“ The primary mission of the U.S. Securities and Exchange Commission (SEC) is to protect investors and maintain the integrity of the securities markets.
“ The laws and rules that govern the securities industry in the United States derive from a simple and straightforward concept: all investors, whether large institutions or private individuals, should have access to certain basic facts about an investment prior to buying it.
“ The SEC also oversees other key participants in the securities world, including stock exchanges, broker-dealers, investment advisors, mutual funds, and public utility holding companies. Here again, the SEC is concerned primarily with promoting disclosure of important information, enforcing the securities laws, and protecting investors who interact with these various organizations and individuals.
“ Tempted by promises of "rags to riches" transformations and easy credit, most investors gave little thought to the dangers inherent in uncontrolled market operation. During the 1920s, approximately 20 million large and small shareholders took advantage of post-war prosperity and set out to make their fortunes in the stock market. It is estimated that of the $50 billion in new securities offered during this period, half became worthless.
“ With the Crash and ensuing depression, public confidence in the markets plummeted. There was a consensus that for the economy to recover, the public's faith in the capital markets needed to be restored. Congress held hearings to identify the problems and search for solutions.
“ Based on the findings in these hearings, Congress passed the Securities Act of 1933 and the Securities Exchange Act of 1934. These laws were designed to restore investor confidence in our capital markets by providing more structure and government oversight. The main purposes of these laws can be reduced to two common-sense notions:
“ The Securities and Exchange Commission has five Commissioners who are appointed by the President of the United States with the advice and consent of the Senate. Their terms last five years and are staggered so that one Commissioner's term ends on June 5 of each year. To ensure that the Commission remains non-partisan, no more than three Commissioners may belong to the same political party. The President also designates one of the Commissioners as Chairman, the SEC's top executive.
“ The Division of Investment Management oversees and regulates the $15 trillion investment management industry and administers the securities laws affecting investment companies (including mutual funds) and investment advisers. In applying the federal securities laws to this industry, the Division works to improve disclosure and minimize risk for investors without imposing undue costs on regulated entities.
interprets laws and regulations for the public and SEC inspection and enforcement staff;
responds to no-action requests and requests for exemptive relief;
reviews investment company and investment adviser filings;
reviews enforcement matters involving investment companies and advisers; and
develops new rules and amendments to adapt regulatory structures to new circumstances.
Registration of Exchanges, Associations, and Others
“The Act requires a variety of market participants to register with the Commission, including exchanges, brokers and dealers, transfer agents, and clearing agencies. Registration for these organizations involves filing disclosure documents that are updated on a regular basis.”
“ This Act regulates the organization of companies, including mutual funds, that engage primarily in investing, reinvesting, and trading in securities, and whose own securities are offered to the investing public. The regulation is designed to minimize conflicts of interest that arise in these complex operations. The Act requires these companies to disclose their financial condition and investment policies to investors when stock is initially sold and, subsequently, on a regular basis.
“ The focus of this Act is on disclosure to the investing public of information about the fund and its investment objectives, as well as on investment company structure and operations. It is important to remember that the Act does not permit the SEC to directly supervise the investment decisions or activities of these companies or judge the merits of their investments.
“ This law regulates investment advisers. With certain exceptions, this Act requires that firms or sole practitioners compensated for advising others about securities investments must register with the SEC and conform to regulations designed to protect investors. Since the Act was amended in 1996, generally only advisers who have at least $25 million of assets under management or advise a registered investment company must register with the Commission.
“ At the end of 1997, LTCM returned approximately $2.7 billion in capital to its investors, reducing the capital base of the fund by about 36 percent to $4.8 billion. Despite this reduction in its capital base, however, the hedge fund apparently did not reduce the scale of its investment positions. Put another way, the managers of the Fund decided to increase its balance-sheet leverage by reducing its capital base rather than by increasing its positions.
“ Approximately 80 percent of the LTCM Fund’s balance-sheet positions were in government bonds of the G-7 countries
“ At the end of August, 1998, the gross notional amounts of the Fund’s contracts on futures exchanges exceeded $500 billion, swaps contracts more than $750 billion, and options and other OTC derivatives over $150 billion.
“ using the January 1, 1998, equity capital figure of $4.8 billion, this level of assets still implies a balance-sheet leverage ratio of more than 25-to-1
“ On July 31, 1998, the LTCM Fund held $4.1 billion in capital, down about fifteen percent from the beginning of the year. During the single month of August, the LTCM Fund suffered additional losses of $1.8 billion, bringing the loss of equity for the year to over fifty percent.
