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91–300 PDF 2015

S. HRG. 113–478

THE ROLE OF REGULATION IN SHAPING EQUITY

MARKET STRUCTURE AND ELECTRONIC TRADING

HEARING

BEFORE THE

COMMITTEE ON 

BANKING, HOUSING, AND URBAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED THIRTEENTH CONGRESS

SECOND SESSION

ON

EXAMINING THE INFLUENCE OF REGULATION ON THE GROWTH OF 

MARKET STRUCTURE, THE SYSTEMS AND OPERATION OF MARKET 

PARTICIPANTS AND THE DEVELOPMENT OF BUSINESS PRACTICES RELATED TO HIGH-FREQUENCY TRADING, ELECTRONIC MARKETS AND 

AUTOMATED TRADING

JULY 8, 2014

Printed for the use of the Committee on Banking, Housing, and Urban Affairs

(

Available at: http://www.fdsys.gov/


BANKI-41578DSA with DISTILLER
COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS 

TIM JOHNSON, South Dakota, Chairman

JACK REED, Rhode Island 

CHARLES E. SCHUMER, New York 

ROBERT MENENDEZ, New Jersey 

SHERROD BROWN, Ohio 

JON TESTER, Montana 

MARK R. WARNER, Virginia 

JEFF MERKLEY, Oregon 

KAY HAGAN, North Carolina 

JOE MANCHIN III, West Virginia 

ELIZABETH WARREN, Massachusetts 

HEIDI HEITKAMP, North Dakota 

MIKE CRAPO, Idaho 

RICHARD C. SHELBY, Alabama 

BOB CORKER, Tennessee 

DAVID VITTER, Louisiana 

MIKE JOHANNS, Nebraska 

PATRICK J. TOOMEY, Pennsylvania 

MARK KIRK, Illinois 

JERRY MORAN, Kansas 

TOM COBURN, Oklahoma 

DEAN HELLER, Nevada

CHARLES YI, Staff Director 

GREGG RICHARD, Republican Staff Director

LAURA SWANSON, Deputy Staff Director 

GLEN SEARS, Deputy Policy Director 

BRETT HEWITT, Policy Analyst and Legislative Assistant

GREG DEAN, Republican Chief Counsel 

JELENA MCWILLIAMS, Republican Senior Counsel

DAWN RATLIFF, Chief Clerk 

TAYLOR REED, Hearing Clerk 

SHELVIN SIMMONS, IT Director 

JIM CROWELL, Editor

(II)


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CONTENTS

TUESDAY, JULY 8, 2014

Page

Opening statement of Chairman Johnson ............................................................. 1

Opening statements, comments, or prepared statements of: 

Senator Crapo ................................................................................................... 2

Senator Heller ................................................................................................... 3

Senator Reed 

Prepared statement ................................................................................... 41

WITNESSES 

Jeffrey Sprecher, Chairman and CEO, Intercontinental Exchange, Inc. ............ 4

Prepared statement .......................................................................................... 41

Kenneth C. Griffin, Founder and Chief Executive Officer, Citadel LLC ............ 5

Prepared statement .......................................................................................... 43

Kevin Cronin, Global Head of Trading, Invesco, Ltd. .......................................... 6

Prepared statement .......................................................................................... 48

James J. Angel, Ph.D., CFA, Associate Professor of Finance, Georgetown 

University McDonough School of Business ........................................................ 8

Prepared statement .......................................................................................... 51

Tom Wittman, Executive Vice President and Global Head of Equities, 

NASDAQ OMX Group, Inc. ................................................................................. 23

Prepared statement .......................................................................................... 60

Joe Ratterman, Chief Executive Officer, BATS Global Markets, Inc. ................. 24

Prepared statement .......................................................................................... 62

Response to written question of: 

Senator Brown ........................................................................................... 123

David Lauer, President and Managing Partner, KOR Group LLC ..................... 26

Prepared statement .......................................................................................... 69

(III)


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(1)

THE ROLE OF REGULATION IN SHAPING EQUITY MARKET STRUCTURE AND ELECTRONIC TRADING 

TUESDAY, JULY 8, 2014

U.S. SENATE, 

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS, 

Washington, DC. 

The Committee met at 10:04 a.m., in room SD–538, Dirksen Senate Office Building, Hon. Tim Johnson, Chairman of the Committee, presiding. 

OPENING STATEMENT OF CHAIRMAN TIM JOHNSON 

Chairman JOHNSON. I call this hearing to order. Good morning. 

Today the Committee will examine equity market structure. It is 

a complicated topic, and a whole new vocabulary is needed to understand market structure and electronic trading. Words like ‘‘dark 

pool,’’ ‘‘high-frequency trading,’’ and ‘‘data feed’’ are pieces to understanding the market puzzle. Even experts disagree on the details 

of how the markets work and what issues and problems exist. 

In less than a decade, the stock market has moved from being 

dominated by two exchanges to an extremely competitive but fragmented marketplace with 11 stock exchanges and over 40 private 

alternative trading centers, increasing complexity and instability in 

the system. However, many rules and market conventions date 

back to the days of less complex markets. 

The regulatory environment has to recognize the new electronic 

trading landscape, one where institutions, individuals, market 

makers, and traders interact at high-speed over dozens of connected markets. The benefits of lower costs and more efficient trading are important, but fairness and market resilience are also vital 

and should continue to be examined. 

Additionally, while we have seen a sizable stock market rally 

since the Flash Crash 4 years ago, we also hear reports of declining 

stock market investment and loss of faith by individual investors. 

Many reasons have been suggested, but doubts about market integrity and market stability are heard too often. 

Although many market participants call for reform, they often 

disagree as to where that reform should occur. Any path to reform 

must be built on good data and the goals of preserving a competitive market and the interests of long-term investors, while protecting the market from future disruptions. I am encouraged to see 

the SEC move forward with a comprehensive review of market 

structure and an initiative for small company stocks that recogVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\91300.TXT SHERYL

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nizes one size does not fit all. But pilots and reviews are just a first 

step. I want to see urgent and thorough attention given to the market structure review so that any corrective measures that would 

help restore trust in the fairness of our markets are taken as 

quickly as possible. 

I look forward to the witnesses’ testimony today as the Committee examines whether today’s market structure has the right 

kind and amount of regulation to maintain a stable, competitive, 

and efficient marketplace and what additional measures would be 

useful. 

With that, I turn to Ranking Member Crapo for his opening 

statement. 

STATEMENT OF SENATOR MIKE CRAPO 

Senator CRAPO. Thank you, Mr. Chairman. 

The U.S. capital markets are vital to the continued growth of our 

economy. I have repeatedly stressed the need for the U.S. financial 

system and markets to remain the preferred destination for investors throughout the world. This hearing will examine the role of 

regulation in shaping today’s markets as well as whether these 

markets are as resilient and stable as they should be, given the rising different types of technology and automated trading. 

Recent news about the practices of certain market participants 

and automated trading has raised concerns as to whether the stock 

market is rigged against small investors. SEC Chair White recently 

stated her view that the market is not rigged, but there is a need 

to review the current equity market structure, and such a review 

should be disciplined and conducted in a data-driven manner. 

While much has been made recently of the potential dangers of 

automated trading, what is often forgotten is that technology and 

innovation has benefited investors by leading to tighter spreads, 

lower costs, and more efficient markets. 

Today an individual retail investor has an easier time participating in our stock market than at any time in the history of these 

markets. With fees under $10 a trade, the spreads between bid and 

ask prices for most stocks as narrow as they have ever been, and 

with trading being done in a matter of sub-seconds rather than 

minutes, retail investors have been able to enjoy greater involvement in and access to the markets. 

To continue this level of investor participation, we must ensure 

that the markets have the resiliency and the capabilities to handle 

the evolving speed and complexity of today’s trading world. I am 

encouraged by speeches and comments given by SEC Chair White 

and other SEC Commissioners acknowledging both the positive and 

negative roles that SEC regulations played in shaping today’s market structure, as well as an appetite to address unintended consequences of those regulations. 

As evidenced by today’s testimony and by the academic discussions of the U.S. markets, many of the concerns raised by market 

participants and investors are the outgrowth of the SEC Regulation 

NMS and the overall patchwork approach to market trading infrastructure and stability taken by the SEC in the past. 

It is important and prudent for regulators to periodically review 

the regulations to ensure that they are still appropriate in today’s 


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automated world. However, any such holistic review of regulations 

should be based on empirical analysis, should be data driven, and 

incorporate the input of market participants, industry, and the investors who make the investments. Everyone should have a seat at 

the table in this important discussion, and everyone must be willing to roll up their sleeves to find the right solutions. 

I am particularly interested in the panel’s views on whether the 

benefits to the market participants and investors from the rapid 

expansion of various trading venues and increased competition 

have been outweighed by the strain to the market infrastructure. 

I am also interested in what can be done to build better markets 

for smaller companies. And what further measures do market participants and trading venues need to take to minimize market disruptions and increase the resiliency and durability of the systems? 

Investor confidence is the key. Our markets cannot afford another Flash Crash or major market disruption. I look forward to 

hearing from today’s panelists about their thoughts on potential enhancement to market structure and integrity and hope to hear 

from them about what changes they believe are appropriate. 

Thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you, Senator Crapo. 

Would any of my colleagues like to make a brief opening statement? 

Senator HELLER. Chairman Johnson? 

Chairman JOHNSON. Senator Heller. 

STATEMENT OF SENATOR DEAN HELLER 

Senator HELLER. Thank you very much. Mr. Chairman, also 

thanks to the Ranking Member for this hearing today. I want you 

to know that in my previous life I worked as a trader on the Pacific 

Stock Exchange, specifically the L.A. Floor, which goes to show you 

how old I am. That floor, because of progress, does not even exist 

anymore. Needless to say, I may be one of only a handful of Senators here serving currently that has passed the Series 7 exam. 

Recently, SEC Chair Mary Jo White stated that ‘‘the U.S. markets are the strongest and most reliable in the world’’ and that ‘‘the 

retail investor is very well served by the current market structure,’’ 

and I end the quote with that. While I have concerns about the potential bubbles in the equity market caused by quantitative easing, 

structurally today’s markets are very beneficial for retail investors 

with spreads for many stocks, typically a penny or less, and access 

to markets has never been easier, and commissions to trade are at 

all-time lows. 

While there has been much debate about the new methods of 

trading, I would caution any desires to roll back the technology 

clock. With every new Internet-based technology, I believe that we 

must ensure proper safeguards while maintaining an environment 

that continues to promote new financial technologies and innovative growth. 

U.S. markets have changed greatly since I left the trading floor, 

and this hearing will help the public better understand today’s 

competitive modern markets, and I look forward to hearing from 

our witnesses on what can be done to increase investors’ confidence 

and further promote market stability. 


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Mr. Chairman, thank you for the opening statement. 

Chairman JOHNSON. Thank you. 

Would anybody else like to make a brief opening statement? 

Senator MORAN. Mr. Chairman? 

Chairman JOHNSON. Yes. 

Senator MORAN. Mr. Chairman, thank you. I just want to welcome fellow Kansan Joe Ratterman who will be on the second 

panel testifying this afternoon. I appreciate you including him in 

today’s hearing. 

Chairman JOHNSON. Yes. Before we begin, I would like to apologize to my colleagues and the witnesses on the second panel, but 

I will have to excuse myself after the first panel due to a prior engagement. I thank my good friend Senator Reed for agreeing to 

take over the gavel for the second panel and will follow up with the 

witnesses later if I have any further questions. 

With that, I would now like to introduce our witnesses on the 

first panel. 

Mr. Jeffrey Sprecher is the Chairman and Chief Executive Officer at Intercontinental Exchange. 

Mr. Kenneth Griffin is the Chief Executive Officer at Citadel. 

Mr. Kevin Cronin is Global Head of Trading at Invesco. 

Dr. James Angel is an Associate Professor of Finance at the 

Georgetown University McDonough School of Business. 

Mr. Sprecher, please begin your testimony. 

STATEMENT OF JEFFREY SPRECHER, CHAIRMAN AND CEO, 

INTERCONTINENTAL EXCHANGE, INC. 

Mr. SPRECHER. Chairman Johnson, thank you for having me, 

along with Ranking Member Crapo and the Members of the Committee. I appreciate the opportunity to testify. 

By way of background, in just 14 years my company, which is 

known as ICE, grew from a startup in Atlanta to become one of the 

world’s largest marketplaces, and today we operate 11 exchanges 

and 5 clearinghouses in the United States, Canada, the United 

Kingdom, continental Europe, and Asia; and most recently we acquired the New York Stock Exchange. None of this would have 

been possible for us without our ability to raise funds in the U.S. 

capital markets, which I believe are the best in the world for entrepreneurs like me that seek to build companies. And much of our 

growth can be attributed to trying to make capital raising and risk 

management more accessible and more transparent. We have inevitably faced head winds as a result of challenging the status quo, 

but we believe very strongly in that vision. 

The United States has a number of regulatory policies that were 

intended to improve markets but, we believe, need to be revisited 

in light of evolving industry practices. And so we offer five recommendations that we hope can be quickly adopted. 

Number one, we believe we should enhance order competition by 

giving deference to regulated, transparent trading centers where 

orders compete with one another and contribute to providing price 

discovery information to all others. 

Second, we would eliminate and ban maker-taker pricing 

schemes at trading venues. Rebates that were once used to encourage participants to quote have evolved and now add too much order 


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complexity and add the potential for conflicts of interest in our 

market. 

Third, we would lower the statutory minimum cap on exchange 

fees that exist within Regulation NMS. So in combination with giving deference to regulated and transparent markets and eliminating maker-taker rebates, we believe that the SEC should require lower maximum fees, including on my company, the New 

York Stock Exchange. 

Fourth, we should revamp the current market data delivery system to promote fairness. We support the SEC’s examination of the 

current Securities Information Processors and the proprietary data 

feeds to adopt new policies. 

And, last, we should require increased transparency by having 

the SEC demand that all trading centers report trade executions 

in real time and all routing practices be disclosed by trading centers and the brokers who touch customer orders. 

So, in summary, my firm’s proposed solutions are based on reducing complexity, reducing conflicts of interest, and treating people fairly when investing in the U.S. markets. 

Thank you again for inviting me to testify, and I look forward to 

answering your questions. 

Chairman JOHNSON. Thank you. 

Mr. Griffin, please begin your testimony. 

STATEMENT OF KENNETH C. GRIFFIN, FOUNDER AND CHIEF 

EXECUTIVE OFFICER, CITADEL LLC 

Mr. GRIFFIN. Chairman Johnson, Ranking Member Crapo, Members of the Committee, I am Kenneth Griffin, the founder and CEO 

of Citadel. I appreciate the opportunity to be here today to testify. 

Citadel’s experience as both an institutional investor and a leading market maker gives us deep insight into the strength, structure, and resilience of our markets today. I can say without hesitation that the U.S. equity markets are the fairest, most transparent, resilient, and competitive markets in the world. 

Over the past two decades, a wave of innovation has swept 

through the markets in response to new technologies and thoughtful regulation. Simply put, today’s markets are faster, they are better, and they are incredibly competitive. The cost of trading has 

plummeted for investors. 

That said, we can further improve our equity markets. In my 

written testimony I have included a more detailed list of suggestions, but I would like to highlight a few. 

First, we can and should take steps to increase the resiliency of 

our markets. The SEC should require mandatory exchange-level 

kill switches and ensure that exchanges have clear authority and 

responsibility to block and stop aberrant activity before it adversely 

impacts the markets. The activity of a large number of market participants intersects on exchanges, and exchanges are thus best positioned to efficiently and constantly oversee trading activity. 

Second, we believe the SEC should require brokers to publicly report consistent, standardized execution quality metrics in a way 

that allows retail investors to easily compare performance. We can 

empower retail investors with information about brokers’ execution 

quality and position them to make informed choices. We recVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\DOCS\91300.TXT SHERYL

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ommend that the SEC require all execution quality reports to be 

comprehensive, understandable, and made available for at least 3 

years. Investors can then track the quality of executions over time 

and hold their brokers accountable. 

Third, dark pools should be subject to the same anti-discrimination rules that our securities exchanges are subject to and should 

be required to offer fair and impartial access to all market participants. In recent years, increasing amounts of trading have taken 

place on dark pools. While public quotes on exchanges are available 

to all investors, this is not necessarily the case for liquidity present 

on dark pools. In fact, dark pools may refuse access, give execution 

priority, and charge different fees to different market participants. 

Dark pools should only be allowed to determine execution priority based on the characteristics of an order, such as price, size, 

and time of arrival, and should not be allowed to allocate executions based upon the identity of the participants. 

For example, broker preferencing is a practice that could return 

our markets to the old boys’ network of prior decades when who 

you were and who you know mattered more than the merits of your 

order. 

Fourth, I agree with Jeff that the maximum fee of 30 cents per 

100 shares that is charged to access exchange liquidity is now significantly greater than the cost of providing matching services by 

the exchanges and should be reduced to reflect today’s competitive 

reality. We believe a reduction in the minimum tick size for the 

most liquid low-priced securities, combined with a reduction in the 

maximum permitted access fee, would best serve the interests of all 

investors. 

There are other important steps that we should take to enhance 

market quality, improve market resilience, and strengthen investor 

protections. However, we must pursue this agenda without sacrificing the extraordinary achievements we have made for investors 

in terms of market efficiency, lower costs, increased transparency, 

increased fairness, and competitiveness over the prior two decades. 

Thank you for the opportunity to testify before this Committee 

today. We commend the Committee and the SEC for taking a datadriven and comprehensive review of U.S. equity markets and look 

forward to a robust dialogue. And I would be happy to answer your 

questions. 

Chairman JOHNSON. Thank you. 

Mr. Cronin, please proceed. 

STATEMENT OF KEVIN CRONIN, GLOBAL HEAD OF TRADING, 

INVESCO, LTD. 

Mr. CRONIN. Thank you very much for the opportunity to be here 

today on behalf of Invesco, a global asset management firm with 

$790 billion of assets under management. We serve individuals 

who are saving for their retirement and other personal financial 

needs. These are long-term investors, and they are the cornerstone 

of our Nation’s capital formation process. Retaining their confidence is fundamental to well-functioning U.S. equity markets. 

We need to make sure that those markets are highly liquid, 

transparent, fair, stable, and efficient. Due to regulatory changes 

and developments in technology, there is robust competition among 


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exchanges and alternative execution venues. These changes have 

benefited investors in the former of lower commissions, spreads, 

and implicit transaction costs, which have in turn enhanced the liquidity in the markets. 

But there are unintended consequences which have unleveled the 

playing field. These include: 

Market fragmentation. Markets have become too complex and 

fragmented, not because they need to be but, rather, because we 

have allowed them to become so. This complexity has contributed 

to a number of technological mishaps which shake investor confidence. Sophisticated participants can get an unfair advantage 

over ordinary investors, for example, when exchanges sell direct 

data feeds that allow certain market participants to more quickly 

act on trading information. 

Fragmentation also means that the rules governing securities exchanges are very different for those governing alternative trading 

venues, including dark pools. Determining which execution venue 

will lead to the best trading outcome can be very difficult even for 

a firm like Invesco. 

Conflicts of interest. As much as 35 to 40 percent of all trading 

activity today now takes place away from the exchanges, which has 

weakened the robust price discovery that is an essential element 

of an efficient market. The movement away from the exchanges is 

partly the result of broker-dealer routing practices such as internalization and the proliferation of alternative trading venues. 

Much of this is due to two inherent conflicts of interest. 

The first is the broker-dealer’s interest in capturing liquidity rebates associated with the so-called maker-taker pricing model and 

other inducements, including payments for order flow. 

The second is a broker-dealer’s interest in avoiding paying access 

fees to take liquidity from other trading venues. A broker tries to 

keep as many trades as possible within its own internalized system, including its own dark pools. This can driven order-routing decisions that may be at odds with their clients’ best execution interest. 

High-frequency trading. High-frequency trading is not bad in 

itself, but there are certain strategies that can be unfair. These 

strategies have arisen as a result of technology, market fragmentation, and a lack of uniform regulation. Also, high-frequency trading 

appears to focus primarily on large-cap securities. This increases 

trading volumes, but it is not clear that it creates real liquidity. 

Moreover, while market makers historically have provided valuable 

liquidity for mid- and small-cap stocks, they have not benefited 

from the evolution of market structure. 

To be clear, there is much about today’s markets that benefit all 

investors. However, Invesco advocates that regulators take steps to 

address certain unintended consequences. To restore a level playing field in the markets, and to restore investor confidence in the 

fairness and transparency of the markets, we recommend: requiring broker-dealers to provide greater disclosure about order routing; ensuring the market data is fairly disseminated to all participants; eliminating the maker-taker pricing model and reducing access fee caps; harmonizing the regulation of all trading venues; requiring that all high-frequency traders be effectively regulated; inVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\DOCS\91300.TXT SHERYL

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stituting a pilot program for a comprehensive trade-at rule; and facilitating market-making activities for mid- and small-cap stocks. 

Thank you again for your attention to these important issues, 

and I look forward to answering any questions that you may have. 

Chairman JOHNSON. Thank you. 

Professor Angel, please begin your testimony. 

STATEMENT OF JAMES J. ANGEL, PH.D., CFA, ASSOCIATE PROFESSOR OF FINANCE, GEORGETOWN UNIVERSITY 

MCDONOUGH SCHOOL OF BUSINESS 

Mr. ANGEL. Thank you. And, first of all, I want to thank the 

Committee because you are asking exactly the right questions. If 

you get regulation right, the regulators will get the details right, 

and you will not have to worry about whether the kill switches are 

properly designed or not. 

The problem is we have a very fragmented and broken regulatory 

structure. We have literally hundreds of different financial regulatory agencies at the State and Federal levels, and they do not always play nicely together. Stuff falls between the cracks. There are 

turf battles. Nobody with a clean sheet of paper would design a 

regulatory structure like we have now. 

Let me give you just a few examples of this dysfunction. And, 

first of all, I want to state very clearly it is not the fault of the people who work at the regulatory agencies. Most of them are very 

smart, hard-working people, diligently trying to do what Congress 

has told them to do. 

But look at the JOBS Act, a bipartisan bill to create jobs. Everything in the JOBS Act could have been done by the SEC with its 

own pre-existing authority, but they chose not to. You know, as an 

institution, they were incapable of understanding the problems and 

acting on them in a timely manner. 

If you look at the implementation of the Volcker rule, there are 

four different agencies trying to figure out how to implement it. 

If you look at the Flash Crash, look at how long it took to try 

to figure out what happened in that situation. And there is controversy that they still have not figured it out. 

But when we have a regulatory system that cannot enforce existing laws, when investors complain to the SEC about obvious rule 

violations and nothing happens, that zaps investor confidence more 

than anything else. 

In my written remarks, I provide a few details about a case of 

which I have some personal knowledge, the case of W2007 Grace 

Acquisition I. To make a long story short, for over a year there has 

been an issue proceeding at the Commission as to whether this 

company should be required to file financial statements. You know, 

under the rule, if they have more than 300 shareholders of record, 

they should be filing financial statements. 

Well, you would think that the SEC would be able to count to 

300 in less than a year, and, you know, there are many other apparent violations going on there, but when investors report rule 

violations, legal violations, and nothing happens, that kills investor 

confidence. 

Now, as far as the equity market structure goes, what we have 

today is pretty much what Congress ordered in 1975 in the NaVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\DOCS\91300.TXT SHERYL

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tional Market System Amendments to our Exchange Act. Congress 

said: Give us competition among exchanges, between exchanges 

and off-exchange trading platforms, a place where investors can 

trade with each other without going through a dealer. And so what 

we have today is something that is an open architecture market, 

and that is a good thing. Any innovator can plug in a new system 

if they think they have a better solution, because the trading problem has not yet been solved. Trading is a lot more than just matching limit orders. And we need a system where we can continue to 

have a lot more innovation and experimentation. 

Now, the rest of the world, if you look around the world, they are 

copying our market structure. You know, they are going to a competitive system where you have for-profit exchanges, because if you 

do not want a monopoly, you need competition. If you want competition, profit is a great motive. But they are not copying our regulatory structure. 

Now, there are a lot of market practices that are very controversial. I would like to add that using high-speed computers is neither 

good nor bad. Some of the strategies, like market making and ETF 

arbitrage, help low-frequency retail investors like me. Others, you 

know, like order ignition and excess cancellation strategies, are 

harmful and should be curtailed. 

We need regulators who are smart enough to understand what 

is going on, to know the difference between the good and the bad, 

and have the resources to get the bad out while keeping the good 

in. 

Now, as far as technical stability goes, we are in trouble. Our 

market is a complex technological system. There is nothing we can 

do about that. That is the modern world. And complex technological systems fail in weird and strange ways. Most of the regulatory focus has been on making individual parts work well, but 

not in dealing with what happens when the parts do not work together nicely. So more work needs to be done there. 

So there is a lot more that needs to be done, but the most important thing Congress can do is start the process of overall structural 

reform. But in the meantime, what you can do is you can make 

sure that our regulators have the resources they need to do their 

job. If you look at how much we have spent on the SEC since the 

beginning of time, it is less than investors have lost from one Bernie Madoff. But you need to monitor them to make sure that they 

spend those resources properly. You need to make sure that they 

have enough people with degrees in economics, business, engineering, computer science. You need to make sure they have more people who have passed the Series 7, they have more people with real 

work experience, more people who are CFAs or CPAs. They have 

got enough lawyers. They need people with market experience. 

So I have got plenty of other things, but I would like to finish 

up by saying, hey, if we do not fix regulation, we will be saddled 

with a system which is more expensive than it has to be, both in 

terms of direct cost to the taxpayer as well as compliance costs; we 

will have a system which will not protect investors as well as it 

should; we will have a system that will not permit capital formation, and that means less jobs. 

Thank you very much. 


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Chairman JOHNSON. Thank you all. 

As we begin questions, I will ask the Clerk to put 5 minutes on 

the clock for each Member. 

