[Federal Register Volume 87, Number 41 (Wednesday, March 2, 2022)]
[Notices]
[Pages 11780-11786]
[FR Doc No: 2022-04336]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-94311; File No. SR-NASDAQ-2021-045]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order
Disapproving a Proposed Rule Change, as Modified by Amendment No. 2, To
Modify Certain Pricing Limitations for Companies Listing in Connection
With a Direct Listing Primary Offering

February 24, 2022
    On June 11, 2021, The Nasdaq Stock Market LLC (``Nasdaq'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) \1\ of the Securities
Exchange Act of 1934 (``Exchange Act'') \2\ and Rule 19b-4
thereunder,\3\ a proposed rule change to modify certain pricing
limitations for companies listing in connection with a direct listing
primary offering in which the company will sell shares itself in the
opening auction on the first day of trading on the Exchange. The
proposed rule change was published for comment in the Federal Register
on June 30, 2021.\4\ On August 12, 2021, pursuant to Section 19(b)(2)
of the Exchange Act,\5\ the Commission designated a longer period
within which to either approve or disapprove the proposed rule change,
or institute proceedings to determine whether to disapprove the
proposed rule change.\6\ On September 24, 2021, the Commission
instituted proceedings under Section 19(b)(2)(B) of the Exchange Act
\7\ to determine whether to approve or disapprove the proposed rule
change.\8\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
    \4\ See Securities Exchange Act Release No. 92256 (June 24,
2021), 86 FR 34815 (June 30, 2021) (``Notice''). Comments received
on the proposal are available on the Commission's website at:
https://www.sec.gov/comments/sr-nasdaq-2021-045/srnasdaq2021045.htm.
    \5\ 15 U.S.C. 78s(b)(2).
    \6\ See Securities Exchange Act Release No. 92649, 86 FR 46295
(August 18, 2021). The Commission designated September 28, 2021, as
the date by which it should approve, disapprove, or institute
proceedings to determine whether to disapprove the proposed rule
change.
    \7\ 15 U.S.C. 78s(b)(2)(B).
    \8\ See Securities Exchange Act Release No. 93119 (September 24,
2021), 86 FR 54262 (September 30, 2021) (``OIP'').
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    On December 20, 2021, the Commission extended the time period for
approving or disapproving the proposal to February 25, 2022.\9\ On
December 22, 2021, the Exchange filed Amendment No. 2 to the proposed
rule change, which superseded the proposed rule change as originally
filed.\10\ Amendment No. 2 was published for comment in the Federal
Register on January 12, 2022.\11\
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    \9\ See Securities Exchange Act Release No. 93830, 86 FR 73071
(December 23, 2021).
    \10\ On December 21, 2021, Nasdaq submitted Amendment No. 1,
which was subsequently withdrawn.
    \11\ See Securities Exchange Act Release No. 93924 (January 6,
2022), 87 FR 1797 (January 12, 2022) (``Amended Notice'').
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    This order disapproves the proposed rule change, as modified by
Amendment No. 2, because, as discussed below, Nasdaq has not met its
burden under the Exchange Act and the Commission's Rules of Practice to
demonstrate that its proposal is consistent with the requirements of
Exchange Act Section 6(b)(5), and, in particular, the requirement that
the rules of a national securities exchange be designed to prevent
fraudulent and manipulative acts and practices, promote just and
equitable principles of trade, and protect investors and the public
interest.

I. Description of the Proposal, as Modified by Amendment No. 2

    Nasdaq Listing Rule IM-5315-2 provides listing requirements for
Nasdaq's Global Select Market for a company that has not previously had
its common equity securities registered under the Exchange Act to list
its common equity securities on the Exchange at the time of
effectiveness of a registration statement \12\ pursuant to which the
company will sell shares itself in the opening auction on the first day
of trading on the Exchange (a ``Direct Listing with a Capital
Raise'').\13\

