Ghosts Of Christmas Past Visit NYSE And ICE

December 20, 2012

First it was the aborted Deutsche Boerse offer to acquire the New York Stock Exchange. Around the same time that the German-USA deal flamed out, a similar competing bid by the IntercontinentalExchange and NASDAQ OMX Group also fizzled. International antitrust regulators and politicians seemed to have carried the day amid concerns of the growing shadow of monopoly and pandering to local constituents.

We awake this morning to confirmation that the IntercontinentalExchange is seeking to acquire NYSE Euronext as part of some grand design to merge the commodities and securities exchanges.  Press reports claim that the near-term goal is to have the two merged exchanges emerge as a credible rival to the CME Group Inc.  Of course, along with all the handicapping of whether this latest iteration gets the regulatory greenlight, many commentators note that there will likely need to be some divestiture of certain assets by the proposed unified exchange - options among the most likely business lines to be cut loose.

I can hardly wait for the hypocrisy, the politics, and the angling for jobs to begin.

The once, much-vaunted NYSE seems a fine candidate for converting its floor and offices into yet another Financial District condominium.  As to the NYSE's inept and possibly half-hearted self-regulation - well, you know, let's just let bygones be bygones, okay?  I mean, after all, the Feds let UBS and Barclays off the hook via those lovely London Interbank Offering Rate ("LIBOR") non-prosecution agreements; and how can we forget the deferred prosecution agreements for HSBC and Standard Charter for what looked like money laundering.  

It's holiday season. It's post-election. It's the road to recovery. Like I said, in the spirit of the times, let's just let bygones be bygones.

Oh wait, there's a knock on the door. Two spirits of Christmas past have appeared. 

Senator Schumer Cries for the NYSE

Permit me a brief stroll down memory lane.


Embattled NYSE Chair and CEO Dick Grasso resigned on September 17, 2003 amidst controversy over his alleged $190 million compensation package.  On May 24, 2004, Grasso was sued by New York State Attorney General Eliot Spitzer, who sought repayment of the bulk of the pay package.  In 2008 the New York State Court of Appeals dismissed all claims against Grasso.  

NYSE Regulatory Lapses

Contemporaneous with the Grasso affair, there was a great deal of concern about regulatory failures at the NYSE. If you forgot about all of that, you might refresh your memory by reading the Securities and Exchange Commission's April 12, 2005, Press Release.  Here's the snappy title to that press release: 


NYSE Agrees to Settlement With SEC, Including Censure, Cease and Desist Order, $20 Million Fund for Regulatory Auditor, and Audio-Video Surveillance 

In pointed language, the SEC press release stated: 

Specifically, the Commission's Order finds that from 1999 through 2003, various NYSE specialists repeatedly engaged in unlawful proprietary trading, resulting in more than $158 million of customer harm. The improper trading took various forms, including "interpositioning" the firms' dealer accounts between customer orders and "trading ahead" for their dealer accounts in front of executable agency orders on the same side of the market. From 1999 through almost all of 2002, the NYSE failed to adequately monitor and police specialist trading activity, allowing the vast majority of this unlawful conduct to continue. The illegal trading went largely undetected because the NYSE's regulatory program was deficient in surveilling, investigating and disciplining the specialists' trading violations. 

2004 Schumer NYSE Press Release

Some seven years ago, on January 5, 2004, New York Senator Charles Schumer issued a press release about the future of the New York Stock Exchange. No, that's not a typo -- it was 2004. Rather than risk being accused of editorializing or putting a spin on the Senator's January 2004 comments, I have reprinted them verbatim here   

Its Future In Question, Political, Business, And Labor Leaders Rally To Keep NYSE The Number One Equities Exchange In The World  

Bloomberg, Spitzer, Hevesi, Silver, Thompson, REBNY, ABNY, Alliance for Downtown New York, New York City Partnership and New York City Central Labor Council join Schumer to affirm that reform must occur for the New York Stock Exchange's own good - but can't undermine exchange's pre-eminence 

