Tagged: SEC

Boxes and Lines

 

In the sense that high-speed transmission lines connecting computerized boxes are the stock market, it’s boxes and lines.

Also, stock exchange IEX, the investors exchange, hosts a podcast called Boxes and Lines that’s moderated by co-founder Ronan Ryan and John “JR” Ramsay, IEX’s chief market policy officer. I joined them for the most recent edition (about 30 mins of jocularity and market structure).

In case you forget, the stock market is not in New York City.  It’s in New Jersey housed in state-of-the-art colocation facilities at Mahwah, Carteret and Secaucus.  It’s bits and bytes, boxes and lines.

It’s superfast.

What’s not is the disclosure standard for institutional investors.  We wrote about the SEC’s sudden, bizarre move to exclude about 90% of them from disclosing holdings.

The current standard, which legitimizes the saying “good enough for government work,” is 45 days after the end of the quarter for everybody managing $100 million or more.

We filed our comment letter Monday.  It’ll post here at some point, where you can see all comments. You can read it here now.  Feel free to plagiarize any or all of it, investors and public companies. Issuers, read our final point about the Australian Standard of beneficial ownership-tracing, and include it with your comments.

Maybe if enough of us do it, the SEC will see its way toward this superior bar.

Without reading the letter or knowing the Australian Standard you can grasp a hyperbolic contradiction. The government’s job is to provide a transparent and fair playing field.  Yet the same SEC regulates the stock market located in New Jersey. Boxes and lines.

FB, AAPL, AMZN, NFLX, GOOG, GOOGL, MSFT, AMD, TSLA and SHOP alone trade over 2.5 MILLION times, over $80 billion worth of stock. Every day.

And the standard for measuring who owns the stock is 45 days past the end of each quarter.  A quarter has about 67 trading days, give or take.  Add another 30 trading days.  Do the math.  That’s 250 million trades, about $7.9 trillion of dollar-flow.  In 10 stocks.

Why should the market function at the speed of light while investors report shareholdings at the speed of smell? Slower, really.

Do we really need to know who owns stocks?  I noted last week here and in our SEC 13F Comment Letter both that online brokerage Robinhood reports what stocks its account holders own in realtime via API.

That’s a communication standard fitted to reality. True, it doesn’t tell us how many shares. But it’s a helluva better standard than 97 days later, four times a year.

Quast, you didn’t answer the question.  Why does anyone need to know who owns shares of which companies? Isn’t everybody entitled to an expectation of privacy?

It’s a public market we’re talking about.  The constituency deserving transparency most is the only other one in the market with large regulatory disclosure requirements: Public companies.

They have a fiduciary responsibility to their owners. The laws require billions of dollars of collective spending by public companies on financial performance and governance.

How incoherent would it be if regulations demand companies disgorge expensive data to unknown holders?

As to retail money, the Securities Act of 1933, the legislative basis for now decades of amendments and regulation, had its genesis in protecting Main Street from fraud and risk.  The principal weapon in that effort has long been transparency.

Now, the good news for both investors and public companies is that you can see what all the money is doing all the time, behaviorally. We’ve offered public companies that capability for 15 years at ModernIR.

Take TSLA, now the world’s most actively traded – we believe – individual stock. SPY trades more but it’s an ETF.  Active money has been selling it.  But shorting is down, Passive Investment is down 21% the past week.  TSLA won’t fall far if Passives stay put.

That’s market structure. It’s the most relevant measurement technique for modern markets. It turns boxes and lines into predictive behavioral signals.

And investors, you can use the same data at Market Structure EDGE to help you make better decisions.

Predictive analytics are superior to peering into the long past to see what people were doing eons ago in market-structure years. Still, that doesn’t mean the SEC should throw out ownership transparency.

Small investors and public companies are the least influential market constituents. Neither group is a lobbying powerhouse like Fast Traders.  That should warrant both higher priority – or at least fair treatment. Not empty boxes and wandering lines.

PS – Speaking of market structure, if you read last week’s edition of the Market Structure Map, we said Industrials would likely be down. They are. And Patterns say there’s more to come. In fact, the market signals coming modest weakness. The Big One is lurking again but it’s not at hand yet.

Big Blanket

The US stock market trades about $500 billion of stock daily, the great majority of it driven by machines turning it into trading aerosol, a fine mist sprayed everywhere. So tracking ownership-changes is hard. And unless we speak up it’s about to get a lot harder.

In 1975 when the government was reeling like a balloon in the wind after cutting the dollar loose from its anchoring gold, Congress decided to grant itself a bunch of authority over the free stock market, turning into the system that it now is.

How?  Congress added Section 11A to the Securities Act, which in 2005 became Regulation National Market System governing stock-trading today – the reason why Market Structure Analytics, which we offer to both public companies and investors, are accurately predictive about short-term price-changes.

And Congress decided to create a disclosure standard for investors, amending the Securities Act with section 13F. That’s what gave rise to the quarterly reports, 13Fs, that both investors and public companies rely on to know who owns shares.

I use the phrase “rely on” loosely as the reports are filed 45 days after the end of each quarter, which means the positions could be totally different by the time data is released. It’s a standard fit for the post office. Mail was the means of mass communication in 1975.

Currently, the standard applies to funds with $100 million or more in assets. Many managers divide assets into sub-funds to stay below that threshold.  So most companies have shareholders that show up in no reports. But at least they have some idea.