Mr. Sprecher, as the operator of equity and derivatives markets 

while maintaining a competitive marketplace, what can the equity 

markets learn from the derivatives markets? 

Mr. SPRECHER. That is a very good question. I think the main 

difference in U.S. equity markets and U.S. commodity and derivatives markets is that in U.S. commodity and derivatives markets, 

investors can choose where they trade. While we all have talked a 

lot about the competition in U.S. stocks with many different trading venues, the reality is neither you nor I can choose where our 

orders are routed. And as a result of that, we have third parties 

that are making those decisions for us, oftentimes potentially not 

in our best interest. 

What we have seen in the commodities markets is that when investors have a choice, they want obviously low transaction costs, 

honest brokers, and also they want to find the most buyers and 

sellers. So they tend to gravitate to a fewer number of highly competitive exchanges and trading venues. It is competitive but it is 

not fragmented. 

In the equity markets, because you and I and even institutional 

managers like Mr. Cronin do not have an opportunity to choose 

where we trade, consequently we have a lot of other interests that 

cause fragmentation. 

Chairman JOHNSON. Mr. Griffin, do you think market-maker obligations should be revisited? 

Mr. GRIFFIN. Market makers have obligations that are mandated 

by each exchange on which they trade, and today in the U.S. equities market, if you are a NASDAQ market maker, for example, you 

must provide a continuous two-way quote. 

The largest market makers also have a commercial reality that 

they service the important retail investors, institutional investors 

in the United States, and those investors have a very high expectation of continuous liquidity being provided, and it is done so by the 

largest market makers. 

Chairman JOHNSON. Mr. Cronin, what do you think? 

Mr. CRONIN. Market makers are invaluable participants in the 

market structure. Efficient markets are made from the participation of all kinds of different participants. While I might recommend 

that investors like ourselves are probably the most important component, having a robust market-making structure is very important 

as well. We are concerned that the one-size-fits-all proposition that 

the market structure is today does not appropriately address the 

needs of mid-cap and small-cap stocks. So as part of our recommendations, we would like to work with regulators and market 

makers and other market participants to really get to some ideas 

that will facilitate that. 

Today we know that there are a lot of people who portend to be 

market makers, but it is unclear to us whether this is really just 

trading volume or if it is real liquidity. And we need to ensure that 

our markets are liquid at all levels and all market capitalizations. 

Chairman JOHNSON. Professor Angel, what are we learning about 

market structure from recent regulatory actions? 


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Mr. ANGEL. Any particular actions you are interested in, sir? I 

could talk a lot on this. 

[Laughter.] 

Chairman JOHNSON. The most significant actions. 

Mr. ANGEL. OK. The most significant actions were the tremendous changes in market structure that have occurred over the last 

15 years. Twenty years ago, we had a very different market structure for small-cap companies. The old NASDAQ world was very different from the old NYSE world, and listing companies had a 

choice. But now over the years, you know, a very well meaning 

Commission, through a series of decisions, has now given us a onesize-fits-all market where the market structure for tiny little companies is basically the same as for large-cap companies. And what 

we are learning is that one size does not fit all. 

One of the reasons why we have half as many U.S. companies 

listed on our exchanges is our public markets are no longer welcoming to small- and mid-cap companies. And, you know, I think 

this is a problem for capital formation and for job growth going forward. 

Chairman JOHNSON. Mr. Cronin, many have pointed out that additional disclosure by non-exchange trading centers would be helpful. What kind of additional disclosure would influence your trading decisions? 

Mr. CRONIN. Well, there are two dimensions of that. One is about 

the execution facility itself, so we would like to know as much as 

we can about the order-routing practices of those facilities, the 

kinds of order types that reside within them, who the people who 

are interacting in these various dark pools, for example, are. That 

helps us determine whether or not we want to use those destinations, so we need to have that information. 

The second part gets to the executions itself. We need more information to ensure that the execution quality that we need to achieve 

for our clients is sufficient enough to really make those determinations. Today we do not have enough information. As it was recommended by Mr. Griffin, there is more of a requirement that 

should be made standardized to all participants in the marketplace. 

Chairman JOHNSON. Senator Crapo. 

Senator CRAPO. Thank you, Mr. Chairman. 

This question is addressed to the whole panel, and basically I am 

just asking you to prioritize for me. Given your respective roles and 

work, where do you think the greatest weakness in today’s market 

structure is? And if you do not want to limit it to one thing, that 

is OK. But where should we look at the greatest weakness to focus 

right now? Mr. Sprecher? 

Mr. SPRECHER. The market is too complex. While we all support 

competition—and, in fact, I would not be here in front of you if—

I started with nothing and have built one of the largest exchanges 

in the world, so I am pro-competition. But there is a difference between competing to get you, the investor, the best price and simply 

all the intermediaries, exchanges included, trying to split up commission dollars. It is great that we compete for those commission 

dollars, but we have lost track of getting the best price for a company that is trying to raise capital and an investor that would like 


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to meet a company. And I think if we just look at holistic practices 

to do the right thing for investors, we will land on the right public 

policy. 

Senator CRAPO. Thank you. 

Mr. Griffin? 

Mr. GRIFFIN. In my opinion, the issue of complexity is dwarfed 

by the issue of resilience. The impact of the Flash Crash or the 

events that took place in Knight securities dwarf the day-to-day 

issues around complexity in the marketplace. And putting in place 

the appropriate infrastructure that allows for the market to not undergo moments of chaos and panic is of the utmost importance to 

protecting the confidence that we should all have in the functioning 

of the U.S. equity markets. 

Senator CRAPO. Thank you. 

Mr. Cronin? 

Mr. CRONIN. My biggest concern probably gets around investor 

confidence. As I suggested earlier, investor confidence is the key 

that we are all really trying to solve for. All good things come from 

higher levels of confidence from market participants. Where I get 

concerned is there are certain elements of our market that are not 

where they should be. So, for example, the price discovery mechanism, which has historically defined our markets as the most robust and best in the world, has been under assault because so 

much activity is now trading away from those markets. We think 

that, frankly, why we supported Regulation NMS is because we 

thought it would facilitate more price discovery, that there would 

be more interest in institutions and other investors in posting their 

bids and offers. And we are concerned that that has not happened 

and that there is at this point really not a lot of incentive for activities to facilitate more posting of bids and offers. So we are concerned about price discovery. 

If I may, the other thing that is concerning to us is just making 

sure that the markets are fair. Here is a low—you know, high-impact, sort of low-effort kind of thing that we can do. If there is unfair dissemination of data, let us make the dissemination of data 

fair. Right? I think everybody would agree that if there are smart 

people who can process that data at speeds that none of us can 

comprehend, that is fine. But in the first instance, let us make sure 

that everybody gets the data at the same time. That would seem 

to be a very good fundamental start. 

Senator CRAPO. Thank you. 

Dr. Angel? 

Mr. ANGEL. The biggest problem is that our regulatory structure 

as a whole is too slow, too cumbersome, and just does not really 

understand what is going on in the markets quickly enough to craft 

appropriate solutions, that instead what we get are hyper-complex 

rules like NMS that just add to the complexity of the markets without solving the underlying problems. 

Senator CRAPO. Thank you. I actually have questions on each of 

these issues, the complexity, the resiliency, the disclosure, and so 

forth. I am going to have time for one more question, and so I am 

actually going to pick resiliency. And so I will come back to you, 

Mr. Griffin, on that, and others can jump in on this if we have 

time, too. But this issue has been mentioned already. What further 


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changes do we, the SEC, industry stakeholders, or others need to 

undertake to strengthen market integrity and prevent future market disruptions like the Knight trading error or the Flash Crash? 

Do you want to start, Mr. Griffin? 

Mr. GRIFFIN. I do. So if we look at both the Flash Crash and 

what took place at Knight, it concerned orders of undue size or 

quantity entering the market without appropriate checks and balances. The broker-dealers that route orders into America’s exchanges need to have solid and robust fail-safes to prevent such orders from being routed into the marketplace. 

But of equal importance, the exchanges should act as the last 

line of defense to prevent such orders from entering the marketplace and creating disruption. We need both the broker-dealer community and the exchange community to work hand in hand to prevent aberrant orders from having an undue and unfortunate, in 

fact, devastating impact on investor confidence. 

Senator CRAPO. Thank you. I am out of time. I know, Dr. Angel, 

you wanted to give a quick response. Could I do that? 

Mr. ANGEL. Yes. And, in addition, we know that sooner or later 

all systems break in some unanticipated way. So what we need is 

a market-wide holistic view of the entire national market system. 

Current rules and current thinking is to make sure every individual little widget keeps working. But what happens when they 

are all working individually but they do not as a system work properly? And so what we need is better thinking about what happens 

when the next tsunami of market information, you know, overwhelms the market and it starts behaving erratically? 

That is where insufficient work has been done and a lot more 

needs to be done to, you know, prevent the next disruption from 

turning into a catastrophe. 

Senator CRAPO. Thank you. 

Chairman JOHNSON. Senator Warren. 

Senator WARREN. Thank you, Mr. Chairman. 

At a Subcommittee hearing a few weeks ago, I noted that highfrequency trading is not really trading in the traditional sense. 

While regular traders have days when they make money and days 

when they lose money, high-frequency traders almost never lose 

money. In its recent IPO filing, the high-frequency trading firm 

Virtue disclosed that in its 1,238 trading days, it had made money 

on 1,237 of those days. That means that in nearly 5 years of trading, the company had come out ahead on its trades every single 

day save one. 

Now, that is not trading. High-frequency traders are not making 

money by taking on risk. They are making money by effectively 

charging a small fee to investors on millions of transactions. And 

in that circumstance, the question is whether they are providing a 

valuable service in return for that fee or they are just skimming 

money off the top of these trades. 

So at a prior hearing, I asked Andrew Brooks, the head of equity 

trading for T. Rowe Price, and Jeffrey Solomon, CEO of the investment bank Cowen and Company, a simple question: Does high-frequency trading provide any valuable service in exchange for the 

money it sucked out of the markets? And they both said no. In particular, they disputed the often repeated claim that high-frequency 


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trading is valuable because it provides liquidity to the market. So 

I want to push on the liquidity question since they had rightly 

raised it. 

Mr. Griffin, your company has run a fund for several years called 

the ‘‘Tactical Trading fund,’’ and this fund relies primarily on highfrequency trading strategies, and it has been very profitable. Just 

for context, can you tell me what the average holding period for securities is in that fund? 

Mr. GRIFFIN. So, Senator Warren, I am not sure of the source of 

the information that you have on our Tactical fund, but our Tactical fund’s largest source of profitability, to the best of my recollection, over the last several years has been from fundamental equity 

long/short trading. 

Senator WARREN. So you are saying you do not do high-frequency 

trading? 

Mr. GRIFFIN. No, I am not. I am saying that within our Tactical 

fund——

Senator WARREN. Well, do you have a fund that does high-frequency trading? 

Mr. GRIFFIN. The Tactical fund conducts high-frequency trading 

but conducts it along with a variety of other trading activities. 

Senator WARREN. So you are saying it is just a mixed fund at 

this point, and it was never a high-frequency trading fund primarily or exclusively? 

Mr. GRIFFIN. Starting from roughly January 1, 2009, it has been 

a mixed fund with equities being the single largest allocation of 

risk capital, equities trading through——

Senator WARREN. All right. So let me ask the question a different 

way, and I will just ask Mr. Cronin about this question. At an earlier hearing, Mr. Brooks, the head of trading at T. Rowe Price, said 

their average hold time was about 3 years. So my question is: What 

is the average hold time for a high-frequency trading fund? Mr. 

Cronin? 

Mr. CRONIN. I do not have personal knowledge but I know it is 

one heck of a lot less than 3 years. 

Senator WARREN. Under a month? 

Mr. CRONIN. Under a month, probably under——

Senator WARREN. Under a day? 

Mr. CRONIN. Under a minute. 

Senator WARREN. Under a minute, OK. 

Mr. CRONIN. Yes. 

Senator WARREN. OK. So I want to ask the question then about 

liquidity. If you are buying a stock and turning it around and selling it within a minute, within a second later to someone else, how 

does that provide liquidity to the markets? Couldn’t the original 

seller have just sold the stock to the ultimate buyer 1 minute later? 

Mr. CRONIN. We are worried about excessive intermediation in 

the markets. We are also worried that we are probably all not in 

a great position to truly understand all of the HFT activities that 

take place. It might be easy for me to say that some of it is good 

and some of it is bad. I think we should not be in the business of 

conjecture. We should be in the business of data. 


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We recommend that there be a specific regulatory regime that is 

in charge of high-frequency trading so that we can all be better informed. 

Senator WARREN. Well, Mr. Cronin, I appreciate that, and I appreciate that you want to see more regulation here, and that is 

something we certainly should talk about. But I at least want to 

ask the question how it is that—this is the principal claim for highfrequency trading, is that it provides liquidity in the marketplace. 

And all I am saying is it takes place in a very short space where 

someone jumps in ahead of a trade and buys and then turns 

around and sells. And I am trying to figure out how that adds more 

liquidity to a market if that seller would have found that buyer, 

only found them a nanosecond later or 2 seconds later. 

Mr. CRONIN. Senator, that is why we make a distinction between 

trading volume, which is exactly what you describe, and real liquidity. Liquidity provision is a far, far different concept, and that is 

what we are trying to protect and promote. But some of these highfrequency trading strategies are inconsistent with that. 

Senator WARREN. All right. I am out of time. Thank you, Mr. 

Chairman. 

Chairman JOHNSON. Senator Shelby. 

Senator SHELBY. Thank you, Mr. Chairman. 

Mr. Sprecher, you mentioned that the market is too complex. Is 

that because of the electronic growth, the use of electronics as we 

have seen a technological change? I have seen it in my 28 years 

here on the Banking Committee, and you have seen it in the marketplace. Is it too complex because of that? Or is it too complex because of what? 

Mr. SPRECHER. I think there are actually two reasons. One is 

that because the decision where your trade goes is made by a third 

party, it is legal, lawful, and accepted right now that that third 

party can route that trade to their own wholly owned trading 

venue where they can make additional profit, theoretically. So we 

have now seen every major broker-dealer either create their own 

dark pool or come up with some relationship with another market 

maker that would allow them to participate in trading. So that is 

number one. It is the person that makes the routing decision. 

Second, Regulation NMS, which was intended to try to bring the 

markets together as a single whole, suggests that any new entrepreneur like me that starts a venue, everybody must connect to it. 

So it is a law that says if you open a story, everybody must walk 

through your store and at least check on shopping there. So it 

makes—it lowers the bar for entering the market, and as a consequence, we have a lot of trading venues. 

Senator SHELBY. Dark pools, Mr. Griffin. Dark pools have grown, 

according to my information, from approximately 16 percent of all 

trades in 2008 to over 40 percent of all trades last month. Why 

have they grown so fast? And is it—it is obviously lucrative, but 

what is driving all this? Is it technology? 

Mr. GRIFFIN. So, Senator, the exact statistics that you have are 

somewhat off. The numbers that you referred to are probably an 

approximation of the proportion of trading that takes place off exchanges, both at retail-oriented wholesale market makers, such as 

Citadel, and on dark pools. So retail orders in the United States 


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are handled differently than most other orders. A handful of market makers compete vigorously for this order flow and, based on 

their execution quality, are allocated more or less order flow by the 

various major retail brokerage houses. 

American retail investors benefit from the trading acumen of the 

wholesale market-making community. Dark pools, which are generally run by the large broker-dealers, were created to facilitate 

block trading and to provide a low-cost means of trading in competition with the exchanges. 

Now, over the years we have seen the rise of algorithmic trading. 

Large block trades occur less frequently. Large trades are broken 

into small trades of hundreds of shares—100 shares, 200 shares, 

300 shares at a time—and these trades are still executed in dark 

pools. 

I would concur with Mr. Sprecher that the dark pools do add a 

layer of complexity to the marketplace. They are not subject to the 

same anti-discrimination provisions of the exchanges. We should 

level the playing field between the exchanges and the dark pools, 

and the dark pools that compete on the merits should have vibrant 

businesses. 

Senator SHELBY. I assume you are familiar with this, and if you 

are not, tell me. On June 25th, just a few weeks ago, the SEC announced a 1-year tick size pilot program in conjunction with 

FINRA which would allow some small capitalization companies to 

trade in 5-cent increments instead of the traditional 1-penny increments. Commissioner Piwowar of the SEC has been advocating for 

such an initiative, saying in January, and I will quote him:

As the one-size-fits-all approach to market structure is not currently working for small capitalization companies, I support such a pilot and would like 

to see it implemented.

What is the effect of this? Are you familiar with that, Mr. Griffin? 

Mr. GRIFFIN. I am. 

Senator SHELBY. Good. 

Mr. GRIFFIN. My personal belief is that the larger tick size will 

actually erode liquidity. As the tick size increases, transaction costs 

go up, and investors shy away from trading equities with a high 

transaction cost. 

But here is the good news. We will know the answer at some 

point in the next 1 to 2 years when the SEC completes the study, 

and I applaud the SEC’s data-driven approach to analyzing what 

is taking place in our equity markets. 

One thing to keep in mind is that smaller issues in the United 

States are suffering from the consequence of the rapid rise of concentration of holdings by large asset managers. The gentleman to 

my left, for example, speaks to how they manage—was is 700 and 

change billion? 

Mr. CRONIN. $790 billion 

Mr. GRIFFIN. $790 billion. It is difficult for an institution that 

manages $790 billion to focus on investing its resources, its time 

and energy on the issuers that have a market capitalization of a 

few hundred million. So we need to think about how do we encourage the development of more mutual funds and more investment 


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vehicles that specialize in growth opportunity stocks and in the 

small-cap and mid-cap issuer space. 

Senator SHELBY. I think both the gentlemen want to comment. 

Mr. CRONIN. Yes, Senator Shelby, thank you. So I would just 

add, institutions like Invesco do want to have more ownership of 

small company stocks. What prevents us from doing that is that 

the way that they trade does not facilitate liquidity in a way that 

makes it allowable for us to invest in more. We have a number of 

funds that are focused on small-cap stocks, so we recommend—and 

we were very happy to see that there was a pilot program, because 

we actually think the opposite might happen. We do not worry 

about spread. The 5-cent spread is not what determines the value 

of implementing an idea in our portfolio. The very fact that you 

have more people willing to post bids and offers might well incur, 

frankly, from an institutional perspective, far less cost. So we are 

very encouraged that the pilot is taking place and very happy to 

see what the results are. 

Senator SHELBY. Professor, have you got a comment, quickly? 

Mr. ANGEL. Yes. I am strongly in favor of evidence-based regulation. We should have a culture of innovation and experimentation 

so that the SEC is regularly running pilots on a variety of things 

to see what happens. It is far better to have hard data to know 

what we are doing rather than to just say, well, I think it is a good 

idea. 

Senator SHELBY. Thank you, Mr. Chairman. 

Chairman JOHNSON. Senator Menendez. 

Senator MENENDEZ. Thank you, Mr. Chairman. Thank you all for 

your testimony. 

It seems to me that to make our equity markets the best place 

in the world to have investors invest in companies to raise capital, 

the SEC in trading venues has to balance some fundamental market structure tensions. Notably, investors receive better information about market prices when they have more transparency regarding pre-trade quotes and post-trade prices. But there may also 

be times when investors obtain better execution for their own 

trades by providing less transparency to the market. 

For example, if an institutional investor wants to sell a large 

block of shares, it might be concerned about its sell orders driving 

down market prices before it has completed the sale of the entire 

block. So what I would like to hear from the panel is what do you 

think is the appropriate way to balance this tension between wanting to know about everyone else’s trades, but sometimes not wanting anyone else to know about your own. 

Mr. SPRECHER. Thank you. I talk to my staff a lot about the fact 

that everybody wants to know how much everybody else is paid——

[Laughter.] 

Mr. SPRECHER.——but nobody wants to disclose what they make 

after they negotiate their raise. 

I think you have hit on a very salient point. We have been advocating that in today’s world where the smart order routers are 

breaking big trades up into little digestible bites, there is very little 

difference between you and I as a retail trader and Mr. Cronin as 

an institutional trader in terms of what the exchange and the 

matching engines see. We see little bits and bytes. But it is fair 


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that a large institution should have the opportunity to find another 

large institution and do a large-size trade without moving the market. 

And so I think if we could develop a standard by which we had 

an agreed trade size that would be somehow excluded from being 

in the public markets, that would be a fair tradeoff. Right now 

there is no such differentiation, and so we see tiny little trades 

being traded off exchange. 

Senator MENENDEZ. Anyone else? Does anyone else believe—do 

we have the right balance here? 

Mr. ANGEL. This is a very difficult issue that people have been 

debating for years. What is the right amount of transparency? And 

this is why I think experimentation is the answer, because we all 

have ideas on how it should work and how we think it should work, 

but, you know, the proof is in the pudding. So, you know, I think 

that we should experiment with different transparency regimes to 

see what happens. 

Senator MENENDEZ. Mr. Cronin. 

Mr. CRONIN. Senator, as a large institutional investor, I can tell 

you that our responsibility is to make sure that our clients’ best interests are protected. To facilitate that, we need different kinds of 

execution venues that allow us to trade large blocks. As you might 

guess, when you have 500 shares to buy, it is a fair different way 

you approach the order than when you have 5 million shares to 

buy. So we have to balance trying to make sure that the price discovery process is as robust as it can be. And, by the way, we are 

more than happy to trade in the public markets, but we have to 

balance all the different complications that the market structure 

brings to us. 

For example, there are a number of participants in the marketplace who would love to get wind of that 5-million-share orders you 

might guess and try to take advantage of that. We are trying to 

protect and preserve as much value of our transactions into our clients’ hands as possible. So we need tools like dark pools. Dark 

pools have lost their way to be clear, when the average trade size 

is 200 shares when it was proposed to be a block trading system, 

something is broken. Our belief system around what is broken is 

that brokers have a conflict of interest in how they route our orders. They break them up into tiny pieces, as Mr. Sprecher describes, but they also send them to destinations which actually are 

serving to maximize their own economic best interests but may not 

be serving our best execution interest. 

So we would encourage more disclosure around that practice. We 

have advocated for getting rid of these incentives like maker-taker 

which promote activities which may be incongruent with our shareholders, and other things that will promote fairness and integrity. 

The last point is that we need to make sure that there are incentives for people like us to post our bids and offers in the markets. 

That robust price discovery mechanism must be protected. 

Senator MENENDEZ. Let me ask you all, is competition between 

trading venues currently producing the right balance for investors? 

And if not, what do you think should change? 

Mr. SPRECHER. I think it has gone too far, honestly. I think data 

that we have seen showed that years ago there was a low point in 


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terms of execution costs, but more recently the true cost of execution has been increasing as the markets have fragmented and people are no longer able to find the best price for their shares. 

Senator MENENDEZ. Anyone else? 

Mr. GRIFFIN. I think to add to that answer, though, we have seen 

a disruptive innovation in the form of Regulation NMS. The arc of 

disruptive innovation is generally the rapid entry of many new 

competitors. We have seen many new exchanges form since the introduction of Regulation NMS. We have seen many new marketmaking firms come into being since the introduction of Regulation 

NMS. And what are we seeing today? We are seeing rationalization. We have seen an exchange just recently cease to function. 

They shut down their business. 

We have seen countless high-frequency trading firms shut their 

doors because of their inability to generate profits. We are seeing 

the arc of disruptive innovation play out, and we will see a logical 

rationalization of our markets take place on the back of this. It 

takes time. It is hard to imagine how much the equity markets 

have changed in just 7 years, in the blink of an eye. And so I think 

that many of the issues that we are concerned about will be addressed as competition plays out in a fair and orderly way over the 

years to come. 

Senator MENENDEZ. Thank you, Mr. Chairman. 

Chairman JOHNSON. Senator Johanns. 

Senator JOHANNS. Thank you, Mr. Chairman, and thank you to 

all the witnesses. 

Let me, if I might, just follow up with a question or two on the 

high-frequency trading issue. Let us say that this Committee finds 

that high-frequency trading is not doing much, if anything, for liquidity. Maybe we find that we cannot figure out where it is benefiting the market. Would anybody on the panel recommend that we 

ban it, just say you cannot do it anymore? Just a simple, straightforward yes or no. 

Mr. GRIFFIN. No, absolutely not. And can I add just a few sentences? 

Senator JOHANNS. Sure. 

Mr. GRIFFIN. All right. What has been lost in the dialogue 

around high-frequency trading today is the important role that it 

places—that it facilitates fairness between the prices of securities 

in the marketplace. When you buy or sell an S&P 500 futures contract, you are buying and selling 500 underlying stocks in one fell 

swoop. And somebody needs to keep the market in Chicago in line 

with the markets in New York, and that is done by high-frequency 

trading firms, who literally buy and sell 500 stocks when the futures move in price. 

When you trade XLF or spy or the diamonds or any number of 

ETFs, you do not ask yourself what is the underlying net asset 

value of that ETF. You know the price that you are going to tradeoff at is fair because the high-frequency trading firms continuously 

arbitrage between the ETFs, which are a very important retail 

trading vehicle and the underlying common stocks. This all happens, in fact, at an incredibly low cost in the context of our capital 

markets. 

Senator JOHANNS. Mr. Cronin, would you suggest we ban it? 


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Mr. CRONIN. I would not suggest that we ban it because I think 

it is too prescriptive that high-frequency is all one kind of behavior. 

I think as Mr. Griffin describes, there are kinds of trading activities that are pursued by firms that would be defined as high frequency which are very helpful to efficiencies in markets. There are 

others which probably are harmful. We need to be in the business 

of being able to understand which is which. 

Senator JOHANNS. Professor? 

Mr. ANGEL. I would not ban high-speed trading. There has always been a race for speed, and even if you put in speed bumps, 

people will race to be as fast as they can to jump around those 

bumps. Some of the high-speed traders, as was pointed out, do good 

things. I am a retail investor. When I buy an exchange-traded 

fund, I trust that the price of that fund will match the stocks that 

it represents. Those arbitrageurs, those high-frequency traders 

doing that in and out, buy and sell, are making sure that those 

prices are aligned. 

