Short Sellers: Quit Whining and Follow The Rules by: Tom Brown posted on: August 27, 2008 Font Size: PrintEmail Doug Kassâs ode to the market-efficiency-enhancing benefits of short selling in the FT last week would be more convincing if the list of short-selling all-stars he includes had some actual investors on it. But it doesnât. Jim Grant is a journalist, not a money manager. Nouriel Roubini is a finance professor. Soâs Robert Shiller. Yes, Jim Chanos had a hand in bringing Enron to light, but given the work Fortuneâs Bethany MacLean and others did on the company at the same time, Enron would have blown up on schedule even if he hadnât shorted a single share. So on Kassâs evidence (and despite his assertion) the shorts havenât done a whole lot to improve the marketâs ability to find a clearing price. I have no problem with shorting stocks; the fund I manage is short a number of them. But please, donât tell me, as Kass says, shorts âprovide an anchor of objectivity in an investment world populated by those more interested in rewards than in uncovering systemic risks.â Bull! Short sellers are no more objective or disinterested than longs are, and want to profit from their positions like everyone else. And, yes, they can be devious. By the nature of short-selling, as Marty Whitman points out, shorts are highly motivated to do whatever it takes, including lie and distort, to get their short positions to crack sooner rather than later. Public-spirited guardians of the truth these people are not. I donât understand why they insist on preening. And I donât understand, either, their sanctimony every time the SEC announces it plans to simply enforce its rules regarding short sales. Those rules arenât too restrictive, after all. You donât even need to wait for an uptick anymore. All the agency wants now is for short sellers to actually deliver the securities they have sold. Simple, right? When I buy a stock, I deliver the cash Iâve committed on settlement day. Why shouldnât short sellers be required to do the same thing? Yet itâs all gotten people unhinged. To people like Doug Kass, the SECâs move means the agency âseems to be implicitly blaming the shortsâ for the walloping the financials have take over the past year and a half. Wrong. Given the magnitude of the credit crunch and banksâ attendant writedowns, itâs clear the stocks would have cratered whether anyone had shorted them ahead of time or not. For his part, Bob Lang says the SECâs proposed restrictions âsmack of regulation and government controlâ and âis a complete farce and runs in the face of pure capitalism.â Jim Chanos complains about âoverly burdensome and unnecessary regulatory provisions.â Calm down, girls. Hereâs a reminder: the trading of equities in the U.S. is governed by a set rules and regulations designed to ensure the markets here are fair, open, and transparent. Youâre not allowed to trade on inside information, for instance. You canât trade for your own account ahead of your clientsâ. Depending on what type of investor you are, you might even face restrictions on what types of securities you can own, and in what size. These rules are well-known. And, oddly, I never hear a peep of protest from the investors who are required to follow them. It seems to be only the short sellers who find rules a burden. Hereâs one more rule. If you short a stock, you have to deliver the shares at settlement. If you didnât have to do thatâif you could sell as much stock as youâd like without having to deliver anythingâindividual equities might become subject to manipulation, and market would lose some efficiency and rational-pricing pizzazz. And in fact, thereâs evidence that just that sort of manipulation goes on. Take a look, for instance, at the âthreshold securitiesâ list the exchanges publish daily. Itâs a list of stocks for which sellers failed to deliver 10,000 shares or more over the prior five trading days. Companies will get on that list and stay on for weeks. Zions Bancorp., to pick one name I know well, that escaped the bulk of the credit crunch, and whose fundamentals are improving steadily, has been on the list for nearly a month. Thatâs not the sign of random clerical oversight; more likely, itâs evidence speculators have targeted the stock and are attempting to manipulate its price via relentless selling. Now the SEC proposes to more judiciously enforce Reg SHOâthat is, insist that short sellers actually deliver shares at settlement--and the hyperbole machine goes into overdrive. Youâd think from the howls that free enterprise as we know it is being threatened. No, itâs not. The government just wants short sellers to play by the rules, the way everybody else has to. If shorts could just get over this crazy idea they have of themselves as noble, disinterested truth-seekers, they might realize that, and adapt. In the meantime, a lot of us would appreciate it if they could just tone down the whining. Tom Brown is head of Bankstocks.com. Seeking Alpha
