United States: SEC Requests Comment On NMS Plan To Implement Tick Size Pilot Program For Small Cap Stocks

In June, the Securities and Exchange Commission ("SEC" or "Commission") issued an order directing the national securities exchanges and the Financial Industry Regulatory Authority (collectively, the "Participants") to act jointly in developing and filing with the Commission a national market system plan to implement a tick size pilot program ("Order"). On August 25, 2014, the Participants filed a proposal to establish a national market system plan (the "Plan") describing a one-year pilot program to widen the minimum quoting and trading increments for some stocks with smaller capitalizations ("Pilot Program").¹ The Plan sets forth proposed procedures for selecting a representative group of stocks of small capitalization companies ("Pilot Securities") and subjecting groups of those Pilot Securities ("test groups") to various requirements with regards to quoting and trading increments. As set forth in more detail in the Plan, Participants would be required to adopt rules to ensure that Pilot Securities in the test groups are quoted and traded in permitted increments. 

The Plan is a response to concerns that the existing minimum pricing increments (exchange-traded stocks priced equal to or greater than $1.00 per share trade in minimum increments of a penny) may be detrimental to small and mid-size companies.² The Plan is intended to assist the Commission, market participants, and the public in assessing the impact of different increment conventions on the trading and liquidity of stocks of small capitalization companies, and whether "wider minimum tick sizes for small capitalization stocks would enhance market quality to the benefit of market participants, issuers, and U.S. investors."³

The Plan was published in the Federal Register on November 7, 2014, along with the Commission's request for comments by December 22, 2014.⁴ If the Plan is approved, the effective date of the Pilot Program would be no sooner than 180 calendar days following the publication of the Commission's approval order of the Plan in the Federal Register. To date, nine commenters have submitted comment letters regarding the Plan to the Commission. 

This alert summarizes key aspects of the proposed Plan.  

1. What securities would be affected by the Plan? 

Pilot Securities would include NMS stocks that are common stock of an operating company ("NMS common stock") and that meet the following criteria during the relevant measurement period, that is, the U.S. trading days during the three calendar months ending at least 30 days before the start of the Pilot Program:

• A market capitalization of $5 billion or less on the last day of the measurement period;
• A consolidated average daily volume of one million shares or less during the measurement period;
• A measurement period volume-weighted average price of at least $2;
• A closing price of at least $2 on the last day of the measurement period; and 
• A closing price of not less than $1.50 on every trading day during the measurement period.

Pilot Securities with prices that fall below $1.00 during the Pilot would remain in the program. The Pilot would exclude any NMS common stock that has its initial public offering within six months of the start of the one-year pilot period ("Pilot Period"), because there would be insufficient baseline data against which to compare the Pilot performance of these stocks. 

Each primary listing exchange will make publicly available for free on its website a list of those Pilot Securities listed on that exchange and included in the control group and in each test group. The list will be adjusted for ticker symbol changes and relevant corporate actions.⁵

2. How will Pilot Securities be allocated to different groups for testing? 
 
The Pilot would be structured around four groups of securities—three test groups of 400 securities each and a control group of the remaining securities. After the complete list of Pilot Securities is determined, the Participants will select, by means of a stratified random sampling process, the Pilot Securities to be placed into the three test groups. Those Pilot Securities not placed into the three test groups will constitute the control group. To effect the stratified random sampling, Pilot Securities will be categorized based on price, market capitalization, and trading volume, with each of those categories further subdivided into low, medium, or high subcategories (each one-third of the larger category), for a total of 27 categories. A random sample of Pilot Securities from each of the 27 categories will be placed into the three test groups, in a number proportional to the category's size relative to the population of Pilot Securities. A primary listing market's stocks will be selected from each category and included in the three test groups in the same proportion as that primary listing market's stocks comprise each category of Pilot Securities. 

