Naked shorting

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1. Between July 15, 2008, and July 27, 2009, the SEC issued eight releases relating to amendments to Reg SHO and “naked” short selling, including some emergency orders, all intended to contain naked short selling.[31]
2. Had those who engage in naked short selling not chosen the investment banks as victims during the financial crisis in 2008, the scope of these violations would likely remain unknown, except of course to those who are committing them. Now that those banks are prospering again, there is little motivation for them to speak publicly about naked short selling. Many of the records sought by Plaintiff relate to the SEC’s aborted investigations of naked short selling of the investment banks (Bear Stearns, Lehman Brothers, Merrill Lynch, Morgan Stanley, and Goldman Sachs) whose collapse or near collapse deepened the financial crisis.
3. After the SEC issued the amendments to Reg SHO and emergency amendments in 2008 and 2009, the minor administrative proceedings brought by the SEC’s Division of Enforcement again gave the impression that naked short selling was more an irritant than a serious threat to public companies. The SEC brought two classes of cases to enforce Reg SHO: one alleged intentional violations against minor market participants who used options to circumvent Reg SHO,[32] and the other alleged inadvertent and narrow violations against broker-dealers affiliated with large investment banks.[33] None of these cases hinted that the violations of Reg SHO were systemic or created a risk to the stability of the capital markets. There seemed to be a disconnect at the SEC between (1) the five SEC Commissioners who had acted expeditiously to issue half a dozen rules and emergency orders to contain naked short selling during the 2008 financial crisis and (2) the SEC’s Division of Enforcement which again reverted to its tepid enforcement of Reg SHO and the non-enforcement of the antifraud provisions of the securities acts against those engaged in naked short selling.
4. The conflict in the courses of action between the five Commissioners and the SEC Division of Enforcement suggests the SEC believed it could deter the market participants who engaged in naked short selling, including those who had deepened the financial crisis by contributing to the collapse or near collapse of five US based international investment banks (Bear Stearns, Merrill Lynch, Lehman Brothers, Morgan Stanley, and Goldman Sachs), by strengthening the regulations prohibiting naked short selling without meaningfully enforcing those regulations, i.e., by tough words without action. In short, the numerous revisions strengthening Reg SHO and other emergency orders were the rough equivalent of the SEC repeatedly telling those engaged in naked short selling: “Don’t do that again. This time we are really serious.”
5. The willingness of the world’s largest brokerage firms to flout the SEC rules designed to prohibit naked short selling was established beyond doubt in the fall of 2011 when FINRA’s Department of Enforcement released its Letters of Acceptance, Waiver and Consent (“AWC&rdquo, which included FINRA’s findings and conclusions, arising out of its enforcement proceedings against two of the world’s largest brokerage firms, UBS Securities, the brokerage arm of UBS Financial Services, a financial institution with $2 trillion in assets, and Credit Suisse Securities,  the brokerage arm of Credit Suisse Financial Services, a financial institution with nearly $1 trillion in assets.
6. In its AWC with FINRA, UBS signed off on committing approximately 30 different classes of Reg SHO violations over the five-year period from January 2005 through December 2010. The total number of Reg SHO violations committed by UBS is an unknown, since the best FINRA could do in quantifying the number of UBS violations of Reg SHO was to place them in the “tens of millions.”[34] Likewise, FINRA could not fix a date when the UBS violations of Reg SHO had stopped.
7. The magnitude of these violations may be more easily grasped when viewed in terms of the dollar value of the phantom stock UBS created out of thin air through the naked short sales it executed. When UBS short sold stock it did not own, possess, had not borrowed, and had not arranged to borrow, it was in essence selling counterfeit stock. Under the conservative assumption that the average size of each trade was 100 shares and the average price was $10, the average transaction would have created $1,000 worth of counterfeit stock. Since UBS engaged in tens of millions of transactions creating counterfeit stock, it created counterfeit stock pretending to be worth tens of billions of dollars. By way of example only, if UBS created counterfeit stock in 50 million transactions, it would have created $50 billion worth of counterfeit stock.
8. As alleged above, UBS was not alone in committing massive violations of Reg SHO. In its AWC with FINRA, Credit Suisse admitted committing massive violations of Reg SHO during the four-and-a-half-year period from June 2005 through December 2010. In all, Credit Suisse also signed off on committing approximately 30 classes of violations directly or indirectly relating to Reg SHO. For its part, Credit Suisse entered “more than ten million short sale orders without locates.”[35]  Using the same conservative assumptions as before, Credit Suisse likely effectively created at least $10 billion in counterfeit stock. Once again, the scope and volume of the violations raise serious concerns regarding the effectiveness of the regulatory system designed to stop naked short selling.