Well, out of the blue the Securities and Exchange Commission (SEC) has decided to lift the threshold to $3.5 billion to reflect, I guess, the collapse of dollar purchasing power.

But nothing else changes!  What would possess a regulatory body ostensibly responsible for promoting fairness and transparency to blanket the market in opacity while keeping in place time periods for reporting that have existed since 1975?

I’m reminded of a great line from the most quotable movie in modern history, Thank You For Smoking: I cannot imagine a way in which you could have $#!!@ up more.

Public companies have been asking the SEC for decades to modernize 13F reporting. Dodd Frank legislation passed in 2010 included a mandate for monthly short-position reporting. It’s not happened because the law put no timeframe on implementation.

But how stupid would it be to require monthly short-position reporting while letting long positions remain undisclosed till 45 days after the end of each quarter?

Much of the world has stricter standards of shareholder disclosure.  Australian markets empower companies and stock exchanges to require of investors full disclosure of their economic interest, on demand.

Our regulators appear to be going the opposite direction.

Australia offers an idea, SEC. If you’re going darken the capital markets with a new (non) disclosure standard, then how about empowering companies to demand from holders at any time a full picture of what they own and how they own it?

Investors, I get it. You don’t want anyone knowing what you have.  Well, it seems to work just fine in Australia, home to a vibrant capital market.

And let’s bring it around to market structure.  There is a woefully tilted playing field around ETFs.  A big investor, let’s say Vanguard, could give a billion-dollar basket of stocks to an Authorized Participant like Morgan Stanley off-market with no trading commissions and no taxes, in exchange for a billion dollars of ETF shares.

None of that counts as fund-turnover.

It could happen by 4p ET and be done the next day.  No trading volume. And then Vanguard could come right back with the ETF shares – again, off-market, doesn’t count as fund-turnover – and receive the stocks back.

Why would investors do that? To wash out capital gains. To profit on the changing prices of stocks and ETFs. This is a massive market – over $500 billion every month in US stocks alone.  It’s already over $3 TRILLION in total this year.

What’s wrong with it?  All other investors have to actually buy and sell securities, and compete with other forces, and with volatility, and pay commissions, pay taxes, alter outcomes by tromping through supply and demand.  Oh, and every single trade is handled by an intermediary (even if it’s a direct-access machine).

So how is that fair?

Well, couldn’t all investors do what Vanguard did?  No. Retail investors cannot.  Yes, big investors could take their stock-holdings to Morgan Stanley and do the same thing. But trading stocks and ETF shares back and forth to profit on price-changes while avoiding taxes and commissions isn’t long-term investment.

That the ETF market enjoys such a radical advantage over everything else is a massive disservice to public companies and stock-pickers.

And after approving the ETF market, you now, SEC, want to yank a blanket over shareholdings to boot?  Really?  Leave us in 1975 but 35 times worse?

Market Structure Analytics will show you what’s happening anyway. And nearly in real time. But that’s not the point. The point is fairness and transparency. Every one of us should comment on this rule.

Trading Fast and Slow

 

Happy 2nd Half of 2020!  I bet we’re all glad we’re halfway there. Karen and I would’ve been in Greece now sailing the Ionian islands, luxury catamaran, sunset off starboard, Hurricane in hand.

Instead my checklist leaving the house has expanded from wallet, phone, keys, to wallet, phone, keys, mask.  No vacation for you. Just a Pandemic and executive orders.

A CEO of a public company said, “Why does my stock trade only 60 shares at a time, and how do I fix it?”

I was happy the team at ModernIR had highlighted shares-per-trade (one of several liquidity metrics we track).  Every public-company CEO should understand it.

After all, your success, investor-relations folks selling the story to The Street (and investors, whether you can buy or sell shares before the price changes), depends on availability of stock. Not how great your story is.

Because there’s a mistaken idea loose in the stock market. We understand supply is limited in every market from homes for sale to shishito peppers at the grocery store. Yet we’re led to believe stocks are infinitely supplied.

This CEO I mentioned asked, “So how do I fix it?”

This isn’t AMZN we’re talking about, which trades less than 30 shares at a time, but that’s over $70,000 per trade.  AMZN is among the most liquid stocks trading today. The amount you can buy before the price changes is almost eight times the average in the whole market.

AAPL is liquid too, not because it trades almost $16 billion of stock daily but because you can ostensibly buy $35,000 at a pop, and it trades more than 400,000 times.

Back to our CEO, above. The company trades about 3,000 times per day, roughly $3,000 per trade.  Liquidity isn’t how much volume you’ve got. It’s how much of your stock trades before the price changes.

That matters to both the IR people as storytellers and the investors trying to buy it.

I’ve shared several vignettes as I experiment with our new decision-support platform democratizing market structure for investors, called Market Structure EDGE. I couldn’t buy more than 10 shares of AAPL efficiently. My marketable order for JPM split in two (96 shares, 4 shares), and high-speed traders took the same half-penny off each.

The CEO we’re talking about meant, “What can we do differently to make it easier for investors to buy our shares?”

The beginning point, at which he’d arrived, which is great news, is realizing the constraints on liquidity.

But. If you have the choice to buy something $3,000 at a time – oh, by the way, it’s also more than 4% volatile every day – or buying it $70,000 at a time with half the volatility, which “risk-adjusted return” will you choose?

