In an effort to protect investors and markets, on September 18, 2008, the Securities and Exchange Commission (the “Commission”) issued an Emergency Order halting short selling of financial stocks of 799 financial institutions.
A complete list of the financial institutions affected can be found in Appendix A of the Order at http://www.sec.gov/rules/other/2008/34-58592.pdf. The Commission also issued two additional Emergency Orders, the first temporarily requiring institutional money managers to report short positions in certain stocks and the second temporarily reducing restrictions on the ability of securities issuers to repurchase their securities. The following summarizes the main points of the three Emergency Orders referenced above.
SEC Emergency Order Halting Short Selling in Certain Financial Stocks
In response to recent market conditions and in an attempt to protect the capital markets, the Commission issued an Emergency Order that prohibits the short selling of any publicly traded securities of 799 of the nation’s banks, insurance companies, securities firms and other financial institutions (the “First Order”). The First Order, however, provides for narrow exceptions for bona fide market makers, block positioners and automatic exercise or assignment of an equity option held prior to the effective date of the First Order. In addition, the First Order only prohibits entering into short sales in the named financial institutions after the effective date of the First Order and does not require the unwinding of any pre-existing short positions with the named financial institutions. The First Order refers to Rule 200(a) of Regulation SHO with respect to the definition of “short sale.”
The First Order took effect on September 19, 2008 and, unless extended, will terminate on October 2, 2008.
SEC Emergency Order Requiring Institutional Money Managers to Report New Short Sales
The Commission issued an additional Emergency Order requiring that institutional investment managers who filed or were required to file a Form 13F for the quarter ended June 30, 2008 to make weekly reports of their daily short positions in section 13(f) securities (the “Second Order”). The Second Order requires short positions to be reported on new Form SH, in a format similar to Form 13F. It also appears that, similar to Form 13F, Form SH does not “net” long positions from short positions. Form SH must be filed with the Commission on the first business day of every week following any 13(f) security short sale that is not an option. Form SH does not have to be filed if the short position represents “less than onequarter of one percent of the class of the issuer’s section 13(f) securities” and the fair market value of the short position is less than $1,000,000. Like the First Order, the Second Order refers to Rule 200(a) of Regulation SHO with respect to the definition of “short sale.”
The first Form SH filing will be required on September 29, 2008. This filing need only include short positions entered into or closed (in part or in total) from September 22, 2008 through September 28, 2008.
Form SH consists of a Cover Page, Summary Page and Information Table (one such table is provided for each day of the week, combining Saturday and Sunday in one table), and will be filed electronically through EDGAR. Once filed through EDGAR, Form SH will be publicly available. Both the Cover and Summary Pages consist of general information regarding the institutional investment manager. The information table requires the following data fields per issuer: name of issuer, CUSIP, opening and closing short position, the number and value of securities sold short, the largest intra-day short position and the time of day of the largest intra-day short position. Pursuant to the instructions to Form SH, the opening short position for September 22, 2008 shall be listed as zero.
The Second Order took effect on September 19, 2008 and, unless extended, will terminate on October 2, 2008. As a result, unless the Second Order is extended, it appears that only one Form SH (the Form SH required to be filed on September 29, 2008) will be required under the Second Order. A Form SH is not required to be filed if no reportable short sales were entered into or closed in the prior week.
SEC Emergency Order Easing Restrictions on Issuers to Repurchase Their Securities
The Commission’s third Emergency Order eased restrictions on corporate stock buy-backs, in an attempt to provide companies greater flexibility to repurchase their securities and help restore liquidity (the “Third Order”). The Third Order attempts to achieve this goal by suspending the time of purchases condition and modifying the volume of purchases condition so that purchases of up to 100% of the average daily trading volume for the security are permitted.
The Third Order took effect on September 19, 2008 and, unless extended, will terminate on October 2, 2008.