The DTCC has been busy, choosing not to discuss why they misstated Cam Funkhauser of the NASD’s comments from the NASAA conference, or why they disseminated the falsehood that they were never invited to that conference – rather, they have ignored being caught red-handed, and instead issued another in a series of twisted, slanted, self-serving statements intended to denigrate their critics. Let’s look at the latest one, targeting the former Under-Secretary of Commerce, Robert Shapiro:
“Media Statement on Robert Shapiro’s Report on Naked Short Sales
Robert Shapiro has admitted to DTCC he is a paid consultant for the John O’Quinn and Wes Christian legal firms, which have been suing DTCC with respect to naked short selling.“
Huh? No kidding. "Admitted?" Wrong. He has stated as much numerous times. Like in the first paragraph of this open letter to the DTCC, issued almost a year ago. “Admitted” is a rhetorical dishonesty intended to deceive the reader into believing that he was trying to conceal it, and was exposed, under duress. Nothing could be further from the truth, and this is also typical of the intellectual dishonesty in play in these DTCC statements. Here are some more bits of dross from the DTCC:
“• Robert Shapiro’s report is replete with errors, baseless numbers (e.g., estimated fails), faulty analysis that we believe mischaracterizes and misinforms. “
Really. Wow. That sure sounds damaging. Like “Admitted” does.
Uh, the reason he has to estimate fails is because you won’t tell anyone what the actual fails numbers are (aside from your owner/members, who keep the data secret, as well as the SEC, who also keeps the data secret). We can start there. So that is the sort of statement that is again, deliberately misleading – the DTCC can claim there are errors, as there is no way of verifying the truth. Ditto for estimates. They are baseless, precisely because the DTCC keeps the data hidden. Nice, huh?
“• He ignores authoritative statements by SEC on these issues, which are readily available on the SEC Web site and reinforced in an amicus brief the SEC filed in support of DTCC in a recent legal proceeding. We believe he does this intentionally.”
The SEC also said that the investors horrified by the grandfathering and the 70% plunges in the value of SHO list stocks were just a bunch of malcontents. So their authoritative statements leave much to be desired, and are anything but.
The recent Amicus brief is a separate issue. Suffice it to say that it has holes the size of the Lincoln Tunnel. We can start with the fact that it cherry-picks UCC 8, and ignores the limiting language in that law, choosing the sections it likes and ignoring the sections it doesn’t. You can also consider that the 4 cases it supplies as basis for the assertions therein don’t support its assertions. You could further wonder aloud at the conflicts between the 1934 Securities Exchange Act, and several of the pronouncements the SEC asserts as fact – which will all be discussed at length in NCANS’ own Amicus, which will be submitted to counter this piece of work from the SEC – but that is a future blog topic.
Just consider that this statement is declarative, with no support, and attempts to make general declarations supported by a brief that is faultily constructed and reasoned. And it does so without any specificity, the sure sign of a lack of fact – this is nothing more than ad hominem, and argument from authority – two classic logical fallacies.
“• Mr. Shapiro continuously misstates our role in the industry. DTCC does not regulate the industry and is not an enforcement agency. We are highly regulated by the SEC.”
Well, now. I mean, WTF. The DTCC is a SRO. Self Regulatory Organization, chartered with “regulating the business conduct of its members.” Like the NASD for the Nasdaq is, and the NYSE for its participant/owners.
But suddenly it lacks the ability to regulate its participant/member/owners? Then what is it regulating – parking validation? Who is drinking too much coffee?
Please.
I mean, really – please. The DTCC passes rules for its subsidiaries – the NSCC and the DTC; which it conveniently likes to pretend aren’t all one and the same big unit divided up for business reasons – SBU’s, if you like (Strategic Business Units). Those rules have to be approved by the SEC. They are rules for an SRO – and yet here, the DTCC pretends that they are something else again. Alright, I’ll bite. What are they – polite suggestions? Hints? “If you get a chance, try to deliver shares, ‘hmmm ‘kay, but only if you get around to it”?
The DTCC is an SRO: “An entity, such as the NASD, responsible for regulating its members through the adoption and enforcement of rules and regulations governing the business conduct of its members”. Now, what part of that seems ambiguous? And how are the DTCC’s statements consistent with that? Seems like they want to be treated like an SRO when the lawyers are coming after them, but want to duck responsibility when it means taking their owner/bosses to task over larcenous behavior. So instead of addressing this paradox, they state they aren’t an enforcement agency. Uh huh.
