"It was sad to see Merrill go down as well," said the voice from inside Lehman Brothers this week as he pondered his own future. "But at least they screwed the shorts. That was good to see."
It was also, at least in the minds of many angry investment bank CEOs, a long time coming. In the months leading up to the current market chaos, the short sellers have been on the prowl. But now the witch hunt has begun. The shorts nailed Lehman and Bear Stearns by betting that their shares would continue to fall. And now they have Morgan Stanley and Goldman Sachs in their sights, sparking speculation that the last two remaining go-it-alone investment banking giants may have to find a deep-pocketed commercial bank to partner up with. "What's happening out there? It's very clear to me we're in the midst of a market controlled by fear and rumors, and short sellers are driving our stock down," fumed John Mack, CEO of Morgan Stanley, in a memo to employees. "You should know that the Management Committee and I are taking every step possible to stop this irresponsible action in the market. We have talked to Secretary [Hank] Paulson and the Treasury. We have talked to Chairman [Chris] Cox and the SEC." Cox is listening, and is reportedly proposing a temporary ban on short selling, subject to approval by the SEC's commissioners. If short sellers could be rounded up and roasted as heretics to the true bull market religion, there'd be a rush of people from Lehman and Merrill fighting to add wood to the fire. And Mack would bring the gasoline.
Short sellers borrow stock and sell it, essentially betting that the price of their target company will fall before they have to replace the borrowed shares. They have been disparaged as vultures, rumor mongers, cheats and criminals. But they have not, by and large, been wrong in their choice of targets. Bear and Lehman died because they were undercapitalized. Merrill's own mismanagement helped to chase it into the arms of B of A. Yet in the case of AIG, the argument is that the company would have remained afloat had its stock price not been driven down, which triggered a credit downgrading that then required AIG to raise $14 billion in capital overnight to meet collateral requirements on its credit default swaps.
Yesterday, SEC Commissioner Cox responded to the pressure. The SEC instituted a "Hard T+3 Close-Out Requirement," meaning that short sellers and their broker-dealers must deliver securities by the close of business on the settlement, three days after the sale. It's an answer to previous complaints about the prevalence of so-called "naked" short selling: that is, selling shares that you don't actually have in hand, and have not made arrangements to have. Naked shorting allows traders to potentially manipulate stocks. The SEC is also considering an emergency order forcing hedge funds, which employ short selling as part of their trading styles, that have a $100 million portfolio to report their short positions daily. The implicit threat is, We will know who you are. (Long positions are already known by the SEC.) Also on Thursday Britain said it will ban all short selling of financial stocks until at least next January, while New York Attorney General Andrew Cuomo announced that he was launching an investigation into complaints of short sellers spreading false rumors about targeted companies like Lehman Brothers, AIG, Goldman Sachs and Morgan Stanley.
There's a furious argument over whether shorts hastened the demise of Lehman and AIG, cutting the off their oxygen when it was desperately needed. And some have laid the blame at the feet of SEC commissioner Cox. "Chris Cox is responsible for the largest destruction of wealth in U.S. history," hissed Mad Money maestro Jim Cramer on his CNBC show on Tuesday. "Because of Cox, the shorts won." (Republican nominee John McCain called Thursday for Cox to be fired the same Cox some conservatives touted as a possible running mate earlier this year. President Bush said he fully supports his appointee.)
Last year the SEC let the longstanding uptick rule expire, which stipulated that traders could short a stock only after it had moved up. Cox called the rule useless, because an uptick can be just a penny in the decimalized market. His view is supported by academics such as MIT's Paul Asquith, who has done extensive research on short sales. Asquith reviewed two years of data during which short trades were tracked by the SEC, and found that 30% of all trades are short sales. And outfits including Goldman and Morgan Stanley are no strangers to going short in their proprietary trading strategies. All the short sellers are going to do is make the market react faster, he says. "The question is, Can the short seller take a firm down? The answer is no. Not by themselves. If there is nothing fundamentally wrong, all you need is a couple of smart people on the other side to show that they're wrong," says Asquith.
Lehman CEO Dick Fuld complained loudly to the SEC earlier this year that his company was the victim of shorts such as David Einhorn, of Greenlight Capital, for badmouthing the company's accounting. Einhorn was unapologetic. Fuld got some action after the SEC sought to stop naked shorting with a do-not-mess-with" list of 18 financial institutions such as Fannie Mae, Freddie Mac and investment banks. On July 15, the SEC issued an emergency order temporarily mandating that anyone who wants to short a stock "must borrow or arrange to borrow the security or otherwise have the security available to borrow in its inventory prior to effecting the short sale." As Cox explained in an op-ed, "Our emergency order is not a response to unbridled naked short selling in financial issues so far, that has not occurred but rather it is intended as a preventative step to help restore market confidence at a time when it is sorely needed."
The SEC's order expired August 12. You know what happened after that.