MEMORANDUM TO: File No. S7-20-08; Securities Exchange Act Release No. 58190 FROM: Division of Trading and Markets DATE: July 31, 2008 RE: Meeting on Securities Exchange Act Release No. 34-58166 On July 22, 2008, staff of the Division of Trading and Markets met with representatives from Overstock.com, Inc. to discuss Regulation SHO, “naked” short selling, and the Commission’s recent Emergency Order, (Securities Exchange Act Release No. 34- 58166). Overstock followed-up this meeting by sending an e-mail attaching a letter which is included as an attachment to this Memorandum. July 23, 2008 Subject: Follow-up on July 22 Meeting Dr. Sirri et al.: I thank you for meeting with Ken Salomon, John Welborn and me yesterday afternoon to discuss Reg SHO, naked short selling and the SEC's recent emergency order. As a follow-up, I want to emphasize the following points: 1. OSTK continues to believe that it is critical that the SEC extend the pre-borrow requirement of the emergency order to the entire market, not just the 19 select companies. OSTK requests that the SEC promptly undertake swift rulemaking so that this protection applies fairly across the market. 2. OSTK continues to support the prompt and full elimination of the option market maker exception, an exception that swallows up the good intentions of Reg SHO. During yesterday's meeting, we discussed the relationship between the markets for equities and their corresponding derivatives (including listed options). You stated that options market makers enjoy an exception from the Reg SHO requirement that they locate and/or deliver shares when hedging against options positions. I am not sure that I would read Reg SHO to say that. However, under your theory, if an options market maker sells a put with a 6- month expiration, then that same market maker has the legal right to naked short and fail to deliver an equivalent amount of the underlying equity (leaving the option market maker "delta neutral”) for six months. This exception is unnecessary and open to abuse/manipulation, particularly with the married puts that often occur in Reg SHO threshold securities. Further, OSTK does not believe that such a transaction is “net neutral"—that is, that this introduces no additional long or short pressure into the market for an issue, as a whole. That would be true if the options market maker entered into a legitimate short sale arrangement to borrow shares for the duration of the options contract. The act of naked shorting and failing to deliver in perpetuity, however, creates a "net change" in the aggregate “risk profile” of an issue (that is, the sum of all long/short positions, both in the derivatives space and in the underlying equity). Furthermore, the change in the gross sum of tradable securities entitlements in the equity market can drive the price below its equilibrium level, both in the short run and long run. In addition, the option market maker exception has the added effect of depressing stock loan rebate rates, as the options market has become a surrogate for the stock loan market. The option market maker exception is not only unnecessary, it is tool used for market distortion and manipulation. 3. OSTK applauds the SEC for beginning to disclose the daily volume of failures-to- deliver on a company by company basis. This is useful information that investors need to be able to access. OSTK urges the SEC to disclose (or perhaps better yet require either the exchanges or the DTCC to disclose) this information on a much more timely basis. The current lagged disclosure is as much as five months stale. At the very least, this failure-to-deliver data should be available to investors at least as frequently as the legitimate short interest data (which the exchanges release twice a month). 