DNDN OSTK - 15 Companies sign Naked Short Selling Letter to SEC http://www.nowpublic.com/world/over...ombs-wall-street-media-don-harrold-show-video Officers of 15 public companies' (including DNDN) joint anti-Naked Short Selling letter to SEC via counsel http://sec.gov/comments/s7-20-08/s72008-528.pdf August 21,2008 Mr. Christopher Cox Chairman U.S. Securities and Exchange Commission 100 F Street, NE Washington, DC 20549 Ms. Kathleen L. Casey Ms. Elisse B. Walter Mr. Luis A. Aguilar Mr. Troy A. Paredes Commissioner Commissioner Commissioner Commissioner U.S. Securities and Exchange Commission U.S. Securities and Exchange Commission 100 F Street, NE 100 F Street, NE Washington, DC 20549 Washington, DC 20549 Strengthening Regulation SHO To Protect All Investors From Naked Short Selling Dear Chairman Cox and Commissioners Casey, Walter, Aguilar and Paredes: We are writing on behalf of public companies that strongly support proposals to strengthen rules that protect them from the abusive practice of naked short selling. In recent weeks, we have watched with approval as the Commission has taken important steps to protect some of our nation's largest financial institutions from the devastating impact of market manipulation and naked short selling. The emergency order issued on July 15, 2008, and extended on July 29, 2008, was clearly appropriate in light of recent market turmoil. The consequences of another failure among Wall Street's major banks-due not to lack of capital or liquidity, but to a loss of confidence stemming from illegal trading and rumor mongering-would have been dire. So we commend Chairman Cox and the entire Commission for moving quickly and taking a strong stand on this issue. Moreover, we applaud the Commission's announced rulemaking intended to provide additional protections against abusive naked short selling in the broader market. As the Commission undertakes this initiative, we wanted to make sure that you have the perspective of public companies-other than the select financial institutions covered by the order-on this issue. In considering the rulemaking, we urge the Commission to incorporate the key elements of the emergency order into Regulation SHO and extend these protections to the securities of all public companies. We believe that doing so could effectively eliminate naked short selling and provide companies and investors alike with much needed relief from this significant threat to the integrity of our capital markets. To be clear, we are not opposed to legal short selling. Legal short selling adds liquidity to the markets and provides an efficient mechanism for price discovery. However, naked short selling, as you know, is a crime. Naked short selling and failures to deliver (FTDs) adversely affect all public companies. At one time, it could be said that naked short selling presented a problem only for the smallest of public companies. As recent events have shown, any company can have its share price harmed by naked short selling, which generates what are in essence counterfeit shares and drives share price down unfairly, against market factors. Since January 2005, Regulation SH0 has required that the stock exchanges publish daily a list of companies with FTDs over a specified threshold. Since that time, more than 7,000 unique tickers have appeared on the Threshold List. On March 31, 2008, the mark-to-market value of FTDs was $8.5 billion. Of that amount, $6.1 billion was in Threshold securities. Based on this data, one must conclude that Regulation SHO, as currently in effect, is not working. Indeed, there are many companies that have been on the Threshold List for months and some for years. The thirteen-day limit for delivering shares sold short has obviously failed to secure settlement and seems incapable of being enforced. In connection with the rulemaking initiative, we believe that the protections of the emergency order should be extended to all public companies. The first element of the order, the pre-borrow requirement, would go far towards limiting naked short selling and the FTDs that can result. The emergency order also requires delivery of all shares sold short by T+3, the normal settlement period, without exceptions. If extended to the securities of all public companies, this "hard delivery" rule would virtually eliminate the ability to engage in naked short selling. Finally, the efficacy of a revised Regulation SHO, as with any rule, will depend on meaningful enforcement muscle. For this reason, we would also recommend that the Commission enhance the mechanisms to enforce Regulation SHO, including rules aimed at holding brokerldealers and prime brokers directly accountable for buy-ins and deliveries. The U.S. Chamber of Commerce, the American Bankers Association, leading lawyers and academics and "Main Street" corporations, with millions of investors nationwide, have long sought from the Commission the very same protection that was provided the nineteen select institutions covered by the order. The Commission is expected to act evenhandedly to protect all investors from market manipulation and illegal trading and to maintain fair, orderly, and efficient markets for all participants. Therefore, we see no justification for not extending effective protection from naked short selling to all public companies, especially in these turbulent and uncertain times. As we have seen from recent events, dominos that are smaller than investment banks can set off a chain reaction as destructive as the failure of a large bank, causing fear and great harm to the markets and resulting in damaging losses to innocent investors. Accordingly, we applaud your intended rulemaking in this area to provide additional protections to the broader market. Amending Regulation SHO to incorporate the elements of the emergency order would be a permanent solution to naked short selling and would be an outstanding legacy for this Commission to bestow on the markets. Thank you for your consideration. - The following companies sign this letter to show their support, recognizing that given the breadth of issues and diversity of interests they represent, they may not agree with every point as stated, but wish the Commission to understand how strongly they share the general concerns expressed. Adobe Systems Incorporated