94924 Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Notices 

1For purposes of this order, the exchange group 

consisting of Cboe BYX, Cboe BZX, Cboe EDGA, 

Cboe EDGX, and Cboe Exchange, Inc., will be 

referred to collectively as ‘‘Cboe’’; the exchange 

group consisting of Nasdaq BX, Nasdaq ISE, Nasdaq 

PHLX, and Nasdaq Stock Market LLC will be 

referred to collectively as ‘‘Nasdaq’’; and the 

exchange group consisting of the New York Stock 

Exchange LLC, NYSE American, NYSE Arca, NYSE 

Chicago, and NYSE National will be referred to 

collectively as ‘‘NYSE.’’ 

2 15 U.S.C. 78k–1. 

3 17 CFR 242.608. 

4See Joint Industry Plan; Notice of Filing of a 

National Market System Plan Regarding 

Consolidated Equity Market Data, Securities 

Exchange Act Release No. 99403 (Jan. 19, 2024), 89 

FR 5002 (Jan. 25, 2024) (‘‘Notice’’). Comments 

received in response to the Notice can be found on 

the Commission’s website at: https://www.sec.gov/ 

comments/4-757/4-757.htm. 

5 17 CFR 242.608(b)(2)(i). 

6See Joint Industry Plan; Order Instituting 

Proceedings to Determine Whether to Approve or 

Disapprove a National Market System Plan 

Regarding Consolidated Equity Market Data, 

Securities Exchange Act Release No. 100017 (Apr. 

23, 2024), 89 FR 33412 (Apr. 29, 2024) (‘‘OIP’’). 

Comments received in response to the OIP can be 

found on the Commission’s website at: https://

www.sec.gov/comments/4-757/4-757.htm. 

7 17 CFR 242.608(b)(2)(i). 

8See Joint Industry Plan; Notice of Designation of 

a Longer Period for Commission Action on a 

Proposed National Market System Plan Regarding 

Consolidated Equity Market Data, Securities 

Exchange Act Release No. 100500 (July 11, 2024), 

89 FR 58235 (July 17, 2024). 

9 17 CFR 242.608(b)(2)(ii). 

10See Joint Industry Plan; Notice of Designation 

of a Longer Period for Commission Action on a 

Proposed National Market System Plan Regarding 

Consolidated Equity Market Data, Securities 

Exchange Act Release No. 101125 (Sept. 20, 2024), 

89 FR 78950 (Sept. 26, 2024). 

11See Order Directing the Exchanges and the 

Financial Industry Regulatory Authority to Submit 

a New National Market System Plan Regarding 

Consolidated Equity Market Data, Securities 

Exchange Act Release No. 88827 (May 6, 2020), 85 

FR 28702 (May 13, 2020) (File No. 4–757) 

(‘‘Governance Order’’). The three NMS plans that 

currently govern the collection, consolidation, 

processing, and dissemination of equity market data 

for NMS stocks and oversee the securities 

information processors (‘‘SIPs’’) for equity market 

data for NMS stocks are (1) the Consolidated Tape 

Association Plan (‘‘CTA Plan’’), (2) the 

Consolidated Quotation Plan (‘‘CQ Plan’’), and (3) 

the Joint Self-Regulatory Organization Plan 

Governing the Collection, Consolidation, and 

Dissemination of Quotation and Transaction 

Information for Nasdaq-Listed Securities Traded on 

Exchanges on an Unlisted Trading Privileges Basis 

(‘‘UTP Plan’’) (collectively, the ‘‘Equity Data 

Plans’’). See id. at 28703, n.34. 

12 Governance Order, supra note 11, 85 FR at 

28702. 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–101672; File No. 4–757] 

Joint Industry Plan; Order Approving, 

as Modified, a National Market System 

Plan Regarding Consolidated Equity 

Market Data 

November 20, 2024. 

I. Introduction 

On October 23, 2023, Cboe BYX 

Exchange, Inc. (‘‘Cboe BYX’’), Cboe BZX 

Exchange, Inc. (‘‘Cboe BZX’’), Cboe 

EDGA Exchange, Inc. (‘‘Cboe EDGA’’), 

Cboe EDGX Exchange, Inc. (‘‘Cboe 

EDGX’’), Cboe Exchange, Inc., Investors 

Exchange LLC (‘‘IEX’’), Long Term Stock 

Exchange, Inc. (‘‘LTSE’’), MEMX LLC 

(‘‘MEMX’’), MIAX PEARL, LLC (‘‘MIAX 

PEARL’’), Nasdaq BX, Inc. (‘‘Nasdaq 

BX’’), Nasdaq ISE, LLC (‘‘Nasdaq ISE’’), 

Nasdaq PHLX LLC (‘‘Nasdaq PHLX’’), 

Nasdaq Stock Market LLC, New York 

Stock Exchange LLC, NYSE American 

LLC (‘‘NYSE American’’), NYSE Arca, 

Inc. (‘‘NYSE Arca’’), NYSE Chicago, Inc. 

(‘‘NYSE Chicago’’), NYSE National, Inc. 

(‘‘NYSE National’’), and the Financial 

Industry Regulatory Authority, Inc. 

(‘‘FINRA’’) (collectively, ‘‘SROs’’) 1 filed 

with the Securities and Exchange 

Commission (‘‘Commission’’), pursuant 

to section 11A of the Securities 

Exchange Act of 1934 (‘‘Exchange 

Act’’) 2 and Rule 608 of Regulation 

National Market System (‘‘Regulation 

NMS’’) thereunder,3 a proposed new 

single national market system plan 

governing the public dissemination of 

real-time consolidated equity market 

data for national market system stocks 

(the ‘‘Proposed CT Plan’’). The Proposed 

CT Plan was published for comment in 

the Federal Register on January 25, 

2024.4

On April 23, 2024, the Commission 

instituted proceedings pursuant to Rule 

608(b)(2)(i) of Regulation NMS 5 to 

determine whether to approve or 

disapprove the Proposed CT Plan or to 

approve the Proposed CT Plan with 

such changes or subject to such 

conditions as the Commission may 

deem necessary or appropriate, if it 

finds that such plan or amendment is 

necessary or appropriate in the public 

interest, for the protection of investors 

and the maintenance of fair and orderly 

markets, to remove impediments to, and 

perfect the mechanisms of, a national 

market system, or otherwise in 

furtherance of the purposes of the 

Exchange Act.6 On July 11, 2024, 

pursuant to Rule 608(b)(2)(i) of 

Regulation NMS,7 the Commission 

extended the period within which to 

conclude proceedings regarding the 

Proposed CT Plan to September 21, 

2024.8 On September 20, 2024, pursuant 

to Rule 608(b)(2)(ii) of Regulation 

NMS,9 the Commission further 

extended the period within which to 

conclude proceedings regarding the 

Proposed CT Plan to November 20, 

2024.10

This order approves the Proposed CT 

Plan with certain modifications that the 

Commission has determined are 

appropriate, which are described in 

detail below. As discussed throughout 

this order, the Commission finds that 

the Proposed CT Plan, as modified, is 

appropriate in the public interest, for 

the protection of investors and the 

maintenance of fair and orderly markets, 

to remove impediments to, and perfect 

the mechanism of a national market 

system, or is otherwise in furtherance of 

the purposes of the Exchange Act. A 

copy of the Proposed CT Plan, marked 

to reflect the modifications the 

Commission has made, is Attachment A 

to this order. 

II. Discussion and Commission 

Findings 

A. Background 

On May 6, 2020, the Commission 

ordered the SROs to act jointly in 

developing and filing with the 

Commission a proposed new national 

market system plan to govern the public 

dissemination of real-time, consolidated 

equity market data for NMS stocks to 

replace the existing equity data plans.11

The Commission sought to address with 

the Governance Order, among other 

things, the inherent conflicts of interest 

between the SROs’ role in collecting and 

disseminating consolidated equity 

market data and their interests in selling 

proprietary data products. As the 

Commission stated in the Governance 

Order, since the adoption of Regulation 

NMS in 2005, 

developments in technology and changes in 

the equities markets have heightened an 

inherent conflict of interest between the 

Participants’ collective responsibilities in 

overseeing the Equity Data Plans and their 

individual interests in maximizing the 

viability of proprietary data products that 

they sell to market participants. This conflict 

of interest, combined with the concentration 

of voting power in the Equity Data Plans 

among a few large ‘‘exchange groups’’— 

multiple exchanges operating under one 

corporate umbrella—has contributed to 

significant concerns regarding whether the 

consolidated feeds meet the purposes for 

them set out by Congress and by the 

Commission in adopting the national market 

system. Additionally, the Commission 

believes that the continued existence of three 

separate NMS plans for equity market data 

creates inefficiencies and unnecessarily 

burdens ongoing improvements in the 

provision of equity market data to market 

participants. Addressing the issues with the 

current governance structure of the Equity 

Data Plans . . . is a key step in responding 

to broader concerns about the consolidated 

data feeds.12

Moreover, as stated in the Governance 

Order, ‘‘[t]he Commission believes that 


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13 Id. at 28704. 

14 Id. at 28702. 

15See id. at 28729–31. 

16 15 U.S.C. 78k–1(c)(1)(B). 

17MIAX PEARL was not among the SROs filing 

that proposed plan because it did not become 

national securities exchange for trading equity 

securities until after that filing was made. See Order 

Approving a Proposed Rule Change, as Modified by 

Amendment No. 1, To Establish Rules Governing 

the Trading of Equity Securities, Securities 

Exchange Act Release No. 89563 (Aug. 14, 2020), 

85 FR 51510 (Aug. 20, 2020). 

18See Joint Industry Plan; Notice of Filing of a 

National Market System Plan Regarding 

Consolidated Equity Market Data, Securities 

Exchange Act Release No. 90096 (Oct. 6, 2020), 85 

FR 64565 (Oct. 13, 2020) (File No. 4–757). 

