Post by fastwalker on Aug 29, 2005 7:51:52 GMT -5
August 29, 2005 (FinancialWire) Although the law requires that brokerages clear the decks of companies on Regulation SHO threshold lists within a two-week period at the most, seven, including Taser International (NASDAQ TASR), Electro Energy (NASDAQ: EEEI), Nanogen (NASDAQ: NGEN) and Isonics Corp. (NASDAQ: ISON), have never, ever, even once, dropped off the list in the entire period since the list was first published January 7, 2005.
According to InvestigatetheSEC.com, these four have had the greatest loss of marketcap, Taser 61%, Electro Energy 59%, Nanogen 46%, and Isonics 46%.
The remaining three are Antigenics (NASDAQ: AGEN), with a 42% market cap loss, Cal-Maine Foods (NASDAQ: CALM), with a 39% loss, and Given Imaging (NASDAQ: GIVN), a 29% loss.
The NASDAQ list equaled 101 companies in January; yet today there are still 97 companies. Some 18 of those were listed January 7. Four companies had short positions above 10%. To qualify for the list, the companies had to have 0.5% short positions.
There are rumors that the SEC, NASD and NYSE are currently auditing more than a dozen brokerages to see why Regulation SHO is failing, and to bring charges where necessary.
Regulators are smarting over allegations that they gave super hedge funds a free pass because “fails to deliver” were just too massive to reconcile in the “grandfather clause” in Regulation SHO after the FTDs couldn’t be cleaned up even with a six months notice, and there is growing evidence that the U.S. Securities and Exchange Commission, the NASD and the New York Stock Exchange are not about to let some state regulator do another “Spitzer” on them.
The North American Securities Administrators Association, representing state regulators, was sharply critical of the Depository Trust and Clearing Corp., co-owned by the NYSE and NASDAQ, during the comment period over Regulation SHO, and FinancialWire has been aware for some time that some state regulators have been looking into why the DTCC has fails to deliver amounting to $6 billion a day.
NASDAQ may soon pull out of the DTCC and form its own clearing group, according to Traders Magazine. A break-up of the DTCC has been editorially endorsed by Investrend Information, publishers of FinancialWire.
A growing chorus has also risen from Congress to “make Regulation SHO effective,” rather than what critics say it has been so far, a showcase of illegal manipulation.
A battle royale, including competing lawsuits, are being waged between Overstock.com (NASDAQ: OSTK), which alleges that Rocker Partners, a major hedge fund said by some to be the leading shorter of a large segment of the NYSE Regulation SHO “threshold list,” is engaging I illegal manipulative activites.
TheStreet.com’s Kevin Kelleher said the “scarcity of hard data on the illicit trading tactic so far has only polarized the debate on how serious a problem it has become.”
Despite a number of semi-favorable articles in TheStreet.com, Overstock CEO Byrne has named the company as a part of the media conspiracy supporting misdeeds by hedge funds.
The hedge funds, Kelleher said, say that “most of the positions created by failed deliveries are related to options trading and not a concerted effort to drive stocks down.
“That may be the case. But without better data on stocks that failed to deliver, the rest of us will never know for sure.
“Meanwhile, what little data are available suggest that naked shorting may indeed be out of control and that a much-ballyhooed trading rule known as Regulation SHO has so far done little to rein it in.”
He said that naked shorting “is in essence make-believe short-selling. In the same way kids play doctor without the medical equipment, naked shorters sell unborrowed stocks, stocks that no one has borrowed and possibly never will. The SEC allows naked shorting in two cases: to maintain liquidity in hard-to-find shares and for anyone who shorted unborrowed shares before 2005. That second exemption has generated its own share of controversy.”
He said that the outcry has steadily increased. “In recent months, newsletters like CrossCurrents and Biotech Monthly have sounded alarms on naked shorting.”
"I'm quite confident that this is a much larger issue than anyone cares to consider," Kelleher quotes CrossCurrents editor Alan Newman. “It's hard to find bears any harder-core than Newman, who in February 2000 put a then-unthinkable 3000 target on Nasdaq and who today expects the Dow to sink to 8500. When the uber-bears are worried about the adverse impact of shorting, it's time to start worrying.”
Newman explains naked short-selling in eye-opening clarity, he notes: “Selling unborrowed shares means the buyer doesn't get delivery of the shares he bought. "There are now two actual owners of the same shares. The exact same shares now show up long in both accounts," Newman says. "Every 100 shares of a naked short is a duplication of real shares, just as if the shares had been photocopied and distributed."
Kelleher also quotes Larry Thompson, the First Deputy General Counsel at the Depository Trust and Clearing Corporation, a central clearinghouse for trade settlement, that about 1.5% of the dollar volume of stocks traded each day fail to deliver. In a Q&A published this March on the DTCC site, "fails to deliver and receive amount to about $6 billion daily ... including both new fails and aged fails."
Overall, said TheStreet.com, “1.5% of volume may not be much of an impact. But judging from the way some stocks spend weeks and months on the threshold list of shares that face persistent delivery failures, the naked shorting is concentrated in illiquid shares known to be hedge fund targets. The bulk are traded over the counter, but some are well known, such as Netflix, Netease (NASDAQ: NTES), Shanda Interactive (NASDAQ: SNDA), and Taser International (NASDAQ: TASR).
