Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 1, Relating to Nasdaq Rules 4120 and 4753, 78081-78085 [2023-25013]

Download as PDF Federal Register / Vol. 88, No. 218 / Tuesday, November 14, 2023 / Notices 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 (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include file number SR– PEARL–2023–60 on the subject line. Paper Comments khammond on DSKJM1Z7X2PROD with NOTICES • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to file number SR–PEARL–2023–60. 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 website (https://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 website 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 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to file number SR–PEARL–2023–60 and should be submitted on or before December 5, 2023. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.27 Christina Z. Milnor, Assistant Secretary. [FR Doc. 2023–25007 Filed 11–13–23; 8:45 am] BILLING CODE 8011–01–P 27 17 CFR 200.30–3(a)(12). VerDate Sep<11>2014 16:48 Nov 13, 2023 Jkt 262001 SECURITIES AND EXCHANGE COMMISSION [Release No. 34–98878; File No. SR– NASDAQ–2023–036] Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 1, Relating to Nasdaq Rules 4120 and 4753 November 7, 2023. I. Introduction On September 12, 2023, The Nasdaq Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘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 Rule 4120 (Limit Up-Limit Down and Trading Halts) and Rule 4753 (Nasdaq Halt Cross) to set forth specific requirements for halting and resuming trading in a security that is subject to a reverse stock split. The proposed rule change was published for comment in the Federal Register on September 28, 2023.3 On October 27, 2023, the Exchange filed Amendment No. 1 to the proposed rule change, which replaced and superseded the proposed rule change as originally filed.4 The Commission has received no comments on the proposal. The Commission is publishing this notice to solicit comments on Amendment No. 1 from interested persons, and is approving the proposed rule change, as modified by Amendment No. 1, on an accelerated basis. II. Self-Regulatory Organization’s Description of the Proposal, as Modified by Amendment No. 1 In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 98489 (Sept. 22, 2023), 88 FR 66913 (Sept. 28, 2023) (SR– NASDAQ–2023–036) (‘‘Notice’’). 4 In Amendment No. 1, the Exchange makes nonsubstantive clarifying changes and provides additional justification for the proposal. Amendment No. 1 to the proposed rule change is available at https://www.sec.gov/comments/srnasdaq-2023-036/srnasdaq2023036-283339691882.pdf. 2 17 PO 00000 Frm 00134 Fmt 4703 Sfmt 4703 78081 set forth in sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose In conjunction with the increase in overall reverse stock splits in recent years, Nasdaq proposes to amend Rule 4120 and Rule 4753 to set forth specific requirements for halting trading in a security that is subject to a reverse stock split and resuming trading using the Nasdaq Halt Cross.5 Current Rule 4120 does not specifically list rule reverse stock splits in the enumerated circumstances in which Nasdaq may halt trading in a security. The proposed amendments will be specific to the automatic initiation, pre-market trading and opening of a Nasdaq-listed security undergoing a reverse stock split. Background Nasdaq has observed that the current market environment has led to an increase in reverse stock split activity. In 2022, Nasdaq processed 196 reverse stock splits, compared to 35 in 2021 and 98 in 2020. Just in the first quarter of 2023, Nasdaq processed 78 reverse stock splits, and projects significantly more throughout 2023. Reverse stock splits are often effected by smaller companies that do not have broad media or research coverage. In most cases, the companies are listed on the Capital Market tier and are conducting reverse stock splits to achieve compliance with Nasdaq’s $1 minimum bid price requirement.6 Nasdaq believes that the increase in companies effecting reverse stock splits warrants amendments to the trading halt rules to allow for Nasdaq to help reduce the potential for errors resulting in a material effect on the market resulting from market participants’ processing of the reverse stock split, including incorrect adjustment or entry of orders. Nasdaq currently processes reverse 5 The ‘‘Nasdaq Halt Cross’’ is 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 Rule 4753(a)(4). ‘‘Eligible Interest’’ shall mean 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 Halt Cross. See Nasdaq Rule 4753(a)(5). 6 Rule 5550(a)(2) specifies that a Company that has its Primary Equity Security listed on the Capital Market must have a minimum bid price of at least $1 per share. See also Rule 5450(a)(1) (Global and Global Select Markets). Companies are afforded a grace period pursuant to Rule 5810(c)(3)(A) to regain compliance. E:\FR\FM\14NON1.SGM 14NON1 78082 Federal Register / Vol. 88, No. 218 / Tuesday, November 14, 2023 / Notices stock splits overnight, with the security opening for trading at 4 a.m. ET in the pre-market hours (i.e., the trading session between 4 a.m. to 9:30 a.m. ET) on a split-adjusted basis. Recently, market participants have expressed concerns with allowing trading on an adjusted basis at 4 a.m., noting that it is not optimal because system errors or problems with orders may go unnoticed for a period of time when a security that has undergone a reverse stock split opens for trading with the other thousands of securities. These errors have the potential to adversely affect investors, market participants and the issuer.7 For example, in one recent instance problems in connection with the processing of a reverse stock split resulted in a broker executing trades selling more shares than customers held in their accounts, resulting in a temporary short position. As such, Nasdaq believes it is appropriate to impose a trading halt, which would prohibit pre-market trading immediately after a reverse stock split and open trading in such securities using the Nasdaq Halt Cross Process set forth in Rule 4753. The proposed new rule will allow for Nasdaq and market participants to better detect any errors or problems with orders for the security resulting from the reverse stock split before trading in the security begins and thereby avoid any material effect on the market. khammond on DSKJM1Z7X2PROD with NOTICES Description of the Proposed Amendment Nasdaq is proposing to: (1) amend Rule 4120(a) to provide the Exchange with explicit authority to declare a trading halt before the end of PostMarket Hours 8 on the day immediately before the market effective date of a reverse stock split; and (2) amend Rule 4120(c) to include this halt in the existing procedures for initiating and terminating a trading halt. More specifically, proposed Rule 4120(a)(14) provides that Nasdaq shall halt trading of a security for which Nasdaq is the Primary Listing Market 9 before the end 7 In a separate filing, Nasdaq also proposed changes to adopt specific notification and disclosure requirements for reverse stock splits. See Securities Exchange Act Release No. 98014 (July 28, 2023), 88 FR 51376 (August 3, 2023) (SR–Nasdaq– 2023–21). 8 The term ‘‘Post-Market Hours’’ means the period of time beginning immediately after the end of Market Hours and ending at 8 p.m. ET. See Nasdaq Rule Equity 1, Section 1(a)(9). 