of anti-investor attitude.”