Is widespread relief on so-called 31(a) transaction fees finally imminent? At press time, Sen. Lauch Faircloth (R-N.C.) was preparing to file a companion bill to the House Savings and Investment Act of 1998, a bill H.R. 4120 cosponsored by Rep. Gerald Solomon (R-N.Y.) and Rep. Robert Menendez (D-N.J.) that seeks to cap 31(a) fees.

Faircloth, who chairs the Senate Banking, Housing and Urban Affairs Subcommittee on Financial Institutions and Regulatory Relief, planned to file his bill by Labor Day, Jim Hyland, his legislative director, told Traders Magazine.

Buoyed by the early-August decision of more than 30 congressmen including three top Republican leaders and several liberal Democrats to sign on as co-sponsors, House Rules Committee Chairman Solomon said his bill to provide relief from the Nasdaq transaction fees will likely gain the approval of the House this month.

Cap Fees

The House bill would cap annual collections of transaction fees assessed on sell trades and registrations of Nasdaq and exchange-listed stocks. A similar cap would apply to fees collected on off-exchange trades of last-reported securities. For example, in fiscal year 1999, fee collections on trades and registrations would likely be limited to $150 million, and fees for off-exchange trades would be held to $120 million.

According to Solomon, in fiscal year 1997, total Securities and Exchange Commission collections from all sources grew by 324 percent of its appropriated budget authority, and 382 percent of its requested budget.

Solomon is convinced he has avoided what could now be the one major obstacle to the bill compliance with congressional balanced-budget rules. That means fee reductions must be accompanied by offsetting spending cuts or revenue increases.

"The bill was designed not to require a revenue offset," said an industry source familiar with Solomon's plans.

At press time, Solomon's staff was putting the finishing touches on a request to the Congressional Budget Office for budget scoring of the bill.

The Solomon and Menendez bill has other valuable allies.

Frank Zarb, chairman and chief executive of the National Association of Securities Dealers, has declared his full support for the Solomon bill. He said the legislation would offer more flexibility than current law, "by ensuring that large increases in the dollar volume of trading does not trigger larger than intended collection."

Much to the delight of Solomon, and certainly noticed by Faircloth, Washington's anti-tax crowd and many of its state affiliates have rallied behind the bill. The National Taxpayers Union declared its support for H.R. 4120 hard on the heels of support from Americans for Tax Reform.

Zarb picked up the taxation theme in a recent letter of support for the bill. He noted that the original intent of the fees was to recoup the cost of SEC regulation, and that "the substantial excess being collected operates as a tax on investors and market professionals."

The tragic bombings of the U.S. embassies in Kenya and Tanzania for a short time threatened Rep. Gerald Solomon's (R-N.Y.) carefully crafted plan to have his legislation scored by the Congressional Budget Office as revenue neutral.

As a result of the bombing tragedies, some $1 billion is expected to be appropriated this month to upgrade security at American diplomatic facilities around the globe.

If the money is derived from the customary source, the Senate and House Commerce, Justice, State and Judiciary Appropriations Committee the same trough that supplies the funds for the Securities and Exchange Commission budget offsets would be required. The chances for reducing 31(a) transaction and registration fees would then be dismal.

However, after a brief period of uncertainty, the Clinton administration announced it would request an emergency appropriation which falls outside congressional budget rules.

In an interesting aside to the continuing debate about the Short Order Execution System, the National Association of Securities Dealers has made it clear where it wants SOES terminals placed strictly beyond the physical touch of the public customer.

Rules currently contain a provision that requires SOES order-entry firms to maintain the physical security of Nasdaq equipment located on the premises of the broker dealers to prevent unauthorized entry of information into SOES. According to an NASD Notice to Members last month, the NASD has, to date, interpreted this provision as barring firms from providing direct electronic entry to public customers.

ART-

Jones & Associates, a Los Angeles-based agency-trading firm, opened a new office in Dallas. Rick Andrews, a former head trader at Luther King Asset Management in nearby Fort Worth, will run the office and head its trading desk. Tim O'Neil, previously a trader at Jones & Associates in Los Angeles, will join Andrews on the new desk.