9. The massive Reg SHO violations by UBS and Credit Suisse did not merely create risks of harm to public companies and their investors. The scope and magnitude of these violations of Reg SHO had the potential to destabilize the system itself. In the settlement agreement, FINRA found and UBS conceded that the “duration, scope and volume of the trading [violations] created a potential for harm to the integrity of the market(emphasis added).”[36] The only aspect of the settlement more stunning than the scope of UBS’s violations—whose sale of counterfeit stock threatened the integrity of the capital markets—was the tiny fine paid by this $2 trillion company:  $12 million.
10. FINRA’s release of the AWCs with UBS and Credit Suisse in the fall of 2011 redefined the magnitude of counterfeit stock which giant broker-dealers could create. The number of violations–in the tens of millions—the scope of the violations–approximately 30 classes—and magnitude of the harm, which put at risk the integrity of the market, point to one simple, overarching question: how did the SEC, FINRA, and the exchanges overlook the massive UBS and Credit Suisse violations of Reg SHO for at least half a decade?
11. The Depository Trust & Clearing Corporation (“DTCC&rdquo, which settles and closes virtually all stock sales, supposedly also monitors those trades for violations of Reg SHO and naked short selling. The same question must be asked: How did the DTCC overlook the massive violations by UBS and Credit Suisse for at least half a decade?
12. Supposedly, Reg SHO should have kept UBS and Credit Suisse in check. The regulation was not untested when it became operative in January 2005. It incorporated the SEC’s enforcement experience with earlier regulations designed to curb naked short selling.[37] The SEC released the preliminary version of Reg SHO on October 28, 2003.[38] It then went through a fourteen-month trial process before it became operative on January 1, 2005. Since then, it has been refined from time to time to work out the kinks.[39] It was significantly amended in October 2008 to stop the naked shorts which were destabilizing the nation’s investment banks during the financial crisis.[40] UBS and Credit Suisse were nonetheless able to engage in massive violations of Reg SHO for years after the regulation became operative, including twenty-seven months after the 2008 amendments were supposed to have cured the flaws in Reg SHO.
13. The UBS and Credit Suisse cases highlight another inherent and major flaw in Reg SHO: the regulation purports to prohibit trading practices which are largely invisible to law enforcement, regulators, public companies, and market participants (except those committing the violations). The lack of transparency pervades every nook and cranny in the stock trading system as a short sale passes through it. By inadvertence or design, the lights are switched off on short sales as they are electronically processed by the executing broker, the clearing broker, the exchanges, and the DTCC. The lack of transparency continues even when the SEC and FINRA release their decisions and settlements relating to naked short selling or the enforcement of Reg SHO to the public.
14. The FINRA AWCs with UBS and Credit Suisse illustrate how FINRA itself shut off the lights on UBS’s and Credit Suisse’s violations. Despite the tens of millions of violations of Reg SHO admitted by UBS and Credit Suisse, not a single public company was identified as a victim of those violations.  Although at least 270 UBS customers participated in those violations, none was identified. Although UBS and Credit Suisse could not have committed the Reg SHO violations without the participation of its employees, FINRA brought no proceeding against any executive or employee of either company for participating in any of the tens of millions of violations. The same is true of the SEC’s releases describing its settlements with Goldman Sachs in 2007[41] and 2010,[42] and UBS in 2011.[43] The silence surrounding the SEC’s and FINRA’s enforcement of Reg SHO violations is deafening, and that silence is inexplicable in view of the potential harm those violations can cause. Again, according to the FINRA-UBS settlement, “The duration, scope and volume of the trading created a potential for harm to the integrity of the market.”[44]
15. A June 2009 study, Analysis of Twenty-First Century Risks in Light of the Recent Market Collapse, commissioned by the U.S. Department of Defense addressed how the lack of transparency makes it impossible to identify those responsible for the bear raids of the nation’s investment banks during the financial crisis. The report observed:

While substantial, unusual trading activity can be identified, the source of the bear raids has not been traceable to date due to serious transparency gaps for hedge funds, trading pools, sponsored access, and sovereign wealth funds. What can be demonstrated, however, is that two relatively small broker dealers emerged virtually overnight to trade “trillions of dollars worth of U.S. blue chip companies. They are the number one traders in all financial companies that collapsed or are now financially supported by the U.S. government. Trading by the firms has grown exponentially while the markets have lost trillions of dollars in value” (emphasis in the original).[45]