Naked short selling

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Naked short selling, or naked shorting, is a controversial form of selling shares of securities short. Some forms of naked short-selling are legal and some are not. The controversy has surrounded naked short-selling aimed at profiting from share price declines. The U.S. Securities and Exchange Commission has issued a regulation seeking to curb naked shorting abuses.[1]

Contents

[edit] The Practice

Short selling is the practice of borrowing stock, then selling it in hopes that the price will go down and it can be bought back at a lower price, generating profit and allowing one to return like shares for the borrowed ones.

"Naked shorting" refers to "shorting" a stock for sale without first borrowing it.[1] When one sells short a non-borrowed stock, one is selling something that one does not possess. The risk that one may not be able to then acquire the shares needed to deliver on the sale is a contributing factor to the controversy surrounding this practice.

On American exchanges, pursuant to Rule 203(b)(2) of Regulation SHO these short sales of securities may be legally permitted: (1) broker or dealer accepting a short sale order from another registered broker or dealer; (2) bona-fide market making; (3) broker-dealer effecting a sale on behalf of a customer that is deemed to own the security pursuant to Rule 200[2] through no fault of the customer or the broker-dealer.[3]

[edit] Does Naked Shorting Drive Stock Prices Down?

The Securities and Exchange Commission addresses the issue this way:

"There are many reasons why a stock may decline in value. The value of a stock is determined by the basic relationship between supply and demand. If many people want a stock (demand is high), then the price will rise. If a few people want a stock (demand is low), then the price will fall. The main factor determining the demand for a stock is the quality of the company itself. If the company is fundamentally strong, that is, if it is generating positive income, its stock is less likely to lose value.
"Speculative stocks, such as microcap stocks, often have a high probability of declining in value and a low probability of experiencing above average gains. For example, investors should take extra care to thoroughly research any company quoted exclusively in the Pink Sheets. With the exception of a few foreign issuers, the companies quoted in the Pink Sheets tend to be closely held, extremely small or thinly traded. Most do not meet the minimum listing requirements for trading on a national securities exchange, such as the New York Stock Exchange or the Nasdaq Stock Market. Many of these companies do not file periodic reports or audited financial statements with the SEC, making it very difficult for investors to find reliable, unbiased information about those companies.
"There also may be instances where a company insider or paid promoter provides false and misleading excuses for why a company's stock price has recently decreased. For instance, these individuals may claim that the price decrease is a temporary condition resulting from the activities of naked short sellers. The insiders or promoters may hope to use this misinformation to move the price back up so they can dump their own stock at higher prices. Often, the price decrease is a result of the company's poor financial situation rather than the reasons provided by the insiders or promoters.
"Naked short selling, however, can have negative effects on the market. Fraudsters may use naked short selling as a tool to manipulate the market. Market manipulation is illegal. The SEC has toughened its rules and is vigilant about taking actions against wrongdoers. Fails to deliver that persist for an extended period of time may result in a significantly large unfulfilled delivery obligation at the clearing agency where trades are settled. Regulation SHO is intended to address these effects by reducing the number of potential failures to deliver, and by limiting the time in which a broker can permit a fail to deliver to persist. For instance, as explained above, Regulation SHO requires brokers and dealers to close-out the open fail-to-deliver positions in "threshold securities" (i.e., securities that have experienced a substantial number of extended delivery failures) that have persisted for 13 consecutive settlement days."[4]

[edit] Controversy

Some investors defend the practice as just another tool of the market, and caution against federal regulation. Naked short-sellers claim that they are enacting market pressure against overpriced and undertraded small-cap stocks. In the bubble of the 1990s, they argue, regulations against short-selling would have caused an even greater boom and bust.[5]

Penny stock brokerages urge all investors to keep their stocks in cash accounts so that no shares can be shorted. The penny stock fraudsters can then illegally hype the stock to very high prices allowing the penny stock fraudsters to pump and dump their shares. Naked shorting keeps the penny stock brokerages from driving prices above the true value of the stock. The free market in this case could prevent the crime of pumping and dumping without any additional police or raising taxes. Pump and dump organizations sometimes are run by the Mafia.[6]

Critics contend that the naked shorting is fraud, and that it constitutes "taking a buyer's money and not delivering the product." However, the SEC denies that occurs, saying that a fail to deliver "does not mean that the customer's purchase is not completed."[7]

In recent years, however, the SEC has acted against naked shorting in part due to pressure from a handful of small and microcap companies.[5] This campaign has drawn criticism. Financial columnist Floyd Norris of the New York Times observed that "Investors who own [allegedly shorted] shares might do better to try to understand why some think the shares are overvalued, rather than simply rail about unfair short selling." [8]

Critics of the naked shorting campaign contend the practice is not harmful and its prevalence exaggerated. Opponents include Wall Street Journal, which criticized the naked shorting allegations in an editorial, and columnist Joseph Nocera of the New York Times. Author and journalist Gary Weiss criticized the anti-shorting campaign in his book Wall Street Versus America, as a diversion of regulatory resources from more pressing issues.