Senator JOHANNS. So the panel is unanimous on that. 

That kind of takes me to my next point. Pre-2005, if you were 

an exchange, man, thing were pretty darn good, right? I mean, virtually everything is moving through the exchanges and life is good 

and you are happy and why be more innovative. You have got all 

the business, right? 

Isn’t part of what we are seeing here the fact that people are 

looking for a better way, a faster way? Mr. Cronin, on behalf of 

your clients, you want these options. You want dark pools. You 

want a whole host of opportunities to maximize the return on your 

clients’ investment and, to be very honest about it, maximize your 

income. And somebody made a point here that I think is a very 

valid point, and that point is this: We work in a very cumbersome 

way here. Even if we were firing on all eight cylinders, which I 

would argue we are not these days, we are cumbersome. We were 

meant to be cumbersome. Our Founders wanted us to be cumbersome. 

Isn’t this whole debate and trying to figure out what best to do 

best left with the regulators? And focus on that question. Wouldn’t 

we be better to make sure that they are properly empowered, 

which I would argue they are, and then do evidence-based regulation to try to figure out what is the best approach? Professor, I will 

start with you and go across the table. 

Mr. ANGEL. I agree 100 percent that, you know, if the regulators 

are capable, we should trust them. And, indeed, they do have adequate authority to do what they need to do. But do they have the 

adequate resources, you know, not just the monetary resources but 

the human capital resources? I think you need to monitor them 

closely to make sure that they have the ability to do their job well. 

Senator JOHANNS. I am out of time. If I could just ask each of 

you to give me one or two sentences, and if you want me to know 

more about this, call me, OK? 

Mr. CRONIN. Yes, I think there is a balance to be struck between 

the regulators and market participants. I think that is how we 

manage the good things that regulation can bring, but at the same 

time manage the unintended consequences which we all fear. 

Mr. GRIFFIN. I concur with your sentiments. 


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Senator JOHANNS. OK. Thank you. 

Mr. SPRECHER. I think the market participants themselves have 

an obligation to take on some this. That is why we have been very 

open about wanting to make changes. 

Senator JOHANNS. And others are doing the same, such as TD 

Ameritrade has indicated they——

Mr. SPRECHER. Well, there is actually pretty much unanimity on 

this panel with a number of things that we all agree should be 

done. 

Senator JOHANNS. Thank you. 

Chairman JOHNSON. Senator Brown. 

Senator BROWN. Thank you, Mr. Chairman. There are a number 

of people—and I assume the four of you are among them—who object to the characterization of our financial markets as being 

‘‘rigged’’ against ordinary investors. But the concerns raised about 

equity markets coincide with accusations of manipulation in 

LIBOR and the foreign exchange setting. My Subcommittee has 

done hearings on aluminum and zinc and gold and silver and oil 

and electricity markets, what has played there. Professor Angel 

notes in his written testimony that the lack of financial crisis-related prosecutions has also undermined investor confidence, and I 

would hope—and I am not asking for a response on this part, but 

I would hope that you would at least understand, regardless of 

agreement or disagreement, that consumers and investors and 

users feel that certain well-connected institutions enjoy special 

privileges in the financial markets. Again, whether you agree or 

disagree with that, I hope you at least understand that large numbers of people in all those groups feel that way. 

Mr. Sprecher, my question or first set of questions is directed at 

you. You have been outspoken about high-frequency trading. We 

appreciate your sharing constructive solutions as you have. But 

since at least 2012, former high-frequency traders have been expressing concerns about exotic order types that technically comply 

with SEC regs but which allow high-frequency traders to jump the 

queue and exploit price advantages that come from latencies. The 

New York Stock Exchange has actively sought to address the issue 

by announcing in May it was eliminating 15 order types, if that 

number is correct; however, ICE estimates there could be as many 

as 100 different order types. I have heard concerns that the stock 

exchange continues to allow high-frequency traders to use some 

predatory order types, like Post No Preference Blind, in which 

high-frequency traders’ bids remain blocked from the market and 

then, as I said, jump to the head of the queue. 

Mr. Sprecher, when is the stock exchange going to terminate hidden order types like Post No Preferences Blind? The critics have 

been saying for more than 2 years that it helps high-frequency 

traders. What are you going to do? 

Mr. SPRECHER. Well, we have owned the stock exchange for 7 

months. I have been the Chairman for maybe 3 months, and as you 

say, I am uncomfortable with having all these order types. I do not 

understand why we have them, and I have started unilaterally 

eliminating them. 

The problem that we have is that orders today are—decisions on 

where orders go are not made by humans. They are made by comVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6601 S:\DOCS\91300.TXT SHERYL

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puters that are so-called smart order routers. And many of these 

order types exist to attract the orders, and I am trying to balance 

cleaning up my own house—I live in a glass house, and I am trying 

to clean it up before I criticize others. At the same time, I cannot 

make the New York Stock Exchange go to zero. It would be bad 

for this country for the New York Stock Exchange to no longer 

have trading activity. 

So it is why I have been outspoken. I hope that other exchange 

leaders will follow my lead. I would like to get us all working together to eliminate these types. I would be happy if we can do it 

as a private sector initiative. I would be happy if the SEC ordered 

us to get rid of them. I would be happy if Congress took action. Any 

way we can reduce them, I would be happy. 

Senator BROWN. So if you came back here 6 months from now, 

ICE would have owned the New York Stock Exchange for a little 

over a year then. You would have been its CEO for 9 months by 

then. What number would—where will we see progress? How do we 

quantify that and measure that? 

Mr. SPRECHER. Well, let me say this: I very much appreciate the 

IEX exchange, which is the exchange that is the subject of the 

‘‘Flash Boys’’ book. They have four order types. I would love to get 

the four order types. They also have less than 1 percent market 

share. It shows me how four order types are dealt with in the market. I cannot take the New York Stock Exchange to 1 percent, but 

I appreciate your allowing me to talk about this publicly to you all 

and to the camera and a microphone, because I think that I need 

to put pressure on all my colleagues to follow my lead. 

Senator BROWN. Mr. Cronin, in my last couple of minutes, let me 

ask you a question. One broker-dealer testified before Senator Levin’s Subcommittee that virtually all the trades eligible for rebates 

in the first quarter of this year, numbering in the millions, as you 

know, were executed through the trading venues that offered the 

highest rebates. You said in your testimony:

Investors are given only limited insight in how and where broker-dealers 

route their orders. As a consequence, it is very difficult for investors to 

make informed decisions about the quality of executions they have received.

You have a duty, as you know, to act in the best interests of your 

clients to protect the retirement savings of millions of working 

Americans. How can you be sure you are meeting this obligation 

without that information? 

Mr. CRONIN. Yes, sir. So we spend a lot of time and energy, as 

you might guess, trying to make those determinations. Transaction 

cost analysis, which is what we perform to understand how our 

trades have been handled, is not perfect, right? And it has evolved 

pretty dramatically over the years, and I think we have a very good 

sense of where we are with respect to the quality of executions we 

receive. But we could do better. We could get more information 

that would be helpful to us. 

For example, most of the transaction cost analysis information 

we get is just about the trades that we have received. Well, if you 

thought about it, our trades go to a number of destinations before 

they actually receive an execution. We have been trying to get the 

brokers to give us more information about where exactly the trades 

went that they did not get executed, because, quite frankly, you 


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might find that you are giving up a lot of information to all these 

different destinations that orders get routed to that actually give 

you no benefit whatsoever. 

So we have been very vocal about the issue of the conflicts of interest that drive where brokers route orders. We think removing 

this conflict of interest is critical. But in the first instance, making 

sure that we have the right amount of information to make determinations is also a very, very important concept for us. 

Senator BROWN. Thank you. 

Thank you, Mr. Chairman. 

Chairman JOHNSON. Senator Kirk. 

Senator KIRK. Thank you, Mr. Chairman. 

I would like to ask Mr. Griffin a question. This is a copy of 

‘‘Flash Boys.’’ When Michael Lewis wrote this, you being a leader 

in high-frequency trading, describe your conversation with Lewis 

when he wrote this book. 

Mr. GRIFFIN. I have never spoken to Michael Lewis about this 

book. 

Senator KIRK. So he never called you? 

Mr. GRIFFIN. He did not. 

Senator KIRK. All right. Thank you. 

Thank you, Mr. Chairman. 

Senator REED. [Presiding.] Thank you, Senator Kirk. 

I was not here for the first panel because of a classified hearing 

with respect to the situation in Iraq and Afghanistan, and I respect 

the panel and thank them for their testimony. But if you are ready 

to move forward to the second panel—or is there anyone else seeking to be recognized? 

[No response.] 

Senator REED. In that case, gentlemen, thank you so much for 

your participation, and I am sure we will be back again and engage 

again on this issue. 

At this point I would like to ask the second panel to come forward and take their seats, please. Thank you. 

[Pause.] 

Senator REED. Let me at this time introduce the second panel. 

Our first witness is Mr. Thomas Wittman. He is the Executive 

Vice President and Global Head of Equities at NASDAQ OMX 

Group. Thank you, Mr. Wittman. 

Next we will have Mr. Ratterman. Mr. Ratterman is the Chief 

Executive Officer at BATS Global Markets. Thank you. 

And, finally, Mr. David Lauer is the President and Managing 

Partner at KOR Group. 

Gentlemen, thank you all very much, and, Mr. Wittman, you can 

begin your testimony, please. 

STATEMENT OF TOM WITTMAN, EXECUTIVE VICE PRESIDENT 

AND GLOBAL HEAD OF EQUITIES, NASDAQ OMX GROUP, INC. 

Mr. WITTMAN. Thank you, Senator Reed and Ranking Member 

Crapo, for the opportunity to testify today. 

As my testimony points out, the efforts of SEC Chair Mary Jo 

White are to be commended, and we agree with many of her recent 

actions. You have my full testimony, but I wanted to quickly summarize my key points, and there are four. 


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Number one, the lit exchanges play a critical and indispensable 

role in the U.S. economy. Public companies and investors both need 

price discovery to feel that the market is working for them. Exchange listed public companies use stock issuances to expand their 

businesses and create jobs. 

Number two, market structure needs to be re-examined with a 

goal to improve transparency and reduce fragmentation. It is clear 

from the debate that investors and listed companies view the current market structure as an impediment. 

Number three, we must act deliberately to encourage transparency and price discovery so the best markets in the world can 

continue to be the engine for economic growth and job creation. The 

stakes are high. 

Number four, all venues that trade stocks need to be brought 

into a system of well-conceived regulation and oversight. One idea 

that we are considering, which was not included in my written testimony, is whether there are ways to capture unique trading experience and needs of participants in dark venues. We want to look 

at the feasibility of translating those experiences and benefits into 

a more transparent and regulated NASDAQ venue. 

We intend to proceed with this and other innovations because at 

NASDAQ we are committed to making the markets work better. 

NASDAQ is passionate about the role we play in capital formation 

and improving the performance of our marketplace. The SRO 

model and the U.S. market structure have been effective in protecting investors, but as technology and trading have evolved, so 

too must the regulatory environment in which markets operate. 

We look forward to working with this Committee. Thank you for 

your invitation to testify. I look forward to your questions. 

Senator REED. Thank you very much. 

Mr. Ratterman, please. 

STATEMENT OF JOE RATTERMAN, CHIEF EXECUTIVE 

OFFICER, BATS GLOBAL MARKETS, INC. 

Mr. RATTERMAN. Thank you and good morning. My name is Joe 

Ratterman, Chief Executive Officer of BATS Global Markets and 

one of the original founding employees. I would like to thank 

Chairman Johnson, Ranking Member Crapo, Senator Reed, and the 

entire Senate Banking Committee for inviting me to participate in 

today’s hearing. 

Let me say at the outset that I was encouraged by SEC Chair 

White’s recent comments that our markets are ‘‘not broken, let 

alone rigged.’’ I strongly agree with the Chair and appreciate her 

leadership in this area. The automation of the U.S. equity markets 

has resulted in significant enhancements in market quality for 

long-term investors. However, I also recognize that our markets are 

not perfect and that our efforts to improve them should never 

cease. 

Our current market structure is largely the product of Congress’ 

1975 amendments to the Exchange Act and subsequent rulemaking 

by the SEC to implement a national market system as well as advancements in technology that have made our equity markets capable of processing order messages in timeframes unthinkable even 

a decade ago. The increases in speed and improvements in latency 


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found in today’s markets have served to mitigate risk which benefits all investors in the form of lower risk premium, expressed as 

tighter spreads and lower transaction costs. 

Today our equity markets are widely considered the most liquid, 

transparent, efficient, and competitive in the world. Costs for longterm investors in the U.S. equities are among the lowest globally 

and declining. The gains are quantifiable and have been noted by 

investors and experts alike. 

In April 2010, Vanguard confirmed estimates of declining trading 

costs over the previous 10 to 15 years, ranging from a reduction of 

35 percent to more than 60 percent, savings which flow directly to 

investors in the form of higher returns. 

Three respected economists recently found that, between 2001 

and 2013, the spread paid by investors had decreased by more than 

70 percent for NYSE-listed stocks. In April 2014, Blackrock noted 

since 1998, institutional trading costs have declined and are among 

the lowest in the world. And just last month, ITG reported that between 2009 and 2013, implementation shortfall costs decreased 

from roughly 45 basis points to 40 basis points, following a drop 

from 63 basis points in 2003. 

Moreover, the efficient operation of our market structure 

throughout the stress of the 2007–09 financial crisis indicates the 

systemic risks that have been reduced as a result of advancements 

in technology. 

Efforts to address infrastructure risk since the Flash Crash of 

2010 are producing further beneficial results. For example, the 

number of erroneous executions occurring on our markets is on 

pace this year to be nearly 85 percent lower than the previous 5-

year average, results related to the recently enacted limit up/limit 

down rule. In addition, exchange system issues as measured by 

self-help declarations have dropped by more than 80 percent since 

the first years after Regulation NMS. 

We must, nonetheless, remain squarely focused on improving 

market quality and stability in a coherent and responsible way. We 

are also keenly aware that investor confidence is important not 

only to helping Americans realize their investment and retirement 

goals, but it plays directly into the overall health of our country’s 

economy. Simply put, when investors are confident enough to put 

their hard-earned capital to work in our stock market, entrepreneurs and corporations can grow and thrive as well. As such, we 

are fully supportive of the SEC’s plan for a comprehensive market 

structure review, and we look forward to actively participating in 

that process. 

Among other things, I see the following four areas as offering potential benefits without disrupting existing market quality gains. 

First, institutional investors could benefit from incremental 

transparency related to the ATSs that their brokers route orders 

to, including the publication of Form ATS, which some of the ATSs 

have already voluntarily disclosed. Consistent and thorough reporting standards will create the greatest level of investor confidence, 

so additional regulatory direction may be required here. 

Second, I support reviewing current SEC rules designed to provide execution quality and routing transparency. For example, Rule 

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stitutional orders as well as separate disclosures regarding the 

routing of marketable versus non-marketable orders and specific 

broker execution quality data. 

Third, I continue to support initiatives to make the SIPs, also 

known as the ‘‘consolidated tape,’’ as fast as possible to address any 

perceptions of unfairness that can affect investor confidence. BATS 

has advocated this position since becoming an exchange in 2008. 

And, finally, I support eliminating the ban on locked markets, 

which is a primary driver of excessive complexity in our national 

market system. 

Thank you for the opportunity to appear before you today. I applaud the Banking Committee’s oversight efforts and would be 

happy to answer any questions. 

Senator REED. Thank you very much. 

Mr. Lauer, please. 

STATEMENT OF DAVID LAUER, PRESIDENT AND MANAGING 

PARTNER, KOR GROUP LLC 

Mr. LAUER. Good morning, Senator Reed, Ranking Member 

Crapo, and Members of the Committee. Thank you for inviting 

KOR Group here to testify today. 

KOR Group is a market structure research and consulting firm 

focused on data-driven analysis. Healthy Markets is our nonprofit 

initiative that seeks to build consensus on a coalition of firms in 

the industry on substantive market structure reforms. 

My name is David Lauer, and I am the president and managing 

partner of KOR Group. My background is in technology architecture and high-performance computing. I have designed and operated high-frequency, low-latency trading platforms. I have filed detailed written testimony and will only touch upon the key points 

here. 

In our industry, we are used to hearing that ‘‘past performance 

is not indicative of future returns.’’ The same could be said about 

past technology failures. As much as we like to think we’re learning from our mistakes, past technology failures tell us very little 

about the next crisis on the horizon. To think otherwise is called 

the ‘‘fallacy of the broken part.’’

I will begin by stating the obvious: Complex systems fail. They 

must be designed to degrade gracefully, not to crash. Technology 

should be invisible. Today’s markets are characterized by interconnectedness and speed. Regulations since 1975 have not only created complexity in technology, connectivity, and order routing, but 

have also created intractable conflicts of interest. It should be no 

wonder that we are confront concerns about market integrity in 

such a conflicted environment. It is only by peeling back some regulations and refining others that we can hope to simplify market 

structure, increase market efficiency, and prevent catastrophic 

technology failures. 

Complexity is not necessarily bad, but unnecessary complexity 

certainly is. Today SROs still follow rules under the Exchange Act 

of 1934. It should come as little surprise that these rules are antiquated, a product of a time when electricity had reached just 70 

percent of households, not an era in which a gigabyte of data can 

be transmitted around the world in seconds. 


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SROs are now for-profit organizations, owned either by public 

shareholders or broker-dealers, and in so many instances they act 

in their shareholders’ interests and not for fair and efficient markets. Consider, as I do in my written testimony, the following actions which SROs have either neglected to take or have only taken 

as a consequence of regulatory intervention or catastrophic failure. 

Firstly, why aren’t exchange server clocks synchronized to each 

other? How can regulators understand or surveil markets with 

this? And why is regulation needed to make this happen? 

Why wasn’t the SIP infrastructure improved the same way as direct feed technologies? This need was identified by the SEC as 

early as 2001. 

Why haven’t order types been re-examined industrywide through 

a retrospective review? Why isn’t detailed, objective market data 

available to academics? And why haven’t SROs mandated industrywide disaster testing? 

In each case, the need is obvious and the failure to act absurd. 

We also have antiquated best execution standards that allow brokers to operate their own dark pools while routing 90 percent of 

their customers’ orders through them. The consequent level of fragmentation and off-exchange trading should not be surprising. 

Fragmentation, conflicts of interest, payment for order flow, internalization, and maker-taker have collectively increased off-exchange trading and adverse selection on lit markets, making lit 

markets more fragile and less stable. This condition can be remedied by strengthening best-X, re-examining maker-taker, and considering a trade-at rule. 

On a more systemic level, one of the greatest risks to market integrity is from regulators who lack the data and tools to understand or keep up with the rapid pace of technology change in markets. At the heart of this struggle is a shortage of appropriate technology resourcing and a failure to embrace the language and ideas 

of complexity and systems theory. This in turn contributes to the 

public perception that our industry is operating with reckless abandon and little policing. Regulators need to embrace technology-centric regulation and systems theory and to revamp the SRO structure to make it more efficient, less conflicted, and more data driven. 

I have also been invited to follow up on the recommendations 

from my 2012 Senate testimony. At the time I advocated for market-wide surveillance and broad access to data to be driven by regulators. Unfortunately, MIDAS misses more than half of the activity in markets and lacks participant IDs. No centralized data store 

has been made available to academics, and the consolidated audit 

trail remains on the distant horizon. 

If the SEC had built the system I advocated for in 2012, it could 

have been operational for a year by now and would have given regulators an ability to surveil and study markets that is years ahead 

of their current approach. 

There is no issue that is more critical to ensuring market integrity than proper access to data for study and surveillance, and 

there is no reason this cannot be done quickly. 

My testimony also called for a mandate requiring SROs to demonstrate the utility of order types or retire them. While the NYSE 


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recently acted, the SEC only announced a nascent effort on this 

issue last week. 

I would like to thank the Committee for inviting me to testify 

and hold this hearing, and I applaud the SEC for initiating a comprehensive review of market structure and for the scope and ambition of Chair White’s speeches last month. I urge regulators to undertake a review that addresses not just the rules that govern trading but also the staffing requirements and mind-set necessary to do 

so properly. And I urge Congress to fund regulators appropriately 

to ensure they can succeed. 

Thank you. I am happy to answer questions. 

Senator REED. Well, thank you very much, Mr. Lauer, and let me 

begin with you. I recall that hearing—Senator Crapo and I presided over it—and we asked you specifically to go back and review. 

And what you said then is even more relevant today with subsequent events that have taken place. 

Looking at your testimony, one point among many leaped out: ‘‘It 

should be concerning to anyone reading this that there is no algorithmic, cross asset-class surveillance being performed right now. 

This leaves little doubt that there is market manipulation taking 

place. Bad actors know that nobody is watching. There is no issue 

that is more critical to ensuring market integrity than proper access to data for study and surveillance, and no issue that is more 

readily and easily solved. It is time to stop making excuses.’’

Would you like to elaborate on that? 

Mr. LAUER. So last month I was invited to testify before the 

CFTC Technology Advisory Committee by Commissioner O’Malia 

on how to do surveillance in the 21st century, and I included my 

testimony there in my submission for the Committee here. In it, I 

have outlined a system that can be built relatively quickly. Certainly in the private sector, it is something that most firms have 

a form of. And it can combine futures data, options and equities 

data into a cloud-based platform in which you could have algorithmic analytics running. 

I am very concerned—and I have yet to talk to somebody in the 

industry who does not concur—that there is, of course, something 

going on in cross asset class trading because nobody is watching, 

and why anybody would expect otherwise, you know, I cannot understand. I think that when you look at the primary issue there, 

I believe it is regulatory agencies working together, and I think 

that that is the main concern. So the SEC and CFTC should be collaborating on a surveillance platform. There is no participant in 

the markets, especially in HFT, who sees things in only an equity 

silo. You are looking at equities in futures and options and all sorts 

of other data. The regulators should be, too. 

Senator REED. Thank you very much. 

Let me ask both Mr. Wittman and Mr. Ratterman a question. 

You both in your positions have the very difficult challenge of balancing technology, which you all indicated provides significant advantages in terms of prices and liquidity, with the possibility of 

error. And as Mr. Lauer said, complicated things break, and so we 

have to assume that. 

Given Chair White’s speech, what other message might you sort 

of identify and emphasize with respect to the structural integrity 


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of your markets? And let me start with Mr. Wittman, then ask Mr. 

Ratterman to comment. 

Mr. WITTMAN. Thank you, Senator. My background is technology. 

I spent my first 10 or 12 years writing software in our equity environment under the Philadelphia Stock Exchange, so I understand 

technology and the process. 

As the previous panel explained, you know, with fragmentation, 

I think with technology you can do just about anything. But with 

the more fragmented markets as they are getting now, it has become more of a challenge. I think with Regulation SCI that the 

SEC has talked about, I think that is a good step forward for exchanges, and, quite frankly, any platform that executes an order 

should come under those same Regulation SCI restrictions when 

those are implemented. I think that is a great first step. 

Senator REED. Thank you. 

Mr. Ratterman, please. 

Mr. RATTERMAN. So as an exchange operator, we do take technology very seriously. We try to do everything we can within our 

own systems to provide redundancy at each step of the way, whether it be an order handler, a matching engine, the routing infrastructure, even within data centers having technology in two different places, and all that goes a long way to making sure that 

within our market center we stay stable. But that is not good 

enough, and I think that what we have today in today’s equity 

market structure is a competitive landscape where, when my systems might fail, then NASDAQ’s systems would pick up. And that 

is something that was instituted with Regulation NMS that has 

worked extremely well. 

In my testimony I talked about the number of times that an exchange declares self-help on another exchange having gone down. 

So it has worked over the years to allow the market to route their 

orders around the failing node in this connected network, and the 

number of instances of those failures has come down and is continuing to come down. 

So I support the current competitive landscape because no matter how much we think about redundancy and build disparate data 

centers across the country, if something in our technology fails in 

real time, NASDAQ or NYSE can pick up the load, and customers 

rarely really notice the impact of that. 

Senator REED. Thank you, Mr. Ratterman. My time has just 

about expired. I will entertain a second round. Let me now recognize Senator Crapo. Senator? 

Senator CRAPO. Thank you, Senator Reed. 

Mr. Wittman, according to reports, the JOBS Act has been very 

helpful in aiding companies enter our capital and equity markets. 

But there is still a lot of concern that smaller companies are unable 

to tap into our equity markets. 

Given your role as a listing exchange, could you give us some of 

your thoughts on what can be done to help smaller companies IPO? 

And what can be done to help small-cap companies succeed in today’s secondary markets? 

Mr. WITTMAN. Sure. There are probably two parts to the answer 

to that, and one is the recent move by the SEC with the tick size 

pilot to try to liquefy those less liquid small-cap names. So we look 


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forward to that program and measuring the effectiveness of that 

program to see how that works. 

Also, NASDAQ has initiated an alternative way to bring companies to the listed market through our private markets program. So 

with those two efforts, I think that we will watch the growth of 

those newly small-cap companies come to market. 

Senator CRAPO. Thank you very much. 

This second question is addressed to all three Members of the 

panel. I would like you, if you would, please, to discuss with me 

what the proper role, if any, there is for dark pools in today’s markets, especially for institutional investors. Is there a role for dark 

pools? Or should we look at eliminating them? 

Mr. LAUER. I would say that the proper role for dark pools is 

probably how they were originally envisioned, which is as crossing 

networks for block trades, a way for institutional investors to put 

interest out there without tipping their hand to the market, not as 

a place that is extremely fragmented with order sizes that are the 

same as or smaller than the lit markets. 

Senator CRAPO. Mr. Ratterman. 