19See Joint Industry Plan; Order Approving, as 

Modified, a National Market System Plan Regarding 

Consolidated Equity Market Data, Securities 

Exchange Act Release No. 92586 (Aug. 6, 2021), 86 

FR 44142 (Aug. 11, 2021) (File No. 4–757) (‘‘2021 

Approval Order’’). 

20See The Nasdaq Stock Market LLC, et al. v. 

Securities and Exchange Commission, 38 F.4th 

1126, 1131 (D.C. Cir. 2022) (‘‘Nasdaq v. SEC’’). The 

petitioners were Nasdaq, NYSE, and Cboe. The 

petitioners also filed a motion with the Commission 

seeking a stay of the effect of the 2021 Approval 

Order pending final resolution of their petitions 

before the D.C. Circuit, which the Commission 

denied. See Order Denying Stay, Securities 

Exchange Release No. 93051 (Sept. 17, 2021), 86 FR 

52933 (Sept. 23, 2021) (File No. 4–757). The 

petitioners also filed for and, on October 13, 2021, 

received a stay of the 2021 Approval Order from the 

D.C. Circuit. See Nasdaq v. SEC, 38 F.4th at 1135. 

21See Nasdaq v. SEC, supra note 20, 38 F.4th at 

1131. 

22 Id. at 1145. 

23Amended Order Directing the Exchanges and 

the Financial Industry Regulatory Authority, Inc., to 

File a National Market System Plan Regarding 

Consolidated Equity Market Data, Securities 

Exchange Act Release No. 98271 (Sept. 1, 2023), 88 

FR 61630, 61631 (Sept. 7, 2023) (File No. 4–757) 

(‘‘Amended Governance Order’’). 

24See Notice, supra note 4, 89 FR at 5003. 

25See Paragraph (a) of the Recitals of the 

Proposed CT Plan. 

26For purposes of this order, all capitalized terms 

not otherwise defined in this order shall have the 

same meaning as in the Proposed CT Plan. 

27See Article I, Section 1.1(21) of the Proposed 

CT Plan (as approved) (defining ‘‘Delaware Act’’ as 

‘‘the Delaware Limited Liability Company Act, Title 

6, Chapter 18, §§ 18–101, et seq., and any successor 

statute, as amended’’). 

28See Paragraph (b) of the Recitals of the 

Proposed CT Plan. Upon approval by the 

Commission, the Proposed CT Plan will be an 

‘‘effective national market system plan’’ within the 

meaning of Rule 600(b)(34) of Regulation NMS, 17 

CFR 242.600(b)(34), and an ‘‘effective transaction 

reporting plan,’’ within the meaning of Rule 

600(b)(35) of Regulation NMS, 17 CFR 

242.600(b)(35). 

29See Paragraph (c) of the Recitals of the 

Proposed CT Plan. 

the demutualization of the exchanges 

and the proliferation of proprietary 

exchange data products have heightened 

the conflicts between the SROs’ 

business interests in proprietary data 

offerings and their obligations as SROs 

under the national market system to 

ensure prompt, accurate, reliable, and 

fair dissemination of core data through 

the jointly administered Equity Data 

Plans.’’ 13

Thus, the Commission determined 

that the current governance structure of 

the existing Equity Data Plans is 

‘‘inadequate to respond to changes in 

the market and in the ownership of 

exchanges, and to the evolving needs of 

investors and other market 

participants,’’ 14 and the Commission 

ordered the SROs to develop and file 

with the Commission a proposed new 

NMS plan regarding equity market data 

with a set of specified governance 

provisions designed to address the 

issues identified by the Commission,15

and to ensure, consistent with the 

Exchange Act, the ‘‘prompt, accurate, 

reliable, and fair collection, processing, 

distribution, and publication of 

information with respect to quotations 

for and transactions in such securities 

and the fairness and usefulness of the 

form and content of such 

information.’’ 16

On August 11, 2020, the SROs 17 filed 

a proposed new NMS plan pursuant to 

the Governance Order, and notice of the 

proposed plan was published for 

comment in the Federal Register on 

October 13, 2020.18 After instituting 

proceedings with respect to the new 

NMS plan proposed by the SROs, the 

Commission ultimately approved, as 

modified, the new NMS plan on August 

6, 2021 (‘‘2021 CT Plan’’).19

Nasdaq, NYSE, and Cboe then 

petitioned the U.S. Court of Appeals for 

the District of Columbia Circuit (‘‘D.C. 

Circuit’’) for review of the Commission’s 

action, challenging three aspects of the 

Governance Order and the 2021 

Approval Order: (1) the inclusion of 

non-SRO representatives as voting 

members of the 2021 CT Plan’s 

operating committee; (2) the grouping of 

SROs by corporate affiliation for voting; 

and (3) the requirement that the 2021 

CT Plan’s administrator be independent 

of any SRO that sells its own proprietary 

equity market data.20

On July 5, 2022, the D.C. Circuit 

granted the exchanges’ petition with 

respect to the inclusion of non-SRO 

voting members on the new NMS plan 

operating committee, but denied the 

petition with respect to the other 

challenged aspects of the Governance 

Order and the 2021 Approval Order, 

including upholding the Commission’s 

actions with respect to requiring voting 

by SRO group and requiring an 

independent administrator.21 The court 

vacated the 2021 Approval Order in full, 

but ‘‘sever[ed] only those parts of the 

Governance Order directing [the SROs] 

to include non-SRO representation in its 

proposed plan, leaving the remainder in 

place.’’ 22

On September 1, 2023, in light of the 

court’s decision, the Commission issued 

an amended order directing the SROs to 

file a new NMS plan regarding 

consolidated equity market data,23 and 

the SROs filed the Proposed CT Plan 

pursuant to that Amended Governance 

Order.24

Below, this order separately addresses 

each of the provisions of the Proposed 

CT Plan, discussing the comments 

received and explaining the 

modifications, if any, that the 

Commission is making. 

B. The Provisions of the Proposed CT 

Plan 

1. Recitals 

Paragraph (a) of the Recitals states the 

procedural history of the Proposed CT 

Plan. Paragraph (a) of the Recitals also 

establishes that the Proposed CT Plan is 

filed with the Commission in response 

to the Commission’s Amended 

Governance Order.25

Paragraph (b) of the Recitals states 

that, as the Members have already 

formed the Company 26 as a limited 

liability company pursuant to the 

Delaware Limited Liability Company 

Act 27 by filing a certificate of formation 

with the Delaware Secretary of State, the 

Proposed CT Plan will become effective 

on the date (the ‘‘Effective Date’’) when 

approved by the Commission pursuant 

to Rule 608 of Regulation NMS as an 

NMS plan governing the public 

dissemination of real-time consolidated 

market data for Eligible Securities.28

Paragraph (c) of the Recitals sets forth 

the SROs’ statement of their regulatory 

obligations to the Proposed CT Plan. 

Specifically, paragraph (c) states that, in 

performing their obligations and duties 

under the Proposed CT Plan, the 

Members are performing and 

discharging functions and 

responsibilities related to the operation 

of the national market system for and on 

behalf of the Members in their 

capacities as self-regulatory 

organizations, as required under section 

11A of the Exchange Act, and pursuant 

to Rule 603(b) of Regulation NMS 

thereunder. Paragraph (c) of the Recitals 

further provides that the Proposed CT 

Plan and the operations of the Company 

shall be subject to ongoing oversight by 

the Commission.29 Finally this 

paragraph of the Recitals sets forth that 

no provision of the Proposed CT Plan 

shall be construed to limit or diminish 

the obligations and duties of the 

Members as self-regulatory 


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30See Paragraph (b) of the Recitals of the 

Proposed CT Plan. The ‘‘Members’’ of the 

Agreement, as defined in the first paragraph of the 

Agreement, are the SROs identified in Exhibit A to 

the Agreement. 

31See 2021 Approval Order, supra note 19, 86 FR 

at 44143–49 (approving Paragraph (a) of the Recitals 

of the 2021 CT Plan, as proposed, Paragraph (b) of 

the Recitals of the 2021 CT Plan, as modified, and 

Paragraph (g) of the Recitals of the 2021 CT Plan 

as modified). 

32See Article I, Sections 1.1 and 1.2 of the 

Proposed CT Plan. 

33See infra Section II.B.7(b). 

34See Section 1.1(2) of the Proposed CT Plan (as 

approved). The Commission has also renumbered 

the paragraphs of Section 1.1 to reflect this 

addition. 

35See Article I, Section 1.1(83) of the Proposed 

CT Plan (as approved) (defining ‘‘Voting 

Representative’’). 

36As modified, Section 1.1(14) provides that the 

term ‘‘Covered Persons’’ means ‘‘representatives of 

the Members (including the Voting Representative, 

alternate Voting Representative, and Member 

Observers), members of the Advisory Committee, 

SRO Applicants, SRO Applicant Observers, the 

Administrator, the Interim Administrator(s), and 

the Processors; Affiliates, employees, and Agents of 

the Operating Committee, a Member, the 

Administrator, the Interim Administrator(s), and 

the Processors; and any third parties invited to 

attend meetings of the Operating Committee or 

subcommittees. Covered Persons do not include 

staff of the SEC.’’ 

37To effect this modification, the Commission is 

inserting, immediately after ‘‘Administrator’’ the 

words ‘‘or Interim Administrator(s).’’ See Section 

1.1(35) of the Proposed CT Plan (as approved). 

38See Article I, Section 1.1(35) of the Proposed 

CT Plan (as approved). 

39See infra Section II.B.5(l) (discussing the 

Confidentiality Policy set forth in Article IV, 

Section 4.12 of and Exhibit C to the Proposed CT 

Plan). 

40See 2021 Approval Order, supra note 19, 86 FR 

at 44207. 

41See Amended Governance Order, supra note 

23, 88 FR at 61631 (‘‘In accordance with the D.C. 