Karen Cottle Senior Vice President, General Counsel and Corporate Secretary AMAG Pharmaceuticals, Inc. Joseph L Farmer General Counsel and Senior Vice President of Legal Affairs American Capital, Ltd. Samuel A. Flax Executive Vice President and General Counsel Calgon Carbon Corporation Dennis M. Sheedy Vice President, General Counsel and Secretary Dendreon Corporation Rick Hamm Senior Vice President, Corporate Affairs and General Counsel Dionex Corporation Gina Christopher Senior Corporate Counsel Ditech Networks, Inc. William Tamblyn Chief Financial Officer, Executive Vice President Endwave Corporation Brett W. Wallace Chief Financial Officer and Executive Vice President EnerNOC, Inc. David Samuels, Executive Vice President and Corporate Secretary Medis Technologies Ltd. Robert K. Lifton Chairman and Chief Executive Officer NetScout Systems, Inc. David Sommers Chief Financial Officer and Senior Vice President, General Operations NVlDlA Corporation Christine Lillquist Director Corporate Affairs Overstock.com, Inc. Jonathan E. Johnson, Ill President Quest Software, Inc. J. Michael Vaughn Vice President, General Counsel and Secretary Sangamo BioSciences, Inc. H. Ward Wolff Executive Vice President and Chief Financial Officer Eric C. Jensen, Esq. cc: Erik R. Sirri, Director, Division of Trading and Markets Florence Harmon, Acting Secretary, Office of the Secretary FIVE PAL0 ALTO SQUARE. 3000 EL CAMINO REAL PAL0 ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM Eric C.Jensen (650) 843-5049 ejensen@cooley.com Regulation SHO Letter
Nothing personal but we should start a list of "main street" corporations that cried "naked shorting" and later failed due to a minor detail like accounting fraud. Wasn't Bio vail, pagasus, nfi a couple that had genital herpes and never told anyone?
Only after you first compile the list of stocks illegally naked shorted before the Press went to work on them. What don't you get about illegal. If you're smoking crack at your house, can the police break in w/o a warrant? No. Are you breaking the law? Yes. Why does the law work that way? Because maybe you're just watching TV. We know the hedgies can call SEC investigations, manipulate the Press, and control class action attorneys. This is documented. Why this doesn't bother you, Idon't know. But it doesn't matter. It's over soon. When the Bear indictments come, Wall St. will fold like a Sears tent.
http://seekingalpha.com/article/87653-illegal-short-sellers-may-face-rico-indictments Although this is about a month old, it is one of the best I have seen regarding the current threats the naked shorts are facing. RICO, Racketeering Influenced Corruption Organizations Act, the law Rudy Guiliani used to bring down Michael Milken, and other Wall Street crooks, could be revisited in the SEC's struggle to clean up Wall Street's growing threat to the financial markets. The SEC's crackdown against illegal naked short selling and rumor-mongering resulted in more than 50 hedge funds being slapped with subpoenas last week, according to the Wall Street Journal. Conspiracy theorist and CEO of Overstock.com (OSTK), Patrick Byrne, has embarked on a crusade to expose the nefarious hedge funds that practice illegal short selling. Byrne's web site, Deep Capture.com, has compiled a plethora of facts documenting, names, dates, times and videos of the players and their schemes. Mark Mitchell, of DeepCapture.com, believes there exist a "hedge fund-orchestrated campaign to cover-up the crime of naked short selling." Depending on how deep the SEC probes, and what insidious facts they discover, we could see hedge fund managers, traders, and other employees facing scandalous, unprecedented charges under the infamous racketeering law, RICO. There is growing pressure for whistle-blowers to sound off or risk becoming the next scapegoat. Clusterstock.com, reported, "the SEC is demanding both trading records and email correspondences" from subpoenaed firms. The inclusion of cell phone and text messaging records will undoubtedly be scrutinized. Concurrently, the NYSE Regulation Inc. is also investigating how some of its largest firms comply with false and misleading rumors that could undermine a stock's price. This is going to intensify. Motley Fool, published an article on March 24, 2008, titled "The Naked Truth on Illegal Shorting," in which 100% of a company's shares were purchased by one individual, and were not available for shorting. Nevertheless, 60 million phantom shares were traded, according to owner. Subsequently, he filed a SEC 13-D compliant form. Dick Fuld, CEO of Lehman Brothers (LEH), told market regulators that he has information that short-selling hedge funds colluded to bring down Bear Sterns (BSC). If Fulds's "information" is of evidentiary value, these hedge fund managers, and their cast of cohorts, could find themselves behind bars. If the SEC diligently investigates the facts, we could see RICO indictments against illegal short sellers as early as Labor Day. Anyone charged under the RICO statue, even if they are found "not guilty," will become permanently damaged. After observing the demise of Fannie Mae (FNM), and Freddie Mac (FRE) last week, it is expedient that the SEC move quickly to abolish the practice of naked short selling for all stocks. Short selling should only be allowed after the short seller has successfully borrowed the shares. The practice of selling shares that cannot be borrowed is a crime! Discloser: No long or short positions in LEH, FNM or FRE
Discloser: No long or short positions in LEH, FNM or FRE -------------- Don't know about the other two, but he should've pick up some FRE.