Mr. RATTERMAN. I believe that there is a definition place in our 

market infrastructure for dark pools. As Mr. Cronin commented on 

the previous panel, as a representative of the institutional investors, you cannot do large size in a displayed market at all times, 

and we would like to encourage more trading on exchange. But the 

fact is that a large order will impact the price adversely, and so 

having choices to place your orders in pools that do not display bids 

and offers and move the price before you are able to get your trade 

done is an important facility in today’s marketplace. 

I believe that transparency, as referenced on the first panel, is 

something that could go a long way to helping improve the cohesiveness between displayed and non-displayed markets that transparency around the rules within the engine, transparency around 

the pricing, and fairness amongst participants, and those dark 

pools would go a long way to taking away some of the mystique 

about a dark pool. But the fact is that dark pools are a necessary, 

important part of the institutional trading tool set. 

Senator CRAPO. Thank you. 

Mr. Wittman? 

Mr. WITTMAN. Yes, so in short, you know, we agree with the use 

of dark pools for institutional block size trading. But over the 

years, we have seen those facilities being used for more than just 

the facilitating of large block trading. The average trade size is now 

down in the 200 shares range. 

So, you know, we believe there should be more transparency 

there. We think that the addition of all these dark pools helps fragment liquidity, which in the end hurts our listed companies and 

listed companies on exchanges. So block size is fine, but the proliferation of the use beyond that is beginning to be worrisome. 

Senator CRAPO. So am I hearing that it would be appropriate or 

encouraged to prohibit smaller than the large block size transaction? And is part of the answer as simple as figuring out what 

that size is and prohibiting dark pools from engaging in that sector 

of business? 


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Mr. RATTERMAN. I will go first and say that I am not sure that 

I would support that. I think large institutions have a long history 

now of breaking their orders up into small sizes, and so even 

though the average execution size in a dark pool is a small number 

of shares typically, some number of those executions are a result 

of larger sizes that have been broken up and sent to the dark pools, 

the same way they would have been sent to the exchanges. And so 

careful regulation here to make sure that we do not inadvertently 

take away tools from the institution given that so much of their infrastructure has probably already been designed to break up their 

large orders given the way the markets work. 

Mr. LAUER. I think that prohibition in this type of top-down regulation can be dangerous. We can see unintended consequences 

from it. One thing that we are pushing with the Healthy Markets 

platform is for a trade-at rule and for pilot tests around the tradeat rule. I agree with Mr. Cronin from the earlier panel that a comprehensive trade-at pilot would help us to see what the effects 

would be from imposing a burden to execute off-exchange for small 

orders. And what it says is if you are going to damage the price 

discovery process on the lit markets by displaying your interest offexchange and executing off-exchange, there has to be significant 

price improvement, with an exclusion for block trades. And I think 

that when you see the change in behavior that that will encourage 

and the change in the dynamics of the types of orders that reach 

lit markets, it would be healthier for both the dark venues trying 

to facilitate block trades and the lit markets trying to improve liquidity. 

Senator CRAPO. Thank you. 

Senator REED. Thank you, Senator Crapo. 

Senator Warren, please. 

Senator WARREN. Thank you, Mr. Chairman. 

So we have been talking about investor confidence, the importance of investor confidence. But there is obviously a real problem 

here. 

According to a survey conducted last December by the University 

of Chicago’s Booth School of Business and Northwestern University’s Kellogg School of Management, only about 15 percent of 

Americans trust the stock market. That is one in seven. And just 

to give some comparison, about 35 percent of the public said they 

trusted banks and about 17 percent said they trusted large corporations. Fifteen percent is not a good number. And this matters 

because people are not going to invest in the stock market if they 

do not trust it. And, in fact, that is exactly what the data seem to 

show. 

Historically, when stocks are going up, net flows into the stock 

market are going up. People want to get into the market when they 

see that it is rising. When interest rates are low, that effect should 

be even stronger. But that is not what happened in 2012 and part 

of 2013. Interest rates were low. The market was shooting up. And 

net flows were actually down. And according to survey data from 

Gallup, the percentage of the public with money invested in the 

stock market is steadily declining over time. 

So trust in the stock market is not the only thing that explains 

this trend. There are certainly other things going on. But it is also 


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certainly a contributing factor. Lack of trust in the stock market 

means less capital for growing companies, slower growth in the 

economy, slower job growth, and it means that fewer Americans 

have an opportunity to share in the wealth that is created by a rising stock market, and that further increases the disconnect between Wall Street and everybody else. 

Now, we have talked some about it. Michael Lewis made headlines when he said that the stock market was rigged. And there 

was a lot of debate over whether he was technically correct. But 

when a company can claim to be trading on stocks and come out 

ahead 1,237 days out of 1,238 days, you can see why some people 

think the game is rigged for the big buys to make money and everybody else to lose. 

So I would like to get your views on this. Mr. Wittman, let us 

start with you. What steps do you think are needed to improve 

public trust in the stock market? 

Mr. WITTMAN. Well, I think hearings like these where people can 

listen in and hear the comments from the experts I think is helpful. I think, you know, with some of the failures that have been alluded to and have been talked about on the panel, the previous 

panel, I think are some of the issues that investors worry and care 

about. But I believe the exchanges are working toward improving 

those situations, as Joe alluded to in his remarks about self-help 

and stability and resilience. 

Senator WARREN. Mr. Wittman, I presume, though, that you 

have been doing this over some period of time, and what we see 

is confidence in the market seems to be going down, and people’s 

willingness to invest their money in the market seems to be going 

down. 

Mr. WITTMAN. I am not 100 percent sure that the confidence in 

the market and the decline in investments are tied completely together, though, myself. So I am not sure if that is a true correlation. 

Senator WARREN. All right, although people are certainly reporting that they do not have confidence in the market and that they 

are over time investing less and less money. And that is certainly 

what the flows seem to show. So I do not know what evidence you 

have to the contrary, but it seems to me something needs to be 

done here. 

Maybe you have an idea, Mr. Ratterman. What are your views 

on how we can increase investor confidence? 

Mr. RATTERMAN. Two primary points. One is, luckily, the one 

that is underway right now, and that is, SEC Chair White’s plan 

for a holistic review of the equity markets. By my understanding, 

that is completely comprehensive and covers every tenet of market 

structure that we have today. And while it may take some time to 

go through methodically, and as we have talked about before, you 

know, a data-driven approach, what I see is the ability for the regulator, along with industry, to touch every single point of our market structure and determine whether it could be improved or 

maybe it is fine the way it is. But one way or another, at the end 

of this holistic review, it will have touched every single element of 

our market structure from a fresh pair of eyes. So I am encouraged 

that we have not done that in many, many years, and that will be 


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a nice point in time to mark that we have looked and we have assessed. And communication about that process I think can go a 

long way. 

And then, too, as a subset of, you know, that holistic review and 

some of our recommendations is just more transparency—transparency around how dark pools operate, transparency around how 

order execution quality is being achieved by different brokers. I 

think the increased transparency around these elements will go a 

long way as well. 

Senator WARREN. Mr. Chairman, I am over time, but would it be 

all right if, instead of a second round, I just asked Mr. Lauer to 

go ahead. 

Mr. LAUER. Thank you, Senator Warren. So I think that I agree 

that more openness and more transparency is the first step and the 

most obvious step, and we have proposed many different enhancements to current disclosures and refinements of current disclosures. Rule 605 and 606 were developed in 2000 and 2001, and 

they no longer pertain to the current market. So we need to see 

more transparency. 

I think we need to see more data-driven analysis. We keep talking about data-driven analysis, but the facilities, the tools to facilitate that data-driven analysis have not kept up with the times. 

Regulators are still using data sets that just do not pertain to current markets, do not have the right kind of time stamps and clock 

resolution. And these things might sound too mechanical and 

wonky for the average person, but they hear lots of things. They 

hear about feeds that are gamed because of latencies, and they 

hear about high-frequency trading, trading on these time scales, 

and there seems to be little public indication that regulators are 

able to keep up with that and are able to study markets. 

So if regulators could take a different approach, an open approach where they facilitate access to people in the industry and 

academics to study that data and come out with reports that can 

conclusively demonstrate the health of the markets, I think that 

would go a long way. On top of that, the markets need to get out 

of the news. I said in my opening statement that technology should 

be invisible. If regulators and SROs can embrace the complexity 

theory and understand that technology is going to fail and design 

around that, have the systems degrade gracefully, they could stay 

out of the news. And I think that would go a long way toward improving confidence. 

Senator WARREN. Well, I want to thank you all. I do not think 

we can overstate the importance of investor confidence, and that 

means investors have got to believe that these markets work. And 

they are not going to believe it so long as you continue to stay in 

the news, and continue to stay in the news with this kind of evidence that the market works for the big guys but not for anybody 

else. So I appreciate your work on this. Thank you. 

Senator REED. Senator Shelby. 

Senator SHELBY. Thank you. 

What percentage of the market trades are so-called e-retail as opposed to institutional trading, roughly? Mr. Wittman? 

Mr. WITTMAN. I believe the stats have retail at around 40 to 42 

percent, but I can get back to you with the exact——


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Senator SHELBY. Would you furnish that for the record? 

Senator SHELBY. But it is a high percentage of institutional 

trades versus say if I was trading retail trades. 

Mr. WITTMAN. Well, an institutional carveout besides the other 

trading that takes place between professionals and market makers. 

So you have retail, you have institutional, and you have got the 

professional that trade with each other. So I am not sure if the institutional makes up the balance or if others on the panel have an 

answer on that. 

Senator SHELBY. But do you basically agree that confidence or integrity in the market is key to the markets? 

Mr. WITTMAN. I do, and I think I said that in my oral statement, 

yes. 

Senator SHELBY. Whether it is retail investors or even if it is institutional investors. 

Mr. WITTMAN. I agree. 

Senator SHELBY. They have got to believe there is integrity in 

the market. 

Mr. WITTMAN. I agree, yes. 

Senator SHELBY. Do you agree with that, Mr. Ratterman? 

Mr. RATTERMAN. I do. 

Mr. LAUER. Yes. 

Senator SHELBY. What has been driving the so-called dark pools’ 

or private pools’ growth in the market from 16 percent of all trades 

in 2008 to over 40 percent as of last month? Is it because of money? 

Because they can make more money doing it privately as opposed 

to going through the exchange with transparency? 

Mr. WITTMAN. I will categorize that into two buckets, and I think 

Mr. Griffin talked about it a bit on the first panel. The two buckets 

for what I consider dark would be, you know, retail internalization, 

and then another set was institutional, and I would call it almost 

cost avoidance, avoiding probably the take fees from exchanges. So 

those two buckets. So profitability and probably cost avoidance 

would be the two top points in there which create this fragmented 

market structure, lack of transparency. 

Senator SHELBY. Of course, we all know that technology has 

changed just about everything, not just the capital markets, but it 

has changed it tremendously. But when you have the high-frequency trades—and this is a result of technology and growth, we 

know that—it does give these people a certain edge. I mean, they 

might hold a stock for 2 seconds or a split second and they make 

money out of it, and people are looking for the best investment in 

the market. But how do retail people—say if I wanted to buy some 

stock in the market, how do I compete with that? Or do I? 

Mr. LAUER. You do not. 

Senator SHELBY. You do not. That answers that. You agree with 

that. 

Mr. LAUER. I agree. It is——

Senator SHELBY. You cannot compete with it, can you? 

Mr. LAUER. No. There is no sense in it. Your holding period is 

months or years. 

Senator SHELBY. Does that go back to the issue of confidence, 

people say, well, gosh, I cannot compete with these people in the 


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marketplace? Does that erode the capital markets? Or does it just 

keep the retailers out? 

Mr. LAUER. I am not sure from that angle that that erodes confidence, but I do think that an amount of uncertainty or misunderstanding about the nature of high-frequency trading and the confidentiality with which those firms treat everything that they do. 

I mean, obviously their code is confidential, but there has been 

very little publicity or in-depth understanding until very recently 

about what high-frequency trading even is and how varied the 

trading activity is that occurs under this umbrella term. So I think 

that from a retail perspective, if you do not quite understand it and 

you hear about dark pools and—you know, it used to be that the 

market was easy to understand. Your order made it to a guy down 

on a floor. 

Senator SHELBY. Do you agree that dark pools, the term ‘‘dark 

pools’’ has a negative connotation with the average person? 

Mr. LAUER. I think that the connotation has become negative, 

and when you look at what the Attorney General discovered recently, there is not—that is not unfounded. And I think that when 

you look at the tremendous conflicts of interest with brokers operating their own dark pools and the conflicts of interest in the payment for order flow model, the retail internalization, and the way 

that retail brokers make routing decisions, and the fact that there 

is no enough transparency and accurate transparency into those 

broker routing practices, all of that contributes to increasing concern and increasing tension on the retail trader side. 

Senator SHELBY. Mr. Wittman, let me ask you this question. I do 

not know how you regulate or overregulate, or whatever you do to 

block trades. I mean, we have had block trades. We have great institutional trading of pension funds, of endowments from universities, everything else, and they have always had block trades. How 

do we not fool with that, not mess with that, yet try to bring some 

confidence into the market? 

Mr. WITTMAN. Well, the whole institutional side of the business 

has changed a lot in the last 5 years. I think they have learned to 

try to adapt to the current marketplace, as Joe pointed out. They 

take these larger orders now, and they are trying to put them on 

exchanges, in dark pools, to try to get their executions and try not 

to impact the market. So I think the days of seeing, you know, a 

million share block go up on a TRF are not coming back anytime 

soon, unless there is regulation in place which allows them to find 

the counterparty more easily and print that. But I do not see that 

anytime soon. 

Senator SHELBY. Mr. Ratterman? 

Mr. RATTERMAN. So in today’s matrix of trading venues, there 

are two locations where large block trades can happen and do typically, and Liquidnet and ITG POSIT are two examples of large 

block trading venues. And the average trade size, as I understand 

it, can be as high as 30,000 or 40,000 shares on Liquidnet. 

So there are opportunities, and this goes back to, I think, the 

competition and the choice that is offered institutional investors, if 

they want to try and find a large counterparty to their trade, they 

can try to advertise, if you will, in a place like Liquidnet or ITG. 

If they do not feel confident that they can find that large 


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counterparty, they can break their order up into small pieces and 

put them on exchanges or dark pools. 

It is a very challenging task, especially in small- and mid-size 

stocks, to find a counterparty, and in reality, given that everybody 

has adopted to today’s market structure, the other large size has 

already been broken up before it can find a counterparty, and so 

people have simply adopted to the way that the markets have 

brought some of the benefits of competition, but the challenge of 

fragmentation is that these orders are not coming to the market in 

their original large size very often. 

Senator SHELBY. Mr. Lauer? 

Mr. LAUER. Yes, I completely agree. I think the main issue with 

that is fragmentation, and when you have broker-operated dark 

pools and brokers incentivized to rest these large orders in their 

dark pools, you have all of these shallow pools sitting around and 

nobody able to find each other. ‘‘Ships passing in the night’’ it has 

been called. 

Senator SHELBY. One last question. My time has gone, but how 

do you discern and differentiate between people looking for the 

edge in the marketplace, which they all are, as manipulation of the 

market itself? They are probably two different things. Sometimes 

maybe it is murky. Mr. Wittman? 

Mr. WITTMAN. Yes, you know, your question takes me toward the 

HFT angle a bit and Senator Warren’s comments earlier. You 

know, with HFT, I would look at it more as high-frequency market 

making. You have got to take a look at not that they are latency 

sensitive if they are HFT labeled, but what are they actually doing 

with their algorithms? Are they doing something nefarious? Are 

they doing something across markets? Are they trying to push a 

market or do something else in the equity market? We have the opportunity to run and equity and options markets, so what are the 

relationships between what they do in equities and options? 

So it is not the fact that they are latency sensitive or they have 

got a tag of HFT. They are putting capital at risk. They are making 

markets for others to trade at on exchange, which is different than 

a dark pool. They are not accessible. So I think that is what the 

difference is. We have got to take a look at from a surveillance perspective, what are their algorithms doing, how are they behaving, 

and look at that behavior. 

Mr. LAUER. I think surveillance is just a critical issue, and it is 

something that has been very underinvested in, and even with the 

amount of investment, there has not been innovation. So one of the 

ideas that I put forward in 2012 was to have an open platform 

where people could design manipulation detection algorithms for 

prizes, and you would have participants competing over better and 

better algorithms to find that type of behavior, and either there 

could be a stake put up or they could have a percentage of fines 

collected. I think creative solutions like that—and I am sure there 

are better ones out there—are the way—that is the way forward 

in trying to understand the activity in the market. It is not going 

to come from individual regulators or even individual people. It has 

got to come from the marketplace and from the expertise that you 

have from practitioners. You know, if you had—you cannot tell me 

that regulators, for example, can understand nuanced matheVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 S:\DOCS\91300.TXT SHERYL

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matical manipulation across the treasury yield curve, for example, 

but there are certainly practitioners out there who could. The same 

could be said for cross asset class manipulation as well. 

Senator SHELBY. But all markets would work better with integrity and a perception of integrity in the market, would they not? 

Mr. RATTERMAN. I absolutely agree. Perception is vital to people’s 

confidence. Whether it is actually as solid as people think or if they 

think it is not, the perception is what drives the investment decision. 

If you do not mind, I would just like to throw out three additional points here. One is that I do believe that we have a competition amongst regulators with regards to surveillance, and maybe 

that is not talked about enough. But each of NASDAQ and NYSE 

and BATS and Chicago in the equity markets—those are the four 

equity market operators—have their own separate surveillance 

technologies, each of which has been developed independently and 

looking for not only on-market but across-market surveillance problems. 

In addition—and I would like to give more credit to the SEC’s 

MIDAS system and Gregg Berman and their efforts there. You 

know, that system has actually taken every single direct feed from 

every single electronic book as well as the SIPs, the consolidated 

tape, and has done comparative analysis of the numbers and the 

flow and been able to produce what I think are some very insightful discoveries about the functioning of our equity markets. 

Then, finally, while it is taking probably longer than it should, 

there is an effort by the industry the SEC led with the SROs to 

create the consolidated audit trail. That will get done. It will have 

all the data so that multiple regulators can peek inside for true 

cross-market surveillance with a competitive angle to it. So I see 

a lot of light down the road. 

Senator SHELBY. Thank you, Mr. Chairman. 

Senator REED. Thank you very much. 

Mr. Lauer, in your 2012 testimony and again today, you talked 

about the central role that has to be developed for comprehensive 

surveillance. Do you believe that we need an legislative initiative 

to give the SEC the authority to do that? Or is that something 

within their authority today? 

Mr. LAUER. I cannot say I know the regulatory authority rules 

well enough, but it does seem like something needs to be done to 

get different agencies working together. Whether that is legislative 

or through FSOC and OFR or just sitting them around the table, 

I think it is a critical issue. 

Senator REED. And Mr. Ratterman has made comments about 

MIDAS, and I think you in your testimony also commented on 

MIDAS. Can I have your view? 

Mr. LAUER. Yes, and I do not mean to denigrate the work that 

the SEC is doing, but there is no arguing with the fact that MIDAS 

is missing over half of the activity just in equities markets. They 

do not receive the resting orders on dark pools, hidden orders on 

lit exchanges, immediate or cancel orders that do not interact with 

liquidity on lit exchanges, certain characteristics of exotic order 

types. There are no participant IDs. It is a system that any private 

firm would build in order to study markets, and that is exactly 


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what happened, is that it was built by a private firm, an HFT firm 

that also builds out infrastructure. And I do not, you know, say 

that in any way other than to say they probably understood the 

technology best, but in my mind regulators should have better 

technology than participants. And I think that when you are talking about feeling confident and comfortable that regulators are on 

the beat and are on top of things, that is one of those areas in 

which you would have expected them to do more than just build 

what any other private firm has. 

Senator REED. And I will make the obvious point that the regulators have a much more limited IT budget than any one of the 

participants. We tried to fix that a little bit, but we have not gone 

as far as we think we must. 

An interesting point, and it goes to this discussion of Senator 

Shelby and Senator Warren, about confidence in the market. The 

market has changed. I mean, the old-fashioned, nostalgic view of 

the stock market is capital formation. That is where you form capital, which ultimately created jobs. And now it is about trading. 

John Bogle, who will know more about this stuff than I will ever, 

made a speech a few months ago, in April, and he said, you know, 

the numbers tell the story: $56 trillion per year in trading volume 

as investors buy from and sell to one another, minute after minute, 

day after day, year after year. That $56 trillion of trading volume 

dwarfs the capital formation total of $270 billion. Result: Shortterm trading on the Wall Street casino represents 99.5 percent of 

the market’s activity, and long-term capital formation, which is the 

small investor putting money in hoping that someday it will pay 

for college for the kids is just a sideshow, really. And that I think 

is becoming a reality that people appreciate. They are looking at 

this—and high-frequency traders are the ones that have got the 

most sort of attention at the moment because of the book and because of other things, but the market itself is—you know, as he 

says, it is a casino. And I think people are getting that impression. 

Then, of course, you have got two recent suits by FINRA and by 

the Attorney General of New York questioning the operations in 

dark pools. 

So all this is coming together for the perception that—as I say, 

this skepticism about the market working for long-term capital formation, which is—so I will just get your comments, Mr. Lauer, and 

then——

Mr. LAUER. Yeah, I agree. I think it is unfortunate——

Senator REED. And I must say the FINRA—the FINRA was a 

settlement without acknowledging any malfunction. The suit by 

Schneiderman is an allegation now. It has not been concluded. 

Mr. LAUER. Yes, I agree with you, Senator Reed. I think it is unfortunate, the perception of the industry. I know a lot of people in 

it. They work really hard, and, you know, a lot of people are trying 

their best to help fix things or to make it a little simpler, reduce 

complexity. But there is an ongoing debate over market structure, 

and you have several different parties, but there are people in the 

industry, very well regarded, who understand markets and do not 

think that things are right. They think that there are problems 

that need to be fixed. Even people who think that markets are betVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 S:\DOCS\91300.TXT SHERYL

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ter than they have ever been agree that there are serious problems 

that need to be addressed. 

And so when that is the message that comes out, it is no wonder 

that perception is where it is, and I think that if we had more data, 

if there were much clearer answers, the issues that we were debating would not be as severe. We would be able to have clearer answers, and that is the frustration, because I know the answers are 

out there. It just seems like the data is not being analyzed. 

Senator REED. Mr. Ratterman, please. 

Mr. RATTERMAN. Senator Reed, I think you are right to point out 

the difference not only in function but in the notional side of capital formation versus price formation. And, you know, from my perspective, as both an operator of an exchange as well as an individual investor, I look at those as very different activities, and I try 

not to conflate them. 

You know, when I think about capital formation, I think about 

small companies trying to raise money to, you know, grow their operations or, you know, whatever they are going to do down the 

road. And they need that money from investors, and investors typically would be institutional investors that are providing the funds 

for these growth companies, I think, as opposed to individual investors. I myself am just too risk averse to want to invest in an IPO. 

I would rather see a track record before I invest. 

So I think that market structure is probably maybe one element 

of maybe a friction for capital formation and the fact that maybe 

small-cap and medium-cap stocks are not as well handled in today’s one-size-fits-all market structure. Things like the tick size 

could potentially, you know, help institutional investors feel a bit 

more confident to enter and exit a position in a small-cap stock, 

which would then encourage small-cap companies to come to market. 

I think there might be other things to look at as well. You know, 

it could be that the weight of being a public company, given other 

regulation, completely outside the equity markets, Sarbanes-Oxley 

compliance, et cetera, you know, may be a factor in determining 

whether a company goes public or not. I am not saying you should 

do away with Sarbanes-Oxley. I am just saying that there is a balance between the security of a company who has gone through 

those rigors and the weight that it carries in the decision to go public or not to go public. 

So when I look at price formation as the larger of the two notional values, you know, I look at it as an individual investor. 

When I go to trade a stock that I can see a track record, there is 

somebody standing there day in and day out willing to take the 

other side of my trade, and that is the trading, I think, that happens in the secondary markets that is beneficial to the investor 

who is not risk averse—who is risk averse, who does not want to 

invest in IPOs, but wants to invest in companies with a track 

record. That is where you can go and find the standing market day 

in and day out. 

Senator REED. Mr. Wittman, please. 

Mr. WITTMAN. The amount of trading that is taking place in the 

top 50 or 100 issues, it is all consolidated up in those names. So 

the more, I think, that we see trading take place off-exchange, the 


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less liquidity we are going to have in these lower small-cap names. 

The exchanges are providing indicative prices to the public. They 

are on-screen. But for the most part, when it comes to customer 

flow, that flow is executing off of an exchange. It is using indicative 

pricing from the U.S. exchanges and executing off-exchange and reporting through a trade reporting facility, which in the end I think 

is going to hurt the capital formation and price discovery. 

Senator REED. Thank you. 

Senator Crapo, any questions? 

Senator CRAPO. No. 

Senator REED. There are no further questions. Gentlemen, thank 

you for your excellent testimony, and this hearing is adjourned. 

Thank you. 

[Whereupon, at 12:11 p.m., the hearing was adjourned.] 

[Prepared statements and responses to written questions supplied for the record follow:] 


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PREPARED STATEMENT OF SENATOR JACK REED 

Thank you, Mr. Chairman. In 2012, Senator Crapo and I, as the then Ranking 

Member and Chair of the Securities Subcommittee, held two hearings on Computerized Trading, taking a critical look at what the rules of the road should be. And 

in one sense, not much appears to have changed because we’re still asking the questions we asked back then. Are our markets still fair? Is everyone playing by the 

same set of rules? And are our markets focused on long-term capital formation and 

the creation of jobs? 

Given the complexity of our markets and the pace at which technology is advancing, these are questions we will ask with regularity in order to ensure that we continue to harness the advantages of technology and minimize, to the best of our ability, the errors that technology can magnify in our markets. Our capital markets are 

a public good, much like our interstate highway system. While no analogy is perfect, 

I do believe that we need clearer rules of the road here in our markets, and as the 

markets continue to evolve, the regulators and we must keep pace to ensure that 

our markets are fair, accessible, and effective. 

