# Self-Regulatory Organizations; New York Stock Exchange, Inc.; Order Granting Approval to Proposed Rule Change Relating to Amendments to Rule 127 (Block Positioning) and Rule 72(b) (``Clean'' Agency Crosses) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AX94-11221 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** December 21, 1994 ## Text SECURITIES AND EXCHANGE COMMISSION [Release No. 34-35103; File No. SR-NYSE-94-10] Self-Regulatory Organizations; New York Stock Exchange, Inc.; Order Granting Approval to Proposed Rule Change Relating to Amendments to Rule 127 (Block Positioning) and Rule 72(b) (``Clean'' Agency Crosses) December 15, 1994. I. Introduction On March 17, 1994, the New York Stock Exchange, Inc. (``NYSE'' or ``Exchange'') submitted to the Securities and Exchange Commission (``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')\1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to amend Exchange Rule 127 on Block Positioning and Rule 72(b) on ``clean'' agency crosses. --------------------------------------------------------------------------- \1\15 U.S.c. 78s(b)(1) (1988). \2\17 CFR 240.19b-4 (1993). --------------------------------------------------------------------------- The proposed rule change was published for comment in Securities Exchange Act Release No. 34302( July 1, 1994), 59 FR 35161 (July 8, 1994). No comments were received on the proposal. II. Description NYSE Rule 127 outlines the current method for executing block cross transactions at a price that is outside of the NYSE best bid or offer. Under Rule 127, a member must inform the specialist of his intention to cross block orders at a specific price (the ``clean-up'' price) and determine the extent of the interest the specialist has in participating in the transaction.\3\ The member then announces the clean-up price to other members in the trading crowd (``Crowd'') and files at the clean-up price all public orders limited to the clean-up price or better.\4\ The member then crosses the remaining shares at the clean-up price.\5\ --------------------------------------------------------------------------- \3\Rule 127 states that there should be no intervening trades by the member between the time the member informs the specialist of his intention to cross block orders and the trade or trades to clean-up the block, except that a member may trade with the exposed bid or offer if the clean-up price is one-eighth of a point outside the current quotation and the member is holding only agency orders on both sides of the market. \4\A limit order to buy or sell stock for a particular price is said to be ``limited to'' the specified price. Therefore, a limit order ``limited to the clean up-price'' is an order to buy or sell stock for the same price at which the block transaction is proposed to be executed. For example, if the current quote is 20 to 20\1/8\ for a stock traded in \1/8\ minimum variations and a member announces a clean-up price of 19\5/8\, he must fill at the clean-up price 19\5/8\ all public orders to buy limited to 20, 19\7/8\, 19\3/ 4\, and 19\5/8\. This allows these public limit orders to receive the benefit of the clean-up price. \5\Technically, the member makes a bid and offer according to NYSE Rule 76. See infra note 6. --------------------------------------------------------------------------- If the member determines, however, that the amount of stock needed to trade with other public limit orders excessively interferes with the proposed block cross, the member may adjust the clean-up price or may elect to announce the original clean-up price again and inform the Crowd that it will not be given stock at the clean-up price. After such an announcement is made, the member proceeds to make a bid and offer for the full amount of the block cross pursuant to NYSE Rule 76.\6\ After filling any market interest at the bid, the member crosses the block orders for the remaining shares at the clean-up price. --------------------------------------------------------------------------- \6\Under NYSE Rule 76, the member makes an offer higher than the clean-up price by the minimum variation permitted in such security. For example, if the clean-up price is 19\5/8\, the member would make an offer at 19\3/4\. --------------------------------------------------------------------------- If the block cross represents agency orders on both sides, a member that does not fill at the clean-up price public orders limited to the clean-up price or better may exercise its right to precedence at the clean-up price based on size.\7\ Rule 127 currently provides that, regardless of precedence at the clean-up price, the member must fill public orders limited to the clean-up price that are on the specialist's book, up to a minimum amount of 1000 shares or 5% of the total amount crossed at the clean-up price, whichever is greater.