Recent SEC enforcement actions put spotlight on prohibited short selling

Abstract

Purpose – To highlight recent enforcement actions by the SEC demonstrating the agency's increased focus on violations of Rule 105 of Regulation M and to provide guidance on how to avoid becoming the target of such an SEC action. Design/methodology/approach – Describes the SEC's 23 recent enforcement actions against firms for violations of Rule 105, explains the conduct prohibited by Rule 105 as well as the exceptions to the Rule, and provides advice on how firms can avoid a Rule 105 related SEC enforcement action. Findings – In light of the SEC's recently announced zero-tolerance policy and the fact that Rule 105 does not require intent on the part of the short seller to engage in a prohibited transaction, firms should provide training to their employees regarding Rule 105, develop and implement policies and procedures to ensure compliance with Rule 105, and enforce those policies and procedures. Originality/value – Practical explanation and guidance by experienced financial services lawyers.