Before I conclude, I would like to apologize ahead of time for missing the first 

panel of witnesses due to a closed hearing on the situation in Iraq and Afghanistan 

in the Armed Services Committee, on which I also serve. I will, however, return for 

the second panel of witnesses before the Banking Committee today. Thank you, Mr. 

Chairman. 

PREPARED STATEMENT OF JEFFREY SPRECHER

CHAIRMAN AND CEO, INTERCONTINENTAL EXCHANGE, INC.

JULY 8, 2014

Chairman Johnson, Ranking Member Crapo and Members of the Committee, my 

name is Jeff Sprecher and I am the founder, Chairman and Chief Executive Officer 

of Intercontinental Exchange, or ICE. We very much appreciate the opportunity to 

appear before you today to share with you our views on the U.S. equity markets. 

As background, ICE was established in 2000 as an over-the-counter (OTC) marketplace with the goal of providing transparency and a level playing field for the 

previously opaque, fragmented energy market. In the past 14 years, we have grown 

our business substantially from a startup company in Atlanta to a global company 

with 11 exchanges and five central clearing houses in the United States, Europe and 

Asia. 

Much of our growth can be attributed to solving complicated problems by investing in existing businesses and making them more efficient and transparent to the 

benefit of our clients and the broader marketplace. We have inevitably faced 

headwinds as a result of challenging the status quo but believe strongly that our 

vision, together with our ability to work with regulators and customers, is what has 

allowed us to be here today. 

In November of last year, ICE completed its acquisition of NYSE Euronext. I 

quickly learned that operating an equities exchange comes with a much higher profile given the public price discovery function it performs. Combined with the New 

York Stock Exchange’s role in the global capital markets, we understand the strong 

public interest and economic importance of well-functioning markets. Meeting with 

participants from every corner of the securities market, it is clear that the business 

has changed in less than 10 years. While some of this change has been beneficial, 

the equities market has become far more complex and fragmented than participants 

want it to be, and that we believe it needs to be. We believe competition among 

trading venues is important to markets, but also that there are other equally important factors, such as the ability of buyers and sellers in a marketplace to meet and 

compete with each other. 

Although we may not all agree on the details of an equities market structure, I 

think there are a few points of agreement among the panelists today worth highlighting. First, the capital markets are a critical tool that businesses need to permit 

investment in new companies and to expand existing ones. Second, one of the most 

important factors in maintaining a strong capital market is the trust and confidence 

of issuers and investors that the market will be fair. And third, in our current markets, investors—particularly individual retail investors—enjoy greatly improved, 

cost-efficient access to the stock market. 

ICE, however, believes that because markets are not stagnant, there are improvements that can be made in response to the market’s evolution that will benefit investors and market intermediaries if we simplify the structure and realign incentives to improve the fairness of markets to investors. 


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1Securities Exchange Act Release No. 51808, 70 FR 37,533, 37,608 n.990 (June 29, 2005) 

(Reg. NMS Adopting Release); Request for Comments on Measures to Improve Disclosure of Mutual Fund Transaction Costs, Investment Company Act Release No. 26,313, 68 FR 74,820, 

74,822 (Dec. 24, 2003); Daniel G. Weaver Study available at: http://www.sec.gov/comments/s7-

02-10/s70210-127.pdf. John McCrank, ‘‘Dark Markets May Be More Harmful than High-Frequency Trading’’, Reuters, April 6, 2014 (http://www.reuters.com/article/2014/04/06/us-darkmarkets-analysis-idUSBREA3508V20140406). 2Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37498, 37501 (June 29, 

2005) (Reg. NMS Adopting Release). 3There are currently 13 equities exchanges, none of which maintains more than 20 percent 

of consolidated average daily volume. 

There are several issues we have raised and continue to question. For example, 

we do not believe it is fair that some investors are permitted to trade in dark markets without either first interacting with lit markets or providing some tangible benefit to the investor such as meaningful price improvement or size improvement. We 

question whether the maker-taker pricing model used by trading venues to compensate liquidity providers adds to the complexity problem and increases the appearance of conflicts of interest that brokers face in executing trades on behalf of 

clients. We also have concerns about the rising level of fragmentation and believe 

that the increased technology cost and risks that are born from maintaining connections to as many as 60 trading centers is unnecessary and ultimately increases costs 

to investors. 

While Regulation NMS sought to increase competition among markets and consequently increased fragmentation, the costs associated with maintaining access to 

each venue, retaining technologists and regulatory staff, and developing increasingly 

sophisticated risk controls are passed on to investors and result in unnecessary systemic risk. The fragmentation also decreases competition among orders. Orders 

routed to and executed in dark trading centers do not interact or compete with other 

orders, which detracts from the price discovery function that participants in lit markets provide. The lack of order competition in a fragmented market negatively impacts markets in the form of less liquidity, information leakage and wider spreads.1

Excessive complexity also hurts market confidence and I believe deters some investors and entrepreneurs from accessing the public markets. Although there has 

been an uptick in IPOs recently, entrepreneurs don’t seem as positive about taking 

their company public as they used to be, which limits job creation and economic 

growth. And investing in the market is the best available option that millions of 

Americans have to grow their savings. We need a resilient, long-term investor base 

that believes the markets are fair, operate on a sufficiently robust infrastructure 

and have minimal intraday volatility. And maintaining minimal intraday volatility 

is often a result of sufficient order competition. 

As we highlight below, there are several items that we believe, if addressed, 

would help fix many of the cracks that have been brought to our attention since 

entering the equities business. However, the goal of our recommendations is largely 

grounded in the same goals as Regulation NMS: To increase competition among individual markets and competition among individual orders; and to minimize the 

transaction costs of long-term investors and thereby reduce the cost of capital for 

listed companies.2 While NMS achieved its goal of increasing competition among 

markets,3 the pendulum has swung too far at the cost of less competition among 

orders. 

To correct these trends and rebalance the tradeoffs of yesterday, we believe now 

is the time to take action to build the confidence of individual investors and companies seeking to access the public markets and to bring back the balance set out in 

the Securities Exchange Act of 1934. 

While we should move forward expeditiously with pilot programs, where data 

gathering and analysis is necessary, my firm has outlined the following recommendations for the industry that we believe should be quickly adopted:

1. We should enhance order competition by giving deference to regulated, transparent trading centers where orders compete and contribute to public price discovery information. Limited exceptions could apply for those with unique circumstances.

2. We should eliminate and ban maker-taker pricing schemes at trading venues. 

Rebates that were used to encourage participants to quote on regulated, transparent markets add to complexity and the appearance of conflicts of interest.

3. We should lower the statutory maximum cap on exchange fees. Regulation 

NMS set a cap of what regulated transparent markets can charge to access a 

quote. In combination with giving deference to regulated, transparent markets 


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and eliminating maker-taker rebates, we believe that the SEC should require 

lowered exchange access fees.

4. We should revamp the current market data delivery system. We support the 

SEC taking a closer look at the current Securities Information Processors and 

proprietary data feeds to adopt policies that promote fairness.

5. We should require increased transparency in the way that markets operate. 

The SEC should demand that all trading centers report trade executions in 

real time, and all routing practices should be disclosed by those trading centers 

and brokers who touch customer orders.

In summary, we believe that adopting these proposals will help to inspire confidence in the investing public in the U.S. capital markets. Thank you again for inviting me to testify today and I look forward to your questions. 

PREPARED STATEMENT OF KENNETH C. GRIFFIN

FOUNDER AND CHIEF EXECUTIVE OFFICER, CITADEL LLC

JULY 8, 2014

Chairman Johnson, Ranking Member Crapo, Members of the Committee, I am 

Kenneth Griffin, Founder and CEO of Citadel LLC. I appreciate the opportunity to 

testify here today and share our views regarding the state of the U.S. equity markets. 

Established in 1990, Citadel is a leading global financial institution that provides 

asset management and capital markets services. 

Citadel manages in excess of $20 billion in investment capital on behalf of institutional investors and high net worth families. As a significant investor in the U.S. 

equity markets, Citadel has a strong interest in the integrity, transparency, efficiency, and stability of our markets. Our equity research teams follow over 1,800 

public companies, seeking to identify appropriate investment opportunities. Our equity research process, combined with our ability to execute upon our investment 

ideas in a cost-effective manner, enables us to deliver returns to the pensions, endowments, sovereign wealth funds and other institutions that entrust us with their 

investment dollars. 

Citadel Securities is one of the leading market makers in the United States, and 

is a market leader in the execution of orders on behalf of retail investors. Citadel 

Securities makes markets in more than 7,000 U.S.-listed securities and 18,000 OTC 

securities worldwide. Since 2005, we have used our automated trading systems to 

deliver greater reliability, innovation and service to retail investors. In short, we 

empower retail investors by deploying sophisticated technology with respect to market data, order routing, and execution strategies in providing best execution. 

Our capabilities allow us to deliver faster, more reliable and lower-cost trades for 

millions of retail investors. This has made us a trusted and valued resource to most 

of America’s major retail brokerage firms. Our continued investment in people, compliance, process and technology earns us business on the merits, and I am proud 

to say that our continued growth is evidence of the enormous commitment we have 

made to support the interests of retail investors. 

Citadel’s experience as both an institutional investor and an active liquidity provider in the U.S. equity markets gives us deep insight into the strength, structure 

and resilience of our equity markets. From that vantage point, I can state without 

hesitation that the U.S. equity markets are the fairest, most transparent, resilient 

and competitive markets anywhere in the world.

*****

The U.S. equity markets play a fundamental role in our economy. They facilitate 

capital formation by channeling savings into productive enterprises, creating a winwin for American investors and businesses, both small and large. The more efficiently our markets operate, the greater the benefit to the investing public and to 

the enterprises that rely on them to fund the growth of their businesses. 

In recent months, some have questioned the fairness of U.S. equity markets. They 

have raised serious questions about the changes that have taken place in our markets. They have called into question the motives, and in some cases even the integrity, of market participants, exchanges, regulators and virtually everyone else who 

has introduced the changes that have unleashed competition and revolutionized the 

way our securities markets work. 

It is my intent today to respond to this criticism, and to separate fact from fiction. 


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Over the past two decades, a wave of innovation has swept through the markets 

in response to new technologies and thoughtful regulation. This has disrupted the 

‘‘old boys’ network’’ to the benefit of all investors. While the basic function of the 

stock market—matching buyers and sellers—remains the same, the mechanisms 

through which buyers and sellers come together has been revolutionized. In the supposed ‘‘good old days,’’ much of the trading in a given stock happened on the trading 

floor of a single stock exchange in a single specialist post under the control of a single specialist. 

In recent years, regulatory changes combined with technological innovation have 

disrupted the old order. Today’s markets are incredibly competitive, wherein a variety of competing trading venues have emerged alongside the exchanges. Orders are 

now matched and executed by computers and a new generation of analytically driven and technologically sophisticated market participants has emerged as the dominant liquidity providers, displacing the manual intermediaries that once controlled 

the markets. 

The unleashing of competition and surge in innovation has markedly improved 

conditions for all investors, who benefit from dramatically lower trading costs, improved market transparency and liquidity, and increased competition by liquidity 

providers. As a result, bid-ask spreads are substantially narrower, currently averaging less than 0.03 percent for S&P 500 stocks, while displayed market depth for 

the average stock, measured as the value of the shares displayed on the bid and 

offer, is nearly triple what it was a decade ago. 

Fees and commissions are also much lower—retail investors can now trade for 

under $10 (down from $25+) and institutional brokerage commissions often are less 

than 2¢ per share (down from 6¢), and can be as low as a fraction of a penny per 

share. Retail investors in particular have benefited—not only do they frequently get 

better prices than those publicly quoted, but they often get their orders filled at 

such prices for more size than is publicly displayed. 

The disruptive innovation that has taken place within the equities market has 

created winners and losers. While investors have clearly benefited, most legacy market participants have lost out. They simply cannot compete in today’s hyper-competitive and incredibly efficient marketplace. And so we should not be surprised that 

they publicly yearn for the old days when they extracted disproportionate rents from 

investors on the basis of anti-competitive business practices. 

I applaud the regulatory efforts to ensure that U.S. equity markets continue to 

best serve the interests of all investors. In this regard, Citadel supports a data driven and comprehensive review of U.S. equity market structure, and we believe the 

SEC is taking constructive steps to gather and analyze relevant data and information, ensure the market’s operational stability, and protect market quality and fairness. 

The SEC has implemented several measures to obtain the data it needs to evaluate market operations, quality, and performance. For example, the SEC has adopted 

the Large Trader Rule and the Consolidated Audit Trail framework, and has implemented the MIDAS system through its new Office of Market Analytics so that it 

may efficiently gather key data and analyze significant market events and trading 

activities. The financial crisis and the May 2010 ‘‘Flash Crash’’ illustrated the need 

for the SEC to be able to swiftly reconstruct and analyze market events. Moreover, 

as the SEC considers various reform ideas and assertions about problems with the 

current equity market structure, it needs a rich set of data to analyze methodically. 

That will ensure that the SEC has the best information available when making 

these critical decisions. 

With the balance of my testimony, I want to focus on a handful of ideas and concepts that I believe will further strengthen investor protections, further improve 

price transparency and market liquidity, and promote market resiliency in times of 

crisis.

*****

Enhancing Market Quality 

Today’s markets are more competitive and liquid, with lower overall transaction 

costs, than ever before. To further improve market quality, we must continue to 

take steps that encourage competition. Encouraging competition leads to greater 

price discovery and market liquidity and reduces both the cost of trading for investors and the cost of capital for American businesses. As we foster greater competition, we must continue to take steps to protect the interests of retail investors in 

our equity markets. 

I recommend the following proposals to enhance our market quality. 


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Take a Rational Approach to Tick Sizes 

The SEC recently ordered the exchanges and FINRA to jointly develop a pilot 

plan that would require certain stocks to trade in minimum price increments larger 

than the current one penny trading increment (the so-called minimum ‘‘tick size’’). 

We applaud the SEC for its efforts to gather hard data on this topic before embarking on any broader or longer term policy changes. We nonetheless remain concerned 

that widening tick sizes will artificially widen spreads and thus drive up trading 

costs for all investors without any tangible offsetting benefit to market quality. 

We believe that the SEC should instead focus on tick increment reforms that will 

both promote liquidity on displayed markets and reduce the cost of trading. Specifically, the SEC should establish a half-penny tick increment for the highest trading 

volume stocks trading under a specified dollar value. In many cases, the half penny 

shaved off the one-cent increment will go directly into the pockets of investors. And 

rather than having to go to dark pools to find mid-point liquidity in such stocks, 

smaller tick sizes would allow this liquidity to be displayed and readily accessed in 

the lit markets. This modification would thus bring substantially more of the orders 

and trades in these stocks to lit markets, and move them away from the dark markets. 

Reduce Access Fees to Reflect Declining Transaction Costs; Broaden Caps on Access 

Fees 

Under Regulation NMS, the charge to liquidity takers in today’s maker-taker system is called an ‘‘access fee.’’ The current NMS maximum access fee of 30 cents per 

100 shares is now significantly greater than the cost of providing matching services 

by the exchanges and should be reduced to reflect the current competitive reality. 

Exchanges are permitted to share the access fees they charge with liquidity providers in the form of exchange rebates. A meaningful reduction in the maximum access fee would materially reduce exchange rebates. 

In general, exchange rebates encourage exchanges and liquidity providers to be 

more competitive. Exchange rebates also reward and encourage displayed liquidity, 

which greatly benefits the price discovery process. Banning exchange rebates would 

dampen competition between exchanges and would result in less posted liquidity 

and could result in wider quoted spreads. The SEC has wisely focused on disclosure 

and other mechanisms to manage any potential conflicts of interest that may arise 

as a result of these fee structures. We believe a reduction in the minimum tick size 

for the most liquid low priced securities combined with a reduction in the maximum 

permitted access fee would serve the best interests of all market participants. 

More importantly, we urge the SEC to close gaps by adopting an access fee cap 

in important segments of the market that have no access fee cap. First, we urge 

the SEC to expand the access fee cap to include quotes that are not protected by 

Regulation NMS. Second, we urge the SEC to implement a parallel (and proportionate) access fee cap for sub-dollar stocks. Third, the SEC should move forward 

with its proposed rulemaking to cap access fees in the options markets. 

Reduce Regulatory Arbitrage Between ATSs and Exchanges 

In recent years, increasing amounts of trading has occurred on Alternative Trading Systems (‘‘ATSs’’). While public quotes on exchanges are available to all investors, this is not necessarily the case for liquidity present on ATSs. In fact, ATSs may 

refuse access to certain market participants, make available order types that will 

not interact with certain types of participants, give execution priority to certain 

market participants, and/or charge different fees to different types of participants. 

ATSs (which include dark pools) should be subject to anti-discrimination rules 

comparable to those that apply to securities exchanges, and should be required to 

offer fair and impartial access to market participants. In particular, ATSs should 

only be allowed to determine execution priority based on the characteristics of an 

order (e.g., price, size, time of arrival), and should not be allowed to allocate executions based on the identity of the sender. For example, broker preferencing is a 

practice that has the potential to return our markets to the ‘‘old boys’ network’’ of 

prior decades when who you were and who you knew mattered more than the merits of your order. 

Reducing the regulatory arbitrage between ATSs and exchanges will foster greater competition between the venues, and reduce the incentives to conduct business 

on the often discriminatory ATSs at the expense of our public markets. 

Preserve the Transparent and Regulated Practice of Payment for Order Flow 

We support the SEC’s well-established policy of permitting payment for order flow 

for a number of reasons. First, payment for order flow is a transparent and regulated practice, whereby exchanges and market makers pay a fee to broker-dealers 


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that route orders to them. If a broker-dealer receives payment for order flow, it 

must disclose this arrangement under SEC regulation, so that its customers may 

decide whether they want to continue to send their orders to the broker-dealer in 

light of the payment for order flow arrangements. Second, payment for order flow 

does not affect a broker-dealer’s obligation to obtain best execution for its retail customers. Third, and perhaps most importantly, payment for order flow that is subject 

to a robust disclosure framework is far better and creates more accountability than 

opaque reciprocal business practices that would otherwise proliferate and could not 

realistically be prohibited. 

Enhance Retail Investors’ Transparency into Brokers’ Execution Quality 

In an effort to ensure that investors are receiving the best execution possible, we 

believe the SEC should require brokers to publicly report consistent, standardized 

execution quality metrics in a way that allows investors to easily measure performance. We can empower retail investors with information about brokers’ execution 

quality and position them to make better decisions, while also enforcing an important check on the brokerage community. Today, retail investors don’t have access 

to all the information they could or should have, and can only see which destinations are utilized by their brokers, along with very basic information about payment 

for order flow arrangements. While retail investors may request more specific information regarding their orders, they have no way to compare the quality of the executions received by competing retail brokers. 

We recommend that the SEC require all execution quality reports to be comprehensive, understandable, accessible in a downloadable format, and published for 

at least 3 years. Investors can then track the quality of executions over time, and 

hold their brokers accountable. Moreover, the disclosure of payment for order flow 

could be enhanced by requiring that precise amounts of remuneration (hundredths 

of a cent) be disclosed as opposed to the current practice of providing rounded numbers in the reports (typically preceded by the phrase, ‘‘less than’’). 

Increase Protections for Retail Investors Trading Odd Lots 

We recommend that the SEC amend applicable order protection rules to reclassify 

an odd lot to be an order for value of less than $500. Currently, any order for less 

than 100 shares is considered an odd lot and does not receive the same protections 

as the best round lot quote in the same stock. Because many stocks are trading at 

a high dollar value, many investors are being unnecessarily deprived of the benefits 

of protections received by round lot orders. For example, Google, ticker symbol 

‘‘GOOG,’’ ended the month of May trading at over $550 per share. An investor placing a 50 share GOOG order is investing over $27,500—yet that investor’s limit order 

is not protected from being traded through because it is considered an odd lot. As 

a result, quoted spreads are wider than they should otherwise be since this liquidity 

is not reflected in the protected quote. Given that odd lots accounted for nearly 5 

percent of trading volume in 2013, odd lot status needs to be redefined and based 

on total order value, not share quantity.

*****

Improving Market Resilience 

Operational soundness and stability are fundamental to the confidence that participants have in any market. Automation and computerized trading have dramatically improved these conditions. Previously, markets were notoriously opaque and 

errors and control breakdowns were the norm. Participants in manual markets, including Citadel, would routinely encounter workflow control issues, trade breaks, 

and delays in receiving fills and trade confirmations. Although some have chosen 

to reminisce fondly about the past, the reality was much different. 

In recent years, the SEC has taken important steps to further strengthen the stability and operational functioning of our markets. The Regulation SCI proposal, the 

adoption of Rule 15c3–5 on market access, and the post-‘‘Flash Crash’’ reforms addressing liquidity gaps through limit up/limit down and circuit breaker rules, along 

with more predictable clearly erroneous rules and the abolition of stub quotes, represent important progress. 

Those reforms, among others, have served to enhance confidence in our markets 

by minimizing the incidence of disruptive trading and managing and mitigating the 

consequences of any systemic trading malfunctions that do occur. Nonetheless, we 

recommend a number of additional measures to fully achieve the goal of greater 

market resilience. 


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Mandate and Harmonize Exchange-Level Kill Switches 

The SEC should require mandatory exchange-level kill switches, and ensure that 

exchanges have clear authority and responsibility to immediately block and stop activity that appears erroneous and so severe that it is likely to materially impact 

other members and the market. The activity of a large number of market participants intersects on exchanges and they are thus best positioned to efficiently and 

consistently monitor activity across a very large number of market participants. 

To cite one example, while NYSE detected erroneous trading activity by Knight 

Capital on August 1, 2012 within a few minutes, the erroneous activity continued 

for 30 more minutes. If NYSE had a kill switch in place, it could have halted Knight 

Capital’s erroneous trading much sooner, and prevented disastrous results. 

While a number of exchanges have responded by implementing some kill switches, 

the kill switches that have been implemented to date suffer from certain weaknesses that have limited their effectiveness. 

First, they only provide market participants with the optional ability to set certain thresholds that may then trigger notifications, disable order entry, or cancel 

open orders. We should not rely on market participants alone to protect the market 

from their mistakes. Exchanges should still be required to implement and administer their own mandatory kill switches. 

Second, kill switches add latency to the processing of orders. As a result, firms 

that voluntarily use kill switches are disadvantaged because their orders reach the 

exchange more slowly than other market participants’ orders. Kill switches offered 

by exchanges should be implemented in a manner that introduces no additional latency and promotes a level playing field. 

Third, kill switches are designed differently at each exchange. This lack of uniformity significantly reduces utility and efficacy because it requires significant resources to properly configure and maintain overlapping and inconsistent kill switch 

parameters at each exchange. 

Remove Exchange SRO Powers and Immunity 

The special status of exchanges as SROs that have regulatory authority over their 

broker-dealer members, combined with a history of limited liability, has created a 

conflicted and weaker market structure than is optimal for fair and efficient markets. 

Exchanges face an irreconcilable conflict of interest in the performance of their 

duties as SROs. This conflict of interest in the dual role of regulator and competitor 

has led to inconsistencies in the manner in which the exchanges regulate their 

members. On the one hand, public exchanges are bound by their fiduciary duty to 

maximize shareholder profits, while on the other hand, they are required to be fair 

and impartial regulators of the broker-dealers with whom they compete. Exchanges 

and broker-dealers have become direct competitors in many aspects of their businesses. For example, acute competition exists for order flow, order routing services, 

and the provision of algorithmic trading services. Yet, to a significant extent, exchanges are able to control the landscape on which they and broker-dealers compete 

for business. 

Further, as SROs, exchanges claim to be insulated from private liability for damages they might cause, based upon both a judicially created doctrine of ‘‘absolute 

immunity’’ and limitations on liability codified by their own rules. Limiting this immunity would increase the stakes for exchanges in connection with general culpability for operational failures. Facing liability for operational failures would give exchanges very strong financial incentives to invest heavily in steps to prevent or minimize the impact of operational failures. 

Apply Regulation SCI to All Alternative Trading Systems 

All ATSs, most of which are dark, should be subject to proposed Regulation SCI. 

Regulation SCI, as currently proposed, would impose substantial requirements on 

how exchanges and the largest ATSs design, develop, test, maintain, and monitor 

systems that are integral to operational integrity. ATSs, which perform the same 

exact market function as exchanges, should be subject to the same standards as exchanges with respect to the issues covered by Regulation SCI. Proposed Regulation 

SCI would only apply to the largest ATSs, and we see no reason for this size limitation. 

Balance Benefits and Costs of New Entrants to Check Fragmentation 

Regulation NMS and the foundational regulations that preceded it, along with 

technological advances, have helped unleash an enormous degree of competition 

among market centers. In recent years, however, the costs that each new market 

center imposes on the market in terms of additional complexity and operational risk 


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have started to outweigh the marginal benefits of a new competing market center. 

The steps described above will help restrike this balance by requiring that market 

centers have sufficient resources and make sufficient investments in operational excellence. We expect that over time, this will reduce fragmentation by eliminating 

marginal market centers that rely on low cost of market entry and operation, externalization of the costs of catastrophic failure, and internalization of the profits of 

any success.

*****

To conclude, these are important steps that we should take to further enhance 

market quality, improve market resilience and strengthen investor protection. However, we must pursue this agenda without sacrificing the extraordinary achievements we have made in terms of market efficiency, lower costs, and increased fairness and competitiveness. We must not jeopardize the preeminent global standing 

of the U.S. equity markets. 

Thank you for the opportunity to testify before this Committee today. 

I would be happy to answer your questions. 

PREPARED STATEMENT OF KEVIN CRONIN

GLOBAL HEAD OF TRADING, INVESCO LTD.

