Thursday, February 20, 2025

The Compliance Strategy

Nasdaq desks are increasingly burdened by new trading rules and other market developments. Sometimes, traders do not fully understand their obligations.

Remarkably, however, market makers are now hiring independent compliance consultants and using their own compliance staffers, rather than turning to the National Association of Securities Dealers for support.

Yet, less than two years ago, a sense of cooperation existed between the NASD and its member firms. Compliance was often an afterthought. Penalties for trade violations frequently were limited to slaps on the wrist. Alas, the partnership has given way to animosity and mistrust. And one reason for the dramatic change is economics.

Trading profits were once king, and little else mattered. In 1997, with implementation of the Securities and Exchange Commission-approved order handling rules, and the switch to trading stocks in sixteenths, spreads narrowed dramatically. NASD fines and sanctions for market-making activities, which can range from $5,000 to $100,000, were no longer just another cost of doing business.

A second reason is that traders simply lost faith in the NASD. Traders rely on instincts, and their instincts tell them the NASD is too hostile to broker dealers in general, and to market makers in particular.

Throughout 1997, trading desks were repeatedly burdened by the NASD's stepped-up surveillance program that featured unprecedented numbers of examinations, reviews, inquiries and market sweeps.

Oftentimes, firms concurrently fielded as many as three of these reviews. Trading had to be disrupted as head traders retreated to back rooms to investigate possible trade violations, some going back to early 1996. The NASD's findings usually led to accusations of late trade reporting, backing away and quote violations, and concluded with fines and sanctions. It was not uncommon for the NASD to assess a $20,000 fine for two or three violations in a test universe of 40,000 trades.

Above all, traders are practical people. While trading in the present, they are mindful of the future. Looking ahead, market makers realize that regulatory compliance is likely to get worse before it begins to get better. New rules and trade-processing developments have been proposed. Last year's order handling rules continue to be difficult to implement. The regulators have new priorities.

Compounding these issues, market makers have fewer places to turn for help. Lines of communication with the NASD have been effectively cut off. Meanwhile, assistance among trading desks is not practicable because traders on these desks are riled about backing-away charges they have leveled against each other.

To be sure, life at the NASD in 1997 was no bed of roses. The association was severely sanctioned by the SEC in August 1996 for not having adequately controlled the activities of its member firms, that in turn were accused by the SEC of abusive practices to suppress competition and mislead customers. The NASD, through its NASD Regulation (NASDR) subsidiary, fought back. NASDR adopted an aggressive and adversarial posture that featured by-the-rule-book surveillance techniques and zero tolerance for trade-rule violations, intentional or not.

All the while, the NASD busily implemented a restructured governance and organization that was largely influenced by the SEC. Association staff members, many of whom were relatively inexperienced, sorted through the same new trading rules that confronted and confounded traders. Even now, examiners, analysts and attorneys in NASD Market Regulation, District 10 and other district offices are moving en masse to the dealer side, lured by attractive compensations.

Nevertheless, by year-end, NASDR had amassed an extraordinary record of disciplinary actions against its member firms and their associated persons. The regulator's downside may be that while the NASD is winning the battles with its member firms, it is losing the war.

Mindful of these issues, every trading desk should begin to develop an effective compliance strategy. A trader's first step should be to gain a better understanding of trade compliance. What is driving the NASD's efforts? What are the key rules and issues? Who is out there to help? What should broker dealers and the NASD be doing? Think of these exercises as needs analysis for reinforcing trade-rule compliance and for renewing relations between the NASD and its member firms [see sidebar above].

First of two-part series.

Next month: Compliance checklist and other matters.

Howard L. Haykin, CPA, is president of Compliance Solutions, a New York-based specialist in regulatory compliance for broker dealers and investment advisers.

The Challenges Ahead

Trading in 1998 will be driven in large part by the market rules and developments that were introduced in 1997, and the changes that are envisioned for this year. Let us look briefly at several key areas.

Limit Order Display Rule The Securities and Exchange Commission's new Limit Order Display Rule 11Ac1-4, introduced in August 1996 and implemented throughout 1997, was designed to improve the handling of customer orders. In general terms, Nasdaq market makers are required, upon receipt of a customer limit order that is priced equal to or better than its quote, to immediately that is, within 30 seconds display the price and full size of the order in its quote.

