The OSC and SEC have issued temporary orders prohibiting short selling of certain financial companies’ common equity securities until October 3, 2008.1 Thirteen Canadian cross-border issuers, listed in Appendix A to this bulletin, are affected by the OSC’s order. The SEC’s order affects all U.S. and non-U.S. banks, broker-dealers, investment advisers, savings associations and insurance companies listed on U.S. stock exchanges.2

Like the SEC’s prohibition on “naked” short selling,3 the regulators’ prohibition on short selling the securities of financial firms is an attempt to reduce price volatility and contain the disruption of securities markets. Although short selling has not disrupted Canadian markets to the same extent as U.S. markets, the OSC believes its order is necessary as a precaution against regulatory arbitrage – that is, short sellers effecting transactions in dual-listed securities in Canada following the SEC’s prohibition.

Market Making and Other Exemptions

The SEC and OSC are permitting several exceptions to the short-selling prohibition, including 

  • short sales in accordance with market making obligations; 
  • short sales made to hedge the exposure of a derivatives market maker, including a market maker in exchange traded funds or notes;4 and
  • short sales to facilitate block transactions.5

For additional details about these exemptions as well as other technical exemptions from the SEC’s and OSC’s short-selling prohibitions, please feel free to contact us or refer to the SEC’s Amended Emergency Order (September 21, 2008), the OSC’s Amended Temporary Order Prohibiting Short Selling (September 22, 2008) and the Investment Industry Regulatory Organization of Canada’s Restated Reminder Respecting Obligations in the Conduct of Short Sales (September 23, 2008).

Disclosure of Daily Short Positions

In addition to the short-selling prohibitions, the SEC is requiring certain institutional investment managers to begin reporting their daily short positions. (SEC rules already require long positions to be reported.) The affected institutions are those that exercise investment discretion with respect to accounts with a fair market value of US$100 million or more holding equity securities listed on a U.S. stock exchange. Specifically, institutions that filed or were required to file a Form 13F6 with the SEC for the calendar quarter ended June 30, 2008 will now also be required to file Form SH reporting

  • the number and value of securities (except options) sold short; 
  • the opening and closing short positions; and 
  • the size and time of the largest intraday short position.

As an exception, a report will not need to be filed for a short position if its fair market value is less than US$1 million and constitutes less than 0.25% of the class of securities outstanding.7

Forms SH will be due on the Monday following any week in which short sales are made, beginning with short sales effected on September 22, 2008 through October 2, 2008 (unless the SEC extends the order for a maximum of 20 additional days). As a result, the first Forms SH will have to be filed on September 29, 2008 covering the prior week’s short sales. The forms will initially be filed on a non-public basis but will be made public by the SEC two weeks after their due date.

Relaxed Restrictions on Issuer Repurchases of U.S.-Listed Securities

The SEC and the TSX have taken additional measures to increase liquidity in capital markets by temporarily relaxing the rules pertaining to issuer repurchases of their own securities. In the United States, Rule 10b-18 under the Securities Exchange Act of 1934 specifies conditions under which issuers may repurchase their own securities without risk of violating the anti-fraud or market manipulation rules. In Canada, the TSX rules permit normal course issuer bids under conditions similar to the conditions in Rule 10b-18. Until October 3, 2008 (unless the amendments are extended), the SEC and TSX have 

  • removed restrictions on issuer repurchases at the opening or near the closing of trading, and 
  • increased the permissible volume of purchases to 100%, from 25%, of the security’s average daily trading volume.

The relief granted by the TSX applies only to Canadian issuers that are interlisted on a U.S. stock exchange. The normal course issuer bid rules are unchanged for other issuers.