Many competing financial interests are out to undo the NYSE - tens of thousands of New York jobs 

US Senator Charles E. Schumer was joined today by political leaders including New York City Mayor Michael R. Bloomberg, New York State Attorney General Eliot Spitzer, New York State Comptroller Alan G. Hevesi, New York State Assembly Speaker Sheldon Silver and New York City Comptroller William C. Thompson, Jr. in support of reforming the New York Stock Exchange to ensure that it remains the number-one equities exchange in the world. Schumer was also joined by New York City Central Labor Council President Brian McLaughlin and business leaders including Dr. Henry McKinnell - Chairman and Chief Executive Officer of Pfizer, Robert Catell - Chairman and CEO of KeySpan Energy, Eugene Mc Grath - Chairman, President and CEO of ConEd, Thomas Renyi - Chairman and CEO of The Bank of New York, Steven Spinola - President of the Real Estate Board of New York, Kathy Wylde - Chief Executive Officer of the New York City Partnership, Carl Weisbrod - President of the Alliance for Downtown New York, and Michelle Adams - Executive Director of the Association for a Better New York. 

The leaders affirmed that reform must occur for the New York Stock Exchange's own good, but that reform cannot in any way undermine its preeminence. With competing financial interests out to undermine the Exchange, Schumer and the others said that tens of thousands of New York jobs could be at risk if the needed reforms are done in the wrong way. 

The following is Senator Schumer's remarks on reform at the New York Stock Exchange: 

Good morning. I want to thank everyone who is here today, and I want to acknowledge two people who were not able to be here today. First, my friend and colleague Senator Hillary Clinton. We've spoken about the importance of the NYSE so many times, and while she could not stand with us today in person, she stands firmly with us in spirit and in commitment to preserving the NYSE as the premier equities exchange in the world. And Governor George Pataki - who also could not join us today. The Governor and the Mayor laid the groundwork, literally, for today's event in November, when they announced a new vision to maintain and even improve the security of the Wall Street area while improving the street scape around the New York Stock Exchange. At that time, the Governor said "The New York Stock Exchange is the heart and soul of Lower Manhattan - the nexus of the Financial Capital of the World." I don't think any of us here could agree more. 

But in addition to needing a physical refurbishment, I think we all know that Wall Street needs an institutional refurbishment, and that's why we are here today. 

The New York Stock Exchange is vital to New York's future. It employs thousands and creates tens of thousands of ancillary jobs. The fifteen hundred NYSE employees and three-thousand-plus trading floor personnel are just the beginning. I think we all know that so many business in Lower Manhattan and thousands more across the region owe at least part of their revenue to the financial services associated with the NYSE. 

The NYSE is vital to the recovery of New York's downtown. More than any other institution, its presence helps make New York City the Financial Capital of the World. If you take away the NYSE, New York could well lose its centrality as the Financial Capital of the World. One could not even think of a greater blow to New York's economy than the demise - or even the diminution - of the NYSE. 

It is not a certainty that the NYSE will stay here forever. History is replete with examples of exchanges losing their edge and vanishing within a short period of time. For much of the 19th century, the New Orleans Cotton Exchange was America's premier cotton trading market. But when new communications innovations enabled an upstart site in New York to offer better prices, New Orleans found itself under siege. Within a few years, all the trading on the New Orleans market had shifted to New York, and New Orleans was never able to recover. 

So today the New York Stock exchange NYSE is the world's largest equities market; with more than 2,700 listed companies, with a total global market capitalization of more than $16 trillion, with almost $50 billion changing hands each trading day, and with an average daily volume of 1.4 billion shares, But just like it was not always this way, it might not always be this way. 

There are two issues swirling about the exchange. One is reform. Reform relates to the governance of the exchange and to issues of enforcement, how the board should be structured, how brokers should be disciplined and how executives should be paid. The other is structure. Structure relates to how stocks should be traded; how much should be done electronically and how much should be handled by humans (specialists). Reform and structure are often confused. 