And there’s the problem for our valiant CEO of a midlevel public company in the US stock market today. Fundamentals don’t determine liquidity.

To wit, TSLA is more liquid than AAPL, over $42,000 per trade.

Forget fundamentals. TSLA offers lower risk.

Ford and GM trade around $4,000 per transaction, a tenth as liquid as TSLA.  Heck, NKLA the maker of hydrogen trucks with no products and public via reverse merger is twice as liquid as our blue-chip carmakers of the 20th century.

Prospects, story, don’t determine these conditions. These vast disparities in liquidity invisible to the market unless somebody like us points them out are driven by DATA.

The reason liquidity is paltry in most stocks is because a small group of market participants with deep pockets can buy better data from exchanges than what’s seen publicly.  I’ll explain as we wrap the edition of the MSM in a moment.

The good news is the SEC wants to change it.  In a proposal to revamp what are called the data plans, the SEC is aiming to shake up the status quo by among other things, putting an issuer and a couple investors on the committee governing them.

I’ve been trying for 15 years to achieve something like this, and so has NIRI, the IR professional association (they longer than me!). I should retire! Mission accomplished.

Heretofore, the exchanges and Finra, called “Self-Regulatory Organizations (SROs),” have been able to create their own rules. In a perfect world full of character, we’d all be self-regulatory. No laws, just truth.

Alas, no.  The exchanges provide slow regulatory data to the public and sell fast data for way more money to traders who can afford it.

By comparing the slow data to the fast data, traders can jump in at whatever point and split up orders and a take a penny from both parties.

This happens to popular brokerage Robinhood’s order flow by the way.  Those retail customers get slow data, and the traders buying the trades use fast data.

That’s not the problem. The problem is that by buying Robinhood’s order flow at slow-data prices, and selling it at fast-data prices, T Rowe Price’s trades get cut out, front-run, jumped past.

Your big investors can’t buy your stock efficiently (passive money doesn’t care as it’s just tracking a benchmark).

That’s why our CEO’s company trades 60 shares at a time.

For stocks like AMZN the difference between fast and slow is small because they’re the cool kids. And size grows. For the rest, it’s the crows in the cornfield.

You can talk to investors till you turn blue. It won’t solve this problem. The only thing that will is when investors join with public companies and get behind eliminating Fast Data and Slow Data and making it just Data.

We’ve got a shot, thanks to this SEC, and the head of the division of Trading and Markets, Brett Redfearn.  We should all – public companies and investors – get behind it. If you want to know how, send me a note.

Reg Nemesis II

In the Colorado mountains at Steamboat Springs, the pixie dust florescence of greening aspen leaves paints spring onto the high country.

In the bowels of equity markets there gurgles an emergent leviathan (maybe I should choose different imagery – but we’ll talk about what stinks and what doesn’t in this…movement).  The Securities Exchange Commission (SEC) in January asked stock exchanges to rethink Reg NMS.

Everybody who trades stocks, every investor-relations officer for a public company, should know some key facts about this regulation.

Yes. Of course it’s a pain in the butt (I need a new motif).  Who wants to read regulations?

Reg NMS is Regulation National Market System. In one of our all-time most frequented posts, called Reg Nemesis, we described the effects this law has had on the stock market.

We also explained in our recent NIRI webcast on market structure that its four components regulate stock data, stock quotes, stock prices, and access to all three.

Now the SEC wants to modernize it. I think that’s not a stinker at all. Rules should reflect how the market works, and Reg NMS hatched in the contemporary minds of members of Congress in 1975.

Then, amid caroming inflation and screaming currency volatility of the post-gold, bell-bottomed pandemic-haired hippie era, the legislative halls of Columbia echoed with calls to protect the vital “system” of our stock market.

So Congress added the 11A national market system amendments to the Securities Act.  And thirty years later, the SEC got around to regulating Congress’s will upon free markets, and in 524 sweepingly droll pages that one cannot help but read in the same soporific nasal tone as Ben Stein in Ferris Bueller’s Day Off, the stock market became the national market system.

You cannot bear imagining the cacophony with which the stock exchanges met this plan, back then.  There was shrieking and gnashing of legal teeth, the rending of garments and the donning of sack cloth. Ashes were poured on heads. Hieratic beseeching, a great priestly tumult, roared over capital markets.  It was like a pandemic.

Reg NMS was approved in 2005, about four years after the drumbeat began, and implemented in 2007.

Thirteen years on now, nobody loves Reg NMS like stock exchanges love Reg NMS. They’ve even sued the SEC to stop the regulator from questioning its own rules.

As Dave Barry, one of my favorite humorists (if your car is making a knocking noise, turn the radio up) of all time, used to say, “We are not making this up.”

So the SEC basically said, to quote Jerry Stiller (RIP, Ben Stiller’s dad), “Do you want a piece of me!!!!????”

And they’ve instructed exchanges and other market participants to help redraw Reg NMS.  And somehow the sequel is even longer than the original, at 595 pages.

And once again, even though the Securities Act of 1933 and 1934 as amended (oh so very many times amended) specifically includes issuers as constituents not to be discriminated against, we’re omitted from this re-imagining.

That’s a major reason to me why more than 55% of all trading volume currently comes from firms that don’t know what you do or who you are, public companies. They care only that your price profitably changes in fractions of seconds at your investors’ expense.

But I digress.