Yeah. We get that the PRIVATELY OWNED CORPORATION isn’t an enforcement agency – thanks for pointing that out. It is not part of the government. It is a private company. Until it gets sued – then it wants the full protection of being “quasi-governmental.” But I digress…
Here are some more chestnuts from the release:
“Thus for example, Mr. Shapiro states, “At any time, the DTCC could fully clear and settle every extended naked short sale or failure to deliver by doing what it once did routinely in such cases: Buy the shares itself in the market (“buying in”) and charge the account of the naked short seller’s broker.”
Mr. Shapiro is wrong; the SEC has stated publicly that we do not have such authority:
“NSCC does not have the authority to execute buy-ins on behalf of its members. Moreover, forcing close-outs of all fails can increase risk in clearing and settlement as well as potentially interfering with the trading and pricing of securities.”
Right. It could. But it passed rules declaring itself to be “powerless” to do so. Kind of like me declaring I am “powerless” to deal with things I just don’t feel like doing – and then declaring that I am so “powerless”, specifically because I passed rules making me so. “Sorry, I can’t pay that bill, I am powerless to do so – I passed a rule that said that any bills that come in on odd days won’t get paid until next month…”
This is pure, unadulterated happy horseshit. And it is the sort the DTCC specializes in – how convenient that they claim to be “powerless” to force their own member/owners to obey Federal securities law – again, even though they are a SRO, chartered with regulating the business conduct of their members. Confused? So am I…
“• His use of the terms “fails to deliver” and “naked short selling” interchangeably throughout this report is intended to confuse reality and we believe he does this deliberately.
The SEC has stated, “There are many reasons why NSCC members (a subsidiary of DTCC) do not or cannot deliver securities to NSCC on the settlement date. Many times the member will experience a problem that is either unanticipated or is out of its control, such as (1) delays in customer delivery of shares to the broker dealer; (2) an inability to borrow shares in time for settlement; (3) delays in obtaining transfer of title; (4) an inability to obtain transfer of title; and (5) deliberate failure to produce stock at settlement which may result in a broker dealer not receiving shares it had purchased to fulfill its deliver obligations.”
Sure. Except that covers everything from the dog eating the certificate, to deliberate, willful failure. So it actually doesn’t support anything that the DTCC is saying. It merely parrots that there are innocent failures, and deliberate ones. Thank you, Dr. Obvioso. If the patient were not dead, he would be alive. I get it. We all do.
“• In truth, failed transactions (whatever the reasons) represent less than one-tenth of one percent of the more than 26 million average daily transactions handled by DTCC.”
Huh. So somewhere less than 26K transactions fail per day. Transactions.
How many shares per transaction? 10K? 100K? Oh, that’s right, they don’t say – they just try to frame it in such a way as to make it sound trivial. What was it Byrne said – they are lying through their teeth? Why all the amateur theatrics? Why not just say “X million shares fail every day, representing Y number of dollars, and we are taking the position that is a small problem”?
And does that include ex-clearing “securities arrangements”? You know, the contractual arrangements that the DTCC allows its owner/participants to make, wherein the DTCC essentially delegates the delivery portion of transactions to the two brokers, on the honor system? They aren’t part of the daily fails – and the DTCC claims it is also “powerless” to regulate those – as does the SEC, so nobody really knows how large a fails problem those “arrangements” cover-up. Given that 100% of Dr. Byrne’s hundreds of thousands of fails were ALL ex-clearing, and further given that the DTCC numbers don’t include all the fails and NSS from Canada and the other foreign clearing centers, those could easily be ten times as large as the DTCC’s 1/10 number – nice omission, huh? Oh…those.
And the willful, deliberate fails are likely mostly being executed in these out-of-system areas, specifically so they won’t light up the warning lights – thus the “in-system” DTCC fails are likely a small tip of an iceberg. How nice that the DTCC doesn’t count any of that, or even mention it? It’s kind of like taking the position that whatever I did on my vacation out of town doesn’t count. “Honey, what do you mean, was I carrying on with 6 hookers in Barbados? I can’t believe you are asking that – you know that I only did that 1/10 of all the time we’ve been together…”
“• Mr. Shapiro asserts that Reg SHO has not reduced the total number of outstanding fails. However, in his own report, his numbers demonstrate a 10% reduction in aggregate fails (nearly 58 million shares) and a 32% reduction in companies on the threshold list–and this was within the first three months under Reg SHO (see table 1, pg 5).”
Wow. That is something.