“ previously flexible credit arrangements became more rigid and the daily mark-to-market valuations for collateral calls by counterparties became more contentious.
“ Bear Stearns, LTCM’s prime brokerage firm, had required LTCM to collateralize potential settlement exposures reducing the fund’s overall liquidity resources
“ September 22, a Core Group of four of the most concerned counterparties began seriously exploring the possibility of mutually beneficial alternatives to default. The main alternative the Core Group focused on came to be known as the consortium approach and involved the recapitalization of the LTCM Fund through mutual investments by its major counterparties in a recently set up feeder fund and a relatively small investment in a newly set up limited liability company which became a new general partner of the LTCM Fund. Under this approach, the stake of the original owners would be written down to 10 percent and the consortium would acquire the remaining 90 percent ownership share, as well as operational control of LTCM.
The Federal Reserve Bank of New York provided the facilities for these discussions and encouraged the firms involved to seek the least disruptive solution that they believed was in their own collective self-interest.
First, the liquidation and closing out of positions could have generated significant movements in market prices and rates, affecting the market value of positions held by the LTCM Fund’s counterparties as well as by other market participants.
Second, the resulting rush by the Fund’s counterparties and others to reappraise their credit risks, coupled with an increase in uncertainty, could have exacerbated the broader decline in market liquidity, making it more difficult for market participants to manage risks.
Third, those firms with exposures to LTCM could have encountered increased concerns about their own credit standing, with a resulting rise in their cost of obtaining funds.
More frequent and meaningful information on hedge funds should be made public
Public companies, including financial institutions, should publicly disclose additional information about their material financial exposures to significantly leveraged institutions, including hedge funds;
Financial institutions should enhance their practices for counterparty risk management
Regulators should encourage improvements in the risk management systems of regulated entities;
Regulators should promote the development of more risk-sensitive but prudent approaches to capital adequacy;
Regulators need expanded risk assessment authority for the unregulated affiliates of broker-dealers and futures commission merchants;
The Congress should enact the provisions proposed by the President’s Working Group to support financial contract netting in the United States
Regulators should consider stronger incentives to encourage off-shore centers to comply with international standards.
SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 275 and 279 [Release No. IA-2333; File No. S7-30-04]
Registration Under the Advisers Act of Certain Hedge Fund Advisers
SUMMARY: The Commission is adopting a new rule and rule amendments under the Investment Advisers Act of 1940. The new rule and amendments require advisers to certain private investment pools (“hedge funds”) to register with the Commission under the Advisers Act. The rule and rule amendments are designed to provide the protections afforded by the Advisers Act to investors in hedge funds, and to enhance the Commission’s ability to protect our nation’s securities markets.
“ In the last five years, the Commission has brought 51 cases in which we have asserted that hedge fund advisers have defrauded hedge fund investors or used the fund to defraud others in amounts our staff estimates to exceed $1.1 billion.
“ Most disturbing is that hedge fund advisers have been key participants in the recent scandals involving late trading and inappropriate market timing of mutual fund shares.
“ Our staff counts almost 400 hedge funds (and at least 87 hedge fund advisers) involved in these cases and others under investigation.
NYT 1997, “…Fidelity Invokes Fine Print and Angers Some Customers..”
Chalmers, Edelin and Kadlec , 2000
“ The Wildcard Option...”
Greene and Hodges , 2000
“ The Dilution Impact…”
Goetzmann, Ivkovic and Rouwenhorst , 2000
“… Evidence and Policy Solutions”
Zitzewitz , 2000
“… Associated Trading Profit Opportunity”
Simulated International Stale Price Profits 1990 – 1998 Growth in $1 invested in two alternative strategies over the period 1-2-90 through 7-24-98. Buy and hold means equal-weighted investment in 112 Foreign Stock Funds listed on Morningstar. Day-Trading Strategy does not include redemption fees and transactions costs Day Trading Buy and Hold
“ In developed markets outside the United States, hedge funds have sought to market themselves to smaller investors, and we can expect similar market pressures to develop in the United States as more hedge funds enter our markets.
“ Second, the development of “funds of hedge funds” has made hedge funds more broadly available to investors.