9 Primary Listing Market is defined in Section X.A.8 of the Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privileges Basis (‘‘UTP Plan’’) as ‘‘the national securities exchange VerDate Sep<11>2014 16:48 Nov 13, 2023 Jkt 262001 of the Post-Market Hours on the day immediately before the market effective date of a reverse stock split. A trading halt due to a reverse stock split will be mandatory pursuant to proposed Rule 4120(a)(14). Nasdaq also proposes to modify Rule 4120(c)(7)(A) to include the new halt authority proposed in Rule 4120(a)(14) in the reopening process currently applicable to halts under Rules 4120(a)(1), (4), (5), (6), (9), (10) and (11). In general, Nasdaq expects to initiate the halt at 7:50 p.m., prior to the close of post-market trading at 8 p.m. on the day immediately before the split in the security becomes effective,10 and resume trading at 9 a.m. on the day the split is effective.11 Nasdaq believes that this halt and delayed opening 12 will give sufficient time for investors to review their orders and the quotes for the security and allow market participants to ensure that their systems have properly adjusted for the reverse stock split. Once post-market trading closes at 8:00 p.m. all orders for a halted security will be cancelled. Nasdaq is also proposing to update Rule 4753(b) to include proposed Rule 4120(a)(14) in the list of numerated provisions that would be subject to the Nasdaq Halt Cross. As such, any security that is subject to a reverse stock split will be reopened using the Nasdaq Halt Cross prior to trading during market hours. 2. Statutory Basis The Exchange believes that its proposal is consistent with the on which an Eligible Security is listed. If an Eligible Security is listed on more than one national securities exchange, Primary Listing Market means the exchange on which the security has been listed the longest.’’ 10 Initiating the halt at approximately 7:50 p.m. will provide Nasdaq with a limited buffer to ensure that trading in a security that is undergoing a reverse stock split will not continue after the close of post-market trading. While the Exchange does not anticipate halting a security that undergoes a reverse stock split sooner than 7:50 p,m., the Exchange may halt trading sooner than 7:50 p.m. for other reasons as described in Nasdaq Equity 4, Section 4120. Nasdaq will provide notice of the halt through NasdaqTrader.com available at, https:// www.nasdaqtrader.com/Trader.aspx?id=Trade Halts. 11 Nasdaq may change the resumption time if, for example, there was an Extraordinary Market Activity that could interfere with a fair and orderly 9:00 a.m. resumption. ‘‘Extraordinary Market Activity’’ is defined in the UTP Plan. Nasdaq will provide notice of the re-opening of the security through NasdaqTrader.com available at, https:// www.nasdaqtrader.com/Trader.aspx?id=Trade Halts. 12 Trading in a security that has undergone a reverse stock split will have a delayed opening because following the reverse stock split, the security will not re-open until the end of pre-market trading. Orders that have been entered for execution prior to the opening cross would be able to execute in the halt cross at 9 a.m. PO 00000 Frm 00135 Fmt 4703 Sfmt 4703 requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.13 Specifically, the proposal is consistent with Section 6(b)(5) of the Act 14 because it would promote just and equitable principles of trade, remove impediments to, and perfect the mechanism of, a free and open market and a national market system, and, in general, protect investors and the public interest. As described above, the Exchange is seeking to amend rules related to halting and resuming trading in U.S.-listed equity securities for which Nasdaq is the Primary Listing Market that is subject to a reverse stock split. The Exchange believes that establishing a reverse stock split trading halt rule will protect investors by giving the Exchange authority to act in situations where it is necessary to maintain fair and orderly markets, such as when a security is subject to a reverse stock split and companies have not updated their system to account for the new stock price. The Exchange also believes that it is reasonable and appropriate to use the Nasdaq Halt Cross process under Rule 4753 to re-open trading in a security that has been halted due to a reverse stock split because it is consistent with the process that is typically used by Nasdaq when reopening a security that has been halted under Rule 4120. It will also ensure that the process for resuming trading following a reverse stock split halt is consistent with other types of halts initiated by Nasdaq. Currently, none of the provisions in Rule 4120 provide authority to preemptively declare a trading halt in a security undergoing a significant corporate action that could lead to investor or market confusion. The Exchange believes that the proposed amendments will provide greater transparency and clarity with respect to the manner in which trading will be halted due to a reverse stock split, and the process through which that halt will be implemented and terminated. Particularly, Nasdaq will not have the discretion of determining whether to declare a trading halt in a security that is subject to a reverse stock split. Rather, following the reverse stock split of the security for which Nasdaq is the Primary Listing Market, trading in the security will halt prior to the end of Post-Market Hours on the day immediately before the market effective date of a reverse stock split. Nasdaq also 13 15 14 15 E:\FR\FM\14NON1.SGM U.S.C. 78f(b). U.S.C. 78f(b)(5). 14NON1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 88, No. 218 / Tuesday, November 14, 2023 / Notices believes it is appropriate to re-open the security at 9:00 a.m. because it gives the Exchange an opportunity to review its order book and root out any orders in a security that has undergone a reverse stock split, that have not correctly adjusted to the security’s new stock price. The proposed changes seek to achieve consistency with respect to the initiation and termination of a trading halt with respect to securities that are subject to a reverse stock split, while maintaining a fair and orderly market, protecting investors and protecting the public interest. Additionally, establishing a mandatory trading halt for securities that are subject to a reverse stock split and resuming trading thereafter promotes fair and orderly markets and the protection of investors, because it allows Nasdaq to protect the broader interests of the national market system and addresses potential concerns that system errors may affect immediate trading in those securities. Nasdaq believes that given the increase in companies effecting reverse stock splits, the proposed trading halt rules will help Nasdaq reduce the potential for errors resulting in a material effect on the market resulting from market participants’ processing of the reverse stock split, including incorrect adjustment or entry of orders. Additionally, resuming trading at 9:00 a.m. also promotes fair and orderly markets and the protection of investors by allowing time to remove any orders that have not adjusted for the security’s new reverse stock split price. Based on the foregoing, the Exchange believes that the proposed rules are consistent with Section 6(b)(5) of the Act 15 because they will promote just and equitable principles of trade and will remove any impediments to a free and open market and a national market system by allowing sufficient time for investors to review their orders and the quotes for a security that are subject to a reverse stock split, and allow market participants to ensure that their systems have properly accounted for the reverse stock split. As discussed previously, the Exchange believes that the proposed amendments establishing the authority and process for reverse stock split trading halts and the resumption of trading is consistent with the Act, which itself imposes obligations on exchanges with respect to issuers that are listed. 