He said that perhaps the most telling data came from a simple Freedom of Information Act filed by an individual investor who asked the SEC for aggregate data on failed deliveries on the NYSE and Nasdaq. Before Regulation SHO was passed in September 2004, an average of about 155 million shares a day failed to deliver on the two exchanges, excluding OTC and Pink Sheet stocks, TheStreet.com says the data showed.
“After Regulation SHO was passed, the delivery failures rose, averaging 205 million shares a day in December and rising as high as 259 million on Dec. 22 alone. Since the law went into effect on Jan. 3, the delivery failures have declined, but are still only about 20% below their levels of last summer.
“The SEC, wanting to avoid short-squeezes in dozens of stocks caused by the closing out of naked short positions, opted to ‘grandfather in’ any failed deliveries before Jan. 3. But that opened the door to another problem: In the four months between the date Regulation SHO went into effect and the date it took effect, the grandfather provision gave anyone who was so inclined a generous period of time to build up naked short positions in any stock he liked.
“Or, to use the counterfeit analogy, imagine outlawing the printing of funny money, but giving everyone four months to print up as much as they'd like. Only then would counterfeit dollars be illegal -- but only to print, not to use.”
He points out that “it wasn't as if regulators weren't expecting this. The NASD, in a 2004 proposal to tighten rules on naked short-selling, wrote, "Naked short-selling ... can result in long-term failures to deliver, including aggregate failures to deliver that exceed the total float of a security. NASD believes that 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. Further, significant failures to deliver can impact certain rights of buyers, such as the right to vote shares or the treatment of dividends."
Some 93.89% of the respondents to the Investrend Poll at www.investrendinformation.com said that the DTCC should be “punished” for its interferences with the media, especially FinancialWire, which has been reporting on this issue for almost two years.
The censorship has since admitted to in a letter posted at www.investrend.com/Admin/Topics/Articles/Resources/349_1113403487.pdf .
More than a half dozen highly-ranked Republican and Democratic U.S. Senators have weighed in that the U.S. Securities and Exchange Commission’s much-ballyhooed “Regulation SHO” has highlighted the massive extent of the illegal practice but has done nothing to stop it.
The main lists for Regulation SHO are at www.nasdaqtrader.com/aspx/regsho.aspx and www.nyse.com/Frameset.html?displayPage=/threshold .
Even the DTCC has admitted its “fails to deliver” is massive, amounting to upwards of $6 billion a day, according to DTCC Deputy General Counsel Larry Thompson.
A former U.S. Under Secretary of Commerce for Economic Affairs, Robert J. Shapiro, now chair of Sonecon, LLC, a private economic advisory firm, accused Thompson of making “inaccurate or misleading” statements. Shapiro, who holds a Ph.D from Harvard University, was the principal economic advisor to former President Bill Clinton in his initial Presidential campaign.
Shapiro currently provides economic analysis to the law firms of O’Quinn, Laminack and Pirtle, Christian, Smith and Jewell, and Heard, Robins, Cloud, Lubel and Greenwood, on issues associated with naked short sales, which he noted includes “matters raised in an interview published by @dtcc with DTCC deputy general counsel Larry Thompson.”
He asserted in his letter that “the extent to which [naked short selling] occurs is in dispute. While this statement may be narrowly correct, objective academic analysis has established that naked short selling has been a widespread practice and one which, when allowed to persist, can pose a threat to the integrity of equity markets. A recent study by Dr. Leslie Boni, then a visiting financial economist at the SEC, analyzed NSCC data and found that on three random days, an average of more than 700 listed stocks had failures-to-deliver of 60 million-to-120 million shares sold short – naked shorts – that had persisted for at least two months. In addition, over 800 unlisted stocks on any day had fails of 120 million-to-180 million shares sold short that also had persisted for at least two months. The total number of naked shorts, including those that had persisted for less than two months, was presumably considerably greater.
“Regarding the extent of naked shorts, Thompson has provided closely-related additional information: ‘fails to deliver and receive amount to about $6 billion daily…including both new fails and aged fails.’ Thompson minimizes this total by comparing it to “just under $400 billion in trades (emphasis added) processed daily by NSCC, or about 1.5% of the dollar volume.” By most people’s standards, a problem involving hundreds of millions of shares valued at $6 billion every day is a very large problem. Moreover, the $6 billion total substantially underestimates the actual value of all failed-to-deliver trades measured when the trades actually occurred. Most of the $6 billion total represents uncovered or naked short sales, many of which have gone undelivered for weeks or months with their market price being marked-to-market every day. As a stock’s price falls, the market price of naked shorts in that stock also declines, reducing the total value of the outstanding failures-to-deliver cited by Thompson.
