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89–752 PDF 2014

S. Hrg. 113–413 

CONFLICTS OF INTEREST, INVESTOR LOSS 

OF CONFIDENCE, AND HIGH SPEED 

TRADING IN U.S. STOCK MARKETS 

HEARING 

BEFORE THE

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JUNE 17, 2014 

Available via the World Wide Web: http://www.fdsys.gov 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

THOMAS R. CARPER, Delaware Chairman 

CARL LEVIN, Michigan 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

MARK BEGICH, Alaska 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

RICHARD J. KESSLER, Staff Director 

KEITH B. ASHDOWN, Minority Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

LAUREN M. CORCORAN, Hearing Clerk 

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 

CARL LEVIN, Michigan Chairman 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

KELLY AYOTTE, New Hampshire 

ELISE J. BEAN, Staff Director and Chief Counsel 

DANIEL J. GOSHORN, Counsel 

HENRY J. KERNER, Minority Staff Director and Chief Counsel 

JACK THORLIN, Counsel to the Minority 

BRAD M. PATOUT, Senior Advisor to the Minority 

SCOTT WITTMANN, Research Assistant to the Minority 

MARY D. ROBERTSON, Chief Clerk 
(III) 

C O N T E N T S 

Opening statements: Page 

Senator Levin .................................................................................................... 1 

Senator McCain ................................................................................................ 4 

Senator Johnson ............................................................................................... 6 

Prepared statements: 

Senator Levin .................................................................................................... 55 

Senator McCain ................................................................................................ 59 

WITNESSES 

TUESDAY, JUNE 17, 2014 

Robert H. Battalio, Professor of Finance, Mendoza College of Business, University of Notre Dame, Notre Dame, Indiana .................................................... 7 

Bradley Katsuyama, President and Chief Executive Officer, IEX Group, Inc., 

New York, New York ........................................................................................... 9 

Thomas W. Farley, President, New York Stock Exchange, New York, New 

York ....................................................................................................................... 31 

Joseph P. Ratterman, Chief Executive Officer, BATS Global Markets, Inc., 

Lenexa, Kansas .................................................................................................... 33 

Joseph P. Brennan, Principal and Head of Global Equity Index Group, The 

Vanguard Group, Inc., Malvern, Pennsylvania ................................................. 35 

Steven Quick, Senior Vice President, Trader Group, TD Ameritrade, Omaha, 

Nebraska ............................................................................................................... 36 

ALPHABETICAL LIST OF WITNESSES

Battalio, Robert H.: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 61 

Brennan, Joseph P.: 

Testimony .......................................................................................................... 35 

Prepared statement .......................................................................................... 87 

Farley, Thomas W.: 

Testimony .......................................................................................................... 31 

Prepared statement .......................................................................................... 77 

Katsuyama, Bradley: 

Testimony .......................................................................................................... 9 

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

Quick, Steven: 

Testimony .......................................................................................................... 36 

Prepared statement .......................................................................................... 93 

Ratterman, Joseph P.: 

Testimony .......................................................................................................... 33 

Prepared statement .......................................................................................... 79 
Page

IV 

APPENDIX 

EXHIBIT LIST 

1.a. Maker-Taker Conflict, chart prepared by the Permanent Subcommittee 

on Investigations ............................................................................................ 102 

b. Payment for Order Flow Conflict, chart prepared by the Permanent 

Subcommittee on Investigations .................................................................. 103 

c. Conflict for Brokers Trading for Institutional Investors, chart prepared 

by the Permanent Subcommittee on Investigations ................................... 104 

d. Conflicts for Retail Brokers Trading for Retail Investors, chart prepared 

by the Permanent Subcommittee on Investigations ................................... 105 

2. Letter from the Securities and Exchange Commission to the Senate Permanent Subcommittee on Investigations, dated June 18, 2014, regarding the 

impact of high-frequency trading on the efficiency, stability, and integrity 

of the U.S. capital markets ................................................................................ 106 

3. Letter from the Securities and Exchange Commission to the Senate Permanent Subcommittee on Investigations, dated August 5, 2014, regarding 

conflicts of interest in the U.S. equities markets, including ‘‘maker-taker’’ 

fee schedules and payment for order flow by wholesale brokers to retail. .... 123 

4. Letter from TD Ameritrade, dated June 19, 2014, clarifying June 17, 

2014 testimony of Steven Quick. ....................................................................... 125 

5. Response of Steven Quick, TD Ameritrade, Inc., to supplemental questions 

for the record of Senator Carl Levin ................................................................. 126 

6. Response of Joe Ratterman, BATS Global Markets, Inc., to supplemental 

questions for the record of Senator Carl Levin ................................................ 127 

7. Response of Thomas Farley, NYSE Group, to supplemental questions for 

the record of Senator Carl Levin ....................................................................... 128 

8. Response of Joseph Brennan, The Vanguard Group, Inc., to supplemental 

questions for the record of Senator Carl Levin ................................................ 129 
(1) 

CONFLICTS OF INTEREST, INVESTOR LOSS 

OF CONFIDENCE, AND HIGH SPEED 

TRADING IN U.S. STOCK MARKETS 

TUESDAY, JUNE 17, 2014 

U.S. SENATE,

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS,

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 9:35 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Carl Levin, Chairman 

of the Subcommittee, presiding. 

Present: Senators Levin, McCain, and Johnson. 

Staff present: Elise J. Bean, Staff Director and Chief Counsel; 

Mary D. Robertson, Chief Clerk; Daniel J. Goshorn, Senior Counsel; Joseph Bryan, Robert Heckert, and Timothy Everett (Sen. 

Levin); Adam Henderson, Professional Staff Member; Henry J. 

Kerner, Staff Director and Chief Counsel to the Minority; Jack 

Thorlin, Counsel to the Minority; Brad M. Patout, Senior Advisor 

to the Minority; Scott Wittmann, Research Assistant to the Minority; John Lin, Law Clerk to the Minority; Joel Churches, Detailee 

(IRS); Admad Sarsour, Detailee (FDIC); Jacob Rogers, Law Clerk; 

Rebecca Pskowski, Law Clerk; Michael Avi-Yonah, Intern; Amy 

Dreisiger, Law Clerk; Owen Dunn, Law Clerk; Josh Katz and Richard Drucker (Sen. Levin); Ritika Rodrigues and Meris Petek (Sen. 

Johnson); and Myles Matteson (Sen. Ayotte). 

OPENING STATEMENT OF SENATOR LEVIN 

Senator LEVIN. Good morning, everybody. Most Americans’ image 

of the U.S. stock market is shaped by a single room: the trading 

floor of the New York Stock Exchange, where traders await a ceremonial bell to kick off the day’s activity, then trade shares worth 

millions on scraps of paper. 

In reality, most shares are traded not on a floor in Manhattan, 

but in racks of computer servers in New Jersey. Trades happen not 

at the speed of a human scribbling on paper, but in the milliseconds it takes for an order to travel through fiberoptic cables. 

And, increasingly, the money made on stock markets comes not 

from thoroughly assessing companies for their investment potential, but from exploiting infinitesimal advantages at unfathomable 

speeds, earning billions off price differences measured in pennies. 

We are in the era of high-speed trading. I am troubled, as are 

many, by some of its hallmarks. It is an era of market instability, 
2 

as we saw in the 2010 ‘‘flash crash,’’ which this Subcommittee and 

the Senate Banking Committee explored in a joint hearing, and in 

several market disruptions since that flash crash. It is an era in 

which stock market players buy the right to locate their trading 

computers closer and closer to the computers of stock exchanges— 

conferring a minuscule speed advantage yielding massive profits. It 

is an era in which millions of trade orders are placed, and then 

canceled, in a single second, raising the question of whether much 

of what we call the market is, in fact, an illusion. 

Many, including this Senator, question whether the rise of highspeed trading is, overall, a good thing for markets and investors. 

But without question, this era has seen a rise of conflicts of interest. These conflicts will be my focus today. Other Senators may 

focus on this or other aspects of high-speed trading. 

New technologies should not erase enduring values. Financial 

markets cannot survive on technology alone. They require a much 

older concept: trust. And trust is eroding. Conflicts of interest damage investors and markets—first, by depriving investors of the certainty that brokers are placing the interests of their clients first 

and foremost; and, second, by feeding a growing belief that the 

markets are simply not fair. 

In fact, polling shows that roughly two-thirds of Americans believe the stock market unfairly benefits some at the expense of others. This distrust may be a factor in the fact that just over half of 

Americans, according to a Gallup survey earlier this year, own 

stock or mutual funds, which is down from more than two-thirds 

of Americans who owned stock or mutual funds in 2002. That lack 

of faith—if allowed to fester and grow—will undermine a very important public purpose of stock markets: to efficiently raise capital 

so that businesses may grow, create new jobs, and add to America’s 

prosperity. 

In previous hearings and investigations, this Subcommittee has 

shown that our financial markets have become plagued by conflicts 

of interest. We have uncovered investment banks willing to create 

securities based on junk assets, tout them to their clients, and then 

bet against those same securities, making a fortune at the expense 

of their clients. We have seen credit rating agencies assign artificially high ratings to securities in order to keep or gain business. 

Now, with that history in mind, those who argue that the conflicts 

we will explore at this hearing are manageable or acceptable have 

a mighty high burden of proof. 

What seems to your average investor to be a simple stock market 

trade is usually a complicated series of transactions involving multiple parties, complex technology, and an ever-increasing number of 

order types and payment arrangements. There are retail brokers, 

like the ones found in Main Street offices across the country and 

on TV advertisements. There are wholesale brokers who buy orders 

from retail brokers. And there are dozens of trading venues where 

shares are bought and sold. Most Americans know the New York 

Stock Exchange, but there are now 11 public exchanges, plus more 

than 40 alternative trading venues including ‘‘dark pools,’’ which 

are essentially private exchanges run by financial institutions. 

As that complex structure has emerged, so have a number of conflicts of interest. I will focus on two. The first conflict occurs when 
3 

1The chart titled ‘‘Payment for Order Flow Conflict,’’ appears in the Appendix on page 103. 

2The chart titled ‘‘Maker-Taker Conflict,’’ appears in the Appendix on page 102. 

a retail broker chooses a wholesale broker to execute trades. The 

second occurs when a broker, acting on behalf of either a retail client or an institutional investor that manages pension funds and retirement accounts, chooses a trading venue, often a public exchange, to execute a trade. At both of these decision points, the 

party making the decision should only be influenced by the best interest of the investor. That is what ethics demands, and it is what 

the law requires. 

But there is another factor in play. At both decision points, the 

current structure gives brokers an incentive to place their own interests ahead of the interests of their clients. And here is how. 

The first conflict, which is illustrated in that chart,1 occurs when 

retail brokers receive payments from wholesale brokers for their orders. This money, known as ‘‘payment for order flow,’’ can add up 

to untold millions, and almost every retail broker keeps these payments rather than passing them on to clients. The reasons wholesale brokers are willing to pay for order flow are complex, but one 

big one is that wholesale brokers can fill many of those orders out 

of their own inventory and profit from the trade—a practice known 

as ‘‘internalizing.’’ 

The second conflict, shown on the second chart,2 arises when a 

broker decides to use a public trading venue and then chooses 

which venue it will send orders to for execution. Under what is 

known as the ‘‘maker-taker’’ arrangement, there is an incentive for 

the broker to choose the trading venue based on the broker’s financial interest, rather than the client’s. 

Now, ‘‘maker-taker’’ can be complicated, but here is a simplified 

explanation. When a broker makes an offer on an exchange to buy 

or sell a stock at a certain price, the broker is classified as a 

‘‘maker,’’ and most exchanges will pay the broker a rebate when 

that offer to buy or sell is accepted. A broker who accepts a maker’s 

offer to buy or sell is called a ‘‘taker’’ and will generally pay a fee 

to the trading venue. The important thing to remember is that brokers, by maximizing maker rebates and by avoiding taker fees, can 

add millions of dollars to their bottom line, giving them a powerful 

incentive to send the order to the trading venue that is in their 

best interest even if it is not in their client’s best interest. 

It is significant that earlier this year, speculation that regulators 

were considering restrictions on payment for order flow sent shares 

of some brokerage firms significantly lower. 

Obviously, there is a lot of money at stake in preserving these 

conflicts of interest. 

Even if firms disclose these payments, disclosure does not excuse 

them from their legal and ethical obligations to clients. Their legal 

obligation is to provide clients with what is known as ‘‘best execution.’’ Whether they are meeting that obligation is a subjective 

judgment. The outcome of this subjective judgment affects the way 

tens of millions of trades are executed. 

Now, some who profit from these payments argue that seeking 

this revenue does not interfere with their obligation to seek best 

execution. However, one of our witnesses today, Professor Robert 
4 

Battalio of the University of Notre Dame, has done research indicating that when, given a choice, four leading retail brokers send 

their orders to the markets offering the biggest rebates at every opportunity. The research further suggests that exchanges offering 

the highest rebates do not, in fact, offer the best execution for clients. These brokers argue that they can pocket these rebates while 

still meeting their obligation to provide clients with best execution. 

So while they make a subjective judgment as to which trading 

venue provides best execution, on tens of millions of trades a year, 

that subjective judgment always just happens to also result in the 

biggest payment to brokers. I find it hard to believe that this is a 

coincidence. 

Many market participants are worried about the conflicts of interest embedded in the current market structure. In addition to 

Professor Battalio, today’s first panel will include Bradley 

Katsuyama, the president and CEO of IEX and a prominent Wall 

Street advocate for market reform. Our second panel will include 

four witnesses. They are Thomas W. Farley of the New York Stock 

Exchange, whose corporate owners have described conflicts as having a ‘‘corrosive impact’’ on stock markets. The next person on the 

second panel is Joseph Ratterman of BATS Global Markets, which 

operates exchanges that compete with the New York Stock Exchange and has a different view. The third witness on the second 

panel is Joseph Brennan of Vanguard Group, a major mutual fund 

company that has expressed concerns about these conflicts. And the 

fourth witness on the second panel is Steven Quirk of TD 

Ameritrade, a retail broker that derives significant revenue from 

payment for order flow from wholesale brokers and rebates that 

they receive from exchanges. 

The duty of lawmakers and financial regulators is to look out for 

the interests of investors and the wider public. There is significant 

evidence that these conflicts can damage retirement savings, pension holdings, and other investments on which Americans rely. And 

even Americans without a single share of stock or a mutual fund 

account have something at stake because stock markets exist to 

foster investment, growth, and job creation. Conflicts of interest 

jeopardize that vital function. 

Americans do not shy from innovation or technology; indeed, we 

embrace them. But Americans are understandably suspicious when 

technology can be turned against them and their families’ financial 

interests. They are rightly concerned when technology and innovation are used to undermine basic, enduring principles such as trust 

and duty to a client. Our goal is to advance the protection of investors and our free markets by promoting those enduring values. 

I want to thank Senator McCain and his staff for their close cooperation in this matter, as has always been the case in all matters. Senator McCain. 

OPENING STATEMENT OF SENATOR McCAIN 

Senator MCCAIN. Thank you very much, Mr. Chairman, and I 

think this is a very important hearing, and I appreciate the hard 

work that you and your excellent staff have done on it. And I want 

to thank the witnesses for being here today. 
5 

When Michael Lewis’ book ‘‘Flash Boys’’ came out, the public 

knew very little about high-frequency trading. Important questions 

were raised: Is the stock market ‘‘rigged’’ by unethical high-speed 

traders with faster access to market information, advanced technology, and sophisticated trading algorithms? Is high-frequency 

trading adding costs for other traders without contributing any real 

value to the market? Will stock markets face another flash crash 

like in 2010 when the Dow Jones temporarily lost $1 trillion in 

market value in 20 minutes? 

These concerns about high-frequency trading have fueled suspicions that Wall Street may well have become the ultimate insiders’ game, where the average investor can no longer meaningfully 

participate. Consumers see firms that can make trades in fractions 

of a second using cutting-edge technology and wonder if the stock 

exchanges are still a place where their interests matter. Hopefully, 

this hearing will shed light on the high-frequency trading practices 

used on Wall Street and help restore confidence in our financial 

system. 

The Subcommittee interviewed many industry participants, academic researchers, and key financial regulators. While the problems facing the market are complex, we can address them with a 

few commonsense solutions. For example, one of the most predatory high-frequency trading practices depends on the unintended 

consequences of the SEC’s Regulation National Market System, or 

Reg NMS. That regulation essentially mandated that investment 

firms must buy or sell stocks at the best price available. While that 

might sound like a reasonable requirement, high-frequency trading 

firms can take advantage of the rule by putting out offers to buy 

or sell small amounts of stock at attractive prices. When a large 

investor, seeking to make a big order, accepts the high-frequency 

trading firm’s offer because it is the best price available, the highfrequency trader can predict that the large investor will have to go 

to another exchange to purchase the rest of his order. The high-frequency trader can then race ahead of that investor to the other exchanges, buy up all available shares, and sell them to the large investor at a higher price. Changing Reg NMS so that investment 

firms are no longer legally required to take the high-frequency 

traders’ bait is an easy, clear first step to cleaning up the worst 

high-frequency trading practices. 