JULY 8, 2014

Thank you, Chairman Johnson, Ranking Member Crapo and Members of the Senate Committee on Banking, Housing and Urban Affairs for the opportunity to speak 

here today. I am pleased to participate on behalf of Invesco at this hearing examining U.S. equity market structure. Invesco is a leading independent global asset 

management firm with operations in over 20 countries and assets under management of approximately $790 billion. Many of the investors served by Invesco are individuals who are saving for their retirement and other personal financial needs, including U.S. investors in defined benefit and defined contribution plans, such as 

401(k) plans, IRAs and similar savings vehicles. 

Through its investment advisor affiliates, Invesco manages money for investors 

worldwide who seek professional participation in the markets, both directly and 

through vehicles such as mutual funds and ETFs. These are long-term investors 

who are saving for their retirements, to purchase a home or send their kids to college. These long-term investors are the cornerstone of our Nation’s capital formation 

process, and retaining their confidence is fundamental to well-functioning U.S. securities markets, which are the envy of the world. To ensure long-term investor confidence, it is incumbent upon regulators and market participants to address issues 

raised by developments in the structure and operation of the U.S. equity markets, 

and we are grateful to this Committee for its attention to these important issues 

today. 

All who seek to maintain our U.S. equity markets as the most respected in the 

world should have a strong interest in ensuring that those markets are highly liquid, transparent, fair, stable and efficient. Those qualities create a level playing 

field for all investors, including ordinary American savers served by Invesco. In 

order to foster investor confidence and preserve robust liquidity, the regulatory 

structure governing our financial markets should promote, and not impede, those 

qualities. 

Today, due in large part to regulatory changes and developments in technology 

in recent years, there is robust competition among exchanges and alternative execution venues. These changes have spurred trading innovation and enhanced investor 

access to markets. Market participants, including Invesco, now have much greater 

choice and a higher degree of control in how and where to execute our trades. These 

changes have materially benefited investors in the form of lower commissions, 

spreads and implicit transaction costs, which in turn have enhanced the all-important liquidity of the equity markets. 

Unfortunately, some of these regulatory, competitive and technological changes 

have also brought unintended consequences, which have included un-leveling the 

playing field to a degree where certain sophisticated market participants can reap 

benefits at the expense of ordinary savers. We also are concerned that the one-sizefits-all approach of the current market structure fails to recognize the very real differences between trading large-cap stocks versus trading mid-cap and small-cap 

stocks. These developments challenge investor confidence in the liquidity, transparency, fairness, stability and efficiency of the markets. These unintended consequences include the following: 


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Market Complexity and Fragmentation Have Negatively Impacted Investor Confidence 

Many investors, including Invesco, believe markets have become too complex and 

fragmented, not because they need to be but rather because we have allowed them 

to become so. This complexity has contributed to a number of the technological mishaps over the past several years. These mishaps shake investor confidence in markets. While we commend the Securities and Exchange Commission (‘‘SEC’’) for the 

actions it has taken to address many of the structural issues relating to these 

events, it is important to recognize that today there are underlying structural issues 

that can give sophisticated participants an unfair advantage over ordinary investors. 

For example, exchanges sell co-location services to market participants that allow 

those participants to locate their servers in the same facility as the exchange’s order 

matching engines and offer these participants direct data feeds from the exchange. 

These direct data feeds are faster than the indirect data feeds that other participants get from the Securities Information Processor. Because of this speed differential, co-located participants with direct data feeds can gain an unfair advantage over 

those participants that are not co-located and do not receive direct data feeds, allowing the former to react more quickly to trading information. In our opinion, there 

is nothing more corrosive to investor confidence than allowing some market participants to have an unfair advantage over others. 

Today in the United States, there are 11 exchanges and over 40 alternative trading systems in which investors can trade equities. The rules governing the exchanges are very different from those governing the alternative trading systems 

(e.g., ‘‘dark pools’’), a difference that can be very confusing to market participants. 

These different rules also have facilitated an un-level playing field that unfairly favors sophisticated participants over ordinary investors. Many of these execution 

venues offer economic inducements to broker-dealers and high-frequency traders to 

route their orders to them. A number of these destinations offer high-frequency 

trading participants complex order types (e.g., ‘‘conditional orders’’) that may enable 

them to detect the trading interests of other participants and then use that information to their advantage. In such a complex and fragmented environment, determining which execution venue will lead to the best trading outcome can be very difficult even for a firm like Invesco. 

Conflicts of Interest Have Impacted Market Transparency and Fairness 

The robust price discovery that historically has defined our markets has been 

weakened as a result of the amount of trading activity occurring away from exchanges. It is believed that as much as 35–40 percent of all trading activity in U.S. 

equities now takes place away from the exchanges. Much of the movement away 

from the exchange markets is a result of broker-dealer order routing practices including ‘‘internalization’’ and the proliferation of specialized alternative trading 

venues, including ‘‘dark pools.’’

The order routing practices of some broker-dealers raise a number of concerns for 

investors. For example, investors are not provided the information from broker-dealers needed to determine if they are receiving best execution within these dark pools. 

They are also given only limited insight into how and where broker-dealers route 

their orders. As a consequence, it is very difficult for investors to make informed 

decisions about the quality of executions they have received. 

Much of the problem can be traced to two inherent conflicts of interest. The first 

is a broker-dealer’s interest in maximizing economic inducements by capturing liquidity rebates associated with the so-called ‘‘maker-taker’’ pricing model and by receiving payment for order flow from off-exchange market makers. The second is a 

broker-dealer’s interest in avoiding paying access fees to take liquidity from other 

trading venues. Under the current regulatory structure, a broker is incented to keep 

as many trades as possible within its own internalized systems, including within its 

own dark pools. These problems are not well-disclosed to clients, and yet they can 

drive brokers’ order routing decisions that may be at odds with their clients’ interest 

in obtaining best execution. 

High-Frequency Trading and Market Liquidity 

There has been much discussion about high-frequency trading and its impact on 

trading markets. Today, there are a number of different types of participants within 

the marketplace who could be referred to as high-frequency traders. It is our view 

that high-frequency trading is not bad in and of itself, but there are certain trading 

strategies performed in connection with high-frequency trading that have the effect 

of being manipulative or disruptive. These can include using an information and 

speed advantage to trade ahead of other market participants. These strategies have 


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arisen as a result of enabling technology, the fragmented structure of the markets 

and a lack of uniform regulation and market practices among trading venues. 

Changes to market structure have had a pronounced impact on the role of traditional market-makers and the evolution of electronic market-making. While there 

are today a number of market-makers and high-frequency market-making strategies 

that make markets in a number of securities, much of this appears to be focused 

on large-cap securities. While it is true that these high-frequency market-making 

strategies have increased trading volumes in many of these stocks, it is less clear 

that they are creating real liquidity. Moreover, the area of the market where market-makers have historically provided the most valuable liquidity—mid-cap and 

small-cap stocks—have not benefited from the evolution of market structure and the 

move to electronic market-making. 

To restore a level playing field in the markets—and, thereby, restore investors’ 

confidence in the fairness and transparency of the markets—we believe it is time 

for regulators and market participants to address these issues. Invesco recommends 

the following improvements:

1. Require broker-dealers to provide much greater disclosure about their order 

routing activities, their dark pool operations, order types used and all other 

data required for investors to make accurate determinations of execution quality. If there is greater disclosure about how and where clients’ orders are routed and other necessary data for investors to make accurate best execution determinations, investors will be able to make much better informed decisions 

about how their brokers are performing and, consequently, which brokers they 

should choose to use.

2. Ensure that the dissemination of market data is fair to all market participants. 

This could be achieved in a number of different ways, including by eliminating 

direct data feeds, slowing down the direct data feeds or through greatly enhancing the Securities Information Processor’s infrastructure to allow it to 

transmit market data to participants at substantially the same speed as the 

direct data feeds. It is in the nature of competition that some participants will 

be able to process information much faster than others, but these participants 

should not be given unequal access to allow them to front-run other investors’ 

orders.

3. Eliminate the maker-taker pricing model and substantially reduce access fee 

caps. We believe eliminating the maker-taker pricing model—and, more specifically, the liquidity rebates provided therein—and substantially reducing market access fee caps, would remove certain inherent conflicts faced by brokerdealers. This would make it more likely that broker-dealer activities will be 

performed in a manner and with an outcome more consistent with their clients’ 

best execution objectives rather than their own pecuniary interests.

4. Harmonize the regulation of exchanges, alternative trading systems and other 

trading venues. This will level the playing field between ordinary investors and 

other participants and ensure fairness, consistency and integrity to the trading 

markets.

5. Require registration for all high-frequency trading participants and the establishment of a uniform regulatory regime. The activities and strategies employed by high-frequency traders are sufficiently disparate, nontransparent and 

complex that a reasonable first step in regulation would be to ensure that all 

entities that engage in high-frequency trading be required to register under a 

uniform regulatory regime that has the resources and capabilities to detect 

and, where appropriate, take action against any trading strategies that are 

deemed manipulative or predatory.

6. Institute a comprehensive ‘‘trade-at’’ rule pilot program. The trade-at rule 

would require any orders internalized by broker-dealers to provide meaningful 

price improvement. If material price improvement cannot be provided, then 

those orders would be routed to more transparent markets. Such a rule would 

reduce broker-dealer conflicts and may result in much more robust price discovery for investors. We recommend that the SEC work with exchanges, investors and other market participants to structure this pilot program.

7. Market-making participants, exchanges, issuers and investors should work 

with regulators to facilitate market-making activities by creating sensible, 

transparent incentives and obligations for making markets generally, but for 

mid-cap and small-cap stocks in particular.

Invesco believes that these recommendations, if acted upon, will result in less 

complicated and more robust, highly liquid, transparent, fair, stable and efficient 


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1My comments are strictly my own and do not necessarily represent those of Georgetown University or anyone else. From 2000 through 2010 I served as an independent director on the 

board of directors of the Direct Edge stock exchanges (EDGX and EDGA). I was a Visiting Academic Fellow from 1999 to 2000 in residence at the NASD (now FINRA), and have served as 

Chair of the Nasdaq Economic Advisory Board. As an investor I practice what I preach in terms 

of portfolio diversification and hold a well-diversified stock portfolio that includes small investments in a large number of public companies, including most financial services firms. I also provide expert consulting services to Government agencies, law firms, exchanges, financial services 

firms, and others. 

markets. They would address concerns of ordinary savers that otherwise threaten 

confidence in the integrity of the U.S. equity markets. We are highly encouraged 

by Chair White’s recent speech outlining a number of initiatives that the SEC is 

considering to improve U.S. equity market structure. These initiatives will address 

many of the issues we have raised historically and are raising again here today. We 

also would like to commend the SEC for its recent action to establish a thoughtful 

pilot program to assess tick sizes for small company stocks. 

Thank you again for your attention to these important issues here today. I look 

forward to answering any questions you may have. 

PREPARED STATEMENT OF JAMES J. ANGEL, PH.D., CFA

ASSOCIATE PROFESSOR, GEORGETOWN UNIVERSITY MCDONOUGH SCHOOL OF

BUSINESS

JULY 8, 2014

My name is James J. Angel and I am an associate professor of finance at the 

McDonough School of Business of Georgetown University.1 I wish to thank the Committee for looking at these important issues and for asking me to appear before you. 

I have been asked to focus on the regulation, practices, and structure of the United 

States stock markets. I will begin with regulation. 

Regulation 

If Congress gets regulation right, then the regulators will make the right decisions on the details. Congress can then devote its scarce time to other important 

matters. If our regulatory system worked properly, Congress would not have to 

spend its time addressing minutiae (albeit important minutiae) such as the tick size 

in our financial markets. 

Money attracts thieves just like garbage attracts flies, and that is one of the reason why we need good cops to keep the bad guys out of our financial markets. We 

all benefit from fair and orderly markets that protect investors, supply capital to 

support economic growth, provide useful risk management tools, and promote economic efficiency. 

Unfortunately, the United States has an extremely fragmented financial regulatory structure. There are literally hundreds of different financial regulatory agencies at the State and Federal level. As we learned in the financial crisis, many items 

can fall through the cracks and the different regulatory agencies do not always play 

nicely with each other, to say the least. 

Congress attempted to address many regulatory issues in the Dodd-Frank and 

JOBS Acts. However, these Acts did not really address the structure of our regulatory system, which is badly in need of reform. Here are just a few of the symptoms 

of dysfunction in our regulatory system: 

1. The JOBS Act could and should have been done by the SEC with its preexisting authority. 

In 2012, Congress passed the JOBS Act with a broad bipartisan consensus in 

order to make capital more freely available to growing enterprises and thus create 

more jobs. Among other things, the JOBS Act temporarily reduces regulatory burdens for newly public ‘‘emerging growth companies,’’ reduces restrictions on private 

share offerings, and provides a framework for crowdfunding. 

All of these provisions could and should have been done by the SEC using its preexisting legislative authority. In particular, Section 36 of the Securities Exchange 

Act gives the SEC broad powers to exempt particular entities or groups of entities 

from various rules. The SEC should have recognized the problems in capital formation that led Congress to adopt the JOBS Act and used its existing powers to do 

what the JOBS Act mandated. Yet it did not. As an institution, it was unable to 

recognize the problems facing our capital markets and craft appropriate solutions. 

Worse yet, the SEC has missed, perhaps intentionally, many of the mandated deadlines in the JOBS Act. 


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2See http://www.sec.gov/rules/proposed/2011/34-65545.pdf. 3Disclosure: I own less than 100 shares of Goldman Sachs common stock as well as less than 

100 shares of the preferred stock of W2007 Grace Acquisition I. There are many more plot twists 

in this soap opera. See the SEC comment file 81–939 at http://www.sec.gov/rules/other/2013/

34-69477-application.pdf. Even if the SEC and FINRA are investigating allegations of various 

infractions, this should not stop the SEC from ordering the firm to resume its filing of public 

financial statements. 4Title VI of the JOBS Act reiterated the 300 shareholder of record threshold below which 

issuers could deregister from the SEC, which suspends their filing requirements. Under SEC 

Rule 12(h)(3)(e), if the number of shareholders ‘‘of record’’ of a deregistered issuer increases 

above the 300 threshold as of the end of its fiscal year, then the issuer has 120 days to resume 

filing. 5For the purposes of counting the number of shareholders ‘‘of record’’ to determine whether 

a company is required to file financial statements with the SEC, current interpretations of SEC 

rules do not count beneficial shareholders who hold shares in street name in brokerage accounts. 

Grace has well over 1,000 beneficial shareholders. It is quite odd that the SEC does not count 

retail shareholders who hold shares in street name in brokerage accounts when it determines 

whether a company has enough shareholders to merit required registration with the SEC. 6For more details, see one of my comment letters at http://www.sec.gov/comments/81-939/

81939-41.pdf.

2. The implementation of the Volker Rule demonstrates the fragmentation of 

our financial regulatory system. 

As part of the 2010 Dodd-Frank legislation, the Congress passed the so-called 

‘‘Volker Rule’’ to prohibit ‘‘proprietary trading’’ by banks. Alas, our regulatory system is so fragmented that no less than four (!) agencies have had to engage in rulemaking to implement this provision.2 The rulemaking sausage factory has come up 

with an extremely complex and expensive rule. Similar evidence of fragmentation 

arises in the various swap rules in which the CFTC has the bulk of the responsibility and yet the SEC has to do rulemaking for the tiny slice in its jurisdiction. 

3. Glacially slow responses by the SEC to apparent violations of Federal securities laws hurt investor confidence. 

The old saying ‘‘Justice delayed is justice denied’’ is just as true now as it has 

always been. When investors perceive that little is done to enforce our securities 

laws, they lose confidence in our financial system. The lack of high-level prosecutions from the recent financial crisis is but one example. 

Even if our regulatory system is vigorously attempting to enforce the laws, the 

long delays between the observation of the alleged offense and any visible regulatory 

action create the impression that the SEC is incapable of properly enforcing our securities laws. Here is one example of which I have some personal knowledge:

In April of 2013, W2007 Grace Acquisition I, (‘‘Grace’’) a Goldman Sachs controlled entity, filed an application with the SEC seeking an exemption from its registration requirements under the Securities Act of 1934.3 To make a very long story 

short, Grace was the successor company to Equity Inns, a publicly traded firm. 

Goldman led a leveraged buyout in 2008 that bought up the common shares of Equity Inns, but not the NYSE-listed preferred shares. Most of these preferred shares 

were held by retail investors, many of them senior citizens. Grace claimed that it 

had less than 300 shareholders of record, which permitted it to deregister its shares 

from the SEC and stop providing public financial information.4 One of the shareholders, a Mr. Joseph Sullivan, created a series of trusts in order to increase the 

measured number of shareholders ‘‘of record’’ over the 300 threshold, which would 

require Grace to once again file public financial statements with the SEC.5 Grace 

filed for an exemption, claiming that the Sullivan trusts should be counted as only 

one shareholder of record. 

It has been more than a year since this petition was filed, and the SEC has not 

announced any decision in the matter. It is my understanding that the SEC has not 

even bothered to contact Mr. Sullivan to examine the nature of his trusts. For the 

SEC to take over a year on this matter without even contacting the creator of the 

trusts to learn more about their nature shows a shocking slowness or sloppiness in 

its handling of the matter. However, my examination of the shareholder of record 

list indicates that there are and have been many more than the required 300 shareholders of record needed to require a resumption of its registration requirements 

even without the Sullivan trusts.6 Grace appears to be openly and flagrantly delinquent in its SEC reporting obligations, to the detriment of its preferred public 

shareholders. That the SEC has allowed this delinquency to fester leads to the suspicion that Goldman is getting the Bernie Madoff or John Mack treatment in this 

case. Even if the SEC in its infinite wisdom rules otherwise, this proceeding should 


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not have been dragging on for over a year with no end in sight. This does not bode 

well for public confidence. 

I would like to emphasize that the problems with our regulatory structure are not 

the fault of the people who work there. Most of the people who work in these agencies are hard working and intelligent people who are honestly trying to do their jobs 

as best as they can. The problem is the structure of the regulatory system, and this 

is something that only Congress can fix. I will get to my suggested solutions at the 

end. 

Practices 

Trading technology has changed dramatically in recent years, and there has been 

much controversy over various practices used in the financial markets. This section 

describes some of the controversial practices in financial markets. 

Not all users of high-speed computers are the same. 

There has been much discussion lately of modern trading practices. Often all uses 

of high-speed computers are lumped into one catch-all phrase of ‘‘high-frequency 

trading.’’ ‘‘High-frequency trading’’ is a misleading catchall term. Some ‘‘HFT’’ practices help the market, and some hurt. This is why we need a regulatory system that 

is smart enough to tell the difference between the good and bad uses of high speed 

computers and that has the capacity to keep out the bad while not harming the 

good. 

Market making and ETF arbitrage benefit low-frequency retail investors. 

Here is one example of a ‘‘high frequency’’ technique that is beneficial to low frequency retail investors like me. Many retail investors invest through exchange traded funds (‘‘ETFs’’), convenient basket products that allow an investor to buy part 

of a large basket of securities with a single trade. For example, an investor can buy 

a basket of all 30 stocks in the Dow Jones Industrial Average by buying the Dow 

Diamonds ETF. Retail investors can trade the ETF with the confidence that its 

price will closely track the price of the stocks in the index because arbitrageurs 

monitor the price of the ETF and the price of the stocks that go into the ETF. When 

the price of the ETF gets out of line with the price of the stocks in the basket, 

arbitrageurs swoop in to buy the cheap side and sell the expensive side in order to 

capture the difference. This pushes the cheap side up and the expensive side down, 

and thus pushes prices back into the proper alignment. Because this is such a simple strategy, it is easy to duplicate and there are many competitors. When an arbitrage opportunity arises, there is a race to take advantage of it. The first trader to 

trade wins, and the rest lose, even if they lose by only a thousandth of a second. 

Therefore, the traders invest in technology to speed up their trading by buying the 

fastest computers they can and then putting them as close to the stock exchange 

computers as they can get so that their orders will get to the exchange even faster. 

Traders use high speed computers to engage in a variety of other trading strategies as well. These include market making, a strategy similar to that of a car dealer 

who provides the service of convenience by buying at a trade-in price and selling 

at the retail price. The car dealer does not want to be a long-term owner of the car, 

but to sell it as quickly as possible. Likewise, market makers do not want to be longterm investors, but they provide the service of immediacy to investors who want to 

buy or sell a stock quickly. By being willing to buy and sell at all times, they make 

sure there is a buyer when long-term investors want to sell and vice versa. Competition between market makers helps to keep transactions costs low for the long-term 

investors. 

Other strategies are more controversial. 

Traders have been looking for trends in stock prices since the beginning of financial markets. Generations ago, ‘‘tape watchers’’ would gather in brokerage firms to 

watch the ticker tape and guess where prices were going. Later, chartists and day 

traders would do the same. These investors attempt to discern where prices are 

going by learning from the information that large investors leak when they break 

up large orders into many smaller trades. As the price and quantity of every stock 

trade in the highly transparent U.S. market become public knowledge immediately, 

every time one of these small pieces of a larger order trade, they are leaving clues 

about their future trading. 

Now, instead of standing in brokerage firms and reading a paper ticker tape, 

some traders use computer programs to guess which way prices are going. Some 

would call these predictive traders ‘‘predatory’’ traders as they seek to gain from the 

stock price movements caused by larger traders. It is a myth, however, that such 

traders ‘‘see’’ institutional orders before they hit the market. Such traders merely 


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7The direct feeds are faster than the consolidated data feed that contains the data from all 

of the exchanges. The consolidated data feed will always be slower because it takes time for 

the information to travel from the exchange that created it to the point of consolidation and 

to be consolidated into the data feed. 8See my comment letters to the SEC at http://www.sec.gov/rules/proposed/s71004/

jjangel012505.pdf and http://www.sec.gov/rules/proposed/s71004/jjangel051904.pdf, as well as 

my joint articles with Larry Harris and Chester Spatt, Equity Pricing in the 21st Century and 

Equity Pricing in the 21st Century: An Update. 

guess at the direction of future stock price movements based on the data that are 

available to anyone who wants to pay for it. 

Here is an example known as ‘‘latency arbitrage.’’ Suppose that there are two 

stock exchanges that are 25 miles apart. It takes about one hundred microseconds 

(millionths of a second) for light, and thus information, to travel from one exchange 

to the other by the fastest route. Both exchanges are offering to sell 5,000 shares 

at $20.00 per share. Suddenly someone buys all 5,000 shares available on the first 

exchange, and now the only shares available for sale on the first exchange are 

priced at $20.01. At this point it stands to reason that if a sophisticated large trader 

has bought up all of the shares on the first exchange, then prices are going up. 

Those 5,000 shares that are offered on the second exchange might still be available, 

and whoever buys them will make money as the price goes up. Indeed, the large 

trader who bought up all the shares on the first exchange may well be on his or 

her way to try to buy up the shares on the second exchange. Now the race is on. 

Traders use the fastest computers and communication links they can to rush to the 

other exchange and buy up the cheap shares there before anyone else does. If the 

large trader is using a slow communication line, the fast trader may well arrive at 

the second exchange in time to scoop up the available shares at $20.00, leaving none 

behind for the large trader whose order initiated the transaction. 

These high speed traders use a variety of techniques to trade as fast as possible. 

Not only do they buy the fastest computers they can, they try to locate them as close 

as possible to the computers used by the stock exchanges to process trades, a process known as co-location. They subscribe to the fastest data feeds possible, the direct 

data feeds offered by the exchanges, and transmit their orders using the fastest data 

lines they can.7 There has been a considerable hue and cry over the fact that some 

investors pay for faster data feeds than other investors receive. The important fairness consideration is to make sure that such high speed data feeds are available 

on nondiscriminatory terms to all market participants. 

As a low-speed low-frequency investor, I am not concerned that some, if not most, 

market participants have faster computers and faster data feeds than I do. My trading strategies, like those of most retail investors, are not based on reacting instantaneously to news or other information, but instead on longer-term buy and hold strategies. As I am not racing to react faster than other participants, I do not care that 

other high-speed investors are racing with each other. 

Some uses of high speed technology are just plain bad. 

I will not argue that all uses of high-speed computers are necessarily good. Manipulators can use fast computers as well. One manipulative strategy is known as 

order ignition. Here is an example. A computer program (known as an algorithm, 

or ‘‘algo’’) searches for a stock where the amount of buy orders seems unusually 

small and the stock seems vulnerable as a result. Then the algo puts in a large 

short sale order with the intent of pushing down the price in order to trigger ‘‘stop’’ 

orders, orders to sell after a stock has dropped below a specified price. The triggered 

selling of the stop orders causes the stock to drop further, at which time the algo 

kicks in and buys the stock back to cover the short at a profit. Such manipulative 

trading is antithetical to a fair and orderly market. 

Maker-taker pricing 

The current pricing system used by most stock exchanges is usually called 

‘‘maker-taker’’ pricing. The exchanges charge a fee to market orders because they 

‘‘take’’ liquidity and pay a rebate to a limit order that gets filled because it made 

liquidity. For example, suppose a customer puts in a limit order to buy 100 shares 

of BAC at a price not to exceed $15.00 per share. Later, another customer market 

order comes in and is matched with that resting limit order. Under typical exchange 

pricing schedules, the market order would pay the exchange 30 cents and 28 cents 

of that (93 percent!) is rebated to the resting limit order. 

I have long criticized maker taker pricing.8 It has created a number of distortions 

in the market, and I have called for its elimination or restriction. However, as I believe in evidence-based rulemaking, it would be appropriate to conduct a scientifically designed pilot experiment to examine the impact of reducing and eliminating 


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9 I concur with SEC Chair White’s comments that brokers should have a similar best execution requirement for retail fixed income orders. http://www.sec.gov/News/Speech/Detail/

Speech/1370542122012#.U7o0AlldWSo. 10 However, many retail trading Web sites are simplified to the point that they do not offer 

complex order types. Investors wanting to use complicated order types would have to go to brokerage firms that offer them. 11These are listed in my December 8, 2010 testimony to the Senate Committee on Senate 

Subcommittee on Securities, Insurance, and Investment and the Senate Permanent Subcommittee on Investigations. This testimony also contains a summary of the events of the Flash 

Crash. http://www.banking.senate.gov/public/index.cfm?FuseAction=Files.View&FileStorelid=

a4f49d29-fe78-4ed9-839-3a6c09917298.

exchange access fees. I believe that eliminating or reducing maker-taker pricing 

would greatly reduce the incentive for investors to send orders to some so-called 

‘‘dark pools’’, as one of the advantages of such trading platforms is to avoid exchange fees. 