15 15 U.S.C. 78f(b)(5). VerDate Sep<11>2014 16:48 Nov 13, 2023 Jkt 262001 B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange believes the proposal is consistent with Section 6(b)(8) of the Act in that it does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act as explained below. The Exchange believes the proposal will not impose a burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change is designed to protect investors and facilitate a fair and orderly market, which are both important purposes of the Act. To the extent that there is any impact on intermarket competition, it is incidental to these objectives. The Exchange does not believe that the proposed rule change imposes a burden on intra-market competition because the provisions apply to all market participants and issuers equally. In addition, information regarding the halting and resumption of trading will be disseminated using several freely accessible sources to ensure broad availability of information offered by the Exchange that are available to subscribers. In addition, the proposals include provisions related to the declaration and timing of trading halts and the resumption of trading designed to avoid any advantage to those who can react more quickly than other participants. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or received. III. Discussion and Commission Findings The Commission is approving the proposed rule change, as modified by Amendment No. 1, for the reasons discussed below.16 The Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, including Section 6(b)(5) of the Exchange Act,17 which requires, among other things, that the rules of a national securities exchange be designed to prevent fraudulent and 16 In approving this proposed rule change, the Commission has considered the proposed rule change’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 17 15 U.S.C. 78f(b)(5). PO 00000 Frm 00136 Fmt 4703 Sfmt 4703 78083 manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest; and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. As noted above, the proposal, as modified by Amendment No.1, would extend the Exchange’s non-discretionary authority to declare a regulatory halt to cases where a security for which Nasdaq is the Primary Listing Market 18 is undergoing a reverse stock split.19 As proposed, the Exchange will declare a regulatory halt 20 for which Nasdaq is the Primary Listing Market before the end of Post-Market Hours 21 on the day immediately before the market effective date of the reverse stock split in the security.22 The Exchange also proposes to terminate the regulatory halt and resume trading 23 in the halted security using the Nasdaq Halt Cross procedure 24 in Nasdaq Rule 4753.25 The Exchange represents that declaring a regulatory halt before the end of Post Market Hours on the day immediately before the market effective date of the reverse stock split in a security for which Nasdaq is the Primary Listing Market is appropriate because it would provide the Exchange 18 See supra, note 9 and accompanying text (defining the term ‘‘Primary Listing Market’’). 19 Current Nasdaq Rule 4120 does not include reverse stock splits in the enumerated circumstances in which Nasdaq may halt trading in a security. See supra, Section II. 20 See supra, note 10 (discussing notice of the regulatory halt to market participants). 21 See supra, note 8 and accompanying text (defining the term ‘‘Post-Market Hours’’). The Exchange represents that, while it does not anticipate halting a security that is undergoing a reverse stock split sooner than 7:50 p.m. on the day immediately before the market effective date of the reverse stock split in the security, the Exchange may halt trading sooner than 7:50 p.m. for other reasons as described in Nasdaq Equity 4, Section 4120. See supra, note 10. 22 See proposed Nasdaq Rule 4120(a)(14). The Exchange represents that once post-market trading closes at 8:00 p.m. all orders for the halted security will be cancelled. See supra, Section II. 23 See supra, note 11 (discussing notice of termination of the regulatory halt to market participants). The Exchange represents that Nasdaq may change the resumption time if, for example, there was an Extraordinary Market Activity that could interfere with a fair and orderly 9:00 a.m. resumption. See supra, note 11. 24 See supra, note 5 and accompanying text (discussing the Nasdaq Halt Cross). 25 See proposed Nasdaq Rule 4753(b). The Exchange also proposes to modify Rule 4120(c)(7)(A) to include the non-discretionary regulatory halt authority proposed in Rule 4120(a)(14) in the reopening process currently applicable to trading halts under Rules 4120(a)(1), (4), (5), (6), (9), (10) and (11). See supra, Section II. E:\FR\FM\14NON1.SGM 14NON1 78084 Federal Register / Vol. 88, No. 218 / Tuesday, November 14, 2023 / Notices khammond on DSKJM1Z7X2PROD with NOTICES with explicit, non-discretionary authority to declare a regulatory halt in cases where a security is undergoing a significant corporate action that could cause investor or market confusion, such as where a security for which Nasdaq is the Primary Listing Market is undergoing a reverse stock split.26 The Exchange represents that the proposed regulatory halt and delayed 27 reopening of the security subject to a reverse stock split using the Nasdaq Halt Cross 28 procedure under Nasdaq Rule 4753 would provide Nasdaq 29 and market participants 30 with the time necessary to adjust for, as well as detect and correct order entry or other system errors associated with, the reverse stock split, thus preventing such errors from disrupting or otherwise having a material effect on the market.31 The Exchange further represents that using the Nasdaq Halt Cross process under Nasdaq Rule 4753 for terminating the proposed halt and resuming trading on the security is consistent with the process used for other securities halted under Nasdaq Rule 4120.32 The Commission finds that the proposed rule change is reasonably designed to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest by providing greater transparency and 26 The Exchange represents that none of the provisions in Nasdaq Rule 4120 currently provide the Exchange with authority to declare a trading halt under such circumstances. See supra, Section II. 27 See supra, note 12 and accompanying text (discussing the proposed delayed opening for a Nasdaq-listed security undergoing a reverse stock split). 28 See supra, note 5 and accompanying text. 29 The Exchange represents that it currently processes reverse stock splits overnight, with the security undergoing a reverse stock split opening for trading at 4:00 a.m. ET in the pre-market hours (i.e., the trading session between 4:00 a.m. to 9:30 a.m. ET) on a split-adjusted basis. The Exchange further represents that it is appropriate to re-open the security at 9:00 a.m. using the Nasdaq Halt Cross process, as proposed, because it gives the Exchange an opportunity to review its order book and root out any orders for a security that has undergone a reverse stock split that have not correctly adjusted to the security’s new stock price. See supra, Section II. 30 The Exchange represents that market participants have expressed concerns with allowing trading on an adjusted basis at 4:00 a.m. because system errors or problems with orders may go unnoticed for some time when a security that has undergone a reverse stock split opens for trading together with all other securities. The Exchange represents that in 2022, Nasdaq processed 196 reverse stock splits, compared to 35 in 2021 and 98 in 2020, and that in the first quarter of 2023, Nasdaq processed 78 reverse stock splits, with significantly more projected throughout 2023. See supra, Section II. 31 See supra, Section II. 32 See supra, Section II. VerDate Sep<11>2014 16:48 Nov 13, 2023 Jkt 262001 certainty with respect to the manner in which trading in a security for which Nasdaq is the Primary Listing Market will be halted due to a reverse stock split in the security, as well as the process through which the regulatory halt for the security will be implemented and terminated. The Commission also finds the proposal is reasonably designed to promote fair and orderly trading on the Exchange by reducing the potential for order entry or other system-related errors associated with a reverse stock split in a security for which Nasdaq is the Primary Listing Market. Finally, the Commission finds that using the Nasdaq Halt Cross process under Rule 4753 to terminate the proposed regulatory halt and reopen the security, as proposed, raises no novel regulatory issues, as it is consistent with the process generally used by Nasdaq to terminate a trading halt and reopen trading in a security halted for other reasons under Nasdaq Rule 4120. For the forgoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the Act. IV. Solicitation of Comments on Amendment No. 1 to the Proposed Rule Change Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include file number SR– NASDAQ–2023–036 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to file number SR–NASDAQ–2023–036. 