The Festivus for the rest of us that’s thus far been as elusive as holiday aluminum poles and feats of strength is a market that really works for our profession.

What would that be?  For one, a market that produced more IR jobs rather than fewer (we continue to lose more stocks each year than we gain and there are less than half what there were when I started in this profession in 1995).

And a market where stock pickers favoring your story have the same chance to make money as ETF market-makers and Fast Traders (so blissfully optimistic you want to start humming Fred Rogers, and, were we not socially distanced, hugging your neighbor).

Hey, maybe this is our chance. We can form opinions, speak up.  We’ll have that opportunity as this process, likely to take years as it did the first time around, unfolds.

So, what’s the SEC wanting to put in Nemesis II?  It wants competition for consolidated market data.  The Securities Information Processor (SIP) is a monopoly run by one firm (currently the Nasdaq).  It’s the official source of price and quote information – but it’s slower than all the proprietary data feeds. So everybody sells access even though the law says access must be uniform.

That needs fixing and the SEC is right.

And they want to redefine a “round lot” to reflect an Amazon market. Right now, stocks quote in 100-share increments.  The problem is AMZN, BKNG, GOOG and other stocks trade for well more than $1,000.  The average trade-size in these is about 30 shares.

In fact, almost 60% of trades now are for less than 100 shares, so stocks are trading at prices differing from quotes. It merits analysis, we agree. But do we further “yellow pencil” the market? Should we force all stocks to be $25-50? Is the round lot dead?

I haven’t finished reading all 595 pages yet. We’ll have more to say. We need rules that reflect reality. But we also need simple, comprehensible markets that work for all of us, and not just for speedy machines and stock exchanges.

Maybe we should all yell at them, “Do you want a piece of me!!!!????”

Six See Eleven

What do you do in Steamboat Springs when autumn arrives at the Botanic Park? Why, have a Food & Wine Festival of course!

Meanwhile the derivatives festival in equities continues, thanks to the SEC, which through Rule 6c-11 is now blanket-exempting the greatest financial mania of the modern era, Exchange Traded Funds (ETFs), from the law governing pooled investments.

I’ll explain what this means to companies and stock-picking investors.

Look, I like Chairman Clayton, Director Redfearn, and others there.  But the SEC isn’t Congress, legislating how the capital markets work (one could argue that the people never delegated that authority to government through the Constitutional amendment process at all. But I digress).

The point is, the SEC is supposed to promote free and fair markets – not one purposely tilted against our core audience of stock-pickers.

The problems with ETFs are they’re derivatives, and they foster arbitrage, or profiting on different prices for the same thing. If arbitrage is a small element – say 15% – it can highlight inefficiencies. But thanks to ETFs, 87% of volume (as we measure it) is now directly or indirectly something besides business fundamentals, much of it arbitrage.

Do we want a market where the smallest influencer is Benjamin Graham?

ETFs in fact can’t function without arbitrage. ETFs have no intrinsic value.  They are a traded substitute for a basket of underlying stocks that depend on prices of those stocks for a derivative price applied to the ETF shares. So, unless brokers trade both ETF shares and stocks simultaneously, ETF prices CAN collapse.

That was an outlier problem until ETFs became the fastest-growing financial instrument of all time outside maybe 16th century Dutch tulip bulbs.

But collapse is not the core threat from ETFs. Arbitrage distorts the market’s usefulness as a barometer of fundamentals, warps the market toward speed, and shrivels liquidity.

How and why are these conditions tied to ETFs and arbitrage?  I’m glad you asked!

The motivation for arbitragers is short-term price-changes.  The motivation for investors is long-term capital formation. These are at loggerheads.  The more arbitrage, the faster prices change.  Price-instability shrinks the size of trades, and liquidity is the amount of something that can trade before prices change. It’s getting smaller as the market balloons.

If money can’t get into or out of stocks, it will stop buying them and start substituting other things for them. Voila! ETFs.

But.

We’ll get to that “but” in a minute.

ETFs are a fantastic innovation for ETF sponsors because they eliminate the four characteristics that deteriorate fund-performance:

Volatility. ETF shares are created off-market in big blocks away from competition, arbitrage, changing prices, that war on conventional institutional orders.

Customer accounts. ETFs eliminate asset-gathering and the cost of supporting customers, offloading those to brokers. Brokers accept it because they arbitrage spreads between stocks and ETFs, becoming high-frequency passive investors (HFPI).

Commissions. ETF sponsors pay no commissions for creating and redeeming ETF shares because they’re off-market.  Everyone else does, on-market.

Taxes. Since ETFs are generally created through an “in-kind” exchange of collateral like cash or stocks, they qualify as tax-exempt transactions.  All other investors pay taxes.

Why would regulators give one asset class, which wouldn’t exist without exemptions from the law, primacy? It appears the SEC is trying to push the whole market into substitutes for stocks rather than stocks themselves.

The way rules are going, stocks will become collateral, investments will occur via ETFs. Period.  If both passive and active investors use ETFs, then prices of ALL stocks will become a function of the spread between the ETFs and the shares of stocks.

Demand for stocks will depend not on investors motivated by business prospects but on brokers using stocks as collateral. Investors will buy ETFs instead of stocks.

If there is no investment demand for stocks, what happens when markets decline?

What would possess regulators to promote this structure? If you’ve got the answer, let me know.

