[Federal Register Volume 64, Number 125 (Wednesday, June 30, 1999)]
[Notices]
[Pages 35232-35233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16643]



[[Page 35232]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-41553; File No. SR-PHLX-98-23]


Self-Regulatory Organizations: Philadelphia Stock Exchange, Inc.; 
Order Granting Approval to Proposed Rule Change and Amendment Nos. 1, 2 
and 4 Thereto and Notice of Filing and Order Granting Accelerated 
Approval to Amendment No. 3 to the Proposed Rule Change Relating to By-
Law Article XI, Sec. 11-1--Appeals; Article XII, Sec. 12-4--
Application; and Article XV, Sec. 15-3--Disposition of Proceeds of Sale 
of Membership

June 23, 1999.

I. Introduction

    On August 18, 1998, the Philadelphia Stock Exchange, Inc. (``PHLX'' 
or ``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to permit the Board of Governors (``Board'') to 
review the validity and amount of claims asserted against a membership 
and to hear appeals from adverse Admissions Committee decisions.\3\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ The proposal was originally submitted on June 24, 1998, 
however, the PHLX failed to include the circulars as required by 
Form 19b-4. See Form 19b-4, 3 Fed. Sec. L. (CCH) para. 33,351. The 
Exchange subsequently submitted Amendment No. 1 that included the 
circulars and made technical changes to the proposed rule language. 
Letter from Murray L. Ross, Vice President and Secretary, PHLX, to 
Michael Walinskas, Deputy Associate Director, Division of Market 
Regulation (``Division''), Commission, dated August 17, 1998 
(``Amendment No. 1''). In addition, the PHLX agreed to additional 
technical changes to accurately reflect the differences between the 
proposed rule language and the PHLX's current rule language. 
Telephone conversation between Murray L. Ross, Vice President and 
Secretary, PHLX and Karl Varner, Attorney, Division, Commission, on 
September 1, 1998.
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    On September 16, 1998, the proposed rule change, which included 
Amendment No. 1, was published for comment in the Federal Register.\4\ 
No comments were received on the proposal. The PHLX submitted Amendment 
No. 2 to the proposed rule change on October 22, 1998,\5\ Amendment No. 
3 on May 25, 1999,\6\ and Amendment No. 4 on June 22, 1999.\7\ This 
notice and order approves the proposed rule change, as amended, and 
solicits comments from interested persons on Amendment No. 3.
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    \4\ Securities and Exchange Act Release No. 40420 (Sept. 9, 
1998), 63 FR 49627.
    \5\ In Amendment No. 2, the Exchange agreed to additional 
technical changes to accurately reflect the differences between the 
proposed rule language and the PHLX's current rule language and to 
grant an extension of time for Commission action on the proposed 
rule change. Letters from Murray L. Ross, Vice President and 
Secretary, PHLX, to Karl Varner, Special Counsel, Division, 
Commission, dated October 21, 1998 (collectively ``Amendment No. 
2''). The Act does not require notice and comment for technical 
amendments.
    \6\ In Amendment No. 3, the Exchange clarified that an advisory 
committee of three governors, of whom at least two will be non-
industry governors, will examine the validity of claims asserted 
against the membership and give an advisory opinion to the Board of 
Governors. Letter from Murray L. Ross, Vice President and Secretary, 
PHLX, to Karl Varner, Special Counsel, Division, Commission, dated 
May 24, 1999 (``Amendment No. 3'').
    \7\ In Amendment No. 4, the Exchange agreed to additional 
technical changes to accurately reflect the differences between the 
proposed rule language and the PHLX's current rule language. Letter 
from Murray L. Ross, Vice President and Secretary, PHLX, to Karl 
Varner, Special Counsel, Division, Commission, dated June 21, 1999 
(``Amendment No. 4''). The Act does not require notice and comment 
for technical amendments.
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II. Description of the Proposal

