May 28, 2009
The Short Selling rule must provide for a methodology to confirm that short sales borrowing of securities has in fact, been borrowed prior to any short sale. Given the market conditions beginning 07/06/2007 through early 2009, it should be obvious that the study periods used to evaluate and remove the Up-Tick Rule were erroneous. Given the complexities of short selling tactics and the beneficial aspects of short selling, it is mandatory that a proper confirmation be developed and implemented for tracking borrowing.
The Up-Tick Rule removal 07/06/2007 and the subsequent Mark-to-Market regime implemented on 11/16/2007 may, in hindsight, be two of the most disruptive actions taken by regulatory agencies in modern times. Investors and the public deserve better. The costs of these actions defy any perceived benefits.