May 8, 2009
I urge the SEC to reinstate the Uptick Rule, and specifically would urge a plus tick rule over other alternatives such as a "best bid" or "circuit breaker" test.
When the Uptick Rule was initially implemented in the late 1930's, there was an implicit acknowledgement that companies were not commodities. There was recognition that the capital markets served the broader purpose of capital formation that companies create products, provide services, employ citizens and pay taxes and thus there was an interest to promote market integrity and protect interstate commerce.
In 1963, the SEC's Special Study reiterated the Uptick Rule as being a simple, but effective, mechanism for balancing the various competing interests: allowing for relatively unrestricted short sales in advancing markets, eliminating short selling as a tool for driving the market down by preventing short sales at successively lower prices, and preventing short sellers from accelerating a declining market by exhausting all available liquidity thus leaving long sellers to sell at successively lower prices.
When considering the objectives of protecting investors and capital formation, it seems that the Tick Test seems to balance the interest of both the short seller and market integrity, and therefore ought to be reinstated.
A rule with myriad exemptions and carve-outs will not fulfill its purpose. Therefore, we urge the SEC to enforce not just the letter of the law, but also be mindful of the principle of the rule.
Additionally, I request the SEC enforce restrictions on the practice of naked short selling. This is a fraudulent practice that appears to have been laxly enforced in the past. Naked short selling is essentially the creation of shares out of "whole cloth", shares that never had to undergo SEC review, diluting the rights of existing shareholders, placing a price control on a stock and thereby inhibiting capital formation. No doubt, there is genuine concern from all market participants to put an end to this egregious practice this is not an issue of "balancing interests", but instead an issue of enforcement, and we urge the SEC to continue to step up their efforts in this regard. Naked short selling simply can not be tolerated.
In conclusion, I urge the Commission to promote market integrity and capital formation, and to help uphold free and fair markets. We support the re-implementation of the Uptick Rule in not only form, but in substance, as it best balances the interests of all market participants.