Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Amend Rule 5820 To Codify the Standards of Review That Govern Appeals Before the Nasdaq Listing and Hearing Review Council and Calls for Review by the Nasdaq Listing and Hearing Review Council, 59782-59785 [2024-16105]
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Federal Register / Vol. 89, No. 141 / Tuesday, July 23, 2024 / Notices
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–MIAX–2024–30 and should be
submitted on or before August 13, 2024.
For the Commission, by the Division
of Trading and Markets, pursuant to
delegated authority.20
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024–16106 Filed 7–22–24; 8:45 am]
BILLING CODE 8011–01–P
[Release No. 34–100544; File No. SR–
NASDAQ–2024–037]
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Self-Regulatory Organizations; The
Nasdaq Stock Market LLC; Notice of
Filing of Proposed Rule Change To
Amend Rule 5820 To Codify the
Standards of Review That Govern
Appeals Before the Nasdaq Listing and
Hearing Review Council and Calls for
Review by the Nasdaq Listing and
Hearing Review Council
July 17, 2024.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on July 3,
CFR 200.30–3(a)(12), (59).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
18:47 Jul 22, 2024
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
Exchange 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 these
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 aspects of such
statements.
1. Purpose
Nasdaq’s Listing Qualifications
Department (the ‘‘Listing Qualifications
Department’’) evaluates Company
compliance with quantitative and
qualitative listing standards and
determines eligibility for initial and
continued listing of a company’s
securities under Nasdaq’s Listing Rules
(the ‘‘Listing Rules’’). When the Listing
Qualifications Department determines
that a company does not meet the
requirements to remain listed, the
Listing Qualifications Department will
issue a Staff Delisting Determination.3
Upon receipt of a Staff Delisting
3 See Listing Rule 5810. The Listing Department
may also issue a Public Reprimand Letter in certain
circumstances.
1 15
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I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend
Rule 5820 to codify the standards of
review that govern appeals before the
Nasdaq Listing and Hearing Review
Council and calls for review by the
Nasdaq Listing and Hearing Review
Council.
The text of the proposed rule change
is available on the Exchange’s website at
https://listingcenter.nasdaq.com/
rulebook/nasdaq/rules, at the principal
office of the Exchange, and at the
Commission’s Public Reference Room.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
SECURITIES AND EXCHANGE
COMMISSION
20 17
2024, The Nasdaq Stock Market LLC
(‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the
Securities and Exchange Commission
(‘‘SEC’’ or ‘‘Commission’’) the proposed
rule change as described in Items I and
II, below, which Items have been
prepared by the Exchange. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
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Determination or a Public Reprimand
Letter, or when its application for initial
listing is denied, a company may
request that a Hearings Panel review the
matter.4 After reviewing the written
record and holding an oral hearing, if
one is requested, a Hearings Panel will
issue a decision, which is reviewed by
the Nasdaq Listing and Hearing Review
Council (the ‘‘Listing Council’’), either
on appeal or on its own initiative.5 The
use of Hearings Panels and the Listing
Council, along with the limited
discretion given to the Listing
Qualifications Department, helps
address the perception of conflicts that
may otherwise exist given Nasdaq’s
status as both a self-regulatory
organization and a for-profit entity.6
Nasdaq’s Listing Rules currently do
not specify a standard of review that
applies when the Listing Council
reviews Hearings Panel decisions. In
fact, the Listing Rules are ambiguous on
this issue. On the one hand, Listing Rule
5820 charges the Listing Council with
conducting a ‘‘review’’ and hearing an
‘‘appeal’’ of a Hearings Panel decision—
language which suggests that the
responsibility of the Listing Council is
to determine whether the Hearings
Panel’s decisions were correct. On the
other hand, Listing Rule 5820(d) gives
the Listing Council broad discretion to
‘‘consider . . . failures previously not
considered by the Hearings Panel’’ and
Listing Rule 5820(e) states that the
Listing Council may request additional
evidence and hold additional hearings.
This language suggests that the Listing
Council’s mandate is broader and that it
may render decisions based upon facts
and circumstances that were not before
the Hearings Panels or that arose
subsequent to the Hearings Panels’
decisions.
The Exchange believes that it is
important to address the absence of a
clear standard of review in Listing
Council matters. Doing so would
provide clarity to all participants in the
appeals process as to the appropriate
role of the Listing Council vis-à-vis the
Hearings Panels. It would help the
Listing Council to understand whether
and under what circumstances to
consider companies’ efforts to comply
4 See
Listing Rule 5815.
Listing Rule 5820. Pursuant to the Nasdaq
Stock Market LLC By-Laws, the Listing Council is
composed of non-Nasdaq-affiliated members, from
both industry and non-industry backgrounds, who
are nominated by Nasdaq management and
approved by a Nominating Committee of its Board
of Directors. See Bylaws of the Nasdaq Stock Market
LLC, Article V.
6 The Exchange notes that the Listing Rules also
provide an opportunity for the Board of Directors
to review Listing Council decisions on its own
initiative. See Listing Rule 5825.
