[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