Circuit’s ruling, the Commission is modifying the 

organizations under the federal 

securities laws and the regulations 

thereunder.30

The Commission is making a nonsubstantive modification to paragraph 

(b) to add the defined term ‘‘Plan’’ at the 

end of the phrase ‘‘an NMS plan 

governing the public dissemination of 

real-time consolidated market data for 

Eligible Securities.’’ This modification 

is appropriate because the Proposed CT 

Plan contains numerous references to 

the ‘‘plan,’’ which term had not been 

defined. Apart from this modification, 

the Recitals are substantively similar to 

corresponding recitals of the 2021 CT 

Plan approved by the Commission 31

and were not required to be modified by 

the Amended Governance Order. The 

Commission received no comments 

addressing paragraphs (a), (b), and (c) of 

the Recitals of the Proposed CT Plan, 

and the Commission is approving the 

Recitals as modified. 

2. Definitions 

Article I of the Proposed CT Plan sets 

forth the defined terms used throughout, 

as well as provisions for interpreting, 

the Proposed CT Plan and its Exhibits.32

(a) Section 1.1 Definitions 

While the Commission received no 

comments on the proposed definitions, 

it is, as explained below, making certain 

modifications to the proposed 

definitions. 

The Commission is modifying the 

definition of ‘‘Administrator’’ to delete 

text that incompletely duplicates part of 

the provisions of Article VI, Section 6.2 

of the Proposed CT Plan as modified 

and instead refer directly to Article VI 

of the Proposed CT Plan. Specifically, 

the Commission is revising the 

definition to read, ‘‘ ‘Administrator’ 

means the Person selected by the 

Company to perform the administrative 

functions under Article VI of this 

Agreement.’’ This modification is 

appropriate to avoid potential ambiguity 

between the terms of the definition as 

proposed and the provisions of Article 

VI as modified by the Commission, in 

particular the text of Section 6.2 of the 

Agreement regarding the independence 

of the Administrator, as modified by the 

Commission.33

The Commission is modifying Section 

1.1 to add a new paragraph (2) to define 

the term ‘‘Advisory Committee’’ to mean 

‘‘the committee formed in accordance 

with Section 4.7 of this Agreement.’’ 34

This modification is appropriate 

because the term ‘‘Advisory Committee’’ 

is used throughout the Proposed CT 

Plan but was undefined. The 

Commission is further modifying 

Section 1.1 to renumber the following 

paragraphs of Section 1.1 accordingly. 

The Commission is modifying the 

definitions of ‘‘Company Identified 

Party,’’ ‘‘Covered Persons,’’ ‘‘Executive 

Session,’’ and ‘‘Party to a Proceeding’’ to 

delete the acronym ‘‘SRO’’ from the 

term ‘‘SRO Voting Representative.’’ 

These modifications are appropriate 

because the defined term proposed in 

the Proposed CT Plan is ‘‘Voting 

Representative’’ rather than ‘‘SRO 

Voting Representative.’’ 35

The Commission is modifying the 

definition of ‘‘Agent’’ to insert, 

immediately after the words ‘‘the 

Administrator,’’ the words ‘‘the Interim 

Administrator(s).’’ The Commission is 

also modifying the definition of 

‘‘Covered Persons’’ to insert in two 

places immediately following the words 

‘‘the Administrator,’’ the words ‘‘the 

Interim Administrator(s).’’ 36 These 

modifications are appropriate because, 

as discussed below in Section II.B.7 of 

this order, the Commission is modifying 

the Proposed CT Plan to permit the 

appointment by the Operating 

Committee of one or more Interim 

Administrator(s), and these insertions 

are needed to conform to that 

modification. 

The Commission is modifying the 

definition of ‘‘Highly Confidential 

Information’’ to specify that ‘‘Highly 

Confidential Information’’ shall also 

include the Company’s contract 

negotiations with the Interim 

Administrator(s).37 This modification is 

appropriate because the Company’s 

contract negotiations with the Interim 

Administrator(s) would raise 

confidentiality concerns similar to those 

of the Company’s contract negotiations 

with the Administrator, which require 

classification as Highly Confidential 

Information under the confidentiality 

provisions of the Proposed CT Plan. The 

Commission is further modifying the 

definition of ‘‘Highly Confidential 

Information’’ 38 to delete the word 

‘‘applicable’’ and insert, immediately 

after the words ‘‘privilege or immunity’’ 

the words ‘‘recognized under 

Applicable Law.’’ This modification is 

appropriate to place clear limits around 

the circumstances in which sharing of 

information with Advisory Committee 

members will be restricted under the 

Confidentiality Policy by requiring that 

the ‘‘privilege or immunity’’ under 

which information may be designated as 

Highly Confidential Information must 

be a ‘‘privilege or immunity recognized 

under Applicable Law,’’ which is a term 

defined in Section 1.1 of the Proposed 

CT Plan.39

The Commission is modifying the 

definition of ‘‘Operative Date’’ to insert, 

immediately after ‘‘Exchange Act,’’ the 

words ‘‘and the rules and regulations 

thereunder.’’ This modification is 

appropriate to help ensure that this 

provision more broadly encompasses all 

of the laws and regulations governing 

the regulatory functions to be performed 

by the Members through the Proposed 

CT Plan. The proposed and approved 

definition of ‘‘Operative Date’’ also 

differs from that approved by the 

Commission in the 2021 CT Plan 40 in 

that it specifies the two major 

conditions required to be fulfilled before 

the Proposed CT Plan has been fully 

implemented. This change is 

appropriate because it ties the definition 

of Operative Date to the 

accomplishment of key milestones. 

Except as described above (and with 

respect to the removal of provisions 

regarding non-SRO representatives, as 

required by the Amended Governance 

Order 41), the definitions in Section 1.1 


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Governance Order to remove the provisions 

regarding the participation of non-SRO 

representatives as members of the operating 

committee of the Revised New Consolidated Data 

Plan and to make conforming changes.’’). 

42See 2021 Approval Order, supra note 19, 86 FR 

at 44149–50, 44207–10. 

43See 2021 Approval Order, supra note 19, 86 FR 

at 44210. 

44See Article II, Section 2.1 of the Proposed CT 

Plan. 

45See Article III, Section 3.1 of the Proposed CT 

Plan. The names and addresses of each Member are 

set forth in Exhibit A to the Proposed CT Plan. 

46Section 1.1(75) of Article I of the Proposed CT 

Plan defines the term ‘‘System’’ as ‘‘all data 

processing equipment, software, communications 

facilities, and other technology and facilities, 

utilized by the Company or the Processors in 

connection with the collection, consolidation, and 

dissemination of Transaction Reports, Quotation 

Information, and other information concerning 

Eligible Securities.’’ 

47See Article II, Section 2.4 of the Proposed CT 

Plan. 48See Article IV, Section 4.1(a) of the Proposed 

CT Plan. 

49See 2021 Approval Order, supra note 19, 86 FR 

at 44150–52. 

50 Id. 

51See Article I, Section 1.1(23) of the Proposed 

CT Plan (as approved) (defining ‘‘Eligible Security’’ 

as ‘‘(i) any equity security, as defined in Section 

3(a)(11) of the Exchange Act, or (ii) a security that 

trades like an equity security, in each case that is 

listed on a national securities exchange’’). 

52See Article III, Section 3.2(a) of the Proposed 

CT Plan. 

53See Article III, Section 3.2(a) of the Proposed 

CT Plan. 

54See Article III, Section 3.2(b) of the Proposed 

CT Plan. The Proposed CT Plan provides that 

Participants of the CQ Plan, CTA Plan, and UTP 

Plan are not required to pay the Membership Fee. 

See Article III, Section 3.2(c) of the Proposed CT 

Plan. 

55See Article III, Section 3.3 of the Proposed CT 

Plan. 

56See Article III, Section 3.4(a) of the Proposed 

CT Plan. 

57See Article III, Section 3.4(a) of the Proposed 

CT Plan. 

58See Article III, Section 3.4(b) of the Proposed 

CT Plan. 

59See Article III, Section 3.4(d)(i) of the Proposed 

CT Plan. 

are identical to the corresponding 

definitions in the 2021 CT Plan 

approved by the Commission,42 and 

were not required to be modified by the 

Amended Governance Order. The 

Commission received no comments on 

Article I, Section 1.1 of the Proposed CT 

Plan, and the Commission is approving 

Article I, Section 1.1 of the Proposed CT 

Plan as modified. 

(b) Section 1.2 Interpretation 

Section 1.2 of the Proposed CT Plan 

provides rules for the interpretation of 

terms used in the Proposed CT Plan. 

This provision is identical to the 

corresponding plan provisions of the 

2021 CT Plan approved by the 

Commission 43 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments addressing 

Section 1.2, and the Commission is 

approving Section 1.2 as proposed. 

3. Organization 

Article II of the Proposed CT Plan sets 

forth provisions governing the 

organization of the Company. The SROs 

have organized the Proposed CT Plan in 

the form of a Delaware limited liability 

company pursuant to a limited liability 

company agreement, entitled the 

Limited Liability Company Agreement 

(‘‘Agreement’’) of CT Plan LLC 

(‘‘Company’’).44 The Members of the 

Company will be the national securities 

exchanges for equities and FINRA,45

each of which will be a ‘‘Participant’’ of 

the Proposed CT Plan as an effective 

NMS plan for the dissemination of 

consolidated equity market data. 