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 website (https://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 PO 00000 Frm 00137 Fmt 4703 Sfmt 4703 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 website 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 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to file number SR–NASDAQ–2023–036 and should be submitted on or before December 5, 2023. V. Accelerated Approval of Amendment No. 1 The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 1, prior to the thirtieth day after the date of publication of notice of the filing of Amendment No. 1 in the Federal Register. As noted above, Amendment No. 1 makes non-substantive clarifying changes and provides additional justification for the proposed rule change.33 The Commission finds that Amendment No. 1 provides greater clarity to and justification for the proposal but does not materially alter the substance of the proposed rule change. These changes raise no novel issues and assist the Commission in finding that the proposal is consistent with the Act. Accordingly, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act,34 to approve the proposed rule change, as modified by Amendment No. 1, on an accelerated basis. VI. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,35 that the proposed rule change (SR–NASDAQ– 2023–036), as modified by Amendment No. 1, be, and hereby is, approved on an accelerated basis. 33 See supra, note 4. U.S.C. 78s(b)(2). 35 15 U.S.C. 78s(b)(2). 34 15 E:\FR\FM\14NON1.SGM 14NON1 Federal Register / Vol. 88, No. 218 / Tuesday, November 14, 2023 / Notices For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.36 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–25013 Filed 11–13–23; 8:45 am] BILLING CODE 8011–01–P A. Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change SECURITIES AND EXCHANGE COMMISSION 1. Purpose [Release No. 34–98880; File No. SR– NYSEAMER–2023–53] Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rules 9521 and 9522 To Correct Obsolete References To a FINRA Department Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (‘‘Act’’) and Rule 19b–4 thereunder,2 notice is hereby given that, on October 26, 2023, NYSE American LLC (‘‘NYSE American’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Rules 9521 (Purposes and Definitions) and 9522 (Initiation of Eligibility Proceeding; Member Regulation Consideration) to correct an obsolete reference to a department of the Financial Industry Regulatory Authority, Inc. (‘‘FINRA’’). The proposed rule change is available on the Exchange’s website at www.nyse.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. khammond on DSKJM1Z7X2PROD with NOTICES II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text 36 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 16:48 Nov 13, 2023 The Exchange proposes to proposes to amend Rules 9521 (Purposes and Definitions) and 9522 (Initiation of Eligibility Proceeding; Member Regulation Consideration) to correct an obsolete reference to a FINRA department. Background and Proposed Rule Change November 7, 2023. VerDate Sep<11>2014 of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements. Jkt 262001 In 2016, NYSE American (then known as NYSE MKT LLC) adopted disciplinary rules that are, with certain exceptions, substantially the same as the Rule 8000 Series and Rule 9000 Series of its affiliate the New York Stock Exchange LLC (‘‘NYSE’’), and which set forth rules for conducting investigations and enforcement actions and FINRA.3 The NYSE American disciplinary rules were implemented on April 15, 2016.4 In adopting disciplinary rules modeled on FINRA’s rules, NYSE American adopted the procedures set forth in the Rule 9520 Series for a covered person to become or remain associated with a member organization or ATP Holder notwithstanding the existence of a statutory disqualification as defined in Section 3(a)(39) of the Act, and for a current member organization or covered person to obtain relief from the eligibility or qualification requirements of the Exchange’s Rules, which the rule refers to as ‘‘eligibility proceedings.’’ Rule 9521 sets forth certain definitions relating to eligibility proceedings. Rule 9521(b)(1) defines the term ‘‘Application’’ to mean FINRA’s Form MC–400 for covered persons or Form MC–400A for member organizations filed with FINRA’s Department of Registration and Disclosure’’ (abbreviated as ‘‘RAD’’ in the Exchange’s rules). Rule 9522, which governs initiation of an eligibility proceeding by the Exchange, contains 3 See Securities Exchange Act Release Nos. 77241 (February 26, 2016), 81 FR 11311 (March 3, 2016) (SR–NYSEMKT–2016–30) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change Adopting Investigation, Disciplinary, Sanction, and Other Procedural Rules Modeled on the Rules of the New York Stock Exchange LLC and Certain Conforming and Technical Changes). 4 See NYSE MKT Information Memorandum 16– 02 (March 14, 2016). PO 00000 Frm 00138 Fmt 4703 Sfmt 4703 78085 references to RAD in subdivisions (b)(1), (c) and (e)(3)(A). In 2020, FINRA changed RAD’s name to ‘‘Credentialing, Registration, Education and Disclosure’’ (abbreviated as ‘‘CRED’’ in FINRA’s rules) and amended, among others, FINRA Rules 9521 and 9522 to reflect the name change.5 The Exchange proposes to conform the references in the Exchange’s rules. To effectuate this change, the Exchange would retain the reference to ‘‘FINRA’s Department’’ in Rule 9521(b)(1) and change the capital ‘‘D’’ in department to lowercase [sic]. The Exchange would replace ‘‘Registration and Disclosure (‘RAD’)’’ in Rule 9521(b)(1) with ‘‘Credentialing, Registration, Education and Disclosure (‘CRED’)’’. The Exchange would also replace ‘‘RAD’’ with ‘‘CRED’’ in Rules 9522(b)(1) (one reference), (c) (two references) and (e)(3)(A) (one reference). 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b)(5) of the Exchange Act,6 in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. The Exchange believes that the proposed change to Rules 9521 and 9522 to update and replace obsolete references to a FINRA department would increase the clarity and transparency of the Exchange’s rules and remove impediments to and perfect the mechanism of a free and open market by ensuring that persons subject to the Exchange’s jurisdiction, regulators, and the investing public could more easily navigate and understand the Exchange rules. The Exchange further believes that the proposed change would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased clarity, thereby reducing potential confusion. 5 See Securities Exchange Act Release No. 90344 (November 4, 2020), 85 FR 71695 (November 10, 2020) (SR–FINRA–2020–039) (Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend FINRA Rules To Reflect Name Changes to Two FINRA Departments: The Office of Dispute Resolution and the Department of Registration and Disclosure). 6 15 U.S.C. 78f(b)(5). E:\FR\FM\14NON1.SGM 14NON1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 88, Number 218 (Tuesday, November 14, 2023)]
[Notices]
[Pages 78081-78085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25013]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98878; File No. SR-NASDAQ-2023-036]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Amendment No. 1 and Order Granting Accelerated 
Approval of Proposed Rule Change, as Modified by Amendment No. 1, 
Relating to Nasdaq Rules 4120 and 4753

