May 5, 2009
Fax 212 486-8178
Jonathan G. Katz
Securities and Exchange Commission
450 Fifth Street, NW
Washington DC 20549-0609
Re: File No. S7-23-03 Proposed Regulation SHO
Release No. 34-48709 (Oct. 28,2003), 68FT 62972 (Nov. 6,2003)
Dear Mr. Katz:
Bernard L. Madoff Investment Securities L.L.C. (Madoff) is pleased to comment on the
Securities and Exchange Commissions proposal regarding short sales, Regulation SHO. Madoff
has been engaged in market making activities for over forty years as a registered market maker in
Nasdaq for both Nasdaq and exchange-listed securities as well as a Designated Dealer on the
National Stock Exchange (formerly the Cincinnati Stock Exchange). This has provided us with
vast experience related to the operations of the National Market System (NMS) and in particular
with SEC Rule 10a-1 and NASD Rule 3350.
Madoff makes regular and continuous two sided markets in over 600 of the most active NYSE
listed securities (including the SP 500) and over 200 of the most active Nasdaq NMS securities.
In each of these securities, Madoff offers to our broker dealer and institutional clients liquidity
guarantees for market and marketable limit orders. These guarantees are provided at the National
Best Bid or Offer (NBBO) with opportunities for price improvement. In addition, we handle all
types of non-marketable limit orders, where we provide our clients with both price protection and
Competition between markets has been the hallmark of our National Market System since its
inception following the enactment of the 1975 Amendments. While Congress envisioned
linkages among the various markets comprising the National Market System, advances in
communications technology since its establishment have still not overcome many political
obstacles. One of the residual effects has been fragmentation. To deal with this, market
participants have developed their own trading systems that complement the less than perfect ITS
system. This enables them to provide immediate liquidity at the prevailing NBBO or better to
satisfi their clients orders, thereby providing best execution not only with respect to price, but
also with respect to timeliness. The ability of specialists and competing market makers to provide
their clients a better execution has led to a market that is highly liquid, with extremely low
execution costs, as defined by narrowing spreads and declining commission rates. It is critical
that we preserve an environment that will allow this competitive spirit to continue. Customers
have grown to expect that all of their orders, regardless of type, will be given such timely and
competitively priced executions.
Madoff Securities International Limited
12 Berkeley Street, Mayfair, London WlX 5AD. TelO20-7493 6222
Jonathan G. Katz
Reauest To Preserve ExemDtion to Passivelv Protect Customer BUY Orders
Every registered market maker and specialist today accepts and holds non-marketable limit orders
for their clients. These orders are governed by the requirements of the SEC Order Handling Rules
(OHR). Although these orders help define the NBBO when displayed, there are no assurances
that they will receive an immediate execution from other competing market centers. That is most
often left to the abilities of the market maker or specialist who, upon accepting such orders, must
now provide competitive executions in the handling of those orders. While the order exposure
requirements in the OHR provide a baseline for transparency (requiring the individual market
maker or specialist to publicly represent the order), participants must also competitively decide on
the necessary immediacy and liquidity to be applied to that order as demanded by the activity
taking place elsewhere in the National Market System and reported to the Consolidated Tape.
This has long been accomplished by the competitively healthy practice known as print
protection, whereby market makers and specialists can ensure that their clients orders are
protected and provided with a timely execution at a price equivalent to executions taking place
anywhere in the National Market System. Providing such print protection is an integral part of
every specialist and market makers daily operations, and is a competitive necessity within the
National Market System framework. Furthermore, from a purely regulatory and fiduciary
perspective, the ability to provide effective print protection for such limit orders is often a critical
factor in how a client defines and measures best execution.
The enhanced liquidity necessary to provide such print protection to protect clients limit orders
against activity that takes place in other market centers comes directly from a specialist or market
makers willingness to assume proprietary risk. That is, he or she must be willing to respond to
demands for liquidity out of its own inventory. The market maker or specialist accepts the risk
necessary to assure satisfaction of the clients limit order irrespective of its inventory position.
The execution of a clients limit order should not be dependent on activity taking place
solely on the market where their order resides. All trading activity in the National Market
System should be considered. To strip market makers and specialists of the flexibility of
providing a timely execution based on consolidated activity across all markets severely
limits competition among market centers and can only serve to erode the concept of a truly
National Market System.