The Proposed CT Plan states that the 

purposes of the Company are to engage 

in the following activities on behalf of 

the Members: (i) the collection, 

consolidation, and dissemination of 

Transaction Reports, Quotation 

Information, and such other information 

concerning Eligible Securities as the 

Members shall agree as provided 

therein; (ii) contracting for the 

distribution of such information; (iii) 

contracting for and maintaining 

facilities to support any activities 

permitted in the Agreement and 

guidelines adopted thereunder, 

including the operation and 

administration of the System; 46 (iv) 

providing for those other matters set 

forth in the Agreement and in all 

guidelines adopted thereunder; (v) 

operating the System to comply with 

Applicable Laws; and (vi) engaging in 

any other business or activity that now 

or thereafter may be necessary, 

incidental, proper, advisable, or 

convenient to accomplish any of the 

foregoing purposes and that is not 

prohibited by the Delaware Act, the 

Exchange Act, or other Applicable 

Law.47 The Agreement itself, including 

its appendices, constitutes the Proposed 

CT Plan. Under the Proposed CT Plan, 

the governing body of the Company 

would be the Operating Committee.48

Article II of the Proposed CT Plan is 

identical to the corresponding plan 

provisions of the 2021 CT Plan 

approved by the Commission 49 and was 

not required to be modified by the 

Amended Governance Order. The 

Commission received no comments 

addressing Article II of the Proposed CT 

Plan, and the Commission is approving 

Article II of the Proposed CT Plan as 

proposed for the same reasons stated in 

the 2021 Approval Order.50

4. Membership 

Article III of the Proposed CT Plan 

sets forth provisions relating to 

membership in the Company. Pursuant 

to Article III, Section 3.2(a) of the 

Proposed CT Plan, any national 

securities association or national 

securities exchange whose market, 

facilities, or members, as applicable, 

trades Eligible Securities 51 may become 

a Member by (i) providing written 

notice to the Company; (ii) executing a 

joinder to the Agreement; (iii) paying a 

Membership Fee to the Company as 

determined pursuant to Section 3.2(b) 

(‘‘Membership Fee’’); and (iv) executing 

a joinder to any other agreements to 

which all of the other Members have 

been made party in connection with 

being a Member.52 Membership Fees 

paid will be added to the general 

revenues of the Company.53

Article III, Section 3.2 of the Proposed 

CT Plan specifies that the factors that 

will be considered in determining a 

Membership Fee are: (1) the portion of 

costs previously paid by the Company 

(or by the Members prior to the 

formation of the Company) for the 

development, expansion and 

maintenance of the System which, 

under generally accepted accounting 

principles (‘‘GAAP’’), would have been 

treated as capital expenditures and 

would have been amortized over the 

five years preceding the admission of 

the new member; and (2) an assessment 

of costs incurred and to be incurred by 

the Company for modifying the System 

or any part thereof to accommodate the 

new member, which costs are not 

otherwise required to be paid or 

reimbursed by the new Member.54 The 

Proposed CT Plan prohibits a Member’s 

transfer of its Membership Interest in 

the Company, except in connection with 

the withdrawal of a Member from the 

Company, as discussed below.55

Pursuant to Article III, Section 3.4, 

any Member may voluntarily withdraw 

from the Company by: (i) providing not 

less than 30 days’ prior written notice 

of such withdrawal to the Company, (ii) 

causing the Company to file with the 

Commission an amendment to 

effectuate the withdrawal,56 and (iii) 

transferring such Member’s Membership 

Interest to the Company.57 If a Member 

ceases to be a registered national 

securities association or registered 

national securities exchange, that 

Member automatically withdraws from 

the Company.58 Section 3.4 further 

provides that after withdrawal from 

Membership, the Member will remain 

liable for any obligations arising prior to 

withdrawal.59 A withdrawing Member 


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60See Article III, Section 3.4(d)(ii) of the 

Proposed CT Plan. 

61See Article III, Section 3.6 of the Proposed CT 

Plan. 

62See Article III, Section 3.7(a)–(b) of the 

Proposed CT Plan. However, in the event that the 

Processors or the Administrator have not been paid 

pursuant to the terms of the Processor Services 

Agreements and Administrative Services 

Agreement, the Proposed CT Plan requires each 

Member to return to the Company its pro rata share 

of any moneys distributed to it by the Company 

until an aggregated amount equal to the amount 

owed has been recontributed to the Company. The 

Company will pay the amount(s) owed. See Article 

III, Section 3.7(b) of the Proposed CT Plan. 

63See Article III, Section 3.7(c) of the Proposed 

CT Plan. The Proposed CT Plan further provides 

that if any court of competent jurisdiction holds 

that any Member is obligated to make any such 

payment, such obligation shall be the obligation of 

such Member and not of the Operating Committee. 

See id. 

64See Article III, Section 3.7(d) of the Proposed 

CT Plan. 

65See Article III, Section 3.7(e) of the Proposed 

CT Plan. 

66See 2021 Approval Order, supra note 19, 86 FR 

at 44152–54, 44211–12. With respect to proposed 

Article III of the Proposed CT Plan, the differences 

between the language of the 2021 CT Plan approved 

by the Commission in the 2021 Approval Order and 

that of the Proposed CT Plan as proposed are the 

substitution of the word ‘‘will’’ for the word ‘‘are’’ 

in Section 3.2(c) as proposed and the paragraph 

numbering in Section 3.4(d) as proposed. 

67 Id. 

68See Article IV, Section 4.1(a) of the Proposed 

CT Plan. This paragraph further provides that 

unless otherwise expressly provided to the contrary 

in this Agreement, no Member shall have authority 

to act for, or to assume any obligation or 

responsibility on behalf of, the Company, without 

the prior approval of the Operating Committee. See 

id. 

69See Article IV, Section 4.1(a)(i) of the Proposed 

CT Plan. 

70See Article IV, Section 4.1(a)(ii) of the Proposed 

CT Plan. 

71See Article IV, Section 4.1(a)(iii) of the 

Proposed CT Plan (providing that that the Operating 

Committee has the authority to take actions it 

deems necessary to accomplish the purposes of the 

Company, including ‘‘developing and maintaining 

fair and reasonable Fees and consistent terms for 

the distribution, transmission, and aggregation of 

Transaction Reports and Quotation Information in 

Eligible Securities’’). See id. 

72See Article IV, Section 4.1(a)(iv) of the 

Proposed CT Plan. 

is entitled to receive a portion of the Net 

Distributable Operating Income 

attributable to the period prior to the 

Member’s withdrawal.60

Pursuant to proposed Sections 

3.4(d)(iii) and (iv), a Member that has 

withdrawn from the Company will no 

longer have the right to have its 

Transaction Reports, Quotation 

Information, or other information 

disseminated over the System, and the 

Capital Account of that Member will not 

be allocated profits and losses of the 

Company. 

Article III, Section 3.5 of the Proposed 

CT Plan provides that a Member’s 

bankruptcy under Section 18–304 of the 

Delaware Act shall not itself cause a 

withdrawal of such Member from the 

Company, so long as such Member 

continues to be a national securities 

association or national securities 

exchange. As proposed, Section 3.6 

provides that, following the Operative 

Date, each Member will be required to 

comply with the provisions of the 

Proposed CT Plan and enforce 

compliance with the Proposed CT Plan 

by its members.61

Article III of the Proposed CT Plan 

also sets forth the obligations and 

liabilities of the Members. Article III, 

Section 3.7 provides that Members will 

not be required to contribute capital or 

make loans to the Company, nor will 

Members have any liability for the debts 

and liabilities of the Company.62 This 

section also states that it is the intent of 

the Members that no distribution to any 

Member pursuant to the Company 

Agreement will be considered a return 

of money or other property paid or 

distributed in violation of the Delaware 

Act, and that any such payment will be 

considered a compromise within the 

meaning of Delaware Act, and the 

Member receiving any payment will not 

be required to return any payment to 

any person, provided that a Member 

will be required to return any payment 

made due to a clear accounting or 

similar error or as otherwise provided in 

Section 3.7(b).63 In addition, Article III 

of the Proposed CT Plan provides that 

no Member, unless authorized by the 

Operating Committee, has the authority 

to represent the Company or to make 

any expenditure on behalf of the 

Company; provided, however, that the 

Tax Matters Partner may represent, act 

for, sign for or bind the Company as 

permitted under Sections 10.2 and 10.3 

of the Agreement.64 Finally, Section 

3.7(e) provides that no Member owes 

any duty (fiduciary or otherwise) to the 

Company or to any other Member other 

than the duties expressly set forth in the 

Agreement.65

The Commission is modifying Section 

3.6 to replace the ‘‘Operative Date’’ with 

‘‘Effective Date’’ as that term is defined 

in the Recitals. This change is 

appropriate because the Effective Date 

of the Agreement is the date it is 

approved by the Commission, whereas 

the Operative Date is defined as the date 

that Members conduct, through the 

Company, the Processor and 

Administrator functions related to the 

public dissemination of real-time 

consolidated equity market data and the 

Equity Data Plans cease their operations. 

This modification will facilitate the 

implementation of the Proposed CT 

Plan as, pursuant to Article XIV of the 

approved plan, the obligation of each 

Member to comply with the provisions 

of the Agreement and enforce 

compliance by its members shall begin 

when the Agreement is approved. 

Aside from the modification to 

Section 3.6, Article III is, with 

immaterial differences, identical to the 

corresponding provisions of the 2021 

CT Plan approved by the Commission 66

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comments on 

Article III of the Proposed CT Plan, and 

the Commission is approving Article III 

of the Proposed CT Plan as modified for 

the same reasons stated in the 2021 

Approval Order.67

5. Management of the Company 

Article IV of the Proposed CT Plan 

establishes the overall governance 

structure for the management of the 

Company. 

(a) Operating Committee 

As an initial matter, Section 4.1 of the 

Proposed CT Plan has a typographical 

error in that the subsections are 

numbered in Section 4.1 as (f), (g), and 

(h), rather than (a), (b), and (c). 

Accordingly, the Commission is 

modifying the Proposed CT Plan to 

correct this typographical error, and, for 

ease of reading, all further references to 

Section 4.1 will be to the paragraphs as 

renumbered. These modifications are 

appropriate because they would 

alleviate confusion on those referencing 

the Proposed CT Plan. 

Article IV, Section 4.1(a) provides that 

the Company be managed by the 

Operating Committee.68 Article IV, 

Section 4.1(a) also provides that the 

Operating Committee has the authority 

to take actions it deems necessary to 

accomplish the purposes of the 

Company, including: (1) proposing 

amendments or implementing policies 

and procedures; 69 (2) selecting, 

overseeing, specifying the role and 

responsibilities of, and evaluating the 

performance of the Administrator, the 

Processor, an auditor, and any other 

professional service providers; 70 (3) 

developing fair and reasonable fees and 

consistent terms for Transaction Reports 

and Quotation Information; 71 (4) 

reviewing the performance of the 

Processors and ensuring public 

reporting of the Processors’ performance 

and other metrics and information about 

the processors; 72 (5) assessing the 

marketplace for equity data products 

and ensuring that the CT Feeds are 

priced in a manner that is fair and 

reasonable, and designed to ensure the 


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73See Article IV, Section 4.1(a)(v) of the Proposed 

CT Plan. 