Another key tactic used by high-frequency trading firms is co-location. This practice involves trading firms literally renting space 

for their computers in the same room as the computers that run 

the stock exchanges so that they can receive market information directly from the exchanges’ computers as fast as possible. The investors that do not buy this direct connection to the exchanges receive 

market data via a government-established system using out-of-date 

technology called the Securities Information Processor that compiles market data much more slowly. But as experts told the Subcommittee, there is no reason why public data feeds like the Securities Information Processor cannot be improved so that they are 

effectively as fast as private data feeds acquired through co-location. Updating the technology in the Securities Information Processor is another helpful measure that can be quickly adopted to 

shore up consumer confidence in the market. 
6 

In addition to high-frequency trading, ‘‘Flash Boys’’ also described how stock exchanges often pay rebates, as Senator Levin 

pointed out, to stockbrokers to entice them to trade on those exchanges. Those rebates, again, as Senator Levin pointed out, called 

‘‘maker-taker payments,’’ create an apparent conflict of interest for 

the stockbrokers, who must choose between sending their clients’ 

orders to exchanges offering a higher rebate or to exchanges that 

would fill the orders as quickly as possible. While many trading 

firms argue that those payments spur more market activity and reduce costs for consumers, some experts have argued that these benefits are minimal and that investors are harmed by their brokers’ 

conflict of interest. 

The Subcommittee has found that there is a lack of publicly 

available data regarding maker-taker payments, leading to difficulties in determining whether the payments actually have an adverse 

effect on the market. A logical first step would be to have more 

transparency in the payments, allowing neutral researchers to 

study the issue in greater detail. 

I hope this hearing will educate the public about high-frequency 

trading and broker conflicts of interest, and I hope that as a result 

of this hearing and the information that we will obtain from our 

expert witnesses that action will be taken to restore investor confidence, which has clearly been eroded in recent months, especially 

since the publication of Michael Lewis’ book. 

I thank you, Mr. Chairman. 

Senator LEVIN. Thank you very much. 

Senator Johnson. 

OPENING STATEMENT OF SENATOR JOHNSON 

Senator JOHNSON. Thank you, Mr. Chairman. I also want to 

thank you for holding this hearing. It was very interesting getting 

prepared for it. 

Both Chairman Levin and Senator McCain mentioned the word 

‘‘complex,’’ and there is no doubt about it. What is happening in 

terms of trading is highly complex. 

From my standpoint, having been an individual investor, I think 

the primary solution is increased competition and transparency so 

that we really understand what is happening. But because it is 

complex, it is difficult to fully understand. I am hoping this hearing 

will really lay out the reality of the situation, and, again, as an individual investor who has bought stocks for literally decades, the 

competition has increased in the marketplace. I used to pay hundreds of dollars to buy 100 shares of stock. Now I pay about $10. 

So I really do hope that this hearing conveys exactly what is happening in the marketplace, what benefits have come to consumers 

over the years, what dangers may be out there, but the bottom line 

is that this hearing should be about restoring confidence. I do not 

think it restores confidence if we try and create a state of fear and 

set up straw men in terms of the bogeymen out there trying to 

game the system. The best way to ensure confidence and to ensure 

best price, is through maximum competition and transparency in 

the marketplace. I am hoping that is certainly what this hearing 

reveals, and, again, I just want to thank all the witnesses. I am 

looking forward to the testimony. 
7 

1The prepared statement of Mr. Battalio appears in the Appendix on page 61. 

Senator LEVIN. Thank you, Senator Johnson. 

We will now call our first panel of witnesses for this morning’s 

hearing: Professor Robert Battalio, Professor of Finance at the 

Mendoza College of Business at the University of Notre Dame in 

Notre Dame, Indiana; and Bradley Katsuyama, President and CEO 

of the IEX Group in New York. 

I appreciate both of you being with us this morning, and we look 

forward to your testimony. And pursuant to Rule 6, all witnesses 

who testify before the Subcommittee are required to be sworn. So 

at this time, I would ask both of you to please stand and raise your 

right hand. Do you swear that the testimony you are about to give 

before this Subcommittee will be the truth, the whole truth, and 

nothing but the truth, so help you, God? 

Mr. BATTALIO. I do. 

Mr. KATSUYAMA. I do. 

Senator LEVIN. We will be using a timing system today. Please 

be aware that 1 minute before the red light comes on, you will see 

the light change from green to yellow, giving you an opportunity 

to conclude your remarks. All of your written testimony will be 

printed in the record in its entirety, and we would ask that you try 

to limit your oral testimony to 5 minutes. 

Professor Battalio, we will have you go first. Thank you again for 

coming today and for your work. 

TESTIMONY OF ROBERT H. BATTALIO,1 PROFESSOR OF 

FINANCE, MENDOZA COLLEGE OF BUSINESS, UNIVERSITY 

OF NOTRE DAME, NOTRE DAME, INDIANA 

Mr. BATTALIO. Good morning. Chairman Levin and Ranking 

Member McCain, thank you for inviting me to testify today. It is 

an honor to have the opportunity to present my views on conflicts 

of interest in U.S. equity markets to the Senate Permanent Subcommittee on Investigations. My expertise is the relationship between order flow inducements offered by dealers and exchanges 

and the quality of trade execution. 

Before discussing my current research with Shane Corwin and 

Robert Jennings, I would like to provide a bit of context. Orders 

used by retail investors can be broadly classified into two categories. 

Investors who want to trade quickly at the best available price 

use marketable orders. These orders demand or take liquidity from 

the market. Investors who are willing to buy or sell stock but not 

at the prices that are currently prevailing in the marketplace use 

nonmarketable or standing orders to express their trading interests. Nonmarketable orders do not immediately execute when they 

arrive in the market. Exchanges use electronic order books to keep 

track of their nonmarketable orders, and they typically use pricetime priority to determine which nonmarketable order trades when 

a marketable order arrives. The nonmarketable orders resting on 

the electronic books make or supply liquidity for other market participants. 

Several exchanges use make or liquidity rebates to attract nonmarketable orders. A make rebate is paid to an investor or her 
8 

broker when her nonmarketable order trades. To fund the make rebates, the same exchanges charge marketable orders a take fee 

when they trade with nonmarketable orders. As a result of competition, exchanges offering high make rebates also tend to charge 

high take fees, and those offering low make rebates tend to charge 

low take fees. 

The incentives created by the maker-taker fee structure suggest 

marketable orders will tend to be first routed to venues that have 

low take fees and, thus, low make rebates. As a result, nonmarketable orders on high-fee, high-rebate venues are likely to trade last 

at a given price and, thus, can miss out on profitable trading opportunities. All else equal, this suggests that the likelihood that nonmarketable orders trade is lowest on the exchanges with the high 

make rebates. 

NASD Notice to Members 01–22 states that brokers must take 

into account differences in the likelihood of execution when determining where to route nonmarketable orders and that brokers 

must not allow inducements to interfere with the duty of best execution. The conflict of interest associated with make-take fee schedules arises from the fact that most brokers do not pass fees and rebates directly through to their customers, but instead charge fixed 

commission rates that reflect fees, rebates, and other costs of doing 

business. 

Thus, while investors prefer that their orders be routed to the 

venue offering the highest possibility of trade, a broker may have 

an incentive to route orders to the venue offering the highest liquidity rebate. It may seem that economics and competition should 

align the incentives of a broker and its customers; however, this 

alignment of incentives is hampered by an important agency problem. Brokers that maximize rebates may be able to charge lower 

commissions. If investors choose brokers based primarily on commissions—perhaps because they lack the sophistication and/or the 

necessary information to evaluate limit order execution quality—it 

may be profit maximizing for brokers to focus on liquidity rebates 

rather than the likelihood of execution when deciding where to 

route their nonmarketable orders. Unfortunately, investors whose 

orders do not execute do not receive the benefit of the low commission. 

In our paper, we examine two issues. We begin by exploring 

whether make rebates appear to influence the routing decisions of 

retail brokers. We present evidence from SEC-mandated Rule 606 

filings that four popular retail brokers route nonmarketable orders 

in a manner that is consistent with the goal of maximizing make 

rebates. Our Rule 606 data are from the fourth quarter of 2012, 

but subsequent Rule 606 filings suggest these brokers have not significantly altered their routing of nonmarketable orders. 

After establishing that rebates appear to impact the order routing decisions of some brokers, we next analyzed the relationship 

between make rebates and several measures of execution quality, 

including the likelihood that and the conditions in which nonmarketable orders trade. Our analysis makes use of a proprietary 

data set of nonmarketable orders that represent about 1.5 percent 

of average daily volume and a publicly available data base that 

contains all trades and quotes. 
9 

1The prepared statement of Mr. Katsuyama appears in the Appendix on page 69. 

As hypothesized, we find that nonmarketable orders routed to 

venues with low make rebates are more likely to trade, trade faster, and suffer less adverse selection than nonmarketable orders 

routed to venues with high make rebates. Our results suggest that 

when deciding where to route nonmarketable orders, situations frequently arise in which brokers must decide whether to maximize 

the likelihood of an execution or to maximize make rebates. 

Thanks for the opportunity to discuss my research with Shane 

and Bob today. 

Senator LEVIN. Thank you very much, Professor Battalio. 

Mr. Katsuyama. 

TESTIMONY OF BRADLEY KATSUYAMA,1 PRESIDENT AND 

CHIEF EXECUTIVE OFFICER, IEX GROUP, INC., NEW YORK, 

NEW YORK 

Mr. KATSUYAMA. Good morning, Chairman Levin, Ranking Member McCain, Senators, staff, ladies and gentlemen. Thank you for 

the opportunity to participate in this hearing and share our 

thoughts on issues affecting the U.S. equity markets. My name is 

Brad Katsuyama, and I am the President and CEO of IEX Group. 

Since October 2013, IEX has been operating as an alternative 

trading system for U.S. equities, and we intend to pursue registration as a national securities exchange with the Securities and Exchange Commission later this year. 

IEX was founded on the premise of institutionalizing fairness in 

the market through the use of technology and by offering a balanced, simplified, and transparent market model. IEX believes 

strongly in a market’s responsibility to ensure just and equitable 

principles of trade as required by Section 6 of the Securities and 

Exchange Act of 1934. 

With that in mind, IEX deliberately sought to build a platform 

that would eliminate conflicts of interest in the operation of our 

market. Specifically, IEX is owned by a consortium of mutual 

funds, hedge funds, family offices, and individuals, but only has 

registered broker-dealers as trading participants. IEX does not pay 

rebates or provide any other payment for order flow, and as a result, we have a very limited number of order types. 

IEX has instituted a time buffer that applies to all of our trading 

participants to neutralize certain structural inefficiencies that we 

have discovered. IEX uses direct market data feeds from all U.S. 

exchanges rather than the slower SIP to price orders and trades in 

our market. And IEX was the first ATS to publicly publish our confidential form ATS in an effort to promote transparency. 

It is important to recognize that IEX was created within the current regulatory framework, serving as evidence that the spirit of 

the rules governing our current market do allow for innovative free 

market solutions to emerge. We believe that the U.S. equity markets have improved dramatically over the past 20 years as participants can now trade less expensively and faster than they did in 

the past. But we believe this was mainly due to the inevitable improvements that technology has delivered across many industries, 

with financial markets being no exception. 
10 

Despite those benefits, it has become apparent to our team and 

our supporters that the U.S. equity markets are also far from perfect, and these imperfections that we have discovered over the last 

several years are the reason we started IEX and the reason I am 

sitting here today. 

We believe that the number of independent equity trading destinations across exchanges, dark pools, and other internalizers, 

each having their own unique technology, products, rule sets, and 

pricing schedules, creates a tremendous amount of complexity. This 

complexity, combined with the lack of clear language disclosure, 

has created structural inefficiencies which allow unfair advantages 

and disadvantages to various market participants. 

This complexity has also put the health and stability of the overall market at risk without contributing to the market’s ability to 

serve its core function—capital formation. 

There are four main conflicts of interest that we would like to 

highlight. 

First, due to the complex fee and rebate structure of trading 

venues, brokers have perverse incentives when deciding where and 

how to route customer trades. Many high-quality studies, including 

the one from Professor Battalio, have demonstrated the direct relationship between a broker attempting to harvest rebates and worse 

execution quality for their customers. Based on our team’s prior experience, we can confirm these findings. 

Second, to avoid high fees for taking liquidity on exchanges, 

many of the largest brokers created their own private dark pools 

to internalize order flow, in the process isolating client orders away 

from the broader market. Although many of these broker pools are 

interconnected, at times brokers are unwilling to route orders to 

other broker pools to avoid improving the performance of a competitor, even though it may be in the best interests of their client to 

do so. 

Third, trading venues, including exchanges and dark pools, naturally seek to maximize profits by increasing their own trading volumes, and as a result, there are many predatory, high-volume trading strategies that are left unattended—intermediating between 

venues—as certain market centers prioritize market share over 

protecting the interests of client orders. 

And, fourth, markets that offer co-location and different speeds 

of market data and connectivity have a direct conflict in the profits 

garnered from selling these services versus the structural inefficiency created when those same products enable a participant to 

trade faster than the market itself to the detriment of any participant who relies on the market to fairly price trades. 

Although many of these issues are deeply embedded in our market structure, IEX believes that the best policies to address these 

conflicts are those that promote transparency and disclosure. The 

SEC’s Midas website and FINRA’s ATS reporting rule are recent 

positive steps, and we would encourage further pursuit of transparency, specifically these three points: first, standardization of 

data collection and reporting; second, disclosure of both routing and 

trading information in a standardized form between brokers and 

clients; and, third, full disclosure of rules, products, and services 

from all market centers. 
11 

The most important implication of transparency is that it brings 

accountability to all participants in our market. Heightened forced 

transparency will give participants the information they need to 

ask critical questions and to make better decisions. This will allow 

the market to self-regulate. 

We respectfully ask that if Congress or the Commission looks to 

further modify the structure of the equity markets, careful consideration is given to deciding which issues are better solved through 

regulation and which issues are better addressed through free market solutions. 

In closing, IEX would like to echo SEC Chair White’s recent 

statement that, ‘‘The secondary markets exist for investors and 

public companies, and their interests must be paramount.’’ As the 

financial services work through this period of change, none of us 

should forget why the market exists in the first place. 

Thank you. 

Senator LEVIN. Thank you very much, Mr. Katsuyama. 

Let us try a first round of 8 minutes, if that is all right, and we 

will have as many rounds as we need. And that is true with both 

panels. We have four votes that are going to begin at 11 o’clock. 

I will stay here at least through the first two votes and miss those 

votes as currently planned, and others can come and make the 

votes should they wish. 

Professor Battalio, let us talk about the nonmarketable orders. 

These are the ones that do not have an immediate match and that 

add or make liquidity. 

Now, under the maker-taker pricing, most exchanges are willing 

to pay brokers for sending them nonmarketable orders. Is that correct so far? 

Mr. BATTALIO. Yes, sir. Very good. 

Senator LEVIN. Some retail brokers send virtually all nonmarketable orders to exchanges that pay a rebate. Is that correct? 

Mr. BATTALIO. That also appears to be true. 

Senator LEVIN. OK. Now, your paper looked at where retail brokers routed nonmarketable customer orders and stated that 

Ameritrade, E*Trade, Fidelity, and Scottrade route orders in a way 

that suggests that they may be focused on liquidity rebates. How 

often did those retail brokers route nonmarketable orders to the exchange offering the highest rebate? 

Mr. BATTALIO. Those four brokers—well, three of the four brokers either route things called—the SEC reports are not good 

enough to distinguish between marketable and nonmarketable 

limit orders, OK? But based on an assumption that is pretty solid, 

three of the four either route limit orders to people that pay for 

order flow—and those are probably marketable orders—or to the 

high-fee venue, nowhere else. 

Senator LEVIN. And the high-fee venue are the exchanges. 

Mr. BATTALIO. It is one venue offering the high make rebate. 

Senator LEVIN. All right. So when it comes to order flow, they go 

to the wholesale brokers generally. Is that correct? 

Mr. BATTALIO. With the marketable stuff, they go to the wholesalers. 

Senator LEVIN. With the marketable stuff, and they are paid for 

that. 
12 

Mr. BATTALIO. Yes, sir. 

Senator LEVIN. And they always go to the high rebate exchange—— 

Mr. BATTALIO. The one high—— 

Senator LEVIN [continuing]. For the nonmarketable ones? 

Mr. BATTALIO. Yes, sir. 

Senator LEVIN. OK. Now, your paper assessed whether the decision by retail brokers to route nonmarketable customer orders to 

exchanges that pay the highest rebate was consistent with the broker’s obligation to obtain best execution of their customers’ orders. 

And this is now quoting from your paper: ‘‘The results of our analysis suggest that routing all nonmarketable orders to a single exchange that offers the highest liquidity rebates is inconsistent with 

maximizing nonmarketable order execution quality.’’ Is that quote 

correct? 

Mr. BATTALIO. Yes, sir. 

Senator LEVIN. All right. Now, the decision, your paper says, ‘‘to 

use a single venue that offered the high liquidity rebates does not 

appear to be consistent with the objective of obtaining best execution.’’ Did I quote you correctly? 

Mr. BATTALIO. Yes. It results in diminished fill rates. 

Senator LEVIN. All right. That is the reason why, but, nonetheless, I quoted you accurately. 

Mr. BATTALIO. Exactly. 

Senator LEVIN. All right. Now, is that then evidence of a conflict 

that harms consumers? 

Mr. BATTALIO. We certainly think that the routing could be done 

better, yes. 

Senator LEVIN. Well, to put it in terms that I understand, is that 

then evidence of a conflict that would harm consumers? 

Mr. BATTALIO. Yes, sir. 

Senator LEVIN. And your data then shows and your conclusion 

shows that the highest rebate and best execution do not go together. 

Mr. BATTALIO. Yes, sir. In certain circumstances, they do not go 

together. Not always, but in certain circumstances. 