5 See
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with applicable Listing Rules after the
Hearings Panel has rendered its
decision. Likewise, it would inform
companies as to whether appeals to the
Listing Council are likely to be viable or
futile. Finally, the establishment of a
standard of review would promote
consistency in the Listing Council’s
decisions, which in turn is important to
ensuring that the Listing Council is
regarded as a fair and reasonable
appellate body and that its decisions
garner respect. For these reasons, the
Exchange now proposes to amend
Listing Rule 5820 to adopt a standard of
review for appeals of Hearings Panel
decisions before the Listing Council and
a separate standard of review for
Hearings Panel decision called for
review by the Listing Council.
Appeals of Hearings Panel Decisions
Before the Listing Council
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Specifically, the proposed standard
for appeals would first state a general
principle that the Listing Council
ordinarily shall not substitute its
judgment for that of the Hearings Panel
when reviewing Hearings Panels’
decisions.7 The Exchange believes that
deference to Hearings Panels is
appropriate insofar as the Hearings
Panels’ decisions are based upon
fulsome examinations of the law, rules,
and facts applicable to matters,
including through written briefs
submitted by both parties as well as oral
hearings at which Hearings Panels
scrutinize the parties’ assertions. By
contrast, the Listing Council does not
conduct its own independent factual
examinations. Although the Listing
Council has access to the full record of
prior Hearings Panel proceedings and
prior Listing Qualifications Department
actions, as well as the appellate briefs
submitted by both parties, the Listing
Council typically focuses on discrete
questions of law, rule, or fact raised in
the appellate briefs and does not
ordinarily hold oral hearings.8 Given the
limited role that the Listing Council
plays in the process relative to the
Hearings Panels, the Exchange believes
that the Listing Council should defer to
7 In light of the proposed changes described
herein, which circumscribe the authority of the
Listing Council, the Exchange proposes to modify
the first sentence of Listing Rule 5820(d)(1), which
presently states that the Listing Council may
‘‘where it deems appropriate’’ affirm, modify, or
reverse a Hearings Panel decision. The Exchange
proposes to remove the phrase ‘‘where it deems
appropriate’’ insofar as the proposal sets forth
elsewhere the circumstances in which such actions
would be appropriate for the Listing Council.
8 See Listing Rule 5820(e)(1), providing that the
review generally will be on the written record,
although the Listing Council has the ability, at its
discretion, to hold additional hearings.
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the Hearings Panels’ judgment in most
instances.
The proposed rule also provides that
the Listing Council shall affirm a Panel
Decision unless it determines that: (i)
the specific grounds on which the Panel
Decision is based did not exist, as a
matter of fact; (ii) the Panel Decision is
inconsistent with law or Nasdaq Rules;
or (iii) there exist extraordinary
circumstances that warrant reversal,
modification or remand, consistent with
the public interest and protection of
investors.9 By proposing such standard,
the Exchange seeks to limit frivolous
and baseless appeals. Based on Nasdaq’s
experience, such appeals often consist
of companies simply pleading to the
Listing Council to grant them additional
time beyond that which the Hearings
Panel or Listing Qualifications
Department had granted them to comply
with the Listing Rules. Going forward,
absent a showing of extraordinary
circumstances (as described below), the
Listing Council would not entertain
such appeals, and that standard would
be transparent to companies.
Likewise, by limiting the Listing
Council’s appellate authority to the
consideration of circumstances that
existed as of the time when the Hearings
Panel rendered its decision, the
Exchange would provide transparency
to the effect of a company gaining
compliance with applicable Listing
Rules after the Hearings Panel has
issued its decision. The pendency of a
Listing Council appeal is not intended
to be, and should not serve as, a de facto
additional extension period during
which a company may demonstrate
compliance with applicable listing
requirements. Instead, a company
should satisfy the initial listing
requirements and follow the application
process if it wishes to be listed after it
was properly removed by a Hearings
9 The Exchange notes that the proposed standard
is similar to the standard of review with respect to
the Commission’s review of self-regulatory
organization decisions, which states that, ‘‘In any
proceeding to review . . . the prohibition or
limitation by a self-regulatory organization of any
person with respect to access to services offered by
the self-regulatory organization or any member
thereof, if the appropriate regulatory agency for
such applicant or person, after notice and
opportunity for hearing (which hearing may consist
solely of consideration of the record before the selfregulatory organization and opportunity for the
presentation of supporting reasons to dismiss the
proceeding or set aside the action of the selfregulatory organization) finds that the specific
grounds on which such denial, bar, or prohibition
or limitation is based exist in fact, that such denial,
bar, or prohibition or limitation is in accordance
with the rules of the self-regulatory organization,
and that such rules are, and were applied in a
manner, consistent with the purposes of this
chapter, such appropriate regulatory agency, by
order, shall dismiss the proceeding.’’ See 15 U.S.C.
78s(f).
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Panel for non-compliance with a listing
requirement. The Exchange’s proposal
will adopt this construct by stating that
the Listing Council shall affirm a Panel
Decision unless it determines that the
specific grounds on which the Panel
Decision is based did not exist, as a
matter of fact, except as described
below.
