Die ARK ETFs von cathie Wood zählen zu den größten Anteilseignern der Tesla-Aktie. Jetzt könnte Ungemach drohen.
www.ft.com/content/3a3aa91c-4d1f-4005-80a4-fc8ae6e2544c
twitter.com/StockJabber/status/1367725158954377218
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But there’s another possible leak in the ARK which we have not seen discussed anywhere: the SEC’s short swing rule. Taken from Section 16(b) of the Securities Exchange Act, the rule is designed to stop company insiders trading their own shares for a quick profit. Fair enough. But what’s interesting is the SEC’s definition of an insider. It is, perhaps unexpectedly, pretty broad.
From a Latham & Watkins one pager on the subject:
Who qualifies as an “Insider” subject to Section 16?
• Directors of the company
• Officers, including each executive officer of the company and, if there is no principal accounting officer, the controller
• Beneficial owners of more than 10% of the company’s securities. A person is deemed to beneficially own securities if, directly or indirectly, that person has or shares the power to vote or sell those securities
Note the final point here — any investor with a stake at about 10 per cent of the company’s securities counts as an insider. According to Bloomberg’s ETF expert, Eric Balchunas, the ARK Invest funds have
29 stakes in companies that are over this limit. FT Alphaville has been through the SEC disclosures, and have identified 25 of these positions as of the last disclosure date, which was at the end of December.
(An important point to make here is that ARK’s beneficial ownership positions could have changed significantly since, but there is no complete data to our knowledge.)
The stakes include a 22 per cent position in $1.5bn Israeli 3D printer company Stratasys, a 18 per cent holding in $2.7bn online learning business 2U and 14 per cent stake in $9bn Swiss-American biotech Crispr Theraputics.
The question is though, what does the short swing rule mean for ARK with regards to such positions? If you flicked through the Latham and Watkins brief above, you’ll have read this at the bottom: Subject to limited exceptions, the purchase and sale, or sale and purchase, of equity securities of the company within a period of less than six months will result in “matchable” transactions under Section 16.
• The highest sale price will be matched against the lowest purchase within that period to determine if the Insider received “shortswing profits.”
• This formula can result in deemed profits, even if the Insider lost money on the transactions.
• The Insider must disgorge any such short-swing profits to the company.
• The company cannot waive its right to recover the short-swing profits, and any stockholder of the company can bring suit in the name of the company to recover short-swing profits on behalf of the company.
• Section 16 imposes a strict liability standard — good faith mistakes or misunderstandings of the law are not defences.
To summarise: any profits made by an insider within a six-month trading window must be returned back to the company. To boot, these trades are matched to make the most profitable trade possible.
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