August 27, 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:
Settlement failures are a problem for every issuer, and thus every investor. We know this since over-voting occurs in every issue (Attachment: STA Newsletter 2005 – Issue 4). Due to the nefarious net settlement method used by the NSCC which severely understates settlement failures, it is said that by the time an issuer reaches Reg SHO threshold status, it has a real problem.
I shall provide you with examples of two issuers with real problems.
Force Protection, Inc. (NASDAQ: FRPT) designs and manufactures armored vehicles for the United States Department of Defense, primarily for the U.S. Army and U.S. Marine Corps. This issuer has also spent the better part of the summer on the Reg SHO threshold list.
Dendreon Corporation (NASDAQ: DNDN) is developing biologics that train a patients immune system to fight cancers. Its therapies have been shown to be safe and effective in clinical trials. However, it has chosen to curtail efforts on multiple lines in order to focus precious capital on one therapy, in the hope its success will then allow it to develop these other biologics. This issuer is also a regular on the Reg SHO threshold list.
Settlement failure, also called naked selling or counterfeiting, is theft and it is immoral. The result of this theft may be as obvious as the above examples of issuers whose capital structure has been attacked, and infantrymen may die for lack of needed armor and patients may suffer from a treatment never developed. However, in every case the theft also has a victim who has a part of his or her life permanently stolen, measured in the days, months or years of effort put in to earn that invested sum which the fraud has stolen from them.
The current state of regulation and enforcement in our capital markets permits, indeed often encourages, this counterfeiting abuse to occur to all issuers and investors. Particularly in the context of the above examples of victimized companies which strive to save lives, whether or not this sends a chill down ones spine is a very good indicator of whether that person possesses a human conscience. It also begs the question as to if this is the height of wickedness for a total sociopath to pursue profit in attempting to destroy a company seeking cures for diseases, without possibly knowing the manner in which his or her own demise will ultimately be delivered.
The Commission has a moral obligation to approve this amendment to completely eliminate the options market maker exception at the earliest possible date. This part of the rule should not have been promulgated in the first place, and will have been open for change for 14 months when this comment period ends. This comment period was ostensibly shortened to 30 days in light of the fact that adequate evidence required to eliminate the exception was collected during the original comment period, and this part of the process is a mere formality in compliance with the APA. Oddly, this concern for the APA was not present when promulgating loopholes facilitating settlement failures.
Please show us that the Commission is now acting in good faith to end this abusive activity by scheduling a vote on this amendment immediately following the end of the comment period. Please direct the Division of Market Regulation now to prepare text that will be published in the Federal Register upon Commission approval. The speed with which the tick test was removed shows how fast the Commission is capable of acting when it wants lets see this speed in action with elimination of this abhorrent exemption.
Furthermore, please look beyond this rule change and work to eliminate settlement failure fraud throughout the system. A share in company should be just that, a predetermined portion of that company. Especially considering the ill-advised effort to eliminate paper certificates, investors must be assured that they own what they are being told they own, not some fraction thereof subject only to how many unregistered shares the system issues at will. No investor should have his or her shares lent out without direct consent. Also, investors must be made aware that all ownership rights attached to a share travel with the share as it is loaned and are lost to the lender, including voting rights and true payment of true dividends.
Thank you for the opportunity to provide you with evidence showing the dire need for reform in the U.S. capital markets.