Notwithstanding the above, the
Exchange recognizes that there may be
certain circumstances that—as a matter
of fundamental fairness or to protect
investors and the market—warrant the
Listing Council reversing, modifying, or
remanding a Hearings Panel decision,
even when the Hearings Panel decision
was based on specific grounds that
existed, as a matter of fact, and was
consistent with law or Nasdaq Rules at
the time it was rendered. The Exchange
believes that such circumstances should
be limited to those that are
extraordinary, lest the exceptions will
swallow the general rule that limits the
scope of the Listing Council’s review
authority.
The Exchange proposes to define
these ‘‘extraordinary circumstances,’’ for
purposes of proposed Listing Rule
5820(d)(1)(A), as those that are ‘‘unusual
and infrequent’’—so opposed to routine
and common occurrences that a
company should be expected to
anticipate and address them within the
normal course of their business.
Specifically, under proposed Listing
Rule 5820(d)(1)(A), extraordinary
circumstances mean unusual and
infrequent circumstances that are either:
(i) outside of the reasonable control of
a company or anyone acting on its
behalf (such as where non-compliance
with a Listing Rule is caused by a
natural disaster or another force majeure
event); or (ii) indicative of widespread
difficulties among similarly situated
companies in complying with the
relevant Listing Rules, where delisting
those companies’ securities would pose
an unnecessary burden on investors and
the market.
A circumstance that is beyond the
reasonable control of a company or
someone acting on its behalf (such as an
auditor, accountant, attorney,
consultant, vendor, employee, officer, or
director) might include, by way of
illustration only, a storm, fire, war,
terrorist act, or other force majeure
event that, despite reasonable protective
measures, destroys, damages, delays, or
otherwise impedes the ability of a
company to meet its obligations under
the Listing Rules. By contrast, a
circumstance that likely would not be
beyond the control of a company would
be an error by a company employee.
Even if the company’s management did
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not know about or specifically authorize
the employee’s action, a company is
ordinarily responsible for supervising
its employees. Likewise, unauthorized
malfeasance by a company employee
might be considered within the
company’s control if the misconduct
occurred due to a lack of oversight.
An example of a widespread difficulty
among similarly situated companies in
complying with the Listing Rules might
include a good faith misunderstanding
or misinterpretation of a new or
complex accounting standard that
impacts a large number of public
companies and requires them all to
restate their financial statements. In
such a circumstance, the Listing Council
may determine that delisting all of the
impacted companies for the same reason
could unduly disrupt the market and
result in greater harm than good for
investors. The Exchange notes, however,
that if a company knowingly or willfully
misapplied the accounting standard in
the above example, or did not act
diligently to restate its financial
statements, then the Listing Council
could determine that the company was
not ‘‘similarly situated’’ with other
listed companies and that it therefore is
ineligible for additional time to regain
compliance with the Listing Rules.
The Exchange notes that the question
of what particular circumstances will
qualify as ‘‘extraordinary’’ is a factspecific inquiry that cannot be reduced
to a comprehensive list. Accordingly,
the question will be determined by the
Listing Council on a case-by-case basis.
In determining this question, the Listing
Council will consider any
recommendation made by the Hearings
Panel or Listing Qualifications
Department as to whether or not the
circumstances surrounding the appeal
are indeed extraordinary.
The Exchange notes that it proposes
to grant the Listing Council authority to
act in extraordinary circumstances only
where the Listing Council otherwise has
discretion under Listing Rule 5820(d) to
provide the requested relief. That is, if
a company asks the Listing Council for
additional time to file a delinquent
periodic report, but the company’s
report is already more than 360 days
late, then the Listing Council would be
limited by Listing Rule 5820(d)(4) and
would not have discretion to grant the
company’s request, pursuant to
proposed Listing Rule 5820(d)(1)(A),
even if the Listing Council might
otherwise agree that the company’s
lateness was the result of extraordinary
circumstances.
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Calls for Review of Hearings Panel
Decisions by the Listing Council
The Exchange proposes to adopt a
separate standard of review in the event
the Listing Council calls a matter for
review. Specifically, proposed Listing
Rule 5820(d)(1)(B) provides that if the
Listing Council calls a matter for review,
the Listing Council shall conduct a de
novo review of the matter and may
consider circumstances that did not
exist when the Hearings Panel rendered
its decision. Should the Listing Council
call a matter for review, the Exchange
believes that it is appropriate to adopt
a de novo review where the Council can
consider facts and circumstances that
did not exist at the time when the Panel
rendered its decision. Moreover, the de
novo standard will allow the Listing
Council to draw different conclusions
based on the facts than the Hearings
Panel did, which the Exchange believes
will best enable the Listing Council to
perform its oversight responsibilities
through the call for review function.10
Finally, the Exchange notes that calls for
review are rare and are solely in the
control of the Council.11 Therefore,
unlike the appeal process, there is
nearly no risk of companies exploiting
the review process to belatedly regain
compliance.
Clarifying Changes
Lastly, and in addition to the above,
the Exchange proposes to reorganize
and clarify the existing text of Listing
Rule 5820(d) so that it is easier to
comprehend. Specifically, the Exchange
proposes to relocate the second sentence
of subparagraph (d)(1)—which sets forth
the general authority of the Listing
Council to grant an exception to the
Listing Rules—to subparagraph (d)(4).