“In other respects, Thompson’s comparison to the ‘$400 billion in trades processed daily by NSCC’ seems disingenuous and misleading, because that $400 billion total covers not only U.S. equity trades which can involve most of the failures-to-deliver at issue, but many other transactions also processed by the NSCC. The value of all equity transactions on U.S. markets in 2004, for example, averaged $82.3 billion/day. If Thompson is correct that the daily value of fails-to-deliver averages $6 billion, that total is equivalent to 7.2 percent of average daily equity trades or nearly five times the 1.5 percent level suggested by Thompson.
“Furthermore, the DTCC reports on its website that on a peak day, ‘through its Continuous Net Settlement (CNS) system, NSCC eliminated the need to settle 96 percent of total obligations.’ Assuming that CNS nets out the same proportion of trades on other days, $384 billion of the $400 billion in daily trades cited by Thompson are netted out, leaving only $16 billion in daily trades that require the actual delivery of securities. The $6 billion of fails-to-deliver securities existing on any day are equivalent to 37.5 percent of the average daily trades that require the delivery of securities, or 25 times the 1.5 percent level cited by Thompson.
“Thompson tries to explain the large numbers of shares that go undelivered – in most cases arising from naked short sales -- by citing problems with paper certificates, inevitable human error, and the legitimate operations of market makers. This also seems misleading or disingenuous. Regarding problems with paper certificates, the DTCC estimates that 97 percent of all stock certificates are now kept in electronic form. Nor can human error or legitimate market-making operations explain the high levels of failures-to-deliver that persist for months – on any day, an average of 180 million-to-300 million shares have gone undelivered for two months or longer – as documented by Dr. Boni’s analysis of NSCC data.
“Thompson also disparages the attorneys who represent companies that have been damaged or destroyed by massive naked short sales, and their shareholders, by claiming falsely that the cases in this matter have almost all been dismissed or withdrawn. The legal firms that I advise -- O’Quinn, Petrie and Laminack; Christian, Smith and Jewell; and Heard, Robins, Cloud, Lubel and Greenwood – have not lost any motions against the DTCC or its affiliates and currently have one case against the DTCC pending in Nevada and another case against the DTCC pending in Arkansas. In addition, on February 24, 2005, these attorneys were granted an order by the New York Supreme Court ordering the DTCC to produce trading records involving two companies they represent, including records from the Stock Borrow program, which may establish whether large-scale naked short sales were used to manipulate and drive down the stock price of those two companies.
“Thompson also asserts that the plaintiffs suing the DTCC for damages associated with the handling of naked short sales rely on “theories [that] are not an accurate reflection of how the capital market system actually works.” This assertion is inaccurate. There is no dispute about how the capital markets work -- nor any doubt that naked short sales have been used to manipulate and drive down the price of stocks, as seen in numerous death-spiral financing cases. The issue here is the DTCC’s role in allowing or facilitating such stock manipulation through its treatment of extended naked short sales.
“In explaining the DTCC’s role in these matters, Thompson rejects the claim that the NSCC’s Stock Borrow program allows the same shares to be lent over and over again, potentially creating more shares than actually exist or ‘phantom’ shares. By Thompson’s own account, shares borrowed by the NSCC to settle naked short sales are deducted from the lending member’s DTC account and credited to the DTC account of the member to whom the shares have been sold. Therefore, those same shares become available to be re-borrowed to settle another naked short sale and, if that happens, to be re-borrowed again and again to settle a succession of naked short sales. Throughout this process, the actual short sellers may continue to fail-to-deliver the shares to cover their shorts and, as Dr. Boni’s analysis of NSCC data found, the underlying failure can age for months or even years. The process which Thompson describes is one in which shares can be borrowed and lent over and over again, introducing more shares into the market than are legally registered and issued. If any ambiguity remains, Thompson can clarify it by responding to the following query: Once a share that has been borrowed through the NSCC Stock Borrow program is delivered to the purchaser, is that share restricted in any way so it cannot be lent again?
“It is important to note that the Stock Borrow program is used when continuous net settlement cannot locate the shares to settle. As a consequence, Stock Borrow is usually called into play when there are relatively few shares available for borrowing. These are propitious conditions for market manipulation: Unscrupulous short sellers undertake large-scale naked short sales involving stocks for which few shares are available for trading and lending, relying on the Stock Borrow program to borrow the limited available shares, again and again, at sufficient levels to drive down the market price of the shares.
“Thompson notes that of approximately $6 billion in outstanding failures-to-deliver existing on any day, “the Stock Borrow program is able to resolve about $1.1 billion … or about 20% [18 percent] of the total fail obligation.” In this statement, Thompson raises very serious questions about the integrity and operations of the NSCC and DTCC, which he can clarify by responding to the following queries: If the Stock Borrow program “resolves” only 18 percent of total fails, what is the disposition of the remaining 82 percent of outstanding fails? When failures-to-deliver occur that are not resolved through Stock Borrow, does the NSCC credit the undelivered shares to the member representing the buyer, creating genuine “phantom shares”? Finally, how many shares do the borrowing brokers, clearing firms and other participants in the Stock Borrow program owe the NSCC on a typical day, and what is their total value?