Jones & Associates has 75 employees and offices in Aspen, Boston, Dallas, Los Angeles, New York and Orlando. The firm plans to hire up to three more traders for the Dallas desk this year.

Frederick Graboyes joined BNY ESI & Co. in New York as senior vice president of product development for trading. BNY ESI & Co. is a separate brokerage subsidiary of The Bank of New York. Graboyes will be responsible for integrating the firm's trading systems with new management and compliance software. He was previously head trader at INTECH, a Palm Beach Gardens, Fla. money-management firm.

nBryan Di Miceli was hired as director of equity research at Mildwood Securities, a New York brokerage firm. Di Miceli was previously director of research at Access Securities in Stamford, and prior to that head of equity trading at Royal Insurance in Stamford.

nWarburg Dillon Read named Ernest Pittarelli the head of day-to-day operations for North America and South America. Pittarelli was previously managing director of operations at Union Bank of Switzerland in London.

Stamford-based Warburg Dillon Read is the investment-banking arm of UBS AG. Warburg Dillon Read was previously a subsidiary of Swiss Bank Corp. Swiss Bank Corp. agreed to merge with Union Bank of Switzerland in late 1997, and changed its name to UBS AG.

Robert S. Greenbaum was appointed general counsel of the Philadelphia Stock Exchange (PHLX). Greenbaum will be responsible for coordinating all legal matters at the exchange. With the proposed PHLX merger with the American Stock Exchange and the National Association of Securities Dealers, the general counsel will also assist in the legal integration of the exchanges. Greenbaum is a former partner in the New York-based law firm of Reid & Priest.

The PHLX also named Ken Meaden vice president of market surveillance. He will be responsible for all market-surveillance operations at the exchange. Meaden served most recently as a market-surveillance consultant at the PHLX.

The Pacific Exchange (PCX) announced three staff changes.

David E. Rosedahl joined the PCX as chief regulatory officer, responsible for all regulatory, compliance and market-surveillance functions at the exchange. He was previously general counsel and managing director at Piper Jaffray in Minneapolis. Kim P. Williams was promoted to chief financial officer. She will continue to oversee the financial-management, analysis and accounting departments at the PCX. And David C. Diamond was promoted from director of finance at the exchange to vice president of finance.

Rosedahl and Williams will continue to report to Warren Langley, PCX president and chief operating officer. Diamond will report to Williams.

The Security Traders Association promoted Andrew N. Grass Jr. and Lisa Singer-Carroll. Grass, a ten-year employee of the STA, was named senior vice president and general counsel. Singer-Carroll was appointed vice president and director of administration. Both Grass and Singer-Carroll will continue to report to John Tognino, STA president.

Traders Magazine's advertising director Paul J. Sasseville has been promoted to associate publisher of the magazine. He reports to Kenneth W. Heath, group publisher for Traders Magazine and several sister publications of parent Securities Data Publishing.

Sasseville assumed the advertising director post 12 months ago after Heath was elevated from publisher of Traders Magazine to group publisher. Joining Traders Magazine in 1993 as an advertising representative, Sasseville was promoted to advertising manager in 1996, and to advertising director 12 months later.

"His contribution to Traders Magazine has been substantial," Heath said. "His creative energy and hard work have been paramount to the magazine's success."

Nasdaq's latest weapon for upending the New York Stock Exchange does not directly involve more listings. The Big Board's arch rival has a much different weapon: the largest sign and a swaggering marketing and television complex in New York's revitalized Times Square.

While the Big Board remains the world's preeminent stock market, dwarfing Nasdaq in prestige and trading volume, the guns are out as Nasdaq aims to turn the tables.

Nasdaq has approved an agreement to lease 65,000 square feet of floor space in the new Conde Nast skyscraper at Four Times Square on 43rd Street and Broadway in midtown Manhattan. The exchange will move its current operations at 33 Whitehall Street in downtown Manhattan to the new location.

The centerpiece of the Times Square presence will be an enormous sign costing an estimated $15 million that will rise from the third story of the building to a height of 125 feet. The multimedia display will include video screens, billboards and a zipper circling the building.

Nasdaq, however, will have competition, of sorts. Times Square currently boasts a zipper run by Dow Jones & Co. directly opposite from Nasdaq's planned location. A second zipper is planned nearby by London's Reuters Holdings, and several blocks north a zipper snakes along the Morgan Stanley, Dean Witter, Discover & Co. building on Broadway.

