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UPDATED 10-16: Quick Links to Recent SEC Actions and Related Guidance

posted by Akin Gump

In light of the recent flurry of SEC actions and related guidance, we offer the following summary of the SEC releases along with links to the full text of the documents.

See client alerts summarizing the recent SEC Emergency Orders here and here.

We are continually monitoring the SEC’s regulatory actions and its staff’s interpretations and will update this quick links table as necessary.

If you have questions regarding this alert, please contact—

Order / Release No. and Description

1.  34-58774: Final “Naked” Short Selling Anti-Fraud Rule (October 14, 2008) — Final rule that continues the effect of Rule 10b-21 (the “Naked” Short Selling Anti-fraud Rule) indefinitely.  Rule 10b-21 will be added to the Exchange Act.

a. 34-57511: Proposed “Naked” Short Selling Anti-fraud Rule (as of Mar. 30, 2008)—Proposing release for the anti-fraud rule.

b. 34-58572: Naked Short Selling Order (Sept. 17, 2008) - Emergency order to curb “naked” short selling of securities. Extended until 11:59 p.m. E.D.T. on October 17, 2008 by Order No. 34-58711.

c. Loaned Securities Guidance: Staff Guidance Regarding Sale of Loaned But Recalled Securities (as of September. 29, 2008).  Guidance clarifying that a sale of a loaned security is not a short sale, so long as a bona fide recall is initiated within two business days after the trade date.

2.  34-58773: Interim Final Temporary “Close-Out” Rule (October 14, 2008) - Interim final temporary rule that continues the effect of Rule 204T (the “close out” rule) beyond the October 17, 2008 expiration of the extended Naked Short Selling Order.

a. Rule 204T FAQs: Staff Guidance Regarding the Naked Short Selling Order (as of Sept. 22, 2008) — Question and answer guidance regarding the adoption of Rule 204T (the “close-out” rule).

b. 34-58572: Naked Short Selling Order (Sept. 17, 2008) - Emergency order to curb “naked” short selling of securities. Extended until 11:59 p.m. E.D.T. on October 17, 2008 by Order No. 34-58711.

c. Loaned Securities Guidance: Staff Guidance Regarding Sale of Loaned But Recalled Securities (as of September. 29, 2008).  Guidance clarifying that a sale of a loaned security is not a short sale, so long as a bona fide recall is initiated within two business days after the trade date.

3.  34-58775: Final Rule Eliminating the Market Maker Exception (October 14, 2008) - Final rule that continues the elimination of the market maker exception from Rule 203 indefinitely.

a. 34-58572: Naked Short Selling Order (Sept. 17, 2008) - Emergency order to curb “naked” short selling of securities. Extended until 11:59 p.m. E.D.T. on October 17, 2008 by Order No. 34-58711.

b. Loaned Securities Guidance: Staff Guidance Regarding Sale of Loaned But Recalled Securities (as of September. 29, 2008).  Guidance clarifying that a sale of a loaned security is not a short sale, so long as a bona fide recall is initiated within two business days after the trade date.

4.     34-58785 Interim Final Temporary Rule on Disclosure of Short Sales and Short Positions by Institutional Investment Managers (Oct. 15, 2008)—Rule extending the short sale reporting requirements established by Emergency Orders from  Sept. 18, Sept. 21, and Oct. 2, with some modifications, effective until August 1, 2009.

a.      34-58591A: Amendment and Restatement of Short Sale Reporting Order (Sept. 21, 2008)—Amendment and restatement of Short Sale Reporting Order No. 34-58591 providing technical amendments and requiring Form SH filings on a non-public basis.

b. 34-58724: Order extending Order No. 34-58591A -Extension of the Short Sale Reporting Order until 11:59 p.m. E.D.T. on October 17, 2008 and clarification of the SEC’s intention to make Form SH filings nonpublic.

c. 34-58591: Original Short Sale Reporting Order (Sept. 18, 2008) —Emergency order requiring investment managers currently filing Form 13F to report daily short sales of securities on new Form SH.

d. Form SH: Form SH - New form required for the  reporting of daily short sales.

1) Form SH Instr.: Form SH Instructions—Instructions for completing and filing newly required Form SH.

2) Form SH FAQs: Staff Guidance Regarding the Short Sale Reporting Order (as of Sept. 24, 2008)— Question and answer guidance relating to short sale disclosure requirements on Form SH.

e.  Loaned Securities Guidance: Staff Guidance Regarding Sale of Loaned But Recalled Securities (as of September. 29, 2008).  Guidance clarifying that a sale of a loaned security is not a short sale, so long as a bona fide recall is initiated within two business days after the trade date.

5.      34-58592: Short Sale Prohibition Order (Sept. 18, 2008)—Emergency order prohibiting all persons from selling short any publicly traded common equity securities of certain identified financial institutions (includes list of covered firms).

a. 34-58723: Order extending Order No. 34-58592 -Extension of the Short Sale Prohibition Order until the earlier of (i) three business days from the President’s signing of the Emergency Economic Stabilization Act of 2008 (H.R. 1424) or (ii) 11:59 p.m. E.D.T. on October 17, 2008.

b. 34-58611: Amendment to Order No. 34-58592 (Sept. 21, 2008) —Amendment to Short Sale Prohibition Order expanding the list of covered financial institutions by requiring securities exchanges to publish the names of such institutions on their web sites.

c. Loaned Securities Guidance: Staff Guidance Regarding Sale of Loaned But Recalled Securities (as of September. 29, 2008). Guidance clarifying that a sale of a loaned security is not a short sale, so long as a bona fide recall is initiated within two business days after the trade date.

6.      34-58588: Rule 10b-18 Order (Sept. 18, 2008)—Emergency order relaxing timing and volume conditions on issuer share repurchases under Rule 10b-18 of the Exchange Act.

a.  34-58703: Order extending Order 34-58588—Extension of the Rule 10b-18 Order until 11:59 p.m. E.D.T. on October 17, 2008.