    The PHLX has proposed a By-Law amendment to Article XV, Sec. 15-3, 
Disposition of Proceeds of Sale of Membership, to permit the Board, 
rather than the Arbitration Committee or a panel thereof, to determine 
the validity and amount of claims asserted against a membership 
pursuant to the specified order of claims enumerated in Section 15-3 of 
the By-Laws. This proposed By-Law amendment, as recommended by the 
Arbitration and Executive Committees of the Board, seeks to conform the 
By-Law with procedures adopted by other registered national securities 
exchanges \8\ and provides for Board oversight of seat proceeds 
disposition.
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    \8\ See Chicago Board Options Exchange (``CBOE'') Rule 3.15 and 
New York Stock Exchange, Inc. (``NYSE''), Constitution, Article II, 
Sec. 11.
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    The Board will make its decision after an advisory committee 
consisting of three governors, of whom at least two are non-industry 
governors, examines the claims asserted against the membership and 
gives an advisory opinion to the Board.\9\ The advisory committee will 
examine the validity of claims based on the written submission of the 
claimants and respondents.\10\ Claimants and respondents may, however, 
request an oral argument before the advisory committee.\11\ The Board 
will determine the payment of claims based upon the written record 
before the advisory committee.\12\
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    \9\ See Amendment No. 3, Supra Note 6.
    \10\ Id.
    \11\ Id.
    \12\ Id.
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    Additionally, the Exchange proposes to amend Article XI, Sec. 11-1, 
Appeals, and Article XII, Sec. 12-4, Application, to provide that an 
adverse Admissions Committee decision be appealed to the Board. These 
proposed amendments seek to conform the By-Laws with procedures adopted 
by other exchanges wherein appeals are taken to the Board or heard by a 
panel of the Board subject to ratification, such as CBOE Rule 19.5 and 
American Stock Exchange LLC ``AMEX''), Constitution, Article IV, 
Sec. 1(g). Thus, the proposal creates a right of appeal from Admissions 
Committee decisions.

III. Discussion

    After careful review, the Commission finds that the proposed rule 
change, as amended, is consistent with the requirements of the Act and 
the rules and regulations thereunder applicable to a national 
securities exchange.\13\ Specifically, the Commission finds that the 
proposal is consistent with the requirements of Section 6(b)(5) of the 
Act,\14\ because it removes impediments to and perfects the mechanism 
of a free and open market and a national market system protects 
investors and the public interest, and is not designed to permit unfair 
discrimination between customers, issuers, brokers or dealers. Because 
the Board is vested with all of the powers necessary for the management 
of the business and affairs of the Exchange and the regulation of the 
business conduct of members of the Exchange,\15\ the Commission 
believes that the Board, rather than the Arbitration Committee or a 
panel thereof, is the most appropriate venue for making decisions 
regarding the disposition of seat proceeds. In addition, the Commission 
notes that the Board's oversight of the disposition of proceeds is 
similar to the rules adopted by certain other self-regulatory 
organizations (``SROs'').\16\
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    \13\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
    \14\ 15 U.S.C. 78f(b)(5).
    \15\ PHLX Article IV, Sec. 4-4(a).
    \16\ See CBOE Rule 3.15 and NYSE, Constitution, Article II, Sec. 
11.
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    The Commission also finds that the proposal is consistent with the 
requirements of Section 6(b)(7) 17 in that the Board's 
oversight of Admissions Committee decisions provides a fair procedure 
for appealing decisions denying membership to any person seeking 
membership therein. By providing the opportunity to appeal adverse 
decisions, the proposal ensures that applicants have an additional 
opportunity to be heard. The

[[Page 35233]]

Commission also notes that the Board's oversight of Admissions 
Committee decisions is similar to the rules adopted by certain other 
SROs.\18\
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    \17\ 15 U.S.C. 78f(b)(7).
    \18\ See CBOE Rule 19.5 and AMEX, Constitution, Article IV, 
Sec. 1(g).
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    The Commission finds Amendment No. 3 consistent with the 
requirements of the Act and the rules and regulations thereunder 
applicable to a national securities exchange. Specifically, the 
Commission finds that the proposal is consistent with the requirements 
of Section 6(b)(5) of the Act, because it removes impediments to and 
perfects the mechanism of a free and open market and a national market 
system. Amendment No. 3 ensures that the advisory committee reviewing 
the validity of claims and giving an advisory opinion to the Board is 
balanced with the appointment of two non-industry governors to the 
committee.
    The Commission finds good cause to approve Amendment No. 3 to the 
proposed rule change prior to the thirtieth day after the date of 
publication of notice of filing of the amendment in the Federal 
Register. Specifically, Amendment No. 3, merely clarifies the 
administrative procedures for reviewing the validity of claims asserted 
against the membership, thus, adding greater transparency to the review 
process. Accordingly, the Commission believes that there is good cause, 
consistent with Sections 6(b)(5) and 19(b) of the Act,\19\ to approve 
Amendment No. 3 to the proposal on an accelerated basis.
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    \19\ 15 U.S.C. 78(f)(5) and 78s(b).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning Amendment No. 3, including whether Amendment No. 3 
is consistent with Act. Persons making written submissions should file 
six copies thereof with the Secretary, Securities and Exchange 
Commission, 450 Fifth Street, NW, Washington, D.C. 20549-0609. 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 at the 
Commission's Public Reference Room. Copies of such filing will also be 
available for inspection and copying at the principal office of the 
exchange. All submissions should refer to File No. SR-PHLX-98-23 and 
should be submitted by July 21, 1999.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\20\ that the proposed rule change (SR-PHLX-98-23), as amended, is 
approved.

    \20\ 15 U.S.C. 78s(b)(2).
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    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3 (a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-16643 Filed 6-29-99; 8:45 am]
BILLING CODE 8010-01-M