Dear Chairman Gensler,
Since the launch of We The Investors in March, 2022, we have had over 100,000 retail investors sign up to support our various efforts to advocate for five basic principles in market reform: transparency, simplicity and fairness, choice and control, best execution and better settlement and clearing. Our grassroots advocacy campaign has a simple goal - to empower retail investors to represent themselves while advocating for market structure reforms. Today we write to you to continue this campaign and urge you to address one of the most opaque areas of market structure - the settlement and clearing systems that have problematic disclosures around stock lending, failures to deliver (“FTDs”), margin and netting, and the practices that enable business models predicated on FTDs.
When you discussed naked shorting and FTDs on the Jon Stewart podcast, you agreed that “we need more transparency and better transparency about a really core part of the market  when somebody sells securities they don’t own.” The Commission has focused with its recent proposals (10c-1 and 13f-2) on disclosure of stock borrowing and short selling by investment managers, and we applaud and support those efforts.
However, we do not believe that these efforts go far enough, and we would like the SEC to re-examine the disclosures and mechanisms in place in this “core part of the market.” As such, we write to you requesting the following improvements to market rules and disclosures - a roadmap for change.
First, we believe that there is a comprehensive set of new disclosures that could shed light into this opaque portion of the market:
- Lending Transparency: Retail investors have the right to know whether their securities have been lent out, and how much revenue the broker has received.
- Margin Transparency: Investors need visibility into the estimated margin per security for Clearing Brokers.
- Netting Transparency: Investors need disclosure of gross versus net notional or share count per security to help understand trading dynamics and discern the level of real investment versus intraday trading activity.
- FTD Transparency: Failure To Deliver disclosures need to be updated more often, and include more information, including how and when FTDs are remediated, what type of counterparty is responsible for the failure (bucketed into clearing broker, exempt market maker or custodian), and how long the FTDs remained open.
- Disclosure of Registration: Public companies should be required to disclose directly registered shareholder numbers on all 10-Q and 10-K reports.
Next, we believe that retail brokers must be obligated to give their investors more control over the lending of their securities and how those securities are registered:
- NOBO/OBO designations: Brokers should explain to investors the choices they may make as it relates to transparency of share ownership, where shares are recorded in a brokerage account in beneficial format. The default options should always be NOBO (non-objecting beneficial owner). Shielding holdings from investee companies through the use of OBO (objecting beneficial owner) designations should be a right that an investor should opt in to. Brokers should provide the investor’s email address as part of any disclosure of NOBO holdings.
- Control of Stock Lending: Investors have the right to decide whether their securities can be lent out to short sellers. Disclosures around account types and the implications therein need to be made simpler, easier to understand, and more explicit in the account creation process.
- Control of Registration: Investors should be able to choose whether their shares are to be held in a brokerage account or in direct registration form in the investor’s own name on the company’s share register. Brokers should be required to support the direct registration of shares in an investor’s name.
- Investor Communications and Proxy Voting: Investors should be able to receive their communication directly from the company they invest in and not have their shareholding pooled with other clients of the broker, whose interests may not be aligned. Investors should be able to vote directly with the company, and have their voice heard at general or extraordinary shareholder meetings. Their votes should be directly confirmed by the company or its agent.
Finally, we urge you to reform the settlement and clearing system to end problematic practices that can distort price discovery and supply/demand dynamics:
- End the "Market Maker" Exemption to Reg SHO: As SEC enforcement has shown, so-called "market makers" have abused this exemption to Reg SHO that allows them to sell shares short without a locate. Markets would better reflect actual supply and demand dynamics if all trading firms had to locate shares before selling short. The SEC should further set a goal of a more robust, transparent, electronic locate workflow and standard.
- End "Fails as a Business Model": Too many firms rely on failing to deliver on their short sales to prop up or sustain their business models. This practice must be ended, either by enforcing mandatory buy-ins or through interest charges on failures. This would entail a more comprehensive overhaul of the US settlement system, and one potentially modeled on the European Settlement Discipline Regime.
We urge you to take these actions to improve transparency in markets, shine a light on the most opaque part of our market’s plumbing, to ensure that prices in the market reflect actual supply and demand, and to guarantee that brokers give investors the appropriate level of control and disclosure so they can make the decisions appropriate to their unique, individual circumstances. We would be happy to meet with you and discuss any of these proposals in more detail.
We The Investors