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Vonage 'Naked' short selling is center of looming legal battle
Companies on the defensive
'Naked' short selling is center of looming legal battle
Companies on the defensive seize upon an aggressive form of shorting
E-mail | Disable live quotes By Alistair Barr, MarketWatch
Last Update: 1:00 AM ET Jun 14, 2006
SAN FRANCISCO (MarketWatch) - For years, companies have accused short sellers of manipulating their shares and spreading false information, but rarely have their allegations gone anywhere in court.
Now, after seeking out a more effective basis to make their case, a growing number of companies and class-action attorneys have seized upon a particularly aggressive - and often illegal - form of short selling called naked shorting.
Like mainstream short strategies, naked shorting is also a way to bet on a stock dropping - only it's easier to think of it as shorting on steroids.
In a typical short sale, traders sell borrowed shares and then - if all goes according to plan - buy them back at a lower price and return them to the lender. The difference is kept as profit.
In naked shorting, a trader shorts a stock without first making necessary arrangements to borrow shares. That often means the seller often fails to deliver the stock to the buyer and the trade can't be settled, running afoul of securities laws.
By one contentious estimate, it's a big problem plaguing more than 10% of stocks on the New York Stock Exchange and Nasdaq. An NYSE probe into whether naked shorting was used to force down shares of Vonage Holdings Corp. lower during the Internet phone company's May initial public offering has added fuel to the fire.
Because naked short selling involves the violation of technical trading rules, it could be easier to prove than more broadly based accusations like manipulation or conspiracy.
"It's very hard to prove manipulation," said lawyer Barry Barbash, formerly a senior official with the Securities and Exchange Commission. "That pattern of behavior by short sellers has rarely, if ever, been proved in any legal case. It's been alleged and asserted over and over again by companies, but not proved."
"There are a group of bad guys rigging the market by selling tens of millions of shares everyday that they don't own and never deliver."
— Wes Christian, securities lawyer
"There have been instances of enforcement cases against short-selling hedge funds, but these focus on more technical violations of trading rules," he added. Barbash, a partner at the law firm of Willkie Farr & Gallagher LLP, represents both companies and fund managers on either side of the issue and said he doesn't have opinions on specific cases.
James Angel, associate professor of finance at Georgetown University, said some hedge fund managers have already been charged by the SEC and the National Association of Securities Dealers with violations related to naked shorting.
If companies can gather evidence charting a pattern of rule-breaking by short sellers, then judges and juries could be more open to hearing about other allegations such as manipulation, he explained.
"It would certainly look bad if companies point to these guys and show they have a predilection for breaking rules," Angel said. "Whether a judge and jury buy that in court is another story."
Angel said the legal strategy could end up producing more settlements between companies and short sellers.
Law firms unite
Three class-action law firms, headed by John O'Quinn, are leading the legal push against short sellers and naked short selling.
O'Quinn, who achieved fame for winning big lawsuits against tobacco companies in the 1990's, is joined by two other Houston-based firms, Christian, Smith & Jewell and Heard, Robins, Cloud, Lubel & Greenwood.
The firms are also representing Overstock.com (OSTK : overstock com inc del com
So far, these law firms have spent $25 million on the way toward filing 12 suits involving 10 companies, and they're close to filing another five cases. Ten more suits are in the works and the total may reach 50 by early 2007.
The thrust of their complaints is that naked short selling creates billions of dollars of shares that don't actually exist. Individual investors may unknowingly purchase these "phantom" stocks, undermining the legitimacy of the market.
"There are a group of bad guys rigging the market by selling tens of millions of shares everyday that they don't own and never deliver," lawyer Wes Christian, a partner at Christian, Smith & Jewell, said. "A result of that is that shares of our clients are being artificially devalued."
"We're going to ultimately shed light on this bad behavior," Christian added. "This is killing young Corporate America, costing jobs and cheating people out of hundreds of millions of dollars with fake shares."
Undelivered
There are currently about half a billion shares in the U.S. that have been sold in the past but not delivered for settlement in the required three days, according to Robert Shapiro, a former undersecretary in the Commerce Department under President Bill Clinton, who's researching the issue as a paid consultant for O'Quinn's group.
These so-called fails-to-deliver trades can go on for a long time, and Shapiro estimates that roughly 12% of NYSE and Nasdaq stocks have fails-to-deliver that are at least two months old.
Read The Full Thread: Breaking News - My Stock Was Bought Out
• Stock was bought out, owe no money.
• Did you sell the shares?? Or did you just let it sit?
• Unfortunately I just paid for mine and received a notice that they sold it last
• I sold the first day
• This has got to be the most moronic stock trade in the history of the NYSE if what
• I too sold the first day and i have yet to pay for the shares. Actually i did send in
• I would hold off on paying for the shares. Seems like the trades were already bought
• Woo Hoo Woo Hoo Hoo
• So if Smith Barney is paying all the non-payers off, why are there still class action
• Only a very small portion of people are non payers. The class action suits, which
rudedog40 posted "'Naked' short selling is center of looming legal battle
Companies on the defensive" on 06/14/2006 |
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