Senator LEVIN. Would that be in most circumstances where these 

orders are routed to an exchange? 

Mr. BATTALIO. So in the most actively traded stocks where the 

lines to trade are the biggest, that is where it matters the most. 

Senator LEVIN. And that would be true, what I just said? 

Mr. BATTALIO. Yes. 

Senator LEVIN. Now, Mr. Katsuyama, I expect that some of the 

retail brokers that are named in Professor Battalio’s paper would 

claim that the fact that they directed all of their nonmarketable orders to the exchange that pays them the most is not inconsistent 

with providing best execution to their customers. What is your view 

of that? 

Mr. KATSUYAMA. So from a practitioner’s standpoint, prior to 

IEX, I worked and ran trading at a large broker-dealer. You know, 

I think there are two ways to look at it. The first is that the exchange that pays the highest rebate will have the longest queue because people that are posting liquidity let us just say on the bid, 
13 

they want the rebate, so more people will line up because of that 

inducement. 

The first thing to consider—that getting in the longest line will 

lower your probability of getting filled because there are more people in front of you in line. The second thing to consider is the inducement of, let us say in this instance, the seller. Where is the 

seller most likely to go when selling stock, looking to sell stock on 

the bid? The seller is most likely to go to the place that either pays 

them a rebate or definitely to attempt to avoid those who charge 

the highest fees. So getting in the longest line, posting in the highest rebate venue, exposes you to larger competition, reducing the 

probability of fill, and it also makes you the least likely venue to 

get filled on because the seller on the other side of the order is not 

incentivized to go there first. 

So it hurts you in two ways. We have run a series of tests on 

this using our own capital back when I was at RBC, and the tests 

confirmed the findings that Professor Battalio outlined in his 

paper. 

Senator LEVIN. And can you repeat that finding in your words? 

Mr. KATSUYAMA. Sure, that routing specifically with the goal of 

maximizing your rebate lowers the probability of getting filled and 

leads to adverse execution quality or worse execution quality for 

the client’s order who you are representing or even your own order 

if a bank is routing on its own behalf. 

Senator LEVIN. Does that create a conflict of interest? 

Mr. KATSUYAMA. Yes. 

Senator LEVIN. Let me just go back to Professor Battalio for one 

moment. Is best execution a subjective determination, at least in 

part? 

Mr. BATTALIO. At least in particular. We would argue more so 

subjective for market orders because a lot of determinants go into 

figuring out whether you have a good trade price or not. With 

standing orders or these nonmarketable limits, it seems like getting filled is paramount. And we came across the Nasdaq Notice to 

Members 01–22 after we submitted this draft to a journal, and we 

will incorporate—and we will certainly use that to buttress what 

best execution means for nonmarketable limits. Fill rate is paramount. 

Senator LEVIN. But are there also subjective factors in that determination for both? 

Mr. BATTALIO. You are pushing the bounds of what I—— 

Senator LEVIN. All right. If you cannot answer it, you cannot answer it. 

Mr. BATTALIO. I cannot answer it. 

Senator LEVIN. Mr. Katsuyama. 

Mr. KATSUYAMA. Can you repeat the question? 

Senator LEVIN. Are there subjective factors in determining which 

market to go to for the ones for the orders which are non—let me 

get the right word here—the nonmarketable? 

Mr. KATSUYAMA. Sure. So at times there are. For example, if 

there are—if you are establishing a new price, meaning that you 

will be the only person on the bid at that price, bidding on an exchange that pays a high rebate, since you are the only person on 

the bid, it is justifiable; it makes sense. If you are joining a queue 
14 

that is very thick, that has multiple exchanges represented, and 

you choose to get at the end of the longest line to get a rebate, I 

would say that that would be a conflict. 

Senator LEVIN. Would that be a subjective factor? Are there subjective factors in that determination? 

Mr. KATSUYAMA. Yes. It is based on what is currently on the bid, 

which would primarily be determined by the stock. So there are 

factors where, a broker looking to get a rebate is not necessarily 

in conflict with their duty to their client. So it is subjective based 

on the conditions of the stock when you come into—sorry if this is 

a complicated answer, but based on what is happening in the stock, 

there are different decision points, and there are times when you 

could be getting the highest rebate, but also serving your client’s 

interest. 

Senator LEVIN. And there are times when that is not true. 

Mr. KATSUYAMA. Yes. 

Senator LEVIN. Senator Johnson. 

Senator JOHNSON. Thank you, Mr. Chairman. 

Professor Battalio, I am hearing terms—‘‘adverse execution quality,’’ ‘‘conflict of interest,’’ ‘‘dark pools.’’ It all sounds pretty sinister. 

What I want is an example of a trade, so we can really put this 

all in perspective. So let us talk about 100 shares at $20, just a 

retail customer placing that with a broker. Now, if you are using 

one of the online brokers, it is costing you $10. 

Mr. BATTALIO. Yes. 

Senator JOHNSON. So if you are basically buying $2,000 worth of 

stock, you are paying $10 to buy $2,000 worth of stock. Twenty 

years ago, I know I would be paying $20, $30 commission, correct? 

Mr. BATTALIO. Yes. 

Senator JOHNSON. Now we are paying $10. So if this is going into 

one of these dark pools or if this is to go into one of these makertaker arrangements, how much additional money could it cost the 

consumer if there is a conflict of interest, if it is routed to a situation where there is a higher maker-taker fee? 

Mr. BATTALIO. So imagine you have two orders to buy—one here, 

one there. This one is the high-fee venue; this is the low-fee venue. 

Only one trades. So they want to buy at $10. One is going to trade, 

and then the price is going to rise to $20. Which one trades? The 

one on the low-fee venue. 

Senator JOHNSON. First of all, how many times in the stock market do you try and buy a stock for $10 and it goes up to $20? 

Mr. BATTALIO. OK, make it go to $11, $10.50. 

Senator JOHNSON. I mean, again, realistically, when I put in a 

trade, I say I want to buy a stock. I have made a decision that this 

company is worth $20 a share. And I put in an order for 100 

shares. I am going to get that executed at $20, aren’t I? 

Mr. BATTALIO. So Goldman Sachs and others have done studies 

kind of with better data than we have, so data is a big problem to 

do these types of analyses. To really get at what you asked, we 

need to have data that we do not have. All right? So Goldman 

Sachs, the claim would be that you would lose three basis points, 

five basis points over the course of a day by making an inferior 

order routing—— 
15 

Senator JOHNSON. No, no. I am talking about a retail investor like myself, I buy 100 shares of stock at $20. I am going to pay 

$2,000 to buy the stock. OK? I am going to get that stock at $20, 

aren’t I? If I put in an order that I say I want to buy that stock 

at $20, I get it at $20. 

Mr. BATTALIO. No. It will not trade. One person—— 

Senator JOHNSON. So what do I—well, if an order—— 

Mr. BATTALIO. You are going to cancel—— 

Senator JOHNSON [continuing]. Is on the books—— 

Mr. BATTALIO. You are going to cancel and chase the market up. 

That is the point. Does this happen always? No. 

Senator JOHNSON. Listen, I cannot remember a trade that I have 

put in where I say I want to buy 100 shares at $20 where I do not 

get it at $20, because I put in a stop loss. I am only going to buy 

it at $20. 

Mr. BATTALIO. So your trade—— 

Senator JOHNSON. And I get it at $20. 

Mr. BATTALIO. You are trading volatile stocks that do not have 

long queues. That is my answer to you. The data—— 

Senator JOHNSON. That is what most people do. So, anyway, 

again, I am trying to get—forget the price movement, OK? Let us 

talk about just the dollar value of this maker-taker fee. On a 

$2,000 trade, how much is that maker-taker fee? On 100 shares of 

stock at $20 a share, how much is that maker-taker fee? 

Mr. BATTALIO. Thirty cents per hundred. 

Senator JOHNSON. Thirty cents per hundred what, dollars or 

shares? 

Mr. BATTALIO. Shares. 

Senator JOHNSON. So if there is a maker-taker fee that is just 

outrageous at, what, 50 cents? 

Mr. BATTALIO. The maximum is 30 cents per hundred that they 

can charge, the taker fee. 

Senator JOHNSON. For a hundred shares. So we are talking about on a $2,000 trade that is a conflict of interest, a broker is going 

to push a trade into a maker-taker arrangement where he gets 30 

cents—— 

Mr. BATTALIO. So an accurate—— 

Senator JOHNSON [continuing]. Versus what—I mean, what is 

the high range of this: 30 to 50, 30 cents to—what is the range of 

pricing on this maker-taker arrangement per hundred shares? 

Mr. BATTALIO. Negative 14 cents, maybe, to 32 cents per hundred. These are all per hundred. 

Senator JOHNSON. So you have a maximum range of 40 cents, so 

if I am doing a $2,000 trade, you are concerned about a conflict of 

interest where I might have to pay an additional 40 cents on a 

$2,000 trade. Is that what this is about really? 

Mr. BATTALIO. No. It is about the fact that you did not get to 

trade. So your assumption that you trade is wrong. 

Senator JOHNSON. But I always have been able to trade. 

Mr. BATTALIO. Maybe you have. 

Senator JOHNSON. How many times do people not get to trade? 

Mr. BATTALIO. The difference for certain types of stocks in certain circumstances, the difference in fill rate is 25 percent. Sanford 

Bernstein puts out reports since 2010 highlighting the stocks in 
16 

which this type of routing has a huge impact on whether or not you 

trade at a price. 

Senator JOHNSON. Now, how much of that is the institutional investor and the high-frequency trader versus the standard retail guy 

that—again, I am looking—I am a very long-term investor, and I 

am looking at a stock, and I go, really, I think this thing is worth 

$20 and I am willing to buy it at $20, but if not, no harm, no foul. 

So there are definitely different investors, right? So when you are 

talking about 25 percent of trades not being executed—is that in 

all the institutional, the very high volume, or is that really individuals like myself that say—I want to buy that hundred shares of 

stock, I will pay any price, or I will put a stop order and say I am 

only going to buy it at $20? 

Mr. BATTALIO. So is Schwab a retail broker? Because they do not 

make this decision. They do not do what these four brokers do. 

Interactive brokers, a retail—— 

Senator JOHNSON. So let me ask you, how many—and I will surely ask in the next panel, of those folks. How many trades in to retail brokers like Schwab, like TD Ameritrade do not get executed? 

Do you have any idea on that? 

Mr. BATTALIO. We have asked for their data, and they have 

never responded to give us the data. We cannot answer. 

Senator JOHNSON. So where did you get your data from then? 

Mr. BATTALIO. From a major iBank. 

Senator JOHNSON. And, again, what is the data on? 

Mr. BATTALIO. Orders. They get routed to two different venues. 

They show up at the marketplace at exactly the same time, and we 

watch what happens. And then we use data from the entire marketplace, all trades and quotes. 

Senator JOHNSON. So I did see TD Ameritrade revealed how 

much they are making on these maker and taker, this order flow 

fee, something like $200 million. It sounds like an awful lot of 

money, but isn’t it true that the market trades almost $27 trillion 

per year? 

Mr. BATTALIO. Sure. 

Senator JOHNSON. So what is $200 million in relation to $27 trillion—— 

Mr. BATTALIO. We are not—— 

Senator JOHNSON [continuing]. As a percentage? 

Mr. BATTALIO. What we are here to speak to is the poor investor, 

not like you, that wanted to buy at $10 and did not get to because 

the market moved away and the broker chose to route—make sure 

that—so the broker routed the order—— 

Senator JOHNSON. Again, I am trying to figure out how—— 

Senator LEVIN. Let him finish. 

Senator JOHNSON [continuing]. Often that is. OK. I am sorry. 

Senator LEVIN. Do you want to finish the answer? 

Mr. BATTALIO. With better data I could answer that. In our data 

set, it can be as big as 25 percent difference in getting the trade 

done. 

Senator JOHNSON. OK. I will just finish by saying what I am concerned about is, again, just creating this sinister atmosphere with 

words like ‘‘dark pool’’ and ‘‘conflict of interest,’’ and what we are 

talking about literally, I think, is 30 or 40 cents on a $2,000 trade 
17 

or maybe a $30,000—or a $3,000 trade. I mean, we are really talking about minuscule amounts. And, again, what I am looking at is 

over time of investing, I have looked at my cost of a trade going 

from hundreds of dollars down to $10. And now we are arguing 

over if it should be $10.30 or $10.40. I do not know. I am just trying to put it into perspective and trying to figure out where the 

problem is here that I guess we are talking about potentially government regulation intervention, which I think might have very 

harmful unintended consequences versus letting the free market 

competitive system drive transparency, drive competition, and that 

is what has happened certainly over my lifetime of investing over 

20 years. It has gotten, from my standpoint, more transparent and 

a whole lot cheaper. 

Mr. BATTALIO. I am not arguing with that. 

Senator JOHNSON. OK. Well, thank you. I will be back. 

Senator LEVIN. Thank you. 

Senator McCain. 

Senator MCCAIN. Do you want to give a more elaborate response 

to that really this hearing does not matter, either you, Mr. 

Battalio, or you, Mr. Katsuyama? 

Mr. KATSUYAMA. So I guess just to respond to that—the fact that 

it is 30 cents for a hundred shares and it is a $2,000 trade, I think 

that is exactly the point. I mean, we are talking about conflicts 

where there is evidence that their brokers are routing to get this 

30 cents, and they are representing a $2,000 order. It can be used 

on both sides of the argument. You can view it as trivial, but you 

can view the trivial nature of why is the broker doing that in the 

first place if they are representing a $2,000 trade? So it is one 

where the conflicts are real, and I think that even though the harm 

is diffuse, there are more retail investors invested in large pension 

funds and mutual funds who also are affected by this practice. 

So I think that, just trying to say that since it is a small amount 

it could be used to deny that the conflict exists, is wrong. I think 

that it needs to be a principle-based argument. 

The other part on costs, costs have come down. Of course they 

have. Technology has delivered that cost reduction. There is a Harvard Business Review study titled, ‘‘How to Win a Price War,’’ and 

it talked about ‘‘electronic brokers are changing the competitive 

terrain of financial services with their extraordinarily low [-priced] 

brokerage services. The prevailing price for discount trades has 

fallen from $30 to $15 to $8 in the past few years.’’ That report was 

written in 2000. So when you look at the costs of technology since 

the year 2000, it has fallen even further. 

So I think that it is one where competitive forces—I agree with 

the fact that competitive forces should be setting prices. The problem is that the inducement is so great, we do have a prisoner’s dilemma, where if every exchange pays an exchange rebate, the one 

that moves away from the exchange rebate if brokers are still 

incentivized to go after that rebate—they will lose market share. 

So I do think when you look at payments, it is something to say 

there is a known conflict in the market and lets just address it. 

The size of the conflict relative to the notional amount traded is not 

a reason just to ignore the issue. 
18 

Senator MCCAIN. And with that increasing technology, hasn’t 

that facilitated to a significant increase in volume of trades as 

well? 

Mr. KATSUYAMA. I think the fact that advances in technology 

have been harnessed by certain participants, that is part of free 

market competitive forces, and there is absolutely nothing wrong 

with that. I think the challenge that the market was faced with 

was one of the biggest confusions out there is that the person that 

buys co-location and pays for this service has an unfair advantage 

versus the person sitting at home trading over a retail account. 

There will always be asymmetries—— 

Senator MCCAIN. See, I think that is the key to this problem, 

that there are certain players that have made this an unlevel playing field, whether it is 30 cents or whatever. 

Mr. KATSUYAMA. Sure. In order for the person at home to get disadvantaged by the person that has spent all of the money on highspeed technology, in order for them to be disadvantaged, they have 

to trade, and that trade has to happen on a market. The market’s 

responsibility, at least in our view, is that knowing that different 

parties will have different access to technology and different levels 

of resources, different levels of information; but when the trade 

happens, that the condition with which this trade happens is 

done—is fair, meaning that we have no bias one way or another 

what happens when this trade occurs. And the problem is that as 

technology has evolved, the exchange or the dark pool, the market 

itself should have advanced their own technology to ensure that we 

are investing in technology and building solutions with technology 

that maintains this fairness. And the problem is that as the markets have evolved, people got in the business of selling technology. 

People got in the business of actually enabling participants rather 

than creating and maintaining their neutrality. And I think as that 

happened, the conditions for fair trading changed. When your participants understand the market, what is happening in the market, 

faster than the market itself, that creates a pretty significant situation that we believe is unfair. 

Senator MCCAIN. Well, sir, many commentators, including the 

editors of the Wall Street Journal, have noted that Reg NMS has 

enabled or exacerbated a number of predatory, high-frequency trading practices. Do you think that Reg NMS should be reformed? And 

if so, what would you recommend? 

Mr. KATSUYAMA. Sure. So I think Reg NMS, the spirit of Reg 

NMS, as was indicated, makes sense. You have multiple competitive markets, and you want to try to attempt to tie them all together. I think if you eliminate some of the conflicts in how orders 

are routed, that brokers have invested heavily in technology that 

can get around this issue of liquidity disappearing. At RBC we had 

this problem from 2007 to 2009, and then we solved the problem. 

So I think that free market solutions can emerge to address the 

issues with Reg NMS. I think undoing Reg NMS runs the risk of, 

again, further unintended consequences, how exactly do you address those? 

I think that it is something that definitely warrants review. It 

just depends on what regulation comes out of redefining what Reg 
19 

NMS does, and that is something that obviously I cannot comment 

on. 