As part of this reorganization, the
Exchange also proposes to insert the
existing text of subparagraph (d)(4) as
subparagraph (d)(4)(A) and the existing
text of subparagraph (d)(5) as
subparagraph (d)(4)(B). Existing
subparagraph (d)(4) prescribes a
maximum time period for Listing
Council exceptions for companies to
regain compliance with periodic filing
10 For example, the Listing Council could observe
in its call for review process that a company was
granted an exception to remain listed based on a
plan of compliance where other companies with
similar plans of compliance were not granted
exceptions by different Hearings Panels. The ability
to review the matter de novo will allow the Listing
Council to call that matter for review and reverse
the Hearings Panel’s decision even though the
Hearings Panel did not make a factual error in its
decision and Nasdaq’s Rules would allow the
Hearings Panel to grant such an exception.
11 From January 1, 2022 until June 30, 2024, only
one matter was called for review by the Listing
Council. That call for review was later withdrawn.
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requirement, while existing
subparagraph (d)(5) does the same with
respect to exceptions for companies that
fail to hold annual meetings. The
proposed reorganization of these three
provisions will clarify that the Listing
Council’s general authority to grant an
exemption under (d)(4) will apply
except where non-compliance involves
delinquencies in filing periodic reports
or failures to hold annual meetings, in
which cases subparagraphs (d)(4)(A) or
(d)(4)(B) will instead apply,
respectively. This clarification will help
to dispel confusion as to whether the
Listing Council’s authority to grant an
exception in cases of filing
delinquencies and annual meeting
deficiencies is in addition to or in lieu
of the Listing Council’s general
authority to grant exceptions. Finally,
the Exchange proposes to relocate the
last two sentences of existing
subparagraph (d)(1)—which concern the
issuance by the Listing Council of a
public reprimand letter—to
subparagraph (d)(5). This change is also
intended to improve clarity.
Implementation
Following approval of this proposal,
the Exchange proposes to apply the new
standards of review to all matters that
thereafter enter the Listing Council
review process. The Exchange will
apply the current rules to any matter
that is pending Listing Council review
at the time when the proposal becomes
effective.
2. Statutory Basis
The Exchange believes that its
proposal is consistent with Section 6(b)
of the Act,12 in general, and furthers the
objectives of Section 6(b)(5) of the Act,13
in particular, in that it is designed 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.
As discussed above, the Listing Rules
presently lack a clear standard of review
to govern Listing Council reviews of
Hearings Panel decisions. The absence
of a standard of review can lead to
inconsistent interpretations of the
Listing Council’s authority over time
and has led to confusion by companies
as to whether actions they take to
comply with applicable Listing Rules
after a Hearings Panel decision can
allow them to be approved for initial
listing or avoid delisting.
12 15
13 15
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U.S.C. 78f(b).
U.S.C. 78f(b)(5).
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The Exchange’s proposal will address
these problems, to the benefit of the
markets, investors, and the public, by
adopting a transparent standard of
review for Listing Council reviews of
Hearings Panel decisions, which is
consistent with the standard of review
imposed on the Commission’s review of
Nasdaq listing decisions in Section 19 of
the Act.14 The adoption of specified
standards of review will help promote
consistency and prevent unfair
discrimination in the Listing Council’s
decisions, improve the clarity of the
appellate process and the respective
roles of the Hearings Panels and the
Listing Council, and also improve the
fairness of the process.
The proposal will also promote the
equitable treatment of applicant and
listed companies, and protect the
market and investors, by preserving the
Listing Council’s discretionary authority
(to the extent it otherwise exists) to
grant relief in the appeals process to
companies when extraordinary
circumstances exist. When noncompliance with the Listing Rules is the
result of unusual and infrequent
occurrences that were beyond the
reasonable control of a company, a
decision to not approve for initial listing
or delist a company’s securities may be
unduly harsh and unnecessarily harm
the company’s investors. Likewise,
when a large group of similarly situated
companies experience a common
difficulty that occasions their noncompliance with the Listing Rules,
delisting the securities of all those
companies may result in undue
disruption to the markets and harm to
investors. The proposal grants the
Listing Council discretion to avoid such
unfair and imprudent results, albeit in
a manner that is itself carefully
calibrated to avoid granting discretion
that is either too broad or too narrow.
In addition, the Exchange believes
that its proposal to adopt a de novo
standard of review in instances where
the Listing Council calls a matter for
review on its own accord will serve to
protect the market and investors. As
described above, calls for review are
rare and solely under the control of the
Council. Therefore, unlike the appeal
process, there is nearly no risk of
companies exploiting the review
process to belatedly regain compliance.
Finally, the Exchange believes that it
is consistent with the Act to amend
Listing Rule 5820 to improve its overall
clarity and organization. In particular,
the Exchange believes that its proposal
to reorganize language pertaining to the
Listing Council’s authorities to grant
14 15
U.S.C. 78s(f). See footnote 9, supra.
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exceptions to the Listing Rules will help
to dispel confusion as to the intended
relationships between these authorities
and thereby 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.
Electronic Comments
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition not
necessary or appropriate in furtherance
of the purposes of the Act. The proposal
will merely establish standards of
review for Listing Council appeals and
calls for review that will apply equally
to all companies listed on the Exchange
and all applicants for listing thereupon.