\8\ In addition, if all or any portion of the block will have the effect of establishing or increasing the member organization's position, the member representing the block orders must fill at the clean-up price the public orders limited to the clean-up price or better before any amount may be retained for the member organization's account. --------------------------------------------------------------------------- \7\If a member has precedence at the clean-up price, it is not required to execute other pre-existing orders limited to the clean- up price. See NYSE Rule 72(c), which provides that, when no bid is entitled to time priority, all bids for a number of shares of stock equaling or exceeding the number of shares of stock in the offer are on parity and entitled to precedence over bids for less than the number of shares in the offer, except that if it is possible to determine the order of time in which the bids with precedence were made, such bids will be filled in that order. \8\Because this stock is assigned rather than acquired as the result of priority, precedence based on size, or a match in a parity situation, the specialist does not follow the normal policy of assigning executions to orders in the priority of receipt, but rather assigns 100 shares to each order on the book. --------------------------------------------------------------------------- Rule 127 also provides that if the member fails to consult with the specialist prior to announcing the block cross to the Crowd, he is responsible for filling the reasonable needs of the specialist at the clean-up price. If, however, the member determined that too much stock would be lost to the market and announced that public orders would not receive stock at the clean-up price as described above, the member is not required to give the specialist stock at the clean-up price. If there is a disagreement between the specialist and the member representing the block orders as to the extent of the specialist's needs, the rule suggests the use of a Floor Official to resolve the differences. The NYSE proposes to change the procedure for crossing block orders outside the current quotation in several respects. The proposal alters a member's obligations to fill public orders at the clean-up price and removes the block positioner's responsibility for maintaining the aftermarket when the block positioner has not satisfied the reasonable needs of the specialist. Finally, the rule change requires documentation when an agency block cross outside the prevailing quotation is executed and public orders limited to the clean-up price or better are not executed at the clean-up price.\9\ --------------------------------------------------------------------------- \9\The rule change also clarifies the rule for block transactions in which all or a part of the block is for a member or member organization's own account. The rule change states that if all or any portion of a block that a member is representing will establish or increase the member's position, the member must fill at the clean-up price public orders limited to the clean-up price or better before any amount may be retained for the member organization's account. However, if the member is covering a short position or liquidating a long position, it is not required to fill at the clean-up price orders limited to the clean-up price or better. --------------------------------------------------------------------------- The rule change would eliminate the requirement that a member representing an agency block cross with size precedence at the clean-up price must fill public orders limited to the clean-up price that are on the specialist's book, up to a minimum amount of 1000 shares or 5% of the total amount crossed at the clean-up price, whichever is greater. Instead, when a member determines that the amount of stock that would be lost to the market is excessive and announces to the Crowd that stock will not be given at the clean-up price, the block transaction is entitled to priority at the clean-up price after the member has followed the procedures of NYSE Rule 76 and filled orders at the bid. The Exchange states that the deletion of the current requirement is appropriate to conform the agency cross principles of Rule 127 with the agency cross principles of Rule 72(b), the Exchange's rule for agency block crosses at or within the best NYSE quotation.\10\ Under NYSE Rule 72(b), public orders may participate in proposed cross transactions by providing price improvement to one side of the cross, but cannot trade with or ``break up'' crossed orders at the clean-up (cross) price. --------------------------------------------------------------------------- \10\NYSE Rule 72(b) states that the member's bid or offer is entitled to priority at the cross price, irrespective of pre- existing bids or offers at the cross price. See also Securities Exchange Act Release No. 31343 (October 21, 1992), 57 FR 48645 (October 27, 1992) (order approving amendments to NYSE Rule 72). --------------------------------------------------------------------------- In addition, the rule change removes the reference to the block positioner's responsibility for maintaining the aftermarket when the block positioner has not satisfied the reasonable needs of the specialist. The Exchange believes that it is appropriate to place responsibility for the aftermarket on the specialist rather than the block positioner because the specialist is otherwise responsible under NYSE Rule 104 for the maintenance of a fair and orderly market. The rule change continues to state that the member should be prepared to fill the needs of the specialist, and that if the specialist and the member representing the block orders disagree as to the extent of the needs of the specialist, they should consult with a Floor Official. The rule change adds that, as provided in NYSE Rule 92, specialists may not retain any stock for their own accounts obtained at a price at which they hold executable, but unfilled, orders. Finally, the rule change adds in the Supplementary Material to Rule 127 a requirement that, if a member represents only agency orders on both sides and does not fill public orders limited to the clean-up price or better at the clean-up price, the member must complete any documentation of the trade that the Exchange may require. The rule change also amends NYSE Rule 72(b) to include the same documentation requirements for agency crosses. III. Discussion The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b).