3. What restrictions on quoting and trading would the Plan impose? 

The Pilot Program would restrict quoting and trading increments for securities in the three test groups, as discussed below. To provide a baseline to analyze the economic effects of the wider quoting and trading increments required by the test groups, securities in the control group may be quoted and traded at any price increment currently permitted.

A. Test Group One

Securities in the first test group would be quoted in $0.05 minimum increments, but may continue to trade at any price increment currently permitted. Participants would adopt rules prohibiting Participants or members of Participants from displaying, ranking, or accepting from any person any displayable and any non-displayable bids or offers, orders, or indications of interest in in any Pilot Security in this test group in price increments other than $0.05. However, orders priced to execute at the midpoint and orders entered into a Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05. 

B. Test Group Two 

Pilot Securities in this test group will be subject to the same quoting requirements as test group one, along with the applicable quoting exceptions. In addition, securities in the second test group may only be traded in $0.05 minimum increments, subject to certain exceptions. Participants would adopt rules prohibiting trading centers operated by Participants and members of Participants from executing orders in any Pilot Security in this test group in price increments other than $0.05. The $0.05 minimum trading increment also will apply to brokered cross-trades.⁶

Pilot Securities in this test group may trade in increments less than $0.05 under the following circumstances:

• Trading may occur at the midpoint between the National Best Bid and the National Best Offer ("NBBO"), or the midpoint between the best protected bid and the best protected offer;
• Retail Investor Orders⁷ may be provided with price improvement that is at least $0.005 better than the best protected bid or the best protected offer; and
• Negotiated Trades⁸ may trade in increments of less than $0.05.

C. Test Group Three
 
Securities in the third test group would be subject to the same quoting and trading restrictions as those in test group two, along with the applicable exceptions. In addition, with certain exceptions, test group three securities would be subject to a "trade-at" prohibition. The trade-at prohibition of the Plan, operating in conjunction with applicable exceptions, generally would condition the ability of a trading center to execute at a protected quotation on that trading center's contemporaneous display of liquidity, either via a processor⁹ or an SRO quotation feed,¹⁰ at that, or a superior, price level, thereby discouraging passive price-matching and incentivizing aggressive quoting. Under the trade-at prohibition, the Plan will (a) prevent a trading center that was not quoting from price-matching protected quotations and (b) permit a trading center that was quoting at a protected quotation to execute orders at that level, but only up to the amount of its displayed size. 

Accordingly, the Plan provides that Participants would adopt rules prohibiting trading centers operated by Participants and members of Participants from executing a sell order for a Pilot Security at the price of a protected bid or a buy order for a Pilot Security at the price of a protected offer for these securities. Trading centers will be permitted to execute an order for a Pilot Security at a price equal to a protected bid or protected offer under the following circumstances: 

• The order is executed by a trading center that is displaying a quotation, via either a processor or an SRO quotation feed, at a price equal to the traded-at protected quotation but only up to the trading center's full displayed size. Where the quotation is displayed through a national securities exchange, the execution at the size of the order must occur against the displayed size on that national securities exchange. Where the quotation is displayed through the Alternative Display Facility or another facility approved by the Commission that does not provide execution functionality, the execution at the size of the order must occur against the displayed size in accordance with the rules of the Alternative Display Facility or such approved facility;
• The order is of Block Size (as defined in Regulation NMS);
• The order is a Retail Investor Order executed with at least $0.005 price improvement;
• The order is executed when the trading center displaying the protected quotation that was traded at was experiencing a failure, material delay, or malfunction of its systems or equipment;
• The order is executed as part of a transaction that was not a "regular way" contract;
• The order is executed as part of a single-priced opening, reopening, or closing transaction by the trading center;
• The order is executed when a protected bid was priced higher than a protected offer in the Pilot Security;
• The order is identified as an Intermarket Sweep Order;
• The order is executed by a trading center that simultaneously routed Trade-at Intermarket Sweep Orders¹¹ to execute against the full displayed size of any protected quotation in the Pilot Security that was traded at;
• The order is executed as part of a Negotiated Trade;
• The order is executed when the trading center displaying the protected quotation that was traded at had displayed, within one second prior to execution of the transaction that constituted the trade-at, a best bid or best offer, as applicable, for the Pilot Security with a price that was inferior to the price of the trade-at transaction;
• The order is executed by a trading center which, at the time of order receipt, the trading center had guaranteed an execution at no worse than a specified price (a "stopped order"), where: (a) the stopped order was for the account of a customer; (b) the customer agreed to the specified price on an order-by-order basis; and (c) the price of the trade-at transaction was, for a stopped buy order, equal to the national best bid in the Pilot Security at the time of execution or, for a stopped sell order, equal to the national best offer in the Pilot Security at the time of execution; or
• The order is for a fractional share of a Pilot Security, provided that such fractional share order was not the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or was not otherwise effected to evade the requirements of the trade-at prohibition or any other provisions of the Plan.