If any listed company or applicant for
listing finds the proposal or the review
procedures to be unfair or to be
otherwise unfavorable, such companies
or applicants may freely apply to list
their securities on other exchanges. In
addition, this rule proposal does not
burden competition with other venues,
which are similarly free to align their
appellate processes.15
Paper Comments
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. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of
publication of this notice in the Federal
Register or within such longer period
up to 90 days (i) as the Commission may
designate if it finds such longer period
to be appropriate and publishes its
reasons for so finding or (ii) as to which
the self-regulatory organization
consents, the Commission will:
(A) by order approve or disapprove
the proposed rule change, or
(B) institute proceedings to determine
whether the proposed rule change
should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
• 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–2024–037 on the subject line.
• 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–2024–037. 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–2024–037 and should be
submitted on or before August 13, 2024.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.16
J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2024–16105 Filed 7–22–24; 8:45 am]
BILLING CODE 8011–01–P
Exchange notes that it offers an additional
level of review via the Listing Council, an appellate
layer that is not offered by certain competitors of
the Exchange.
PO 00000
15 The
Frm 00071
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]]>Agencies
[Federal Register Volume 89, Number 141 (Tuesday, July 23, 2024)]
[Notices]
[Pages 59782-59785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16105]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100544; File No. SR-NASDAQ-2024-037]
Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing of Proposed Rule Change To Amend Rule 5820 To Codify
the Standards of Review That Govern Appeals Before the Nasdaq Listing
and Hearing Review Council and Calls for Review by the Nasdaq Listing
and Hearing Review Council
July 17, 2024.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on July 3, 2024, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') the proposed rule change as described in
Items I and II, below, which Items have been prepared by the Exchange.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend Rule 5820 to codify the standards of
review that govern appeals before the Nasdaq Listing and Hearing Review
Council and calls for review by the Nasdaq Listing and Hearing Review
Council.
The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, at
the principal office of the Exchange, and at the Commission's Public
Reference Room.
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 Exchange 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 these 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 aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
Nasdaq's Listing Qualifications Department (the ``Listing
Qualifications Department'') evaluates Company compliance with
quantitative and qualitative listing standards and determines
eligibility for initial and continued listing of a company's securities
under Nasdaq's Listing Rules (the ``Listing Rules''). When the Listing
Qualifications Department determines that a company does not meet the
requirements to remain listed, the Listing Qualifications Department
will issue a Staff Delisting Determination.\3\ Upon receipt of a Staff
Delisting Determination or a Public Reprimand Letter, or when its
application for initial listing is denied, a company may request that a
Hearings Panel review the matter.\4\ After reviewing the written record
and holding an oral hearing, if one is requested, a Hearings Panel will
issue a decision, which is reviewed by the Nasdaq Listing and Hearing
Review Council (the ``Listing Council''), either on appeal or on its
own initiative.\5\ The use of Hearings Panels and the Listing Council,
along with the limited discretion given to the Listing Qualifications
Department, helps address the perception of conflicts that may
otherwise exist given Nasdaq's status as both a self-regulatory
organization and a for-profit entity.\6\
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\3\ See Listing Rule 5810. The Listing Department may also issue
a Public Reprimand Letter in certain circumstances.
\4\ See Listing Rule 5815.
\5\ See Listing Rule 5820. Pursuant to the Nasdaq Stock Market
LLC By-Laws, the Listing Council is composed of non-Nasdaq-
affiliated members, from both industry and non-industry backgrounds,
who are nominated by Nasdaq management and approved by a Nominating
Committee of its Board of Directors. See Bylaws of the Nasdaq Stock
Market LLC, Article V.
\6\ The Exchange notes that the Listing Rules also provide an
opportunity for the Board of Directors to review Listing Council
decisions on its own initiative. See Listing Rule 5825.
---------------------------------------------------------------------------
Nasdaq's Listing Rules currently do not specify a standard of
review that applies when the Listing Council reviews Hearings Panel
decisions. In fact, the Listing Rules are ambiguous on this issue. On
the one hand, Listing Rule 5820 charges the Listing Council with
conducting a ``review'' and hearing an ``appeal'' of a Hearings Panel
decision--language which suggests that the responsibility of the
Listing Council is to determine whether the Hearings Panel's decisions
were correct. On the other hand, Listing Rule 5820(d) gives the Listing
Council broad discretion to ``consider . . . failures previously not
considered by the Hearings Panel'' and Listing Rule 5820(e) states that
the Listing Council may request additional evidence and hold additional
hearings. This language suggests that the Listing Council's mandate is
broader and that it may render decisions based upon facts and
circumstances that were not before the Hearings Panels or that arose
subsequent to the Hearings Panels' decisions.
The Exchange believes that it is important to address the absence
of a clear standard of review in Listing Council matters. Doing so
would provide clarity to all participants in the appeals process as to
the appropriate role of the Listing Council vis-[agrave]-vis the
Hearings Panels. It would help the Listing Council to understand
whether and under what circumstances to consider companies' efforts to
comply
[[Page 59783]]
with applicable Listing Rules after the Hearings Panel has rendered its
decision. Likewise, it would inform companies as to whether appeals to
the Listing Council are likely to be viable or futile. Finally, the
establishment of a standard of review would promote consistency in the
Listing Council's decisions, which in turn is important to ensuring
that the Listing Council is regarded as a fair and reasonable appellate
body and that its decisions garner respect. For these reasons, the
Exchange now proposes to amend Listing Rule 5820 to adopt a standard of
review for appeals of Hearings Panel decisions before the Listing
Council and a separate standard of review for Hearings Panel decision
called for review by the Listing Council.
