SEC makes emergency rule targeting ‘naked’ short-selling permanent

By Marcy Gordon, AP Business Writer
Monday July 27, 2009, 8:03 pm EDT

WASHINGTON (AP) — Federal regulators on Monday made permanent an emergency rule put in at the height of last fall’s market turmoil that aims to reduce abusive short-selling.

The Securities and Exchange Commission announced that it took the action on the rule targeting so-called “naked” short-selling, which was due to expire Friday.

Short-sellers bet against a stock. They generally borrow a company’s shares, sell them, and then buy them when the stock falls and return them to the lender — pocketing the difference in price.

“Naked” short-selling occurs when sellers don’t even borrow the shares before selling them, and then look to cover positions sometime after the sale.

The SEC rule includes a requirement that brokers must promptly buy or borrow securities to deliver on a short sale.

Brokers acting for short sellers must find a party believed to be able to deliver the shares within three days after the short-sale trade. If the shares aren’t delivered within that time, there is deemed to be a “failure to deliver.” Brokers can be subject to penalties if the failure to deliver isn’t resolved by the start of trading on the following day.

At the same time, the SEC has been considering several new approaches to reining in rushes of regular short-selling that also can cause dramatic plunges in stock prices.

Investors and lawmakers have been clamoring for the SEC to put new brakes on trading moves they say worsened the market’s downturn starting last fall. SEC Chairman Mary Schapiro has said she is making the issue a priority.

Some securities industry officials, however, have maintained that the SEC’s emergency order on “naked” short-selling brought unintended negative consequences, such as wilder price swings and turbulence in the market.

The five SEC commissioners voted in April to put forward for public comment five alternative short-selling plans. One option is restoring a Depression-era rule that prohibits short sellers from making their trades until a stock ticks at least one penny above its previous trading price. The goal of the so-called uptick rule is to prevent selling sprees that feed upon themselves — actions that battered the stocks of banks and other companies over the last year.

Another approach would ban short-selling for the rest of the trading session in a stock that declines by 10 percent or more.

Schapiro said last week the SEC could decide on a final course of action in “the next several weeks or several months.”

Sen. Ted Kaufman, a Democrat from Delaware and one of a bipartisan group of seven senators who have been pushing the SEC to rein in short-selling overall or face legislative action, said Monday that “investors need to see concrete steps.”

“Instead of proposing action today to deal with the problem, the SEC apparently is content to let potential solutions sit on the shelf for another two months,” Kaufman said in a statement. “… If the market were to decline precipitously again and the banks propped up by taxpayer funds were to become vulnerable again, that is not an insignificant risk.”

In addition to making the “naked” short-selling rule permanent, the SEC and its staff are working with major stock exchanges to make data on short-sale transactions and volumes publicly available through the exchanges’ Web sites, the SEC announcement said. It will result in “a substantial increase” over the amount of information currently required, the agency said.

“Today’s actions demonstrate the (SEC’s) determination to address short-selling abuses while at the same time increasing public disclosure of short-selling activities that affect our markets,” Schapiro said in a statement.

The SEC also said it will hold a public hearing on Sept. 30 to address stock lending for short-selling and possible new disclosures related to short-selling that could be required.

Separately Monday, Sen. Charles Schumer, a New York Democrat and a member of the Senate Banking Committee, said he has asked Schapiro to ban the practice of so-called “flash trading,” which enables some big Wall Street banks and hedge funds to get an advance look at investors’ stock orders before they hit the market.

The use of super-fast computers by those participants to spy on orders gives them an unfair advantage, Schumer wrote in a letter Schapiro. If the SEC fails to act, Schumer said he would consider proposing legislation to ban flash trading.

“This kind of unfair access seriously compromises the integrity of our markets and creates a two-tiered system where a privileged group of insiders receive preferential treatment, depriving others of a fair price for their transactions,” Schumer told Schapiro.

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