“In a related matter, Thompson tries to distance the DTCC from charges that shares held in restricted accounts – for example, cash accounts, retirement accounts and many institutional accounts – are improperly lent through the Stock Borrow program by claiming that responsibility for segregating restricted shares from lendable shares falls to the “broker and bank members” of the DTCC, while responsibility for monitoring or regulating their performance in this matter falls to the stock exchanges and the SEC. As a trust company, the DTCC cannot hold that it has no role, duty or responsibility to ensure the probity of its operations. Thompson could address this issue by responding to the following queries: What procedures does the NSCC have to ensure that shares held in members’ accounts for possible loan through the NSCC Stock Borrow program are unencumbered by regulatory or legal restrictions from being pledged or assigned and eligible to be borrowed? On any given day, how many participants in the Stock Borrow program have lent shares that exceed their lendable shares, in what numbers and of what value?
“Thompson also tries to distance the DTCC as far as possible from the naked short selling that generates most of the extended failures-to-deliver: ‘We don’t have any power or legal authority to regulate or stop short selling, naked or otherwise. We also have no power to force member firms to close out or resolve fails to deliver … we don’t even see whether a sale is short or not.’ In fact, the DTCC chooses to not distinguish short sales from long sales, chooses to not regulate or stop extended naked short sales, and chooses to not force member firms to resolve protracted naked short sales.
“First, Regulation SHO requires that all transactions be clearly marked short or long. If the DTCC and NSCC do not know whether sales are short or long as Thompson contends, they choose to not know. Second, the NSCC has a clear responsibility and adequate means to stop naked short sales of extended duration, with no legal barrier that would prevent them from so doing. As a trust company with an acknowledged duty to provide investors certainty in the settlement and clearance of equity transactions, the DTCC chose to carry out that duty by assuming the role of counterparty to both sides of every equity transaction, through the operations of the NSCC’s CNS system and the Stock Borrow program. By allowing short sellers to fail-to-deliver shares for months or even years, the NSCC clearly fails to provide certainty in settlement to the buyers, sellers and issuers of securities. Since it is widely known that extended naked short sales have been used to manipulate stock prices in cases of death-spiral financing, and the NSCC created the Stock Borrow program to address failures-to-deliver that prominently include naked short sales, the NSCC and DTCC share a responsibility with the SEC and the stock exchanges to protect investors by resolving extended fails.
“Third, the DTCC and NSCC have the clear capacity to force member firms to resolve the extended failures-to-deliver of their customers by purchasing shares on the open market and deducting the cost from the member’s account. A 2003 study by Dr. Richard Evans and others provides evidence that forced buy-ins by any party occur very rarely. They found that a major options market maker who failed to deliver all or a portion of shares sold in 69,063 transactions in 1998-1999 was bought-in only 86 times or barely one-tenth of 1 percent of the fails. Thompson can clarify investors’ understanding of their operations by responding to the following query: What proportion of shares that are persistent fails-to-deliver, of one month or longer, are ever bought in?
“Thompson acknowledges that the DTCC and NSCC know precisely how many failures-to-deliver exist for each stock and the precise duration of each of these fails. Yet, the DTCC refuses to disclose this information even to the issuer of the stock in question, which Thompson justifies by citing ‘NSCC rules’ prohibiting such a release of data based on ‘the obvious reason that the trading data we receive could be used to manipulate the market, as well as reveal trading patterns of individual firms.’
“This response is both disingenuous and revealing. We know now, for the first time, that the DTCC has full knowledge of the extent of protracted, large-scale naked short sales in all particular cases. We also know now that the DTCC has had this information for at least a decade, since Thompson also notes that ‘fails, as a percentage of total trading, hasn’t changed in the last 10 years.’ Yet, based on the DTCC’s own rules, it allowed these abuses to persist and fester. The DTCC and NSCC can change their rules at any time. Moreover, in this case, those rules are unjustified. Data documenting outstanding short sales in each stock are currently issued publicly, so further data on how many of those short sales are naked would not reveal additional information about the trading patterns of individual firms or in any way empower manipulators. In fact, the DTCC could substantially disarm manipulators by both publicly reporting naked short sales in each issue and pledging to force buy-ins of all naked short sales that persist for more than a limited period.
Surely, if large-scale, extended naked short sales have effectively created “phantom” shares, companies have a responsibility to their shareholders and the right to secure this information from the organization which manages the settlement of short sales. At a minimum, the DTCC should respond to requests by issuers for data on extended failures-to-deliver in their own stocks, both in the past and currently, so they can take steps to resist stock manipulators or bring them to account for past manipulation.
Thompson also claims that the DTCC did not create or manage the Stock Borrow program to serve its own financial interest, insisting that the service generates less than $2 million a year in direct fees to the DTCC and that all DTCC services are priced on a “not for profit” basis that seeks to match revenues with expenses. Without further information, these responses beg the question of whose private financial interest has been served by the Stock Borrow program, especially as the DTCC is owned by the stock markets, clearinghouses, brokerage and banking institutions that use its services. Thompson and the DTCC can clarify this serious matter by responding to the following queries: Do DTCC participant/owners receive interest or other payments through or from the Stock Borrow program for lending the shares of their customers and, if so, how much have they received for these activities over the last 10 years? Further, do DTCC participant/owners receive any dividend, interest or other payments or distributions from the DTCC or its subsidiaries?,” Shapiro concluded.