Broker order handling practices 

The practices by which brokerage firms route customer orders are also controversial. Brokerage firms have a duty of ‘‘best execution’’ in handling their customers’ 

equity orders.9 The SEC currently requires market centers to disclose execution 

quality statistics in Rule 605 and for brokerage firms to disclose how they route orders in Rule 606. However, these disclosures currently do little to inform retail customers how well their orders are being filled. A better solution would be for the brokerage firms themselves to disclose execution quality directly to their customers. 

Exchange order types 

The proliferation of special order types at the stock exchanges has also been controversial. Critics charge that these order types create an unfair advantage as well 

as add complexity to the marketplace. However, they are available to all investors.10

The real question is whether they can cause the market to react in an unstable or 

otherwise undesirable manner. So far I have seen no evidence that they do. 

Tick size: Issuers should be allowed to choose their own tick size. 

The tick represents the smallest allowable price differences in stocks. Currently, 

the United States has a ‘‘one tick fits all’’ model with a tick size of one penny for 

all stocks over $1.00. Thus, brokers are allowed to accept orders at $10.00 and 

$10.01, but not $10.0001. The tick represents the smallest amount of money an investor has to pay to jump to the next level in the queue. A wider tick benefits patient traders who place limit orders, as investors would have to pay more to jump 

in front of them. However, a wider tick harms impatient traders who cross the bidask spread and trade with market orders and thus pay a higher transaction price. 

The optimal tick represents a tradeoff that results in a balanced ecosystem of liquidity takers and demanders. The optimal tick is not zero and not infinity, but somewhere in between. And it is not the same for all stocks. 

The SEC is currently planning a pilot study to examine the impact of different 

tick sizes on smaller stocks. This is good as far as it goes, as it will provide useful 

information with which to inform rulemaking. However, the big issue is ‘‘Who decides what the tick size will be for various companies?’’ I believe that each issuer 

should be able to select their own tick size, as they have the proper incentive to 

select a tick that provides optimal liquidity for their company. Neither the exchanges nor the SEC have the similarly powerful incentive to get it right. 

The risks of technology: We are still vulnerable to major disruptions like the 

Flash Crash. 

Most of the time our markets work well. Except when they don’t. The Flash Crash 

of May 2010 is a case in point. I had warned the SEC in writing five times in the 

year before the Flash Crash that our market was vulnerable to such disruptions.11

Our market is still vulnerable. Our market is a complex nonlinear network. It is 

in the nature of financial markets that from time to time they are overwhelmed 

with tsunamis of trading activity that can overwhelm the capacity of the market 

network to produce fair and orderly prices. Complex networks that are pushed beyond their capacities fail in weird and strange ways that are difficult if not impossible to predict. 

Subsequent to the Flash Crash, the U.S. equity markets instituted several types 

of circuit breakers:


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12See http://www.sec.gov/rules/sro/nms.shtml#4-631 for details. 13See http://www.sec.gov/rules/final/2010/34-61595.pdf for details. 14See http://www.sec.gov/rules/sro/bats/2012/34-67090.pdf. Indeed, note that the marketwide circuit breakers were done as rule filings by 16 separate SROs. See SR–BATS–2011–038; 

SR–BYX–2011–025; SR–BX–2011–068; SR–CBOE–2011–087; SR–C2–2011–024; SR–CHX–2011–

30; SR–EDGA–2011–31; SR–EDGX–2011–30; SR–FINRA–2011–054; SR–ISE–2011–61; SR–

NASDAQ–2011–131; SR–NSX–2011–11; SR–NYSE–2011–48; SR–NYSEAmex–2011–73; SR–

NYSEArca–2011–68; SR–Phlx–2011–129. This is another example of the absurd fragmentation 

of our regulation among SROs. 15For more technical comments on circuit breakers, see my comment letter at http://

www.sec.gov/comments/sr-bats-2011-038/bats2011038-2.pdf.

1) The ‘‘Limit Up-Limit Down’’ system causes a short trading halt in individual 

stocks if the market price moves outside of a predetermined price band.12

2) The short sale circuit breaker restricts short selling at the bid price for the rest 

of the day and the subsequent day if a stock drops 10 percent below the previous day’s price.13

3) Market-wide circuit breakers halt the entire market for various periods of time 

under various conditions.14

These are mostly improvements as far as they go, but there is still more work 

to be done.15 In particular, there is no evidence of any coordination in these efforts 

across the equity, options, and futures markets, despite the fact that the Flash 

Crash demonstrated the close interrelationships between these markets and the 

ease with which a disruption in one market can be transmitted to other markets. 

This is another example of the dangers caused by the fragmentation of our regulatory system. 

The current system deals appropriately with disruptions to the trading of individual stocks, although more refinement is needed for handling small stocks with 

wide bid-ask spreads. However, the system is totally untested in dealing with large 

market wide disruptions across multiple asset classes. The rigidity of the rules could 

also hamper the restart or lack thereof when the next tsunami hits the markets. 

And there will always be another one coming. We just don’t know when. 

Structure 

The United States has a competitive, ‘‘open-architecture’’ equity market 

structure. 

Many commenters use the pejorative term ‘‘fragmented’’ to describe the current 

U.S. market structure. This word has a negative connotation. Its synonyms include 

broken, shattered, splintered, and disorganized. It is anything but these. Our markets are better than they have ever been by traditional measures of transactions 

costs, speed of execution, intraday volatility, transparency, and certainty of settlement. 

However, the high quality of the U.S. markets does not imply that they can’t get 

better. The fundamental trading problem has not been solved. Our market structure 

allows new market entrants to ideas for better trading systems to plug into our National Market System. This competition improves the breed. 

It should be noted that we have the market structure that Congress rightly decreed in 1975. In 1975, Congress passed the so-called National Market System 

amendments to our securities laws. In particular, Congress added Section 11A 

(a)(1)(c) to the Securities Exchange Act which called for a competitive market structure with competition among exchanges, broker-dealers, and other than exchange 

markets. And that is what we have today. 

Some complain that we have ‘‘too many’’ exchanges or other places to trade. Do 

we have too many supermarkets or gas stations to choose from? Normally we depend upon competition to provide incentives for efficiency and good customer service. The cost of trading is much lower in the hyper competitive equity space than 

in the highly concentrated futures industry. 

A competitive market structure makes good economic sense. 

The logic behind a competitive market structure is simple and compelling. A monopoly exchange structure suffers from all of the normal problems of a monopoly. 

Even a not-for-profit monopolist will lack incentive to improve the product or to run 

the operation efficiently. A for-profit monopolist will charge high prices to the detriment of social welfare. In the olden days, the technology was such that the NYSE 

was an almost natural monopoly. As the saying goes, liquidity attracts liquidity, and 

the old NYSE had a huge network advantage over everyone else because it had the 

liquidity that investors sought. 


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16 A trade-through occurs when one exchange trades at a price even though another exchange 

was quoting a better price. I commented at the time, and still believe, that a trade-through rule 

that prevents trade throughs is unnecessary. The economic incentives pushing brokerage firms 

to get the best price for their customer are so overwhelming that they can and do go to the 

market with the best price. A trade-through rule just adds significant complexity to the market 

network with little improvement in market quality.

In order to prevent monopoly there is a need for competition. And the profit motive is a great motivator for competition. That gives us a world of competing forprofit exchanges. 

Fortunately, the computer revolution has changed the economics of the equity exchange business. An equity exchange is no longer a natural monopoly, but a hotly 

competitive enterprise. Low cost and high speed communications have neutralized 

most of the network advantage of the dominant exchanges, making it possible for 

entrants to enter the business. 

The United States is not alone in adopting this structure. Most developed countries are moving toward market structures in which for-profit entities compete with 

each other. The European approach expressed in MIFID (Markets in Financial Instruments Directive) is an example. 

Some observers claim that the current market structure is a result of Regulation 

NMS, which was passed by the SEC in 2005. However, NMS merely codified and 

updated a number of rules. What was significant, was that it extended tradethrough protection to NASDAQ-listed stocks, which did not have it before, and it 

provided trade-through protection only to orders that were electronically accessible, 

which forced the NYSE to more fully automate its systems.16

For the record, here is an oversimplified summary of NMS (CFR §§ 242.600 through 

242.612):

Rule 601: All trades in NMS stocks must be reported to the consolidated 

tape.

Rule 602: Each exchanges best bids and offers must be reported so that the 

consolidated National Best Bid and Offer (NBBO) can be calculated.

Rule 603. Brokers must display consolidated trade and quote information 

to clients. They can’t just give out the data from only one exchange.

Rule 604. Dealers must display customer limit orders to the market.

Rule 605. Market centers must report execution quality statistics.

Rule 606. Brokerage firms must report each quarter how they route customer orders and what kind of payment for order flow they receive.

Rule 607. Brokers must disclose payment for order flow to customers.

Rule 608. Exchanges work together to form NMS plans.

Rule 609. Securities Information Processors (SIPs) must register on Form 

SIP.

Rule 610. The access fee (take part of maker-taker) is limited to $.003 per 

share. Locked and crossed markets are prohibited.

Rule 611. Exchanges must have policies to prevent trade throughs.

Rule 612. The tick size for all stocks over $1.00 is $.01.

Recommendations to Congress 

1. Start the debate to fix regulation. 

This will be a long and sometimes painful process that will take many years. 

Even though pessimists will say that nothing will be passed due to partisan gridlock, or that an SEC–CFTC merger is impossible because the various committees 

do not want to give up their oversight powers, we need to start the process now. 

Reform will not occur unless the debate begins. 

Congress should direct all of the Federal regulatory agencies and self-regulatory 

organizations such as FINRA to conduct thorough studies of the structure and effectiveness of regulation and make suggestions for reforms that 1) simplify the currently complex and overlapping regulatory system, 2) reduce unnecessary compliance costs, 3) provide usable rights of appeal for high-handed regulatory action or 

inaction, 4) enhance consumer protection, and 5) enhance economic efficiency and 

capital formation. Although these goals sometimes appear to conflict, we need to 

start the process now. 

Congress should also fund a study similar to the U.K. Foresight project in which 

experts from around the world are invited to submit studies on the relevant topics. 

Of course, there should be lots of hearings as part of this debate. 


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However, this process should also closely examine experience around the world. 

We did not invent financial regulation. We copied much of the U.S. system from the 

U.K. many years ago. Congress should explicitly study the experience of other countries around the world to see what we should do here. In particular, there has been 

a lot of fresh thinking in Europe as the Europeans struggle to harmonize their regulation, and we can learn from their debates as well. 

2. Consider functional-based regulation. 

Currently, our regulatory system is a hodgepodge of institutional-based regulators. However, financial services spill across these institutional boundaries, leading to many overlaps and gaps. We should seriously consider a functional-based system with regulatory bodies based on function rather than institution. We would 

thus have a markets regulator, a consumer protection regulator, a solvency regulator, a guarantee fund, and so forth. 

3. The role of SROs needs to be rethought. 

This debate should include a thorough examination of the SRO model. The current SRO model came about as part of a political compromise during the creation 

of the SEC. The industry would regulate itself through exchange-based SROs, and 

the SEC would regulate the SROs. This moved part of the cost of regulation off the 

Federal budget, and provided some industry input into the result. Since the NYSE 

was the dominant exchange, it regulated exchange member firms and the NASD 

regulated the rest. This worked well for many years. However, in a world with competing trading platforms, there needs to be a market-wide regulator. Although 

FINRA has become the de facto market wide regulator, its role should be examined 

carefully. 

4. Put the SEC and CFTC in the same buildings. 

The SEC and CFTC in particular should integrate their operations. Even if a full 

merger is not yet politically feasible, placing the agencies in the same buildings with 

shared common facilities will enhance cooperation between the agencies. 

5. Move the locus of SEC/CFTC operations from DC to NY and Chicago. 

Our regulatory agencies have problems attracting enough good people with industry experience. These people are usually found in New York and Chicago, and are 

often unwilling to uproot their families for the kind of salaries the Government offers. By moving most operations to our financial centers, the SEC will be able to 

hire people who know where the bones are buried, and more closely and personally 

monitor the industry. 

6. Fully fund the SEC budget with close oversight of how the money is spent. 

We have been pennywise and pound foolish in how we fund the SEC. We have 

gotten what we have paid for. The sum total of every dollar spent on the SEC since 

its founding in 1934, even grossed up for inflation, is less than investor losses from 

one Bernie Madoff. A properly functioning agency will more than pay for itself with 

lower compliance costs for law abiding citizens, faster and more efficient capital 

raising, and fewer investor losses due to fraud. However, the SEC has a history of 

misallocating resources in the past. Congress should specify carefully where the 

money should be spent and follow up on the results. 

7. Monitor the qualifications of the people in the regulatory agencies. 

One longstanding problem with the SEC is that it has plenty of lawyers but an 

insufficient number of people with other necessary qualifications. Congress should 

demand regular updates from regulatory agencies on the nature and qualifications 

of the staff. In particular, every time a regulator testifies before you, I suggest asking the following questions:

a) How many people are working on this issue?

b) How many of them have two or more years of industry experience?

c) How many of them have passed a FINRA exam such as Series 7?

d) How many of them have degrees in:

a) Economics or business?

b) Engineering or computer science?

e) How many of them have professional certifications such as CFA or CPA? 

8. Monitor the speed of execution, but watch out for games. 

One of the major problems with the SEC is the slow speed with which it operates. 

The slowness of its operations is a major impediment to investor confidence. While 

accuracy is more important than speed, speed is nonetheless important. The SEC’s 


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17See http://www.justice.gov/oig/reports/2014/a1412.pdf.

lawyer-dominated culture feels that the glacial progress of judicial and legislative 

processes is appropriate for regulation, when in fact it is wholly inadequate in the 

modern world. The SEC needs to have a cultural change so that it recognizes that 

delay is costly to the country. 

Congress has repeatedly attempted to address this issue by providing deadlines 

for the SEC to respond. The SEC repeatedly misses these deadlines with seeming 

impunity, while misallocating resources to other nonmandated areas. However, Congress needs to be very careful that the SEC does not play VA-style games with the 

numbers. 

Congress needs to demand statistics from regulatory agencies on the length of 

time that an agency is taking on various areas. For example, Congress should expect and pay attention to statistics on the status of mandated rulemakings, length 

of investigations in process, SRO rule filings, and no-action letter requests. 

9. Create a Serious Fraud Office to prosecute criminal financial offenses. 

It was a great disappointment to me and others how few criminal prosecutions 

occurred subsequent to the financial crisis.17 Currently, the SEC only has civil jurisdiction and must turn over criminal cases to the Department of Justice. However, 

DOJ has many other responsibilities, and it is understandable that terrorists and 

gangsters will be their top priority. A separate agency focused only with prosecuting 

financial fraud will be able to develop expertise in complex financial fraud will leaving financial fraud FBI et al. get distracted by going after terrorists and truly bad 

guys. 

10. Encourage agencies to provide more status information to tipsters. 

The agencies should be encouraged to be more open with tipsters and complainants about the status of investigations. I can attest from personal experience that 

it is extremely frustrating to receive no follow up after submitting a tip. A simple 

follow up message to the effect of ‘‘The case is still open’’ or ‘‘We plan no further 

action at this time’’ would help to increase investor confidence in the integrity of 

the system by letting them know that something is being done with their complaints. 

11. Open an investor advocate offices in or attached to every State and Congressional district. 

As Members of Congress, you are well aware of the numerous complaints that you 

get from frustrated citizens with regard to financial matters. Often citizens are so 

confused by the overwhelming alphabet soup of Federal and State agencies that 

they don’t know where to turn for help. A properly funded financial ombudsmen 

type office attached to every Senator or Representatives office would provide appropriate guidance to help citizens navigate the regulatory maze. The office would also 

follow up on cases to make sure that they do not get the Bernie Madoff and John 

Mack treatments. This will increase investor confidence because investors will feel 

heard and have a sense that their tips are getting a proper investigation. 

12. Continue to build a culture of evidence-based rulemaking at Federal regulatory agencies. 

The forthcoming pilot experiment with regard to tick size is a great step forward. 

It is sad that once again it took Congressional action to prod the SEC to do something it could and should have done on its own volition. The Congress should encourage a culture of evidence-based rulemaking through carefully designed pilot experiments. I have heard that there is some concern at the SEC that the agency may 

not have legislative authority to conduct properly randomized scientific pilot studies. 

Congress should clarify the relevant statutes to indicate that the SEC does indeed 

have such authority. 

13. Amend the APA to require agencies to look at how other countries and 

other entities address similar issues. 

Many agencies have an insular culture that does not naturally explore how other 

entities deal with similar problems. This is a mistake. We do not have to keep reinventing the wheel. The Administrative Procedures Act should be amended to require 

each rulemaking to explicitly address how other countries and other entities have 

addressed similar issues. This is particular important given the global nature of financial services, and the need to work with other regulators. Explicitly examining 

how other regulatory entities address a problem makes it more likely that we will 

adopt a similar approach, leading to a more uniform global regulatory environment 

and thus reducing compliance costs. 


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PREPARED STATEMENT OF TOM WITTMAN

EXECUTIVE VICE PRESIDENT AND GLOBAL HEAD OF EQUITIES

NASDAQ OMX GROUP, INC.

JULY 8, 2014

Thank you Chairman Johnson and Ranking Member Crapo for the opportunity to 

testify today on ‘‘The Role of Regulation in Shaping Equity Market Structure and 

Electronic Trading.’’

Thanks to the efforts of SEC Chairman Mary Jo White, the debate as to whether

we change our equity market structure is over. The SEC has launched an evaluation 

of what changes are needed and has taken a first step by releasing the guidelines 

for the creation of special market structures for a range of smaller stocks known 

as the Tick Size Pilot. We support Chair White’s efforts which also include the 

launch of a series of efforts to evaluate more holistically the broader market structure and to take action to ensure robust regulation of all participants in the markets. These are all positive developments that NASDAQ OMX absolutely endorses. 

Now it is time for us to talk about solutions. 

We agree with Chair White that our markets are not rigged, but, are indeed the 

strongest capital markets in the world. And we at NASDAQ OMX have been dedicated to ensuring fair access to all investors in our marketplace and view fair access 

as a hallmark of our organization. Let me be clear, NASDAQ OMX endeavors to ensure everyone has a fair and equitable experience with us, and we fully support any 

effort to ensure that there is fairness and transparency in the market. While we are 

firm in our belief that the U.S.-licensed exchanges provide a fair and highly efficient 

market platform, we agree with many others that the markets are complex today. 

And, while that complexity can bring benefits to participants, we agree that it also 

brings a need for regular examination. When appropriate, we should move quickly 

to update the market rules consistent with the Exchange Act principles of fairness 

and transparency. As an exchange, we believe that the bedrock principle for wellfunctioning and fair markets is the need for robust price discovery—and transparent 

price discovery is at the center of what exchanges do for our economy. 

Special Role of Exchanges: 

Companies like Comcast, Cisco, GoPro, Intel, AmGen, Celgene and Mylan use capital they raise from listing on The NASDAQ Stock Market (NASDAQ) to finance 

their missions of making cutting-edge products that transform lives and industries. 

The public trading of these companies allows Americans to invest in and participate 

in the American Dream, and allows companies to understand the value of their company and raise additional capital by issuing new shares. With financing provided 

by the public markets, these companies create millions of jobs and bolster the American and global economies. We see tangible evidence of this, from Silicon Valley to 

the Northern Virginia high tech corridor and in my home State of Pennsylvania. 

An exchange listing is a valuable asset to a company’s livelihood. The iconic public 

companies that your constituents recognize, such as, Apple, Microsoft, Google, eBay 

and Amazon, must provide broad and deep transparency regarding their operations; 

they must satisfy exchanges’ listing standards; and they remain continuously subject to exchange rules protecting investors against corporate fraud and abuse. Exchange listed companies have an ongoing responsibility to maintain high financial, 

operating, and governance standards, which are rigorously enforced by the exchanges, to ensure investor confidence. 

Equity exchanges in the United States are uniquely entrusted with the important 

responsibility of being a catalyst for growth and wealth creation. After the IPO, exchanges have a continuing role in fostering price discovery and transparency. By allowing investors to come together in an efficient and open manner, we enable them 

to discover the price at which these public companies can be bought and sold 

throughout each trading day. Exchanges, like NASDAQ, then disseminate those 

prices for your constituents to see on television, online and in newspapers. Exchange 

equity quotes create the reliable reference price for all trading. Exchange quotes are 

a byproduct of the SEC-approved rules and robust regulatory systems that equities 

exchanges must develop and enforce to protect investors and to provide lit and orderly markets. We fully disclose and seek SEC approval of all of the policies and 

practices that we use to operate our markets. 

Market Structure: 

Now we turn to the details regarding the processes and mechanisms within the 

U.S. market system used to create a transparent market. First, with regard to order 

types, NASDAQ OMX supports the Chair’s call for a thorough review of existing 

order types, which highlights the difference between exchanges and lighter reguVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00064 Fmt 6621 Sfmt 6621 S:\DOCS\91300.TXT SHERYL

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lated ATSs. Each venue (exchange or broker owned) has its own systems and procedures and each competes for orders from brokers and ultimately investors. Each 

venue has its own order types and each is continually talking to market participants 

to develop new order types that satisfy the needs of the marketplace.’’

Unlike less-regulated ATS trading venues, including dark pools, when seeking to 

launch a new order type, NASDAQ was subject to a rigorous process to define, design, evaluate, explain and obtain SEC approval of order types. As an exchange we 

are required to expose innovative ideas to the market through the notice and comment process. We were subject to public scrutiny and examination of our ideas by 

our competitors. This process often undermines the benefits of our innovation, allowing our competitors, particularly those who are less regulated, time to potentially 

mimic our ideas before we even had our ideas approved. This is one of the costs 

of maintaining an SRO license. For the sake of transparency and to help members 

understand our order types, we have posted on our Web site a list and a plain-language description of all of NASDAQ’s order types. 

Turning to the issue of dark pools, many of our concerns with today’s fragmented 

market structure are the direct result of layers of iterative market structure decisions that have built up through the years when SEC approval was based upon the 

technological and market needs at the time these rules were proposed and approved. 

Many current problems with our markets stem from well-intentioned regulations 

like Regulation ATS and Regulation NMS, which sought to promote competition and 

to resolve tensions between electronic and floor-based trading. But, regulations cannot be adopted and forgotten; they must evolve as conditions change. Regretfully, 

over time Regulation ATS and Regulation NMS have led to a significant increase 

in dark trading, which denies market participants a clear view of trading interest 

in a given stock—preventing the full strength of supply and demand to determine 

price. The latest dark trading data available to us from Rosenblatt for June indicates that almost 40 percent of all trading in our markets was done away from the 

lit exchanges. 

While alternative trading venues certainly have an appropriate role within a wellfunctioning market, we strongly believe that the current trend toward dark trading 

as the market’s default setting is an unhealthy phenomenon. The United States is 

not alone in its challenges with dark trading. Other countries are adapting their 

rules to address the concern that dark trading reduces the fairness and transparency of the markets. Specifically, Canada modified its market structure to limit 

dark trading and to maximize price discovery and the EU has included a regime 

for capping the level of dark trading in its recent MIFID policy changes. It’s time 

for the United States to update Regulation NMS, and we can benefit from examining other countries’ efforts to determine a structure that could work within our 

own markets. 

On the topic of high frequency trading, NASDAQ supports Chair White’s call to 

have all high frequency trading firms register. While we have not seen the details, 

we believe there are benefits in the SEC assuming a broader role and to lay the 

groundwork for greater transparency into all trading activity. Many in the public 

arena have attacked high frequency trading as a business model. We encourage and 

support a thorough analysis of the subject in order to reach a rational conclusion. 

In our view, high-frequency firms that are registered broker-dealers—whose primary function is as a regulated market-maker—offer the valuable service of providing liquidity throughout the trading day, which stabilizes pricing in the market 

and aids in price discovery. However, what we know from experience is that our industry, no matter the business model, will always attract individual players who 

cross the line. They forget the true purpose of the markets, and they find opportunities to exploit them. The role of NASDAQ, the other licensed, regulated exchanges, 

FINRA (the Financial Industry Regulatory Authority), and the SEC is to surveil the 

market and identify those individual ‘bad actors.’ We will continue to be vigilant in 

serving that critical industry function. 

Systems Resiliency: 

Another area of focus in recent years has been the resiliency of the systems that 

underpin the U.S. markets. At NASDAQ OMX we are focused every day on how to 

improve our markets and make them more resilient and robust. We recognize that 

past events across the markets, including our own, may have harmed investors’ confidence in the U.S. markets. We are extremely focused on identifying and mitigating 

risks in our systems and infrastructure, as well as in the interconnectivity across 

the markets. Providing resilient and robust markets is critical for efficient capital 

formation, investor confidence, and job creation. We are confident we can provide 

that resiliency. In this area we are engaged in many efforts to be a catalyst for positive change. For example, we recently implemented so called ‘‘Kill Switch’’ to proVerDate 0ct 09 2002 11:05 Mar 18, 2015 Jkt 000000 PO 00000 Frm 00065 Fmt 6621 Sfmt 6621 S:\DOCS\91300.TXT SHERYL

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vide another backstop against a computer incident going from a localized issue to 

a market-wide problem. 

The role of exchanges is more important than ever in today’s challenging environment. And yet, market complexity continues to create new risks that we are constantly working with other market participants and the SEC to address. Investor 

demand and the nature of regulatory complexity have made U.S. markets lightning 

fast, fragmented and deeply inter-connected. This complexity has added many more 

friction points where mistakes can occur. 