[edit] Regulators Respond

The allegations of the anti-naked shorting movements are denied by Securities and Exchange Commission and the self-regulatory organizations (SROs) that regulate the U.S. markets.

In a forum[9] sponsored by the North American Securities Administrators Association in November 2005, some regulators, including a high official of the National Assn. of Securities Dealers, denied that naked short-selling is a signficant problem.

An official of the New York Stock Exchange told the forum that NASD had found no evidence of widespread naked short selling. He decried "this fear mongering that there's this rampant naked shorting that's gone unregulated."[9]

Cameron Funkhouser, NASD's senior vice president of market regulations, noted that although a number of companies have in the past alleged their shares have been manipulated through the listing of their stocks on the Berlin stock exchange, he had found no evidence of naked short selling there. "We took (these allegations) very seriously," Funkhouser said. "We have seen not one instance of naked short selling or any abusive short activity" at that exchange.

At the NASAA Forum, the head of the Connecticut Securities Agency and current head of the NASAA, Ralph Lambiase, declared his disappointment at how the industry was handling this issue as a whole.

Rumors spread in some circles in February 2006 that the state of Connecticut was investigating the Depository Trust & Clearing Corporation over its alleged role facilitating fraudulent short sales, and that the DTCC was defying a subpoena. On Feb. 17, the DTCC and the state together issued a statement denying those rumors.

However, public officials have pointed to abusive shorting, including naked shorting, as a problem in the markets.

At a speech given in July of 2006, SEC Chairman Christopher Cox reffered to "the serious problem of abusive naked short sales, which can be used as a tool to drive down a company's stock price to the detriment of all of its investors. The Commission is particularly concerned about persistent failures to deliver in the market for some securities that may be due to loopholes in the Commission's Regulation SHO, adopted just two years ago."[10]

[edit] Recent developments

Naked shorting continued in the news through 2006, with opponents of the practice contending it contributes to the demise of companies. Overstock.com CEO Patrick Byrne continued to push the anti-naked shorting cause in interviews and Internet postings, including a lively exchange on a New York Times blog. [11]

Naked shorting allegations played a role in the recent scandal surrounding the Refco commodities trading firm. Refco allegedly engaged in naked shorting of a company called Sedona Corp.[12]

The SEC bowed to mounting pressure to amend the two year old Regulation SHO, to close loopholes some critics said promoted naked short selling.[13]

Liz Moyers of Forbes Magazine alleges that Pegasus Wireless's stock was naked shorted in an "independent secondary offering". [14]

In December 2006, the SEC sued the Gryphon Partners hedge fund for alleged insider trading and naked short-selling involving PIPEs in the unregistered stock of 35 companies. PIPEs are "private investments in public equities," a financing tool used by small companies. The naked shorting took place in Canada, where it was legal at the time. Gryphon denied the charges.[15] [16] [17]

[edit] References

  1. ^ a b U.S. SEC. Division of Market Regulation: Responses to Frequently Asked Questions Concerning Regulation SHO.
  2. ^ University of Cincinnati College of Law. Securities Lawyer's Deskbook, Rule 200.
  3. ^ University of Cincinnati College of Law. Securities Lawyer's Deskbook, Rule 203.
  4. ^ U.S. SEC (April 11, 2005). Division of Market Regulation: Key Points About Regulation SHO.
  5. ^ a b Gary Weiss (December 8, 2003). Commentary: Don't Force The Shorts To Get Dressed.
  6. ^ Gary Weiss (2003). Born to Steal.
  7. ^ Nevada Supreme Court (February 2,2006). Brief of the Securities and Exchange Commission, re Nanopierce Corp, et al v. Depository Trust and Clearning Corp.
  8. ^ TBD.
  9. ^ a b NASAA Conference on Short-Selling (November 30, 2005).
  10. ^ Christopher Cox (July 12, 2006). Opening Statements at the US Securities and Exchange Commission Open Meeting.
  11. ^ Weekend Reading: Profile of a Short Seller (April 14, 2006).
  12. ^ Daniel Kadlec (November 14, 2006). Watch Out, They Bite!.
  13. ^ US SEC. [Proposed SEC 17 CFR PART 242 (Release No. 34-54154; File No. S7-12-06) RIN 3235-AJ57 Amendments to Regulation SHO.
  14. ^ Liz Moyer (October 3, 2006). Attack On Pegasus.
  15. ^ Dow Jones/AP (December 13,2006). Fund Manager Accused of Illegal Trading.
  16. ^ Matthew Goldstein (December 12, 2006). SEC Sues Gryphon.
  17. ^ Liz Moyer (December 12, 2006). Feds Rap Hedge Fund.

[edit] External links

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