Neither Thompson nor the DTCC have responded to Shapiro’s wide-ranging allegations.
According to InvestigatetheSEC.com, these four have had the greatest loss of marketcap, Taser 61%, Electro Energy 59%, Nanogen 46%, and Isonics 46%.
The remaining three are Antigenics (NASDAQ: AGEN), with a 42% market cap loss, Cal-Maine Foods (NASDAQ: CALM), with a 39% loss, and Given Imaging (NASDAQ: GIVN), a 29% loss.
The NASDAQ list equaled 101 companies in January; yet today there are still 97 companies. Some 18 of those were listed January 7. Four companies had short positions above 10%. To qualify for the list, the companies had to have 0.5% short positions.
There are rumors that the SEC, NASD and NYSE are currently auditing more than a dozen brokerages to see why Regulation SHO is failing, and to bring charges where necessary.
Regulators are smarting over allegations that they gave super hedge funds a free pass because “fails to deliver” were just too massive to reconcile in the “grandfather clause” in Regulation SHO after the FTDs couldn’t be cleaned up even with a six months notice, and there is growing evidence that the U.S. Securities and Exchange Commission, the NASD and the New York Stock Exchange are not about to let some state regulator do another “Spitzer” on them.
The North American Securities Administrators Association, representing state regulators, was sharply critical of the Depository Trust and Clearing Corp., co-owned by the NYSE and NASDAQ, during the comment period over Regulation SHO, and FinancialWire has been aware for some time that some state regulators have been looking into why the DTCC has fails to deliver amounting to $6 billion a day.
NASDAQ may soon pull out of the DTCC and form its own clearing group, according to Traders Magazine. A break-up of the DTCC has been editorially endorsed by Investrend Information, publishers of FinancialWire.
A growing chorus has also risen from Congress to “make Regulation SHO effective,” rather than what critics say it has been so far, a showcase of illegal manipulation.
A battle royale, including competing lawsuits, are being waged between Overstock.com (NASDAQ: OSTK), which alleges that Rocker Partners, a major hedge fund said by some to be the leading shorter of a large segment of the NYSE Regulation SHO “threshold list,” is engaging I illegal manipulative activites.
TheStreet.com’s Kevin Kelleher said the “scarcity of hard data on the illicit trading tactic so far has only polarized the debate on how serious a problem it has become.”
Despite a number of semi-favorable articles in TheStreet.com, Overstock CEO Byrne has named the company as a part of the media conspiracy supporting misdeeds by hedge funds.
The hedge funds, Kelleher said, say that “most of the positions created by failed deliveries are related to options trading and not a concerted effort to drive stocks down.
“That may be the case. But without better data on stocks that failed to deliver, the rest of us will never know for sure.
“Meanwhile, what little data are available suggest that naked shorting may indeed be out of control and that a much-ballyhooed trading rule known as Regulation SHO has so far done little to rein it in.”
He said that naked shorting “is in essence make-believe short-selling. In the same way kids play doctor without the medical equipment, naked shorters sell unborrowed stocks, stocks that no one has borrowed and possibly never will. The SEC allows naked shorting in two cases: to maintain liquidity in hard-to-find shares and for anyone who shorted unborrowed shares before 2005. That second exemption has generated its own share of controversy.”
He said that the outcry has steadily increased. “In recent months, newsletters like CrossCurrents and Biotech Monthly have sounded alarms on naked shorting.”
"I'm quite confident that this is a much larger issue than anyone cares to consider," Kelleher quotes CrossCurrents editor Alan Newman. “It's hard to find bears any harder-core than Newman, who in February 2000 put a then-unthinkable 3000 target on Nasdaq and who today expects the Dow to sink to 8500. When the uber-bears are worried about the adverse impact of shorting, it's time to start worrying.”
Newman explains naked short-selling in eye-opening clarity, he notes: “Selling unborrowed shares means the buyer doesn't get delivery of the shares he bought. "There are now two actual owners of the same shares. The exact same shares now show up long in both accounts," Newman says. "Every 100 shares of a naked short is a duplication of real shares, just as if the shares had been photocopied and distributed."
Kelleher also quotes Larry Thompson, the First Deputy General Counsel at the Depository Trust and Clearing Corporation, a central clearinghouse for trade settlement, that about 1.5% of the dollar volume of stocks traded each day fail to deliver. In a Q&A published this March on the DTCC site, "fails to deliver and receive amount to about $6 billion daily ... including both new fails and aged fails."
Overall, said TheStreet.com, “1.5% of volume may not be much of an impact. But judging from the way some stocks spend weeks and months on the threshold list of shares that face persistent delivery failures, the naked shorting is concentrated in illiquid shares known to be hedge fund targets. The bulk are traded over the counter, but some are well known, such as Netflix, Netease (NASDAQ: NTES), Shanda Interactive (NASDAQ: SNDA), and Taser International (NASDAQ: TASR).