\11\ In particular, the Commission believes the proposal is consistent with Section 6(b)(5), which requires that the rules of an exchange be designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts, and, in general, to protect investors and the public interest. --------------------------------------------------------------------------- \11\15 U.S.C. 78f(b) (1988). --------------------------------------------------------------------------- Specifically, the Commission believes that the rule change to remove the requirement that members must fill public orders limited to the clean-up price, up to a minimum amount of 1000 shares or 5% of the total amount crossed at the clean-up price (whichever is greater), will not significantly impact the execution of public customer orders. While, in most circumstances, the Commission would be concerned about changes to limit order priority, the 1,000 shares or 5% requirement provides scant protection to limit orders at the clean-up price. It is reasonable for the NYSE to remove this narrow benefit to limit orders in order to improve the execution of agency block crosses.\12\ Moreover, the requirement that is being removed was imposed only on members representing agency orders on both sides. Its elimination, therefore, should assist public customers in effecting cross transactions on the NYSE, but should not give any special advantage to members of the Exchange in their proprietary trading. In addition, Rule 127 continues to require that there be an opportunity for other market interest to provide a better price to one side of the cross through the procedures contain in NYSE Rule 76.\13\ --------------------------------------------------------------------------- \12\Execution of limit orders at prices better than the clean-up price will not be affected by this proposal. \13\See supra note 6. The Commission notes that the removal of the requirement will result in similar treatment of block crosses inside the best bid and offer under NYSE Rule 72(b) (the ``clean cross rule'') and outside the best quote under NYSE Rule 127.\14\ The clean cross rule allows a member who has a customer order to buy and a customer order to sell 25,000 shares or more of the same security to cross those orders at a price that is at or within the prevailing quotation, irrespective of pre-existing bids and offers at that price. The clean cross rule, however, ensures that other members may trade with either the bid or offer side of the cross to provide a price that is better than the proposed cross price. Rule 127 will provide similar opportunities for price improvement to agency block crosses executed outside the best NYSE quote. --------------------------------------------------------------------------- \14\See Securities Exchange Act Release No. 31343 (October 21, 1992), 57 FR 48645 (October 27, 1992) (order approving clean cross rule.) --------------------------------------------------------------------------- The Commission also believes that relieving members who represent block crosses of the obligation to be responsible for the aftermarket is consistent with the NYSE's rules that place such burdens upon specialists. Rule 127 continues to require that members provide for the reasonable needs of the specialists when effecting block crosses, which is intended to ensure that specialists are able to meet their obligation to maintain fair and orderly markets under Exchange Rule 104. Furthermore, NYSE Rule 127 provides that if there is a disagreement as to the amount of stock the specialist needs to secure an orderly aftermarket, a Floor Official should be consulted. The Commission therefore believes that Rule 127, as amended, should continue to help ensure that an orderly aftermarket will be maintained after executions of block crosses. Finally, the Commission believes it is reasonable for the Exchange to require certain documentation when a member representing agency orders on both sides does not fill at the clean-up price public orders limited to the clean-up price or better. When a member does not offer to give public orders the benefit of the cross price, the Exchange will be able to use the required documentation to monitor the cross transaction and ensure that the transaction was conducted in a fair and orderly manner. IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,\15\ that the proposed rule change (SR-NYSE-94-10) is approved. \15\15 U.S.C. 78s(b)(2) (1988). --------------------------------------------------------------------------- For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\16\ --------------------------------------------------------------------------- \16\17 CFR 200.30-3(a)(12) 1993). --------------------------------------------------------------------------- Margaret H. McFarland, Deputy Secretary. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AX94-11221. Public record. Not legal advice.