74See Article IV, Section 4.1(a)(vi) of the 

Proposed CT Plan. 

75See Article IV, Section 4.1(a)(vii) of the 

Proposed CT Plan. 

76See Article IV, Section 4.1(a)(viii) of the 

Proposed CT Plan. 

77The limitations on the Operating Committee’s 

authority to delegate those administrative functions 

to be performed by the Administrator pursuant to 

Section 6.1, to (1) a subcommittee; (2) one or more 

of the Members; or (3) any other Persons (including 

the Administrator) under Section 4.1(b) of the 

Proposed CT Plan apply equally with respect to 

those administrative functions to be performed by 

the Interim Administrator(s) appointed pursuant to 

Section 6.5 of the Proposed CT Plan. 

78See Article IV, Section 4.1(b) of the Proposed 

CT Plan. 

79See Amended Governance Order, supra note 

23, 88 FR at 61631 (‘‘In accordance with the D.C. 

Circuit’s ruling, the Commission is modifying the 

Governance Order to remove the provisions 

regarding the participation of non-SRO 

representatives as members of the operating 

committee of the Revised New Consolidated Data 

Plan and to make conforming changes.’’). 

80Letter from Krista Ryan, SVP, Deputy General 

Counsel and Holly Grotnik, Head of Consolidated 

Data Services, Fidelity Investments, at 5 (Feb. 26, 

2024) (‘‘Fidelity Letter’’) at 5. 

81 Id. 

82Letter from Stan Sater, Legal Counsel, 

Polygon.io, Inc. (Feb. 26, 2024) (‘‘Polygon Letter’’), 

at 1. 

83 Id. at 2. 

84Letter from Thomas Jordan, President, Jordan & 

Jordan, at 2 (June 12, 2024) (‘‘Jordan Letter’’). 

85See Fidelity Letter, supra note 80, at 5; Polygon 

Letter, supra note 82, at 1. 

86See Fidelity Letter supra note 80, at 5. 

87Article IV, Section 4.1(a)(1) of the Proposed CT 

Plan (as approved). 

88See Fidelity Letter, supra note 80, at 5; Polygon 

Letter, supra note 82, at 1–2. 

89See Amended Governance Order, supra note 

23, 88 FR at 61631. In the Governance Order, ‘‘[t]he 

Commission sought to address . . . , among other 

things, the inherent conflicts of interest between the 

self-regulatory organizations’ role in collecting and 

disseminating consolidated equity market data and 

their interests in selling proprietary data products.’’ 

See 2021 Approval Order, supra note 19, 86 FR at 

44142. See also Governance Order, supra note 11 

(‘‘[T]he Commission believes that the 

demutualization of the exchanges and the 

proliferation of proprietary exchange data products 

have heightened the conflicts between the SROs’ 

business interests in proprietary data offerings and 

their obligations as SROs under the national market 

system to ensure prompt, accurate, reliable, and fair 

dissemination of core data through the jointly 

administered Equity Data Plans. And these conflicts 

bear on the exchanges’ incentives to meaningfully 

improve the provision of core data.’’) (citations 

omitted)). 

90See Governance Order, supra note 11, 85 FR at 

28705 (citing to Securities Exchange Act Release 

No. 87906 (Jan. 8, 2020), 85 FR 2164, 2173 (Jan. 14, 

2020) (File No. 4–757). 

widespread availability of CT Feeds 

data to investors and market 

participants; 73 (6) designing a fair and 

reasonable formula to be applied by the 

Administrator for allocating plan 

revenues, and overseeing, reviewing, 

and revising the formula as needed; 74

(7) interpreting the Agreement and its 

provisions; 75 and (8) carrying out other 

specific responsibilities provided for in 

the Agreement.76

Section 4.1(b) proposes to permit the 

Operating Committee to delegate all or 

part of its administrative functions 

under the Proposed CT Plan, excluding 

those administrative functions to be 

performed by the Administrator 

pursuant to Section 6.1, to (1) a 

subcommittee; (2) one or more of the 

Members; or (3) any other Persons 

(including the Administrator),77

provided that a delegation would not 

convey the authority to take action on 

behalf of the Proposed CT Plan.78 And 

Section 4.1(c) provides that neither the 

Company nor the Operating Committee 

will have authority over any Member’s 

proprietary systems or the collection 

and dissemination of quotation or 

transaction information in Eligible 

Securities in any Member’s Market, or, 

in the case of FINRA, from FINRA 

Participants. Section 4.1 as proposed 

and approved differs from the 

corresponding provision of the 2021 CT 

Plan approved by the Commission in 

two ways. First, in lieu of the term ‘‘core 

data’’ in Section 4.1(a)(iii) of the 2021 

CT Plan, the Proposed CT Plan uses the 

phrase ‘‘Transaction Reports and 

Quotation Information in Eligible 

Securities.’’ Second, Section 4.1(b) as 

proposed and approved removes a 

reference to Non-SRO Voting 

Representatives, which is consistent 

with the Amended Governance Order.79

One commenter states that the 

Commission should ‘‘encourage the 

Revised CT Plan to consider’’ whether 

current policies of the Equity Data 

Plans, ‘‘such as those surrounding nondisplay use reporting and professional 

versus non-professional designations, 

are necessary or merely add 

unnecessary complexity and 

confusion.’’ 80 The commenter states 

that a ‘‘benefit of transparent, simple, 

fee schedules and policies governing 

consolidated equity market data is that 

they [would] also likely reduce the 

scope of services that the Plan 

Administrator would need to provide to 

the Revised CT Plan, thereby reducing 

Plan costs.’’ 81 Another commenter 

states that the policies for the Proposed 

CT Plan ‘‘must be improved’’ from those 

of the Equity Data Plans.82 This 

commenter states that ‘‘there must be 

greater transparency in the various 

stages of the workstreams and 

alternative views considered’’ and that 

the ‘‘seemingly rent-seeking behavior 

that has plagued the Existing Plans must 

be addressed, and every aspect 

surrounding the governance and 

administration of Consolidated Data 

must be reimagined.’’ 83 Another 

commenter suggests that, in developing 

policies, consideration should be given 

to ‘‘invit[ing] potential RFP respondents 

to present their thoughts on issues and 

potential solutions for the new plan.’’ 84

With respect to the comments 

addressing the policies to be developed 

for the Proposed CT Plan, including 

comments suggesting that such policies 

should improve upon those of the 

Equity Data Plans with respect to their 

complexity, effectiveness, and 

transparency,85 and for the participants 

to the Proposed CT Plan to consider 

whether such policies are necessary,86

these comments provide insufficient 

detail with respect to the measures or 

specific plan language that, in the 

commenters’ views, would be necessary 

to address the commenters’ concerns. 

Additionally, the requirements of the 

Proposed CT Plan, as proposed and 

approved, provide appropriate 

guidelines for the development and 

implementation of such policies. For 

example, the Proposed CT Plan, as 

proposed and approved, requires that 

the Operating Committee implement 

‘‘policies and procedures as necessary to 

ensure prompt, accurate, reliable, and 

fair collection, processing, distribution, 

and publication of information with 

respect to Transaction Reports and 

Quotation Information in Eligible 

Securities and the fairness and 

usefulness of the form and content of 

that information.’’ 87 Moreover, any plan 

policies or operational interpretations 

adopted by the Operating Committee 

must be consistent with the terms of the 

Plan. 

With respect to the concerns based on 

the commenters’ experience with the 

Equity Data Plans as it relates to equity 

market data or plan policies in 

general,88 these commenters provide 

insufficient detail with respect to the 

measures that, in the commenters’ 

views, are necessary to address the 

expressed concerns. Regarding the plan 

policies to be developed, the Proposed 

CT Plan includes specified provisions 

designed to, among other things, 

address the governance concerns 

identified by the Commission with 

respect to the governance of the Equity 

Data Plans.89 Implementing the 

governance reforms in the Proposed CT 

Plan, as approved in this order, is a key 

step in responding to broader concerns 

about whether the Equity Data Plans 

continue to serve their regulatory 

purpose.90 These changes, including, as 

approved in this order, a reallocation of 


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91See Article IV, Section 4.3 (establishing 

requirements for action of the Operating Committee 

of the Proposed CT Plan). 

92See Article IV, Section 4.7 of the Proposed CT 

Plan (governing, among other things, the formation, 

composition, function, and rights of the Advisory 

Committee of the Proposed CT Plan). 

93See Article VI, Section 6.2 of the Proposed CT 

Plan (governing independence requirements for the 

Administrator of the Proposed CT Plan). 

94As the Commission stated in the Governance 

Order, changes to the governance structure of the 

SIPs are appropriate to create a governance 

structure that will reduce obstacles to ongoing 

improvement of the consolidated market data feeds 

in ways that the current governance structure of the 

Equity Data Plans has not; and making these 

governance changes will facilitate decision-making 

regarding operational changes. See Governance 

Order, supra note 11, 85 FR at 28707. 

95See, e.g., Article IV, Sections 4.1 and 4.7 of the 

Proposed CT Plan. 

96See 2021 Approval Order, supra note 19, 86 FR 

at 44156–63. 

97See Amended Governance Order, supra note 

23, 88 FR at 61631 (stating that ‘‘[i]n accordance 

with the D.C. Circuit’s ruling, the Commission is 

modifying the Governance Order to remove the 

provisions regarding the participation of non-SRO 

representatives as members of the operating 

committee of the Revised New Consolidated Data 

Plan and to make conforming changes’’). 

98See 2021 Approval Order, supra note 19, 86 FR 

at 44156–63. 