Historically, this flexibility has long been available to market makers and specialists by virtue of
exemptive provisions under both SEC Rule 10a-1 and NASD 3350. This has allowed such
participants to sell short out of their inventory at a price that would otherwise be prohibited under
the various short sale rules. It is critical to note that these are passive exemptions, invoked only
in response to a customers buy order, and even then only in response to similar priced activity
in the National Market System. It is these exemptions that allow market makers and specialists to
provide their righthl and beneficial role in the marketplace - to provide liquidity when demanded
and maintain fair and orderly markets.
Jonathan G. Katz
In order for registered market makers and specialists to continue effectively in these roles and to
provide competitive and fiduciary services for their clients orders, Regulation SHO would need
to provide similar passive short sale exemptions.
The following represents several specific examples of situations in which registered market
makers and specialists would need to avail themselves of an exemption from Regulation SHO
based on specific price related activity in the NMS. In each of these instances the registered
market maker or specialist is assumed to have a flat position in the security in question and is in
possession of previously non-marketable limit orders delivered to them by their clients in their
market making or specialist capacity:
NBBO in KO: 50 x 50.01
a) Customer enters order to buy 1,000 KO @ 50.
b) Market maker represents customer order in its NASDAQ Intermarket
c) Trading activity is reported @ 50 in NYSE and the NMS
Based on the activity in the primary market and the related activity in the NMS, the customer
could be entitled to a fill on his limit order. In order to give the customer an execution the market
maker would need to sell short 1,000 shares as principal, at a price equal to the bid. This would
require an exemption from the proposed Rule SHO
NBBO in INTC: 30 x 30.01
a) Customer enters an order to buy 11,000 INTC @ 30.
b) The order is a block as defined by the OHR, and the market maker is not required to represent
it in his quote but chooses to represent 5,000 shares in his NASDAQ quote in order to protect the
c) Market maker buys 5,000 @ 30 through SuperMontage.
The customer is entitled to a minimum of 5,000 shares @ 30 as per Manning. The market maker
feels he owes his customer additional shares @ 30 based on activity reported on the consolidated
tape. This would require an exemption from the proposed Rule SHO.
Jonathan G. Katz
NBBO in MRK: 45 x 45.01
a) Customer A enters an order to buy 500 shares @ 44.99
b) Specialist is representing this specific order in its NSX quote.
c) Customer B enters an order to buy 1000 shares @ 44.98
d) Specialist is not representing this order in its quote, as provided by the Order Handling Rule,
but is obligated to protect it as a fiduciary.
e) A print for 3,000 shares @ 44.98 is reported on the NYSE (the primary market)
Current ITS rules would only provide a potential execution for Customer As order by the
NYSE specialist as provided for in the ITS Plans Trade Through Rule. This is a cumbersome
process that may not result in an execution at all, let alone a timely one. The execution of
Customer Bs order would be solely the responsibility of the NSX specialist who may wish to
provide a competitive execution of Customer Bs order @ 44.98. The NSX specialist could not
meet his fiduciary and competitive responsibilities to either Customer A or Customer B without
an exemption from the proposed Rule SHO.
In all of the above examples, registered market makers and specialists were engaging in bona fide
competitive market making activity in order to provide best execution to their customers
orders. The executions sought under our proposed passive exemption would have resulted in
enhanced pricing and liquidity along with the speed and certainty that have become the
benchmarks of our competitive National Market System. The requested limited exemptions for
the short sale activity that were highlighted in these examples were driven by specific types of
trading activity as defined by a truly transparent NMS. The market maker and specialist short
sale activity was not prompted by any specific intention to dnve the market for these securities
down, but rather to passively respond on behalf of their customers, to related price discovery
activity taking place in the marketplace. Market makers and specialists must be allowed to have
these limited exemptions if they are to be able to continue to contribute to the strength and vitality
of our National Market System.
We would be happy to discuss any of our comments with the Commission.
Bernard L. Madoff Peter B. Madoff
cc: William H. Donaldson
Paul S. Atkins
Roe1 C. Campos
Cynthia A. Glassman
Harvey J. Goldschmid
Annette L. Nazareth
Robert L.D. Colby
Larry E. Bergmann