Statement of Securities and Exchange Commission Concerning Short Selling and Issuer Stock Repurchases
FOR IMMEDIATE RELEASE
Washington, D.C., Oct. 1, 2008 — The Securities and Exchange Commission today issued the following statement concerning short selling:
The Commission has taken steps during recent weeks to address concerns regarding short sales in light of the ongoing credit crisis. These efforts relating to short sales have focused particularly on the securities of financial institutions whose health may have an impact on financial stability. The steps the Commission has taken are designed to ensure the continued smooth operation of orderly markets. Our actions have been taken in consultation with regulators of the major developed securities markets around the world, with whom we have coordinated in monitoring market reactions.
The Commission notes that short selling plays an important role in the market for a variety of reasons, including contributing to efficient price discovery, mitigating market bubbles, increasing market liquidity, promoting capital formation, facilitating hedging and other risk management activities, and importantly, limiting upward market manipulations. In addition, there are circumstances in which short selling can be used as a tool to mislead the market. For example, short selling can be used in a downward manipulation whereby a manipulator sells the shares of a company short and then spreads lies about a company's negative prospects. This harms issuers and investors as well as the integrity of the market. This kind of manipulative activity is particularly problematic in the midst of a loss in market confidence. For example, in the context of a credit crisis where financial institutions face liquidity challenges, but are otherwise solvent, a decrease in their share price induced by short selling may lead to further credit tightening for these entities, possibly resulting in loss of confidence in these institutions.
The Commission has recently used its emergency authority to minimize the possibility of abusive short selling as the Congress works to provide a comprehensive plan to stabilize credit markets and the financial system. Under this authority, the Commission's actions are limited to up to 30 calendar days, and may not be extended. To provide clarity about the future expiration of these actions, the Commission is announcing that each of the emergency orders issued on Sept. 17 and Sept. 18, 2008, will be extended to allow time for completion of work on the anticipated passage of legislation.
Specifically, the emergency orders cover the following:
- Temporary prohibition of short selling in financial companies. This order will be extended beyond its currently scheduled expiration, to allow time for completion of work on the anticipated passage of legislation. It will expire at 11:59 p.m. ET on the third business day after enactment of the legislation, but in any case no later than 11:59 p.m. ET on Oct. 17, 2008.
- Temporary requirement that institutional money managers report to the SEC their new short sales of certain publicly traded securities. This order will also be extended, to 11:59 p.m. ET on Oct. 17, 2008, but the Commission intends that the order will continue in effect beyond that date without interruption in the form of an interim final rule. The Commission will seek comments on all aspects of the anticipated rulemaking. Disclosure under the emergency order will be made only to the SEC.
- Temporary easing of restrictions on the ability of securities issuers to repurchase their securities. This order will be extended beyond its currently scheduled expiration, to 11:59 p.m. ET on Oct. 17, 2008.
In addition to these emergency orders, the Commission recently has taken action to strengthen the existing ban on naked short selling and to increase the penalties against naked short selling. Each of these actions will continue in force following expiration of the Commission's emergency orders. These actions include the following:
- Hard T+3 close-out requirement for naked short selling; penalties for violation include prohibition of further short sales without mandatory pre-borrow. The Commission adopted, on an emergency basis, a new rule requiring that short sellers and their broker-dealers deliver securities by 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.
The emergency order will be extended, and will now expire at 11:59 p.m. ET on Oct. 17, 2008, but the Commission intends that the order will continue in effect beyond that date without interruption in the form of an interim final rule. The Commission will seek comments on all aspects of the anticipated rulemaking.
- Repeal of exception for options market makers from short selling close-out provisions in Regulation SHO. This exception had permitted options market makers to maintain fail positions indefinitely. It was repealed effective at 12:01 a.m. ET on Sept. 18, 2008, through a final rule to eliminate the options market maker exception from the close-out requirement of Rule 203(b)(3) in Regulation SHO.
- Rule 10b-21 naked short selling anti-fraud rule. The new rule, which became effective at 12:01 a.m. ET on Sept. 18, 2008, covers short sellers who deceive broker-dealers or any other market participants about their intention or ability to deliver securities in time for settlement. The rule makes clear that such persons are violating the law when they fail to deliver.
The Commission staff will continue to monitor the impact of the rules regarding short selling.