4. Did the Participants provide examples of the operation of the trade-at prohibition? 

To illustrate the operation of the trade-at prohibition, the Participants included the following examples in their proposal: 

Example One
 
The NBBO for Pilot Security ABC is $20.00 × $20.10. Trading Center 1 is displaying a 100-share protected bid at $20.00. Trading Center 2 is displaying a 100-share protected bid at $19.95. There are no other protected bids. Trading Center 3 is not displaying any shares in Pilot Security ABC but has 100 shares hidden at $20.00 and has 100 shares hidden at $19.95. Trading Center 3 receives an incoming order to sell for 400 shares. To execute the 100 shares hidden at $20.00, Trading Center 3 must respect the protected bid on Trading Center 1 at $20.00. Trading Center 3 must route a Trade-at Intermarket Sweep Order to Trading Center 1 to execute against the full displayed size of the protected bid, at which point Trading Center 3 is permitted to execute against the 100 shares hidden at $20.00. To execute the 100 shares hidden at $19.95, Trading Center 3 must respect the protected bid on Trading Center 2 at $19.95. Trading Center 3 must route a Trade-at Intermarket Sweep Order to Trading Center 2 to execute against the full displayed size of the protected bid, at which point Trading Center 3 is permitted to execute against the 100 shares hidden at $19.95.¹²

Example Two 

The NBBO for Pilot Security ABC is $20.00 × $20.10. Trading Center 1 is displaying a 100-share protected bid at $20.00. Trading Center 2 is displaying a 100-share protected bid at $20.00. Trading Center 2 also has 300 shares hidden at $20.00 and has 300 shares hidden at $19.95. Trading Center 3 is displaying a 100-share protected bid at $19.95. There are no other protected bids. Trading Center 2 receives an incoming order to sell for 900 shares. Trading Center 2 may execute 100 shares against its full displayed size at the protected bid at $20.00. To execute the 300 shares hidden at $20.00, Trading Center 2 must respect the protected bid on Trading Center 1 at $20.00. Trading Center 2 must route a Trade-at Intermarket Sweep Order to Trading Center 1 to execute against the full displayed size of Trading Center 1's protected bid, at which point Trading Center 2 is permitted to execute against the 300 shares hidden at $20.00. To execute the 300 shares hidden at $19.95, Trading Center 2 must respect the protected bid on Trading Center 3 at $19.95. Trading Center 2 must route a Trade-at Intermarket Sweep Order to Trading Center 3 to execute against the full displayed size of Trading Center 3's protected bid, at which point Trading Center 2 is permitted to execute against the 300 shares hidden at $19.95.¹³