Why is the DTCC trying to defend Reg SHO now? Do they have a vested interest in claiming that it is "working"? Because first they issued that fiction last month, where they mangled the truth to declare it was a success, and now here they are at it again. What's up with that?
But several thoughts occur reading their bit here – first, how were those companies cleared from the list? Did they go BK? Were they de-listed? That’s a convenient sleight of hand I always enjoy – if Delta goes BK, the fails are erased, and through no improvement in the system, the numbers drop. So it is hard to know what it means. I’ll be happy to do a comparison when I get some time, but who wants to bet that those statistics can be tortured however you like?
Even the language used is deliberately sloppy. Take this: “32% reduction in companies on the threshold list”. Does that mean a 32% reduction in the number of companies on the list, or a 32% reduction in their value, or even better, does any reduction merely reflect seasonality? Why is the example they used so narrow? What is the reduction, if any, total, to date – never mind cherry-picking one data point – and further, tell us what percentage of that reduction is because the companies were de-listed or went BK. Remember, these are the same folks that claimed they weren’t invited to the NASAA conference, when they actually were – so a fair degree of skepticism is appropriate when parsing and weighing their comments….
“• Mr. Shapiro is absolutely wrong in saying DTCC “tracks the precise number of fails for every stock, including all threshold companies, yet refuses to release those data to anyone, even affected firms.”
DTCC provides data on the volume of fails daily to the regulatory bodies responsible for policing and enforcing broker conduct, including the marketplaces (NYSE, NASD, etc.) and the SEC. In addition, this data is used by these regulatory bodies for reporting on and the policing of Reg SHO compliance.”
Uh, I think what Shapiro is saying is that the DTCC won’t tell anyone other than their partners in crime (that would be their larger OWNERS: the NYSE and NASD/NASDAQ) and the SEC – who keeps the data secret.
Let me clear this up – they may tell people, but the only ones they tell are their owners, and the regulator that won’t tell divulge anything outside of the circle of silence. So effectively, the data is a secret. Get it? I did. Apparently the DTCC requires reading comprehension lessons. This is one of those deliberate, Clinton-esque “I never had sexual relations” quotes we are so often treated to from the DTCC – perhaps legally precise and technically true, but misleading in the macro.
“DTCC’s subsidiaries do not disclose confidential information to the marketplace, including data on fails, since it could potentially be used in market manipulation.
And while we have data on the volume of fails, we have no information on the underlying causes of those fails. As noted above, there are many causes of fails.”
Right. Can’t let the manipulative trading techniques that have companies on the SHO list for over a year be seen for what they are. Tut tut, we’ll have none of that. Because then the DTCC wouldn’t be able to claim that they don’t know what is going on, or what is causing all the fails. Only if they were transparent would the marketplace be accurately and completely informed of what was transpiring, and that would be bad – because, POTENTIALLY, the data on who is manipulating what, could be used - against the manipulators. You are reading this correctly. Gotta keep it a secret or the DTCC’s larcenous owner/bosses might be preyed on by other predators – and we can’t have that. Better to sanctimoniously claim that all this is being done to maintain the market’s integrity – again, by the private corporation owned by the brokers who are failing to deliver in the first place.
Ditto for why they have a don’t ask, don’t tell policy on the fails – hey, if broker A is consistently failing on OSTK and NFI and TASR, day after day , week after week, month after month, it COULD be not because they are lying cheating rat-bastards, but rather just extraordinarily unlucky. I mean, it could be true. In the sort of narrow, theoretical way that there could be an infinite number of universes splitting off into separate yet genuine realities billions of times per second, and we exist in all of them simultaneously but in slightly different states. I mean, that could be happening. Could. Anything is possible.
Anyone else feel queasy when the best the privately-owned monopoly that owns most of the securities in the United States can come up with, is a defense based on theoretical possibility, versus probability?
You should.
This is simply the latest attempt to slam everyone that is correctly pointing out that the DTCC is full of it. Trimbath, Shapiro, Finnerty. They are all bad bad bad.
Is anyone fooled?
This is pretty weak for an offensive, actually – sort of like they didn’t have anything they could really go after, and had to create a loose patchwork of general statements to try to create the appearance they want.
Nice try, guys. The more of these you issue, the more obvious it is that you are covering something up.
Again, this is a private corporation that is lashing out, much as the tobacco companies did against whistleblowers. Exactly as they did.
Didn’t O’Quinn prevail there, as well?
No wonder these guys are sweating bullets.
I don’t blame them a bit…