Securities qualified for listing under Nasdaq Listing Rule IM-5315-2
must begin trading on the Exchange following the initial pricing
through the mechanism outlined in Nasdaq Rule 4120(c)(9) and Nasdaq
Rule 4753 for the opening auction, otherwise known as the Nasdaq Halt
Cross.\14\ Currently, in the case of a Direct Listing with a Capital
Raise, the Exchange will release the security for trading on the first
day of listing if, among other things, the actual price calculated by
the Nasdaq Halt Cross is at or above the lowest price and at or below
the highest price of the price range established by the issuer in its
effective registration statement \15\ (the ``Pricing Range
Limitation''). The Exchange has proposed to modify the Pricing Range
Limitation to provide that the Exchange would release the security for
trading if (a) the actual price calculated by the Nasdaq Halt Cross is
at or above the price that is 20% below the lowest price, and at or
below the price that is 20% above the highest price, of the disclosed
price range; or (b) the actual price calculated by the Nasdaq Halt
Cross is at a price above the price that is 20% above the highest price
of such price range, provided that, among other things, the company has
publicly disclosed and certified to the Exchange that the company's
registration statement contains a sensitivity analysis explaining how
the company's plans would change if the actual proceeds from the
offering exceed the amount assumed in such price range and that the
company does not expect that such price would materially change the
company's previous disclosure in its effective registration
statement.\16\ The Exchange would calculate the 20% threshold based on
the maximum offering price set forth in the registration fee table in
the company's effective registration statement, which the Exchange
argues is consistent with the Instruction to paragraph (a) of
Securities Act Rule 430A.\17\ The Exchange has also proposed to make
related conforming changes.
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    \12\ The reference to a registration statement refers to a
registration statement effective under the Securities Act of 1933
(``Securities Act'').
    \13\ A Direct Listing with a Capital Raise includes listings
where either: (i) Only the company itself is selling shares in the
opening auction on the first day of trading; or (ii) the company is
selling shares and selling shareholders may also sell shares in such
opening auction. See Nasdaq Listing Rule IM-5315-2. See also
Securities Exchange Act Release No. 91947 (May 19, 2021), 86 FR
28169 (May 25, 2021) (order approving rules to permit a Direct
Listing with a Capital Raise and adopting related rules concerning
how the opening transaction for such listing will be effected)
(``2021 Order''). The Exchange's rules provide for a company listing
pursuant to a Direct Listing with a Capital Raise to list only on
the Nasdaq Global Select Market.
    \14\ See Nasdaq Listing Rule IM-5315-2. ``Nasdaq Halt Cross''
means the process for determining the price at which Eligible
Interest shall be executed at the open of trading for a halted
security and for executing that Eligible Interest. See Nasdaq Rule
4753(a)(4). ``Eligible Interest'' means any quotation or any order
that has been entered into the system and designated with a time-in-
force that would allow the order to be in force at the time of the
Nasdaq Halt Cross. See Nasdaq Rule 4753(a)(5). Pursuant to Nasdaq
Rule 4120, the Exchange will halt trading in a security that is the
subject of an initial public offering (or direct listing), and
terminate that halt when the Exchange releases the security for
trading upon certain conditions being met, as discussed further
below. See Nasdaq Rule 4120(a)(7) and (c)(8).
    \15\ The Exchange states that references in the proposal to the
price range established by the issuer in its effective registration
statement refer to the price range disclosed in the prospectus in
such effective registration statement. See Amended Notice, supra
note 11, 87 FR at 1799 n.14. Throughout this order, we refer to this
as the ``disclosed price range.''
    \16\ See proposed Nasdaq Rule 4120(c)(9)(B)(vii)c. See also
Amended Notice, supra note 11, 87 FR at 1799.
    \17\ See proposed Nasdaq Rule 4120(c)(9)(B)(vii)c.3.
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    Currently Nasdaq Rule 4120(c)(9)(B) states that, notwithstanding
the provisions of Nasdaq Rule 4120(c)(8)(A) and (c)(9)(A), in the case
of a Direct Listing with a Capital Raise, for purposes of releasing
securities for trading on the first day of listing, the Exchange, in
consultation with the financial advisor to the issuer, will make the
determination of whether the security is ready to trade. The Exchange
will release the security for trading if: (i) All market orders will be
executed in the Nasdaq Halt Cross; and (ii) the actual price calculated
by the Nasdaq Halt Cross complies with the Pricing Range Limitation.
The Exchange will postpone and reschedule the offering only if either
or both of such conditions are not met.\18\ The Exchange states that if
there is insufficient buy interest to satisfy the CDL Order \19\ and
all other market orders, as required by the current rule, or if the
actual price calculated by the Nasdaq Halt Cross is outside the
disclosed price range, the Nasdaq Halt Cross would not proceed and such
security would not begin trading.\20\
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    \18\ See Nasdaq Rule 4120(c)(9)(B).
    \19\ A ``Company Direct Listing Order'' or ``CDL Order'' is a
market order that may be entered only on behalf of the issuer and
may be executed only in the Nasdaq Halt Cross for a Direct Listing
with a Capital Raise. The CDL Order is entered without a price (with
a price later set in accordance with the requirements of Nasdaq Rule
4120(c)(9)(B)), must be for the quantity of shares offered by the
issuer as disclosed in its effective registration statement, must be
executed in full in the Nasdaq Halt Cross, and may not be canceled
or modified. See Nasdaq Rule 4702(b)(16).
    \20\ See Amended Notice, supra note 11, 87 FR at 1799. The
Exchange represents that in such event, because the Nasdaq Halt
Cross cannot be conducted, the Exchange would postpone and
reschedule the offering and notify participants via a Trader Update
that the Direct Listing with a Capital Raise scheduled for that date
has been cancelled and any orders for that security that have been
entered on the Exchange would be cancelled back to the entering
firms. See id.
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    According to the Exchange, based on conversations it has had with
companies and their advisors, the Exchange believes that some companies
may be reluctant to use the existing rules for a Direct Listing with a
Capital Raise because of concerns about the Pricing Range
Limitation.\21\ The Exchange states that the Pricing Range Limitation
imposed on a Direct Listing with a Capital Raise (but not on a
traditional IPO) increases the probability of a failed offering,
because the offering cannot proceed without some delay not only due to
lack of investor interest, but also if investor interest is greater
than the company and its advisors anticipated.\22\ According to the
Exchange, the Exchange believes that there may be instances of
offerings where the price determined by the Exchange's opening auction
will exceed the highest price of the price range disclosed in the
company's effective registration statement.\23\ The Exchange states
that, under the existing rule, a security subject to a Direct Listing
with a Capital Raise cannot be released for trading by the Exchange if
the actual price calculated by the Nasdaq Halt Cross is above the
highest price of the disclosed price range.\24\ The Exchange further
states that, in this case, the Exchange would have to cancel or
postpone the offering until the company amends its effective
registration statement, and that, at a minimum, such a delay exposes
the company to market risk of changing investor sentiment in the event
of an adverse market event.\25\ In addition, the Exchange states that
the determination of the public offering price of a traditional IPO is
not subject to limitations similar to the Pricing Range Limitation for
a Direct Listing with a Capital Raise, which, in the Exchange's view,
could make companies reluctant to use this alternative method of going
public despite its expected potential benefits.\26\
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    \21\ See id. The Exchange states that a Direct Listing with a
Capital Raise could maximize the chances of more efficient price
discovery of the initial public sale of securities for issuers and
investors, because, unlike in a traditional firm commitment
underwritten public offering (``IPO''), the initial sale price is
determined based on market interest and the matching of buy and sell
orders in an auction open to all market participants. See id.
    \22\ See id. at 1800. The Exchange states that if an offering
cannot be completed due to lack of investor interest, there is
likely to be a substantial amount of negative publicity for the
company and the offering may be delayed or cancelled. See id.
    \23\ See id.
    \24\ See id.
    \25\ See id.
    \26\ See id.
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    The Exchange has proposed to modify the Pricing Range Limitation
such that even if the actual price calculated by the