Traders may choose instead to execute the order or send it to another broker dealer (a market maker or an electronic communications network) to display the order. Certain block-sized or de-minimus orders, as well as working or not-held orders, need not be displayed. Customers may also request that the market maker not display their limit orders. Compliance is difficult and labor intensive, and National Association of Securities Dealers' examinations have found that traders frequently violate the rules. Traders are encouraged to read Notices to Members 96-65 and 97-49 for guidance.

Best Execution Best-execution obligations apply to all Nasdaq and OTC Bulletin Board securities. While the definition of best execution has been elusive, recent NASD Market Regulation examinations appear to focus on customer transactions executed outside the current inside market (NBBO, or National Best Bid and Offer).

In general, the rules obligate traders to seek out the most advantageous terms for their customers' orders and, in particular, limit orders. Reasonable care or diligence should be in evidence.

In September 1997, the NASD provided interpretive advice on a member's best-execution obligation when handling a customer order, especially in light of the SEC's Order Handling Rules and the NASD's Limit Order Protection (Manning) Rules. While not complete, Notice to Members 97-57 provides valuable guidance.

Amended Quote Rule and Minimum Quote Sizes NASD Market Regulation conducted an August 1997 investigation of market-maker quote displays. They found many rule violations. The SEC's Amended Quote Rule 11Ac1-1 requires market makers to update their quotes to reflect all orders (customer and proprietary) placed in an electronic communications network (ECN), unless the ECN's display is included in the Nasdaq system and there is access to that ECN. Unpreferenced orders broadcast on SelectNet do not qualify for an exemption. Market makers are also required to update quote sizes to at least the minimum SOES tier-size whenever they change quote prices. Traders should read Notice to Members 97-49 (Compliance With SEC Order Handling Rules and Nasdaq Trading Rules).

Next Nasdaq It remains to be seen if the SEC steps in again to foil the latest NASD intentions, as it did to a previous plan in 1996, replacing the proposed NAqcess trading system with the SEC-approved order handling rules. Many Nasdaq market makers and ECNs have expressed strong opposition to the proposed integrated trading platform, originally dubbed Next Nasdaq, while the NASD, several small trading firms and both institutional and retail investors have supported the plan.

OATS Nasdaq's Order Audit Trail System (OATS) is a real-time electronic system designed to gather and report 25 details of an order, from receipt to execution. Events will need to be timed in seconds. This level of detail may appear to be carrying things a bit too far, particularly for traders who have made the mistake of time-stamping tickets with such dates as Jan. 32, 33 and 34. As proposed, orders captured or directly entered into an electronic system would first comply with OATS requirements. Non-electronic procedures would be subject later, followed by all other procedures.

Year 2000 Compliance The existing computer systems of trading firms and their clearing brokers may be heading for functional melt-downs unless they are reprogrammed to handle the change in century dating from 1999 to 2000. Trading firms should assess the computer systems that process their trades. The penalties for non-compliance will be astronomical. If your firm just started to look into the issue, a first step would be to respond to a recent NASD survey on Year 2000 compliance.

SEC and NASD Priorities All traders should anticipate the regulators' agendas and be proactive in uncovering and correcting problems before the NASD or SEC finds them. Last year, the larger trading firms were the primary targets of the NASD. Their problems are principally matters of volume. In 1998, smaller traders, especially those with retail operations, will become NASD targets, and it is likely the association will find that many of these firms are unprepared because they lack the systems, staffing or full understanding of their market-making obligations. Consequently, they are ripe for the picking by the NASD.

The Three Dimensions of Optimark

On Jan. 13, Durango, Colo.-based OptiMark Technologies and Nasdaq inked an agreement in principle to integrate OptiMark's supercomputer-driven matching system with the Nasdaq Stock Market. But first the plan must be approved by the Securities and Exchange Commission. OptiMark, of course, is not short of ambition, aiming to allow institutions and retail customers to trade anonymously and without disclosure, based on price, size and satisfaction levels.

OptiMark's chairman and chief executive is Bill Lupien, former head of Instinet and previously a specialist for 17 years on the Pacific Exchange (PCX). He co-invented OptiMark with John "Terry" Rickard, who is the company president.

Here, Lupien answers some questions on traders' minds.

Q: Your agreement with Nasdaq is big news.