November 7, 2023.

I. Introduction

    On September 12, 2023, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``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 Rule 4120 (Limit Up-Limit Down and 
Trading Halts) and Rule 4753 (Nasdaq Halt Cross) to set forth specific 
requirements for halting and resuming trading in a security that is 
subject to a reverse stock split. The proposed rule change was 
published for comment in the Federal Register on September 28, 2023.\3\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 98489 (Sept. 22, 
2023), 88 FR 66913 (Sept. 28, 2023) (SR-NASDAQ-2023-036) 
(``Notice'').
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    On October 27, 2023, the Exchange filed Amendment No. 1 to the 
proposed rule change, which replaced and superseded the proposed rule 
change as originally filed.\4\ The Commission has received no comments 
on the proposal.
---------------------------------------------------------------------------

    \4\ In Amendment No. 1, the Exchange makes non-substantive 
clarifying changes and provides additional justification for the 
proposal. Amendment No. 1 to the proposed rule change is available 
at https://www.sec.gov/comments/sr-nasdaq-2023-036/srnasdaq2023036-283339-691882.pdf.
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    The Commission is publishing this notice to solicit comments on 
Amendment No. 1 from interested persons, and is approving the proposed 
rule change, as modified by Amendment No. 1, on an accelerated basis.

II. Self-Regulatory Organization's Description of the Proposal, as 
Modified by Amendment No. 1

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    In conjunction with the increase in overall reverse stock splits in 
recent years, Nasdaq proposes to amend Rule 4120 and Rule 4753 to set 
forth specific requirements for halting trading in a security that is 
subject to a reverse stock split and resuming trading using the Nasdaq 
Halt Cross.\5\ Current Rule 4120 does not specifically list rule 
reverse stock splits in the enumerated circumstances in which Nasdaq 
may halt trading in a security. The proposed amendments will be 
specific to the automatic initiation, pre-market trading and opening of 
a Nasdaq-listed security undergoing a reverse stock split.
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    \5\ The ``Nasdaq Halt Cross'' is 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 Rule 4753(a)(4). ``Eligible Interest'' shall mean 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 Halt Cross. See Nasdaq Rule 4753(a)(5).
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Background
    Nasdaq has observed that the current market environment has led to 
an increase in reverse stock split activity. In 2022, Nasdaq processed 
196 reverse stock splits, compared to 35 in 2021 and 98 in 2020. Just 
in the first quarter of 2023, Nasdaq processed 78 reverse stock splits, 
and projects significantly more throughout 2023. Reverse stock splits 
are often effected by smaller companies that do not have broad media or 
research coverage. In most cases, the companies are listed on the 
Capital Market tier and are conducting reverse stock splits to achieve 
compliance with Nasdaq's $1 minimum bid price requirement.\6\
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    \6\ Rule 5550(a)(2) specifies that a Company that has its 
Primary Equity Security listed on the Capital Market must have a 
minimum bid price of at least $1 per share. See also Rule 5450(a)(1) 
(Global and Global Select Markets). Companies are afforded a grace 
period pursuant to Rule 5810(c)(3)(A) to regain compliance.
---------------------------------------------------------------------------

    Nasdaq believes that the increase in companies effecting reverse 
stock splits warrants amendments to the trading halt rules to allow for 
Nasdaq to help reduce the potential for errors resulting in a material 
effect on the market resulting from market participants' processing of 
the reverse stock split, including incorrect adjustment or entry of 
orders. Nasdaq currently processes reverse