And if you’re in IR and if you play guitar (Greg Secord? You know who you are, guitar players!), start a rock band. Call it Six See Eleven. Book some gigs in Georgetown. Maybe Jay Clayton will pop in.

Meanwhile, your best defense is a good offense, public companies and investors. Know how the market works. Know what the money is doing. Prepare for Six See Eleven.

Reality Disconnect

In 1975, there were no electronic exchanges in the United States.  Now the average S&P 500 component trades electronically 17,000 times daily in 134-share increments totaling a mean of $500 million of stock.

Yet public companies still have a 1975 standard of shareholder disclosure from the SEC, called 13F filings, referencing the section of the Securities Act with instructions for investment advisors of specified size to report positions 45 days after each quarter-end.

It’s a reality disconnect. Retaining this standard says to executive teams and boards for public companies that “regulators and legislators want you to believe this is what’s driving your share-value.”

You can’t believe what the market is telling you on a given day, let alone over a quarter. We’ll come to that.

In 1975, there were no Exchange Traded Funds, no Fast Traders.  The first index fund open to the public launched Dec 31, 1975, from Vanguard, with $11 million of assets.

Today, index investing has surpassed active stock-picking in the US for assets under management. ETFs are the phenomenon of the era, with growth surpassing anything modern markets have ever seen. There is one ETF for each Russell 1000 stock now.

Total US market capitalization is more than $30 trillion, and 1% of it trades every day – over $300 billion of stock. By our measures, ETFs are responsible for roughly 60% directly or indirectly. ETFs are priced by arbitrage. Arbitrage blurs delineation between Fast Traders and ETF “market-makers.” Both make trade decisions in 10 nanoseconds.

None of this money we’ve just highlighted pays attention to earnings calls or reads 10-Ks and 10-Qs or press releases.  It’s rules-based investing. Asset allocation. Trading.

As money has shifted tectonically from Active to Passive, regulatory and disclosure costs for public companies – to serve Active investors – have gone the opposite direction.

We estimate costs related to quarterly and annual reporting, associated public reviews and audits, and Sarbanes-Oxley and Dodd-Frank and other regulations total $5-6 billion annually. For the roughly 3,400 companies traded nationally, investor-relations budgets consumed by communications tools, travel, reports and services are $3-4 billion.

Unless the point of regulation is busywork, the rules are confusing busy with productive. As the money ceases to listen – there’s been a diaspora of sellside analysts from Wall Street to the IR chair because the buyside has gone passive – the chatter from companies has exponentiated.

The Securities Act says no constituency of the national market system including issuers is to be discriminated against. Failing to modernize data to reflect reality is a disconnect.

Summing up, public companies, beset by a leviathan load of regulatory costs for investors, which are moving in math-driven waves and microseconds, wait to see what funds file 13F records of shareholdings 45 days after the end of each quarter.

There’s more.  The average stock has four distinct trading patterns per month, meaning traders unwind and return, funds rebalance, derivatives bets wax and wane, in 20 trading days. Not over a quarter.

About 45% of all trading volume is borrowed. Another 45% comes from Fast Trading machines (with heavy overlap as machines are automated borrowers) that close out 99% of positions before the trading day ends.

All told, 87% of market volume comes from something other than stock-picking. The disclosure standard supposes – because it dates to 1975 – that all volume is rational.

The reality disconnect is so bad now that machines look like humans. As we wrote last week, the whole of financial punditry has been caught up in a vast reputed momentum-to-value shift.

Except it didn’t happen.

Sure, momentum stocks plunged while value stocks surged.  Yet as this story from Marketwatch yesterday notes (I’m a source here too), AAPL is a core component of flying value indices.  Isn’t AAPL a growth stock?

Here’s the kicker.  The principal reason for swooning momentum and soaring value was a rush by Fast Trading machines that spread through markets, and a corresponding short-squeeze for ETF market-makers, which routinely borrow everything but were caught out in ripping spreads between ETFs and component stocks.

What if today’s Federal Reserve monetary policy decisions reflect belief money has shifted to value?  What if investment decisions are incorrectly recalibrated?  What if observers falsely suppose growth is slowing and crow anew about impending recession?

The market is disconnected from 13Fs. How about modernizing them, regulators? I’ll be going to Capitol Hill and the SEC with the NIRI delegation next week to make this case.

Meanwhile, be wary of markets. The Fed was intervening yesterday and likely cuts rates today by 25-50 basis points, just as volatility expirations hit now, and before a raft of stock, index, ETF, currency, Treasury and interest-rate derivatives expire through Friday. And Market Sentiment is topped.

Maybe it’s nothing. But if the market rolls, there are data-driven reasons.  And it’s about time disclosures took a leap forward past the reality disconnect for public companies.

Piloting Fees

What do these pension funds below have in common?

All (over $1.3 trillion of assets), according to Pensions & Investments, periodical for retirement plans, endorse the SEC’s Fee Pilot program on stock-trading in US equities.