A: Well, we have always recognized the need to provide investors with a way to trade over-the-counter as well as listed equities. So it was natural for us to approach Nasdaq, as the primary market in OTC stocks, to discuss offering OptiMark to National Association of Securities Dealers' members.

We were pleased when Nasdaq indicated not only an interest in making OptiMark a facility of Nasdaq, but expressed a desire in integratating OptiMark with its planned limit-order file. By increasing liquidity, the integration of OptiMark with Nasdaq will make trading OTC stocks more efficient and less costly for institutional investors.

In addition, brokers representing small investors will be able to use OptiMark to give their retail customers access to the better prices frequently offered by institutional investors something they cannot readily do today. For OptiMark, the agreement in principle with Nasdaq, the largest and fastest growing electronic market in the world, provides a level of credibility that will continue to attract buy-side and sell-side users.

Q: What inspired you to develop OptiMark ?

A: We were looking for a comprehensive solution to a pervasive problem plaguing the securities industry: how to find liquidity at a reasonable cost.

The structural deficiencies of the securities market primary among them, information leakage have forced traders to withhold liquidity in order to avoid giving the market information that might cause prices to move against them. Such adverse price moves typically associated with large orders and referred to as market impact and the inefficient strategies that traders use to avoid them, cost investors billions of dollars annually.

The problem has been getting worse every year, as more and more assets are concentrated in mutual funds and pension funds.

Q: So what exactly is OptiMark?

A: OptiMark is an optimal, supercomputer-driven, trade-matching mechanism with features to satisfy the trading desires of all market participants, from small retail investors to large institutional investors.

OptiMark incorporates two powerful, patented features. First, it allows the anonymous and non-disclosed representation of a trader's willingness to trade over a continuous range of prices and sizes. Second, it provides a means of optimizing the sequential allocation of trades between buyers and sellers at different prices and sizes based upon a measure of mutual willingness to trade and a deterministic set of trading rules. Additionally, order entry and cancellation can be accomplished at electronic speeds over a 100 percent FIX-compliant transaction network. OptiMark will function as a frequent – that is, every 90 seconds – multi-price call market.

Q: How much will OptiMark cost users?

A: OptiMark charges a penny a share to the clearing broker for completed trades, a transaction fee comparable to floor brokerage. There is no charge to the desk for installation or maintenance. The only other cost is the modest effort required to learn how to use a powerful new tool, a cost that will be paid back many times over in reduced market-impact costs.

OptiMark will be a facility of Nasdaq for trading OTC stocks, just as it is a facility of the PCX for listed stocks. As is the case with the PCX, we expect Nasdaq to charge its members approximately a penny for each share transacted through the OptiMark-Nasdaq facility. Market makers will receive a discount. Currently, the PCX has set its fee at a penny per side, for each share transacted through OptiMark.

Nasdaq will pay OptiMark on a share-transacted basis for operating the facility. Similarly, the PCX will pay OptiMark a fee for operating the facility. Non-PCX member users, namely institutional investors, will pay their brokers a commission at a rate they negotiate with their brokers.

Q: Explain how OptiMark-generated orders are entered and canceled at electronic speeds over a FIX-compliant network?

A: OptiMark, with a messaging format that operates as an extension of FIX, will be accessible through a wide range of gateways, including its own 56 k/bps FIX-compliant transaction network. Thus, any order-management system that can route trades through a FIX-compliant interface can route them easily to OptiMark. Likewise with cancellations.

Q: Won't a call market running every 90 seconds stretch the human capacity of individual traders?

A: The methodology for creating OptiMark profiles is extremely user-friendly and designed for speed. A wide array of templates are resident on the system for representing and customizing commonly-employed strategies. In addition, profiles placed in OptiMark will remain in force from one call-cycle to the next, unless they are withdrawn. They may also be pegged to certain underlying variables, indices for example, so that adjustments to the auction market are made automatically. This methodology, versus the effort required today, can actually lessen the workload.

Q: What about market participants representing their full trading interest with satisfaction profiles. Creating such profiles surely will stretch human capacity?

A: In many cases, a profile equates to a conventional limit order or a limit order with discretion, and can be entered with the same effort. To facilitate rapid entry, the system includes custom templates for automatically creating complex profiles to represent frequently-used strategies. Such profiles can often replace the laborious task of entering multiple individual orders. OptiMark requires no more effort than today's trade order-management systems, and is easier than the use of most DOT systems.