Appeals of Hearings Panel Decisions Before the Listing Council
Specifically, the proposed standard for appeals would first state a
general principle that the Listing Council ordinarily shall not
substitute its judgment for that of the Hearings Panel when reviewing
Hearings Panels' decisions.\7\ The Exchange believes that deference to
Hearings Panels is appropriate insofar as the Hearings Panels'
decisions are based upon fulsome examinations of the law, rules, and
facts applicable to matters, including through written briefs submitted
by both parties as well as oral hearings at which Hearings Panels
scrutinize the parties' assertions. By contrast, the Listing Council
does not conduct its own independent factual examinations. Although the
Listing Council has access to the full record of prior Hearings Panel
proceedings and prior Listing Qualifications Department actions, as
well as the appellate briefs submitted by both parties, the Listing
Council typically focuses on discrete questions of law, rule, or fact
raised in the appellate briefs and does not ordinarily hold oral
hearings.\8\ Given the limited role that the Listing Council plays in
the process relative to the Hearings Panels, the Exchange believes that
the Listing Council should defer to the Hearings Panels' judgment in
most instances.
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\7\ In light of the proposed changes described herein, which
circumscribe the authority of the Listing Council, the Exchange
proposes to modify the first sentence of Listing Rule 5820(d)(1),
which presently states that the Listing Council may ``where it deems
appropriate'' affirm, modify, or reverse a Hearings Panel decision.
The Exchange proposes to remove the phrase ``where it deems
appropriate'' insofar as the proposal sets forth elsewhere the
circumstances in which such actions would be appropriate for the
Listing Council.
\8\ See Listing Rule 5820(e)(1), providing that the review
generally will be on the written record, although the Listing
Council has the ability, at its discretion, to hold additional
hearings.
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The proposed rule also provides that the Listing Council shall
affirm a Panel Decision unless it determines that: (i) the specific
grounds on which the Panel Decision is based did not exist, as a matter
of fact; (ii) the Panel Decision is inconsistent with law or Nasdaq
Rules; or (iii) there exist extraordinary circumstances that warrant
reversal, modification or remand, consistent with the public interest
and protection of investors.\9\ By proposing such standard, the
Exchange seeks to limit frivolous and baseless appeals. Based on
Nasdaq's experience, such appeals often consist of companies simply
pleading to the Listing Council to grant them additional time beyond
that which the Hearings Panel or Listing Qualifications Department had
granted them to comply with the Listing Rules. Going forward, absent a
showing of extraordinary circumstances (as described below), the
Listing Council would not entertain such appeals, and that standard
would be transparent to companies.
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\9\ The Exchange notes that the proposed standard is similar to
the standard of review with respect to the Commission's review of
self-regulatory organization decisions, which states that, ``In any
proceeding to review . . . the prohibition or limitation by a self-
regulatory organization of any person with respect to access to
services offered by the self-regulatory organization or any member
thereof, if the appropriate regulatory agency for such applicant or
person, after notice and opportunity for hearing (which hearing may
consist solely of consideration of the record before the self-
regulatory organization and opportunity for the presentation of
supporting reasons to dismiss the proceeding or set aside the action
of the self-regulatory organization) finds that the specific grounds
on which such denial, bar, or prohibition or limitation is based
exist in fact, that such denial, bar, or prohibition or limitation
is in accordance with the rules of the self-regulatory organization,
and that such rules are, and were applied in a manner, consistent
with the purposes of this chapter, such appropriate regulatory
agency, by order, shall dismiss the proceeding.'' See 15 U.S.C.
78s(f).
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Likewise, by limiting the Listing Council's appellate authority to
the consideration of circumstances that existed as of the time when the
Hearings Panel rendered its decision, the Exchange would provide
transparency to the effect of a company gaining compliance with
applicable Listing Rules after the Hearings Panel has issued its
decision. The pendency of a Listing Council appeal is not intended to
be, and should not serve as, a de facto additional extension period
during which a company may demonstrate compliance with applicable
listing requirements. Instead, a company should satisfy the initial
listing requirements and follow the application process if it wishes to
be listed after it was properly removed by a Hearings Panel for non-
compliance with a listing requirement. The Exchange's proposal will
adopt this construct by stating that the Listing Council shall affirm a
Panel Decision unless it determines that the specific grounds on which
the Panel Decision is based did not exist, as a matter of fact, except
as described below.
Notwithstanding the above, the Exchange recognizes that there may
be certain circumstances that--as a matter of fundamental fairness or
to protect investors and the market--warrant the Listing Council
reversing, modifying, or remanding a Hearings Panel decision, even when
the Hearings Panel decision was based on specific grounds that existed,
as a matter of fact, and was consistent with law or Nasdaq Rules at the
time it was rendered. The Exchange believes that such circumstances
should be limited to those that are extraordinary, lest the exceptions
will swallow the general rule that limits the scope of the Listing
Council's review authority.