The California State Teachers’ Retirement System
The California Public Employees Retirement System (CalPERS)
The Ontario Teachers Pension Plan (Canada)
The New York City Retirement Systems
The State of Wisconsin Investment Board
The Alberta Investment Management Corp. (Canada)
The Healthcare of Ontario Pension Plan (Canada)
The Alaska Permanent Fund Corp.
The Arizona State Retirement System
The San Francisco City & County Employees’ Retirement System
The Wyoming Retirement System
The San Diego City Employees’ Retirement System

In case you missed the news, we’ll explain the study in a moment. It will affect how stocks trade and could reverse what we believe are flaws in the structure of the US stock market impeding capital formation. But first, we perused comment letters from other supportive investors and found:

Capital Group (parent of American Funds) $1.7 trillion
Wellington Management, $1 trillion
State Street Global Advisors, $2.7 trillion (but State Street wants Exchange Traded Products, ETPs, its primary business, excluded)
Invesco, $970 billion
Fidelity Investments, $2.4 trillion
Vanguard, $5.1 trillion
Blackrock, $6.3 trillion (with the proviso that equal ETPs be clustered in the same test groups)
Assorted smaller investment advisors

By contrast, big exchange operators and a collection of trading intermediaries are either opposed to the study or to eliminating trading incentives called rebates.  We’ll explain “rebates” in a bit.

That the views of investors and exchanges contrast starkly speaks volumes about how the market works today.  None of us wants to pick a fight with the NYSE or the Nasdaq. They’re pillars of the capital markets where we’re friends, colleagues and fellow constituents. And to be fair, it’s not their fault. They’re trying to compete under rules created by the SEC. But once upon a time exchanges matched investors and issuers.

Let’s survey the study. The program aims to assess the impact of trading fees, costs for buying and selling shares, and rebates, or payments for buying or selling, on how trading in stocks behaves.  There’s widespread belief fees distort how stock orders are handled.

The market today is an interconnected data network of 13 stock exchanges (four and soon five by the NYSE, three from the Nasdaq, and four from CBOE, plus new entrant IEX, the only one paying no trading rebates), and 32 Alternative Trading Systems (says Finra).

The bedrock of Regulation National Market System governing this market is that all trades in any individual stock must occur at a single best price:  The National Best Bid to buy, or Offer to sell – the NBBO.  Since exchanges cannot give preference and must share prices and customers, how to attract orders to a market?  Pay traders.

All three big exchange groups pay traders to set the best Bid to buy at one platform and the best Offer to sell at another, so trades will flow to them (between the NBBO).  Then they sell feeds with this price-setting data to brokers, which must by rule buy it to prove to customers they’re giving “best execution.” High-volume traders buy it too, to inform smart order routers.  Exchanges also sell technology services to speed interaction.

It’s a huge business, this data and services segment.  Under Reg NMS, the number of public companies has fallen by 50% while the exchanges have become massive multibillion-dollar organizations.  No wonder they like the status quo.

The vast majority of letters favoring the study point to how incentive payments from exchanges that attract order flow to a market may mean investors overpay.

One example: Linda Giordano and Jeff Alexander at BabelFish Analytics are two of the smartest market structure people I know. They deal in “execution quality,” the overall cost to investors to buy and sell stocks. Read their letter. It explains how trading incentives increase costs.

Our concern is that incentives foster false prices. When exchanges pay traders not wanting to own shares to set prices, the prices do not reflect supply and demand. What’s more, the continuous changing of prices to profit on differences is arbitrage. The stock market is riven with it thanks to incentives and rules.

The more arbitrage, the harder to buy and sell for big investors. Arbitrage is the exact opposite motivation from investment. Why would we want a market full of it?

The three constituents opposing eliminating trading payments are the parties selling data, and the two principal arbitrage forces in the market:  High-frequency traders, and ETFs.

What should matter to public companies is if the stock market is a good place for the kind of money you spend your time targeting and informing. Look at the list above. We’ve written for 12 years now about how the market has evolved from a place for risk-taking capital to find innovative companies, to one best suited to fast machines with short horizons and the intermediaries selling data and services for navigating it.

Today, less than 13% of trading volume comes from money that commits for years to your investment thesis and strategy. All the rest is something else ranging from machines speculating on ticks, to passive money tracking benchmarks, to pairing tactics involving derivatives.

So public companies, if your exchange urges you for the sake of market integrity to oppose the study, ask them why $22 trillion of investment assets favor it? When will public companies and investors take back their own market? The SEC is offering that opportunity via this study.

Are there risks? Yes. The market has become utterly dependent for prices on arbitrage. But to persist with a hollow market where supply and demand are distorted because we fear the consequences of change is the coward’s path.

SEC vs NYSE

Our good friends at Themis Trading wrote last week about a $14 million settlement between the NYSE and the SEC over a series of violations.

Why care, issuers and investors? Suppose nobody told you the road you take daily to work sat atop a growing sink hole. We’re all responsible for the market that serves us and as such we have a duty to understand it. Do you know how it works?

Credit Haim Bodek for research leading to SEC action. Had not Mr. Bodek, one of the great market-structure experts of the modern era, blown the whistle, we might not know of these problems. Follow him on Twitter: @haimbodek.

Picking up from Joe and Sal at Themis (Note: With permission.  We’ve edited some for length):

The SEC Case Against NYSE

The NYSE case involves five serious violations.  We will list them all here but we want to focus on the fifth violation since we think it is the most egregious one:

1) On July 8, 2015, NYSE and American Negligently Represented That Their Quotations Were Automated When They Were Not.  NYSE and American Negligently Marked Quotations as Automated When They Had “Reason to Believe” They Were Not Capable of Displaying Automated Quotations

2) Arca Improperly Applied Price Collars to Reopening Auctions During August 24, 2015 Market Volatility.  Arca’s failure to have an effective exchange rule regarding the application of price collars to reopening auctions violated Section 19(b)(1) of the Exchange Act.