Example Three 

The NBBO for Pilot Security ABC is $20.00 × $20.10. Trading Center 1 is displaying a 100-share protected bid at $20.00. Trading Center 1 is also displaying 300 shares at $19.90 on an SRO quotation feed. Trading Center 2 is displaying a 100-share protected bid at $19.95. Trading Center 2 is also displaying 200 shares on an SRO quotation feed at $19.90 and has 200 shares hidden at $19.90. Trading Center 3 is displaying a 100-share protected bid at $19.90. There are no other protected bids. Trading Center 2 receives an incoming order to sell for 700 shares. To execute against its protected bid at $19.95, Trading Center 2 must comply with the trade-through restrictions in Rule 611 and route an intermarket sweep order to Trading Center 1 to execute against the full displayed size of Trading Center 1's protected bid at $20.00. Trading Center 2 is then permitted to execute against its 100-share protected bid at $19.95. Trading Center 2 may then execute 200 shares against its full displayed size at the price of Trading Center 3's protected bid. To execute the 200 shares hidden at $19.90, Trading Center 2 must respect the protected bid on Trading Center 3 at $19.90. Trading Center 2 must route a Trade-at Intermarket Sweep Order to Trading Center 3 to execute against the full displayed size of Trading Center 3's protected bid, at which point Trading Center 2 is permitted to execute against the 200 shares hidden at $19.90. Trading Center 2 does not have to respect Trading Center 1's displayed size at $19.90 for trade-at purposes because it is not a protected quotation.¹⁴ 
 
5. What data would be collected and published under the proposed Plan?
 
Throughout the Pilot Period, Participants would collect a variety of data with respect to Pilot Securities,¹⁵ including the following:

• Daily market quality statistics of orders by security, order type, original order size, hidden status, and coverage under Rule 605 of Regulation NMS;
• Specified data regarding market orders and marketable limit orders; 
• Daily number of registered Market Makers;¹⁶ and
• Daily Market Maker participation statistics.

In addition, members of Participants would be required to collect and provide to their designated examining authority the data in the first two bullets above, as applicable, subject to certain terms and conditions in the Plan. Participants and members of Participants operating a trading center also would be required to collect this data starting six months prior to the commencement of the Pilot Program, and for six months following the termination of the Pilot Program. Participants and the designated examining authorities will make the data publicly available for free on their websites, and will report the data to the SEC on a monthly basis. The data will be provided on a disaggregated basis by trading center. The data made publicly available will not identify the trading center that generated the data. 

Market Makers will be required to provide to their designated examining authority specified data with respect to their Market Maker trading profits.¹⁷ On a monthly basis, each designated examining authority will aggregate this data, report it to the SEC, and make it publicly available on its website. Such data also will be provided for dates starting six months prior to the Pilot Period through six months after the end of the Pilot Period. The designated examining authority would develop policies and procedures reasonably designed to ensure the confidentiality of the non-aggregated data it receives from Market Makers. The data made publicly available will not identify the Market Makers that generated the data. 

Participants, members of Participants, and Market Makers would be required to develop policies and procedures for collecting and reporting the data required by the Pilot Program.  

6. How will the proposed pilot be assessed? 

Within six months of the end of the Pilot Period, the Participants will provide to the Commission and make publicly available a joint assessment of the impact of the Pilot. Such assessment will include:

• An assessment of the statistical and economic impact of an increase in the quoting increment on market quality, the number of Market Makers; Market Maker participation; and market transparency;
• An evaluation of whether any market capitalization, daily trading volume, or other thresholds can differentiate the results of the above assessments across stocks;
• An assessment of the statistical and economic impact of the above assessments for the incremental impact of a trading increment and for the joint effect of an increase in a quoting increment with the addition of a trading increment; 
• An assessment of the statistical and economic impact of the above assessments for the incremental impact of a trade-at prohibition and for the joint effect of an increase in a quoting increment with the addition of a trading increment and a trade-at prohibition; and 
• An assessment of any other economic issues that the Participants believe the Commission should consider in any rulemaking that may follow the Pilot.

Further, Participants may individually submit to the Commission and make publicly available additional supplemental assessments of the impact of the Pilot Program. 

