October 7, 2005
Subject: File Number 265-23 Comments
SEC file # 265-23
Thank you for requesting information from investors in small companies. I am such an investor. I own stock in a number of companies and of particular concern to me, is your recent Regulation SHO, as it affects small public companies. I find it ironic that the SEC should have grandfather as legal, such illegal activity - specifically the problem with Failure to Deliver (FTD).
Failure to deliver is just that, a seller is unable to deliver the item that they just sold. In any other marketplace, retail, real estate, failure to deliver would constitute fraud - stealing and the seller would go to jail. Fraud is a felony criminal activity. Continuing this fraudulent activity only reduces what little confidence the general public has in the stock and bond markets. To have the publicís retirement investments in such a market place and the SEC not vigorously pursuing such criminal activity, is beyond all belief. The perpetrators should go to jail for this criminal activity and RICO should be imposed.
Recently you, the SEC, released through a Freedom of Information Act request, that on the average, 150 million shares fail to deliver daily, across both the NYSE and NASDAQ. This is not even considering the AMEX, OTCCB or pink sheets. This is astounding and outrageous! This is criminal to have such a simple problem grow to such large proportions.
There is however, a very simple remedy for the current situation. All FTDs are automatically ďbought inĒ at the end of the 3 day settlement period. No extensions. No exclusions. No excuses.
I have to pose the question as to why this situation has been allowed to continue for so long. I believe the root cause, is that the exchanges, the DTC along with the brokers have created such a complex system in which to hold the publicís securities, that they feel that they no longer have a fiduciary duty to the investing public. In fact, in examining the entire arrangement, the investing public only holds a beneficial ownership of their own securities, while the actual ownership rests with Cede & Co., which just happens to be the DTC. Thus, the investment industry actually has the real property ownership and title of the vast majority of the investing publicís securities.
I can think of no other type of ownership where by the public invests their own hard earned money (IRAs. 401Ks, etc.) in something that they do not actually have property rights to - however only have a beneficial interest in. This, I believe, breeds the investment industryís contempt toward the public that creates the problems such as Failure to Deliver, that we now see.
The SECís sanctioning of this blatantly illegal practice, only underscores the critical nature of the problem and the need for a remedy in the immediate future.
Gordon W. Bader