Q: Fine, but suppose a trader with 100 stocks on his blotter selects 25 to go into OptiMark. Perhaps he'll buy 100,000 shares here and a million shares there, and do that 25 times over. The trading day is roughly 7 hours long, or 420 minutes multiplied by 60 seconds. Divide that by 90 seconds for every call and that comes to 280 calls. Isn't that a lot of exposures to follow in one day?

A: Those 280 daily calls actually mean 280 breaks, each more than a minute long, when a trader doesn't have to follow the matches. This method is much less burdensome than watching every tick in a continuous market.

Q: If negative news hits the market, a trader may want to withdraw his order.

A: A trader can cancel any or all of his orders virtually instantaneously in OptiMark without any manual intervention, as is required for exchange orders. In addition, order cancellation in OptiMark has advantages over orders canceled in a continuous market. For example, in OptiMark, the existence of an order is unknown, and is not executable until the next match occurs. OptiMark is also customizable, able to accommodate many third-party and user-created programs designed to deal with special situations, such as auto cancel in the event of news.

Q: If a user enters a buy profile and nothing gets done, can't the user reasonably assume there are no sellers at his stated level?

A: Yes

Q: What protection do institutional customers have when a seller goes into OptiMark, clears out all the bids on XYZ stock buying it down a point and then offers the stock back to institutions that may have previously bought the stock at the higher price?

A: If we assume that it's a seller clearing out the bids, then the buy-side institutions represented in OptiMark will have paid whatever the down-a-point price was, which would seem at least temporarily advantageous and not in need of protection.

If the other institutions' orders are exposed by being part of the disseminated quote, they will have an opportunity to participate in the OptiMark print by being sent an Intermarket Trading System (ITS) commitment to trade at the print price for whatever size is shown.

Q: How does OptiMark facilitate price discovery?

A: Users can employ the system's order-representation capability to indicate the price they are willing to pay or accept at a variety of size points, including the largest quantities they may wish to buy or sell, and not just at the retail-size points they now typically disclose. The system's matching algorithm determines the prices and sizes at which buying and selling interest overlap, thus discovering market-price for an instrument during every matching cycle or periodic call.

Q: Can users get price improvement?

A: Yes. OptiMark searches for optimal matches, based upon both mutual satisfaction and a set of priority rules. Within a totally secure environment, it enables a large-size trade to interact with all contra-trading interest at once, avoiding the serial leakage of information and resulting market impact involved in executing such a trade in small pieces.

OptiMark also takes retail interest and aggregates it whenever possible to satisfy institutional interest, and this uniquely allows the small investor a chance at price improvement against a more aggressively priced institutional order.

Q: If OptiMark is successful, won't it be difficult to see prices?

A: As in today's market, bid and ask prices for immediately executable orders will be displayed in the continuous exchange-based market, and the prices and sizes of all trades, including those that have been matched in OptiMark's periodic call market, will be printed on the exchange ticker.

Q: Let's turn to non-disclosure and anonymity. Do institutions surrender non-disclosure as soon they send trades to clearing brokers for settlement?

A: Users have the option of selecting immediate or end-of-day broker notifications for their OptiMark transactions. These options will prove adequate for a wide range of users and trading strategies. In addition, users may designate anonymity brokers for clearing and settlement of their OptiMark transactions, ensuring end-to-day anonymity and non-disclosure.

Q: How does an institution using OptiMark avoid giving a broker information about its intentions?

A: In OptiMark, institutions can trade directly with each other, and the broker is informed of the results only at the end of the day if a trade is completed.

Q: Say an institution is selling 75,000 shares of XYZ. Could the institutions' clearing broker ascertain that the institution has a larger order behind this trade from public filings?

A: Public filings are too outdated to be a meaningful factor in most trading. Value players who hold positions have it a bit tougher, but the markets typically move faster than the information. And of course disclosure of who a trade is for on a trading floor itself is prohibited. In addition, brokers have the ability to extend the anonymity period beyond the trade date. Sensitive orders may flow to those that offer such a service.

Q: What exactly is the role of the PCX?

A: The PCX will offer OptiMark to investors through members as a facility of the exchange. The relationship is non-exclusive.

Continuous trading on the PCX and any other exchange that offers OptiMark in the future will operate as before. OptiMark is fully integrated with the National Market System (NMS) through the PCX's participation in the ITS.