3) On March 31, 2015, Arca Erroneously Implemented a Regulatory Halt and Failed to Publish Closing Order Imbalance Information. Although Arca intended to suspend trading only on Arca, which would allow trading of Arca-listed securities to continue on other exchanges, Arca inadvertently implemented a “regulatory halt” that stopped trading in the 134 Arca-listed securities on all exchanges.

4) NYSE and American Failed to Comply with Reg SCI’s Business Continuity and Disaster Recovery Requirements. From November 3, 2015 through November 23, 2016, NYSE and American were in violation of the requirements in Rules 1001(a)(1) and 1001(a)(2)(v) of Reg SCI that each SCI entity have policies and procedures reasonably designed to ensure operational capability.

5) NYSE and American’s Rules Failed to State That Pegging Interest Orders Created Possibility of Detection of Prices of Non-Displayed Depth Liquidity.

While we have noted many examples in the past about information leakage by the stock exchanges, this is the first time that the SEC has fined an exchange for leaking confidential client information:

– Floor brokers were permitted to enter “pegging interest” orders (PI) which allowed them to peg their order to the best NYSE quote. They could specify a range of prices for this PI order to be active. If the best NYSE quote was outside the PI range, then the PI order would price at the next level closest to the quote.

– According to the SEC, “A PI’s ability to peg to the price level of a NDRO (non-displayed reserve order) created the possibility that a floor broker, or a customer who submitted a PI through a floor broker, that sent the PI, would be able to detect the presence of same side non-displayed depth liquidity if certain circumstances were present.”

***Notice that the SEC says “a floor broker or a customer who submitted the order through a floor broker”.  This is because it is widely known that some HFT firms rent out the pipes of certain floor brokers and route orders through them to gain parity which is a benefit that floor brokers enjoy.

– PI orders could peg their price to a non-displayed NYSE order that was not part of their best bid or offer.

– The SEC explained how the initiator of the PI order could find out about hidden interest: “the submitter of the PI could potentially use identifying characteristics of its PI to locate it in the market data feed displayed at a price that did not previously have any displayed liquidity (because the NDRO was undisplayed), and if so located, conclude that there was same side non-displayed depth liquidity at that price level.”

NYSE was notified of the information leakage issue in 2013 by a client and chose to do nothing about it.  According to the SEC, “in 2013, NYSE received a complaint from a trader that the price levels of his NDROs, which were entered at prices inferior to the quote and unoccupied by any displayed liquidity, were being joined upon entry, as the trader observed in the exchange depth of book market data feed, by a displayed order.”

Apparently sensing that they had a problem, NYSE submitted a rule change in March 2015 which “modified the functionality of PIs so that they only pegged to price levels occupied by displayable interest.”  The SEC approved this rule change and didn’t appear to take any further action.

What made the SEC go back and take another look at this issue?  It looks like our old friend Haim Bodek was responsible for this with another whistle blower case. According to this press release, Haim continues to protect investors and haunt the exchanges.

Themis Concludes: The question now becomes what do we, as investors and clients of NYSE, do about this?  Should NYSE simply get away with neglecting their regulatory responsibilities?  Should they be able to pay the $14 million and just continue doing business like nothing happened? Or, should issuers and long-term investors shift their business to an exchange like IEX which seeks to protect them and not favor one class of client over another?

MODERNIR EDITORIAL NOTE:  Thanks, Joe and Sal! Issuers, you should expect honest markets free of predatory practices that distort your stock price and create risk. Two of the instances producing fines occurred in the summer of 2015 when ETFs nearly imploded. The stock market is overly dependent on intermediaries that during crises may vanish.  By then it’s too late.  We need an Issuer Advisory Committee for markets.

Euphoria

The legal community was euphoric Tuesday on word stock exchanges listing your shares, public companies, aren’t immune from lawsuits claiming rules favor high-speed traders.

Bloomberg reported (news breaking so no updated link yet but case history is here) that a federal appeals court has overturned a lower ruling protecting exchanges from suits brought by investors and brokers claiming they were disadvantaged in markets through exchange practices ranging from data feeds to complex order types giving fast machines an edge.

The lawsuits hinge, I’m gathering, on a requirement in the Securities Act that exchange rules not discriminate against any constituency.

It’s something public companies should recognize. You’re an exchange constituency. If investors and traders have an expectation of advanced services, what about public companies?  You’re still calling people to ask why shares are up or down. You could do that in 1932, before the Securities Act passed Congress.

It’s conceivable that 2018 could be a great year for public companies in the way 2017 has been a great year for investors. Few (save Carl Icahn and some others) imagined on Nov 7, 2016 stocks were about to soar.  Euphoria now seems to abound like pot shops here in Denver on what we call the Green Mile from Alameda to Evans south on Broadway.

For companies it’s terrific when shares soar too (though LFIN, which debuted the 13th at roughly $5 and announced the 15th it was buying some blockchain outfit and then promptly roared to $130 and $4 billion of market cap without any revenue and via 21 volatility trading halts, is not exactly the sort of soaring that’s sustainable).

What’s needed more than slamming into the ceiling of all-time high Shiller PE ratios (not there yet but closing) is better disclosure.