Senator MCCAIN. Do you have any suggestions, Mr. Battalio? 

Mr. BATTALIO. If you do anything to Reg NMS, do it with a pilot 

study and study it very carefully. 

Senator MCCAIN. Have you got other solutions to this issue? 

Mr. BATTALIO. With regard to high-frequency trading, that is not 

something I have extensively studied, no. 

Senator MCCAIN. Mr. Katsuyama, Michael Lewis in his ‘‘60 Minutes’’ interview regarding his excellent book, ‘‘Flash Boys,’’ said 

that the stock market is ‘‘rigged.’’ Is that an accurate description? 

Mr. KATSUYAMA. We have discovered that investors are systematically disadvantaged in the way that the markets have been set 

up. I think ‘‘rigged’’ is a word that can be used to describe that. 

I think it is loaded. But I think at the same time, the investment 

process is not broken. I am still an investor in this market. You 

know, ‘‘rigged,’’ what it did is it kind of gave our critics and people 

who are part of the problem a reason to talk about something else 

other than what we were actually talking about, which are these— 

a much more precise way to put it or a much more precise question, which is these systematic disadvantages and how they are 

created. 

So, it was a distraction, which was unfortunate. I guess the interesting part is that the people who took most offense to that word 

were people on Wall Street. We have a tendency to talk to ourselves on Wall Street, and I think that the response we have seen 

from the general public is anything but. The claim that we hurt investor confidence in the things that we brought to light everything 

that we have seen I think would be exactly the opposite of that in 

terms of the general public and their reaction to what we have said 

and what we have done. 

Senator MCCAIN. On this issue of co-location, how do you address 

something like that? Somebody rents a place or rents a computer 

somewhere, they are free to do that. That is America. How do you 

address that issue since co-location seems to be one of the facilitating aspects of this whole system? 

Mr. KATSUYAMA. Sure. I do not think you can regulate co-location. If you say to an exchange you cannot sell space next to your 

matching engine, cottage industries will pop up and buy real eState 

across the street from the exchange and throw cables over the 

fence. So I think it is every market’s choice to decide how they 

would like to set their market up. 

At IEX, what we have done is we have introduced almost the opposite of co-location where we have put 350 microseconds of latency 

in between us and all of our customers, which essentially means 

that we have coiled 38 miles of cable in a data center, and we do 

that for all of our participants. The opposite of getting close is 

pushing everyone an equal distance away. 

Senator MCCAIN. I understand what you have done, but what is 

the remedy to this? 

Mr. KATSUYAMA. I think the remedy is, we keep harping on 

transparency and disclosure, and I think that there are distinctive—— 

Senator MCCAIN. It should be disclosed if they are co-locating. 
20 

Mr. KATSUYAMA. It should be disclosed, but also things like anonymous listings of participants on venues, meaning does one participant represent 35 percent of your trading volume or 50 percent of 

your trading volume on any dark pool or exchange? And if they do, 

do they represent 50 percent of the volume on every other market? 

Because if they are an outsize portion of your own order flow, then 

that would indicate something. 

Are the message rates across certain participants so much higher 

than others? I think that we lack, as Professor Battalio said, the 

data. What we learned—and we learned from experience, we 

learned from talking in the industry, but we lack the data. And I 

think, again, the SEC’s Midas website, the FINRA ATS report, we 

learned a lot in basically two attempts to provide clearer understanding of what is happening in the market. We could learn so 

much more. 

The thing about co-location is that, just discussing and understanding what the advantage is of being 5 or 10 microseconds away 

from a matching engine, you get information quickly, and you can 

react quickly to getting information. As we push that boundary farther out to 350 microseconds, what we found is that we did have 

certain high-frequencing traders that did show up to IEX. But the 

number of those high-frequency traders was small, right now three. 

There are dozens and dozens of firms who have decided not to connect. I cannot speculate as to why that is, but clearly we have 

taken away something that some high-frequency trading firms they 

found valuable. 

So it is every market’s choice to do something. It becomes a very 

hard practice to regulate. But I think with the increased transparency and disclosure, people can make better decisions on whether they want to trade in venues that do offer such services. 

Senator MCCAIN. Thank you. 

Thank you, Mr. Chairman. 

Senator LEVIN. Thank you very much, Senator McCain. 

You made reference to disclosure on things like co-location, but 

when it comes to the best execution obligation, I gather that cannot 

be waived. Is that correct? 

Mr. KATSUYAMA. Yes, absolutely. Best execution, I think it might 

need some further refinement. It is a pretty subjective—I guess it 

is a pretty subjective term. I think it is used fairly liberally. One 

thing that we definitely think—— 

Senator LEVIN. That is a legal obligation. Is that correct? 

Mr. KATSUYAMA. It is. 

Senator LEVIN. So you cannot disclose—‘‘we do not engage in 

best execution in this firm.’’ That does not fly. Is that correct? 

Mr. KATSUYAMA. That would not fly, no. 

Senator LEVIN. Do you agree with that, Professor? 

Mr. BATTALIO. Yes, sir. 

Senator LEVIN. Going back to best execution as to who determined—did I interrupt you? 

Mr. KATSUYAMA. No. 

Senator LEVIN. Who determines best execution for a broker? Is 

it the broker himself? 

Mr. BATTALIO. The broker, my understanding, is supposed to— 

based on what I read—have monthly meetings and just evaluate 
21 

where they are routing, can it be done better where should we alter 

things around the edges? 

Senator LEVIN. But it is the broker who determines best execution? 

Mr. BATTALIO. Yes. 

Mr. KATSUYAMA. Yes. 

Senator LEVIN. OK. Now, I believe, Mr. Katsuyama, that you indicated that the maker-taker system creates a conflict of interest, 

and I think the testimony of both of you is that this is a significant 

matter. Let me just ask you, Mr. Katsuyama, should the makertaker system be eliminated? 

Mr. KATSUYAMA. I think that steps should be taken to address 

what happens to the market if it is eliminated. I know that a pilot 

study has been proposed—— 

Senator LEVIN. You mean—say that again? 

Mr. KATSUYAMA. The pilot study that has been proposed, I think 

that it should have—— 

Senator LEVIN. Which eliminates it? 

Mr. KATSUYAMA. Which eliminates maker-taker in certain stocks, 

I think that it should be given the chance to prove that eliminating 

maker-taker will not harm the quality of the markets. 

Senator LEVIN. All right. 

Mr. KATSUYAMA. So, yes, I definitely think that that step should 

be taken. It should be analyzed, and then we should—— 

Senator LEVIN. At least that step ought to be taken. 

Mr. KATSUYAMA. Definitely. 

Senator LEVIN. Professor. 

Mr. BATTALIO. I am not a risk taker. I am an academic. 

Senator LEVIN. OK. 

Mr. BATTALIO. So my view would be maybe not push to eliminate 

maker-taker because you might push things underground into the 

soft-dollar world where it would be even less able to kind of see 

what people are doing. 

Senator LEVIN. OK. 

Mr. BATTALIO. So our view would be, with Shane Corwin and 

Jennings, perhaps what you should do is push disclosure back onto 

the broker so it is easier to tell, so you do not have to do the studies we just did to map how is your broker doing regarding routing 

your orders. Since the SEC took a first step with this in 2000 and 

2001, we think that you could do a better job of that now. 

Senator LEVIN. Would you support that test case that Mr. 

Katsuyama talked about? 

Mr. BATTALIO. If you insist of doing away with maker—— 

Senator LEVIN. Not me. I am not—— 

Mr. BATTALIO. A pilot is—— 

Senator LEVIN. A lot of other people are insisting on it, and I 

happen to agree with that, but it is not—— 

Mr. BATTALIO. A pilot is better than going all-in. 

Senator LEVIN. All right. Some have argued that the maker-taker 

system is beneficial and that it has led to tighter spreads, and I 

think you indicated, did you not, Mr. Katsuyama, that that was 

technology that did that long before—— 

Mr. KATSUYAMA. Yes, I think decimalization and technology both 

contributed to the lowering of spreads. 
22 

Senator LEVIN. All right. Now, does IEX make a similar distinction that some high-frequency trading may be predatory? 

Mr. KATSUYAMA. So I think not all high-frequency trading is 

predatory, but some practices are, yes. 

Senator LEVIN. Do you make a distinction that some high-frequency trading may be predatory? 

Mr. KATSUYAMA. Yes. 

Senator LEVIN. And that that would hurt regular investors while 

others may benefit the market? 

Mr. KATSUYAMA. Yes. 

Senator LEVIN. And has the maker-taker system led to the creation of more exchanges in trading markets and more complex 

order types, Mr. Katsuyama? 

Mr. KATSUYAMA. Yes. 

Senator LEVIN. Has the proliferation of trading venues and order 

types created opportunities for predatory high-frequency traders to 

take advantage of investors? 

Mr. KATSUYAMA. At times, yes. 

Senator LEVIN. And what are those opportunities? What kinds of 

opportunities? 

Mr. KATSUYAMA. Sure. I think given the structure, a quick exam- ple is if there are 10,000 shares on offer to sell Intel at $21 a share, 

a high-frequency trading firm could be offering stock across multiple markets. One of those markets where they are offering stock 

might be what is called a taker-maker venue that actually charges 

someone to post liquidity and will pay a rebate to the other side 

of the trade who comes to access that liquidity. So this inducement, 

what it does is it—if a broker is going to follow that inducement, 

it causes them to route orders and remove liquidity from Intel, in 

a very predictable and systematic way, starting at the highest rebate market for taking liquidity and working its way down to the 

venue charging the highest fee. This predictable pattern of routing 

leads to lower fill rates and ultimately worse execution for the client being represented. 

So, it is a combination of fast technology, a combination of inducements, and a combination of the broker falling for those inducements. So that would be a series of events. 

Senator LEVIN. You have been quoted as saying that people have 

lost confidence that the markets are fair and that they are working 

in their best interest. Would charging a standard fee, regardless of 

whether the order adds or removes liquidity, increase investors’ 

confidence that they are getting a fair deal? 

Mr. KATSUYAMA. I think it is a step—at IEX we charge a flat fee, 

regardless of whether you are making or taking. Price competition 

is something that is hard to regulate, so if some people want to 

charge a lesser or higher fee and justify it through their service, 

I think that is acceptable. But I think eliminating a conflict, most 

of the general public do not even know this conflict exists. I think 

that as we talk through it, as we try to regain the trust of the general public, talking through these issues and admitting to the fact 

that they exist, and then addressing these conflicts, that is the way 

to restore that confidence. So I think that, yes, addressing this 

issue will help restore confidence, or at least it is a step in the 

right direction. 
23 

Senator LEVIN. And eliminating the conflict would help restore 

confidence? 

Mr. KATSUYAMA. Without question. 

Senator LEVIN. Professor. 

Mr. BATTALIO. Yes, sir. 

Senator LEVIN. Would it? 

Mr. BATTALIO. Yes, sir. 

Senator LEVIN. Critics of your paper, Professor, said that the 

data that you used to assess whether retail brokers were getting 

best execution does not accurately reflect typical retail order flow 

and that your results cannot be generalized to judge the best execution performance of retail brokers. How do you respond to that? 

Mr. BATTALIO. In a couple ways. So those critics seem to kind of 

ignore the back third of our paper where we use all trades and all 

quotes in the U.S. equity market over the same time horizon to 

demonstrate the results that we find with our limited data generalized to the marketplace. 

Second, as we have been pushing the paper around, we have 

seen lots and lots—we wrote the major exchange that operates two 

different fee structures, and they showed us that for the retail orders resting on their exchange for a couple weeks, they get the 

same results we get. You know, Sanford Bernstein, we came across 

a report, same results we get. 

So you can argue that our most detailed data analysis comes 

from specialized data, but the results generalize with a lot of different data sets. So we are quite comfortable. 

Senator LEVIN. Now, would you be willing to run your analysis 

using data from the retail brokerages identified in your paper if 

they were willing to give you that? 

Mr. BATTALIO. Of course. Anybody. The hard part for an academic, we spent 2 years asking for data to test this, because people—and it is just very, very hard. So, yes, that is a standing offer 

that we make. It has become—we thought we were going to be able 

to work with a guy who is starting to do this with institutions, and, 

unfortunately, the sell side is pushing back and threatening. So the 

executing venues have threatened that if this guy shares data with 

us, they will stop doing business with their buy side clients. So it 

is very hard to get data to do the analysis that we did. We were 

very lucky to find these data. 

Senator LEVIN. Some argue that 30 cents on an order is a tiny, 

minuscule amount, you have given a very strong answer or response to that, by the way, in terms of the orders that are not 

filled. And, also, Mr. Katsuyama, you have given a pretty strong 

answer to that as well. These 30 cents also add up to hundreds of 

millions of dollars for a broker, do they not? 

Mr. BATTALIO. Yes, they do. Compare the payment revenue of the 

brokers that do this practice to the ones that do not, and you will 

see a marked difference at the aggregate. 

Senator LEVIN. Mr. Katsuyama. 

Mr. KATSUYAMA. Yes, I think it is—— 

Senator LEVIN. It is a big revenue source for the broker, is it not? 

Mr. KATSUYAMA. Yes. Well, some brokers. I think we cannot 

paint them all in the same brush. Some brokers end up paying the 

high take fee, and that high take fee is subsidizing payments to 
24 

other players. So some are hurt worse and some benefit, depending 

on who the broker is. 

Senator LEVIN. Thank you. 

Senator Johnson. 

Senator JOHNSON. Thank you. I have a little more time here, so 

I do want to go back and really explore exactly what is happening 

and exactly what type of harm could be happening. 

When you are talking about 25 percent of trades that just simply 

are not executed, can you describe that a little bit more to me in 

terms of the volatility of that, what is being missed? And aren’t 

those trades basically because people put in stop orders and say, 

‘‘I will buy a stock at this price’’? I mean, just tell me how that does 

not work? 

Mr. BATTALIO. So you have people that maybe place an order before they go to work, and they say, I want to buy a share of stock 

at $20, a hundred shares of stock at $20, and it is just a standing 

order—not a stop or anything like that, just a standing order. What 

we identify in our paper is that some brokers are routing that 

order so that they trade last at a price. And so if throughout the 

day the market goes through your limit price, you trade. It does not 

matter where you were routed. That is true a large part of the 

time. Right? And that would be, what I would argue, that is your 

trading experience. OK. 

But some stocks are much less volatile throughout the trading 

day, and not all of the people looking to trade at a price get to 

trade. Some do not, and they miss out. Why? Because the price 

trades a little bit and moves up. The ones that do not trade missed 

out. 

Senator JOHNSON. So, I mean, part of the problem is some investors have a lot of time to just be watching this in real time 100 

percent of the time. 

Mr. BATTALIO. That is right. 

Senator JOHNSON. Most investors, like myself, you look at it 

about once a year, and you put a trade. So that is always going to 

be the case, right? I mean, if you were watching this 100 percent 

of the time, if you were putting in the right type of order, you could 

make sure that you were going to have an executed trade, just 

about, I mean, couldn’t you? Can’t you, as an investor, make sure 

that you get that stock purchased no matter what? 

Mr. BATTALIO. Not if all the interest at a given price does not 

trade, no, because of the way they route. They are putting you at 

the back of the line at a price all the time. And so if the line does 

not fully exhaust, you go wanting. 

And is this—this happens in certain—is this all stocks all the 

time? No. But measurable time, 10, 20 percent of the time, certain 

stocks, yes. 

Senator JOHNSON. Again, I am trying to get my head around the 

magnitude of this problem. 

Mr. BATTALIO. OK. I guess—— 

Senator JOHNSON. Because it is true—I mean, we are using all 

these sinister figures, and I agree with the Senators, this is about 

restoring confidence in the market. And I am concerned by throwing out those types of terms and making it seem like everybody is 

in this business and they are just really trying to stick it to the 
25 

individual retail investor. That is not what I have seen. I am not 

saying—— 

Mr. BATTALIO. And I would hope—— 

Senator JOHNSON [continuing]. That I have been pleased with 

the transparency within the investment banking community during 

my lifetime. But it just seems like we are moving in the right direction, greater competition, lower prices, far easier trading today 

than it was 20 years ago where you just kind of call your broker 

and you did not know what was pulling off. Now you have the computer. Now you can plug it in, and say how come I did not get 

that—right now it is almost instantaneous, isn’t it, on online brokers? You put in an order—— 

Mr. BATTALIO. Or a market order, yes. 

Senator JOHNSON [continuing]. And, boom, it comes right back. 

Mr. BATTALIO. For a market order, yes. And I am not going to 

sit here and argue that we have not made great gains over the past 

20 years. That is not what our paper is about. Our paper—and we 

are not crying ‘‘Fire’’ in a theater. 

Senator JOHNSON. Well—— 

Mr. BATTALIO. No. Have you read our paper carefully? I think we 

are very caveated, OK? We are pointing out certain circumstances 

where routing only to the high-fee venue is going to disadvantage 

investors. So statements that get made like, ‘‘We employ sophisticated order routing technology and processes to seek best execution 

for client orders,’’ how can that be if you are routing always to the 

high-fee venue? That is what got us interested as academics in this 

problem. 

Senator JOHNSON. And, again, you may not be shouting ‘‘Fire,’’ 

but I think the way that it is recorded in the press, I think it really 

is. Do you disagree with that? 