Q: How is OptiMark different from other electronic trading systems?

A: In a nutshell, the system uniquely combines satisfaction, anonymity, non-disclosure, price discovery, instant ingress/egress and optimal execution.

OptiMark is the only system that enables market participants to represent their full trading interest with certified confidentiality, in a completely anonymous and non-disclosed manner. By anonymity, we mean you don't know who is doing whatever in the market. By non-disclosure, we mean you don't know what the market participant is doing, or trying to do.

OptiMark also allows expression of trading interest across a range of prices and sizes the participant considers acceptable. That interest is coupled with a standardized presentation to the system of the degree of willingness to trade at each price and size point, across a spectrum ranging from a 1 completely willing to trade to a 0 unwilling to trade. References to OptiMark as three dimensional are based on this, with the three dimensions being price, size and satisfaction level.

OptiMark is an open rather than proprietary system, functioning as a facility of the existing infrastructure and requiring users to have their own clearing and settlement brokers. Thus, rather that fragmenting the market as closed systems inevitably do, the OptiMark system will help to integrate the market, increasing liquidity and lowering market-impact costs.

Lastly, because the system optimizes the matching of orders, filling those that represent the highest levels of negotiation value first, and because of its abilities to attract additional liquidity to the market and to aggregate small orders to provide a match with larger orders, the opportunities for price improvement are enhanced.

Q: Are OptiMark's features available from other electronic markets and crossing networks?

A: No. Instinet provides anonymity, but does not provide non-disclosure. The Instinet Crossing Network and POSIT are designed to provide anonymity and non-disclosure among users, but do not provide internal price discovery.

In addition, both of the aforementioned systems are operated by broker dealers, which means that their use by institutions supplants other brokerage relationships. OptiMark is not a broker dealer. The Arizona Stock Exchange (AZX) system offers a periodic, anonymous, single-price call market, but with far less frequent calls (now three times a day rather than every 90 seconds with OptiMark). The AZX accepts only standard limit orders, as opposed to the expression of total trading interest available via OptiMark satisfaction profiles. In addition, the AZX is a proprietary system. OptiMark is an open system and integrated with the NMS.

On OptiMark, a participant's strategy is never disclosed to anyone, including OptiMark personnel; as represented on an OptiMark profile, a strategy remains private, known only to the fully-secure, Deloitte & Touche-tested OptiMark system itself.

Even when a trade results from the matching of a participant's trading strategy with one or more participant strategies, only the results of the trade are made public. The identity of a participant is revealed only after a trade is executed, and only at the end of the day to the clearing broker. The only exception made to this rule is for surveillance purposes by exchange and regulatory personnel.

Q: Will OptiMark hurt broker dealers' business?

A: No. Broker dealers will use OptiMark for their proprietary trading and as agents for retail and institutional trades. Although some institutions may directly access OptiMark to preserve confidentiality, such institutions, of course, must still designate, and pay a commission to, one or more broker dealers to handle clearing and settlement of any trades that result. Thus, brokers will not be cut out of the process.

In fact, far from losing business, broker dealers should enjoy increased business if OptiMark results in significantly increased trading volumes, as we expect it will. Many brokers are developing value-added services for their customers around the OptiMark system. As with specialists, OptiMark provides broker dealers and market makers with the ability to reliquify proprietary positions with speed and anonymity.

Q: Are specialists vulnerable?

A: No. The specialist book for participating exchanges can be fully represented in the system, allowing specialists to utilize OptiMark's liquidity every 90 seconds to find liquidity for their limit orders, while, between OptiMark calls, they handle market-order and executable limit-order trades. OptiMark allows specialists to reliquify their positions with a speed and confidentiality otherwise unavailable.

Q: How does the Nasdaq and OptiMark plan affect dealer capital?

A: OptiMark provides market makers with a mechanism for price verification and proprietary-book reliquification in an anonymous environment. Many dealers have expressed the expectation that these facilities will lower their capital risk.

Q: Will OptiMark force brokers to reassess the value of their research services?

A: OptiMark does not change the relationship between broker dealers and their clients. This fact distinguishes OptiMark from other electronic trading systems.

It is true that institutions can trade directly with one another using OptiMark, but they must designate, of course, a broker to handle clearing, settlement and credit. These brokers receive their commissions for the trade just as they would for a non-OptiMark trade.