But Nasdaq would be the first modern stock exchange running a zipper and occupying so much Times Square real estate. The space will house a revamped Nasdaq MarketSite, the visual display center currently located at 33 Whitehall Street, along with a broadcast center strung with television monitors visible from the street behind a semi-circular, two-story glass wall.

It is possible, say people familiar with the plan, that the National Association of Securities Dealers, the parent of Nasdaq, will eventually relocate its headquarters and executive staff from Washington to Times Square. Of the NASD's 3,100 staffers, Nasdaq employs nearly 400 in New York, and another 135 in Washington.

"It is a wonderful marriage," Grechen Dykstra, president of the Times Square Business Improvement District, told Traders Magazine. "We're thrilled Nasdaq is coming to Times Square."

A Nasdaq official said the new center will provide Nasdaq the sort of visual wherewithal to compete for valuable television time with the Big Board, whose opening and closing bells are a staple of business-news coverage.

A spokeswoman for the Big Board said the exchange had "no comment whatsoever on [Nasdaq's] efforts."

Under chariman and chief executive Frank Zarb's leadership, the NASD has wasted no time in improving its reputation in the wake of a price-fixing scandal on Nasdaq. The fallout from that scandal hurt confidence in the dealer market.

But with the Big Board having been hit with its own trading scandal recently, involving alleged front-running by brokers, the worst is probably behind Nasdaq. While Nasdaq has seen a flight of companies move to the Big Board, Zarb is determined to reverse the flight.

Part of his strategic thinking involves the acquisition of the American Stock Exchange. Another is an emphasis on projecting the intrinsic strength of the Nasdaq dealer market, with its modern network of interconnected market makers.

Moving to Times Square may be one of the savviest decisions of Zarb's career, people familiar with the plan say. "It will showcase a very modern exchange at the crossroads of global capitalism," one Nasdaq trader said.

The National Association of Securities Dealers is expected to submit a separate plan for a revamped limit-order book, the centerpiece of the original proposal for Nasdaq's order-delivery and execution system, or NODES.

The new version of the limit-order book will likely be accompanied by a trade-through rule, according to a member of Nasdaq's Quality of Markets Committee, who declined to be named.

The rule would ensure that superior bids and offers sent to the book receive an execution whenever inferior-priced orders in the same stocks are executed outside of the book.

Trade-through rules are a standard feature of limit-order books run by the New York Stock Exchange and the regional stock exchanges.

An NASD spokesman said the agency is still considering splitting the proposal, but declined to elaborate.

"A limit-order book hinges on price and time priority," the Nasdaq committee member said. "That's why you need a trade-through rule. It would create a central place and protect the customer."

Centralize

Nevertheless, the Nasdaq committee member warned that a trade-through rule would centralize the market.

"That may be why the NASD initially resisted it," the Nasdaq committee member said. "But you really can't have a limit-order book without a trade-through rule."

The member added that, "overall, the plan would auctionize the dealer market by centralizing quotes."

STA Letter

In a comment letter, the Security Traders Association urged the NASD to adopt the trade-through rule under NASD consideration.

Separately, the STA said the NODES proposal raised the issue of credit reliability.

"Where is the line of responsibility for assuring proper credit, particularly if a customer is trading anonymously through a broker dealer?" the STA asked in the comment letter filed with the Securities and Exchange Commission on June 11.

"Should any broker dealer have the ability to enter proprietary orders for 999,000 shares? Is a firm responsible for customer transactions effected outside the knowledge of the respective broker dealer?" the letter asked.

Time

The STA also raised questions about the time parameters of NODES, and argued that the proposed three-minute close rule would be disadvantageous for the market.

"The current rule allowing a five-minute window, with a 20-day suspension for market making for failure to update, has proved sufficient," the STA said.

Both the 17-second and the 32-second delivery parameters are too confusing, and the 32-second parameter is too long, the STA said, which proposed a new time parameter of 22 seconds.

Have the order handling rules gone too far? Nasdaq President Alfred Berkeley thinks that's a question worth asking.