He said that perhaps the most telling data came from a simple Freedom of Information Act filed by an individual investor who asked the SEC for aggregate data on failed deliveries on the NYSE and Nasdaq. Before Regulation SHO was passed in September 2004, an average of about 155 million shares a day failed to deliver on the two exchanges, excluding OTC and Pink Sheet stocks, TheStreet.com says the data showed.
“After Regulation SHO was passed, the delivery failures rose, averaging 205 million shares a day in December and rising as high as 259 million on Dec. 22 alone. Since the law went into effect on Jan. 3, the delivery failures have declined, but are still only about 20% below their levels of last summer.
“The SEC, wanting to avoid short-squeezes in dozens of stocks caused by the closing out of naked short positions, opted to ‘grandfather in’ any failed deliveries before Jan. 3. But that opened the door to another problem: In the four months between the date Regulation SHO went into effect and the date it took effect, the grandfather provision gave anyone who was so inclined a generous period of time to build up naked short positions in any stock he liked.
“Or, to use the counterfeit analogy, imagine outlawing the printing of funny money, but giving everyone four months to print up as much as they'd like. Only then would counterfeit dollars be illegal -- but only to print, not to use.”
He points out that “it wasn't as if regulators weren't expecting this. The NASD, in a 2004 proposal to tighten rules on naked short-selling, wrote, "Naked short-selling ... can result in long-term failures to deliver, including aggregate failures to deliver that exceed the total float of a security. NASD believes that 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. Further, significant failures to deliver can impact certain rights of buyers, such as the right to vote shares or the treatment of dividends."
Some 93.89% of the respondents to the Investrend Poll at www.investrendinformation.com said that the DTCC should be “punished” for its interferences with the media, especially FinancialWire, which has been reporting on this issue for almost two years.
The censorship has since admitted to in a letter posted at www.investrend.com/Admin/Topics/Articles/Resources/349_1113403487.pdf .
More than a half dozen highly-ranked Republican and Democratic U.S. Senators have weighed in that the U.S. Securities and Exchange Commission’s much-ballyhooed “Regulation SHO” has highlighted the massive extent of the illegal practice but has done nothing to stop it.
The main lists for Regulation SHO are at www.nasdaqtrader.com/aspx/regsho.aspx and www.nyse.com/Frameset.html?displayPage=/threshold .
Even the DTCC has admitted its “fails to deliver” is massive, amounting to upwards of $6 billion a day, according to DTCC Deputy General Counsel Larry Thompson.
A former U.S. Under Secretary of Commerce for Economic Affairs, Robert J. Shapiro, now chair of Sonecon, LLC, a private economic advisory firm, accused Thompson of making “inaccurate or misleading” statements. Shapiro, who holds a Ph.D from Harvard University, was the principal economic advisor to former President Bill Clinton in his initial Presidential campaign.
Shapiro currently provides economic analysis to the law firms of O’Quinn, Laminack and Pirtle, Christian, Smith and Jewell, and Heard, Robins, Cloud, Lubel and Greenwood, on issues associated with naked short sales, which he noted includes “matters raised in an interview published by @dtcc with DTCC deputy general counsel Larry Thompson.”
He asserted in his letter that “the extent to which [naked short selling] occurs is in dispute. While this statement may be narrowly correct, objective academic analysis has established that naked short selling has been a widespread practice and one which, when allowed to persist, can pose a threat to the integrity of equity markets. A recent study by Dr. Leslie Boni, then a visiting financial economist at the SEC, analyzed NSCC data and found that on three random days, an average of more than 700 listed stocks had failures-to-deliver of 60 million-to-120 million shares sold short – naked shorts – that had persisted for at least two months. In addition, over 800 unlisted stocks on any day had fails of 120 million-to-180 million shares sold short that also had persisted for at least two months. The total number of naked shorts, including those that had persisted for less than two months, was presumably considerably greater.
“Regarding the extent of naked shorts, Thompson has provided closely-related additional information: ‘fails to deliver and receive amount to about $6 billion daily…including both new fails and aged fails.’ Thompson minimizes this total by comparing it to “just under $400 billion in trades (emphasis added) processed daily by NSCC, or about 1.5% of the dollar volume.” By most people’s standards, a problem involving hundreds of millions of shares valued at $6 billion every day is a very large problem. Moreover, the $6 billion total substantially underestimates the actual value of all failed-to-deliver trades measured when the trades actually occurred. Most of the $6 billion total represents uncovered or naked short sales, many of which have gone undelivered for weeks or months with their market price being marked-to-market every day. As a stock’s price falls, the market price of naked shorts in that stock also declines, reducing the total value of the outstanding failures-to-deliver cited by Thompson.
“In other respects, Thompson’s comparison to the ‘$400 billion in trades processed daily by NSCC’ seems disingenuous and misleading, because that $400 billion total covers not only U.S. equity trades which can involve most of the failures-to-deliver at issue, but many other transactions also processed by the NSCC. The value of all equity transactions on U.S. markets in 2004, for example, averaged $82.3 billion/day. If Thompson is correct that the daily value of fails-to-deliver averages $6 billion, that total is equivalent to 7.2 percent of average daily equity trades or nearly five times the 1.5 percent level suggested by Thompson.