“ Finally, and perhaps most significantly, in the last few years, a growing number of public and private pension funds, 38 as well as universities, endowments, foundations, and other charitable organizations, have begun to invest in hedge funds or have increased their allocations to hedge funds.
“ We proposed in July of 2004 a new rule that would require hedge fund advisers to count each investor in a hedge fund, rather than only the hedge fund itself, as a client for purposes of the private adviser exemption.
“ As a result, most hedge fund advisers would have to register with the Commission and would be subject to SEC oversight. The rule and rule amendments were designed to provide the protections afforded by the Advisers Act to investors in hedge funds, and to enhance the Commission’s ability to protect our nation’s securities markets.
“ Registration under the Advisers Act enables us to conduct examinations of the hedge fund adviser.
“ Some commenters cited to us a sentence from the 2003 Staff Hedge Fund Report that indicated that there was no evidence that hedge fund advisers engaged disproportionately in fraudulent activity. The 2003 Staff Hedge Fund Report was issued before the discoveries of hedge fund involvement in late trading and inappropriate market timing of mutual fund shares.
Second, some commenters asserted that the Commission would be unsuccessful at detecting fraud by hedge fund advisers, pointing to frauds that have occurred involving mutual funds. Such an assertion amounts to a generalized attack on the Commission’s ability to deter and detect fraud in general, and on the premise of statutes that provide us with authority to examine investment advisers
Finally, some commenters suggested that hedge fund advisers are different from other advisers and that our examiners would be unable to fully understand their trading strategies and investments.
Keeping Unfit Persons from Using Hedge Funds to Perpetrate Frauds
“ Registration with the Commission permits us to screen individuals associated with the adviser, and to deny registration if they have been convicted of a felony or had a disciplinary record subjecting them to disqualification. We intend to use this authority to help keep fraudsters, scam artists and others out of the hedge fund industry.
The majority proposes a solution to an ill-defined problem without having given proper consideration to viable alternative solutions in light of the limitations of our own capabilities.
Hedge Funds Have Long Been the Subject of SEC Study
PWG LTCM Report
Registration will not Reduce Enforcement Actions
“ The 46 cases suggest that the typical "hedge fund" fraud is perpetrated by an adviser that is too small to be registered with the Commission, was registered already with the Commission, or evaded registration requirements.
“ Mandatory hedge fund adviser registration would not add to the Commission's ability to combat these types of fraud.
“ Importantly, the majority's recitation of these fraud cases illustrates the fact that hedge fund advisers are subject to the antifraud provisions regardless of their registration status.
Form ADV Does Not Meet the Information "Needs"
Part I of Form ADV yields little more than a census of name, address, and amount of assets under management.
Part II of Form ADV, although more substantive, is unlikely to produce information that would prove useful to the Commission because hedge fund advisers will feel compelled to draft their disclosure to protect proprietary information.
April 22, 2005 (Associated Press) — The Securities and Exchange Commission failed to uncover trading abuses throughout the mutual fund industry that cost investors billions because it had other priorities, congressional investigators have found.
“ Prior to September 2003, SEC did not examine for market timing abuses because agency officials viewed other activities as representing higher risks, and believed that companies had financial incentives to control frequent trading because it could lower fund returns.
“ First, without independent assessments during examinations of controls over areas such as market timing (through interviews, reviews of exception reports, reviews of independent audit reports, or transaction testing as necessary) the risk increases that violations may go undetected.
Second, SEC can strengthen its capacity to identify and assess evidence of potential risks. Articles in the financial press and academic studies that were available prior to September 2003 stated that market timing posed significant risks to mutual fund company shareholders.
Finally, GAO found that fund company compliance staff often detected evidence of undisclosed market timing arrangements with favored customers but lacked sufficient independence within their organizations to correct identified deficiencies. Ensuring compliance staff independence is critical, and SEC could potentially benefit from their work.
Ronald Baron, Firm Charged With Market Manipulation
Washington, April 29 (Bloomberg)
“ Money manager Ronald S. Baron, his firm Baron Capital Inc. and two of its traders agreed to pay a $2.7 million fine to settle Securities and Exchange Commission charges of making manipulative trades in 1999.
Relying on the firm's internal tape recordings, the SEC charged all four with the unlawful practice of ``marking the close'' in Southern Union Co. stock, then more than 10 percent owned by Baron affiliates. Southern Union was acquiring Pennsylvania Enterprises with the price set by Southern Union's closing price over a 10-day period, the SEC said.