Mr. BATTALIO. I think there are some people out there yelling 

‘‘Fire,’’ but I would hope that we would not be characterized—— 

Senator JOHNSON. Good. So, again, that is what I appreciate 

about this hearing. It is about trying to lay out the reality of the 

situation, put this all in perspective. And, again, I want to get back 

to the overall dollar value of these maker and taker arrangements, 

that type of thing, in relationship to total trades—— 

Mr. BATTALIO. All right. So I can give you—— 

Senator JOHNSON [continuing]. In terms of—if at all possible, if 

you had some sort of historical perspective in terms of how much 

trading commissions there were 20 years ago versus what we are 

talking about today. 

Mr. BATTALIO. I will give you one stat, and then I will give it to 

Brad. So if you eliminated all the rebates and inducements, Bernstein Research predicts that one broker would have a 16-percent 

earning-per-share decline. 

Senator JOHNSON. But what—— 

Mr. BATTALIO. That is real time now, and then I have to say I 

do not know the answer to your question and give it to Brad. 

Mr. KATSUYAMA. I think there is no question that price per trade 

has come down with technology. I think that—again, I read this 

last time. I will read it again. Harvard Business Review report, 

which is titled, ‘‘How to Win a Price War,’’ talks about ‘‘electronic 

brokers are changing the competitive terrain of financial services 
26 

with their extraordinarily low-priced brokerage services. The prevailing price for discount trades has fallen from $30 to $15 to $8 

in the past few years.’’ And that report was written in the year 

2000. Here we are in 2014, and my tech team sent me this, but 

the price of a gigabyte worth of storage in 2000 was $10, today it 

is 10 cents. So when we talk about lower fees, lower commissions, 

yes, they have come down. But they stopped going down, and I 

think that they could probably come down further. The notion that 

if a payment goes away then the price will go up, I think that 

would be hard to justify. And, again, as you said, competitive forces 

will force that out of the market. If you double your price per share 

or price to trade, then new entrants will come into the market. 

So I think that it is one where they have come down, but that 

is not an excuse, I think, for what is happening right now. 

Senator JOHNSON. Are there competitors in the marketplace that 

actually conduct trades the way you want to see the trades conducted? And compare those to some of the online models of companies that we are familiar with what they provide with their service. 

Because, one of the things I value in the online is I have got research, There is just an awful lot within those online platforms 

that are very helpful to a competitor—or to an investor. 

Mr. KATSUYAMA. Sure. 

Senator JOHNSON. Do those competitive systems have similar 

types of things? Is that part of the reason—again, I am a business 

guy. It does not bother me that people make money. They need to 

make money to provide different products and services. 

Mr. KATSUYAMA. So, I am not as familiar with each individual 

retail platform, what they offer. I do know Interactive Brokers 

routes in a way that would be consistent with how I would route. 

You know, they are connected to IEX. They trade with us. So I 

think that there are examples, and they have been pretty vocal 

about that. I look at institutional brokers. As Professor Battalio 

has noted, my experience at RBC or Bernstein or even working 

with the people at Goldman Sachs, people have spent a tremendous 

amount of time in understanding this conflict, where you can route 

for a rebate and not harm your client and where you route for a 

rebate and you do harm your client. And it is one where, because 

it can toggle—for example, there are 100,000 shares on offer in 

Intel at $21 [inaggregate, across the markets], and a market will 

pay me a rebate to route there and is offering 10,000 shares, and 

I have 200 shares to buy, I can route it there, buy the 200, get the 

rebate, and no one is harmed. If I have 100,000 shares to buy, I 

cannot route the 100,000 to that one venue that is going to pay me 

because they are only showing 10,000, because I will ruin my experience with the rest of the venues, because of the signals. 

So there are times when you can get a rebate and fulfill your obligation, and there are times where you cannot, and I think it is 

up to every broker to understand where that inflection point is and 

to be very transparent in terms of how they route. 

Senator JOHNSON. So I guess my point is if those companies are 

already present in the marketplace that trade the way you are suggesting without a conflict of interest, so that an individual investor, 

if they are buying $2,000 worth of stock, does not have to worry 

about being charged 40 cents versus 30 cents—OK?—those plat-
27 

forms exist, those competitors—the marketplace, the free market 

competitive system have already provided that investing model 

with that level of transparency. And kind of getting back to part 

of your opening statement, you said, well, this is a question of 

whether we need government regulation to force the transparency, 

the competition, or the free market competitive systems doing it. 

I guess based on your answer, you are saying the free market 

competitive system has already reacted to it, and that possibility 

exists. If you are concerned—as an individual investor, you are concerned about not being able to have your trade executed or paying 

another 10 cents on a $2,000 trade, there are people out there and 

they just need to do a little more advertising so Americans understand it, right? Or maybe this hearing will help out and more investors will take a look at finding companies like yours. 

Mr. KATSUYAMA. So, yes, I totally agree with you. I think that, 

first off, you have to—— 

Senator JOHNSON. I like that answer. 

Mr. KATSUYAMA. First off, you have to make people aware that 

the conflict does exist, and you have to educate them on what that 

conflict means to them, and now they can make a better informed 

decision versus before, when they did not even know that the conflict existed in the first place. I think disclosure and transparency 

will let people make better decisions, and then the market sorts it 

out. It is one where with increased disclosure and increased transparency, everyone knows exactly how the game works and things 

still happen. Then you can kind of look back and say, OK, I guess 

the inducement was enough or warranted the fact that they made 

this decision. But right now a lot of it is opaque. 

And as Professor Battalio noted, it is really, really hard to get 

data, and the data you get is not standardized. So it is very hard 

to synchronize data across multiple places because the data comes 

back, I have seen client data where they have got them from different brokers or even brokers from different venues, and it is coming back in all sorts of forms. So I think that standardization and 

transparency, forced disclosure, people will just ultimately make 

better decisions. That is the most proactive way to advance this 

discussion. 

Senator JOHNSON. OK. Thank you. 

Thanks, Mr. Chairman. 

Senator LEVIN. Professor, do you have a comment? 

Mr. BATTALIO. So the reason this is an agency problem was first 

pushed for—— 

Senator LEVIN. When you say ‘‘agency,’’ what do you mean? 

Mr. BATTALIO. Agency—and I will describe. So two former chief 

economists, Chester Spatt and Larry Harris—OK, Larry was 

around with Reg NMS, so was Chester—and then a guy who is on 

the board of Direct Edge, Jim Angel, put forth—it is their theory 

that we test in our paper, and they claim that the retail investors, 

maybe not you, are able to shop on commission. So the broker that 

offers the lowest commission will get the retail trade. OK? The brokers that maximize rebates are able to offer the lowest commissions. In fact, anecdotal evidence suggests that Interactive Brokers, 

at least during our sample period, had a higher commission than 

these other four brokers. So these four brokers attract the retail in-
28 

vestor by offering low commission, and the retail investor trusts 

the broker because of the best execution obligations, and it does not 

have the tools—you could look at our paper and decide how hard 

it is to figure out what we did. They do not have the tools to understand, gee, in this instance did my broker route to the right venue 

to maximize the likelihood of execution like NASD 01–22 says? 

That is the agency problem. 

You can shop on commission. You cannot evaluate the execution 

quality. And so they are doing things that may compromise execution quality. They have the lowest commission. And they are going 

to attract a swath of customers that way. 

And if you talk to people on the board of Interactive Brokers, 

they will complain about this. So certainly competition is forcing 

commissions lower, but people who do the practice of routing all 

the nonmarketable to the high-fee venue and selling the marketable to the wholesalers, they get more revenue that could be used 

to push back through commissions, right? And so it is hard—this 

would be a case where maybe the market cannot fix things unless 

you can educate the investor to evaluate this decision of routing 

nonmarketable orders, which is tough. 

Senator LEVIN. So you are saying maybe it cannot be solved in 

this case—— 

Mr. BATTALIO. I am all about free markets, trust me. 

Senator LEVIN. Of course. In this case, it may not and has not 

so far worked, is what you are saying. 

Mr. BATTALIO. That is what we think. 

Senator LEVIN. Do you agree with that, Mr. Katsuyama? 

Mr. KATSUYAMA. IEX is a new venue. Before the SEC published 

the Midas data and before FINRA had their ATS reporting rule, we 

had no idea how we compared to other markets. So other markets 

would make claims that could or could not be substantiated. So as 

you are competing, how do you compete in a market that is completely opaque and, is primarily dictated by word of mouth or selfgenerated reports? I do not think we fully had a chance to solve 

this problem from an industry standpoint because the data was 

just not available for people to make good decisions, or better decisions. 

Senator LEVIN. But do you think the average investor can make 

a decision on where a broker is going to get best execution? 

Mr. KATSUYAMA. That is a good question. I would say probably 

not. But the key part is that the people that do spend the time to 

look at it, some people in the media are very sophisticated. They 

understand the heart of this issue. And I think that as they report 

on things that are happening as the retail investors who do look 

at it start to make decisions, it does create the right amount of momentum so that someone who does not have time or inclination to 

understand market structure understands that people are looking 

out for their best interests and they can make decisions that way. 

Senator LEVIN. How do they make a judgment on best execution, 

is it a subjective judgment? How does your average investor just 

looking at the fees, the commission, think that is lower, that is 

pretty attractive? This is what the professor is saying. Is that not 

right, Professor? 

Mr. BATTALIO. That is correct. 
29 

Senator LEVIN. So now how does that average investor do what 

you think needs to be done, make some kind of assessment on best 

execution? How does he do that? 

Mr. KATSUYAMA. Sure. You have to put in the requisite amount 

of time to understand it, to make that judgment. Most people will 

not. So, again, I think that the more that this is discussed and reported on, hopefully the venues that are doing the right things get 

the right amount of credit. 

Senator LEVIN. If transparency is the answer, should the government force transparency? 

Mr. KATSUYAMA. I do believe there are cases where that would 

definitely help. 

Senator LEVIN. The government actually would have to force 

transparency? 

Mr. KATSUYAMA. I think outlining the types of metrics that need 

to be reported and the way those metrics need to be calculated and 

presented would definitely be helpful, yes. 

Mr. BATTALIO. The government has done this one, and it is not 

a big step, what they would have to do to kind of clean things up. 

Senator LEVIN. But the market has not done that yet. It would 

take the government forcing that. Is that correct? 

Mr. KATSUYAMA. There has been no attempt by the market to try 

to solve this issue and just standardize across themselves and to 

say let us make this easier for people to understand. We have not 

seen evidence that that is happening. 

Mr. BATTALIO. And indeed—— 

Senator LEVIN. And, therefore? 

Mr. KATSUYAMA. And, therefore, I think the government would 

be very helpful in helping to get the industry to coordinate to a 

level to make these issues easier to identify. 

Senator LEVIN. And it would be helpful if the government required that? 

Mr. KATSUYAMA. Yes. 

Senator LEVIN. Thank you. 

Mr. BATTALIO. The options market tried to do it on a voluntary 

basis back in 2010, and the numbers they put out were garbage, 

mostly, so yes. 

Senator JOHNSON. Just a quick comment. Again, as an individual 

investor, the way I evaluate best execution is I put in an order for 

$20, I got it for $20. Again, this is so incredibly complex, and there 

are so many esoteric terms of art here. You have got to bring it 

back—I am trying to bring it back to just the simplicity of what 

is happening in the marketplace with individual retail investors, 

and if I put in an order for 100 shares at $20 and if I get it and 

I am only paying $10, I am reasonably satisfied. 

Now, occassionally, there may be some very strange circumstances where I do not get that share, but I kind of shrug and 

go, OK, well, I did not get it. Maybe there is some harm, but I am 

highly concerned about government interference in the marketplace. If there is a very minimal amount of transparency legislation 

in terms of this is the data that we want everybody to report, 

again, minimal, not a huge overall regulation that harms the market, that is something I would be willing to support. 
30 

But, again, I really want to put this in perspective, what is the 

real harm being caused, and let us make sure we do not do more 

harm in trying to solve a problem that right now this is really a 

solution looking for a problem in many respects. 

Mr. KATSUYAMA. Yes, I definitely would say that focusing on disclosure will create the least amount of harm and implementation 

risk rather than diving into things such as co-location and the actual mechanics of the market. So, if we are going to move forward, 

I think that—— 

Senator LEVIN. Professor. 

Mr. BATTALIO. I agree 100 percent. 

Senator LEVIN. OK, with what he just said. 

Mr. BATTALIO. Yes, and what Mr. Johnson said. 

Senator LEVIN. OK. That you want to have disclosure, you want 

to have transparency, but you would agree it may take government 

action to get that transparency? 

Mr. BATTALIO. Yes, and push it back on to the brokers. 

Senator LEVIN. Push it on the—thank you. 

Senator MCCAIN. And this is just a minor issue that we should 

not be concerned about in the overall scheme of things. Is that correct? 

Mr. BATTALIO. My view is the reason academics are around and 

reporters are around is if the retail investors cannot understand it, 

we study it, bring it to light, and then things get cleaned up, somewhat. 

Senator MCCAIN. Is it a serious issue? 

Mr. BATTALIO. We think it is. But we also think it is an easy one 

to fix. 

Senator MCCAIN. Thank you. 

Senator LEVIN. Mr. Katsuyama, is this a significant issue? 

Mr. KATSUYAMA. I think it is significant it is a principle-based 

issue. I think that you can try to minimize it by trying to relate 

how much it is pennies, etc., and people are holding stocks for 

years. But this is a principle-based issue, and it comes down to the 

foundation of why the markets exist and people’s trust in those 

markets. Trust is really about saying: ‘‘Without me paying attention, I believe that the right things are happening in my best interests,’’ and when you find out that they are not, those are instances 

which undermines trust. 

In your opening statement, discussing the fact that we have had 

a tremendous rally from 2009, yet the amount of households owning equities [participating in that rally] has not followed that 

trend. So, I would argue that a series of events over the last number of years have lead to a decrease in investor confidence which 

led us to quit our jobs and start IEX. And I think that, from an 

investor confidence standpoint, my hope is that March 31 [publication date of Michael Lewis’ ‘‘Flash Boys’’] becomes a low point. We 

have received a tremendous amount—thousands and thousands of 

calls and emails and letters from people who are actually looking 

to get back into the market. 

If there are people that feel like we did the wrong thing by 

speaking about it, we have not heard from them, we have not 

heard from the general public. We have gotten a lot of anger from 

Wall Street—not all—but, again, people embedded in the status 
31 

1The prepared statement of Mr. Farley appears in the Appendix on page 77. 

quo do not want to see change happening. And I think that those 

who do want change have been very supportive of us. 

Senator LEVIN. Thank you. Thank you both. I appreciate your 

coming. 

Mr. KATSUYAMA. Thanks a lot. 

Mr. BATTALIO. Thank you. 

Senator LEVIN. Let us see. What time is it now? Have the votes 

started? I think the votes have started. 

We are checking to see if the votes have begun. Again, I am 

going to stay here through these first two roll call votes, so my colleagues here, you can adjust how you wish. 

We will now call our second panel of witnesses: Thomas Farley, 

the President of the New York Stock Exchange Group in New York; 

Joseph Ratterman, Chief Executive Officer of BATS Global Markets in Lenexa, Kansas; Joseph Brennan, Principal and Head of 

Global Equity Index Group at the Vanguard Group in Malvern, 

Pennsylvania; and Steven Quirk, Senior Vice President of the Trader Group at TD Ameritrade in Omaha, Nebraska. 

We appreciate all of you being here today, and under our Rule 

6, as I think you heard, all of our witnesses are required to be 

sworn, so we would ask you to please stand and raise your right 

hands. Do you swear that the testimony you are about to give to 

this Subcommittee will be the truth, the whole truth, and nothing 

but the truth, so help you, God? 

Mr. FARLEY. I do. 

Mr. RATTERMAN. I do. 

Mr. BRENNAN. I do. 

Mr. QUIRK. I do. 

Senator LEVIN. Thank you, and we will use, again, the timing 

system. A minute before the red light comes on, you will see the 

light change from green to yellow, giving you an opportunity to 

conclude your remarks. Your written testimony will be printed in 

the record in its entirety. Please try to limit your oral testimony 

to no more than 5 minutes. 

Mr. Farley, we are going to have you go first, followed by Mr. 

Ratterman, then Mr. Brennan, and then Mr. Quirk. Thank you all 

for being with us. 

TESTIMONY OF THOMAS W. FARLEY,1 PRESIDENT, NEW YORK 

STOCK EXCHANGE, NEW YORK, NEW YORK 

Mr. FARLEY. Thank you. Chairman Levin and Senator Johnson, 

we appreciate your interest in the regulatory structure of the U.S. 

capital markets. My name is Tom Farley, and I am the President 

of the New York Stock Exchange. I have been in the business of 

running exchanges for most of my career including as President 

and COO of ICE Futures US—formerly the New York Board of 

Trade. 

As market operators, we have come to the view that the U.S. 

equities market is highly fragmented—making it overly complex 

and opaque. The regulations and structures in place today 

incentivize participants to make it more complex and more opaque. 

Numerous surveys and recent history have shown that this struc-
32 

ture does not contribute to investor confidence or high systems reliability. 

As the dominant rule setting the boundaries of equity market 

structure, Regulation NMS set out to accomplish several objectives. 

The first was to increase competition among markets and among 

orders. While the rule did an excellent job of increasing competition 

among markets, we believe competition of orders has been severely 

damaged, particularly in recent years, due to the record level of offexchange trading and increased levels of order fragmentation. In 

fact, just last week, off-exchange trading reached a record high of 

40.5 percent across all Regulation NMS securities. This means that 

despite someone taking a risk to establish the National Best Bid 

or Offer on a displayed market—fully regulated exchange—brokers 

decided to execute the trade away from the displayed, or fully regulated, market 40 percent of the time rather than rewarding the 

people who established the NBBO—national best bid or offer—with 

an execution. We find this troubling and damaging to price discovery. 