“Furthermore, the DTCC reports on its website that on a peak day, ‘through its Continuous Net Settlement (CNS) system, NSCC eliminated the need to settle 96 percent of total obligations.’ Assuming that CNS nets out the same proportion of trades on other days, $384 billion of the $400 billion in daily trades cited by Thompson are netted out, leaving only $16 billion in daily trades that require the actual delivery of securities. The $6 billion of fails-to-deliver securities existing on any day are equivalent to 37.5 percent of the average daily trades that require the delivery of securities, or 25 times the 1.5 percent level cited by Thompson.
“Thompson tries to explain the large numbers of shares that go undelivered – in most cases arising from naked short sales -- by citing problems with paper certificates, inevitable human error, and the legitimate operations of market makers. This also seems misleading or disingenuous. Regarding problems with paper certificates, the DTCC estimates that 97 percent of all stock certificates are now kept in electronic form. Nor can human error or legitimate market-making operations explain the high levels of failures-to-deliver that persist for months – on any day, an average of 180 million-to-300 million shares have gone undelivered for two months or longer – as documented by Dr. Boni’s analysis of NSCC data.
“Thompson also disparages the attorneys who represent companies that have been damaged or destroyed by massive naked short sales, and their shareholders, by claiming falsely that the cases in this matter have almost all been dismissed or withdrawn. The legal firms that I advise -- O’Quinn, Petrie and Laminack; Christian, Smith and Jewell; and Heard, Robins, Cloud, Lubel and Greenwood – have not lost any motions against the DTCC or its affiliates and currently have one case against the DTCC pending in Nevada and another case against the DTCC pending in Arkansas. In addition, on February 24, 2005, these attorneys were granted an order by the New York Supreme Court ordering the DTCC to produce trading records involving two companies they represent, including records from the Stock Borrow program, which may establish whether large-scale naked short sales were used to manipulate and drive down the stock price of those two companies.
“Thompson also asserts that the plaintiffs suing the DTCC for damages associated with the handling of naked short sales rely on “theories [that] are not an accurate reflection of how the capital market system actually works.” This assertion is inaccurate. There is no dispute about how the capital markets work -- nor any doubt that naked short sales have been used to manipulate and drive down the price of stocks, as seen in numerous death-spiral financing cases. The issue here is the DTCC’s role in allowing or facilitating such stock manipulation through its treatment of extended naked short sales.
“In explaining the DTCC’s role in these matters, Thompson rejects the claim that the NSCC’s Stock Borrow program allows the same shares to be lent over and over again, potentially creating more shares than actually exist or ‘phantom’ shares. By Thompson’s own account, shares borrowed by the NSCC to settle naked short sales are deducted from the lending member’s DTC account and credited to the DTC account of the member to whom the shares have been sold. Therefore, those same shares become available to be re-borrowed to settle another naked short sale and, if that happens, to be re-borrowed again and again to settle a succession of naked short sales. Throughout this process, the actual short sellers may continue to fail-to-deliver the shares to cover their shorts and, as Dr. Boni’s analysis of NSCC data found, the underlying failure can age for months or even years. The process which Thompson describes is one in which shares can be borrowed and lent over and over again, introducing more shares into the market than are legally registered and issued. If any ambiguity remains, Thompson can clarify it by responding to the following query: Once a share that has been borrowed through the NSCC Stock Borrow program is delivered to the purchaser, is that share restricted in any way so it cannot be lent again?
“It is important to note that the Stock Borrow program is used when continuous net settlement cannot locate the shares to settle. As a consequence, Stock Borrow is usually called into play when there are relatively few shares available for borrowing. These are propitious conditions for market manipulation: Unscrupulous short sellers undertake large-scale naked short sales involving stocks for which few shares are available for trading and lending, relying on the Stock Borrow program to borrow the limited available shares, again and again, at sufficient levels to drive down the market price of the shares.
“Thompson notes that of approximately $6 billion in outstanding failures-to-deliver existing on any day, “the Stock Borrow program is able to resolve about $1.1 billion … or about 20% [18 percent] of the total fail obligation.” In this statement, Thompson raises very serious questions about the integrity and operations of the NSCC and DTCC, which he can clarify by responding to the following queries: If the Stock Borrow program “resolves” only 18 percent of total fails, what is the disposition of the remaining 82 percent of outstanding fails? When failures-to-deliver occur that are not resolved through Stock Borrow, does the NSCC credit the undelivered shares to the member representing the buyer, creating genuine “phantom shares”? Finally, how many shares do the borrowing brokers, clearing firms and other participants in the Stock Borrow program owe the NSCC on a typical day, and what is their total value?