[[Page 78082]]

stock splits overnight, with the security opening for trading at 4 a.m. 
ET in the pre-market hours (i.e., the trading session between 4 a.m. to 
9:30 a.m. ET) on a split-adjusted basis. Recently, market participants 
have expressed concerns with allowing trading on an adjusted basis at 4 
a.m., noting that it is not optimal because system errors or problems 
with orders may go unnoticed for a period of time when a security that 
has undergone a reverse stock split opens for trading with the other 
thousands of securities. These errors have the potential to adversely 
affect investors, market participants and the issuer.\7\ For example, 
in one recent instance problems in connection with the processing of a 
reverse stock split resulted in a broker executing trades selling more 
shares than customers held in their accounts, resulting in a temporary 
short position.
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    \7\ In a separate filing, Nasdaq also proposed changes to adopt 
specific notification and disclosure requirements for reverse stock 
splits. See Securities Exchange Act Release No. 98014 (July 28, 
2023), 88 FR 51376 (August 3, 2023) (SR-Nasdaq-2023-21).
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    As such, Nasdaq believes it is appropriate to impose a trading 
halt, which would prohibit pre-market trading immediately after a 
reverse stock split and open trading in such securities using the 
Nasdaq Halt Cross Process set forth in Rule 4753. The proposed new rule 
will allow for Nasdaq and market participants to better detect any 
errors or problems with orders for the security resulting from the 
reverse stock split before trading in the security begins and thereby 
avoid any material effect on the market.
Description of the Proposed Amendment
    Nasdaq is proposing to: (1) amend Rule 4120(a) to provide the 
Exchange with explicit authority to declare a trading halt before the 
end of Post-Market Hours \8\ on the day immediately before the market 
effective date of a reverse stock split; and (2) amend Rule 4120(c) to 
include this halt in the existing procedures for initiating and 
terminating a trading halt. More specifically, proposed Rule 
4120(a)(14) provides that Nasdaq shall halt trading of a security for 
which Nasdaq is the Primary Listing Market \9\ before the end of the 
Post-Market Hours on the day immediately before the market effective 
date of a reverse stock split. A trading halt due to a reverse stock 
split will be mandatory pursuant to proposed Rule 4120(a)(14). Nasdaq 
also proposes to modify Rule 4120(c)(7)(A) to include the new halt 
authority proposed in Rule 4120(a)(14) in the reopening process 
currently applicable to halts under Rules 4120(a)(1), (4), (5), (6), 
(9), (10) and (11). In general, Nasdaq expects to initiate the halt at 
7:50 p.m., prior to the close of post-market trading at 8 p.m. on the 
day immediately before the split in the security becomes effective,\10\ 
and resume trading at 9 a.m. on the day the split is effective.\11\ 
Nasdaq believes that this halt and delayed opening \12\ will give 
sufficient time for investors to review their orders and the quotes for 
the security and allow market participants to ensure that their systems 
have properly adjusted for the reverse stock split. Once post-market 
trading closes at 8:00 p.m. all orders for a halted security will be 
cancelled.
---------------------------------------------------------------------------

    \8\ The term ``Post-Market Hours'' means the period of time 
beginning immediately after the end of Market Hours and ending at 8 
p.m. ET. See Nasdaq Rule Equity 1, Section 1(a)(9).
    \9\ Primary Listing Market is defined in Section X.A.8 of the 
Joint Self-Regulatory Organization Plan Governing the Collection, 
Consolidation and Dissemination of Quotation and Transaction 
Information for Nasdaq-Listed Securities Traded on Exchanges on an 
Unlisted Trading Privileges Basis (``UTP Plan'') as ``the national 
securities exchange on which an Eligible Security is listed. If an 
Eligible Security is listed on more than one national securities 
exchange, Primary Listing Market means the exchange on which the 
security has been listed the longest.''
    \10\ Initiating the halt at approximately 7:50 p.m. will provide 
Nasdaq with a limited buffer to ensure that trading in a security 
that is undergoing a reverse stock split will not continue after the 
close of post-market trading. While the Exchange does not anticipate 
halting a security that undergoes a reverse stock split sooner than 
7:50 p,m., the Exchange may halt trading sooner than 7:50 p.m. for 
other reasons as described in Nasdaq Equity 4, Section 4120. Nasdaq 
will provide notice of the halt through NasdaqTrader.com available 
at, https://www.nasdaqtrader.com/Trader.aspx?id=TradeHalts.
    \11\ Nasdaq may change the resumption time if, for example, 
there was an Extraordinary Market Activity that could interfere with 
a fair and orderly 9:00 a.m. resumption. ``Extraordinary Market 
Activity'' is defined in the UTP Plan. Nasdaq will provide notice of 
the re-opening of the security through NasdaqTrader.com available 
at, https://www.nasdaqtrader.com/Trader.aspx?id=TradeHalts.
    \12\ Trading in a security that has undergone a reverse stock 
split will have a delayed opening because following the reverse 
stock split, the security will not re-open until the end of pre-
market trading. Orders that have been entered for execution prior to 
the opening cross would be able to execute in the halt cross at 9 
a.m.
---------------------------------------------------------------------------

    Nasdaq is also proposing to update Rule 4753(b) to include proposed 
Rule 4120(a)(14) in the list of numerated provisions that would be 
subject to the Nasdaq Halt Cross. As such, any security that is subject 
to a reverse stock split will be reopened using the Nasdaq Halt Cross 
prior to trading during market hours.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with the 
requirements of the Act and the rules and regulations thereunder that 
are applicable to a national securities exchange, and, in particular, 
with the requirements of Section 6(b) of the Act.\13\ Specifically, the 
proposal is consistent with Section 6(b)(5) of the Act \14\ because it 
would promote just and equitable principles of trade, remove 
impediments to, and perfect the mechanism of, a free and open market 
and a national market system, and, in general, protect investors and 
the public interest.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    As described above, the Exchange is seeking to amend rules related 
to halting and resuming trading in U.S.-listed equity securities for 
which Nasdaq is the Primary Listing Market that is subject to a reverse 
stock split. The Exchange believes that establishing a reverse stock 
split trading halt rule will protect investors by giving the Exchange 
authority to act in situations where it is necessary to maintain fair 
and orderly markets, such as when a security is subject to a reverse 
stock split and companies have not updated their system to account for 
the new stock price. The Exchange also believes that it is reasonable 
and appropriate to use the Nasdaq Halt Cross process under Rule 4753 to 
re-open trading in a security that has been halted due to a reverse 
stock split because it is consistent with the process that is typically 
used by Nasdaq when reopening a security that has been halted under 
Rule 4120. It will also ensure that the process for resuming trading 
following a reverse stock split halt is consistent with other types of 
halts initiated by Nasdaq. Currently, none of the provisions in Rule 
4120 provide authority to pre-emptively declare a trading halt in a 
security undergoing a significant corporate action that could lead to 
investor or market confusion.
    The Exchange believes that the proposed amendments will provide 
greater transparency and clarity with respect to the manner in which 
trading will be halted due to a reverse stock split, and the process 
through which that halt will be implemented and terminated. 
Particularly, Nasdaq will not have the discretion of determining 
whether to declare a trading halt in a security that is subject to a 
reverse stock split. Rather, following the reverse stock split of the 
security for which Nasdaq is the Primary Listing Market, trading in the 
security will halt prior to the end of Post-Market Hours on the day 
immediately before the market effective date of a reverse stock split. 
Nasdaq also