The higher that average, the more favorable the pricing terms would be to (Southern Union) and its existing shareholders,'' the SEC said in a press release.
“ Mylan/King deal forerunner to more derivatives engineering in mergers”
Brent Shearer, March 2005: “The Mylan/King saga started last summer when Mylan unleashed a $4 billion all-stock bid for King. Mylan …
“ Carl Icahn bought a 9.8% stake in Mylan and vowed to fight the acquisition of King. In the second half of 2004, he threatened a proxy fight and made his own offer for Mylan. He also sued Perry Capital, which had purchased a 9.9% holding in Mylan.
Perry's tactic was to buy a sizeable holding in Mylan and thus secure voting rights. It also made a deal with a brokerage firm that agreed to buy back the stock at the same price at a future date. Icahn's suit maintains that this technique of purchasing of voting rights and employing a derivatives contract to shed financial risk is illegal.
In December, King fueled further controversy by announcing that it was restating its earnings for 2002, 2003, and the first six months of 2004 to recognize expenses growing out of product returns.
Apparently, the restatements put the kibosh on the deal, at least for now.
“ Perry's use of a derivative contract to secure voting rights and off-load financial risk”
"Hedge funds use derivatives in other markets so they have the expertise.
“ Another aspect of the funds' movement toward active deal involvement is that because they often move in packs.
"You're seeing hedge funds banding together and being able to dictate terms in transactions," Marshall says. He notes that hedge funds have access not only to their own capital pools but also additional leverage that can be supplied by their prime broker.
“ The lesson of the clout that hedge funds can bring to deals hasn't been lost on Icahn; he is in the process raising $3 billion for a fund of his own.
“ ONE YEAR AGO, Gotham Partners Management Co. partner William Ackman began to make bearish bets on Federal Agricultural Mortgage Corp., an obscure government-sponsored agency whose mandate is to create a vibrant market for farm loans.
“ Mr. Ackman didn't stop there. He hired a publicist to press his case to financial journalists. He retained a Washington lobbyist to promote his views to relevant congressional oversight committees. He wrote a critical 48-page research report that he posted on his Web site and sent to media organizations and the Securities and Exchange Commission.
New York State Attorney General Eliot Spitzer is investigating the firm's Farmer Mac campaign in response to complaints from the company. But lost amid the rancor is an important question: Was Gotham's research correct?
Since Gotham, which had $500 million at its peak, began focusing on Farmer Mac in April 2002, that company twice has announced quarterly net-income results below expectations. The company's stock, which rose 88 cents to $23.47 in 4 p.m. New York Stock Exchange composite trading yesterday, is down 44% since April 26, 2002, just before the campaign began in earnest, while the Standard & Poor's 500-stock index is off 20%.
Go Down Fighting: Short Seller vs. Firms OWEN A. LAMONT
Efficiency and the Bear: Short Sales and Markets around the World Ning Zhu University of California Davis William N. Goetzmann Yale School of Management and NBER Arturo Bris Yale School of Management and ECGI
S.E.C.: “the sale of a security that the seller does not own or that the seller owns but does not deliver. In order to deliver the security to the purchaser, the short seller will borrow the security, typically from a broker-dealer or an institutional investor”
Example : one share of Krispy Kreme Doughnuts (KKD)
A : Short-Seller B : Existing owner of KKD C: End investor A borrows the stock from B B sells the stock to C
A : Borrower B : Lender A must leave collateral with B equal to 102% of the market value of the share (additional 50% if B is a U.S. broker-dealer) B pays A interest on the collateral: ‘rebate’ A pays B a fee (netted against the rebate) , plus all the dividends paid by KKD
“ They delve into the deepest state and business secrets and do not hesitate to attack even the Government and excite the masses in order to profit more … Widows and orphans are seriously hurt by speculators a la baisse.” Dutch jurist, Muys van Holys, 1680’s
European capitalists had supplied much of the cash needed to engineer the greatest bear raid in history. These proverbially open-handed and trusting gentleman had accepted the leadership of New York's adroit Democratic financier, Bernard Baruch, Philadelphia Public Ledger , 1932.
Short-selling,'is really an expression of opinion, subject to personal risk. It cannot determine value, but only estimate what prospective values really are and will be. Edward Meeker, NYSE Economist, 1932