99For example, New York Stock Exchange LLC, 

NYSE American, NYSE Arca, NYSE Chicago, and 

NYSE National would be one SRO group for 

purposes of the Proposed CT Plan and would select 

one individual to represent the SRO group on the 

Operating Committee. 

100Currently, the non-affiliated SROs are FINRA, 

IEX, LTSE, MEMX, and MIAX PEARL. 

101See Article IV, Section 4.2(a) of the Proposed 

CT Plan. Section 4.2(a) further provides that each 

SRO group and each non-affiliated SRO may 

designate an alternate individual or individuals 

who shall be authorized to vote on behalf of such 

SRO group or such non-affiliated SRO, respectively, 

in the absence of the designated SRO Voting 

Representative. See id. 

102See Article IV, Section 4.2(b) of the Proposed 

CT Plan. This section further provides that each 

SRO Applicant may designate an alternate 

individual or individuals who shall be authorized 

to act as the SRO Applicant Observer on behalf of 

the SRO Applicant in the absence of the designated 

SRO Applicant Observer. See id. 

103See Article IV, Section 4.2(c) of the Proposed 

CT Plan. 

104See Article IV, Section 4.2(c) of the Proposed 

CT Plan. 

105See Amended Governance Order, supra note 

23, 88 FR at 61631. 

106See Amended Governance Order, supra note 

23, 88 FR at 61639. 

voting power,91 broader representation 

from members of the Advisory 

Committee,92 as well as the 

appointment of an Administrator 

meeting the independence requirements 

of Section 6.2 of the Proposed CT 

Plan,93 should, when combined into a 

single new NMS plan, significantly 

enhance the governance of the Proposed 

CT Plan.94 They should also facilitate 

enhanced decision-making and 

innovation in the provision of equity 

market data, including with respect to 

the development of plan-related 

policies. Additionally, replacing the 

Equity Data Plans’ two current 

administrators with the single 

independent Administrator upon full 

implementation of the Proposed CT 

Plan should improve upon the policies 

of the Equity Data Plans by facilitating 

both uniform plan policies and the 

uniform application of those policies. 

Moreover, the Proposed CT Plan will 

provide for a broader set of Advisory 

Committee members than the Equity 

Data Plans do, and the Advisory 

Committee will have the opportunity to 

provide input from a broader selection 

of market participants on any proposed 

policies prior to the adoption of those 

policies by the Operating Committee.95

Accordingly, the Commission is not 

modifying the Proposed CT Plan in 

response to these comments. 

As discussed above, Section 4.1 of 

Article IV of the Proposed CT Plan is 

substantively similar to the 

corresponding provision of the 2021 CT 

Plan approved by the Commission,96

and, other than for the removal of 

provisions regarding non-SRO 

representatives, which is consistent 

with the Amended Governance Order,97

Section 4.1 was not required to be 

modified by the Amended Governance 

Order. For the same reasons stated in 

the 2021 Approval Order (apart from 

those pertaining to the participation of 

non-SRO representatives as members of 

the operating committee of the 2021 CT 

Plan, which is not included in the 

Proposed CT Plan),98 the Commission is 

approving Section 4.1 of Article IV of 

the Proposed CT Plan as proposed. 

(b) Composition and Selection of 

Operating Committee 

Article IV, Section 4.2 governs the 

composition and selection of the 

Operating Committee members. Article 

IV, Section 4.2(a) provides that each 

SRO group 99 and each non-affiliated 

SRO 100 will designate a Voting 

Representative to serve on the Operating 

Committee and vote on its behalf.101

Article IV, Section 4.2(b) of the 

Proposed CT Plan provides that entities 

that have not yet been registered with 

the Commission as national securities 

exchanges may appoint, subject to 

Section 4.4(i), an individual to attend 

regularly scheduled Operating 

Committee meetings (an ‘‘SRO 

Applicant Observer’’).102 Paragraph (b) 

of Section 4.2 further provides that if 

the SRO Applicant’s Form 1 petition or 

Section 19(b)(1) filing is withdrawn, 

returned, or is otherwise not actively 

pending with the Commission for any 

reason, then the SRO Applicant will no 

longer be eligible to have an SRO 

Applicant Observer attend Operating 

Committee meetings. Article IV, Section 

4.2(c) of the Proposed CT Plan provides 

that in the event that a non-affiliated 

SRO, or that all national securities 

exchanges in an SRO group, cease 

operations as a market (or have not 

commenced operation of a market), 

those entities will not be permitted to 

appoint a Voting Representative. Such a 

non-affiliated SRO or SRO group will, 

however, be permitted to attend 

meetings of the Operating Committee as 

an observer, except for Executive 

Sessions.103 If such a non-affiliated SRO 

or SRO group does not commence 

operations within six months of first 

attending an Operating Committee 

meeting as a non-operational 

exchange(s), it will no longer be 

permitted to attend Operating 

Committee meetings until it resumes 

operations as a market.104

The text of Section 4.2 of the 

Proposed CT Plan is substantively 

similar to the corresponding provision 

of the 2021 CT Plan approved by the 

Commission, except for the following 

differences, which are consistent with 

the requirements of the Amended 

Governance Order: 105 (1) the removal of 

all provisions regarding the 

participation of non-SRO 

representatives as members of the 

operating committee (‘‘Non-SRO Voting 

Representatives’’), consistent with 

requirements of the Amended 

Governance Order; (2) the replacement 

of references to ‘‘SRO Voting 

Representatives’’ with references to 

‘‘Voting Representatives’’ which, as 

discussed above, conforms to the 

defined term; and (3) the renumbering 

of paragraphs in proposed Section 4.2 to 

conform the section with the foregoing 

deletions. The Commission received no 

comments on Section 4.2 of the 

Proposed CT Plan. The Commission is 

approving Section 4.2 as proposed for 

the reasons stated in the 2021 Approval 

Order (apart from those pertaining to the 

participation of non-SRO 

representatives as members of the 

operating committee of the 2021 CT 

Plan, which is not included in the 

Proposed CT Plan). 

(c) Action of Operating Committee 

Article IV, Section 4.3 of the Proposed 

CT Plan sets forth the voting allocation 

and voting structure for actions of the 

Operating Committee. 

(i) Allocation of Votes 

Consistent with the requirements of 

the Amended Governance Order,106

Article IV, Section 4.3(a) of the 

Proposed CT Plan provides that each 


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107See Article IV, Section 4.3(a) of the Proposed 

CT Plan. Section 4.3(a) further provides that, for 

purposes of Section 4.3(a), ‘‘consolidated equity 

market share’’ means the average daily dollar equity 

trading volume of Eligible Securities of an SRO 

group or non-affiliated SRO as a percentage of the 

average daily dollar equity trading volume of all of 

the SRO groups and non-affiliated SROs, as 

reported under this Agreement or under the CQ, 

CTA, and UTP Plans. See id. 

108See Article IV, Section 4.3(a) of the Proposed 

CT Plan. Article IV, Section 4.3(a) of the Proposed 

CT Plan states that FINRA shall not be considered 

to operate a market center within the meaning of 

this Section 4.3(a) solely by virtue of facilitating 

quoting on the FINRA Alternative Display Facility 

or reporting on behalf of FINRA participants of 

transactions effected otherwise than on an 

exchange. 

109See Letter from Patrick Sexton, EVP, General 

Counsel & Corporate Secretary, Cboe Global 

Markets, Inc. (Jan. 26, 2024) (‘‘Cboe Letter I’’); 

Fidelity Letter, supra note 80; Letter from Sarah 

Bessin, Deputy General Counsel, Securities 

Regulation and Nhan Nguyen, Associate General 

Counsel, Securities Regulation, Investment 

Company Institute (Feb. 26, 2024) (‘‘ICI Letter’’); 

Letter from Adrian Griffiths, Head of Market 

Structure, MEMX LLC (Feb. 26, 2024) (‘‘MEMX 

Letter’’); Letter from Erika Moore, Vice President 

and Corporate Secretary, Nasdaq, Inc. (Feb. 26, 

2024) (‘‘Nasdaq Letter’’); Letter from Hope 

Jarkowski, General Counsel, NYSE Group, Inc. (Feb. 

26, 2024) (‘‘NYSE Letter’’); Letter from Ellen 

Greene, managing Director, Equities & Options 

Market Structure and Joseph Corcoran, Managing 

Directors, Associate General Counsel, Securities 

Industry and Financial Markets Association (Feb. 

26, 2024) (‘‘SIFMA Letter’’); Letter from Patrick 

Sexton, EVP, General Counsel & Corporate 

Secretary, Cboe Global Markets, Inc. (May 20, 2024) 

(‘‘Cboe Letter II’’); Jordan Letter, supra note 84; 

Letter from Adrian Griffiths, Head of Market 

Structure, MEMX, John Ramsay, Chief Market 

Policy Officer, IEX, Christopher Solgan, VP, Senior 

Counsel, MIAX Pearl, and Alanna Barton, Director 

and Senior Counsel, Markets and Regulation, LTSE 

(Aug. 16, 2024) (‘‘MEMX–IEX–MIAX Pearl-LTSE 

Letter’’); Letter from Patrick Sexton, EVP, General 

Counsel & Corporate Secretary, Cboe Global 

Markets, Inc. (Sept. 18, 2024) (‘‘Cboe Letter III’’). 110See Fidelity Letter, supra note 80, at 3; MEMX 

Letter, supra note 109, at 2; ICI Letter, supra note 

109, at 1–2; SIFMA Letter, supra note 109, at 2; 

MEMX–IEX–MIAX Pearl-LTSE Letter, supra note 

109, at 1–5. 

111See Fidelity Letter, supra note 80, at 3. 112MEMX Letter, supra note 109, at 2, 10. 113See Cboe Letter I, supra note 109, at 2–5; Cboe 

Letter II, supra note 109, at 2, 3–6; Nasdaq Letter, 

supra note 109, at 2–5; NYSE Letter, supra note 

109, at 5–7. 114See Cboe Letter I, supra note 109, at 3–6; 

Nasdaq Letter, supra note 109, at 2; NYSE Letter, 

supra note 109, at 7. 