The Exchange proposes to define these ``extraordinary
circumstances,'' for purposes of proposed Listing Rule 5820(d)(1)(A),
as those that are ``unusual and infrequent''--so opposed to routine and
common occurrences that a company should be expected to anticipate and
address them within the normal course of their business.
Specifically, under proposed Listing Rule 5820(d)(1)(A),
extraordinary circumstances mean unusual and infrequent circumstances
that are either: (i) outside of the reasonable control of a company or
anyone acting on its behalf (such as where non-compliance with a
Listing Rule is caused by a natural disaster or another force majeure
event); or (ii) indicative of widespread difficulties among similarly
situated companies in complying with the relevant Listing Rules, where
delisting those companies' securities would pose an unnecessary burden
on investors and the market.
A circumstance that is beyond the reasonable control of a company
or someone acting on its behalf (such as an auditor, accountant,
attorney, consultant, vendor, employee, officer, or director) might
include, by way of illustration only, a storm, fire, war, terrorist
act, or other force majeure event that, despite reasonable protective
measures, destroys, damages, delays, or otherwise impedes the ability
of a company to meet its obligations under the Listing Rules. By
contrast, a circumstance that likely would not be beyond the control of
a company would be an error by a company employee. Even if the
company's management did
[[Page 59784]]
not know about or specifically authorize the employee's action, a
company is ordinarily responsible for supervising its employees.
Likewise, unauthorized malfeasance by a company employee might be
considered within the company's control if the misconduct occurred due
to a lack of oversight.
An example of a widespread difficulty among similarly situated
companies in complying with the Listing Rules might include a good
faith misunderstanding or misinterpretation of a new or complex
accounting standard that impacts a large number of public companies and
requires them all to restate their financial statements. In such a
circumstance, the Listing Council may determine that delisting all of
the impacted companies for the same reason could unduly disrupt the
market and result in greater harm than good for investors. The Exchange
notes, however, that if a company knowingly or willfully misapplied the
accounting standard in the above example, or did not act diligently to
restate its financial statements, then the Listing Council could
determine that the company was not ``similarly situated'' with other
listed companies and that it therefore is ineligible for additional
time to regain compliance with the Listing Rules.
The Exchange notes that the question of what particular
circumstances will qualify as ``extraordinary'' is a fact-specific
inquiry that cannot be reduced to a comprehensive list. Accordingly,
the question will be determined by the Listing Council on a case-by-
case basis. In determining this question, the Listing Council will
consider any recommendation made by the Hearings Panel or Listing
Qualifications Department as to whether or not the circumstances
surrounding the appeal are indeed extraordinary.
The Exchange notes that it proposes to grant the Listing Council
authority to act in extraordinary circumstances only where the Listing
Council otherwise has discretion under Listing Rule 5820(d) to provide
the requested relief. That is, if a company asks the Listing Council
for additional time to file a delinquent periodic report, but the
company's report is already more than 360 days late, then the Listing
Council would be limited by Listing Rule 5820(d)(4) and would not have
discretion to grant the company's request, pursuant to proposed Listing
Rule 5820(d)(1)(A), even if the Listing Council might otherwise agree
that the company's lateness was the result of extraordinary
circumstances.
Calls for Review of Hearings Panel Decisions by the Listing Council
The Exchange proposes to adopt a separate standard of review in the
event the Listing Council calls a matter for review. Specifically,
proposed Listing Rule 5820(d)(1)(B) provides that if the Listing
Council calls a matter for review, the Listing Council shall conduct a
de novo review of the matter and may consider circumstances that did
not exist when the Hearings Panel rendered its decision. Should the
Listing Council call a matter for review, the Exchange believes that it
is appropriate to adopt a de novo review where the Council can consider
facts and circumstances that did not exist at the time when the Panel
rendered its decision. Moreover, the de novo standard will allow the
Listing Council to draw different conclusions based on the facts than
the Hearings Panel did, which the Exchange believes will best enable
the Listing Council to perform its oversight responsibilities through
the call for review function.\10\ Finally, the Exchange notes that
calls for review are rare and are solely in the control of the
Council.\11\ Therefore, unlike the appeal process, there is nearly no
risk of companies exploiting the review process to belatedly regain
compliance.
---------------------------------------------------------------------------
\10\ For example, the Listing Council could observe in its call
for review process that a company was granted an exception to remain
listed based on a plan of compliance where other companies with
similar plans of compliance were not granted exceptions by different
Hearings Panels. The ability to review the matter de novo will allow
the Listing Council to call that matter for review and reverse the
Hearings Panel's decision even though the Hearings Panel did not
make a factual error in its decision and Nasdaq's Rules would allow
the Hearings Panel to grant such an exception.
\11\ From January 1, 2022 until June 30, 2024, only one matter
was called for review by the Listing Council. That call for review
was later withdrawn.