http://www.deepcapture.com/how-cnbc-has-responded-to-deep-capture/ Good read. That fax machine CNBC doesn't have, here's the number. BTW, there were more than one. LOL. What putz'. And here's the answer to the 'where's Herb? " question. The plot thickens. Now you all think what you want. But this is about over. If you can't figure out how to make money when it breaks, get a paper hat and a headset.
Loeb has recently released the fact he is under SEC investigation for communicating with hedge fund peers. Read this closely. Use the link to go to proof. See. We don't lash out. You have to have the facts. They never thought there would be a Patrick Byrne to spend tens of millions of his own money, and risk his life. They almost got away with it. Almost doesn't get it done. http://www.deepcapture.com/was-dan-loebs-capital-allied-with-david-einhorns/ Be sure to see the last sentence. This is only beginning. AntiSocialMedia with Judd Bagley Was Dan Loebâs capital allied with David Einhornâs? August 27th, 2008 by Judd Bagley Mega-hedge fund manager Daniel Loeb recently disclosed a double-whammy to his investors: substantial losses early in the third quarter of 2008, and the initiation of a formal SEC investigation into the operation of Loebâs fund, Third Point Partners. Loeb blamed part of his firmâs losses on the unfortunate fact of being short financial stocks just when the SEC decided to temporarily enforce existing laws prohibiting illegal naked short selling of a handful of such firms. Loeb blamed the SEC investigation on a perception that his communications with other hedge funds violate securities laws. While nobody outside the SEC can know with certainty just what it is about Loebâs communications with other hedge funds that might be problematic, based on my observations of Loebâs stock message board postings, I do have a theory. In this installment, weâll examine apparent coordination between Daniel Loeb and David Einhorn, manager of mega-hedge fund Greenlight Capital. According to his book, Fooling Some of the People All of the Time, Einhorn established his much-storied short position in Allied Capital (NYSE:ALD) in early May of 2002. Einhorn first publicly outlined his short thesis on the late afternoon of May 15, 2002. The next morning, Allied held a conference call to address Einhornâs claims. Interestingly, Einhorn himself did not participate in that call, however the first several questions - which achieved a much greater level of specificity and detail than Einhorn offered the night before - were asked by Daniel Loeb. Either Loeb is an unusually quick study, or he and Einhorn had communicated substantially on the subject of shorting Allied Capital in advance. Interestingly, on Alliedâs Yahoo Finance message board, one of the biggest proponents of the Einhorn thesis also turns out to be Daniel Loeb. In this message, for example, Loebâs alter-ego, senor_pinche_wey (as proven here), confronts a poster who questions the veracity of Einhornâs claims regarding Allied. A few weeks later, Loebâs alter-alter ego, mr_pink_esq (also proven here), says of Einhornâs analysis: âLooks like Einhorn has this one nailed. Einhorn has one of the best reputations in the business. He would hate to be on the wrong side of this trade.â And lest you think Loeb was just offering his buddy Einhorn moral support, consider this post, in which Loeb wonders aloud (in the third person) how he might spend the âmillions He will make on his ALD short. He was considering purchasing Himself a new car. However He is torn between the Aston Martin DB9, the Bentley GT and the Ferrari 360 Spyderâ¦Maybe if this thing goes bust He can buy Himself a Mercedes Maybach.â In all, Loeb, with the direct support of known paid message board basher Yolanda Holtzee (using such account names as ms_mint_green_esq and regulators_have_been_notified) personally posted scores of such messages over three years. This appears to be an example of Loeb and Einhorn coordinating their efforts on the short side. Coming soon: a clear-cut example of Loeb coordinating efforts with another hedge fund manager in his role as a so-called âactivist investorâ (and in so doing, skirting key securities laws while holding a metaphorical gun to a target companyâs head).
NSS must be so widespread that the SEC may trigger more collapses if it cracks down. an election is near, after all.