Dave Patch addresses the SEC on recent action against NSS
( in an email to the Chairman, Commissioners, and designated officials )
From: Patch, David
Subject: SEC Denies Public Protection - AGAIN
Mr. Chairman,
I must commend you on the steps taken today towards addressing naked short sale abuses. With Congress, public issuers, and investors alike seeking to have you and your staff tarred and feathered for the egregious negligence executed under the umbrella of federal protection you stepped out today and threw caution to the wind and told us all to pound sand.
I fully understand that the Commission staff and the Office of Economic Analysis is not convinced that this is a real issue that is destroying public confidence in our Capital markets. I understand that the OEA is not committed at looking at this issue seriously by dedicating the time and resource into analyzing actual trade data before opining on how this may or may not impact our markets. And I understand that private meetings with wealthy short sellers such as Jim Chanos provide opportunity for the Commission to gain support material into the positions taken despite the conflicts such meeting may create. But what I don't fully grasp is why the general public must carry the burdens for the SEC's negligence. Why should we be the people who must work longer to protect our retirements? Why should we be the people who must cut our expenses because we can't afford to pay our bills due to the destruction of our personal savings accounts? Why should we suffer the pains so that people like jim Chanos and his peers can be provided ample opportunity to destroy public companies, local communities, and the financial stability of families across this nation.
Today the SEC took yet another half step to a whole problem. The SEC maintained loopholes in the short sale process so that certain short sellers would not have to carry the burden of expense in the execution of rapid short sales never intent on existing by settlement day. These are the very same short sellers who destroyed confidence in our financial markets and now the short sellers who will continue to destroy other markets and other public issuers.
Let me help you out here:
Hard T+3 Close-Out Requirement; Penalties for Violation Include Prohibition of Further Short Sales, Mandatory Pre-Borrow
The Commission adopted, on an interim final basis, a new rule requiring that short sellers and their broker-dealers deliver securities by the close of business on the settlement date (three days after the sale transaction date, or T+3) and imposing penalties for failure to do so.
If a short sale violates this close out requirement, then any broker-dealer acting on the short seller’s behalf will be prohibited from further short sales in the same security unless the shares are not only located but also pre-borrowed. The prohibition on the broker-dealer’s activity applies not only to short sales for the particular naked short seller, but to all short sales for any customer.
Although the rule will be effective immediately, the Commission is seeking comment during a period of 30 days on all aspects of the rule. The Commission expects to follow further rulemaking procedures at the expiration of the comment period.
Under this rule there are serious flaws in the Commissions thinking.
1. To determine a lack of compliance to this rule it requires the SRO's or SEC to conduct an audit of the failing firms. These audits are not done daily but periodical. By the time the violation is identified the culprit is long gone with the monies and the markets manipulated by the potential abuse. This rule is a responsive rule instead of a pro-active rule.
2. This rule, as it stands will yield compliance violations at the BD level and will rarely result in penalties imposed on the originating seller. Compliance violations rarely achieve the penalty status as that which investors lost by the violation itself. This rule can likewise by circumvented by engaging in a separate violation; marking the trade long and failing that trade instead.
3. This rule does nothing to address the initial abuses of multiple locates on a common share during the time of trade execution. Since multiple locates can exist, fails will exist. This also allows, instantaneously, for there to be too many short sales executed at a single moment in time. Such trading creates the leverage the short seller need in order to drive down a market.
4. The day trader. How does this rule impact the abuses associated with the rapid day trading short seller? Using multiple locates and acting in concert with other hedge funds, a market can be destroyed within the 3-day settlement window and so long as the trades are covered by T+3 the SEC and SRO's have no authority to take enforcement action. This rule simply redefined the window of time a short seller has to abuse a stock and create profit and with sophisticated computer programs the systems will be set up to cover this window. If a portion of the trade falls into the settlement window the trade will fail but…the SEC does not require a mandatory close-out with guaranteed delivery, the Commission only restricts future short sales until it is closed out.
5. Close-out of fails. What ever happened to mandatory w/Guaranteed delivery? The NASD presented the SEC with an argument in 2004 that identified how failed trades were not being closed out because it was not "cost effective" for the failed party to do so. The SEC continues to fail in adopting such language. In fact, the Commission is aware that firms have engaged in rolling failed trades to restart the clock. Nothing in this law changes that tactic. Nothing in this law requires that on T+4 the failing member must go into the market at market open and purchase this stock under guaranteed delivery status. Without such specific language members will game the system to make the close-out profitable.
Mr. Chairman your time is limited but your legacy will live on forever. This Commission will be remembered in history as the most conflicted of all time. The Comission staff that allowed a group of bandits to run rampant across our capital markets and destroy so much of our nations family wealth.
There will be people who no longer can afford to retire, as well as people who will lose their homes and their familes due to financial ruin and it will all be due to the negligence of this Commission.
The Commission has failed to hear the voices of the people and instead has listened to those who have their own self-interest in mind. This is the grandfather clause all over again and this delay is only a delay that will most likely force Congress to step in and make law for you.
Shame on you.
Dave Patch
investigatethesec.com |