---------------------------------------------------------------------------
Clarifying Changes
Lastly, and in addition to the above, the Exchange proposes to
reorganize and clarify the existing text of Listing Rule 5820(d) so
that it is easier to comprehend. Specifically, the Exchange proposes to
relocate the second sentence of subparagraph (d)(1)--which sets forth
the general authority of the Listing Council to grant an exception to
the Listing Rules--to subparagraph (d)(4). As part of this
reorganization, the Exchange also proposes to insert the existing text
of subparagraph (d)(4) as subparagraph (d)(4)(A) and the existing text
of subparagraph (d)(5) as subparagraph (d)(4)(B). Existing subparagraph
(d)(4) prescribes a maximum time period for Listing Council exceptions
for companies to regain compliance with periodic filing requirement,
while existing subparagraph (d)(5) does the same with respect to
exceptions for companies that fail to hold annual meetings. The
proposed reorganization of these three provisions will clarify that the
Listing Council's general authority to grant an exemption under (d)(4)
will apply except where non-compliance involves delinquencies in filing
periodic reports or failures to hold annual meetings, in which cases
subparagraphs (d)(4)(A) or (d)(4)(B) will instead apply, respectively.
This clarification will help to dispel confusion as to whether the
Listing Council's authority to grant an exception in cases of filing
delinquencies and annual meeting deficiencies is in addition to or in
lieu of the Listing Council's general authority to grant exceptions.
Finally, the Exchange proposes to relocate the last two sentences of
existing subparagraph (d)(1)--which concern the issuance by the Listing
Council of a public reprimand letter--to subparagraph (d)(5). This
change is also intended to improve clarity.
Implementation
Following approval of this proposal, the Exchange proposes to apply
the new standards of review to all matters that thereafter enter the
Listing Council review process. The Exchange will apply the current
rules to any matter that is pending Listing Council review at the time
when the proposal becomes effective.
2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\12\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\13\ in particular, in that it is designed 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.
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\12\ 15 U.S.C. 78f(b).
\13\ 15 U.S.C. 78f(b)(5).
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As discussed above, the Listing Rules presently lack a clear
standard of review to govern Listing Council reviews of Hearings Panel
decisions. The absence of a standard of review can lead to inconsistent
interpretations of the Listing Council's authority over time and has
led to confusion by companies as to whether actions they take to comply
with applicable Listing Rules after a Hearings Panel decision can allow
them to be approved for initial listing or avoid delisting.
[[Page 59785]]
The Exchange's proposal will address these problems, to the benefit
of the markets, investors, and the public, by adopting a transparent
standard of review for Listing Council reviews of Hearings Panel
decisions, which is consistent with the standard of review imposed on
the Commission's review of Nasdaq listing decisions in Section 19 of
the Act.\14\ The adoption of specified standards of review will help
promote consistency and prevent unfair discrimination in the Listing
Council's decisions, improve the clarity of the appellate process and
the respective roles of the Hearings Panels and the Listing Council,
and also improve the fairness of the process.
---------------------------------------------------------------------------
\14\ 15 U.S.C. 78s(f). See footnote 9, supra.
---------------------------------------------------------------------------
The proposal will also promote the equitable treatment of applicant
and listed companies, and protect the market and investors, by
preserving the Listing Council's discretionary authority (to the extent
it otherwise exists) to grant relief in the appeals process to
companies when extraordinary circumstances exist. When non-compliance
with the Listing Rules is the result of unusual and infrequent
occurrences that were beyond the reasonable control of a company, a
decision to not approve for initial listing or delist a company's
securities may be unduly harsh and unnecessarily harm the company's
investors. Likewise, when a large group of similarly situated companies
experience a common difficulty that occasions their non-compliance with
the Listing Rules, delisting the securities of all those companies may
result in undue disruption to the markets and harm to investors. The
proposal grants the Listing Council discretion to avoid such unfair and
imprudent results, albeit in a manner that is itself carefully
calibrated to avoid granting discretion that is either too broad or too
narrow.
In addition, the Exchange believes that its proposal to adopt a de
novo standard of review in instances where the Listing Council calls a
matter for review on its own accord will serve to protect the market
and investors. As described above, calls for review are rare and solely
under the control of the Council. Therefore, unlike the appeal process,
there is nearly no risk of companies exploiting the review process to
belatedly regain compliance.
Finally, the Exchange believes that it is consistent with the Act
to amend Listing Rule 5820 to improve its overall clarity and
organization. In particular, the Exchange believes that its proposal to
reorganize language pertaining to the Listing Council's authorities to
grant exceptions to the Listing Rules will help to dispel confusion as
to the intended relationships between these authorities and thereby
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.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. The proposal will merely
establish standards of review for Listing Council appeals and calls for
review that will apply equally to all companies listed on the Exchange
and all applicants for listing thereupon. If any listed company or
applicant for listing finds the proposal or the review procedures to be
unfair or to be otherwise unfavorable, such companies or applicants may
freely apply to list their securities on other exchanges. In addition,
this rule proposal does not burden competition with other venues, which
are similarly free to align their appellate processes.\15\
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\15\ The Exchange notes that it offers an additional level of
review via the Listing Council, an appellate layer that is not
offered by certain competitors of the Exchange.
---------------------------------------------------------------------------
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. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
file number SR-NASDAQ-2024-037 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-2024-037. 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-2024-037 and should
be submitted on or before August 13, 2024.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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\16\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2024-16105 Filed 7-22-24; 8:45 am]
BILLING CODE 8011-01-P
