[Federal Register Volume 73, Number 143 (Thursday, July 24, 2008)]
[Notices]
[Pages 43275-43277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16934]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58194; File No. SR-Phlx-2008-47]
Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to Disclaimer of Warranties
July 18, 2008.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on July 16, 2008, the Philadelphia Stock Exchange, Inc. (``Phlx'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The Exchange
filed the proposed rule change pursuant to Section 19(b)(3)(A) of the
Act \3\ and Rule 19b-4(f)(6) thereunder, which renders it effective
upon filing with the Commission.\4\ The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A).
\4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Phlx proposes to adopt Phlx Rule 1107A (NASDAQ OMX Group, Inc.
Indexes) to add a disclaimer regarding the accuracy and/or calculation
of the NASDAQ-100 Index[supreg] (the ``Index'') \5\ or options on the
Index, warranties of merchantability for purpose or use, and liability
for lost profits or damages.
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\5\ The NASDAQ-100 Index[supreg] is a mark owned by NASDAQ OMX
Group, Inc.
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The text of the proposed rule change is available at the Exchange,
the Commission's Public Reference Room, and on the Exchange's Web site
at http://www.phlx.com/regulatory/reg_rulefilings.aspx.
[[Page 43276]]
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Phlx included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Phlx has prepared summaries set forth in Sections A,
B, and C below of the most significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The purpose of the proposed rule change is to adopt new Phlx Rule
1107A, which establishes disclaimers in respect of options on the
NASDAQ-100 Index[supreg] (the ``Index''). The Exchange is proposing to
establish new Phlx Rule 1107A as required by the licensing agreement
with NASDAQ OMX that allows the Exchange to license, trade, and market
options on the Index (the ``Licensing Agreement'').\6\
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\6\ Pursuant to the Licensing Agreement and the immediately
effective filing SR-Phlx-2008-36 proposing to list and trade full
value and reduced value options on the Index (NDX and MNX,
respectively), see Securities Exchange Act Release No. 57936 (June
6, 2008), 73 FR 33481 (June 12, 2008) (SR-Phlx-2008-36), the
Exchange began trading NDX and MNX on or about June 16, 2008.
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Proposed Rule 1107A, which is similar in nature to disclaimers
regarding other index providers at current Phlx Rules 1104A (SIG
Indices, LLLP), 1105A (Standard and Poor's[supreg] Index), and 1106A
(Lehman Brothers Inc. Indexes) \7\ establishes, among other things,
disclaimers about the accuracy and/or uninterrupted calculation of the
Index or any data included therein; any warranties of merchantability
or fitness for a particular purpose or use; and any liability for any
lost profits or damages.
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\7\ The Exchange noted in its filings to adopt Rules 1104A,
1105, and 1006A that the proposed disclaimers were appropriate given
that they were similar to disclaimer provisions of American Stock
Exchange Rule 902C relating to indexes underlying options listed on
that exchange. See Securities Exchange Act Release Nos. 48135 (July
7, 2003), 68 FR 42154 (July 16, 2003)(SR-Phlx-2003-21)(adopting Rule
1004A regarding SIG indices); 51664 (May 6, 2005), 70 FR 25641 (May
13, 2005)(SR-Phlx-2005-24)(adopting Rule 1105A regarding S&P 500 and
expanding Rule 1104A); and 52102 (July 21, 2005), 70 FR 44144
(August 1, 2005)(SR-Phlx-2005-38)(adopting Rule 1106A regarding
Lehman Brothers).
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The Exchange believes that proposed Phlx Rule 1107A, being similar
in concept to current Phlx Rules 1104A, 1105A, and 1106A as well as
current rules of other options exchanges,\8\ should put NASDAQ OMX on
similar footing with other licensors of options on indexes to the
Exchange.
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\8\ See for example disclaimers and limitation of liability at
AMEX Rule 902C and at CBOE Rule 24.14.
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2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Act \9\ in general, and furthers the objectives of Section
6(b)(5) of the Act \10\ in particular, in that it is designed to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
The Exchange believes that the proposed rule change should encourage
NASDAQ OMX to continue maintaining the Index upon which options may be
traded on the Exchange, thereby providing investors with enhanced
investment opportunities.
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\9\ 15 U.S.C. 78f(b).
\10\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
No written comments were either solicited or received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \11\ and Rule 19b-4(f)(6) thereunder.\12\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.\13\
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\11\ 15 U.S.C. 78s(b)(3)(A)(iii).
\12\ 17 CFR 240.19b-4(f)(6).
\13\ Rule 19b-4(f)(6) also requires the Exchange to give the
Commission written notice of its intent to file the proposed rule
change along with a brief description and text of the proposed rule
change, at least five business days prior to the date of filing of
the proposed rule change, or such shorter time as designated by the
Commission. The Exchange has satisfied the pre-filing requirement.
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A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative prior to 30 days after the date of the filing.
However, pursuant to Rule 19b-4(f)(6)(iii),\14\ the Commission may
designate a shorter time if such action is consistent with the
protection of investors and the public interest. Phlx has asked the
Commission to waive the 30-day operative delay so that the proposal may
become operative immediately upon filing. The Commission believes such
waiver is consistent with the protection of investors and the public
interest because it would allow for the immediate implementation of a
rule similar to rules already in place at the Phlx and at other options
exchanges. For this reason, the Commission designates the proposal to
be operative upon filing with the Commission.\15\
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\14\ 17 CFR 240.19b-4(f)(6)(iii).
\15\ For purposes only of waiving the 30-day pre-operative
period, the Commission has considered the proposed rule's impact on
efficiency, competition and capital formation. 15 U.S.C. 78c(f).
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At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send e-mail to [email protected]. Please include File
Number SR-Phlx-2008-47 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
[[Page 43277]]
All submissions should refer to File Number SR-Phlx-2008-47. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro/shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing will also be available for
inspection and copying at the principal office of the Phlx. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-Phlx-2008-47 and should be
submitted on or before August 14, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
Florence E. Harmon,
Acting Secretary.
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\16\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E8-16934 Filed 7-23-08; 8:45 am]
BILLING CODE 8010-01-P