Nasdaq Halt Cross is outside the disclosed price range, the Exchange
would release a security for trading if the actual price at which the
Nasdaq Halt Cross would occur is at or above the price that is 20%
below the lowest price of the disclosed price range and at or below the
price that is 20% above the highest price of the disclosed price range,
provided all other necessary conditions are satisfied, and that the
company has specified the quantity of shares registered, as permitted
by Securities Act Rule 457.\27\ In addition, under the proposal, the
Exchange would release the security for trading, provided all other
necessary conditions are satisfied, at a price more than 20% above the
highest price of the disclosed price range, if the company publicly
disclosed and has certified to the Exchange prior to the beginning of
the Display Only Period \28\ that the company does not expect that such
offering price would materially change the company's previous
disclosure in its effective registration statement, the company's
registration statement contains a sensitivity analysis explaining how
the company's plans would change if the actual proceeds from the
offering exceed the amount assumed in the price range established by
the issuer in its effective registration statement, and the price range
in the preliminary prospectus included in its effective registration
statement is a bona fide price range in accordance with Item 501(b)(3)
of Regulation S-K.\29\ The Exchange states that the goal of the
requirement is to have disclosure that allows investors to see how
changes in share price ripple through critical elements of the
disclosure.\30\
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    \27\ See id. See also infra notes 31 and 33 and accompanying
text.
    \28\ See Nasdaq Rule 4120(c)(7)(A) and proposed Nasdaq Rule
4120(c)(9)(B)(iii)-(v) for a description of the ``Display Only
Period.''
    \29\ See Amended Notice, supra note 11, 87 FR at 1800; proposed
Nasdaq Rule 4120(c)(9)(B)(vii)c.2.
    \30\ See Amended Notice, supra note 11, 87 FR at 1800.
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    The Exchange states that it believes that its proposed approach is
consistent with Securities Act Rule 430A and staff guidance, which,
according to the Exchange, generally allow a company to price a public
offering 20% outside of the disclosed price range without regard to the
materiality of the changes to the disclosure contained in the company's
registration statement.\31\ According to the Exchange, the Exchange
believes such guidance also allows deviation above the price range
beyond the 20% threshold if such change or deviation does not
materially change the previous disclosure.\32\ The Exchange states
that, accordingly, the Exchange believes that a company listing in
connection with a Direct Listing with a Capital Raise can specify the
quantity of shares registered, as permitted by Securities Act Rule 457,
and, when an auction prices outside of the disclosed price range, use a
Rule 424(b) prospectus, rather than a post-effective amendment, when
either (i) the 20% threshold noted in Rule 430A is not exceeded,
regardless of the materiality or non-materiality of resulting changes
to the registration statement disclosure that would be contained in the
Rule 424(b) prospectus, or (ii) there is a deviation above the price
range beyond the 20% threshold noted in Rule 430A if such deviation
would not materially change the previous disclosure, in each case
assuming the number of shares issued is not increased from the number
of shares disclosed in the prospectus.\33\ The Exchange states that,
for the purposes of this rule, the 20% threshold would be calculated
based on the maximum offering price set forth in the registration fee
table, and that this method of calculation is consistent with the SEC
Staff's guidance on Securities Act Rule 430A.\34\
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    \31\ See id. The Exchange states that Securities Act Rule 457
permits issuers to register securities either by specifying the
quantity of shares registered, pursuant to Rule 457(a), or the
proposed maximum aggregate offering amount, and the Exchange
proposes to require that companies selling shares through a Direct
Listing with a Capital Raise will register securities by specifying
the quantity of shares registered and not a maximum offering amount.
See id. at 1800 n.20. The Exchange also states that the Exchange
believes that the proposed modification of the Pricing Range
Limitation is consistent with the protection of investors, because,
according to the Exchange, this approach is similar to the pricing
of an IPO where an issuer is permitted to price outside of the
disclosed price range in accordance with the SEC Staff's guidance.
See id. at 1802.
    \32\ See id. at 1800.
    \33\ See id.
    \34\ See id.
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    According to the Exchange, given that there may be a Direct Listing
with a Capital Raise that could price outside of the disclosed price
range and that there may be no upside limit above which the Nasdaq Halt
Cross could not proceed, the Exchange proposes to enhance transparency
by providing readily available, real time pricing information to
investors.\35\ To that end, the Exchange states that it would
disseminate, free of charge, the Current Reference Price on a public
website, such as Nasdaq.com, during the Pre-Launch Period and indicate
whether the Current Reference Price is within the disclosed price
range.\36\ The Exchange also proposes to adopt a new Price Volatility
Constraint and disseminate information about whether the Price
Volatility Constraint has been satisfied, which will indicate whether
the security may be ready to trade.\37\ The ``Price Volatility
Constraint'' would require that the Current Reference Price has not
deviated by 10% or more from any Current Reference Price within the
previous 10 minutes.\38\ The Exchange states that the Price Volatility
Constraint would provide investors with notice that the Nasdaq Halt
Cross nears execution.\39\ The Pre-Launch Period would continue until
the Price Volatility Constraint has been satisfied.\40\ Further, the
Pre-Launch Period shall end, and the security shall be released for
trading when the Exchange, in consultation with the financial advisor
to the issuer, makes the determination that the security is ready to
trade and the conditions in proposed Nasdaq Rule 4120(c)(9)(B)(vii) and
(viii) are met.\41\
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    \35\ See id.
    \36\ See id. See Nasdaq Rule 4753(a)(3) for a description of the
``Current Reference Price'' and Nasdaq Rule 4120(c)(8)(A) and
proposed Nasdaq Rule 4120(c)(9)(B)(v)-(vii) for a description of the
``Pre-Launch Period.''
    \37\ See Amended Notice, supra note 11, 87 FR at 1800-01.
    \38\ See id. at 1801.
    \39\ See id.
    \40\ See id.
    \41\ See proposed Nasdaq Rule 4120(c)(9)(B)(vii).
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    The Exchange also proposes to prohibit market orders (other than by
the company through its CDL Order) from the opening of a Direct Listing
with a Capital Raise.\42\ The Exchange states that this would assure
that investors only purchase shares at a price at or better than the
price they affirmatively set, after having the opportunity to review
the company's effective registration statement, including the
sensitivity analysis describing how the company would use any
additional proceeds raised.\43\
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    \42\ See Amended Notice, supra note 11, 87 FR at 1801.
    \43\ See id.
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    In addition, the Exchange states that to protect investors and
assure that they are informed about the attributes of a Direct Listing
with a Capital Raise, the Exchange proposes to impose specific
requirements on Nasdaq members with respect to a Direct Listing with a
Capital Raise.\44\ These rules would require members to provide to a
customer, before that customer places an order to be executed in the
Nasdaq Halt Cross, a notice describing the mechanics of pricing a
security subject to a Direct Listing with a Capital Raise in the

