(Bloomberg) — The New York Stock Exchanges $4.5 million penalty for oversight violations represents the Securities and Exchange Commissions first salvo since Michael Lewis reignited scrutiny of market structure.
NYSE, which was bought by IntercontinentalExchange Group Inc. last year, agreed to settle allegations that it failed to formulate or ignored rules governing everything from how traders connect computers to when prices are disseminated to floor brokers. Its only the fifth time the SEC has imposed a monetary punishment on a U.S. exchange.
The action had something for everybody in the market structure debate, with regulators making NYSE pay for lax compliance while citing years-old offenses that were mostly procedural. In September 2012, the company paid $5 million over rule violations for giving certain customers trading data before the public.
When you compare it to the $5 million NYSE paid in the data feeds settlement the amount of this fine is a big deal, Dave Lauer, president of consulting firm Kor Group LLC said in a phone interview yesterday. At the end of the day, the SEC is making a statement. This is the way they operate now.
The sweeping complaint is the SECs first regulatory broadside against a major U.S. exchange since the publication of Lewiss Flash Boys a month ago. The book sparked a debate about how fairly the American equity markets are structured. While the sum is small compared with NYSEs earnings, until recently fines were never levied against U.S. equity exchanges, which are shielded from legal scrutiny.
All Activities
It seems the case now that the SEC is treating exchanges just like any other regulated entity, Lee Schneider, New York- based counsel at law firm Debevoise & Plimpton LLP, said by phone. The level of detail they go into also indicates to me theyre looking into all activities at an exchange, rather than at a higher level.
Eric Ryan, a spokesman for Atlanta-based ICE, declined to comment. Shares of IntercontinentalExchange rose 0.5 percent yesterday to close at $205.48.
The order highlights instances where the exchanges conducted business without a rule in place due to weak or inadequate policies and procedures, the SEC said in a statement. In other instances, the exchanges did not operate in compliance with their effective rules. Both failures reflect a troubling lack of compliance with the requirements and obligations imposed on securities exchanges.
Self Regulation
Like other stock venues, the NYSE is a self-regulatory organization, meaning it formulates its own rules and submits them to the SEC before they are enacted. In yesterdays complaint, the SEC alleged NYSE failed to develop strong enough procedures in some cases and broke existing ones in others, and at times did not act when told by the agencys staff that it was in violation of regulations.
The SEC probably sees a problem in the SRO model when they cant get an SRO to do what they want, Lauer said.
Listed in the SEC release were violations related to day- to-day operations at NYSE, among them the practice of colocation, which allows brokers to place computers close to exchange machines in order to reduce the time it takes to transmit orders. The citations were procedural, alleging NYSE rules lacked specificity or were ignored, and the SEC stopped short of indicating the practices themselves are illegal.
For instance, when NYSE provided colocation services to customers, it did so without an exchange rule in effect that permitted and governed the provision of such services on a fair and equitable basis, according to the SEC. A feed that published data on trading imbalances to floor brokers was distributed at 2:00 p.m. from December 2008 through May 17, 2010, even though that did not comply with a NYSE rule stating the feed would first be sent to floor brokers at 3:40 p.m.
Error Account
In another example cited by the SEC, the NYSE exchanges used an error account maintained at Archipelago Securities LLC to trade out of securities positions without having appropriate rules. The exchanges, without admitting or denying the findings, agreed to settle the claims by retaining an independent consultant and paying the penalty along with Archipelago, the SEC said.
Archipelago maintains the error account to trade securities that it acquires when computer malfunctions require it to buy or sell stock to maintain an orderly market.
Yesterdays settlement was the second time in less than two years that the NYSE has been assessed a cash penalty by the SEC, and the fifth civil monetary penalty between the regulator and an equities exchange.
CBOE Settlement
In August, Chicago Stock Exchange Inc. agreed to pay $300,000 to settle regulatory claims that it failed to comply with rules designed to ensure all investors get the best prices. The SEC exacted a $6 million settlement from CBOE Holdings Inc. in June after it was found to have interfered with a three-year SEC investigation of short selling at a member firm. In May 2013, Nasdaq OMX Group Inc. agreed to pay the regulator $10 million to settle charges that it violated securities laws during Facebook Inc.s initial public offering in 2012.
SEC Chairman Mary Jo White faced questions from lawmakers at a congressional hearing April 29 about criticism of the SECs oversight of stock markets and automated trading strategies. While Republicans praised White for conducting a comprehensive review of market rules and activity, they questioned her proposal for a larger budget.
We could not be doing a more intensive review of all of the issues, White said, adding that she couldnt disclose when the SEC would issue recommendations for new rules.
Token Fine
In March, the New York attorney general began a broad investigation into the U.S. stock market, while the Federal Bureau of Investigation is examining some strategies.
Not everyone believes yesterdays settlement was a strong signal to the industry.
I think most likely it was a token, kind of we want you to pay more attention to this but well let it slide this time, just do better next time, whatever better means, Javier Paz, a senior analyst at Boston-based Aite Group LLC said by phone.
The fact the settlement was reached now suggests the process began two or three years ago, Paz said, implying that it wasnt the SEC simply responding to recent controversies.