Reform is clearly warranted at the exchange. There clearly have been excesses and these must be corrected. Some of us think the changes that are in the process of being made thus far should be tried before moving further along, others of us think more change is needed now. But we agree that reform must occur for the exchange's own good. And every wrongdoer should be punished, and rules and governance must change to make sure they don't happen again. But we must not throw out the baby with the bathwater. In the zeal to reform the exchange we must not undermine its role as the deepest, most liquid and most transparent market for equity trading in the world. There are many institutional competitors within the financial services industry who are using reform to undermine the existence of the stock exchange itself. And the Frankfort and the London Exchanges would each be all to happy to take the mantle of number-one-in-the-world away from New York Stock Exchange. 

Changes in the structure of how stocks are traded (as opposed to reform) will also have to occur to keep the exchange preeminent, but those should proceed carefully and slowly to avoid fragmentation of the markets and to avoid elimination of the exchange. 

We have faith that the new team of Reed and Thain will address this issue carefully and thoroughly. They should not be pushed into wrong and untenable solutions by those who seek the replacement of the exchange with something else. And speaking of John Reed and John Thain, I should note that this event was planned independent of the NYSE - they weren't even informed until the weekend, by which time the event had been fully set-up. 

In conclusion, we are here united to stand behind keeping the NYSE the preeminent equity trading exchange in the world. We may disagree on the details of reform and even on the details of structure, but every one of us stands here to say that we will do everything we can to keep the NYSE as number one equities exchange in the world. Thank you. 

Too Little, Too Late

What can I say?  I mean, really?  Talk about too little, too late.  Talk about seeing a train barreling down the tracks at you and not getting out of the way. 

For starters, let's consider some of Senator Schumer's reform-minded colleagues who joined him during his speech or were cited by him in his remarks.  

  • Former New York State Governor Eliot Spitzer, who resigned on March 17, 2008 , following his exposure as a client of a prostitution ring. 
  • Former New York State Comptroller Alan Hevesi, who resigned on December 22, 2006, as part of deal with prosecutors in which he pleaded guilty to one count of defrauding the government. In 2007 Hevesi was sentenced to a $5000 fine and permanently banned from holding elective office again. 
  • John Thain, NYSE CEO from January 2004 through December 2007, when he left to become the Chair and CEO of Merrill Lynch. Following the sale of Merrill to Bank of America, Thain became embroiled in a compensation controversy, which included allegations that he spent in excess of one million dollars to renovate two conference rooms, a reception area, and his office, including $131,000 for area rugs, a $68,000 antique credenza, guest chairs costing $87,000, a $35,000 commode, and a $1,400 wastebasket. Thain subsequently reimbursed the company for the renovation. He resigned on January 22, 2009 

Quite a cast of characters involved in that 2004 effort to reform the NYSE  and keep it "The Number One Equities Exchange In The World."  Still, it must have been a stirring day on January 5, 2004, with all those civic leaders giving some fine speeches and posing for the cameras.  Sadly, the speechifying was simply that: hollow words.  

Schumer's Big But 

If you carefully read Senator Schumer's remarks, you will note the "buts."  He calls for reform but. But it can't be too dramatic. But it can't hamstring the NYSE. But it shouldn't be one-sided. But. But. But. But. Well, guess what? Senator Schumer and others ensured that Wall Street reform came with a huge BUT. After the  rhetoric of 2004 died down,  the stock markets skyrocketed and no one really cared about drafting the tough language of regulatory reform. Leave it for a rainy day. The Grasso thing will fade. Who really cares about another SEC regulatory initiative?

And then the markets crashed. And then the Great Recession came perilously close to another Great Depression. Then, one by one, those great pillars of New York's financial community -- Bear Stearns, Lehman Brothers, and others -- collapsed.  And now there's a huge "For Sale" sign on the NYSE.