Nasdaq Halt Cross, including information regarding the location of the
public website where the Exchange would disseminate the Current
Reference Price.\45\
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    \44\ See id.
    \45\ See id.
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    The Exchange states that to assure that members have the necessary
information to be provided to their customers, the Exchange proposes to
distribute, at least one business day prior to the commencement of
trading of a security listing in connection with a Direct Listing with
a Capital Raise, an information circular to its members.\46\ This
information circular would describe any special characteristics of the
offering and the Exchange's rules that apply to the initial pricing
through the mechanism outlined in Nasdaq Rule 4120(c)(9)(B) and Nasdaq
Rule 4753 for the opening auction, including information about the
notice that members must provide to their customers.\47\ The
information circular would also describe other requirements that: (a)
Require members to use reasonable diligence in regard to the opening
and maintenance of every account, to know (and retain) the essential
facts concerning every customer and concerning the authority of each
person acting on behalf of such customer; (b) require members in
recommending transactions for a security subject to a Direct Listing
with a Capital Raise to have a reasonable basis to believe that (i) the
recommendation is suitable for a customer given reasonable inquiry
concerning the customer's investment objectives, financial situation,
needs, and any other information known by such members, and (ii) the
customer can evaluate the special characteristics, and is able to bear
the financial risks, of an investment in such security; and (c) require
members not to accept market orders to be executed in the Nasdaq Halt
Cross.\48\ The Exchange states that these member requirements are
intended to remind members of their obligations to ``know their
customers,'' increase transparency of the pricing mechanisms of a
Direct Listing with a Capital Raise, and help assure that investors
have sufficient price discovery information.\49\
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    \46\ See id. The Exchange states that an information circular is
an industry-wide, free service provided by the Exchange. See id. at
1801 n.21.
    \47\ See id. at 1801.
    \48\ See id.; proposed Nasdaq Rule 4120(c)(9)(B)(i).
    \49\ See Amended Notice, supra note 11, 87 FR at 1801.
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    The Exchange represents that in each instance of a Direct Listing
with a Capital Raise, the Exchange's information circular would inform
market participants that the auction could price up to 20% below the
lowest price of the price range and would specify that price. The
Exchange also represents that it would indicate in such circular
whether or not there is an upside limit above which the Nasdaq Halt
Cross could not proceed, based on the company's certification.\50\
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    \50\ See id. The Exchange states that it believes that investors
have become familiar with the approach of pricing an IPO outside of
the price range stated in an effective registration statement. See
id. at 1803.
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    The Exchange states that to assure that the issuer has the ability,
prior to the completion of the offering, to provide any necessary
additional disclosures that are dependent on the price of the offering,
the Exchange proposes to introduce to the operation of the Nasdaq Halt
Cross a brief Post-Pricing Period, in circumstances where the actual
price calculated by the Nasdaq Halt Cross is above the price that is
20% above the highest price of the price range established by the
issuer in its effective registration statement.\51\ Specifically, in
such circumstances, the Exchange would initiate a ``Post-Pricing
Period'' following the calculation of the actual price.\52\ During the
Post-Pricing Period, the issuer must confirm to the Exchange that no
additional disclosures are required under the federal securities laws
based on the actual price calculated by the Nasdaq Halt Cross. Further,
during this period no additional orders for the security could be
entered in the Nasdaq Halt Cross, and no existing orders could be
modified.\53\ The Exchange states that the security would be released
for trading immediately following the Post-Pricing Period.\54\ However,
if the Company cannot provide the required confirmation, then the
Exchange would postpone and reschedule the offering.\55\
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    \51\ See id. at 1801.
    \52\ See id.
    \53\ See id.
    \54\ See id.
    \55\ See id.
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    The Exchange also proposes to clarify several provisions of
existing Nasdaq Rule 4120(c)(9) without changing them.\56\
Specifically, the Exchange proposes to clarify the mechanics of the
Nasdaq Halt Cross by specifying that the Exchange will initiate a 10-
minute Display Only Period only after the CDL Order has been entered
and that the Exchange shall select price bands for purposes of applying
the price validation test in the Nasdaq Halt Cross in connection with a
Direct Listing with a Capital Raise.\57\ The Exchange proposes to
clarify that the ``actual price,'' as the term is used in the rule, is
the Current Reference Price at the time the system applies the price
validation test.\58\
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    \56\ See Amended Notice, supra note 11, 87 FR at 1802.
    \57\ See id. The Exchange would select an upper price band and a
lower price band with the default for an upper and lower price band
set at zero. The Exchange represents that if a security does not
pass the price validation test, the Exchange may select different
price bands before recommencing the process to release the security
for trading. See id.
    \58\ See id.
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    Nasdaq Listing Rule IM-5315-2 provides that in determining whether
a company listing in connection with a Direct Listing with a Capital
Raise satisfies the Market Value of Unrestricted Publicly Held Shares
\59\ for initial listing on the Nasdaq Global Select Market, the
Exchange will deem such company to have met the applicable requirement
\60\ if the amount of the company's Unrestricted Publicly Held Shares
before the offering, along with the market value of the shares to be
sold by the company in the Exchange's opening auction in the Direct
Listing with a Capital Raise, is at least $110 million (or $100
million, if the company has stockholders' equity of at least $110
million). For this purpose, under current rules, the Market Value of
Unrestricted Publicly Held Shares will be calculated using a price per
share equal to the lowest price of the disclosed price range.\61\ The
Exchange states that because the Exchange proposes to allow the opening
auction to price up to 20% below the lowest price of the disclosed
price range, the Exchange proposes to make a conforming change to
Nasdaq Listing Rule IM-5315-2 to provide that the price used to
determine such company's compliance with the required Market Value of
Unrestricted Publicly Held Shares would be the price per share equal to
the price that is 20% below the lowest price of the disclosed price
range.\62\ The Exchange further states that this is the minimum price
at which the company could qualify to be listed.\63\
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    \59\ See Nasdaq Listing Rule 5005(a)(23) and (45) for the
definitions of ``Market Value'' and ``Unrestricted Publicly Held
Shares,'' respectively.
    \60\ See Nasdaq Listing Rule 5315(f)(2).
    \61\ See Nasdaq Listing Rule IM-5315-2. The Exchange will
determine that the company has met the applicable bid price and
market capitalization requirements based on the same per share
price. See id.
    \62\ See Amended Notice, supra note 11, 87 FR at 1801.
    \63\ See id.
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    The Exchange states that any company listing in connection with a
Direct Listing with a Capital Raise would continue to be subject to,
and required to meet, all other applicable initial listing
requirements, including the requirements to have the applicable number
of shareholders and at least

1,250,000 Unrestricted Publicly Held Shares outstanding at the time of
initial listing, and the requirement to have a price per share of at
least $4.00 at the time of initial listing.\64\ The Exchange also
proposes to amend Nasdaq Listing Rule IM-5315-2 to specify that a
company offering securities for sale in connection with a Direct
Listing with a Capital Raise must register securities by specifying the
quantity of shares registered, as permitted by Securities Act Rule
457(a), and that securities qualified for listing under Nasdaq Listing
Rule IM-5315-2 must satisfy the additional requirements of Nasdaq Rule
4120(c)(9)(B).\65\
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    \64\ See id. at 1801-02 (citing Nasdaq Listing Rules 5315(e)(1)
and (2) and 5315(f)(1)).
    \65\ See proposed Nasdaq Listing Rule IM-5315-2.
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    Finally, the Exchange has proposed to amend Nasdaq Rules
4753(a)(3)(A) and 4753(b)(2) to conform the requirements for
disseminating information and establishing the opening price through
the Nasdaq Halt Cross in a Direct Listing with a Capital Raise to the
proposed amendment to allow the opening auction to price as much as 20%
below the lowest price of the disclosed price range.\66\ Specifically,
the Exchange proposes changes to Nasdaq Rules 4753(a)(3)(A) and
4753(b)(2) to make adjustments to the calculation of the Current
Reference Price, which is disseminated in the Nasdaq Order Imbalance
Indicator,\67\ and to the calculation of the price at which the Nasdaq
Halt Cross will execute, for a Direct Listing with a Capital Raise.
Under these rules currently, where there are multiple prices that would
satisfy the conditions for determining the price, the fourth tie-
breaker for a Direct Listing with a Capital Raise is the price that is
closest to the lowest price of the disclosed price range. The Exchange
states that, to conform these rules to the proposed modification of the
price range within which the opening auction would proceed, the
Exchange proposes to modify the fourth tie-breaker for a Direct Listing
with a Capital Raise to use the price closest to the price that is 20%
below the lowest price of the disclosed price range.\68\
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    \66\ See proposed Nasdaq Rules 4753(a)(3)(A)(iv)c. and
4753(b)(2)(D)(iii).
    \67\ See Nasdaq Rule 4753(a)(3) for a description of the ``Order
Imbalance Indicator.''
    \68\ See Amended Notice, supra note 11, 87 FR at 1802.
---------------------------------------------------------------------------