Berkeley raised the question in reaction to a study by two academics that shows spreads have narrowed substantially on Nasdaq since the order handling rules were implemented last year.

William Christie and Paul Shultz, whose 1994 study helped trigger the Nasdaq price-fixing investigations, report in a new study to be published early next year that spreads have narrowed by 30 percent since the rules went into effect.

The new study found that spreads narrowed the most among stocks that previously had the widest spreads. Among them, Nature's Sunshine Products has seen its average spread narrow 65 percent since the rules were triggered. The most dramatic narrowing was noted among smaller trades: 34 percent on trades of 1,000 shares or less, compared with 19 percent on trades of 10,000 shares or more.

Berkeley responded cautiously to the study, which independently confirms similar findings made last year by Nasdaq. He said the narrower spreads have reduced trading profits, causing traders to drop market making in less profitable issues.

"Have we swung the pendulum so far to the investor that the business may not be as attractive to traders in a downturn?," Berkeley was quoted in a story by Bloomberg. "That's the gut issue."

The New York Stock Exchange is upping the ante in its effort to foil Jersey City-based OptiMark Technologies' plan to go live this fall with its OptiMark Trading System.

The Big Board claims parts of the OptiMark plan contravene core principals of the National Market System (NMS).

At issue are amendments to the Intermarket Trading System (ITS), proposed in July by the Securities and Exchange Commission, that would allow OptiMark to operate as a facility of the Pacific Exchange (PCX).

In a comment letter, the Big Board said several concerns must still be resolved.

The NYSE questions how the PCX and OptiMark platform will "reasonably probe" the PCX for unmatched orders before submitting the orders to the ITS.

In addition, the Big Board asks if a ceiling should be placed over PCX and OptiMark-generated orders, given that the planned platform, if unchecked, could become a system for routing orders to the Big Board and other exchanges.

The initial-public-offering market appears to be a victim of its own success. An excess supply of stocks, combined with the market's recent sluggish performance, has hurt potentially lucrative IPOs, making them tougher sells.

The pain caused by dramatic market dips and a slowdown in the IPO market is not confined to individual investors. Traders on both the sellside and the buyside know of the agony.

"It makes our life more demanding," admitted Raymond Murray, director of trading at Minneapolis-based Investment Advisors.

For one thing, uncertain expectations can cause portfolio managers to suddenly drop out of a pending IPO, and leave traders feeling a little flabbergasted. (Conversely, less competition over IPOs can enhance some institutional firm's allocation prospects.)

For another thing, some traders said that money flowing into mutual funds is not keeping pace with the flood of new issues, thus hurting the trading performance of seasoned stocks competiting for a proportionately smaller pool of capital.

Moreover, the tremendous supply of new offerings hitting the market over the past three years has partly contributed to the relative underperformance of small-cap stocks, market sources noted.

"There's enough pain for investors, and they're not really interested in adding new stocks to their portfolios," said Tom Dudenhoefer, head of Nasdaq trading at Raymond James & Associates in St. Petersburg. "The general response we're hearing is, I don't need to add a new name in that industry when I already have four other companies in the same sector that are underperforming.'"

"There's been a real liquidity crunch in the stock market in general," added Bruce Lupatkin, director of research at Hambrecht & Quist in San Francisco. "The supply of large-cap names doesn't grow nearly as fast as the supply of small-cap names."

Institutions

Institutional clients, comprising the bulk of an offering's book and the majority of first-day trading activity, have largely vacated the IPO market to concentrate on their existing holdings, according to trading officials.

"IPOs are an interesting anomally to the overall market," Murray said. "With an IPO, you have the chance to safely land on the beach when you want. Lately, underwriters have been saying to themselves, I'd like to land on the beach when their is a little less gunfire.'"

In the midst of a plummeting Dow Jones Industrial Average, just 16 issuers were able to bring deals to market in August. In contrast, underwriters were able to place a total of 47 IPOs in July.

With the pace of IPO issuance slowing and many underwriters forced to severely discount deals due to market conditions, first-day trading volumes have soared on many recent deals.

"IPOs generally price at about a 20-percent discount to publicly-traded comparables," noted the head of one over-the-counter trading desk, who requested anonymity. "Ideally, an underwriter would like to see very little volume in the initial day of trading."

