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June 30, 2004

Blows Traded in Penny Stock Fraud

By John A. Byrne

The SEC's efforts to reform penny stock

fraud have come under fire from Nasdaq, which says the present regulatory structure is better than the agency's proposed amendments.

Nasdaq, in a comment letter to the SEC, also singled out the American Stock Exchange in this effort. Under the SEC's proposals to adopt "the baseline exempting standards" of the Nasdaq SmallCap listing criteria as of January 2004 - and to grandfather national exchanges registered since April 20, 1992 - the SEC is making a mistake, Nasdaq contends.

"Nasdaq notes that the American Stock Exchange's initial listing standard for price is $3.00 per share, whereas the Nasdaq SmallCap Market standard is $4.00 per share," states Edward Knight, executive vice president of Nasdaq.

Nasdaq argues that this arrangement would allow an issuer with "laxer standards" to get an exemption from the penny stock rules instead of selecting a superior market.

The Amex disagrees. Michael Ryan, general counsel at the Amex, in a rebuttal sent to the SEC, said that the amendments would not result in "regulatory arbitrage or encourage issuers to choose an Amex listing."

"Further, the contention that SmallCap is a more transparent, liquid or better regulated market is without merit," Ryan stated.

And he added: "The Amex takes its regulatory responsibilities extremely seriously, and has, particularly over the past year, taken significant steps to substantially improve its regulatory program and oversight of the program."