II. Discussion and Commission Findings

    Under Section 19(b)(2)(C) of the Exchange Act,\69\ the Commission
shall approve a proposed rule change of a self-regulatory organization
if it finds that such proposed rule change is consistent with the
requirements of the Exchange Act, and the rules and regulations
thereunder that are applicable to such organization.\70\ The Commission
shall disapprove a proposed rule change if it does not make such a
finding.\71\ The Commission's Rules of Practice, under Rule 700(b)(3),
state that the ``burden to demonstrate that a proposed rule change is
consistent with the Exchange Act and the rules and regulations
thereunder . . . is on the self-regulatory organization that proposed
the rule change'' and that a ``mere assertion that the proposed rule
change is consistent with those requirements . . . is not sufficient.''
\72\
---------------------------------------------------------------------------

    \69\ See 15 U.S.C. 78s(b)(2)(C).
    \70\ See 15 U.S.C. 78s(b)(2)(C)(i).
    \71\ See 15 U.S.C. 78s(b)(2)(C)(ii); and see also 17 CFR
201.700(b)(3).
    \72\ 17 CFR 201.700(b)(3).
---------------------------------------------------------------------------

    The description of a proposed rule change, its purpose and
operation, its effect, and a legal analysis of its consistency with
applicable requirements must all be sufficiently detailed and specific
to support an affirmative Commission finding,\73\ and any failure of
the self-regulatory organization to provide this information may result
in the Commission not having a sufficient basis to make an affirmative
finding that a proposed rule change is consistent with the Exchange Act
and the applicable rules and regulations.\74\ Moreover, ``unquestioning
reliance'' on a self-regulatory organization's representations in a
proposed rule change is not sufficient to justify Commission approval
of a proposed rule change.\75\
---------------------------------------------------------------------------

    \73\ See id.
    \74\ See id.
    \75\ Susquehanna Int'l Group, LLP v. Securities and Exchange
Commission, 866 F.3d 442, 447 (D.C. Cir. 2017).
---------------------------------------------------------------------------

    For the reasons discussed below, the Commission is disapproving the
proposed rule change because the information before the Commission is
insufficient to support a finding that the proposed rule change is
consistent with the requirements of the Exchange Act and the rules and
regulations thereunder applicable to a national securities exchange.
Specifically, the Commission concludes that the Exchange has not met
its burden to demonstrate that the proposed rule change is consistent
with Section 6(b)(5) of the Exchange Act, and in particular the
requirements that a national securities exchange's rules be designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, and to protect investors and the
public interest.
    The Commission has consistently recognized the importance of
national securities exchange listing standards. Among other things,
such listing standards help ensure that exchange-listed companies will
have sufficient public float, investor base, and trading interest to
provide the depth and liquidity necessary to promote fair and orderly
markets.\76\
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    \76\ The Commission has stated in approving national securities
exchange listing requirements that the development and enforcement
of adequate standards governing the listing of securities on an
exchange is an activity of critical importance to the financial
markets and the investing public. In addition, once a security has
been approved for initial listing, maintenance criteria allow an
exchange to monitor the status and trading characteristics of that
issue to ensure that it continues to meet the exchange's standards
for market depth and liquidity so that fair and orderly markets can
be maintained. See, e.g., 2021 Order, supra note 13, 86 FR at 28172
n.47; Securities Exchange Act Release Nos. 90768 (December 22,
2020), 85 FR 85807, 85811 n.55 (December 29, 2020) (SR-NYSE-2019-67)
(``NYSE 2020 Order''); 82627 (February 2, 2018), 83 FR 5650, 5653
n.53 (February 8, 2018) (SR-NYSE-2017-30) (``NYSE 2018 Order'');
81856 (October 11, 2017), 82 FR 48296, 48298 (October 17, 2017) (SR-
NYSE-2017-31); 81079 (July 5, 2017), 82 FR 32022, 32023 (July 11,
2017) (SR-NYSE-2017-11). The Commission has stated that adequate
listing standards, by promoting fair and orderly markets, are
consistent with Section 6(b)(5) of the Exchange Act, in that they
are, among other things, designed to prevent fraudulent and
manipulative acts and practices, promote just and equitable
principles of trade, and protect investors and the public interest.
See, e.g., 2021 Order, supra note 13, 86 FR at 28172 n.47; NYSE 2020
Order, 85 FR at 85811 n.55; NYSE 2018 Order, 83 FR at 5653 n.53;
Securities Exchange Act Release Nos. 87648 (December 3, 2019), 84 FR
67308, 67314 n.42 (December 9, 2019) (SR-NASDAQ-2019-059); 88716
(April 21, 2020), 85 FR 23393, 23395 n.22 (April 27, 2020) (SR-
NASDAQ-2020-001).
---------------------------------------------------------------------------