Schumer's 2011 NYSE Remarks

Perhaps you read Senator Schumer's most recent comments about the NYSE? Yes, his points and tone have changed dramatically in seven years.  As reported by Aaron Elstein in, "Schumer Calls for New York Stock Exchange to Retain Its Name" (Crains New York Business, February 13, 2010), the Senator said:

Sen. Charles Schumer said the New York Stock Exchange brand must not only survive if the company merges with Deutsche Borse, but it must also come first in whatever name the combined company adopts. 

"Some may say what's in a name, but I say a lot," Sen. Schumer said Sunday in his first public remarks on the merger talks, which were revealed last week. "The New York Stock Exchange is a symbol of national prestige, and its brand must not suffer under this merger." 

He warned that if Deutsche Borse, whose shareholders stand to own about 60% of the combined company, do not give way on this matter, the entire merger could run into significant regulatory and political roadblocks. 

My, how times change!  It's no longer a concern that the NYSE be first among international stock exchanges.  Now we're up in arms about where the NYSE acronym will be positioned in the new name for the new exchange that will have a majority German owner.  You must understand that for the New York Senator, preserving the primacy of the name "New York" in this new exchange is of national urgency.  Of course, this coming from the Senator of a state whose two professional football teams play in New Jersey.

Institutions are not guaranteed permanence. Tastes change. Fashions come and go. New technology brings obsolescence. Inept management propels businesses into insolvency. Lax regulation damages credibility and consumer confidence. All of which Senator Schumer apparently saw coming in 2004, when he noted:

It is not a certainty that the NYSE will stay here forever. History is replete with examples of exchanges losing their edge and vanishing within a short period of time. 

The senior Senator from New York was quite prescient, if only he had been more forceful in leading the reform of Wall Street. Alas, no point crying.  What's done is done.


Let me tell you and the good Senator a tale from history.  I think you all might enjoy this one.  

Towards the end of the 15th century, on the dawn of America's discovery by Columbus, the Moorish control of Spain had dwindled down to the city of Granada, then ruled by King Boabdil. In 1491, Ferdinand and Isabella of Castille laid siege to Granada, which Boabdil eventually surrendered. 

Legend has it that as Boabdil abandoned the last of Moorish Spain and went into exile, he turned for one final view of his beloved Granada. It is said that he cried upon setting his eyes upon his home for what he knew would be the last time.

In one of the great reproaches of history, Boabdil's mother savaged her son for time immemorial with these scathing words: 

"Thou dost weep like a woman for what thou couldst not defend as a man." 

Senator Schumer, take one last fond look at the Alhambra that is the New York Stock Exchange. Wipe your eyes.

Historic SEC Order Slams NYSE For Data Violations

Written: September 14, 2012 

On Sept. 14, 2012, the Securities and Exchange Commission announced an historic regulatory action resulting in the implementation of an order against the New York Stock Exchange for compliance failures that gave certain customers an improper head start on trading information. The NYSE and its parent company NYSE Euronext settled the charges pursuant to a $5 million penalty and various undertakings. This is the first SEC financial penalty against an exchange.  In the Matter of New York Stock Exchange LLC, and NYSE Euronext, Respondents (Order Instituting Administrative And Cease-And-Desist Proceedings Pursuant To Sections 19(H)(1) And 21c Of The Securities Exchange Act Of 1934, Making Findings And Imposing Sanctions And A Cease-And-Desist Order, 1934 Act Release  67857 / Admin. Proc. 3-15023, September 14, 2012). 

The Order found that the NYSE violated Rule 603(a) of Regulation NMS and the record retention provisions of Section 17(a)(1) of the Securities Exchange Act and Rule 17a-1, and NYSE Euronext, which supplied the personnel responsible for these systems and compliance, caused the violations.  The NYSE and NYSE Euronext agreed to a settlement without admitting or denying the SEC's findings. The Order Censured the NYSE, imposed a $5 million penalty, and required both the NYSE and NYSE Euronext to cease and desist from committing or causing these violations.  Further, the NYSE and NYSE Euronext are required to retain an independent consultant to conduct a comprehensive review of their market data delivery systems to ensure that they comply with Rule 603(a).