The second objective of Regulation NMS was to design a structure to the benefit of long-term investors and public companies. 

Long-term investors have benefited in many ways from the implementation of Regulation NMS; however, data now shows that some 

of these benefits, such as lower costs, might be reversing. In addition, we consistently hear from large institutional investors that 

there are too many conflicts in the current market structure and 

that they would like to see those conflicts eliminated or, at least, 

reduced. 

Perhaps most importantly, we hear from listed companies and 

entrepreneurs that they believe the market is not designed for 

them but rather for the trading community, and as a result, they 

have lost confidence in the market. Newly listed companies via the 

IPO process are the lifeblood of our economy and our markets. 

The New York Stock Exchange will take a leadership role in 

bringing about beneficial change. Our goal is simple: reduce the 

level of complexity and fragmentation of the U.S. stock market. To 

accomplish this goal, there are several unilateral steps that we are 

committing to take and that we would welcome our industry colleagues to also adopt. To start, we are self-imposing a 6-month 

moratorium on any new, or novel, order types that further segment 

the market. In addition, we have already announced the elimination of more than a dozen existing order types. We believe these 

are first steps toward reducing complexity and toward a more efficient market structure, and we will look for other steps that we can 

take along these lines. 

At an industry level, we are seeking support for the elimination 

of maker-taker pricing and the use of rebates. Broad adoption of 

this policy would reduce the conflicts inherent in such pricing schema and further reduce complexity through fewer order types and 

fewer venues. In conjunction with the elimination of maker-taker 

and rebates, we believe regulation should require that deference be 

given to displayed quotes on fully regulated exchanges. There is 

risk involved in displaying a quote on such a venue, and we believe 

strongly that the person taking that risk should be rewarded with 

an execution at that price. Unfortunately, in today’s environment, 
33 

1The prepared statement of Mr. Ratterman appears in the Appendix on page 79. 

those displayed quotes are used to inform trading on dark markets 

which are not contributing to the price discovery process. The original investors who posted these public quotes are all too often left 

with no trade at all. Several countries, including Canada and Australia fairly recently, have adopted rules that establish this type of 

primacy of public quotes. In the cases of Canada and Australia, the 

regulators have established that this policy has simplified and even 

improved their markets. 

Last, as you heard on the first panel this morning, there are 

questions as to whether or not some market participants are able 

to build an advantage over others by using high-speed data feeds 

and co-location services. While it should be noted that both of these 

services are regulated and made available to all investors equally, 

we believe that if something results in a loss of investor confidence, 

we should find a way to change it. NYSE is willing to put all options on the table as it pertains to the delivery of market data; 

however, we highlight that this cannot be done in a vacuum, and 

any changes must be applied equally to all exchange and dark pool 

venues. 

Thank you for your time, and I look forward to answering any 

questions you may have. 

Senator LEVIN. Thank you very much, Mr. Farley. 

Mr. Ratterman. 

TESTIMONY OF JOSEPH P. RATTERMAN,1 CHIEF EXECUTIVE 

OFFICER, BATS GLOBAL MARKETS, INC., LENEXA, KANSAS 

Mr. RATTERMAN. Good morning. My name is Joe Ratterman, 

Chief Executive Officer of BATS Global Markets and one of the 

founding employees. I want to thank Chairman Levin, Ranking 

Member McCain, and Senator Johnson for inviting me to participate in today’s proceedings. 

I was encouraged with the sentiments recently expressed by SEC 

Chairman Mary Lou White who said that our markets are ‘‘not broken, let alone rigged.’’ I agree with her. The automation of the U.S. 

equity markets has resulted in significant enhancements in market 

quality for long-term investors. Importantly, however, I also recognize that our markets are not perfect and that efforts to improve 

them should never let up and never cease. Our current market 

structure is a product of Congress’ 1975 amendments to the Exchange Act and subsequent rulemaking by the SEC to implement 

a national market system. 

The SEC, working in significant part through the exchanges and 

other SROs, has created a system that allows market competition 

while at the same time, and just as vital, fostering price competition. 

Today our equity markets are widely considered to be the most 

liquid, transparent, efficient, and competitive in the world. Costs 

for long-term investors in U.S. equities are among the lowest globally and declining. These gains 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 
34 

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

to investors in the former 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 that, since 1998, institutional 

trading costs had declined and are among the lowest in the world. 

Earlier this month, ITG reported 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. 

Further, our market is able to handle volume and message traffic 

considered astronomical only a short time ago. The efficient operation of our market structure throughout stress of the 2007–09 financial crisis indicates the systemic risks that have been reduced 

as a result. 

Efforts to address infrastructure risks since the flash crash of 

2010 are producing further beneficial results. For example, the 

number of erroneous executions occurring on our markets is pace 

this year to be nearly 85 percent lower than the previous 5-year average, results that stem from the success of the recently enacted 

limit-up/limit-down plan. 

In addition, exchange systems 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 help 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 participated 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 done. 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 

606 could be amended to require disclosure about the routing of institutional orders as well as separate disclosures regarding the 

routing of marketable versus nonmarketable orders. 

Third, to strengthen the confidence of the investing public in 

market data, I continue to support initiatives to make the SIPs, 

also known as consolidated tapes, as fast as possible. This is a position that BATS has advocated since becoming an exchange in 2008. 
35 

1The prepared statement of Mr. Brennan appears in the Appendix on page 87. 

And, finally, I support the eliminate of the ban on locked markets, part of Reg NMS, which we believe is a primary driver of excessive complexity in our national market system. 

Thank you for the opportunity to appear before you today, and 

I would be happy to answer your questions. 

Senator LEVIN. Thank you very much, Mr. Ratterman. 

Mr. Brennan. 

TESTIMONY OF JOSEPH P. BRENNAN,1 PRINCIPAL AND HEAD 

OF GLOBAL EQUITY INDEX GROUP, THE VANGUARD GROUP, 

INC., MALVERN, PENNSYLVANIA 

Mr. BRENNAN. Thank you, Chairman Levin, Ranking Member 

McCain, and Members of the Subcommittee for inviting me to participate today. My name is Joe Brennan. At Vanguard, I am responsible for overseeing the management of our equity index mutual funds. 

Vanguard serves more than 20 million investors who entrust us 

with $2.6 trillion of their retirement and education savings. Vanguard’s core mission is simple: to take a stand for all investors, to 

treat them fairly, and to give them the best chance for investment 

success. 

Before getting into specific comments on potential improvements 

to our current equity market structure, I would like to make two 

fundamental points. 

First, the markets are not rigged. We have a high degree of confidence in the markets as a safe place for investors to place their 

assets. 

Second, all investors have benefited from improvements to our 

equity market structure. Through regulatory initiatives over the 

past two decades, most notably Regulation NMS, our equity markets have evolved to a competitive marketplace that is connected 

through highly advanced technology. Over time, this structure has 

led to lower transaction costs for all market participants. Individual investors who access the equity markets through asset managers like Vanguard have benefited from the market structure improvements that have been made over the past 20 years. Additional 

improvements can be made, and we are very pleased to discuss 

those issues with the Committee today. 

We also commend SEC Chairman White for initiating a comprehensive review of ways to further strengthen the markets. We 

look forward to working with the Commission in this regard. 

I will now briefly discuss a topic that has garnered considerable 

public attention recently: high-frequency trading. While the term 

‘‘high-frequency trading’’ has become shorthand for disruptive trading, there is a significant amount of legitimate activity, such as 

market making, which also falls under this broad umbrella. Today’s market structure contains many venues in which trades can 

be executed. Professional traders and technology are the yarn that 

knits these venues together. 

Our efforts should not be focused on banning high-frequency 

trading; rather, we suggest examining our market structure holis-
36 

1The prepared statement of Mr. Quick appears in the Appendix on page 93. 

tically to ensure it is providing the incentives for the type of activity we would like to see. 

To accomplish this goal, Vanguard supports efforts by regulators 

to comprehensively reevaluate Reg NMS. As time has passed and 

the markets have changed, most would agree that it is time to reassess whether this regulation continues to further the goals of our 

national market system. We would suggest the most important goal 

of a national market system is to create a structure that encourages market participants to publicly display limit orders. Such a 

structure promotes price discovery and lowers transactions costs for 

all investors. 

In that light, Vanguard supports regulatory efforts to revisit the 

current maker-taker pricing model of the exchanges. Fundamentally, it is important to understand that these models did not develop from any nefarious intent. They are the exchanges’ response 

to the proliferation of market centers enabled by Reg NMS and a 

way for the exchanges to continue to attract liquidity. However, the 

models have become unnecessary complex, and the decision to submit orders to the public markets should not be driven by the desire 

to capture a rebate or avoid a fee. 

Any reevaluation of the maker-taker models must be connected 

to an analysis of other ways to encourage publicly displayed orders. 

Specifically, we support a pilot of a ‘‘Trade-At’’ rule under Reg 

NMS. Today a market center can execute an order at the best publicly displayed price without actually contributing to the public 

price discovery process. Generally speaking, those that publicly display their interest first should be first in line for any execution at 

that price across the markets. 

A well-designed pilot of a ‘‘Trade-At’’ rule under Reg NMS could 

help strike the appropriate balance between promoting public competition of orders while still encouraging competition among a variety of market centers. Regulators and industry participants have 

been working diligently over the past few years to take steps to 

continuously improve the manner in which our markets operate. 

The equity markets are extremely complex, and it is vitally important to examine all of the potential consequences of any changes 

to our structure. 

We believe the SEC and FINRA are well equipped to continue to 

evaluate ways to improve our markets, and we commend them for 

the work they have already performed. 

I thank you for allowing me to participate in this discussion, and 

I welcome your questions. 

Senator LEVIN. Thank you very much, Mr. Brennan. 

Mr. Quirk. 

TESTIMONY OF STEVEN QUIRK,1 SENIOR VICE PRESIDENT, 

TRADER GROUP, TD AMERITRADE, OMAHA, NEBRASKA 

Mr. QUIRK. Good morning, Chairman Levin, Ranking Member 

McCain, and Members of the Subcommittee. My name is Steve 

Quirk. I am Senior Vice President with TD Ameritrade. I appreciate the opportunity to appear before you today. I thought I would 
37 

spend a brief moment on TD Ameritrade and the clients that we 

serve so you have a better understanding of what we do. 

We are a financial services company serving primarily retail in- vestors. We have over 6 million client accounts with $600 billion 

in assets, including custodial services for 4,500 individual representative registered investment advisors and their clients. We 

are based in Omaha, Nebraska, and we were one of the first firms 

to offer discounted commissions to retail investors. Since our founding in 1975, we have also pioneered innovations such as touch-tone 

trading, Internet trading, and most recently mobile trading. 

We have been on a quest to level the playing field between Wall 

Street and Main Street investors for almost 40 years. As a result 

of that, our clients have entrusted us with approximately a quarter 

trillion in net new assets since 2007. We interact with these clients 

daily and do third-party surveys to better understand their market 

sentiment. Based on this and other data, we do believe that the 

current U.S. equity market structure has never been better for 

those retail investors. In fact, the number of our firm’s accounts 

that are trading is up 31 percent on a year-over-year basis. 

Our retail clients tell us they want their entire orders filled 

quickly and inexpensively at the price quoted or better. In each of 

those areas, we have seen significant improvement in the last decade, as detailed in the written testimony. 

When it comes to order routing, brokerage firms have two options: they can internalize and trade against that, or they can route 

that to the market centers and destinations. Based on our open architecture and unbiased and unconflicted business model, we believe it is in the best interest of our clients to send their orders to 

a mix of market centers, including exchanges, wholesale market 

makers, and ECNs. While these market destinations serve a variety of purposes, we think they are all vital in driving the competition, which ultimately benefits investors. 

The Subcommittee has asked for our views on conflict of interests 

for brokers obligated to obtain best execution for client orders but 

also receive payments or rebates based on where that flow is directed. We strongly believe that with compliance with best execution obligations and proper disclosure, brokers can effectively manage any conflict that may arise from payments. Furthermore, we 

strongly believe that we effectively manage any such conflict. 

Brokers are required to seek the most favorable terms reasonably 

available under the circumstances for client orders. At our firm we 

consider the opportunity to obtain a better price than currently 

quoted, the speed of execution, and the likelihood of execution, 

amongst other factors when making that assessment. 

We also give our clients a choice. Their orders can be routed 

using our proprietary order routing logic, or they can choose from 

a list of direct routing destinations. 

Finally, we work with multiple market destinations. Rather than 

internalize our client flow, we believe that routing all orders to the 

market is more transparent and better aligned with the needs of 

our clients. We select these market centers based on rigorous due 

diligence where execution quality is the top priority. After, and 

only after, a market satisfies our standards for best execution do 

we consider transaction costs or revenue opportunities. This proc-
38 

ess complies with SEC rules enacted after thoroughly reviewing 

this issue on numerous occasions. 

The payments or rebates that brokers receive are transparently 

disclosed as an average per share in our quarterly 606 reports; 

they are also on our account Statements and are on confirmations, 

which are all required by SEC rules. 

Finally, we have provided the Subcommittee with a list of recommendations that we believe could enhance our Nation’s current 

market structure without compromising many of the benefits retail 

investors have realized in the past years. Just as we constantly 

seek to improve our client experience, our industry should do the 

same. But let us not lose sight or compromise many of the improvements that have been made. 

We appreciate the opportunity to be part of the conversation. 

Thank you. 

Senator LEVIN. Thank you very much, Mr. Quirk. 

Let me start first with you, Mr. Farley. Jeff Sprecher, the head 

of the Intercontinental Exchange, which owns the New York Stock 

Exchange, which you represent here today, has said that the 

maker-taker system misaligns the interests of brokers and their 

customers and hurts everyone in the market. ‘‘We should get rid 

of it,’’ he said. Do you agree with him? 

Mr. FARLEY. Yes. Jeff also says—and let me start by saying, Senator, that the U.S. capital markets are indeed the best in the 

world, but for 225 years the New York Stock Exchange has advocated on behalf of customers and stood for improving markets and 

not just accepting a flawed status quo. 

To answer your question directly, there are really two areas 

where we are most concerned about the markets today: one is the 

appearance of conflicts, primarily because we think that undermines confidence in the markets; and the second is undue cost and 

complexity in the markets that we have heard a lot about today. 

Maker-taker gets to the heart of both of those issues and concerns 

that we have, and it is for those reasons that we have advocated 

eliminating maker-taker in its entirety in the equity markets in 

this country. 

Senator LEVIN. Well, very significant testimony when an exchange which has been here as long as you have been here makes 

that point. And you have said in your testimony that we are seeking support for the elimination of maker-taker pricing and the use 

of rebates. And then you said, ‘‘Broad adoption of this policy would 

reduce the conflicts inherent in such pricing schema . . .’’ Explain 

that now to the Subcommittee. I happen to agree with you that 

those conflicts are inherent, but tell us in your words why elimination of the maker-taker pricing would reduce conflicts that are 

inherent in such pricing. 

Mr. FARLEY. Sure. And if I may, if I could just provide a little 

bit of context, I came from a company called Intercontinental Exchange, and we agreed to acquire the New York Stock Exchange 

on Thanksgiving of 2012. And so we came to this with a perspective of other markets like the futures markets, which are deep and 

liquid and people generally will acknowledge that those markets 

function properly. And there is no such thing in those markets as 
39 

maker-taker pricing, for example. So it was something we very 

quickly wanted to understand more about. 

The first thing that we noticed was that the maker-taker schema 

results in many more order types in the equities markets than you 

have in other markets, such as, for example, the futures markets. 

And many of those order types are simply in existence to help market participants capture the maker-taker spread. 

And so we realized while this pricing schema introduces a good 

deal of complexity, with respect to the conflicts issue that you described in particular, it has been frustrating to us that in a period 

of rising stock prices we have not seen more participation in the 

equities markets from investors. In fact, data shows that the participation in terms of percentage participation of U.S. citizens is at 

a 16-year low. And we think a reason for that, an important reason 

for that, is just confidence in the markets. Markets rely on confidence. We cannot say that enough. 

And irrespective of whether or not there is an actual conflict or 

a conflict that is resulting in some sort of bad behavior, the appearance of conflict matters. And it is for that reason that we look at 

maker-taker pricing, and we say there may be an appearance of 

conflict there if a broker-dealer’s interests are not aligned with 

their customers, and that is something that can potentially arise 

with maker-taker pricing. 

Senator LEVIN. Well, the appearance of a conflict is obviously important because of the confidence issue and also because underneath the appearance there may be more than an appearance. But 

your testimony actually is even clearer than that. As you say, you 

support elimination of maker-taker pricing and the use of rebates, 

and that broad adoption of that policy would reduce the conflicts 

inherent—you use the word ‘‘inherent.’’ Explain that. 

Mr. FARLEY. So any reasonable business person does not like to 

be in a position of having their interests not aligned with their customers’. When you have maker-taker pricing, there are examples, 

as Professor Battalio described this morning, where a broker-dealer 

has an incentive to post a price on a high-make rebate venue even 

if the execution quality on that particular venue is not as high as 

another venue. That arises specifically because of—or it is certainly 

exacerbated because of maker-taker pricing. 

Senator LEVIN. And that is why there is a conflict inherent in 

that pricing schema. 

Mr. FARLEY. That is right. 