[[Page 78083]]

believes it is appropriate to re-open the security at 9:00 a.m. because 
it gives the Exchange an opportunity to review its order book and root 
out any orders in a security that has undergone a reverse stock split, 
that have not correctly adjusted to the security's new stock price. The 
proposed changes seek to achieve consistency with respect to the 
initiation and termination of a trading halt with respect to securities 
that are subject to a reverse stock split, while maintaining a fair and 
orderly market, protecting investors and protecting the public 
interest.
    Additionally, establishing a mandatory trading halt for securities 
that are subject to a reverse stock split and resuming trading 
thereafter promotes fair and orderly markets and the protection of 
investors, because it allows Nasdaq to protect the broader interests of 
the national market system and addresses potential concerns that system 
errors may affect immediate trading in those securities. Nasdaq 
believes that given the increase in companies effecting reverse stock 
splits, the proposed trading halt rules will help Nasdaq reduce the 
potential for errors resulting in a material effect on the market 
resulting from market participants' processing of the reverse stock 
split, including incorrect adjustment or entry of orders. Additionally, 
resuming trading at 9:00 a.m. also promotes fair and orderly markets 
and the protection of investors by allowing time to remove any orders 
that have not adjusted for the security's new reverse stock split 
price.
    Based on the foregoing, the Exchange believes that the proposed 
rules are consistent with Section 6(b)(5) of the Act \15\ because they 
will promote just and equitable principles of trade and will remove any 
impediments to a free and open market and a national market system by 
allowing sufficient time for investors to review their orders and the 
quotes for a security that are subject to a reverse stock split, and 
allow market participants to ensure that their systems have properly 
accounted for the reverse stock split. As discussed previously, the 
Exchange believes that the proposed amendments establishing the 
authority and process for reverse stock split trading halts and the 
resumption of trading is consistent with the Act, which itself imposes 
obligations on exchanges with respect to issuers that are listed.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    The Exchange believes the proposal is consistent with Section 
6(b)(8) of the Act in that it does not impose any burden on competition 
that is not necessary or appropriate in furtherance of the purposes of 
the Act as explained below.
    The Exchange believes the proposal will not impose a burden on 
intermarket competition that is not necessary or appropriate in 
furtherance of the purposes of the Act because the proposed rule change 
is designed to protect investors and facilitate a fair and orderly 
market, which are both important purposes of the Act. To the extent 
that there is any impact on intermarket competition, it is incidental 
to these objectives.
    The Exchange does not believe that the proposed rule change imposes 
a burden on intra-market competition because the provisions apply to 
all market participants and issuers equally. In addition, information 
regarding the halting and resumption of trading will be disseminated 
using several freely accessible sources to ensure broad availability of 
information offered by the Exchange that are available to subscribers.
    In addition, the proposals include provisions related to the 
declaration and timing of trading halts and the resumption of trading 
designed to avoid any advantage to those who can react more quickly 
than other participants.

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

    No written comments were either solicited or received.

III. Discussion and Commission Findings

    The Commission is approving the proposed rule change, as modified 
by Amendment No. 1, for the reasons discussed below.\16\ The Commission 
finds that the proposed rule change, as modified by Amendment No. 1, is 
consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a national securities exchange, 
including Section 6(b)(5) of the Exchange Act,\17\ which requires, 
among other things, that the rules of a national securities exchange be 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest; and are not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \16\ In approving this proposed rule change, the Commission has 
considered the proposed rule change's impact on efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
    \17\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    As noted above, the proposal, as modified by Amendment No.1, would 
extend the Exchange's non-discretionary authority to declare a 
regulatory halt to cases where a security for which Nasdaq is the 
Primary Listing Market \18\ is undergoing a reverse stock split.\19\ As 
proposed, the Exchange will declare a regulatory halt \20\ for which 
Nasdaq is the Primary Listing Market before the end of Post-Market 
Hours \21\ on the day immediately before the market effective date of 
the reverse stock split in the security.\22\ The Exchange also proposes 
to terminate the regulatory halt and resume trading \23\ in the halted 
security using the Nasdaq Halt Cross procedure \24\ in Nasdaq Rule 
4753.\25\
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    \18\ See supra, note 9 and accompanying text (defining the term 
``Primary Listing Market'').
    \19\ Current Nasdaq Rule 4120 does not include reverse stock 
splits in the enumerated circumstances in which Nasdaq may halt 
trading in a security. See supra, Section II.
    \20\ See supra, note 10 (discussing notice of the regulatory 
halt to market participants).
    \21\ See supra, note 8 and accompanying text (defining the term 
``Post-Market Hours''). The Exchange represents that, while it does 
not anticipate halting a security that is undergoing a reverse stock 
split sooner than 7:50 p.m. on the day immediately before the market 
effective date of the reverse stock split in the security, the 
Exchange may halt trading sooner than 7:50 p.m. for other reasons as 
described in Nasdaq Equity 4, Section 4120. See supra, note 10.
    \22\ See proposed Nasdaq Rule 4120(a)(14). The Exchange 
represents that once post-market trading closes at 8:00 p.m. all 
orders for the halted security will be cancelled. See supra, Section 
II.
    \23\ See supra, note 11 (discussing notice of termination of the 
regulatory halt to market participants). The Exchange represents 
that Nasdaq may change the resumption time if, for example, there 
was an Extraordinary Market Activity that could interfere with a 
fair and orderly 9:00 a.m. resumption. See supra, note 11.
    \24\ See supra, note 5 and accompanying text (discussing the 
Nasdaq Halt Cross).
    \25\ See proposed Nasdaq Rule 4753(b). The Exchange also 
proposes to modify Rule 4120(c)(7)(A) to include the non-
discretionary regulatory halt authority proposed in Rule 4120(a)(14) 
in the reopening process currently applicable to trading halts under 
Rules 4120(a)(1), (4), (5), (6), (9), (10) and (11). See supra, 
Section II.
---------------------------------------------------------------------------