The Order alleged that the NYSE violated Regulation NMS ("National Market System"),which seeks to ensure that the public has fair access to current market information about the best displayed prices for stocks and trades that have occurred. The NYSE was charged with violating Reg NMS when, starting in 2008, it transmitted data through two of its proprietary feeds starting before sending data to the consolidated feeds. Such conduct resulted in preferential treatment for those receiving the early data, even though such an advantage is measured in milliseconds.  Given the high-frequency trading parameters of today's markets, such seemingly minuscule timeframes do result in substantial and meaningful advantages.

As set forth in the Order (footnotes omitted): 

Accordingly, exchanges are required to send their best-priced quotations (or "quotes") and trade reports to be included in the consolidated feeds. Exchanges also are permitted to distribute customized market data products directly to customers. However, to preserve the integrity of the consolidated feeds, a Commission rule-Rule 603(a) of Regulation NMS-requires that exchanges distribute market data on terms that are "fair and reasonable" and "not unreasonably discriminatory." This rule prohibits an exchange from releasing data relating to quotes and trades to its customers through proprietary feeds before it sends its quotes and trade reports for inclusion in the consolidated feeds.

The disparities in data transmissions that Rule 603(a) prohibits can have important consequences that risk undermining investor confidence and interfering with the efficiency of the markets. For example, a delay in the release of data to the consolidated feeds in contrast to the proprietary feeds can cause an investor relying on the consolidated feeds to make a trading decision based on a potentially stale picture of current market conditions. An exchange's delay in sending its quotes to the consolidated feeds also can cause inefficient execution decisions at other market centers and, under some circumstances, create the appearance of a "crossed" national best bid and offer ("NBBO"), which occurs when the best bid exceeds the best offer. The appearance of a crossed NBBO can cause both uncertainty and the risk of a trade being executed at worse than the best available price. 

The NYSE earns revenue from selling market data through proprietary data feeds and the two NYSE proprietary data feeds cited in the Order were 

  • Open Book Ultra - which sends real-time data about NYSE's entire order book; and 
  • PDP Quotes, which contains NYSE's quote for each security.

An internal NYSE system architecture gave one of the data feeds a faster path to customers than the path used to send data to the consolidated feed. Also there was a software issue in the internal NYSE system that sent data to the consolidated feed. Accordingly, such preferential practices violated Rule 603(a) of SEC Regulation NMS. 

As to the conduct of NYSE's compliance department in monitoring such practices, the Order found that this critical first-line of regulatory defense was largely missing-in-action and not involved in important technology decisions, including the design, implementation, and operation of NYSE's market data systems. 

Further, the Order asserted that under Rule 603(a) the NYSE was required to retain computer files about its transmission of market data, including the times that NYSE sent data to be included in the consolidated feed, but that said files were not archived, thus hamstringing the NYSE's ability to determine when it experienced delays sending data and calculate the length of delays when they occurred. 

Bill Singer's Comment

On the heels of the recent Knight Capital implosion, the Facebook / NASDAQ IPO debacle, the MF Global vanishing act, and assorted missteps and miscues by Morgan Stanley Smith Barney, JP Morgan, and other iconic Wall Street participants, we now have the cherry atop the rotting cake: the venerable New York Stock Exchange can't seem to figure out how to run a fair casino. 

I could go on and on with this but how about I just leave you with this classic scene from the movie Casablanca

Rick: How can you close me up? On what grounds?

Captain Renault: I'm shocked, shocked to find that gambling is going on in here! [a croupier hands Renault his winnings]

Croupier: Your winnings, sir.

Captain Renault: Oh, thank you very much. Everybody out at once!