4. OSTK (along with many others) has long advocated including a pre-borrow requirement in Reg SHO. Yesterday you asked whether in a world where shares are always delivered, is such a pre-borrow requirement necessary. Assuming such world, OSTK believes the answer is "no" -- with several caveats: o Without strict and constant surveillance and regular and meaningful enforcement and penalties to ensure delivery, such a world is hard to imagine. o There would need to be no exceptions to the delivery requirement. o A pre-borrow requirement focuses on the front end of the trade and would ensure that no trade would result in a failure-to-deliver; a hard delivery requirement focuses on the back end of the trade and creates a period ripe for fraud. I suspect this is why theatres require patrons to present a ticket prior to entering the show, rather than allow them to watch the show and deliver a ticket five days later. o A hard delivery requirement still allows for an intra-period raid (the period would be a day if the hard delivery period was T+1 or a week if the hard delivery requirement was T+5). A trader (day trader, market maker, etc.) could raid a stock on naked short sales and cover under the panic sell that day. Without a pre-borrow requirement, a naked short selling trader never engages in a borrow so long as he covers during the required period. Having no pre-borrow allows the trader to sell as many shares as he likes, so long as he covers within the hard delivery period. There is a lot that can be masked by such trading activities, especially by hedge funds with the financial firepower to use fast trading technique to create the panic selling into a profitable cover. As the SEC considers the differences between a pre-borrow requirement and a hard delivery requirement, OSTK suggests that it consider the emerging technology (e.g., the Lendex platform) that may allow for maximum liquidity in a pre-borrow world. 5. Attached is a spreadsheet showing the $8.5b mark-to-market value of all of the failures-to-deliver that occurred with in the DTCC on March 31, 2008 (the most recent date for which failure-to-deliver data is available to the public). Companies listed on the Reg SHO threshold list make up $6.1b (72.5%) of the value. These numbers do not include failures-to-deliver occurring outside the DTCC. In addition, OSTK believes that the mark-to-market calculation is an overly conservative way to calculate the effect of the failures-to-deliver because those creating the failures-to-deliver would likely be unable to cover them at the market prices -- especially in stocks where the failures-to-deliver are a large part of (or exceed) the float. <<2008.03.31 (SEC) Total FTD Value.pdf>> 6. OSTK urges the SEC to expand the purview of Reg SHO to include transactions that occur outside the DTCC. As the SEC looks to improve Reg SHO, it makes sense to expand its purview to all trades. Otherwise, those that use Reg SHO's current loopholes to distort and manipulate the market will just move their abusive practices to ex-clearing transactions. Again, I thank you for taking yesterday's meeting and for your thoughtful consideration of the above points. Regards, Jonathan Jonathan Johnson Overstock.com, Inc. Mark-to-Market Value of FTDs on March 31, 2008 THRESHOLD TOTAL THRESHOLD SETTLEMENT TRADE SYMBOL DESCRIPTION FTDs PRICE SECURITY? DAYS DATE DATE FTDs*PRICE TOTAL: $ 8,475,914,767.63 TOTAL (SHO STOCKS ONLY): $ 6,144,891,554.23 1 A AGILENT TECHNOLOGIES, INC N 3/31/2008 192,480 3/31/2008 29.83 $ 5,741,678.40 2 AA ALCOA INC N 3/31/2008 586,593 3/31/2008 36.06 $ 21,152,543.58 3 AACC ASSET ACCEP CAP CORP N 3/31/2008 126,922 3/31/2008 9.63 $ 1,222,258.86 4 AACS AMERICAN COMMERCE SLTS INC N 3/31/2008 27,961 3/31/2008 0.01 $ 139.81 5 AAGH Asia Global Holdings Corp. Com N 3/31/2008 68,029 3/31/2008 0.10 $ 6,462.76 6 AANI AMEDIA NETWORKS INC Y 131 3/31/2008 101,635 3/31/2008 0.00 $ 71.14 7 AAPL APPLE INC COM STK N 3/31/2008 252,703 3/31/2008 143.50 $ 36,262,880.50 8 AAUK ANGLO AMER PLC NEW ADR UK Y 28 3/31/2008 26,748 3/31/2008 29.77 $ 796,287.96 9 ABA Alabama Power Company Sr Nt Se N 3/31/2008 15,820 3/31/2008 26.74 $ 423,026.80 10 ABD ACCO BRANDS CORPORATION N 3/31/2008 48,175 3/31/2008 13.57 $ 653,734.75 11 ABDS Allegro Biodiesel Corporation N 3/31/2008 11,927 3/31/2008 0.09 $ 1,073.43 12 ABFS ARKANSAS BEST CORP (DEL) Y 7 3/31/2008 76,112 3/31/2008 31.86 $ 2,424,928.32 13 ABH ABITIBIBOWATER, INC. Y 138 3/31/2008 1,359,481 3/31/2008 12.91 $ 17,550,899.71 14 ABI APPLERA CP-APPLIED BIOSYSTEMS N 3/31/2008 13,893 3/31/2008 32.86 $ 456,523.98 15 ABK AMBAC FINANCIAL GROUP INC. Y 75 3/31/2008 72,154 3/31/2008 5.75 $ 414,885.50 16 ABMBF ABCOURT MINES INC CL-B (F) N 3/31/2008 34,200 3/31/2008 0.42 $ 14,364.00 17 ABMD ABIOMED INC N 3/31/2008 39,068 3/31/2008 13.14 $ 513,353.52 18 ABN ABN AMRO HOLD N.V.