Senator LEVIN. Now, Mr. Ratterman, I will give you a chance 

now to—first of all, before we ask you to comment or react to that, 

you said earlier this year, I believe, that businesses offer incentives 

for customers to be in their ecosystem all the time. Who are the 

customers you were referring to? Are they brokers? 

Mr. RATTERMAN. Yes, our customers are all brokers. 

Senator LEVIN. All right. Now, let me give you an opportunity to 

respond to Mr. Farley’s testimony. 

Mr. RATTERMAN. Sure. So from my perspective, in our firm we 

do not believe that there should be a ban on maker-taker. We are 

certainly open, if there is a pilot, to looking at the data, but my 

answer stems from my concern for the potential benefits and 

spread reduction that maker-taker may have produced over the 
40 

last 10 or 15 years, not for any commercial purpose about the way 

we run our exchange. Our exchange is in the business of matching 

buyers and sellers, fair and orderly markets. When we have a 

trade, we are going to deserve revenue for that trade as it happens. 

How we do that, there is today a significant amount of flexibility, 

and I believe that flexibility has allowed for innovation in pricing 

and markets, and that incrementally the rebates that are offered 

in many cases to market makers to take the risk to put bids and 

offers in the market has yielded tighter spreads over time. 

I also do not believe that eliminating maker-taker would eliminate a conflict. I am thinking, as Senator Johnson walked through 

an example earlier, a broker’s evaluation of a trade, examining 

where he would get a rebate for 30 cents or maybe pay 15 cents, 

he is looking at a spread of 45 cents in relation to the likelihood 

or not likelihood of getting an execution where he actually does get 

paid, and when he does not trade or his order does not fill, there 

is no commission to the broker. 

So by eliminating maker-taker, you would only compress the 

range of the conflict, but the conflict would still exist as long as 

there is differential pricing between exchanges. So I think the only 

way to potentially eliminate the conflict then is to mandate exchange pricing at a fixed level for all exchanges all the time. 

So the conflict will remain unless there is a significant intervention, and I believe disclosure, as we have talked about earlier today 

in the hearing, is the right answer to provide the information so 

that not only brokers but their customers can evaluate whether 

these conflicts have actually been managed well in favor of the client or not. But I do not see any path by which the elimination of 

the conflict can be achieved. 

Senator LEVIN. Mr. Farley, do you want to comment on that? 

Mr. FARLEY. Sure. 

Senator LEVIN. Can we reduce the conflict that is inherent that 

you talked about? And can we reduce the appearance by removing 

the maker-taker pricing? Or have you changed your mind after 

hearing Mr. Ratterman? [Laughter.] 

Mr. FARLEY. I actually found more areas of agreement with Mr. 

Ratterman than maybe I would have otherwise expected from the 

way his answer started. I think he—if I am putting words in your 

mouth, Joe, correct me. But he said, look, that may reduce the conflict, but it would not eliminate it. And so we are both agreeing directionally that it would have an impact on conflict or the appearance of conflict in the market. 

But I also want to highlight that, again, the reasons why we 

have been focused on this are twofold: one is around this conflict 

issue, and the second is around complexity in the markets, additional order types and venues. And it is worth noting that, at the 

New York Stock Exchange, I have three equities trading venues, 

Mr. Ratterman has four. We have a competitor that also has four. 

A lot of those venues exist really principally because of makertaker pricing, and those venues are creating different pricing 

schemas using maker-taker pricing for our customers. 

And then, finally, and I will conclude briefly, I agree with Mr. 

Ratterman about another point he made, which is that we have to 

be careful about the elimination of maker-taker to make sure that 
41 

there are not wider spreads on fully regulated exchanges, which is 

why it is very important to us that such a move would be tightly 

coupled with giving what we call primacy of the public quote on lit 

exchanges to the participants who made those quotes. And that is 

something that does not exist today, and people are able to trade 

in dark markets at the same price as is posted on an exchange. 

Senator LEVIN. And reducing the conflict would be valuable even 

if you cannot eliminate it? 

Mr. FARLEY. Yes. 

Senator LEVIN. Mr. Sprecher, your boss, in January said the following: ‘‘The price that we see as a bid-offer price in the market 

is really not the price because there are rebates and other discounts that are applied. . . . So we do not have a view of the actual price which I think is to a certain degree false advertising 

when you have a public ticker.’’ 

Do you agree that maker-taker fees are distorting market prices? 

Mr. FARLEY. I agree with what Jeff said. He is my boss, after all. 

Senator LEVIN. If he were not your boss—he is not listening. 

[Laughter.] 

Do you believe that maker-taker fees are distorting market 

prices? 

Mr. FARLEY. Well, if I can just address the comment that Jeff 

made, I think it is a matter of fact that posted prices on exchanges—and also there are posted prices that go out through our 

own raw data feeds or public feeds—do not include the fees associated with them. So that is accurate that they do not include allin prices. 

So to the extent somebody is viewing that data and assuming 

that it does include the various make rebates and take fees, from 

their perspective it would be distorted. If somebody understands 

that it is not included, they are just receiving a different data set. 

Senator LEVIN. Did anything that you hear Mr. Ratterman say 

change your view that the maker-taker schema, as you put it, creates an inherent conflict? 

Mr. FARLEY. No. 

Senator LEVIN. Now, Mr. Sprecher also said the following, Mr. 

Farley, that maker-taker ‘‘creates false liquidity.’’ Do you agree 

with that? 

Mr. FARLEY. I suppose I have a slightly different perspective on 

it. 

Senator LEVIN. Give us your perspective. 

Mr. FARLEY. So, again, I come from a career mostly spent in the 

futures markets, and the type of liquidity and market making we 

most value comes from participants who will show up and buy from 

sellers and sell to buyers and actually engage in risk transference 

where they will hold a position for a period in time. 

Fairly new to the equities markets now—a year and a half in— 

what I see is there is a whole swath of market making that is essentially stitching back the 50-plus venues you mentioned earlier 

this morning, and there are many examples of participants who are 

buying and selling at the exact same price at the exact same time 

on different venues, in part to capture maker-taker rebates. That 

is a different form of liquidity. I would choose different words than 
42 

Jeff did, ‘‘false liquidity,’’ but it is not as valuable as the type of 

liquidity that we have always valued at ICE in building markets. 

Senator LEVIN. It is a different kind of liquidity which is not as 

valuable as the kind of liquidity which is created where there is a 

real shifting of risk. 

Mr. FARLEY. No question. And it is a blanket of cost on the industry, stitching back together those—50 is a conservative number, 

but stitching back together those 50 venues. 

Senator LEVIN. I think we have all heard about a recent survey 

of equity market participants that suggested that the majority of 

those surveyed thought that the equity markets were not fair for 

all participants. Is there a lack of confidence? Would you agree, Mr. 

Farley? And do the conflict of interests fuel that lack of confidence? 

Mr. FARLEY. I look at statistics such as the one that I believe you 

cited, Senator, that two-thirds of Americans had equities in their 

account not too long ago, maybe a decade ago, and now it is half; 

that participation in the equities markets is at a 16-year low; and 

I look at that empirical data. I also look at the anecdotal data, and 

I am sure you, like I, have conversation about the equity markets 

with your friends and family. I grew up down the road here in P.G. 

County, and when I go back home, inevitably people ask me, ‘‘What 

is going on in the equities markets? Tell me about these high-frequency traders.’’ And there is a sense, it is unfortunate, but there 

is a sense that we do not have as much confidence in the markets 

as we once had, which is why we as the New York Stock Exchange, 

from the moment ICE agreed to acquire the New York Stock Exchange, has been standing for what can we do to increase confidence, what can we do to simplify the markets. Because as simple 

as you can make—to inspire confidence, you would to make the 

market as simple as you possibly can and as transparent as you 

possibly can. 

Senator LEVIN. And as free of conflict of interests as you possibly 

can? 

Mr. FARLEY. Yes. 

Senator LEVIN. Mr. Brennan, your main business is investment 

management, and you offer mutual funds and other investment opportunities for your customers. Do you believe that the makertaker pricing creates a conflict of interest between a broker’s duty 

to seek best execution and the money a broker can make by pursuing rebates? 

Mr. BRENNAN. Yes, we think the maker-taker pricing model creates an appearance of a conflict of interest and adds additional 

complexity to the market. We are in favor, as we have stated, of 

looking at maker-taker as part of a comprehensive review of Reg 

NMS in our market structure. 

Senator LEVIN. Do you think that that should be eliminated? 

Mr. BRENNAN. I think we should test any changes with a pilot. 

I am not sure elimination is the answer. I think pilots and datadriven analysis are the best way to really make decisions on 

changes in market structure. 

Senator LEVIN. And the pilot would be to remove maker-taker in 

a particular pilot area? 

Mr. BRENNAN. Sure. I think—— 
43 

Senator LEVIN. What area would you suggest that maker-taker 

be eliminated on a pilot basis? How would you describe the pilot 

or how would you define the pilot area? 

Mr. BRENNAN. I think experts at the SEC should work with industry participants to define the pilot. I think all market participants should be involved in the definition of the pilot. 

Senator LEVIN. And the reason that you want to move in that direction is because you believe, and your company believes that 

there is an appearance of a conflict? 

Mr. BRENNAN. Yes, maker-taker does create an appearance of a 

conflict. I think we are all in agreement. 

Senator LEVIN. Now, Mr. Brennan, some of the conflicts that we 

discussed today are the result of payments that are a penny a 

share or a few cents a share. Why does it matter to you that a conflict or an appearance of a conflict be removed if it is a few pennies 

a transaction? 

Mr. BRENNAN. Well, we generally stand for what is in the best 

interests of our clients, and we are—for transparency and a fair 

market, and conflicts—eliminating conflicts and reducing conflict of 

interests in our market is something that would benefit our clients. 

Senator LEVIN. Does it also create a problem for you to check on 

execution? 

Mr. BRENNAN. It does not create a problem for us. 

Senator LEVIN. Do you spend time looking at the execution of 

brokers? 

Mr. BRENNAN. Yes, so—— 

Senator LEVIN. If maker-taker were eliminated, would that result 

in less time being spent by you and your company reviewing the 

execution of brokers? 

Mr. BRENNAN. Our approach to our counterparties is probably 

four- or five-fold. 

Senator LEVIN. When you say ‘‘counterparties,’’ who—— 

Mr. BRENNAN. Brokers, to the use of brokers, our choice of brokers. We have a lot of choices in who we can transact with. We 

really scour the marketplace looking for the best place to execute 

our transactions. We have highly skilled traders who manage our 

portfolios on behalf of our clients. And we have choice to eliminate 

a broker if they are not living up to our needs. 

Along with that skill and expertise, we also have a trust but 

verify mode of operation where post-trade analytics are performed 

to see that our brokers are actually living up to our requirements. 

Senator LEVIN. And I think your company told our staff that 

monitoring brokers to ensure or try to ensure best execution is a 

significant effort and that they would rather not have to do so in 

a conflicted environment. Is that true? 

Mr. BRENNAN. We think it would be a significant effort, whether 

maker-taker existed or not. To be honest, we do a lot of trading, 

$1 billion, $2 billion of trading a day, 6 million trades a year. I 

think we owe it to our clients to do everything to ensure their execution is top-notch. 

Senator LEVIN. And even though the amount of money per transaction may be 30 cents, or whatever it is, is that still true? Do you 

worry about that being added to a transaction? 

Mr. BRENNAN. The 30 mil cap? 
44 

Senator LEVIN. Yes. 

Mr. BRENNAN. Yes, so that is a pricing model, and that is a cap 

on a pricing model. What actually happens with our transactions 

is not necessarily 30 mils. We have a lot of control over our trades. 

We do not just hand them over to a broker. 

Senator LEVIN. You spend time, as you said, reviewing this. 

Mr. BRENNAN. We spend time in the actual trading and the review of the trades. 

Senator LEVIN. And the review of them. 

Mr. BRENNAN. Yes. 

Senator LEVIN. And if there were less of a conflicted environment, would you have less need to review? 

Mr. BRENNAN. I think we would still review, to be honest with 

you. 

Senator LEVIN. But would you rather be in a nonconflicted environment? 

Mr. BRENNAN. It might make the complexity and the review 

process a little easier in the data that comes back. 

Senator LEVIN. Would you rather review the trading in a nonconflicted environment? 

Mr. BRENNAN. Sure. 

Senator LEVIN. Now, as a retail broker, does Vanguard accept 

payments from wholesale brokers, so-called payments for order 

flow? 

Mr. BRENNAN. Vanguard has a retail brokerage. That is not the 

area of the company that I am associated with. 

Senator LEVIN. Do you know whether or not Vanguard accepts 

payments from wholesale brokers? 

Mr. BRENNAN. Vanguard in its retail brokerage does not accept 

payments for equity flow. 

Senator LEVIN. Do you know why? 

Mr. BRENNAN. We would have to talk to that area of our company. I am quite separate from our retail broker. 

Senator LEVIN. All right. Here is what the person in that area 

told our staff. Tell me whether or not you disagree with this. They 

told us that they could make money by selling their retail order 

flow, but they believe accepting payments would create a conflict, 

so they do not do so. 

Do you have any reason to not believe that or—— 

Mr. BRENNAN. I have not talked to the person that runs that 

area of our company, so I cannot confirm or deny that. 

Senator LEVIN. That would be fine. Would you take back to your 

company that request? 

Mr. BRENNAN. Sure. 

Senator LEVIN. And give us an answer for the record—— 

Mr. BRENNAN. Absolutely. 

Senator LEVIN [continuing]. As to whether or not what the staff 

Vanguard folks told us that they believe accepting payments would 

create a conflict, so they do not do so? Would you let us know for 

the record if that, in fact, is the case? 

Mr. BRENNAN. Yes, sir. 

Senator LEVIN. Mr. Quirk, I understand that your company, TD 

Ameritrade, sends marketable orders which would incur a fee if 

sent to an exchange to a wholesale broker-dealer. Is that correct? 
45 

Mr. QUIRK. That is correct. 

Senator LEVIN. And that the broker-dealer pays Ameritrade for 

those orders. Is that correct? 

Mr. QUIRK. That is correct. 

Senator LEVIN. And that you send nonmarketable orders, which 

are the ones that are eligible for rebates to exchanges. Is that correct? 

Mr. QUIRK. That is correct. 

Senator LEVIN. And is it correct that TD Ameritrade receives 

payment either from a wholesale broker as payment for order flow 

or from an exchange as a rebate on nearly every trade completed? 

Mr. QUIRK. I would not say on every trade completed—— 

Senator LEVIN. I said ‘‘nearly every.’’ 

Mr. QUIRK. Nearly every trade, yes. 

Senator LEVIN. All right. On nearly every trade, TD Ameritrade 

receives two payments: one is the commission paid by the customer, and another is from the venue where the trade is executed. 

Who decides whether an exchange or a wholesaler has provided 

best execution? Is it TD Ameritrade itself? Do you make that decision? 

Mr. QUIRK. We would have committees that would make that decision. 

Senator LEVIN. So a best execution committee? 

Mr. QUIRK. We do. We have a best execution committee. 

Senator LEVIN. All right. Can different brokers reach different 

conclusions about which venue offers the best execution? 

Mr. QUIRK. Yes, I think—yes. The answer to the question is yes. 

But I think what is going to drive the decision as to what is the 

best execution is the client, and what I mean by that is if a retail 

client puts in a market order, they are telling us they want a 

quick, timely execution at or better, at the current price or better, 

in its entirety. 

Senator LEVIN. If there is a market order? 

Mr. QUIRK. If it is a market order. 

Senator LEVIN. Other than that? 

Mr. QUIRK. If it is a limit order, they are telling you they want 

that order to be visible. They have picked a price, they have determined where their interested in purchasing that stock, and they 

want it to be visible. 

Senator LEVIN. But basically the question is still the same: Could 

different brokers reach different conclusions about which venue offers the best execution? 

Mr. QUIRK. Yes, but I think the determinant factor would be 

what is in the best interests of their client or what is their client 

looking for. Our clients are not going to look like, for example, your 

clients, so we are going to have different needs with respect to execution. 

Senator LEVIN. But the answer to the question is different brokers, even with the same clients, can reach different conclusions 

about the best venue. That is why you have a committee. 

Mr. QUIRK. Yes. 

Senator LEVIN. Would you all agree with that? Are you shaking 

your heads yes, that different brokers—— 

Mr. RATTERMAN. Yes. 
46 

Senator LEVIN [continuing]. Can reach different conclusions as to 

which venue offers the best execution? 

Mr. FARLEY. Yes. 

Mr. BRENNAN. Yes. 

Senator LEVIN. All right. Now, for Mr. Quirk, back in 2009, Chris 

Nagy, who is TD Ameritrade’s managing director of order routing 

strategy, said the following: ‘‘With maker-taker, there is a higher 

cost to retail investors.’’ 

Now, that is not your position today. Is that correct? 

Mr. QUIRK. No, and I do not know what that is in reference to. 

Senator LEVIN. All right. But that is not your position today. 

Mr. QUIRK. No. 

Senator LEVIN. And he also—that was in Forbes Magazine, September 10, 2009, and he was the managing director of order routing strategy, and he said the following in the September 21, 2009, 

edition of Securities Technology Monitor: ‘‘We felt it would become 

deleterious to the retail investor if maker-taker were allowed to 

proliferate.’’ That was in 2009. Is that your position? 

Mr. QUIRK. No, it is not. 

Senator LEVIN. Do you know what changed? 

Mr. QUIRK. I do not know what his position was, so I actually 

was not involved with the order routing. 

Senator LEVIN. Were you there in 2009? 