    The Exchange proposes to modify its rules concerning pricing
restrictions for the opening auction on the first day of trading for a
Direct Listing with a Capital Raise. Instead of imposing the Pricing
Range Limitation, which limits the price of the opening transaction to
the price range disclosed in the issuer's effective registration
statement, the proposal would allow the opening auction to proceed at a
price up to 20% above or below the disclosed price range, or at a price
more than 20% above the disclosed price range if certain additional
conditions are met.
    The Exchange states that it believes that its proposal to modify
the Pricing Range Limitation is consistent with the protection of
investors and argues that the proposal is similar to the pricing
flexibility that is permitted for a firm commitment underwritten
IPO.\77\ However, in the context of a firm

commitment underwritten IPO, the IPO price is determined prior to the
time of sale to the underwriters and initial investors, which takes
place in advance of the opening transaction on the Exchange.
Accordingly, issuers and underwriters have the ability to provide
investors with any necessary additional disclosures prior to completing
the offering, including those that are dependent on the price of the
offering, and to delay the offering if necessary to provide any such
disclosures. In contrast, in the context of a Direct Listing with a
Capital Raise, the IPO price is the opening auction price on the
Exchange, so that the IPO price and proceeds to the issuer are not
known by the issuer and market participants until the securities are
sold to investors in the opening transaction on the Exchange. The
Exchange's current rules for a Direct Listing with a Capital Raise
require it to postpone and reschedule the offering if the opening
auction price does not fall within the disclosed price range, so that
issuers are able to update any disclosures if necessary before
proceeding with an offering outside of the disclosed price range.
However, as discussed below, the Exchange's proposal to expand Direct
Listings with a Capital Raise would not ensure, in all cases, that
issuers conducting a Direct Listing with a Capital Raise would have an
opportunity to convey additional material information to investors, if
needed, prior to the time of sale.
---------------------------------------------------------------------------

    \77\ See Amended Notice, supra note 11, 87 FR at 1802.
---------------------------------------------------------------------------

    As discussed above, in cases where the opening auction price will
be more than 20% above the high end of the disclosed price range, an
issuer would have to have previously certified to the Exchange and
publicly disclosed, prior to the beginning of the Display Only
Period,\78\ that it does not expect such price to materially change the
issuer's previous disclosure in its effective registration statement.
In such cases, when the opening auction price will be more than 20%
above the high end of the disclosed price range, the issuer would then
need to confirm to the Exchange again, during the Post-Pricing Period,
that no additional disclosures are required under the federal
securities laws based on the actual price calculated in the auction. If
the issuer could not provide the required confirmation, the Exchange
would postpone and reschedule the offering.
---------------------------------------------------------------------------

    \78\ Starting at the beginning of the Display Only Period, the
Exchange would begin disseminating the Order Imbalance Indicator,
which includes the Current Reference Price and other order
information, every second. See proposed Nasdaq Rule
4120(c)(9)(B)(iv).
---------------------------------------------------------------------------

    However, the Exchange does not propose to apply these additional
protections to a Direct Listing with a Capital Raise where the opening
auction price will be outside of the disclosed price range, but up to
20% above the high end or 20% below the low end of such disclosed price
range. In these cases, the Exchange has not proposed any mechanism by
which an issuer or the Exchange could postpone or reschedule the
offering, even if the disclosures included in the registration
statement are not based on an opening auction price that is outside the
disclosed price range.\79\ The Exchange argues that under its proposal
an issuer in a Direct Listing with a Capital Raise would have the same
ability as an issuer in a firm commitment underwritten IPO to delay an
offering at any time.\80\ Under Nasdaq's proposal, however, should
concerns arise relating to the adequacy of the disclosure for an
offering that prices within 20% of the disclosed price range, the
Nasdaq procedures would not give the issuer the option to halt or delay
the offering once the issuer submits its order. If the opening auction
price would be up to 20% above the high end or 20% below the low end of
the disclosed price range and the conditions in proposed Nasdaq Rule
4120(c)(9)(B)(vii)(a) and (b) and the Price Volatility Constraint are
met, the opening auction would proceed.\81\ Accordingly, the Commission
does not believe that the proposal adequately addresses how an issuer
would be able to disclose any additional material information related
to the final offering price prior to the time of sale in a Direct
Listing with a Capital Raise where the actual price calculated in the
opening auction is higher or lower than, but no more than 20% outside
of, the disclosed price range.\82\ In these cases, the inability of an
issuer to provide potentially material disclosures to investors in a
timely manner prior to the sale of securities continues to raise
investor protection concerns under Section 6(b)(5) of the Exchange
Act.\83\ Therefore, the Exchange has not met its burden to demonstrate
that its proposal is consistent with the Exchange Act.
---------------------------------------------------------------------------

    \79\ Registration statements for initial public offerings
typically provide disclosure based on an assumed offering price
equal to the mid-point of the disclosed price range. They may or may
not contain additional information explaining how the disclosure
would change, including how the issuer's plans and financial
condition would be affected, given specified changes in the assumed
offering price. Moreover, the proposed Nasdaq rule would impose no
such obligation on offerings that price up to 20% above the high end
or 20% below the low end of the disclosed price range. As a result,
if the opening auction price is substantially below the low end of
the disclosed price range, depending on what information the issuer
had provided prior to effectiveness of the registration statement,
the issuer may need to provide additional disclosure relating to,
among other things, changes in the planned use of offering proceeds,
liquidity, or material risk factors.
    \80\ See Letter from Nikolai Utochkin, Counsel, Listing and
Governance, Nasdaq (December 21, 2021), at 8 (``Nasdaq Letter'').
    \81\ See proposed Nasdaq Rule 4120(c)(9)(B)(viii) (stating ``. .
. Nasdaq shall postpone and reschedule the pricing of the security
only if the conditions in paragraphs (vii) a. and b., above, are not
met.'').
    \82\ One commenter opposing the proposal raises concerns about
the potential absence of material information concerning the final
offering price prior to the time of the sale of shares in a Direct
Listing with a Capital Raise. See Letter from Jeffrey P. Mahoney,
General Counsel, Council of Institutional Investors (October 21,
2021), at 2 (``CII Letter''). This commenter states that its
sensitivity to this lack of disclosure in the Exchange proposal is
heightened by its broader concerns about the loss of investor
protections relating to direct listings generally, including the
difficulties of investors in bringing claims under Section 11 of the
Securities Act for material misstatements or omissions in direct
listing registration statements. The commenter argues that investors
in direct listings, including Direct Listings with a Capital Raise,
are likely to continue to have ``fewer legal rights than investors
in a traditional initial public offering.'' See id. at 4. The
Exchange has not responded to this commenter's concerns, including
the concern relating to ``tracing'' share purchases for purposes of
Section 11 claims, in its proposal.
    \83\ See OIP, supra note 8.
---------------------------------------------------------------------------

    Similarly, in cases where the opening auction price will be more
than 20% above the high end of the disclosed price range, the issuer
would have to have included in its registration statement a sensitivity
analysis explaining how the issuer's plans would change if the actual
proceeds from the offering exceeded the amount assumed in the disclosed
price range. The Exchange states that requiring this sensitivity
analysis is designed to protect investors because it allows investors
to see how changes in the share price ripple through critical elements
of the companies' disclosure.\84\ However, this sensitivity analysis is
not required under the Exchange's proposal in cases where the actual
price calculated in the opening auction for a Direct Listing with a
Capital Raise is higher or lower than, but no more than 20% outside of,
the disclosed price range. This could result in an offering proceeding
without investors having the opportunity to receive additional material
information, such as a sensitivity analysis, in these cases. As noted
above, the Commission believes this could raise investor protection
concerns under Section 6(b)(5) of the Exchange Act.
---------------------------------------------------------------------------

