August 14, 2007
Nancy M. Morris, Secretary
Securities and Exchange Commission
100 F Street, NE
Washington. D.C. 20549-1090
Re: Comments on Amendments to Regulation SHO
File No. S7-19-07
Dear Ms. Morris:
Please find attached data received from the Commission under the Freedom of Information Act (FOIA). This data from the NSCC is the daily CNS level aggregate delivery failures for Medis Technologies Ltd. (MDTL) from April 1, 2004 through March 23, 2007.
This issue has been included on the Reg SHO threshold list for approximately 90% of the total trade dates since the inception of the list, and has been listed continuously for over two years, since August 8, 2005.
This data shows the CNS level delivery failures steadily increasing during its tenure on the Reg SHO threshold list, a period where theoretically fails should decline as new short sales are restricted and old fails are cleared. The Commission has identified the options market maker exception as a source of delivery failures. The abuse perpetrated under this exception is quite evident in this data, which is further proof that this exception must be quickly and completely eliminated. Additionally, this exception is obviously not consistent with investor protection as required by Section 36 of the Exchange Act, and thus must be removed with all due speed.
As for other sources of delivery failures, the Commission must redouble its efforts to stop the creation of all delivery failures as there is no doubt that each and every FTD causes harm to investors and issuers. Furthermore, delivery failure data such as this should be publicly published on a current basis, not delayed. In aggregate form, no firm should have fair claim on the data being proprietary, as if violation of settlement requirements under Section 17A should be afforded this privilege in the first place.
Also, for the benefit of all market participants, the Commission should find a way to report all delivery failures which create security entitlements which are not backed up by bona fide shares, such as delivery failures resulting from "ex-clearing", internationally cleared fails, and other devices used outside the CNS system.(Attached File #1: s71907-39a.pdf) (Attached File #2: s71907-39b.pdf)