7. How does the proposed Plan differ from the Commission's Order?  

The Plan differs from the requirements in the SEC's Order in various respects. For example, the SEC's Order called for the Pilot to categorize securities only by price and market capitalization. The Plan added trading volume as a category. The Participants believe that this additional category, and the more detailed groupings it will entail, will aid the assessment process by expanding the characteristics examined.¹⁸    

The SEC's Order also called for test groups of 300 securities each, whereas the Plan proposes test groups of 400 securities. The Participants argued that this increase would allow for sufficient statistical size even if some securities need to be removed from the Pilot due to unforeseen events.¹⁹ 

The Plan's trade-at prohibition focuses on the concept of a "protected quotation," rather than the NBBO, as in the SEC's Order. Participants argued that the "protected quotation" standard provides broader protection for displayed liquidity than the NBBO, and that using "protected quotation" would be aligned with Regulation NMS, consistent with the current configuration of trading center systems, and simple to apply as a definition.²⁰ Despite the different focus, Participants argued that this approach is consistent with the Order's goals of protecting displayed liquidity and preventing passive price matching for the relevant group of test securities. 

The Plan also excludes from the exceptions to the trade-at prohibition the significant price improvement exception listed in the SEC's Order.²¹ Participants argued that this exception would be superfluous, because the applicable trading and quoting increments would ensure that any execution of an order at a price superior to a protected quotation will necessarily result in significant price improvement.²²

Finally, the Plan omits the requirement for the Participants to assess the effect of the quoting and trading increment requirements on Market Maker profitability, as called for in the SEC's Order. The Participants argued that Market Makers will be in a better position than the Participants to analyze the effects of the Pilot Program on Market Maker profitability.²³

8. What is the focus of the Commission's request for comments? 

The Commission requested comments on many details of the proposed Plan.²⁴ Generally, the SEC's request for comment focuses on:

• Potential costs of the Plan;
• Alternative initiatives;
• The adequacy of the data that would be generated;
• The fit between the structure of the pilot and the data required for satisfactory evaluation and research;
• Consequences unintended by the Participants;
• The differences between the proposed Plan and the Commission's Order;
• Any potential harm to investors;
• The selection process for Pilot Securities; 
• The proposed groupings of securities in the test; and
• The inclusion of the trade-at prohibition in the Pilot Program.     

¹ See Plan to Implement a Tick Size Pilot Program Submitted to the Securities and Exchange Commission Pursuant to Rule 608 of Regulation NMS Under the Securities Exchange Act of 1934 (Aug. 25, 2014), available at http://www.sec.gov/divisions/marketreg/tick-size-pilot-plan-final.pdf; see also Letter from Brendon J. Weiss, Intercontinental Exchange/NYSE to Secretary, Securities and Exchange Commission (Aug. 25, 2014), available at http://www.sec.gov/divisions/marketreg/tick-size-pilot-plan-transmittal-letter.pdf.
 
²See Order Directing the Exchanges and the Financial Industry Regulatory Authority to Submit a Tick Size Pilot Plan, Securities Exchange Act Rel. No. 72460 (June 24, 2014), 79 Fed. Reg. 36840, 36840-443 (Jun. 30, 2014) ("Order"). 
 
³Id. at 36843.
 
⁴See Joint Industry Plan; BATS Exchange, Inc., BATS-Y Exchange, Inc., Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, The Nasdaq Stock Market LLC, New York Stock Exchange LLC, NYSE MKT LLC, and NYSE Arca, Inc.; Notice of Filing of Proposed National Market System Plan to Implement a Tick Size Pilot Program on a One-Year Pilot Basis, Securities Exchange Act Rel. No. 73511 (Nov. 3, 2014), 79 Fed. Reg. 66423 (Nov. 7, 2014) ("Proposing Release").
 
⁵ Appendix A to the Plan sets forth the data to be included in such lists.
 
⁶ The Plan defines a "brokered cross-trade" as "a trade that a broker-dealer that is a member of a Participant executes directly by matching simultaneously buy and sell orders for a Pilot Security."
 