    \84\ See Nasdaq Letter, at 3. See also id. at 7-8 (describing
the requirements that would apply to an offering that prices more
than 20% above the high end of the disclosed price range).
---------------------------------------------------------------------------

    In addition, the Exchange proposes to establish a Price Volatility
Constraint, which would require that the Current

Reference Price not deviate by 10% or more from any Current Reference
Price in the previous 10 minutes, as a condition to the opening auction
in a Direct Listing with a Capital Raise.\85\ Specifically, the
Exchange's proposal provides that ``[t]he Pre-Launch Period shall
continue until the Price Volatility Constraint is satisfied.'' \86\ The
Exchange also proposes to disseminate information about whether the
Price Volatility Constraint has been satisfied, which, according to the
Exchange, ``will indicate whether the security is ready to trade,'' and
``will provide investors with notice that the Cross nears execution.''
\87\ Once the Price Volatility Constraint is satisfied, however, there
are additional conditions that must be met before the opening cross
will occur and in the intervening period the expected opening auction
price may change because orders can continue to be entered and
cancelled.\88\ Specifically, the Exchange, in consultation with the
financial advisor to the issuer, must make the determination that the
security is ready to trade, and several additional conditions specified
in proposed Nasdaq Rule 4120(c)(9)(B)(vii) and (viii) must be met,
including the potential initiation and conclusion of a Post-Pricing
Period.\89\ Thus, it would appear that there could be a substantial
price change during the period of time between the Exchange's
dissemination of the fact that the Price Volatility Constraint has been
satisfied and the actual execution of the opening cross for a Direct
Listing with a Capital Raise. In such event, investors could be misled
that the opening cross ``nears execution'' and that the disseminated
Current Reference Price will likely be close to the opening auction
price when, in fact, the auction may not occur for a considerable time
and the opening auction price may differ substantially. The Exchange
has not addressed this potential discrepancy between the stated purpose
of the proposed dissemination of the Price Volatility Constraint, and
its potential application in practice, or explained how this result
would be consistent with the protection of investors, the public
interest, or the other requirements of Section 6(b)(5) of the Exchange
Act.
---------------------------------------------------------------------------

    \85\ See supra notes 37-39 and accompanying text.
    \86\ Proposed Nasdaq Rule 4120(c)(9)(B)(vii).
    \87\ Amended Notice, supra note 11, 87 FR at 1800-01. See
proposed Nasdaq Rule 4120(c)(9)(B)(v) stating that the Price
Volatility Constraint ``indicates that the security may be ready to
trade.'' See also Nasdaq Letter, at 7 (``Then, Nasdaq will publicly
indicate when the Price Volatility Constraint has been met, thus
providing investors with real time information that the price
discovery process nears completion and the security is ready to
trade shortly.'')
    \88\ The Exchange's proposal states that investors could enter
additional orders or cancel existing orders throughout the pre-
opening process until the actual opening auction price is
calculated; therefore, the Current Reference Price may change
throughout this time period. See proposed Nasdaq Rule
4120(c)(9)(B)(v) and (viii)(b).
    \89\ These conditions also include a determination that the
issuer's CDL Order will be executed in full in the Nasdaq Halt
Cross, a price validation test, and satisfaction of the pricing
conditions. See proposed Nasdaq Rule 4120(c)(9)(B)(vii).
---------------------------------------------------------------------------

    As stated above, under the Commission's Rules of Practice, the
``burden to demonstrate that a proposed rule change is consistent with
the Exchange Act and the rules and regulations issued thereunder . . .
is on the self-regulatory organization that proposed the rule
change.\90\ For the foregoing reasons, the Exchange has not met its
burden to demonstrate that its proposal is consistent with the Exchange
Act. In particular, the Exchange has not adequately demonstrated that
its proposal to allow a Direct Listing with a Capital Raise to proceed
at an opening auction price that falls outside of the disclosed price
range is consistent with investor protection, the public interest, and
other relevant provisions of Section 6(b)(5) of the Exchange Act. \91\
Accordingly, for the reasons set forth above, the Commission must
disapprove the proposed rule change, as modified by Amendment No. 2,
because the Exchange has not met its burden to demonstrate that the
proposal is consistent with Section 6(b)(5) of the Exchange Act.\92\
---------------------------------------------------------------------------

    \90\ Rule 700(b)(3), Commission Rules of Practice, 17 CFR
201.700(b)(3).
    \91\ 15 U.S.C. 78f(b)(5).
    \92\ In disapproving the proposed rule change, the Commission
has considered its impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f). According to the Exchange, the
proposal would give issuers additional flexibility in becoming a
public company, and in that way promote competition among service
providers, such as underwriters and other advisers, to such
companies. See Amended Notice, supra note 11, 87 FR at 1804. One
commenter expresses its belief that the ability for companies to
raise primary capital in a direct listing provides companies with
additional choice and flexibility as they consider alternatives to
going public and, therefore, helps facilitate capital formation. See
Letter from Evan Damast, Global Head of Equity and Fixed Income
Syndicate, Morgan Stanley (July 21, 2021); Letter from Evan Damast,
Global Head of Equity and Fixed Income Syndicate, Morgan Stanley
(February 1, 2022). Another commenter states that adding a primary
capital raise to a direct listing would advance the efficiency and
openness of the U.S. capital markets and solve a conflict of
interest problem. See Letter from Bill Gurley, General Partner,
Benchmark (February 2, 2022). See also Letter from Ran D. Ben-Tzur
and Jennifer J. Hitchcock, Fenwick & West LLP (February 1, 2022)
(stating that the proposal would mitigate issuers' reluctance to use
a Direct Listing with a Capital Raise because traditional IPOs are
not subject to similar price range limitations); Letter from Barry
McCarthy (February 1, 2022) (stating that Direct Listings with a
Capital Raise are the next logical evolution of a direct listing,
but will not work with the current price range constraints). Another
commenter states that it believes the proposal would stimulate a
vibrant ecosystem of data and analytics and fintech companies to
further refine IPO pricing accuracy and broaden investor
participation, thus improving capital intermediation for U.S.
markets. See Letter from Burke Dempsey, EVP Head of Investment
Banking, Wedbush Securities Inc. (August 9, 2021). For the reasons
discussed throughout, however, the Commission is disapproving the
proposed rule change because it does not find that the proposed rule
change is consistent with the Exchange Act.
---------------------------------------------------------------------------

III. Conclusion

    The Commission does not find, pursuant to Section 19(b)(2) of the
Exchange Act,\93\ that the proposed rule change is consistent with the
Exchange Act and the rules and regulations thereunder applicable to a
national securities exchange, and, in particular, with Section 6(b)(5)
of the Exchange Act.
---------------------------------------------------------------------------

    \93\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Exchange Act, that the proposed rule change (SR-NASDAQ-2021-045), as
modified by Amendment No. 2, be, and hereby is, Disapproved.
    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\94\
---------------------------------------------------------------------------

    \94\ 17 CFR 200.30-3(a)(12).

