[Federal Register Volume 62, Number 141 (Wednesday, July 23, 1997)]
[Notices]
[Pages 39564-39565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19346]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-38845; File No. SR-NASD-97-37]


Self-Regulatory Organizations; Order Approving Proposed Rule 
Change by the National Association of Securities Dealers, Inc. Relating 
to an Interpretation of NASD Conduct Rule 2110 Regarding Anti-
Intimidation/Coordination Activities of Member Firms and Persons 
Associated With Member Firms

July 17, 1997.
    On May 7, 1997, the National Association of Securities Dealers, 
Inc. (``NASD'' or ``Association'') filed with the Securities and 
Exchange Commission (``SEC'' or ``Commission'') pursuant to Section 
19(b)(1) of the Securities Exchange Act of 1934 (``Exchange Act'').\1\ 
The proposed rule change was published for comment in Securities 
Exchange Act Release No. 38715 (June 4, 1997), 62 FR 31854 (June 11, 
1997) (``Notice of Proposed Rule Change''). No comments were received 
on the proposal. For the reasons discussed below, the Commission is 
approving the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
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I. Background

    On August 8, 1996, the Commission used an Order pursuant to Section 
19(h)(1) of the Exchange Act (``SEC Order''), making certain findings 
about the NASD and conduct on the Nasdaq Market, and imposing remedial 
sanctions.\2\ Among other findings, the Commission determined that 
certain activities of Nasdaq market makers had directly and indirectly 
impeded price competition on the Nasdaq market. In addition, the 
Commission determined that a number of Nasdaq market makers had 
coordinated quotations, trades and trade reports with other Nasdaq 
market makers for the purpose of advancing or protecting the market 
maker's proprietary trading interests. Based on the Commission's 
specific findings of certain anti-competitive behavior of Nasdaq market 
makers in the Nasdaq Stock Market, the NASD agreed to certain 
undertakings. In particular, Undertaking 11 requires the NASD ``[t]o 
propose a rule or rule interpretation for Commission approval which 
expressly makes unlawful the coordination by or among market makers of 
their quotes, trade and trade reports, and which prohibits retribution 
or retaliatory conduct for competitive actions of another market maker 
or other market participant.'' Undertaking 12 requires the NASD ``[t]o 
enforce Article III, Section 1 of the NASD Rules of Fair Practice 
(currently NASD Conduct Rule 2110), with a view to enhancing market 
maker competitiveness by: (a) acting to eliminate anti-competitive or 
unlawful enforced or maintained industry pricing conventions, and to 
discipline market makers who harass other market makers for narrowing 
the display quotations in the Nasdaq market, trading not more than the 
quantities of securities they are required to trade under the NASD's 
rules, or otherwise engaging in competitive conduct; (b) acting to 
eliminate coordination between or among market makers or quotes, trades 
and trade reports; and (c) acting to eliminate concert discrimination 
and concerted refusals to deal by market makers.''
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    \2\ See Securities Exchange Act Release No. 37538 (August 8, 
1996), SEC's Order Instituting Public Proceedings Pursuant to 
Section 19(h)(1) of the Securities Exchange Act of 1934, Making 
Findings and Imposing Remedial Sanctions. See also Report Pursuant 
to Section 21(a) of the Securities Exchange Act of 1934 Regarding 
the NASD, the Nasdaq Market and Nasdaq Market Makers, Securities 
Exchange Act Release No. 37542 (August 8, 1996) (``21(a) Report''), 
and Appendix thereto.
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    To comply with both Undertaking 11 and 12, the NASD proposed a rule 
interpretation of NASD Conduct Rule 2110 (formerly Article III, Section 
1 of the NASD's Rules of Fair Practice). The NASD noted that the 
conduct described in the interpretation is fundamentally inconsistent 
with the obligations of member firms to their customers and is inimical 
to the public interest in fair and efficient securities makets. The 
NASD, therefore, believes that the conduct described in the 
interpretation is already prohibited by NASD Rule 2110, which requires 
members to observe high standards of commercial honor and just and 
equitable principles of trade. The NASD, however, proposed the 
interpretation to address specifically certain of the findings 
contained in the SEC Order and to emphasize the importance placed by 
the NASD on the enforcement of the prohibition.