With the market's recent volatility, however, such discounting has become accelerated, leading to higher-than-normal first-day trading activity, traders said.

Oversupply

Since the beginning of 1997 through the end of the second quarter 1998, there were 2,082 IPOs and secondary offerings, tapping investors for $298.3 billion, according to Securities Data Co. Over the same period, investors poured $372.9 billion in fresh capital into mutual funds, according to Washington-based Investment Company Institute.

During the second quarter, however, new-equities issuance totaled $71.1 billion, outstripping net sales into mutual funds by $2.28 billion.

"Liquidity is certainly a problem," said the head of a major New York trading desk, who declined to elaborate for fear of antagonizing his firm's syndicate department.

Although IPO issuance could once again reach historic heights in 1998 trailing perhaps only 1996, when 872 issuers raised $49.89 billion a growing list of companies are seeking shelter from increasingly hostile public markets. They are either withdrawing proposed IPOs or opting toward the inviting arms of private equity groups or willing acquirers.

"There is no question that the IPO market has cooled dramatically since the red-hot peak of 1996," said Paul Deninger, chairman and chief executive of Broadview, a New York-based mergers-and-acquisition investment bank.

Because fund managers have consistently underperformed the broader market indices over the past few years, most have shied away from more volatile IPOs, said Claudia Mott, who tracks the small-cap and mid-cap markets for New York-based Prudential Securities.

During difficult market conditions, the ability of investment banks to underwrite potential new offerings becomes further exasperated as individual investors pull money out of smaller mutual funds.

"It's like putting lighter fluid on a gas grill," noted Mott, alluding to the need of fund managers to liquidate holdings to meet the investor redemptions.

Over the four-week period ending Aug. 5, 1998, investors pulled a total of $662.4 million out of small-cap growth funds, according to AMG Data Services in Arcadia, Calif.

Small-Cap Earnings

Some of the market's hostility toward small-cap stocks is attributed to recent earnings performances, which have only begun to feel the pinch of the Asian financial crisis, market observers noted.

"Since the beginning of the year, there has been selected underperformance within the small-cap area," Lupatkin said. "In June, earnings performances for companies in our universe weren't improving, they were decelerating."

Year-over-year, second-quarter earnings for small-cap companies climbed about 2.2 percent, compared to a 2.8-percent increase for Standard & Poor's 500 companies, according to Chuck Hill, director of research at First Call in Boston.

While second-quarter earnings growth between small-cap and large-cap companies appears to be comparable, the disparity is highlighted by their respective sequential growth. According to Hill, first quarter, small-cap earnings climbed 8.1 percent, versus 3.8 percent for S&P 500 companies.

Tough Sell

The net result of all the new supply and the slumping earnings performances: Investors are balking at many new offerings. During the month of August alone, about 20 potential deals were postponed due to "market conditions."

Some portfolios managers, however, are quick to point out that when IPO issuance has stumbled in the past, such discounting has created a healthier environment for long-term capital appreciation.

"Our philosophy is about trying to remain in stock selection," said Kathleen Smith, a manager of the IPO Plus Aftermarket Fund, a mutual fund that invests in recently-issued stocks. "We believe that there are still some attractive opportunities our there."

Unlike other funds, the IPO Plus Aftermarket Fund has remained an active purchaser of new offerings, keeping just ten percent of its assets in cash.

Investment Advisors' Murray added that his firm is still active in the IPO market, and that his portfolio managers are assessing each issue on an individual basis.

Stephen Lacey is associate editor of The IPO Reporter, a sister publication of Traders Magazine.

New Issues Squeeze Capital Supply

(Yearly Quarters)

1997

Q1 Q2 Q3 Q4

IPOs and Secondary Offerings $29,147.3 $40,907.7 $40,401.5 $82,846.4 $33,848.9 $71,111.6

Net Mututal-Fund Sales $59,559.8 $53,081.7 $63,547.7 $64,101.9 $63,746.1 $68,832.5

Source: Securities Data Publishing. Note: Dollar figures are in millions.

cont'd

1998

Q1 Q2

$33,848.9 $71,111.6

$63,746.1 $68,832.5

Source: Securities Data Publishing. Note: Dollar figures are in millions.

