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SEC issues landmark order rejecting Nasdaq and NYSE Arca market data fee increases

James Brigagliano (Sidley Austin LLP, Washington, District of Columbia, USA)
W. Hardy Callcott (Sidley Austin LLP, San Francisco, California, USA)
Michael Warden (Sidley Austin LLP, Washington, District of Columbia, USA)

Journal of Investment Compliance

ISSN: 1528-5812

Article publication date: 19 March 2019

Issue publication date: 23 July 2019

Abstract

Purpose

To explain an October 16, 2018 US Securities and Exchange Commission order that unanimously upheld a SIFMA challenge to fee increases for “depth-of-book” market data filed by Nasdaq and NYSE Arca and the SEC’s simultaneous remanding of over 400 market data fee and other filings back to the exchanges for consideration under the standards set out in the order.

Design/methodology/approach

Explains the criteria for fee increases under the Exchange Act, the SEC’s historic routine approval of exchanges’ proposed fee increases, the SEC’s challenge to two recent market data filings, and the SEC’s remanding of 400 additional market data fee filings challenged by SIFMA to the exchanges and the National Market System (NMS) for reconsideration. Analyzes and discusses the SEC’s order.

Findings

The SECs’ SIFMA order appears to raise the bar significantly for what exchanges must show to justify fee increases.More broadly, all five SEC Commissioners (of both parties) appear to be rethinking the role of for-profit exchanges in the regulatory structure.These orders have the potential to rewrite the regulation of market data, other exchange fees, and potentially the relationship between the exchanges and other market participants, for the entire securities industry.

Originality/value

Practical guidance from experienced securities lawyers.

Keywords

Acknowledgements

Disclaimer. This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. The content therein does not reflect the views of the firm.

Citation

Brigagliano, J., Callcott, W.H. and Warden, M. (2019), "SEC issues landmark order rejecting Nasdaq and NYSE Arca market data fee increases", Journal of Investment Compliance, Vol. 20 No. 2, pp. 24-27. https://doi.org/10.1108/JOIC-02-2019-0012

Publisher

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Emerald Publishing Limited

Copyright © 2019, Sidley Austin LLP.