If a broker dealer provides valuable research to an institution, that institution can designate that broker to receive credit for its trades as compensation for providing the research. In fact, since an OptiMark trade is, by definition, best execution, we make it easier for smaller research brokers to get compensated by institutions that use their research.

Q: If the New York Stock Exchange does not sign up with OptiMark, investors could still send listed business directly to Nasdaq dealers or to OptiMark?

A: OptiMark is an open system, and none of our agreements are exclusive. Any exchange can enter into an agreement to make OptiMark available as a facility for its members' use.

Q: Finally, will OptiMark be used exclusively for U.S.-listed equities and Nasdaq stocks?

A: The PCX expects to launch the OptiMark system for trading listed equities in mid-1998. Subsequently, Nasdaq also plans to introduce OptiMark to its members. Trading in options and other instruments is scheduled to commences on the PCX and on the Chicago Board Options Exchange after the initial launch of the system.

OptiMark is also pursuing agreements and relationships with other domestic and international equity and futures markets.

Next Nasdaq

Nasdaq's proposal for an integrated order-delivery and execution system may hinge on market makers quoting all stocks in proprietary trade sizes of 100 shares, that is, in so-called actual sizes. The National Association of Securities Dealers contends that order-size rules for the handling of small orders currently executed on SOES are unnecessary and should be eliminated.

Nasdaq states that if artificial quote-size requirements on all Nasdaq securities are not eliminated ahead of a new integrated order-delivery and execution system, some order-entry features of the facility would not be appropriate. In that case, Nasdaq thinks that order-entry firms should not be permitted to enter trades larger than 1,000 shares. The NASD proposes that if the absence of full implementation of the actual-size rule, non-market makers should not be permitted to enter trades in the new system larger than 1,000 shares on non-preferenced orders.

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Automated Pink Sheets

The pink sheets, the last vestige of over-the-counter trading before Nasdaq came about, is planning to shed its manual, old-fashioned image. The pink sheets, pending regulatory approval, want to automate. An automated pink-sheet system, of course, would spell the end of a quaint but increasingly popular style of trading. That system still uses pink -colored paper to exclusively carry the price-quote information on 2,700 equity issues and a roster of stocks quoted on the OTC Bulletin Board.

The National Quotation Bureau, which owns and operates the pink sheets, said the new system would provide a real-time bulletin board of market-maker quotations and an electronic negotiation and order-routing facility for subscribers. In a letter to subscribers, the company said it is in discussions with the Securities and Exchange Commission and the National Association of Securities Dealers, "to increase the visibility and transparency of market-maker quotations through automation of our service."

To be sure, the pink sheets account for a small proportion of trading in the full universe of Nasdaq and over-the-counter stocks. But that could change dramatically over the coming months under rules approved for the OTC Bulletin Board. These rules will require companies listed on the electronic stock-quotation service to file financial statements. As a result, some pros think hundreds if not thousands of companies will delist to the pink sheets.

Odd-Sixteenths

First came the study in May 1994 by two academics, William Christie and Paul Shultz, that purported to demonstrate the absence of odd-eighth quotes on Nasdaq was evidence of price fixing by market makers. Now comes a sequel, of sorts – a study by two other academics, Yusif Simaan of Fordham University and David Whitcomb of Rutgers University, that purports to demonstrate the absence of odd-sixteenth quotes on Nasdaq over two separate two-week periods, in September and October, as fresh evidence of more price fixing.

"The most striking finding in this paper is clearly that leading market makers still have an extreme tendency to avoid odd intervals in their advertised [Nasdaq] quotations," the paper noted. "The same firms, when they come to lay off positions on electronic communications networks (and to a lesser extent, in their advertised quotations toward the end of the day) appear more willing to quote odd sixteenths."

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Nasdaq Settlement

The dust is finally settling on the class-action lawsuit brought by thousands of investors alleging price-fixing among Nasdaq market makers. A $900 million settlement has been reached. The lawsuit was filed in U.S. District Court in Manhattan in 1994 against 37 firms, including two industry giants, Merrill Lynch & Co. and Goldman Sachs & Co., that are among 30 firms that settled. Six other firms settled their case earlier, agreeing to pay $98 million of the final settlement. The defendants neither denied nor confirmed any wrongdoing.