Since 1975 not one thing has been modified in 13F investor disclosures. Back then we had rotary phones, human beings executed trades, and on May Day that year an obscure investment firm formed in Malvern, PA, calling itself The Vanguard Group.

Step forward to today and investors are still reporting holdings 45 days after quarter-end while Vanguard manages trillions, markets relentlessly morph, and high-speed firms rent 100 shares of your stock, trade it 5,000 times, volume is 500,000 shares, you think it’s big holders, and at the end of the day they own nothing.

Seem appropriate to you, this mismatch?  It’s decidedly not euphoric that public companies have been left out. One could say discriminated against?  Hm. SEC, are you listening?

So maybe in 2018 we can fix it. No need for Congress to act. Dodd-Frank did that in 2010 by creating a mandate for monthly short-position disclosures. Should long positions be disclosed 45 days after quarter-end? Or instead how about disclosing both long and short positions monthly?

That’s still well slower than machines but it would get us into the 21st century. How about it, SEC? Is this the Era of Transparency or is it just the Era of Euphoria?

Speaking of which, will euphoria last? So long as money pumps into Exchange Traded Funds, which don’t create any new shares of public companies but instead create shares of ETFs that reflect dollars chasing the same shrinking set of public companies that currently exists, yes. That’s a euphoric condition.

It’s also inflation. The reason the market behaves like Shangri-La is because the entire market is leveraged like a…well, like a currency that expands far more rapidly than the underlying economy.  Federal Reserve, are you paying attention?

Past all that, I think there’s plenty of reason for euphoria not only about better disclosure in 2018 but in the current season. Good things are happening economically.  There’s a lot of eggnog ahead.  Bowl games to watch while consuming adult beverages.  Chestnuts roasting on an open fire.

But euphoria wears off. We’ll talk about that next year.  Have an awesome holiday season!

Paid Access

A day ski pass to Vail will now set you back $160-$190. It’s rich but I’m glad the SEC isn’t studying skiing access fees. It is however about to consider trading access fees and you should know, public companies and investors. These are the gears of the market.

We all probably suppose stock exchanges make money by owning turf and controlling access. Right? Pete Seibert, Earl Eaton and their Denver investors had a similar ski vision when in 1962 they bought a hunk of Colorado mountain down from the pass through which Charles Vail had run Highway 6. Control turf, charge for access.

In stock trading it started that way too. The Buttonwood Agreement by 24 brokers in 1792 that became the NYSE was carving out turf. Brokers agreed to give each other first look at customer orders and to charge a minimum commission.

This became the stock-exchange model. To trade at one, you had to have access, like a ski pass. Floor firms were called two-dollar brokers, the minimum commission. If you wanted to offer customers more services – say, beer at Fraunces Tavern with a stock trade – you could charge more. But not less.  No undercutting on price.

In the ski business, Nederland, Loveland, Wolf Creek and other ski slopes along the continental divide will undercut, letting you in for half Vail’s cost – but Vail wraps world-class value-adds around its access fees, like Mountain Standard and The Sebastian.

Suppose all the ski resorts could charge only a maximum rate for passes and were forced to send their customers to any mountain having a better price.  It would be inconvenient for travelers arriving in Vail via I-70 to learn that, no, the best ski price is now at Purgatory in Durango, five hours by car.

And it would be like today’s stock market (save for speed). The three big exchange groups, plus the newest entrant IEX, and tiny Chicago Stock Exchange, comprising currently 12 separate market centers, can charge a maximum price of $0.30/100 shares for access to trade. And still they all undercut on price.

That’s because rules require trades to match between the marketwide Best Bid or Offer (BBO) – the best price. As Vail would do in our imaginary scenario, exchanges must continually send their customers to another exchange with the best price.

How to set the best price? You can only cut price so much.  More people will still go to Vail because it’s close to Denver on the Interstate, than to Purgatory, halfway between Montrose, CO and Farmington, NM off highway 550.

Now suppose Purgatory paid to chopper you in from Vail. It might not move you out of The Sebastian, but you’d again have the stock exchanges today. While access fees are capped (and undercut), exchanges can pay traders to bring orders to them.

That’s called a rebate. Exchanges pay brokers incentives to set prices because if they can’t attract the BBO part of the time, they don’t match trades, don’t capture market share, can’t generate valuable data to sell to brokers (Only IEX is eschewing rebates).

The problem for investors and companies is that trades motivated by rebates are like shill bids at art auctions (which by the way are prohibited). They set the best price for everybody else yet the shill bidder doesn’t want to own the painting – or the shares. That’s high-frequency trading. It’s 40% of market volume on average and can be 60%.

Bloomberg reported yesterday the SEC is planning to study access fees through a pilot trading program next year. We’re encouraged that it may include a group of securities with no rebates. But the initial framework begun in 2016 under Mary Jo White aimed to lower access fees, and the study right now contains those plans.

Why? Exchanges are already lowering them. How about setting a floor on access fees so exchanges can make a decent return matching trades and don’t have to engage in surreptitious incentive programs to compete? I got the idea from the Buttonwood Agreement and 200 years of history.

Say all exchanges charge baseline access fees. If this exchange or that wants to wrap more value around fees – better data or more technology or beer – they can charge more.

Whatever happens, we hope (and I asked Chairman Clayton by email) the SEC makes an issuer committee part of the process. Without your shares, public companies, there’s no market. We should have a say. That’s why we have to know how it works!