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ORDER.TXT
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1996-08-12
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UNITED STATES OF AMERICA
before the
SECURITIES AND EXCHANGE COMMISSION
Securities Exchange Act of 1934
Release No. 37538 / August 8, 1996
Administrative Proceeding
File No. 3-9056
_______________________________
:
In the Matter of : ORDER INSTITUTING
: PUBLIC PROCEEDINGS
: PURSUANT TO SECTION
NATIONAL ASSOCIATION OF : 19(h)(1) OF THE
: SECURITIES EXCHANGE
SECURITIES DEALERS, INC. : ACT OF 1934, MAKING
: FINDINGS AND IMPOSING
: REMEDIAL SANCTIONS
:
_______________________________:
I.
The Securities and Exchange Commission ("Commission") deems
it appropriate and in the public interest that public proceedings
be instituted pursuant to Section 19(h) of the Securities
Exchange Act of 1934 ("Exchange Act") against the National
Association of Securities Dealers, Inc. ("the NASD"). In
anticipation of this proceeding, the NASD has submitted an Offer
of Settlement which the Commission has determined to accept.
Solely for the purposes of this proceeding and any other
proceeding brought by or on behalf of the Commission or to which
the Commission is a party, prior to a hearing pursuant to the
Commission's Rules of Practice, 17 C.F.R. 201.100 et seq., the
NASD, by its Offer of Settlement, without admitting or denying
the Commission's findings except those contained in Section
III.A. below, which are admitted, consents to the entry of this
Order Instituting Public Proceedings, Making Findings and
Imposing Remedial Sanctions.-[1]-
---------FOOTNOTES----------
-[1]- Simultaneously with the issuance of this Order the
Commission released a Report Pursuant to Section
21(a) of the Securities Exchange Act of 1934
Regarding the NASD and the Nasdaq Market (the
"Report"). The findings made herein are solely
(continued...)
==========================================START OF PAGE 2======
II.
Accordingly, IT IS HEREBY ORDERED, that proceedings pursuant
to Section 19(h) of the Exchange Act be, and they hereby are,
instituted.
III.
On the basis of this Order and the Offer of Settlement
submitted by the NASD, the Commission finds that:
A. RESPONDENT
The NASD is a Delaware nonstock corporation which is and at
all relevant times was registered with the Commission as a
national securities association pursuant to Section 15A(b) of the
Exchange Act. At all relevant times, the NASD operated the
Nasdaq Stock Market, Inc. ("the Nasdaq market"), an over-the-
counter securities market featuring the electronic display of
dealer price quotations. In January 1996, the NASD incorporated
NASD Regulation, Inc. ("NASDR") as a wholly owned subsidiary to
be delegated day-to-day responsibility for the self-regulatory
operations of the NASD.
B. MISCONDUCT IN THE NASDAQ STOCK MARKET
The Nasdaq market has not always operated in an open and
freely competitive manner. Nasdaq market makers have engaged in
conduct which has resulted in artificially inflexible spreads
between dealer price quotations for many Nasdaq securities and
unduly disadvantageous prices to investors trading in those
securities. A number of Nasdaq market makers have also taken
action to discourage competition. At the same time, various
Nasdaq market makers have coordinated price quotations,
transactions and transaction reports in order to protect or
advance their proprietary interests, to the detriment of
investors and other market participants. Many Nasdaq market
makers have also failed to satisfy their basic obligations to
transact at quoted prices and to report transactions in a timely
and accurate manner. These activities involved potentially
serious violations of NASD rules and the federal securities laws.
---------FOOTNOTES----------
-[1]-(...continued)
for the purpose of this proceeding and are not
binding on any other person or entity named as a
respondent or defendant in any other proceeding.
Moreover, the findings made herein do not affect
the NASD's rights in any respect as to parties
other than the Commission.
==========================================START OF PAGE 3======
C. THE NASD'S PERFORMANCE AS A SELF-REGULATORY
ORGANIZATION
The Exchange Act requires the NASD, as a self-regulatory
organization, to comply with, and vigorously enforce, in an
evenhanded and impartial manner, the provisions of the Exchange
Act, the rules and regulations thereunder and its own rules, in
carrying out its role as the entity responsible for the day-to-
day oversight of its members and the Nasdaq market.-[2]-
The NASD has an affirmative obligation to be vigilant in
surveilling for, evaluating, and effectively addressing issues
that could involve violations of such provisions.
The NASD, during the period covered in the Report, did not
comply with certain of its rules or satisfy its obligations under
the Exchange Act to enforce its rules and the federal securities
laws. It has inadequately enforced rules applicable to market
makers while applying, in certain cases, ad hoc standards and
criteria not embodied in NASD rules. This is attributable, in
part, to the undue influence of Nasdaq market makers in the
regulatory processes of the NASD. As a result of these
regulatory failures, the NASD has violated the duties imposed on
it by the Exchange Act.
1. THE NASD'S INADEQUATE RESPONSE TO MISCONDUCT IN NASDAQ
By 1990, the NASD was aware of information suggesting that
its members were engaged in misconduct which had potential
anticompetitive implications and could be detrimental to the
interests of investors. This information included: (a) facts and
circumstances evidencing a convention among dealers that resulted
in many stocks being quoted almost invariably in even-eighths;
(b) evidence of spreads and dealer quotations being artificially
inflexible with market makers having little incentive to narrow
them; and (c) facts indicating that some market makers retaliated
against other market makers who attempted to improve upon
quotations otherwise prevailing in the market. The NASD failed
to take appropriate action to thoroughly investigate these
problems and take effective regulatory action. In particular,
the NASD did not utilize the NASD's surveillance and enforcement
resources to inquire into the conduct of market makers to
ascertain whether violations of the NASD's rules or the federal
securities laws had occurred and whether disciplinary action
against market makers for such conduct was warranted.
---------FOOTNOTES----------
-[2]- Sections 19(g) and 19(h) of the Exchange Act, 15
U.S.C. 78s(g) and 78s(h).
==========================================START OF PAGE 4======
2. FAILURE TO ENFORCE FIRM QUOTE RULE
Market makers on Nasdaq have the obligation to trade at
their quotations.-[3]- Many market makers, however, have
repeatedly failed to honor their quotations even though no
exception was available. The NASD is required to enforce the
market makers' obligation to trade at their quotations, but has
failed to adequately enforce compliance by market makers with
this obligation.
3. FAILURE TO ENFORCE TRADE REPORTING RULE
Market makers on Nasdaq have the obligation to report
transactions on a timely and accurate basis.-[4]- Many
market makers, however, have repeatedly failed to report
transactions on a timely and accurate basis. The NASD is
required to enforce the market makers' obligation to report
transactions on a timely and accurate basis, but has failed to
adequately enfo