“In a related matter, Thompson tries to distance the DTCC from charges that shares held in restricted accounts – for example, cash accounts, retirement accounts and many institutional accounts – are improperly lent through the Stock Borrow program by claiming that responsibility for segregating restricted shares from lendable shares falls to the “broker and bank members” of the DTCC, while responsibility for monitoring or regulating their performance in this matter falls to the stock exchanges and the SEC. As a trust company, the DTCC cannot hold that it has no role, duty or responsibility to ensure the probity of its operations. Thompson could address this issue by responding to the following queries: What procedures does the NSCC have to ensure that shares held in members’ accounts for possible loan through the NSCC Stock Borrow program are unencumbered by regulatory or legal restrictions from being pledged or assigned and eligible to be borrowed? On any given day, how many participants in the Stock Borrow program have lent shares that exceed their lendable shares, in what numbers and of what value?
“Thompson also tries to distance the DTCC as far as possible from the naked short selling that generates most of the extended failures-to-deliver: ‘We don’t have any power or legal authority to regulate or stop short selling, naked or otherwise. We also have no power to force member firms to close out or resolve fails to deliver … we don’t even see whether a sale is short or not.’ In fact, the DTCC chooses to not distinguish short sales from long sales, chooses to not regulate or stop extended naked short sales, and chooses to not force member firms to resolve protracted naked short sales.
“First, Regulation SHO requires that all transactions be clearly marked short or long. If the DTCC and NSCC do not know whether sales are short or long as Thompson contends, they choose to not know. Second, the NSCC has a clear responsibility and adequate means to stop naked short sales of extended duration, with no legal barrier that would prevent them from so doing. As a trust company with an acknowledged duty to provide investors certainty in the settlement and clearance of equity transactions, the DTCC chose to carry out that duty by assuming the role of counterparty to both sides of every equity transaction, through the operations of the NSCC’s CNS system and the Stock Borrow program. By allowing short sellers to fail-to-deliver shares for months or even years, the NSCC clearly fails to provide certainty in settlement to the buyers, sellers and issuers of securities. Since it is widely known that extended naked short sales have been used to manipulate stock prices in cases of death-spiral financing, and the NSCC created the Stock Borrow program to address failures-to-deliver that prominently include naked short sales, the NSCC and DTCC share a responsibility with the SEC and the stock exchanges to protect investors by resolving extended fails.
“Third, the DTCC and NSCC have the clear capacity to force member firms to resolve the extended failures-to-deliver of their customers by purchasing shares on the open market and deducting the cost from the member’s account. A 2003 study by Dr. Richard Evans and others provides evidence that forced buy-ins by any party occur very rarely. They found that a major options market maker who failed to deliver all or a portion of shares sold in 69,063 transactions in 1998-1999 was bought-in only 86 times or barely one-tenth of 1 percent of the fails. Thompson can clarify investors’ understanding of their operations by responding to the following query: What proportion of shares that are persistent fails-to-deliver, of one month or longer, are ever bought in?
“Thompson acknowledges that the DTCC and NSCC know precisely how many failures-to-deliver exist for each stock and the precise duration of each of these fails. Yet, the DTCC refuses to disclose this information even to the issuer of the stock in question, which Thompson justifies by citing ‘NSCC rules’ prohibiting such a release of data based on ‘the obvious reason that the trading data we receive could be used to manipulate the market, as well as reveal trading patterns of individual firms.’
“This response is both disingenuous and revealing. We know now, for the first time, that the DTCC has full knowledge of the extent of protracted, large-scale naked short sales in all particular cases. We also know now that the DTCC has had this information for at least a decade, since Thompson also notes that ‘fails, as a percentage of total trading, hasn’t changed in the last 10 years.’ Yet, based on the DTCC’s own rules, it allowed these abuses to persist and fester. The DTCC and NSCC can change their rules at any time. Moreover, in this case, those rules are unjustified. Data documenting outstanding short sales in each stock are currently issued publicly, so further data on how many of those short sales are naked would not reveal additional information about the trading patterns of individual firms or in any way empower manipulators. In fact, the DTCC could substantially disarm manipulators by both publicly reporting naked short sales in each issue and pledging to force buy-ins of all naked short sales that persist for more than a limited period.
Surely, if large-scale, extended naked short sales have effectively created “phantom” shares, companies have a responsibility to their shareholders and the right to secure this information from the organization which manages the settlement of short sales. At a minimum, the DTCC should respond to requests by issuers for data on extended failures-to-deliver in their own stocks, both in the past and currently, so they can take steps to resist stock manipulators or bring them to account for past manipulation.
Thompson also claims that the DTCC did not create or manage the Stock Borrow program to serve its own financial interest, insisting that the service generates less than $2 million a year in direct fees to the DTCC and that all DTCC services are priced on a “not for profit” basis that seeks to match revenues with expenses. Without further information, these responses beg the question of whose private financial interest has been served by the Stock Borrow program, especially as the DTCC is owned by the stock markets, clearinghouses, brokerage and banking institutions that use its services. Thompson and the DTCC can clarify this serious matter by responding to the following queries: Do DTCC participant/owners receive interest or other payments through or from the Stock Borrow program for lending the shares of their customers and, if so, how much have they received for these activities over the last 10 years? Further, do DTCC participant/owners receive any dividend, interest or other payments or distributions from the DTCC or its subsidiaries?,” Shapiro concluded.
Neither Thompson nor the DTCC have responded to Shapiro’s wide-ranging allegations.