Eduardo Aleman,
Assistant Secretary.
[FR Doc. 2022-04336 Filed 3-1-22; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 78, Number 45 (Thursday, March 7, 2013)]
[Notices]
[Pages 14866-14867]
[FR Doc No: 2013-05283]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69017; File No. SR-CME-2013-01]

Self-Regulatory Organizations; Chicago Mercantile Exchange Inc.;
Notice of Filing and Order Granting Accelerated Approval of Proposed
Rule Change Regarding an Increase of CME Corporate Contribution to
Interest Rate Swaps Financial Safeguards Package

March 1, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 1, 2013, Chicago Mercantile Exchange Inc. (``CME'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule change described in Items I and II below, which Items have been
prepared primarily by CME. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons
and to approve the proposed rule change on an accelerated basis.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4 .
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    CME proposes to amend rules related to its business as a
derivatives clearing organization offering interest rate swap (``IRS'')
clearing services. More specifically, CME proposes to increase CME's
corporate contribution to the financial safeguards for IRS to
$150,000,000.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, CME included statements
concerning the purpose of, and statutory basis for, the proposed rule
change and discussed any comments it received on the proposed rule
change. The text of these statements may be examined at the places
specified in Item III below. CME has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    CME is registered as a derivatives clearing organization with the
Commodity Futures Trading Commission (``CFTC'') and currently offers
clearing services for IRS. With this filing, CME proposes to increase
CME's corporate contribution to the financial safeguards for IRS to
$150,000,000. CME proposes to implement such amendments on March 1,
2013.
    CME periodically assesses the structure of its financial safeguards
packages. In assessing the financial safeguards available for IRS
products, CME determined that an increase to the CME corporate
contribution is appropriate. An amendment to CME Rule 8G802.B.1 is
proposed which would reflect the increase in such contribution and an
amendment to Rule 8G802.H is proposed which would reflect a conforming
change to the CME contribution during an IRS Cooling Off Period.
    CME notes that it has also submitted the proposed rule change that
is the subject of this filing to its primary regulator, the CFTC, in
CME Submission 13-045.
    CME believes the proposed rule change is consistent with the
requirements of the Act, including Section 17A of the Act. The proposed
rule change involves improvements to CME's IRS product offering for
investors because it increases the amount of financial resources
available to support the default of an IRS Clearing member at CME and
as such is designed to promote the prompt and accurate clearance and
settlement of securities transactions and derivatives agreements,
contracts and transactions, to assure the safeguarding of securities
and funds which are in the custody or control of the clearing agency
and, in general, help to protect investors and the public interest.
Furthermore, the proposed rule change is limited to the clearing of IRS
(that is, swaps) and thus relate solely to the CME's swaps clearing
activities pursuant to its registration as a derivatives clearing
organization under the Commodity Exchange Act (``CEA'') and do not
significantly affect any securities clearing operations of the clearing
agency or any related rights or obligations of the clearing agency or
persons using such service.
    CME further notes that the policies of the CEA with respect to
clearing are comparable to a number of the policies underlying the
Exchange Act, such as promoting market transparency for over-the-
counter derivatives markets, promoting the prompt and accurate
clearance of transactions and protecting investors and the public
interest.

B. Self-Regulatory Organization's Statement on Burden on Competition

    CME does not believe that the proposed rule change will have any
impact, or impose any burden, on competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    CME has not solicited, and does not intend to solicit, comments
regarding this proposed rule change. CME has not received any
unsolicited written comments from interested parties.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml) or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CME-2013-01 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-CME-2013-01. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and

printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of CME and on CME's
Web site at http://www.cmegroup.com/market-regulation/rule-filings.html.
    All comments received will be posted without change; the Commission
does not edit personal identifying information from submissions. You
should submit only information that you wish to make available
publicly. All submissions should refer to File Number SR-CME-2013-01
and should be submitted on or before March 28, 2013.

IV. Commission's Findings and Order Granting Accelerated Approval of
Proposed Rule Change

    Section 19(b) of the Act \3\ directs the Commission to approve a
proposed rule change of a self-regulatory organization if it finds that
such proposed rule change is consistent with the requirements of the
Act and the rules and regulations thereunder applicable to such
organization. The Commission finds that the proposed rule change is
consistent with the requirements of the Act, in particular the
requirements of Section 17A of the Act,\4\ and the rules and
regulations thereunder applicable to CME. Specifically, the Commission
finds that the proposed rule change is consistent with Section
17A(b)(3)(F) of the Act,\5\ which requires, among other things, that
the rules of a clearing agency be designed to assure the safeguarding
of securities and funds which are in the custody or control of the
clearing agency or for which it is responsible and to protect investors
and the public interest, because the proposed rule change would allow
CME to enhance the financial safeguards package that applies to its IRS
clearing business.
---------------------------------------------------------------------------

    \3\ 15 U.S.C. 78s(b).
    \4\ 15 U.S.C. 78q-1. In approving this proposed rule change, the
Commission has considered the proposed rule's impact on efficiency,
competition, and capital formation. 15 U.S.C. 78c(f).
    \5\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    In its filing, CME requested that the Commission approve the
proposed rule change on an accelerated basis for good cause shown. The
Commission finds good cause, pursuant to Section 19(b)(2) of the
Act,\6\ for approving the proposed rule change prior to the 30th day
after the date of publication of notice of filing in the Federal
Register because (i) the proposed rule changes relate solely to IRS and
therefore relate solely to CME's swaps clearing activities and do not
significantly relate to CME's functions as a clearing agency for
security-based swaps; and (ii) the proposed rules change would increase
the amount of financial resources available to support the default of
an IRS Clearing member at CME and therefore will protect investors and
the public interest.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\7\ that the proposed rule change (SR-CME-2013-01) be, and hereby
is, approved on an accelerated basis.
---------------------------------------------------------------------------

    \7\ Id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
---------------------------------------------------------------------------

    \8\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-05283 Filed 3-6-13; 8:45 am]
BILLING CODE 8011-01-P