<TBL>

The only thing certain about the duty of best execution is what the regulatory arm of the National Association of Securities Dealers will ask broker dealers: How do they plan to supervise the compliance effort?

Despite the continued regulatory chorus of vague principles and promises of future guidance, NASD Regulation expects firms to have a supervisory system in place to assure that customer orders are receiving quality executions.

Given that reality, head traders, compliance officers and information-technology personnel need to work together to ensure that the examiner, when he strikes, will be presented with evidence that your firm is addressing best-execution issues.

While there is no one "right" way to surveill for best execution, the cornerstone of any firm's supervisory system should be a set of written procedures documenting the chosen approach. Such procedures should have four basic elements: who is responsible for each part of your firm's best-execution review; what they do to fulfill their responsibilities; how often their review is conducted; and a record that the review was performed.

In this vein, daily exception reports can be particularly useful. They can be generated on a regular basis, reviewed by a supervisor quickly and efficiently, and initialed and filed away as evidence for regulatory authorities.

Reports that should be considered include lists detailing market orders executed outside the national best bid and offer, or NBBO; limit orders not executed despite an obligation under Manning Rules; and instances of potential front-running.

Drafting procedures, however, is only the start of the process. Thoughtful implementation is essential to avoid a compliance disaster. Worse than having no procedures is having procedures that are not followed. Successful implementation requires a coordinated effort of front-line and backoffice personnel.

Given that so many best-execution issues arise in the trenches, on an ongoing basis, desk heads and supervisors play a vital role. Compliance and other support personnel must provide professionals with the information and education to carry out their best-execution duties in an efficient and effective manner. Manageable exception reports, technology-enhanced follow-ups and assistance with trader education allows managers to properly supervise best execution without jeopardizing other responsibilities.

The labor-intensive nature of monitoring best execution makes technology-based solutions not only an attractive alternative, but the only alternative for high-volume firms. However, if an order-management system operates in a way that raises a best-execution issue for one customer order, it is likely to do so for thousands of others. Accordingly, all aspects of the manner in which a firm's systems process orders should be evaluated to ensure that orders are not auto-disadvantaged.

Once a firm's system has been programmed to fulfill certain best-execution responsibilities, an answer that "the system takes care of it" will not appease an examiner. Murphy's Law dictates that systems don't always work. Procedures must be devised to ensure that systems will be periodically tested to verify continued operation. When a malfunction does occur, back-up plans should be in place to ensure that customers do not suffer as a result. Once again, these procedures should be documented in writing.

The agency desk can easily become the forgotten stepchild of a market-making firm's best-execution supervisory program, with potentially damaging results. Agency order flow can be seen as a means to generate reciprocal business from fellow market makers, an idea that regulators could view as being in direct conflict with best-execution principles. The hackneyed mantra of "we know who gives us good executions" is insufficient in this era of documentation. Firms must be in a position to prove how best execution, rather than business considerations, is the primary factor in the order-routing decision.

This is not to say that firms have no discretion in deciding where to route agency order flow. A literal interpretation of best execution, which would require broker dealers to route all their order flow to the one firm that wins the battle of best-execution statistics, is recognized as impractical and counterproductive.

What is required, however, by an order-routing firm, is an ongoing effort to ensure that agency-desk customers are not materially disadvantaged by order-routing decisions. This requires a periodic (read quarterly) evaluation of the best-execution performance of your executing firm(s) versus competing markets.

As the amount of publicly-available data increases, this task becomes easier as the awkward process of requesting specific order-execution information directly from competitors becomes unnecessary. So long as this data suggests the executing firm is competitive on a best-execution basis, your order-routing determinations are likely to go unchallenged by regulators.

At best, the lack of clarity surrounding the duty of best execution gives firms some much-needed flexibility in developing supervisory solutions. Regardless of particular methods, evidence of an honest, consistent monitoring effort can go a long way towards satisfying an examiner. Absent a supervisory void or a complete lack of regard for best execution, regulatory authorities will be hard-pressed to assert a firm violated a regulatory obligation that has not yet been completely defined.

William O'Brien is an associate in the New York office of Orrick, Herrington & Sutcliffe LLP. He specializes in broker-dealer and securities-market regulation.