How the $900 million will be divided among the investors is unclear. Each named defendant that settled, however, will make payments based on their percentage of Nasdaq trading volume. Merrill and Lehman Brothers agreed to pay $100 million and $80 million, respectively, while J.C. Bradford & Co. and Furman Selz will each pay less than $10 million. A judge must still determine how plaintiffs' lawyers will be compensated.

ART-

Levitt’s Latest Foe Is Sen. Lauch Faircloth:Powerful Figure Could Hurt Levitt’s SEC Renomination

Sen. Lauch Faircloth (R-N.C.) has come out swinging against a new derivative accounting rule proposed by the Financial Accounting Standards Board (FASB), a privately-funded independent agency.

Faircloth, head of the Senate Banking Committee's financial institutions and regulatory relief panel, has one enemy in mind the Securities and Exchange Commission. Faircloth said "the FASB has worked so closely with the SEC, this appears to be a regulatory dispute, not an accounting dispute."

That's good news for the head of the Senate Banking Committee, Sen. Phil Gramm (R-Texas), and others who oppose the rule, but possibly bad news for a staunch supporter of the proposal, SEC Chairman Arthur Levitt.

Disclosure

The proposal would require greater public disclosure by Wall Street firms dealing in derivatives, in particular the reporting of gains and losses in quarterly earnings statements.

A derivative is a financial contract whose value is derived from an underlying security. Banks are especially worried about the FASB proposal because they are heavy users of derivatives. (The FASB establishes accounting standards for publicly-traded companies.)

Some Capitol Hill insiders think Levitt's blessing may be a curse in disguise for him, ultimately hurting his chances of renomination to a second five-year term as chairman of the SEC. That's because his support of the FASB rule has annoyed critics here in Washington. And that could have implications next summer when Congress must confirm the choice of SEC chairman when Levitt's current term expires.

If Levitt is renominated the White House recently indicated it would do so the process could be derailed by pesky senators, such as Faircloth and Gramm, should the FASB proposal not be harmoniously resolved. Indeed, these Senators may be warming-up for battle. "You can't rule anything out," a source on Capitol Hill said.

The Senate must approve every presidential nomination to the SEC, and the chamber's rules allow a single senator, who customarily remains anonymous, to place a hold on a nomination.

Second-Guessing

As previously reported, Gramm last October accused Levitt of interfering in congressional business after the SEC chairman attacked Congress for "second-guessing" both the SEC and FASB.

Gramm was particularly upset when Levitt demonstrated his support of the accounting rule proposal in three separate speeches and private meetings, and attacked those who opposed the rule as attempting to scuttle the independent rule-making process instead of raising real concerns.

Faircloth stresses that he has no objections to the rule being written by the FASB. But he is upset with the involvement of the SEC, and is waging war. As a result, he introduced legislation that would delay the FASB's proposed rules in the final hours of the Senate's legislative year.

Even Federal Reserve Board Chairman Alan Greenspan is reportedly concerned about the proposed rules.

Whether Levitt has walked himself into a high-stakes political poker game with the Republican-controlled Senate remains to be seen.

It is taken for granted, inside the Beltway, that Levitt wants another five years at the helm of the SEC. Serving a full second term would make Levitt the longest-sitting chairman in the SEC's 63-year history.

Faircloth's office did not respond to several requests for comment. A White House official said it is still far too early to comment on whether President Clinton will renominate Levitt, whose term as SEC chairman expires in June.

STA Survey Will Be Published This Month

The Security Traders Association is planning later this month to publish the findings of its inaugural year-end membership survey on a range of trading and regulatory issues, according to John Tognino, president of the roughly 8,000-strong industry group.

"The survey represents an excellent opportunity to gauge members' priorities," Tognino said in a telephone interview. The survey, overseen by STA strategic consultant Laura Cooley, involved a 26-question form mailed to the entire STA membership in mid-December. Most questions required a simple yes or no answer. The emphasis was on short, concise questions to encourage strong membership participation.

The questions will no doubt help to forge common ground among groups of STA traders with distinct agendas, ranging from institutional market makers and wholesalers on the sellside, to institutional traders on the buyside. The STA made clear it is looking for areas of common agreement in the survey results.

Major Changes

Tognino noted that the past 12 months have witnessed some major changes in equity-trading practices, in particular the implementation of the order handling rules.

