S.E.C. Floats a Short-Selling Proposal

The New York Times
By FLOYD NORRIS
Published: August 17, 2009
The Securities and Exchange Commission, after months of considering what to do about short-selling, came up with a new idea on Monday that could make it virtually impossible to place an order to sell stock short and be sure it would be executed quickly.
The commission asked for additional comments on that idea, delaying for at least a month the possibility of commission action.
The proposal would require that short sales be made only at a price higher than the current best price being offered by would-be buyers of the stock. It is similar to the so-called tick-test, which was effective on many stock markets before 2007, but would be more restrictive and could be easier to apply given the current structure of markets. There is now no limit on short-selling, so long as the seller can locate shares to borrow.
Short-sellers trade borrowed shares of a stock, hoping to buy them back later at a lower price and pocket the difference.
The latest proposal is not a completely new idea; the S.E.C. suggested it deep in its earlier proposal, but did not request detailed comment on it. That it is now seeking comment could indicate that at least some members of the commission think the approach could be a good one.
Pressure on the S.E.C. to do something about short-selling grew last year when the stock market nearly collapsed in the wake of the failure of Lehman Brothers. The commission banned short-selling in some financial stocks for a time, and some investors, supported by members of Congress, demanded permanent changes in the rules.
Much of Wall Street has argued that there is no evidence that short-selling caused the plunge last year, and the academic studies available do not support the idea. But the pressure on the commission to do something has been intense. Several stock exchanges suggested a proposal similar to the new one, if the commission felt it had to do something.
The commission asked for comment on whether the latest proposal should become effective for all stocks at all times, or should take effect only after a “circuit breaker” was tripped. Such a circuit breaker could be activated if the stock in question declined by a certain amount — say 10 percent — or for all stocks if a major market average fell by a similarly large percentage. The exchanges said a circuit breaker would be needed.
The old tick-test depended on whether the short sale was executed at a price that was higher than the last different price. Such a rule was relatively easy to impose when virtually all trading in stocks listed on the New York Stock Exchange was done on the exchange.
Now, however, such trades are executed in dozens of locations, and markets can delay reporting trades for up to 90 seconds. As a result, brokerage firms argued, it is virtually impossible to know with certainty what the last trade was, and therefore something based on the old tick-test would be impossible to administer.
The “alternative uptick rule” that the S.E.C. suggested on Monday would be based solely on the current best bid price for a stock — a figure that is kept up to date and is readily accessible. If the best bid for a stock was $20 a share, a short-seller could put in a sell order at $20.01. If someone agreed to buy at that price, the trade could be completed.
But no short sale could be executed immediately, at least until all the buy orders at the best bid price had been filled. The commission said that could “potentially lessen some of the benefits of legitimate short-selling, including market liquidity and pricing efficiency,” and asked for comment on whether that was likely.
The commission asked for comment on whether such a rule would help to prevent “potentially abusive or manipulative short-selling” from driving the market down, and whether adopting such a rule would improve investor confidence.
Even if the commission were to settle on the new approach, it would have to decide what circuit breakers, if any, would be needed. And the commission would have to decide what exemptions, if any, were appropriate.
Much of Wall Street wants to exempt market makers and traders who follow certain market-neutral strategies, warning that without them, those traders would be subject to unnecessary risks of having to maintain positions overnight.
The old tick rule was dropped in 2004, after an experiment in which the commission found that eliminating it for some stocks had no apparent effect on trading. There was virtually no public controversy at the time, but that changed after the 2008 market plunge; the S.E.C. could face a hostile reaction from some members of Congress if it does not act.
For some, the issue of short-selling has been tied up with the issue of “naked short-selling,” a practice that involves selling stocks short without borrowing them. It appears that other S.E.C. rules have virtually eliminated such selling, particularly for stocks listed on Nasdaq or major stock exchanges. But it remains an emotional issue, and some believe naked short-selling is still a major problem.