That’s why NASDAQ OMX favors the adoption of Regulation SCI, which the 

Chair highlighted in her recent public remarks. The U.S. market is only as strong 

as its weakest link. To protect investors, all market participants and trading 

venues—not just exchanges—must be subject to rigorous standards of technology design, testing, and implementation. While NASDAQ OMX favors the expansion of 

protections that Regulation SCI will bring to some ATSs and brokers, in our view 

the obligation should be expanded further to include all ATSs because every ATS 

poses a systemic risk to a tightly linked market. 

The SEC deserves credit for its leadership through recent, challenging times. In 

the aftermath of the May 6th, Flash Crash, the SEC and the exchanges worked 

quickly and cooperatively to devise new protections to keep trading errors from 

spreading too rapidly or inflicting unacceptable harm on the overall market. The exchanges reformed their rules for breaking trades, instituted single stock circuit 

breakers, updated market-wide circuit breakers, and implemented the Limit Up/

Limit Down mechanism. NASDAQ OMX has also, on its own, developed tools to 

help broker-dealers manage their obligations under the Market Access Rule. 

At NASDAQ OMX we are passionate about and steadfast in the role we play in 

capital formation and improving the performance of the economies we serve. We 

think that the SRO model and U.S. market structure have been effective in protecting investors over many decades. But as technology and the inter-relation among 

all traded asset classes evolve, so too must the regulatory environment in which the 

markets operate. If it does, we will continue to protect investors, transparently set 

prices for the stocks of our listed companies, and support our economy through highly efficient capital formation and job creation. All of our employees, including our 

CEO work hard to deliver a dependable, fair and safe environment for investors and 

to fuel the U.S. economy. We look forward to working with this Committee. Thank 

you for your invitation to testify. I look forward to your questions. 

PREPARED STATEMENT OF JOE RATTERMAN

CHIEF EXECUTIVE OFFICER, BATS GLOBAL MARKETS, INC.

JULY 8, 2014

Thank you and good morning. My name is Joe Ratterman, Chief Executive Officer 

of BATS Global Markets, Inc. (‘‘BATS’’), and one of the founding employees. I am 

pleased to be here and want to thank Chairman Johnson, Ranking Member Crapo, 

and the entire Banking Committee for inviting me to testify on matters related to 

the U.S. equity market structure. This Committee has played a leading role in the 

development of the securities laws over the past 80 years, and I appreciate the attention to these timely and important issues related to our capital markets. 

BATS was a startup less than a decade ago, formed in 2005 in response to a competitive void that emerged in the U.S. equity markets. The NYSE and NASDAQ had 

acquired the first generation of efficient, technology-oriented exchange competitors, 

namely Archipelago, Inet (which reflected the merger of Instinet and Island), and 

Brut. In the face of this exchange duopoly, BATS stepped into the competitive void, 

launching as a small alternative trading system (‘‘ATS’’) from a north Kansas City 

storefront in January 2006. In January of this year, we merged with Direct Edge, 

an innovative exchange operator that was similarly formed in 2005 to enhance competition among markets. 

BATS remains headquartered in the Kansas City area, and maintains offices in 

New York, New Jersey, and London. With approximately 300 employees globally, we 

compete vigorously every day in the United States and Europe to earn our customers’ business and trust. We have leveraged technology to significantly reduce 

execution costs for all investors and deliver innovative products and services to market participants. 


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1Mary Jo White, Chair, SEC, Enhancing our Equity Market Structure (speech given at Sandler O’Neill & Partners, L.P. Global Exchange and Brokerage Conference, New York, NY, June 

5, 2014). 2See Letter from George Sauter, Managing Director and Chief Investment Officer, Vanguard 

Group, Inc., to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, dated 

April 21, 2010.

I agree with the sentiments recently expressed by SEC Chair Mary Jo White, who 

said that our markets are ‘‘not broken, let alone rigged.’’1 Academic and empirical 

evidence overwhelmingly demonstrates that the automation of the market over the 

last decade or more has resulted in significant enhancements in market quality for 

long-term investors, whether retail or institutional. But like Chair White and her 

fellow commissioners, I recognize that our markets are not perfect; indeed, the 

search for perfection is a never-ending quest. As exchanges, we are not only competing market centers, but also regulators and, therefore, approach these issues 

with utmost seriousness. Because of this, I am particularly grateful to be here today 

and have the opportunity to share my views. 

I. Background 

In 1975, Congress amended the Exchange Act of 1934 (‘‘Act’’) to adopt Section 

11A, which was designed to facilitate the establishment of a national market system 

to link together the multiple individual markets that trade securities. Congress intended for the SEC to take advantage of opportunities created by advancements in 

technology to preserve and strengthen the securities markets. By leveraging technology, our national market system is designed to achieve the objectives of efficient, 

competitive, fair, and orderly markets that are in the public interest and protect investors. 

In response to this Congressional mandate, the SEC has adopted various rules 

since 1975 to further the objectives of the national market system, including the 

order handling rules in 1997, Regulation ATS in 1998, decimalization in 2000, and 

Regulation NMS in 2005. Many of the innovative structural characteristics of our 

market owe their existence to Congress’ 1975 amendments to the Act, and subsequent SEC rulemaking in furtherance of those amendments. 

Our national market system is premised on promoting fair competition among individual markets, while at the same time assuring that all of these markets are 

linked together in a unified system that promotes interaction among the orders of 

buyers and sellers. The national market system thereby incorporates two distinct 

types of competition—competition among individual markets and competition among 

individual orders—that together contribute to efficient markets. Vigorous competition among markets promotes more efficient and innovative trading services, while 

integrated competition among orders promotes more efficient pricing of individual 

stocks for all types of orders, large and small. Together, they produce markets that 

offer the greatest benefits for investors and listed companies. 

In adopting Regulation NMS, the SEC stated that its primary challenge in facilitating the establishment of the national market system has been to maintain the 

appropriate balance between fostering competition between markets and fostering 

competition between orders; mandates that at times come into conflict. The SEC further stated that it attempted to avoid the extremes of: (1) isolated markets that 

trade securities without regard to trading in other markets, and (2) a totally centralized system that loses the benefits of vigorous competition and innovation among 

individual markets. The SEC navigated these extremes by allowing market competition, while at the same time fostering order competition through the adoption of the 

order protection rule, which prohibits markets from trading without regard to the 

prices posted on other markets. 

As a result, today we have an equity marketplace that is widely considered to be 

the most liquid, transparent, efficient and competitive financial market in the world. 

Costs for long-term investors, both institutional and retail, in the U.S. equity marketplace are among the lowest globally and these gains in market quality have been 

noted by academics, institutional buy-side investors, and agency brokers:

• In April 2010, Vanguard noted that estimates of declining trading costs over the 

previous 10 to 15 years ranged from a reduction of 35 percent to more than 60 

percent and stated that Vanguard’s own experience was in line with that range. 

Reduced trading costs, as Vanguard noted, flow directly as a ‘‘substantial benefit to investors in the form of higher returns.’’2

• In June 2013, three economists, including former SEC Chief Economist Larry 

Harris, found a dramatic change in the spread for NYSE-listed and Nasdaq-listed stocks over the preceding 12 years. In particular, between 2001 and 2013, 


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3See Angel, James J., Lawrence E. Harris and Chester S. Spatt, ‘‘Equity Trading in the 

21stCentury: An Update’’ (June 21, 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstractlid=1584026. 4See BlackRock, ‘‘U.S. Equity Market Structure: An Investor Perspective’’ (April 2014). 5 ITS defines Implementation Shortfall cost as the difference, or slippage, between the arrival 

price and the execution price for a trade. 6See ITG, ‘‘Global Cost Review Q4/2013’’ (June 6, 2014), available at http://itg.com/marketing/ITGlGlobalCostReviewlQ42013l20140509.pdf; see also Speech by Chair Mary Jo 

White: Enhancing Our Equity Market Structure. (June 5, 2014)

the spread paid by investors had decreased from more than 6 cents to below 2 

cents for NYSE-listed stocks and from above 5 cents to below 3 cents for Nasdaqlisted stocks.3

• In April 2014, Blackrock noted the same positive trends in their assessment of 

market structure performance since 1998, stating that bid-ask spreads have 

narrowed significantly and that institutional trading costs have declined and 

are among the lowest in the world.4

• In June 2014, ITG’s Global Cost Review Report further confirmed the decline 

in institutional trading costs, noting that from Q3 2009 to Q4 2013, implementation shortfall 5 costs decreased from roughly 45 basis points to 40 basis points.

(This decline followed a drop from 63 basis points in Q3 2003).6

Further, our market is able to handle volume and message traffic considered astronomical only a few decades ago, and the efficient operation of this market 

throughout the recent financial crisis and resulting volatility should serve as a reminder of the systemic risks that have been reduced as a result. 

Despite the overall high quality of our equity capital markets today, we must remain focused on identifying areas in which market quality and stability can be improved and regulators should consider responsible, data-driven regulatory action 

where appropriate. In this regard, we are encouraged by the SEC’s plan for a continuous and comprehensive review of the state of our market structure, and we appreciate the Banking Committee’s oversight. Such a review is timely because the 

aforementioned changes, particularly those following from the implementation of 

Regulation NMS in 2007, reflect a relatively recent and dramatic evolution in the 

manner in which securities trade. 

We should always strive to improve market quality, but should act only when we 

can be sure to avoid disrupting or reversing the substantial improvements in market quality we have experienced. While it has been widely recognized that retail investors have benefited the most from improvements in market quality over the last 

decade, I also believe institutional investors have experienced measurable benefits 

in the form of the above-referenced reductions in implementation shortfall costs. 

That said, I recognize that institutional investors continue to face challenges in executing large orders with a minimum of market impact. To be sure, finding a ‘‘natural’’ investor or liquidity provider willing to take the opposite side of a well-informed institutional investor’s order is a complex problem to solve regardless of 

market structure. 

Policymakers looking to reform our equity market structure must be cognizant of 

the concern that enacting rules that tip the scales for or against particular market 

constituents runs the very real risk of negating benefits currently delivered by our 

equity markets. Therefore, we advocate for responsible and carefully crafted changes 

supported by reliable data and perhaps even tested through pilot programs of sufficient duration to obtain data that adequately demonstrates the impact of the 

change. 

II. Speed of Today’s Markets 

There has been much commentary of late regarding the speed at which our equity 

market operates, and the benefits and risks associated with that speed. It is certainly true that today’s fully automated equity market is capable of processing order 

messages in timeframes that were unthinkable a decade ago. These gains in speed 

(or reductions in latency) have been made possible by advances in the computer 

hardware and software that underpin the equity market structure, as well as innovations by industry participants. 

The increasing speed at which equity trading occurs is but another dimension of 

how technology has improved the efficiency of our markets. Whether trading as an 

investor or acting as a market maker, time equals risk, and execution speed reduces 

that risk and the costs associated with it. This risk mitigation benefits all investors 

in the form of a lower risk premium, expressed as tighter spreads and lower overall 

transaction costs. Importantly, these benefits are quantifiable; as noted above, the 


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evidence shows a market that has experienced declining spreads for retail investors 

and declining implementation shortfall costs for institutional investors. 

Long-term investors are the primary beneficiaries of this risk mitigation through 

the narrowing of spreads. Both institutional and retail investors have access to tools 

that leverage the benefits of these improvements in speed. For example, institutional investors can and regularly do utilize trading algorithms programmed on brokers’ servers co-located within market centers. And, retail investors accessing realtime market data can act on trading decisions from their brokers’ Web sites and receive an execution report within a matter of seconds or even less, at a price at or 

better than the national best bid and offer (‘‘NBBO’’) prevailing at the moment the 

trade was placed, and with a commission rate of less than $10. This result is widely 

taken for granted today, but it was not that long ago when retail orders were processed much slower, with much less certainty of outcome, and at commission rates 

considerably higher than those today. 

It is not readily apparent why regulators should be particularly concerned about 

the extent to which firms are willing to pay for tools that help them achieve increased speed. It stands to reason that if the marginal cost of gaining additional 

speed exceeds the marginal benefit, firms will decide not to spend the money seeking that gain. As a practical matter, it is worth noting that we are probably reaching that point now. 

That said, there are risks and concerns associated with the speed of trading that 

warrant managing and addressing. Differentials in speed associated with the dissemination of market data may create perceptions of unfairness. Because of the 

flexibility of our national market system for market data, it is in many ways the 

fairest in the world. With side-by-side competition between a nationally consolidated 

feed and direct feeds from multiple exchanges, market participants pay only for the 

content and related infrastructure they actually need. Given that quote and trade 

information serve multiple needs ranging from real-time trading data to back-office 

reference information to news and information, providing multiple products through 

multiple sources meets the needs of market participants in a diverse, constructive, 

and efficient fashion. 

Nonetheless, there remain perceptions that differences in content and speed of 

dissemination confer unwarranted advantages on select market participants. And 

perceptions affect investor confidence about the integrity of the markets, so I take 

them very seriously. While Rule 603 of Regulation NMS dictates that exchanges do 

not release market data to private recipients before disseminating that data to the 

public securities information processor (‘‘SIP’’), differences in content and downstream technologies can still create a perception of unfairness. 

To address this perception issue most effectively, exchanges should continue to 

strive to make the dissemination of consolidated data through the SIPs as fast as 

possible, and should consider including aggregated depth-of-book data per exchange 

based on industry demands. 

Perceptions of unfairness are also present with respect to the market data exchanges use in their matching engines and routing infrastructure to calculate the 

NBBO. Some have suggested that exchanges using the SIP data to calculate the 

NBBO provide unfair opportunities to sophisticated traders engaging in risk-free latency arbitrage. Exchanges historically have used SIP data to determine the NBBO 

with the changeover to direct feeds being a relatively recent phenomenon. While 

that change yields an optimization in the speed with which quotes can update, there 

are reasons why that optimization is not as significant at an exchange as the difference in the speed between the SIPs and direct feeds. Specifically, this is because 

exchanges accept intermarket sweep orders (‘‘ISOs’’), which can display on an exchange at a price from the SIP data that appears to lock another exchange’s quote. 

The ISO designation on an order tells the exchange that the sender has either sent 

an order to execute against the locking quote or that the sender has a faster view 

of the market and knows that the locking quote no longer exists. Therefore, when 

SIP data is augmented by ISOs, exchanges are able to update the quote in their 

matching engines nearly as fast as direct feeds update. 

III. Conflicts of Interest 

Certain practices surrounding broker agency relationships, such as payment for 

order flow and soft dollar arrangements, as well as exchange fee structures create 

the potential for conflicts of interest; however, I believe these potential conflicts of 

interest can be and generally are managed by vigorous oversight within broker-dealers, and can be supplemented through additional transparency as well as oversight 

and enforcement by FINRA and the SEC. For example, I believe institutional investors could benefit from additional transparency about the ATSs to which their brokers route orders. I support the voluntary initiatives of some ATSs to make public 


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7 Exchange Act Release No. 43590 (Nov. 17, 2000) (Rules 605 and 606 were originally adopted 

as Rules 11Ac1–5 and 11Ac1–6, respectively, under the Exchange Act). 

their Form ATS, and additional steps could be considered to require ATSs to provide 

customers with their rules of operation, which would include order types, eligible 

participant and participant tiers, all forms of data feed products, and order-routing 

logic and eligible routing venues. With this information, institutional investors 

would be better positioned to determine which trading venues best meet their trading needs, and compare disparate broker product and service offerings. 

Moreover, I support reviewing current SEC rules designed to provide transparency into execution quality and broker order routing practices. In particular, 

Rules 605 and 606 of Regulation NMS require execution venues to periodically publish certain aggregate data about execution quality and require brokers to publish 

periodic reports of the top 10 trading venues to which customer orders were routed 

for execution over the period, including a discussion of any material relationships 

the broker has with each venue. Publication of this data has helped better inform 

investors about how their orders are handled. 

Nonetheless, these rules were adopted nearly 15 years ago 7 and the market has 

evolved significantly enough to warrant re-examining whether additional transparency could be provided that would benefit investors. For example, advances in 

technology now permit significant market events to occur in millisecond timeframes, 

and audit trails are granular enough to capture that activity. However, the current 

requirements of Rule 605 effectively allow a trading venue to measure the quality 

of a particular execution by reference to any national best bid or offer in effect within the 1-second period that such order was executed. Given the frequency of quote 

updates in actively traded securities within any single second, compliance with this 

requirement may not in all cases provide adequate transparency into a particular 

venue’s true execution quality. In addition, the scope of Rule 605 could be extended 

to cover broker-dealers, and not just market centers. Transparency could further be 

improved by amending Rule 606 to require disclosure about the routing of institutional orders, as well as a separate disclosure regarding the routing of marketable 

and nonmarketable orders. 

Some have suggested that exchange fee structures may be the source of unmanageable conflicts of interest associated with order routing decisions. The dominant 

exchange pricing mechanism over the last decade has been the so-called makertaker model, which generally encourages liquidity makers to take the risk of exposing an order in the marketplace by paying them a small rebate, if and only when 

their order is executed. Under Regulation NMS, exchange fees to access—or 

‘‘take’’—liquidity are capped at 30 cents per 100 shares, which effectively serves as 

a cap on the rebate that can be paid to liquidity makers. 

These rebates provide an effective incentive to encourage liquidity makers to post 

tight bid-offer spreads, which benefit all investors. I believe restricting incentives to 

provide liquidity could be counter-productive. Whether it is banning the current 

maker-taker fee structure, limiting payment for order flow generally, or other attempts to alter the fundamental economics of trading, price controls are a blunt instrument likely to cause disruptions and consequences that are unforeseeable and 

potentially detrimental to all types of investors. I am concerned that additional pricing restrictions could drive significantly more volume to dark venues or order types, 

make the compensation brokers receive for their liquidity far less transparent, and 

widen the displayed bid-ask spread in a manner that effectively taxes all investors. 

Efforts to avoid these potential consequences could lead to a set of regulations so 

complex that the root cause of future behaviors could never fully be known. 

IV. Venue Complexity—How Many Is Too Many? 

Competition and automation have combined to dramatically improve the market’s 

trading infrastructure. The low commissions, diversity of products and ability to 

handle large order and trading volumes are a direct result of these forces. Regulation ATS and Regulation NMS provided a framework for this competition to thrive, 

and maintaining a system whereby new entrants can prove their value to the market is essential. At the same time, we need to reconsider where regulation may artificially subsidize competition or encourage complexity that does not address a market need. 

In particular, all exchanges are given a significant competitive advantage regardless of their size by virtue of the order protection rule under Regulation NMS. While 

this was necessary in an era where legacy exchanges routinely ignored their competitors, current practices have reduced the need for regulatory protections of smaller venues. Recent events provide evidence that market forces ultimately can correct 

for venues that add only marginal value; the existing concentration of exchanges 


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8See e.g., Gregg E. Berman, Associate Director, Division of Trading and Markets, SEC, What 

Drives Complexity and Speed of our Markets (speech given at the North American Trading Architecture Summit, New York, NY, April 15, 2014). 

among scale providers—including BATS—means that in some cases the marginal 

operating cost for a ‘‘new’’ exchange is near zero. The cost and complexity of 

connectivity to a small venue for market participants, however, can be substantial. 

Accordingly, Regulation NMS should be revised so that, until an exchange 

achieves greater than a de minimis level of market share, perhaps 1 percent, in any 

rolling 3-month period:

• They should no longer be protected under the order protection rule; and

• They should not share in/receive any NMS plan market data revenue.

The combination of these two provisions would: (a) potentially reduce client costs 

in connecting to small exchanges, giving them the flexibility to route around them 

should they so choose, while still protecting displayed limit orders on all venues of 

meaningful size; and (b) take away market data revenue that may be the basis for 

the continued operation of marginal venues. 

V. Order Type Complexity—Drivers and Solutions 

While I am sensitive to concerns about the complexity of our markets, the vast 

majority of market functionality exists because it meets the needs of a diverse group 

of market participants.8 Functionality becomes counter-productive when it exists 

solely to address arcane or trivial requirements, rather than addressing important 

economic, operational or regulatory needs of market participants. This is especially 

true when the level of complexity is high in relation to the supposed benefits. 

One such driver of excessive exchange complexity is rooted in an often-overlooked 

provision of Regulation NMS—the ban on locked markets. Price-sliding logic and 

other order types such as ISOs often stem directly from this discrete prohibition. 

Given that existing regulatory guidance already effectively prohibits locking a market for the sole purpose of avoiding or reducing fees, revisiting regulatory obligations in this regard could be a simple yet powerful way to materially reduce the 

complexity of exchange operations. 

VI. Systemic Complexity—Strengthening Critical Infrastructure 

Technology has undoubtedly transformed our market for the better, but it has 

also created new challenges and risks. Even in a market with fewer exchanges and 

fewer order types, the risk of IT or operational malfunctions will remain. Since 

2010, the SEC and the industry have worked constructively to improve coordination 

and systemic risk management, from the implementation of Limit Up/Limit Down 

execution price bands to the enactment of the Market Access Rule to the harmonization of the standards for clearly erroneous trades. Taken together, these initiatives represent significant progress with respect to enhancing market stability. 

This progress is measurable. According to the Financial Information Forum, exchange system issues as measured by self-help declarations have dropped more than 

80 percent since 2007 and 2008, the first years after Regulation NMS. In addition, 

the number of clearly erroneous executions across the industry has dropped dramatically over the last few years. For example, clearly erroneous events reported on 

the BATS BZX Exchange in 2014 is on pace to be approximately 66 percent lower 

than 2013 and 85 percent lower than the previous 5-year average. 

Further mitigating operational risk requires continuous vigilance and a flexible 

framework. More can and needs to be done with respect to critical market infrastructure as a whole, and by the individual institutions that actively participate in 

the markets. In particular, a well vetted and properly scaled Regulation SCI should 

be finalized and adopted with respect to exchanges, SIPs and clearance and settlement facilities. While the SEC should work with these future Regulation SCI entities to refine its requirements in a manner that will achieve the best outcomes, completing this regulation should be prioritized. I am encouraged by Chair White’s recent comments on her desire to finalize the proposal. This would strengthen market 

infrastructure truly deemed to be ‘‘critical’’ around industry best practices and help 

better manage the complexity that competition brings where it is needed. 

VII. Conclusion 

While our current equity market structure is certainly not perfect, I believe that 

it is by far the fairest, most efficient and most liquid market in the world. And because it is a complex ecosystem, policymakers need to be mindful of the potential 

unintended consequences of sudden, significant changes. I fully support the SEC 

conducting a deliberate, data-driven study of the quality of our market structure 


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and advocate for reforms where that analysis supports the likelihood for market 

quality improvement. 

Thank you for the opportunity to appear before you today. I would be happy to 

answer any of your questions.


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RESPONSE TO WRITTEN QUESTION OF SENATOR BROWN 

FROM JOE RATTERMAN 

Q.1. Since at least 2012, former high-frequency traders have been 

expressing concerns about exotic order types that technically comply with the SEC’s regulations, but which allow high-frequency 

traders to jump the queue and exploit price advantages that come 

from latencies. 

NYSE announced in May that it was eliminating 15 order types. 

However, NYSE continues to allow high-frequency traders to use 

some predatory order types, like ‘‘Post No Preference Blind,’’ in 

which high-frequency traders’ bids to remain blocked from the market and then jump to the top of the queue. 

Nasdaq has a similar order type called ‘‘Post Only with Automatic Re-Entry,’’ DirectEdge has ‘‘Hide Not Slide,’’ and BATS offers 

‘‘Only Post Only.’’

When I asked Mr. Sprecher about these order types at the hearing, he said:

[A]s you say, I’m uncomfortable with having all these order types. I don’t 

understand why we have them. And I’ve started unilaterally eliminating 

them. The problem that we have is that orders today are—decisions on 

where orders go are not made by humans. They’re made by computers that 

are so-called smart order routers. And many of these order types exist to 

attract the orders. And I’m trying to balance cleaning up my own house—

I live in a glass house, and I’m trying to clean it up before I criticize others. 

At the same time. I can’t make the New York Stock Exchange go to zero. 

It would be bad for this country for the New York Stock Exchange to no 

longer have trading activity. So, it’s why I’ve been outspoken. I hope that 

other exchange leaders will follow my lead. I’d like to get us all working 

together to eliminate these types.

I’d be happy if we can do it as a private sector initiative. I’d be happy if 

the SEC ordered us to get rid of them. I’d be happy if Congress took action. 

Any way we can reduce them, I’d be happy . . .

I can’t take the New York Stock Exchange to 1 percent, but I appreciate 

your allowing me to talk about this publicly to you all and to the camera 

and a microphone. Because I think that I need to put pressure on all my 

colleagues to follow my lead.

My question is this: will you work with Mr. Sprecher to eliminate 

predatory order types from your exchanges, including the specific 

order types identified above?

A.1. My perspective is that an order type should satisfy one of two 

primary objectives, and if it doesn’t, then and only then should it 

be eliminated from the market. 

The first primary objective would be to allow a member to maintain compliance with the current regulatory environment. Rather 

than remove these order types, we should re-examine the regulatory requirement that drove the development of the order type to 

begin with. 

The second primary objective of an order type would be to allow 

a member to fully express their intentions for the handling of their 

order in electronic form, so that the exchange can make electronic 


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decisions during the life of that order that conform to the member’s 

original intentions. Much of the order type functionality that exists 

is simply electronic ‘‘check boxes’’ for how the exchange needs to 

manage the order at each decision point during the order’s lifetime. 

Order types that don’t meet one of these two criteria should be 

considered for retirement, and that’s how I have historically 

thought about reducing the complexity from within our own platform’s software code base. 

I don’t believe that we have any order types that would be considered predatory, but if we ever determined that an order type on 

our system had been used in a predatory way, we would first seek 

an enforcement action against the firm who employed the predatory approach, and we would review whether the order type inherently attracted predatory behavior, and if so, we would take actions 

to eliminate the predatory nature of the order type or even the 

order type itself.


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