Mr. QUIRK. I was there, but not in this capacity. 

Senator LEVIN. OK. Do some trading venues, Mr. Quirk, offer 

higher rebates than others? 

Mr. QUIRK. Yes. 

Senator LEVIN. Is the size of the rebate offered by an exchange 

a factor in determining where you route nonmarketable customer 

orders? 

Mr. QUIRK. The way that our committees and the people responsible for order routing approach this is they start with the best execution, and they would go through a list of variables that we 

should consider as hurdles. And in order to get to a point where 

the revenue sharing is even considered, those hurdles have to be 

cleared. 

Senator LEVIN. And the revenue sharing that you are talking 

about is the rebate? 

Mr. QUIRK. Correct, sir. 

Senator LEVIN. When you get to that point—— 

Mr. QUIRK. Yes. 

Senator LEVIN [continuing]. After you say you have looked at the 

other factors, and then you look at the rebate issue, my question 

is: Is the size of the rebate offered by an exchange a factor in determining where you route those nonmarketable customer orders? 

Mr. QUIRK. Yes. It would be the last factor. All things being 

equal, that would be a factor. 

Senator LEVIN. And so the greater the rebate, that would be 

where you would go if it is otherwise best market. 

Mr. QUIRK. Yes. 

Senator LEVIN. How many trades does Ameritrade route to exchanges in a typical quarter? 

Mr. QUIRK. We route—about 37 percent of our flow would go to 

an exchange on a daily basis, so I am assuming that 40—I will call 
47 

it 40 percent of, let us call it, 400,000 trades a day, so we are talking about—— 

Senator LEVIN. 150,000 trades a day? 

Mr. QUIRK. 150,000 trades a day times—you said a quarter, 

right? So that is going to be about—let us see. 

Senator LEVIN. Well, a week it would be about—let us round it 

off, say half a million a week? 

Mr. QUIRK. Yes. 

Senator LEVIN. And so maybe in a month that would be about 

2 million. A quarter that would be about 8 million. How does that 

sound? 

Mr. QUIRK. That sounds good. 

Senator LEVIN. Round it off, OK. 

Mr. QUIRK. We did about 90 million trades last year. 

Senator LEVIN. OK. Well, then, why would it be only 8 million? 

Mr. QUIRK. You asked—— 

Senator LEVIN. Well, that is through exchanges. 

Mr. QUIRK. Yes, and you asked per quarter. 

Senator LEVIN. OK. So that is about 8 million, to exchanges in 

a typical quarter. 

Now, we looked at your Form 606 quarterly order routing disclosures for the quarter that was covered in the Battalio paper, and 

I am going to have to go vote. I apologize. We are going to have 

to recess here for about 15 minutes. That will give you all a chance 

to do something else that you might need to do. 

We will reconvene at 12:15. Thank you all. 

[Recess.] 

Senator LEVIN. We will come back into session. We thank our 

witnesses for their patience and understanding with the Senate. 

Let me pick up where we left off, Mr. Quirk. I guess we were 

talking about how many trades Ameritrade routes to exchanges in 

a typical quarter, and I think we rounded it off to about 8 million, 

something like that. Is that correct? 

Mr. QUIRK. That is correct. 

Senator LEVIN. Now, we looked at your Form 606 quarterly order 

routing disclosures for the quarter covered in the Battalio paper, 

and according to those disclosures, for the quarter covered in that 

paper, which was the fourth quarter of 2012, TD Ameritrade directed all nonmarketable customer orders to one venue in that 

quarter, Direct Edge. Is that correct? 

Mr. QUIRK. That is correct. 

Senator LEVIN. Now, among all the exchanges, Direct Edge paid 

the highest rebate during the fourth quarter of 2012, which is, 

again, the period covered by the Battalio paper, and you say that 

the orders, it was your policy, are directed first and foremost on the 

basis of best execution. But as we have learned today, best execution is a subjective judgment. 

So your subjective judgment as to which market provided best 

execution for tens of millions of customer orders a year, about 8 

million in a quarter, allowed you to route all of the orders to the 

market that paid you the most. Now, I find that to be, frankly, a 

pretty incredible coincidence. 

Now, you directed all your orders for that quarter to Direct Edge 

because what you have said is that that exchange offered your com-
48 

1See Exhibit No. 4, June 19, 2014 letter from TD Ameritrade to the Permanent Subcommittee 

on Investigations, revising $80 million to $36 million, which appears in the Appendix on page 

125. 

pany the best execution. The disclosure did not show a single order 

being directed to the New York Stock Exchange, for instance. 

So, Mr. Farley, was the New York Stock Exchange just consistently worse than Direct Edge in getting best execution on retail orders? 

Mr. FARLEY. No. 

Senator LEVIN. And, Mr. Quirk, how much did TD Ameritrade 

receive in rebates from exchanges last year for routing orders to 

venues that pay maker rebates? Do you know how much you made 

just from payment for order flow and rebates? 

Mr. QUIRK. I can estimate it was based on what we have discussed. It would be about $80 million.1

Senator LEVIN. About $80 million? 

Mr. QUIRK. Yes. 

Senator LEVIN. And that would be just the part that goes to the 

venues that pay maker rebates? 

Mr. QUIRK. Maker-taker. 

Senator LEVIN. Maker-taker, right. Well, how much did TD 

Ameritrade pay in fees to exchanges last year for routing orders to 

venues that charge taker fees? 

Mr. QUIRK. I do not know the answer to that question, but I can 

get it. 

Senator LEVIN. Well, I think it is close to zero, isn’t it? 

Mr. QUIRK. No, it is not close to zero, but I do not know what 

the answer is. It would not be significant. 

Senator LEVIN. All right. Will you get the answer for the record? 

Mr. QUIRK. Yes. 

Senator LEVIN. So, anyway, for virtually every trade, your customers you say were better off by your routing their orders to the 

exchange that paid you a rebate rather than a venue that TD 

Ameritrade would have had to have paid a fee. Is that true? 

Mr. QUIRK. I would say in the subsequent 24 months, you will 

note in our 606s that we have routed to a number of exchanges in 

one quarter, and some of those exchanges would not be the exchanges which were paying the highest rate. 

Senator LEVIN. Well, let me go into that. In your 606 disclosures, 

for the first quarter of 2014, TD Ameritrade routed all disclosed 

nonmarketable orders to either Direct Edge or Lavaflow, the exchanges that appear from our review of your disclosures to have offered the highest rebates available in the market. Is that true? 

Mr. QUIRK. That would be true. 

Senator LEVIN. And so, again, your subjective judgment as to 

which market provided best execution for tens of millions of customer orders virtually always led you to route orders to the markets that paid you the most. 

Mr. QUIRK. No, it would not have always led us—— 

Senator LEVIN. I said ‘‘virtually always.’’ 

Mr. QUIRK. Virtually, yes. 

Senator LEVIN. Senator McCain. 

Senator MCCAIN. I want to thank the witnesses for coming. 
49 

Mr. Ratterman and Mr. Farley, what effect would banning 

maker-taker payments have on your stock exchanges? Mr. Ratterman? 

Mr. RATTERMAN. Thank you, Senator McCain. The effect would 

have us, as a commercial operation, change the way in which we 

charge our broker-dealer customers to access our market. As I mentioned earlier today, we take on the order of 2 cents for every hundred shares traded as revenue for conducting the services of an exchange. So if you take away the maker-taker rebate, we will simply 

reconfigure the pricing mechanism that we have so that we can 

continue to operate our business. So it is not fundamental to the 

way we do business, and so related to your question, we would simply adjust our pricing to whatever framework that the law allowed. 

Senator MCCAIN. Mr. Farley. 

Mr. FARLEY. We would have fewer order types, which would reduce complexity in the market. We would likely have fewer venues, 

Senator, as well. We have three separate equities trading venues, 

and we would not need all three of those in a world where we did 

not have maker-taker, and I suspect some of our competitors would 

also reduce the number of venues they have. 

However, I do want to point out that if we ban maker-taker in 

isolation, it is also probable that more business would move away 

from fully regulated exchanges into dark markets. Therefore, we 

would need to couple it with what is called a trade-at provision, 

which would establish the primacy of public quotes. 

Senator MCCAIN. I guess I have a question for all four of you. 

In your business and ours, perception is reality and reality is perception. And I think you would agree that we would not be having 

this hearing if it was not for significant questions out there about 

whether you do business fairly or unfairly, if there is favoritism, 

if there is, even as was charged in Michael Lewis’ book, that there 

is real corruption. I think you would agree that there is a problem 

out there. Would you agree with that, all of you? Or you do not 

think there is a problem of public perception? 

Well, first of all, I guess beginning with you, Mr. Farley, and 

going down the line here, do you believe there is a public perception problem? And if there is, what do you think we ought to do? 

What measures ought to be taken? If you think there is no PR 

problem out there, then just say, ‘‘I do not think there is a problem.’’ But if you think there is a problem, what do you think we 

ought to do? 

Mr. FARLEY. Markets are built on confidence and perception, as 

you point out, and I think the perception could be a lot better, the 

perception of the equities markets in this country. We are talking 

a lot about trading businesses. At the New York Stock Exchange, 

the most important part of our business is actually our listings 

business—in other words, that part of our business where entrepreneurs come to market to raise capital to help create jobs, and 

that is built entirely on perception. And so we want to do whatever 

we can to improve the perception of the equities markets. 

We have proffered several suggestions. We actually think doing 

away with maker-taker, coupling it with a trade-at rule would improve perception by itself because of some of the aftereffects, reducing complexity, reducing order types, reducing messaging, reducing 
50 

venues. And when you bring that sort of simplicity to the markets, 

that breeds confidence because people can understand it. It is more 

tangible. 

Senator MCCAIN. Would co-location be part of that reform? I 

think we all would agree transparency is. Would co-location, elimination of that, also be a positive effect or no effect? 

Mr. FARLEY. Eliminating co-location would go in the other direction. I actually think that would be a perception problem. But 

bringing more transparency to the practice of co-location I think is 

a great idea, to whatever extent we can. 

Senator MCCAIN. Mr. Ratterman. 

Mr. RATTERMAN. In my mind there is no question that these 

questions about market structure have entered into the mainstream and that people are wondering how the markets work. I 

think that to address that, maybe a few things. 

First, there are probably some areas of immediate transparency 

that can be brought into the market, and I think we are seeing 

market forces to some extent start to do that. IEX and Credit 

Suisse and Goldman Sachs I believe are three dark pool operators 

that have all released their Form ATS as an example. Prior to recent months, those were forms that were not made available to the 

public. 

So I think you are seeing a trend in the direction of transparency. In our testimony we have talked about areas of Rule 606 

and 605 and other areas of operation of dark pools where transparency, I think, would yield a lot of insights and potentially some 

additional confidence in the markets. So that is the immediate response. 

The medium-term response I believe is to let the SEC do the holistic review that SEC Chairman White has articulated to the industry. This holistic review will be fully comprehensive. It will 

cover every tenet of market structure as we understand it today, 

put everything on the table. And some things will undoubtedly 

change through that process. They will find ways to optimize and 

improve what are already some pretty good attributes for today’s 

market. But also, even things that we do not change, there will be 

a recent mark where the regulator will have said, ‘‘We looked at 

this, we got the data, we have concluded that this is a good tenet 

of market structure, and we are going to leave it in place.’’ 

And so I think every element of our market structure will be addressed in this holistic review, and nothing will be left out. And I 

think that process will be very healthy for our markets. 

Senator MCCAIN. Mr. Brennan. 

Mr. BRENNAN. Thanks, Senator McCain. As to whether the markets—there is a perception problem or not and a confidence issue, 

the only thing I can judge that on is generally our business and 

our customers and our clients. At Vanguard we have seen record 

interest over the last few years in our products. The majority of the 

flows we have seen have been into our equity market-based products. Vanguard had $138 billion of client assets come in the door 

last year and $76 billion in the first 5 months of this year. And, 

again, the vast majority of those sums have been going to our 

equity products. 
51 

Senator MCCAIN. Well, Mr. Brennan, I think it is like the old 

story of a guy in a small town who said to the other guy, ‘‘What 

are you going to do on Saturday night?’’ And he says, ‘‘I am going 

to the poker game.’’ He said, ‘‘Why are you doing that? Because you 

know the game is crooked.’’ And the guy said, ‘‘It is the only game 

in town.’’ 

So, Mr. Brennan, I do not accept your allegation that everything 

is fine. But if that is your view, I respect it, but I do not agree with 

it. 

Mr. Quirk. 

Mr. QUIRK. I would probably have a closer view to Mr. Brennan’s. When I discuss the view, I am going to discuss the view of 

our 6 million clients and just tell you in the behaviors that they 

have exhibited in the last couple years, again, it would be consistent with Mr. Brennan’s. We have seen, trading accounts increase 31 percent, and we have a proprietary index which we created a couple years ago which indicates how much exposure people 

are taking in the market. In other words, are they participating in 

the rally that has happened over the course of the last couple 

years? And a significant portion of them have. 

That being said, I would agree with you that there is a perception problem in a segment of these clients. Those would be the clients that are probably closest to this. Most of mom-and-pop, really 

these terms do not mean anything to them. ‘‘Co-location’’ and 

‘‘HFT,’’ they are just terms to them. 

The problem for us is in that segment trying to make sure, as 

I think Senator Johnson pointed out, that we do not spook them. 

We do not want them to think that they are being treated unfairly. 

Senator MCCAIN. Thank you. I thank the witnesses. 

Thank you, Mr. Chairman. 

Senator LEVIN. Thank you, Senator McCain. 

Mr. Brennan, earlier this year, you said that some high-frequency traders play a role in knitting back together a fragmented 

market structure, but that other high-frequency traders ‘‘may be 

unfairly taxing the system through their behaviors.’’ 

Now, when you mentioned that some high-frequency traders unfairly taxed the system, were you talking about firms that engage 

in practices like rebate arbitrage where they try to capture rebates 

without actually providing liquidity? 

Mr. BRENNAN. That would be one example, yes. 

Senator LEVIN. And, therefore, the maker-taker system contributes to that problem. 

Mr. BRENNAN. I think the market structure as a whole has improved dramatically over the past 20 years. 

Senator LEVIN. I am talking about the part that has not improved. I am talking about what you just said, that some high-frequency traders unfairly tax the system and that you agreed, you 

were referring to those firms that engage in rebate arbitrage. And 

then I just asked you whether or not the maker-taker system is obviously, by definition, contributing to that problem. 

Mr. BRENNAN. I think the maker-taker in combination with the 

lack of a trade-at, in combination with differential data speeds contribute to potential issues. 
52 

Senator LEVIN. And can you have rebate arbitrage without rebates? 

Mr. BRENNAN. No. 

Senator LEVIN. So, therefore, rebates contribute to the problem. 

I did not say it is the whole problem. I am just saying, does it contribute to the problem? 

Mr. BRENNAN. Yes. 

Senator LEVIN. Mr. Quirk, I think you were critical of the 

Battalio testimony, and I am wondering whether you would be willing to provide Professor Battalio with TD Ameritrade’s order routing data so that he could analyze it. 

Mr. QUIRK. Yes, we were actually asked by Professor Battalio 

after his paper was published or the draft of that paper was published if we would be willing to share data, and I think we would 

be willing to share data. Of course, with security, we would have 

to ensure that that was not going anywhere. 

Senator LEVIN. And when you were asked, what was your answer? 

Mr. QUIRK. To be honest with you, I am not entirely sure. I believe that he was told that it was being considered, but I am not 

certain. 

Senator LEVIN. Let me conclude by very briefly saying the following: 

We have had a good hearing today, I think a very constructive 

hearing, a very illuminating hearing. And we have heard a consistent message, and that is that there is a lack of confidence in 

the markets. The conflict of interests that we have discussed contribute to that lack of confidence. Both the actual conflicts as well 

as the appearance of conflicts contribute to that lack of confidence. 

And they may lead also to regular investors, average investors, 

being worse off. That is what Professor Battalio told us today, and 

what his study shows. 

All these problems should be and can be addressed, and one of 

the ways we have got to do it is to remove the conflict of interests. 

This Subcommittee has looked at other conflicts, some of which 

have been very dramatic, in earlier hearings, and we have to rid 

our market of conflicts of interest to the extent it is humanly possible if we are going to restore confidence in our markets. And it 

is very important that we do have confidence in our markets. 

And so hopefully the regulatory agencies are going to take action. 

SEC Chairman White, as a number of you have mentioned, has 

said that they are going to look at structural issues, long overdue, 

and hopefully they will not take as long as they take on a whole 

lot of other things that sometimes just fester at the agency, the 

regulatory agency, for years. 

And I think there may be also a role for Congress. These things 

sometimes happen, hopefully more often than not through the operations of a free market, but some of them just do not happen without government saying, ‘‘You have got to change your ways, folks. 

You have got to take Steps A and B if you are going to restore confidence.’’ 

Now, we may disagree perhaps as to what those steps are, but 

there are steps which must be taken either by regulators or by 

Congress to deal with conflicts and to deal with the other kinds of 
53 

problems which exist in the current market, because it is clear 

there can be improvements. 

We very much appreciate your testimony. We are sorry that it 

was interrupted by two votes of the Senate, but that is the way our 

life works around here. I wish we could pass a law to end interruptions in hearings or have some regulatory agency perhaps figure 

out a way that we could avoid these kind of interruptions. But that 

is not yet in the cards. 

Thank you all. We will stand adjourned. 

[Whereupon, at 12:44 p.m., the Subcommittee was adjourned.] 

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