The following comment on Letter Type D,
Letter Type D:
To: SEC Rules Committee
Subject: File No. S7-23-03
To Whom It May Concern,
It is now October 30, 2003. Fours years have now past since the SEC went out and sought comments on "Short Selling" problems in our securities markets. What the SEC received in 1999 was some 3000 comment letters with nearly two thirds (2000) of those letters with complaints of "Abusive Naked Short" selling.
Now, SEC officials expect proposed reforms will prove to be controversial with corporations and investors. (Comment): Certainly controversy will reign as the proponents of the status quo are in a win situation with the current rigged system and would prefer it stay that way, while Small Companies and Small Investor (specifically the OTC-Pinks) are looking only for a level playing field.
The buzz word they (the status quo use is Liquidity), the market needs liquidity, when in essence, Naked Shorting or the selling of Counterfeit Shares, not to be confused with shorting, allows the sellers "full Control of the Price Per Share". This creates heavy dilution, which causes a spiraling downward pressure on the PPS until most companies and shareholders give up. One would ask, How is someone(s) or somebody(s) Or system is allowed by law to sell to the public something which they do not own or have not borrowed?. How is someone(s) or somebody(s) or system is allowed by law to arbitrarily increase either the Authorized, Operating or Float or all of a company's stock by selling billions and billions of shares into the market to a unsuspecting public that currently has no recourse. Which leads to the ultimate question, where's the fiduciary responsibility of the SRO's (NASD - NAS) and the ultimate over-see'r the (SEC)???, as we see by the below paragraph, the SEC has been well aware of the issue of Naked Shorting for over five (5) years. It certainly would appear that they also support the Status Quo as opposed to the protecting small companies and small investors, BTW, which is their charter, as nothing has happened in the way of regulation during this five (5) year period.
Note in their own words: (Excerpts of SEC Meeting on 10/22/2003) SEC Commissioner Paul Atkins noted the agency got more than 3,000 letters when it floated reforms in 1999, and predicted an even bigger reaction to the latest plan, SHO. Fact: In the SEC's open public Meeting today, they, (The SEC) used the terms "Abusive", "Manipulate", and "Problem" many times as they once again identified the concerns of Investors and Companies over illegal "Naked Shorting".
"(Question? Abusive to who or what, Companies, Shareholders, Brokers, Market Makers, DTC, CEDE) (Answer - Companies & Shareholders)
"(Question? "Manipulate" Manipulate what),(Answer - Market & PPS for who's favor, The Status Quo)
"(Question "Problem" Problem for who, (Answer, I would like to think for the regulators this time, to include the SEC. The companies and Shareholders have already taken a beating, even though many still hold on hoping for change. Perhaps its time for the likes of the N.Y AG, Mr Spitzer to get to the solution
Once again, in that same meeting, The SEC highlighted the fact that the pile of "Unsettled Positions" were growing as short sellers were not locating shares to borrow in order to fulfill the obligations of the sale. All of this should be alarming news, with the SEC admitting that stock manipulation is in action. I ask, is it??
As a result of Tuesday's meeting, we would like to thank you Chairman Donaldson and your Commissioners' for coming out and stepping up to the plate on this. Thank you for voicing your concerns over what is going wrong in our markets. While your message was less than direct to those who continue with this abuse, at least the SEC has come forth with a proposal. I would throw out a full commendation to the group, as the SEC's recommendation still falls a bit short. Let me elaborate with a few comments. The SEC made a public statement that identified that not only has a "manipulative practice" been taking place regarding short selling, but that they have known about it since 1999, have done nothing to resolve it, and are seeking the help and advice of the commentary to propose reforms because the one they have on the table is still weak for the following.
One area of weakness that the SEC has totally avoided in this session was, "The illegal shares on the table today"? Today, much of the settlement issues date back to initial short positions, but since those shorts have had "settlement failures" that date back longer than the current president has held office, we now have other problems to deal with. The Short sold to a long and failed settlement, the long, tired of the beating he's taken with the stock because of illegal shorting and the downslide of the PPS, decides to sell his long share to another long buyer. He did not sell short, but since the originating trade never settled, that long trade "must/will" fail as well. Now the question becomes, who tracks these trades and the stockpile of them on the broker's books today? Today's Bookkeeping mess is a culmination of bad settlements that date back to the 1999 comment period and no longer trade as short settlement failures but now trade as long settlement failures.
Another area that the SEC stayed away from was the failures of our Broker Dealers in this settlement process. The Terms "Suspend the short seller" for 90 days is great but that order flow comes through a broker. "Today's problems are due to our Brokers lack of desire in trade settlement". Today's Long trades fail settlement because they failed to settle the previous short sales. "Reforms today need to be Trade Settlement reforms NOT Short sale reforms". Our Brokers need to be held accountable to fulfill the contract between themselves and their clients. No investor would allow their broker to fail settlement on a long trade because they would be signing up for self dilution. The SEC needs to go after the brokers, who, like the short seller themselves, benefited from this "Abusive Trading". They were actually partners in the game as they fed off each other. In my opinion, the SEC took what has come to be expected out of them, Baby Steps. What we see in the current enforcement arena by comparison, The AG of NY walks like a grown up while the SEC continues to struggle at the baby step paces. So be it.
Lastly, the SEC's rule change as proposed, will only deal with a portion of the current problem, and in regards to this particular rule, only one side of the problem. It takes two brokers to complete a trade, buyer and seller. The buying broker cannot buy without a equal participant on the other side, and to penalize only one side because they are selling counterfeit shares, is only going after half of the problem. What about the buying broker, who is supposed to make "Affirmative determination" that shares he just bought for his customer, are on the way.
Now, by tightening the rules for "BOTH" sides of the transaction, it would cause brokers to self police each other, as opposed to cooperatively looking the other way, on fail to delivers, as well as fail to receives, etc, etc. In my opinion, the SEC has not been proactive on this issue, but rather, reactive ( by about 4 years) and still fail in their mandate, as some back doors still appear to be swinging wide open, for the Status Quo.
I, as a small investor, am only marginally happy with the attempt so far. I was hoping by this time for a complete cure, not a halfhearted attempt to pacify some rather than all. With that said I'm still happy that we are now making forward progress, cause something is better nothing.
In conclusion, from my perspective the market lacks ETHICS, the Commissioners, responsible for oversight of the markets, should never cower to politics with someone else's money. Each Commissioner needs to be held responsible for their inaction over these past years and I would certainly not be waiting until these new reforms are put in place before I lashed out at the Wall Street Community that continues to sit on unsettled trades without the desire or ambition to settle them. I'm sorry, but in my opinion, our SEC has failed to hold any of the Wall Street Firms accountable for their actions at any appreciable level that makes it painful for them to continue. Delays cost, and the SEC is nothing but a huge delay. BTW... This was not ungrateful you just read. This was hostility at an inept, out of touch Governmental Agency, that hides behind immunity when it comes to accountability. Hostility you Mr. Chairman should have had with regards to our SRO's who have failed to take appropriate actions over these past years against their member firms