115Cboe Letter I, supra note 109, at 2, 3–4; see 

also Cboe Letter II, supra note 109, at 3–6; Cboe 

Letter III, supra note 109, at 7–8. 

116See Cboe Letter II, supra note 109, at 3. 

117See Cboe Letter III, supra note 109, at 7. 

118See Cboe Letter II, supra note 109, at 3. 

119See id. at 4; Cboe Letter III, supra note 109, 

at 8. 

120See NYSE Letter, supra note 109, at 6. 

121 Jordan Letter, supra note 84, at 2. 

122See id. This commenter further states that 

approval of the Proposed CT Plan, including its 

proposed voting structure, would likely lead to 

Continued 

Voting Representative will have one 

vote to cast on behalf of the SRO group 

or non-affiliated SRO that he or she 

represents, with a second vote provided 

if the SRO group or non-affiliated SRO 

has a market center or centers that trade 

more than 15 percent of consolidated 

equity market share 107 for four of the 

six calendar months preceding a vote of 

the Operating Committee.108

Commenters addressed the allocation of 

votes in the Proposed CT Plan.109

(A) The Allocation of Votes by SRO 

Group and Trading Volume 

Several commenters support 

approving the allocation of votes as 

proposed.110 One commenter agrees 

with the Proposed CT Plan provision 

that the voting power on the Operating 

Committee should be limited to one 

vote per exchange group, with the 

ability to obtain a second vote if the 

exchange group maintains a 

consolidated market share of at least 

fifteen percent for at least four of the six 

calendar months preceding a vote of the 

Operating Committee.111 One 

commenter states that it supports the 

allocation of votes as proposed because 

it would reduce the ‘‘concentration of 

voting authority that is currently held 

by a minority of Participant 

organizations that control several votes 

today.’’ 112

Conversely, certain commenters state 

that, while the Commission stated in the 

2021 Approval Order that its voting 

framework was designed to reflect the 

importance of those SROs that oversee 

trading activity that generates a 

significant amount of equity market 

data, the 15-percent consolidated equity 

market share necessary for a second vote 

is not rationally related to the 

Commission’s goal.113 Specifically, 

these commenters state that the 

Proposed CT Plan’s voting framework 

violates the Exchange Act and is 

arbitrary and capricious under the 

Administrative Procedure Act 

(‘‘APA’’).114

One commenter states that the 

proposed allocation of voting power is 

‘‘illogical and violative of the APA’’ 

because it (1) ‘‘lacks a rational basis’’ 

and ‘‘any rational connection’’ to this 

commenter’s consolidated equity market 

share, (2) treats the commenter’s SRO 

group the same as dissimilarly situated 

non-affiliated exchanges, while treating 

the commenter’s SRO group differently 

from other similarly situated SRO 

groups, and (3) unjustifiably equates 

this commenter’s significance to the 

market to that of the much smaller, nonaffiliated exchanges, thus yielding 

results that are ‘‘antithetical’’ and 

inconsistent with the Commission’s 

statement that voting should reflect the 

‘‘significance within the national market 

system of those exchanges that, in their 

roles as SROs, oversee trading activity 

that generates a significant amount of 

equity market data.’’ 115

This commenter further states that 

consolidated market share statistics for 

2023 and year-to-date (‘‘YTD’’) 2024 

support its argument against allocating 

to its SRO group the same single vote 

allocated to each of the unaffiliated 

SROs.116 Specifically, the commenter 

states that for YTD August 2024, the 

consolidated equity market share of its 

SRO group is more than four times that 

of two unaffiliated SROs, almost ten 

times more than a third unaffiliated 

SRO, and approaching more than 2600 

times more volume than a fourth 

unaffiliated SRO.117 This commenter 

further states that for YTD August 2024, 

the combined consolidated equity 

market share of these four non-affiliated 

exchanges was little more than 50% of 

the consolidated equity market share 

alone of this commenter’s SRO group.118

The commenter states that, by allocating 

the non-affiliated exchanges four total 

votes and the commenter’s SRO group 

one vote, the Commission has 

effectively given the non-affiliated 

exchanges eight times more voting 

power for their market share relative to 

the commenter’s, which the commenter 

states is unsupported by reasoned 

analysis.119

One commenter states that the 

Commission should consider more than 

just trading market share when 

considering the significance of 

exchanges and SRO groups to the 

national market structure, saying that it 

would not be reasonable for the 

Commission to conclude that an 

exchange group that operates one or 

more listing exchanges, attracts 

significant quoting and trading activity, 

generates a substantial portion of equity 

market data, and commands more than 

10% of the trading market share is no 

longer ‘‘significant’’ enough to warrant a 

second vote (and have the same voting 

power as an exchange with zero percent 

market share).120

Another commenter states that 

consideration should be given to 

comments favoring a ‘‘more market 

oriented’’ approach to the allocation of 

votes under the Proposed CT Plan 

because, as proposed, the voting 

mechanism seems ‘‘somewhat 

arbitrary,’’ with one SRO group and 

much smaller unaffiliated SROs having 

equivalent voting power.121 This 

commenter states that, based on average 

daily volume for the first week of June 

2024, one SRO group executed over 

1400 times the volume of one of the 

unaffiliated SROs.122 This commenter 


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litigation with consequent delays to the 

implementation of the Proposed CT Plan. See id. 

123See id. 

124 Governance Order, supra note 11, 85 FR at 

28705 (citations omitted). 

125 Id. at 28712. 

126 Id. at 28713. 

127 Id. 

128 Id. at 28702. 

129 Id. at 28713. 

130See Nasdaq v. SEC, supra note 20, 38 F.4th 

at 1138–42. 

131See id. at 1139–42 (addressing the petitioners’ 

arguments that the Commission’s decision to ‘‘limit 

SRO votes according to an SRO’s corporate 

affiliation with another SRO’’ was arbitrary, 

capricious, and contrary to section 11A of the 

Exchange Act); see also infra notes 189–197 and 

accompanying text. 

132See supra notes 116–120, 122, 123 and 

accompanying text. 

133See Governance Order, supra note 11, 85 FR 

at 28713 (citing the ‘‘disproportionate influence 

affiliated exchange groups currently exercise in 

Plan matters by voting as a block,’’ as well as the 

‘‘need to rebalance voting power in Plan 

governance’’ to address this concern). 

134See Cboe Letter II, supra note 109, at 2. 

135See Governance Order, supra note 11, 85 FR 

at 28713; Amended Governance Order, supra note 

23, 88 FR at 61632. See also Nasdaq v. SEC, supra 

note 20, 38 F.4th at 1140–41 (finding that the 

Commission had justified its ‘‘differing treatment of 

SROs for voting’’ in the 2021 Approval Order). 

136NYSE Letter, supra note 109, at 2. 

questions whether it is appropriate for 

the basis for an equity market data 

voting structure to differ from that of 

other regulations and states that Section 

31 fees, the Trading Activity Fee 

(‘‘TAF’’) and Consolidated Audit Trail 

(‘‘CAT’’) fees are, for example, all based 

on either notional amount of sales 

multiplied by a fixed assessment fee or 

total number of round turn transactions 

multiplied by a fixed fee or number of 

shares executed or even an income 

assessment based on gross revenue.123

The Commission disagrees that the 

allocation of the same voting power to 

a single SRO and to a group of several 

SROs—even if an SRO group operates 

one or more listing exchanges, attracts 

significant quoting and trading activity, 

generates a substantial portion of equity 

market data, and commands more than 

10% of the trading market share—is 

without rational basis or inconsistent 

with the APA. As the Commission 

stated in the Governance Order: 

Congress charged the Commission with 

ensuring the ‘‘prompt, accurate, reliable, and 

fair collection, processing, distribution, and 

publication of information with respect to 

quotations for and transactions in such 

securities and the fairness and usefulness of 

the form and content of such information.’’ 

In furtherance of this responsibility, the 

Commission seeks through its rules and 

regulations to help ensure that certain ‘‘core 

data’’ is widely available for reasonable fees. 

The Commission has recognized that 

investors must have this core data ‘‘to 

participate in the U.S. equity markets.’’ And 

the purpose of the Equity Data Plans, adopted 

pursuant to Regulation NMS, is to facilitate 

the collection and dissemination of core data 

so that the public has ready access to a 

‘‘comprehensive, accurate, and reliable 

source of information for the prices and 

volume of any NMS stock at any time during 

the trading day.’’ 124

However, as the Commission also 

stated, ‘‘exchange consolidation has 

altered the relative voting power of 

SROs such that exchange groups under 

common management now have greater 

voting power with respect to plan 

governance. Exchanges that historically 

had only one vote on NMS plans have 

now been consolidated into exchange 

groups that can control blocks of four or 

five votes.’’ 125 Thus, as the Commission 

explained in the Governance Order, 

‘‘the current governance structure [of 

the Equity Data Plans] provides voting 

power based on each exchange license 

and thereby concentrates voting power 

in a small number of exchange group 

stakeholders, which also have inherent 

conflicts of interest with respect to the 

operation of the Plans,’’ 126 that these 

conflicts have ‘‘perpetuated 

disincentives for the Equity Data Plans 

to make improvements to the SIP data 

products’’ 127 and ‘‘contributed to 

significant concerns regarding whether 

the consolidated feeds meet the 

purposes for them set out by Congress 

and by the Commission in adopting the 

national market system,’’ 128 and that 

‘‘modernizing plan governance by 

reallocating votes by exchange group 

should help to ensure the prompt, 

accurate, reliable, and fair collection, 

processing, distribution, and 

publication of information with respect 

to quotations for and transactions in 

NMS stocks and the fairness and 

usefulness of the form and content of 

that information.’’ 129

Moreover, in ruling on the petition 

challenging the 2021 Approval Order, 

the D.C. Circuit confirmed that the 

allocation of votes in the CT Plan by 

exchange group is consistent with 

Section 11A of the Exchange Act and 

Rule 608 of Regulation NMS.130

Inherent in that structure—which was 

included in both the Governance Order 

and the Amended Governance Order— 

is the provision of the same voting 

power to some SRO groups with larger 

market share and exchanges with 

smaller trading volume. And, at most, 

the largest SRO groups would have only 

twice the voting power of the smallest 

unaffiliated exchange. By implication, 

in upholding these provisions, the Court 

concluded that these features were 

rational.131 Moreover, although 

commenters have opposed granting 

similar voting power to SRO groups and 

non-affiliated SROs with significantly 

different trading volumes,132 the 

existing system for allocating votes in 

the Equity Data Plans, which is favored 

by these commenters, allocates voting 

power without any consideration of 

trading volume. The existing system 

also provides the large SRO groups 

disproportionate influence over the 

Equity Data Plans through casting the 

vote of multiple consolidated SROs as a 

unified block.133 Addressing this 

allocation of disproportionate voting 

power to SRO groups with conflicts of 

interest—not simply favoring nonaffiliated SRO groups or denying the 

SRO groups a majority of voting 

power 134—remains the Commission’s 

purpose in allocating votes among SROs 

in the Amended Governance Order. 