    The Exchange represents that declaring a regulatory halt before the 
end of Post Market Hours on the day immediately before the market 
effective date of the reverse stock split in a security for which 
Nasdaq is the Primary Listing Market is appropriate because it would 
provide the Exchange

[[Page 78084]]

with explicit, non-discretionary authority to declare a regulatory halt 
in cases where a security is undergoing a significant corporate action 
that could cause investor or market confusion, such as where a security 
for which Nasdaq is the Primary Listing Market is undergoing a reverse 
stock split.\26\ The Exchange represents that the proposed regulatory 
halt and delayed \27\ reopening of the security subject to a reverse 
stock split using the Nasdaq Halt Cross \28\ procedure under Nasdaq 
Rule 4753 would provide Nasdaq \29\ and market participants \30\ with 
the time necessary to adjust for, as well as detect and correct order 
entry or other system errors associated with, the reverse stock split, 
thus preventing such errors from disrupting or otherwise having a 
material effect on the market.\31\ The Exchange further represents that 
using the Nasdaq Halt Cross process under Nasdaq Rule 4753 for 
terminating the proposed halt and resuming trading on the security is 
consistent with the process used for other securities halted under 
Nasdaq Rule 4120.\32\
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    \26\ The Exchange represents that none of the provisions in 
Nasdaq Rule 4120 currently provide the Exchange with authority to 
declare a trading halt under such circumstances. See supra, Section 
II.
    \27\ See supra, note 12 and accompanying text (discussing the 
proposed delayed opening for a Nasdaq-listed security undergoing a 
reverse stock split).
    \28\ See supra, note 5 and accompanying text.
    \29\ The Exchange represents that it currently processes reverse 
stock splits overnight, with the security undergoing a reverse stock 
split opening for trading at 4:00 a.m. ET in the pre-market hours 
(i.e., the trading session between 4:00 a.m. to 9:30 a.m. ET) on a 
split-adjusted basis. The Exchange further represents that it is 
appropriate to re-open the security at 9:00 a.m. using the Nasdaq 
Halt Cross process, as proposed, because it gives the Exchange an 
opportunity to review its order book and root out any orders for a 
security that has undergone a reverse stock split that have not 
correctly adjusted to the security's new stock price. See supra, 
Section II.
    \30\ The Exchange represents that market participants have 
expressed concerns with allowing trading on an adjusted basis at 
4:00 a.m. because system errors or problems with orders may go 
unnoticed for some time when a security that has undergone a reverse 
stock split opens for trading together with all other securities. 
The Exchange represents that in 2022, Nasdaq processed 196 reverse 
stock splits, compared to 35 in 2021 and 98 in 2020, and that in the 
first quarter of 2023, Nasdaq processed 78 reverse stock splits, 
with significantly more projected throughout 2023. See supra, 
Section II.
    \31\ See supra, Section II.
    \32\ See supra, Section II.
---------------------------------------------------------------------------

    The Commission finds that the proposed rule change is reasonably 
designed to remove impediments to and perfect the mechanism of a free 
and open market and a national market system, and, in general, protect 
investors and the public interest by providing greater transparency and 
certainty with respect to the manner in which trading in a security for 
which Nasdaq is the Primary Listing Market will be halted due to a 
reverse stock split in the security, as well as the process through 
which the regulatory halt for the security will be implemented and 
terminated. The Commission also finds the proposal is reasonably 
designed to promote fair and orderly trading on the Exchange by 
reducing the potential for order entry or other system-related errors 
associated with a reverse stock split in a security for which Nasdaq is 
the Primary Listing Market. Finally, the Commission finds that using 
the Nasdaq Halt Cross process under Rule 4753 to terminate the proposed 
regulatory halt and reopen the security, as proposed, raises no novel 
regulatory issues, as it is consistent with the process generally used 
by Nasdaq to terminate a trading halt and reopen trading in a security 
halted for other reasons under Nasdaq Rule 4120.
    For the forgoing reasons, the Commission finds that the proposed 
rule change, as modified by Amendment No. 1, is consistent with the 
Act.

IV. Solicitation of Comments on Amendment No. 1 to the Proposed Rule 
Change

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment No. 1 
is consistent with the Act. Comments may be submitted by any of the 
following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-NASDAQ-2023-036 on the subject line.

Paper Comments

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

All submissions should refer to file number SR-NASDAQ-2023-036. 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 website (https://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 website 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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-NASDAQ-2023-036 and should 
be submitted on or before December 5, 2023.

V. Accelerated Approval of Amendment No. 1

    The Commission finds good cause to approve the proposed rule 
change, as modified by Amendment No. 1, prior to the thirtieth day 
after the date of publication of notice of the filing of Amendment No. 
1 in the Federal Register. As noted above, Amendment No. 1 makes non-
substantive clarifying changes and provides additional justification 
for the proposed rule change.\33\ The Commission finds that Amendment 
No. 1 provides greater clarity to and justification for the proposal 
but does not materially alter the substance of the proposed rule 
change. These changes raise no novel issues and assist the Commission 
in finding that the proposal is consistent with the Act. Accordingly, 
the Commission finds good cause, pursuant to Section 19(b)(2) of the 
Act,\34\ to approve the proposed rule change, as modified by Amendment 
No. 1, on an accelerated basis.
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    \33\ See supra, note 4.
    \34\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\35\ that the proposed rule change (SR-NASDAQ-2023-036), as 
modified by Amendment No. 1, be, and hereby is, approved on an 
accelerated basis.
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    \35\ 15 U.S.C. 78s(b)(2).


[[Page 78085]]


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    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\36\
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    \36\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-25013 Filed 11-13-23; 8:45 am]
BILLING CODE 8011-01-P

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