II. Description

    This rule interpretation defines as conduct inconsistent with just 
and equitable principles of trade certain conduct by and among members 
firms, and sets forth specific exclusions (numbered 1 through 7) which 
identify bona fide commercial activities by and among member firms. The 
conduct excluded, however, must otherwise be in compliance with all 
other applicable law. The interpretation identifies three general areas 
of conduct that are prohibited. The first part of the interpretation 
prohibits coordinating activities by member firms involving quotations, 
prices, trades and trade reporting. Conduct covered by this prohibition 
would include, but not be limited to, agreements to report trades late 
or inaccurately, or to agree to maintain certain minimum spreads or 
quote sizes above the legal minimums. In addition, the interpretation 
does not prohibit a market maker from contacting another market maker 
in a locked or crossed market situation to attempt to unlock or uncross 
the market. Moreover, the overall prohibited behavior outlined in the 
interpretation applies to primary market as well as secondary trading 
activities.
    The second part of the interpretation prohibits ``directing or 
requesting'' another member to alter prices or quotations. This would 
include, among other things, situations in which a market maker 
requests another market maker to move or adjust its displayed 
quotations to accommodate the requesting market maker. This prohibition 
does not extend to activity, identified in exclusion number 7, that 
permits a member to route customer orders to market makers for handling 
or a correspondent firm of the member to ask a market maker to 
represent an order in the market maker's quote.
    The third part of the interpretation relates to conduct that 
threatens, harasses, coerces, intimidates or otherwise attempts 
improperly to influence another member in a manner that interferes with 
or impedes the forces of competition among member firms in the Nasdaq 
Stock Market. This part of the prohibition is intended to reach conduct 
that goes beyond legitimate bargaining among member firms. This conduct 
may include, among other things, refusals to trade, improper systems 
messages, trading in odd lots, and other conduct intended to influence 
a member to engage in improper market activity or refrain from 
legitimate market activity. However, as identified in exclusion number 
6, this language would not prohibit a member from taking unilateral 
action in selecting with whom to trade and under what terms, based on 
legitimate market and commercial criteria (e.g., credit exposure).

III. Discussion

    The Exchange Act contemplates that the U.S. securities markets 
shall be ``free and open'' \3\ with safeguards ``to protect investors 
and the public interest.'' \4\ The Commission stated in the 21(a) 
Report that vigorous price competition is a hallmark of a free and open 
market and

[[Page 39565]]

is critically important to the efficient functioning and regulation of 
a dispersed dealer market and any significant hindrance to price 
competition impedes the free and open market prescribed by the Exchange 
Act.
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    \3\ 15 U.S.C. 78f(b)(5).
    \4\ 15 U.S.C. 78o-3(b)(6).
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    The Commission believes that the NASD's proposed interpretation 
expressly reaffirms that anti-competitive and intimidation and 
harassment of other members is prohibited. The Commission noted in the 
21(a) Report, and the NASD's interpretation reiterates, that such 
conduct is inconsistent with just and equitable principles of trade. 
The Interpretation clearly delineates the type of behavior that is 
antithetical to a free and open market while preserving the ability of 
members to engage in legitimate market activity. Although the behavior 
prohibited under the interpretation has continually been violative of 
NASD Rule 2110 and the federal securities laws, the Commission believes 
that the interpretation will clearly highlight for members that such 
conduct is a serious violation of NASD Rules.
    The Commission believes that the proposed rule change is consistent 
with the Exchange Act and the rules and regulations thereunder 
applicable to the NASD, in particular, Sections 15A(b)(6) and 15 
A(b)(11).5 The Commission finds that the proposed 
interpretation specifically prohibiting anti-competitive conduct of 
member broker/dealers and persons associated with member broker/dealers 
is in furtherance of the requirements of Section 15A(b)(6) that the 
Association's rules be designed to promote just and equitable 
principles of trade, prevent fraudulent and manipulative acts and 
practices, and to protect investors and the public interest. In 
addition, the Commission funds that the proposed rule change is 
consistent with Section 15A(b)(11) in that the interpretation is 
designed to produce fair and informative quotations, to prevent 
fictitious or misleading quotations, and to promote orderly procedures 
for collecting, distributing, and publishing quotations.
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    \5\ 15 U.S.C. 78o-3.
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IV. Conclusion

    For the foregoing reasons, the Commission finds that the proposed 
rule change is consistent with the Exchange Act and the rules and 
regulations thereunder applicable to the NASD and, in particular, 
Sections 15A(b)(6) and 15A(b)(11).6
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    \6\ In approving this rule proposal, the Commission notes that 
it has also considered the proposed rule's impact on efficiency, 
competition, and capital formation. 15 U.S.C. 78c(f).
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    It Is Therefore Ordered, pursuant to section 19(b)(2) of the 
Exchange Act,7 that the proposed rule change (SR-NASD-97-37) 
be, and hereby is, approved.

    \7\ 15 U.S.C. 78s(b)(2).
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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.8
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    \8\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 97-19346 Filed 7-22-97; 8:45 am]
BILLING CODE 8010-01-M