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SEC Approves the Alternative Uptick Rule

Securities Law Update

February 26, 2010

On February 24, 2010, the Securities and Exchange Commission ("SEC") approved amendments to rule 201 of Regulation SHO ("Alternative Uptick Rule") under the Securities Exchange Act of 1934, as amended ("Exchange Act"). The Alternative Uptick Rule restricts short sales in exchange-listed equity securities that experience a price decline of more than 10% on any trading day from the prior trading day's closing price. Once the 10% circuit breaker is triggered, the subject securities can be sold short only at a price uptick, i.e. when the price is above the current national best bid ("NBB"). This restriction will remain in place for the remainder of the trading day on which the circuit breaker is triggered and the following trading day.  The Alternative Uptick Rule is designed to prevent abusive short sales that may be used to drive down the price of a security or exacerbate a market decline in a security. 

The SEC has approved some limited exceptions to the Alternative Uptick Rule. We understand that the SEC will allow short sales regardless of the tick, even when the 10% circuit breaker is triggered, in the following situations: (1) a broker-dealer determines that the price of the trade at the time of submission was above the NBB and it has in place policies and procedures to monitor its short-sale activities pursuant to this exception; and (2) the person selling short is deemed to own the securities but delivery of the securities will be delayed. The SEC has also approved exceptions to the Alternative Uptick Rule for certain odd-lot transactions, certain domestic and foreign arbitrage transactions, overallotment or layoff sales, riskless principal transactions, and volume weighted average price ("VWAP") transactions. Notably, the SEC did not adopt an exception for bona fide market-making activities. 

For assistance with any of the issues addressed in this update, please contact any one of the Bracewell & Giuliani attorneys listed on the upper right-hand side of this page.