Tognino said the questions touched upon the use of circuit breakers that halted stock trading twice on Oct. 27; decimalization, which was the subject of two recent high-level meetings the Securities and Exchange Commission conducted with industry officials; the National Association of Security Dealers' central limit order book; and electronic communications networks.

The STA president said the results will provide a road map to help the STA board of governors develop industry positions and, as such, will be something more than fodder for Capitol Hill lobbying.

Traders Fight Nasdaq’s Proposed Trading System

Some leaders in the trading community have stepped-up the fight against a central limit order book, the controversial system at the center of an integrated trading platform the National Association of Securities Dealers is hoping to implement.

On Dec. 22, the NASD sent a rule filing on the new system to the Securities and Exchange Commission for public comment.

The integrated platform, originally dubbed Next Nasdaq, has some traders hot under the collar. They view a central limit order book as direct competition.

"Most of us in the industry do not understand the NASD's rationale," said Bernard L. Madoff, chairman of the Securities Industry Association's Trading Committee. The committee is leading a push to have the limit-order-book proposal, as currently planned, scrapped.

Imprimatur

The proposed system initially received the imprimatur of Nasdaq's Quality of Market Committee, as well as approval late last year from the NASD board of governors. The system would create a single integrated order delivery and execution system, melding SOES and SelectNet functions. The central limit order book would not be mandatory.

At press time, Madoff was continuing his battle to have the central-limit-order-book proposal dropped. "One has a demonstrated need and is not controversial, while the other [the central limit order book] has a need yet to be demonstrated and is controversial," Madoff said.

Madoff added that the SIA recently met with NASD officials, presenting them with a proposal he said would satisfy the NASD's plan without compromising the market-making community. While some of the singular details are not groundbreaking, combined they are significantly different from the NASD's plan.

The SIA proposal would provide the ability to place orders into the market on an anonymous basis; allow limit-order execution capability for smaller broker dealers that have no special arrangements with wholesale market makers; provide market makers that don't want to display limit orders in their own quotes the ability to send the orders to other market makers or electronic communications networks; and finally, provide a system of last resort.

SIA Plan

Under the SIA plan, limit orders would first be transmitted into Nasdaq and then rerouted to market makers on a rotating basis. Market makers would receive a fee for putting the limit orders in their quotes. However, if no market makers display a transmitted limit order, Nasdaq's central limit order book would operate as a fail-safe system and display the limit order.

Madoff said this plan "would, in our mind, provide all of the services that the central limit order book would provide the industry, both for the buyside and the sellside."

"It would also have another advantage, allowing limit orders to be handled by market makers as distinct from an NASD system competing with them," he added.

While Madoff was hopeful that the NASD would consider the SIA plan, he acknowledged that he had no reason to believe it was acceptable to them. At press time, he had not received an official response from the NASD.

Voluntary

Meanwhile, many Nasdaq traders have echoed Madoff's criticism of the NASD's plan, targeting for their attack the so-called voluntary nature of the central limit order book.

Some predict market makers will lose order flow and have to protect limit orders they are holding for execution in the central limit order book. They contend that this could ultimately result in all limit orders being displayed in the proposed Nasdaq book.

One well-informed member of Nasdaq's Quality of Markets Committee, who spoke on the condition of anonymity, said there was disagreement on the committee about the proposal. "What drives me nuts is that it is hard to see the need for a new system," the trader fumed.

Madoff said wholesale market makers and regional firms view the proposed system as a real threat. Even the New York Stock Exchange, Madoff said, "has never done something like this, building a book bypassing their specialists."

The question remains: Why is the NASD strongly advocating a central limit order book? Individual-investor sentiment may be high on the list. For his part, Madoff feels the NASD wants to secure a "revenue stream." The Quality of Markets Committee member, on the other hand, views it as yet another example of the NASD "tripping all over themselves trying to make the SEC happy."

Indeed, a concern is pressure from the SEC to build strong electronic systems compatible with the highest standards of individual-investor protection. The NASD is under watch by the SEC in the wake of two governmental investigations, some sources stress. Certainly, no one wants to see Congress enter the fray. "It would be a mistake to involve Congress," Madoff said.

As for the renaming of Next Nasdaq, an NASD spokesman told a reporter, "It has a new name, but I have no idea what that name is. Look at the SEC filing."

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