⁷ "Retail Investor Orders" is defined in the Plan as "an agency order or a riskless principal order originating from a natural person, provided that, prior to submission, no change is made to the terms of the order with respect to price or side of market and the order does not originate from a trade algorithm or any other computerized methodology."
 
⁸ "Negotiated Trades" are defined in the Plan as "(i) a Benchmark trade, including, but not limited to, a Volume-Weighted Average Price trade or a Time-Weighted Average Price trade, provided that, if such a trade is composed of two or more component trades, each component trade complies with the quoting and trading increment requirements of the Plan, or with an exception to such requirements, or (ii) a Pilot Qualified Contingent Trade."  In turn, a "Benchmark Trade" is defined as "the execution of an order at a price that was not based, directly or indirectly, on the quoted price of a Pilot Security at the time of execution and for which the material terms were not reasonably determinable at the time the commitment to execute the order was made." The Plan defines a "Pilot Qualified Contingent Trade" as "a transaction consisting of two or more component orders, executed as agent or principal, where: (1) at least one component order is in an NMS common stock; (2) all components are effected with a product or price contingency that either has been agreed to by the respective counterparties or arranged for by a broker-dealer as principal or agent; (3) the execution of one component is contingent upon the execution of all other components at or near the same time; (4) the specific relationship between the component orders (e.g., the spread between the prices of the component orders) is determined at the time the contingent order is placed; (5) the component orders bear a derivative relationship to one another, represent different classes of shares of the same issuer, or involve the securities of participants in mergers or with intentions to merge that have been announced or since cancelled; and (6) the transaction is fully hedged (without regard to any prior existing position) as a result of the other components of the contingent trade."
 
⁹ "Processor" is defined in the Plan as the single plan processor responsible for the consolidation of information for an NMS stock pursuant to Rule 603(b) of Regulation NMS under the Exchange Act.
 
¹⁰ "SRO quotation feed" is defined in the Plan as any market data feed disseminated by a self-regulatory organization.
 
¹¹ A "Trade-at Intermarket Sweep Order" is defined in the Plan as a limit order for a Pilot Security that meets the following requirements: (1) When routed to a trading center, the limit order is identified as an Intermarket Sweep Order; and (2) Simultaneously with the routing of the limit order identified as an Intermarket Sweep Order, one or more additional limit orders, as necessary, are routed to execute against the full displayed size of any protected bid, in the case of a limit order to sell, or the full displayed size of any protected offer, in the case of a limit order to buy, for the Pilot Security with a price that is equal to the limit price of the limit order identified as an Intermarket Sweep Order. These additional routed orders also must be marked as Intermarket Sweep Orders. This usage of an ISO differs from the definition of ISO in Rule 600(b)(30) of Regulation NMS in that the ISOs, for purposes of the trade-at prohibition, need to be routed to execute against protected quotations with a price that is equal to the limit price of the order routed to a protected quotation. For purposes of the trade-through prohibition in Rule 611 of
Regulation NMS, Rule 600(b)(30) provides that ISOs need to be routed to execute against those protected quotations with a price that is superior to the limit price of the order routed to a protected quotation.
 
¹² Proposing Release at 66437.
 
¹³Id.
 
¹⁴Id.
 
¹⁵ Appendix B of the Plan sets forth in detail the data collection requirements for Participants and trading centers.
 
¹⁶ "Market Maker" is defined in the Plan as a dealer registered with any self-regulatory organization, in accordance with the rules thereof, as (i) a market maker or (ii) a liquidity provider with an obligation to maintain continuous, two-sided trading interest.
 
¹⁷ Appendix C of the Plan sets forth in detail the data collection requirements for Market Makers.
 
¹⁸See Proposing Release at 66424.
 
¹⁹See id.
 
²⁰See id. at 66425-26.
 
²¹See Order at 36845; Proposing Release at 66427.
 
²²See Proposing Release at 66427.
 
²³See id. at 66428.
 
²⁴Id. at 66429-32.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.