James Brigagliano, W. Hardy Callcott and Michael Warden
To explain an October 16, 2018 US Securities and Exchange Commission order that unanimously upheld a SIFMA challenge to fee increases for “depth-of-book” market data filed by…
Abstract
Purpose
To explain an October 16, 2018 US Securities and Exchange Commission order that unanimously upheld a SIFMA challenge to fee increases for “depth-of-book” market data filed by Nasdaq and NYSE Arca and the SEC’s simultaneous remanding of over 400 market data fee and other filings back to the exchanges for consideration under the standards set out in the order.
Design/methodology/approach
Explains the criteria for fee increases under the Exchange Act, the SEC’s historic routine approval of exchanges’ proposed fee increases, the SEC’s challenge to two recent market data filings, and the SEC’s remanding of 400 additional market data fee filings challenged by SIFMA to the exchanges and the National Market System (NMS) for reconsideration. Analyzes and discusses the SEC’s order.
Findings
The SECs’ SIFMA order appears to raise the bar significantly for what exchanges must show to justify fee increases.More broadly, all five SEC Commissioners (of both parties) appear to be rethinking the role of for-profit exchanges in the regulatory structure.These orders have the potential to rewrite the regulation of market data, other exchange fees, and potentially the relationship between the exchanges and other market participants, for the entire securities industry.
Originality/value
Practical guidance from experienced securities lawyers.
Details
Keywords
James Brigagliano, Kevin Campion, David Katz and Andrew Blake
The purpose of this paper is to explain the requirements of SEC Rule 613 under the Securities Exchange Act of 1934, which requires national securities exchanges and FINRA jointly…
Abstract
Purpose
The purpose of this paper is to explain the requirements of SEC Rule 613 under the Securities Exchange Act of 1934, which requires national securities exchanges and FINRA jointly to develop a national market system plan (NMS Plan) that provides for the creation, implementation and maintenance of a consolidated order tracking system (“consolidated order trail” or “CAT”) as well as the creation of a central repository responsible for the receipt, consolidation, and retention of all order and quote information for NMS securities.
Design/methodology/approach
The paper discusses weaknesses of current, multiple order tracking systems; core features of the framework adopted by the SEC to create a CAT, including the creation of a central repository; key considerations for market participants, including data reporting methods and funding the creation, implementation and maintenance of the CAT; timing and phased implementation of the NMS Plan; security and order types covered by the CAT; persons required to report information to the central repository; reportable events and CAT data elements; timing and reporting to the central repository; ownership, governance and operation of the central repository; access to CAT data; parties required to comply with Rule 613e and the NMS Plan; and governance and operation of the NMS Plan.
Findings
Under the requirements of Rule 613, and through the NMS Plan that must be developed by the exchanges and FINRA, the CAT is intended to provide a comprehensive and uniform tracking mechanism for secondary market activity in all NMS securities.
Originality/value
The paper provides guidance by experienced financial services lawyers.
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Yoon‐Young Lee and Stephanie Nicolas
Following a spate of corporate scandals, the bursting of the “Internet bubble,” and media revelations of research analyst bias at the nation’s largest investment banks, regulators…
Abstract
Following a spate of corporate scandals, the bursting of the “Internet bubble,” and media revelations of research analyst bias at the nation’s largest investment banks, regulators launched a series of investigations and rulemaking initiatives that culminated in the adoption of extensive new rules regarding the conduct of research analysts and in the April 2003 global settlement (“Global Settlement”) of enforcement actions against 10 firms relating to research and investment banking conflicts. Although the Global Settlement by its terms only applies to the settling firms, as a practical matter, its reach will be much broader because state regulators and other third parties are looking to it to define a set of “best practices” to supplement the new rules. Although the new rules and the Global Settlement are intended to address the same concern ‐ i.e., conflicts of interest between research analysts and investment banking personnel at multi‐service brokerage firms ‐ their approaches to handling these conflicts reflect different assumptions and result in regulatory regimes that differ in such basic respects as the universe of persons who are deemed to be “research analysts.” These differences are not surprising. The new rules are the product of a lengthy, iterative rulemaking process that was open to the public and in which a diverse range of interested parties participated. In contrast, the undertakings detailed in the Global Settlement were the result of an enforcement action, concluded through bi‐lateral negotiations between the regulators and the 10 firms and without the opportunity for other interested parties to provide input or contribute to the process. However, for firms that seek to comply with both sets of requirements, the overlapping, and at times inconsistent, terms create a confusing and costly environment.
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Kevin J. Campion and Arik Hirschfeld
The purpose of this paper is to summarize and provide excerpts from a two‐day roundtable on securities lending and short selling hosted by the Securities and Exchange Commission…
Abstract
Purpose
The purpose of this paper is to summarize and provide excerpts from a two‐day roundtable on securities lending and short selling hosted by the Securities and Exchange Commission (SEC) on September 29‐30, 2009.
Design/methodology/approach
The paper provides summaries and participants' comments from two days of SEC commissioner's questions and panel discussions. Day one – securities lending: Panel 1 – overview of securities lending; Panel 2 – securities lending and investor protection concerns; Panel 3 – improving securities lending for the benefit of investors; Panel 4: the future of securities lending and potential regulatory solutions. Day two – short selling: Panel 1 – controls on “naked” short selling; Panel 2: making short sale disclosure more meaningful.
Findings
Many pension and mutual funds view securities lending as an investment activity. Securities lenders see cash collateral as an important risk. FINRA and the SEC have considered the need for increased transparency and the possible benefits of a central counterparty for securities lending. The securities lending market is highly regulated, including through requirements imposed by Regulation T, 15c3‐3, 15c3‐1, Regulation SHO, and ERISA guidelines. The SEC has considered “hard locate” and “pre‐borrow” requirements for short sales, which some market participants believe would be uneconomical. An estimated 50 percent of fails are from ETFs. The SEC has considered enhanced disclosure requirements for short sales, both anonymous and public, their possible effects on fraud prevention and market efficiency, and any harm they could do to market makers.
Originality/value
The paper provides a discussion by regulators and industry experts on the most important current regulatory issues related to securities lending and short selling.