Finally, while one commenter also 

questions whether it is appropriate for 

the voting structure of the Proposed CT 

Plan to differ from other regulations— 

such as the allocation of Section 31 fees, 

the TAF, and CAT fees—the voting 

scheme required by the Amended 

Governance Order is designed to 

address issues specific to the Equity 

Data Plans: the concentration of voting 

power in a small number of exchange 

group stakeholders with inherent 

conflicts of interest with respect to the 

operation of the Equity Data Plans, 

which has perpetuated disincentives for 

the Equity Data Plans to make 

improvements to the SIP data 

products.135 Moreover, if the 

Commission allocated voting power on 

the Proposed CT Plan purely by trading 

volume, similar to the fees cited by the 

commenter, the result would be an even 

greater concentration of voting power 

than currently exists in the Equity Data 

Plans, perpetuating the existing 

disincentives to improve the SIP data 

products. 

(B) Market Changes Since 2020 

Several commenters also state that, 

because of changes that have taken 

place in the markets since the 

Commission set the 15-percent 

threshold in the Governance Order, that 

threshold is no longer supportable and 

should be reconsidered. One commenter 

states that the 15-percent threshold for 

obtaining a second vote has become 

‘‘stale’’ since the Commission first 

proposed it in 2020.136 This commenter 

states that, since the Commission 

justified the 15-percent threshold in the 

Governance Order, there has been a 

proliferation of non-affiliated 

exchanges, with three independent 

exchanges having launched (LTSE, 

MEMX, and MIAX PEARL), BOX 


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137See id. at 5. 

138See id. See also Nasdaq Letter, supra note 109, 

at 4 (stating that, as new exchanges have entered the 

market over the past three years, the trend of 

liquidity moving toward non-exchange venues has 

continued). 

139NYSE Letter, supra note 109, at 5 (quoting the 

2021 Approval Order, supra note 19, 86 FR at 

44164). 

140 Id. at 6. 

141See id. 

142 Id. 

143See Nasdaq Letter, supra note 109, at 3 (citing 

Governance Order, supra note 11, 85 FR at 28714). 

144See id. at 4. 

145 Id. 

146See id. 

147See id. at 4–5. 

148MEMX–IEX–MIAX Pearl-LTSE Letter, supra 

note 109, at 5. 

149See id. at 3–4. 

150See Cboe Letter I, supra note 109, at 2–6; Cboe 

Letter II, supra note 109, at 2–8; Cboe Letter III, 

supra note 109, at 2–4; NYSE Letter, supra note 

109, at 1–7; Nasdaq Letter, supra note 109, at 1–5. 

151See Governance Order, supra note 11, 85 FR 

at 28714. 

152See Cboe Letter I, supra note 109, at 3 (quoting 

2021 Approval Order, supra note 19, 86 FR at 

44164); see also Cboe Letter II, supra note 109, at 

4–5; Cboe Letter III, supra note 109, at 5, 8; NYSE 

Letter, supra note 109, at 2; Nasdaq Letter, supra 

note 109, at 1–2 (citing 2021 Approval Order, supra 

note 19, 86 FR at 44164). 

153 Governance Order, supra note 11, 85 FR at 

28714. 

154See infra Section II.B.5(c)(i)(D). 

155 Id. 

Exchange LLC having received approval 

of its registration as an exchange, and 

that three other entities have announced 

plans to launch new exchanges.137

This commenter further states that the 

Commission’s concerns in 2020 and 

2021 about exchange consolidation were 

unfounded when rejecting a 10% 

threshold.138 This commenter states that 

the Commission justified the 15-percent 

threshold in 2020 as reflecting ‘‘the 

significance within the national market 

system of those exchanges that, in their 

roles as SROs, oversee trading activity 

that generates a significant amount of 

equity market data,’’ and by pointing to 

the market shares of the three SRO 

groups at that time, which the 

commenter says were all ‘‘comfortably 

above’’ the 15-percent threshold but 

have since declined.139

The commenter states that the 

Commission ‘‘clearly did not foresee 

this turn of events,’’ and that, ‘‘[b]y the 

Commission’s own reasoning, if the 

Proposed Plan does not allocate a 

second vote to the SRO Groups that 

oversee the vast majority of on-exchange 

quoting, trading, and related market 

data creation, then the voting threshold 

is incorrectly set.’’ 140 The commenter 

states that, given the increasing 

fragmentation of the market and decline 

of SRO-group market share, an exchange 

group that manages to achieve 14, or 12, 

or even 10 percent market share should 

qualify for a second vote,141 and 

observes that, ‘‘while the four 

independent exchanges have 

collectively managed to achieve almost 

8 percent market share, none of them 

individually has had a market share of 

more than 4 percent, and one of them 

has essentially zero percent.’’ 142

Another commenter also states that 

the Commission based its analysis on 

the erroneous assumption that the 

largest exchange groups would have a 

market share ranging from 17 percent to 

22 percent 143—with the 15-percent 

threshold well below that range—and 

that data show the actual range to be 

approximately 4 points below that, 

between 13 and 18 percent, with the 

threshold in the middle of that range, a 

downward trend that is likely to 

endure.144 According to this 

commenter, the 15-percent threshold is 

therefore ‘‘not fit for purpose’’ because 

it is too high to differentiate between 

exchanges that oversee trading activity 

that generates a significant amount of 

equity market data and those that do 

not.145 This commenter further states 

that the Commission must examine the 

relevant data and articulate a 

satisfactory explanation for its action 

including a rational connection between 

the facts found and the choice made.146

The commenter states that the data does 

not support the proposed voting 

scheme.147

Some commenters that support the 

proposed voting allocation state that 

‘‘relative market share trends are fluid 

and subject to constant change,’’ and 

therefore are not relevant to the proper 

effectuation of the SROs’ shared 

regulatory responsibilities in the 

Proposed CT Plan’s voting 

framework.148

The Commission agrees with 

commenters that stated that relative 

market share trends are by their nature 

fluid and subject to constant change and 

that the court’s ruling did not suggest 

that a transitory change in market share 

between competitors is relevant to the 

question of how to properly effectuate 

the SROs’ shared regulatory 

responsibilities in the Proposed CT 

Plan’s voting framework, or that that 

proposed voting structure is now, after 

its long procedural history, inconsistent 

with the Exchange Act.149

Additionally, while the commenters 

opposing the voting allocation of the 

Proposed CT Plan 150 state that there has 

been a proliferation of non-affiliated 

exchanges and a decline in SRO-group 

market share, and that the 15-percent 

threshold is now inconsistent with the 

Commission’s observation in the 

Governance Order that the consolidated 

equity market share of the largest 

exchange groups was ‘‘already well 

above 10 percent and continues to range 

from 17 percent to 22 percent,’’ 151 and 

the Commission’s statement that the 

threshold ‘‘reflects the significance 

within the national market system of 

those exchanges that, in their roles as 

SROs, oversee trading activity that 

generates a significant amount of equity 

market data,’’ 152 the Commission did 

not define ‘‘significant’’ to mean that 

each of the three SRO groups would, in 

perpetuity, receive a second vote on the 

new NMS plan’s Operating Committee. 

That two SRO groups, as opposed to all 

three, would receive a second vote 

under the current distribution of trading 

volume, does not invalidate the 

Commission’s decision to permit a 

second vote only for those unaffiliated 

SROs or SRO groups with at least a 15- 

percent market share. 

Moreover, the Commission 

specifically rejected a lower threshold 

in the Governance Order precisely 

because adopting a lower threshold 

would have created the expectation that 

SRO groups would receive a third vote 

at a higher level of market share: 

Setting the threshold for a second vote at 10 

percent consolidated equity market share 

would create the expectation that exchange 

groups should receive a third vote at the 

same interval threshold above 10 percent 

(e.g., 20 percent). However, the Commission 

is not permitting the exchange groups, 

regardless of their consolidated equity market 

share, to have a third vote as this would lead 

to a continuing concentration of voting 

power.153

And, in fact, the alternative voting 

framework proposed by one of the SRO 

groups, and discussed in detail 

below,154 would do precisely that: lower 

the threshold for a second vote such that 

certain SRO groups would receive a 

third vote, increasing the concentration 

of voting power on the Operating 

Committee in the SRO groups. 

The Commission, in issuing the 

Governance Order, also agreed with a 

‘‘commenter’s assertion that the twovote cap would serve to deter actions, 

such as establishing a new exchange or 

further consolidation of existing 

exchanges into groups, taken for the sole 

purpose of gaining additional voting 

power on the operating committee.’’ 155

The Commission remains concerned 

that, as it stated in the Governance 

Order, a lower market-share threshold 

‘‘may be too easy to achieve through 

consolidation, which would result in 

too low a threshold for obtaining an 

additional vote and could lead to a 


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156 Governance Order, supra note 11, 85 FR at 

28714. 

157 Id. at 28713. 

158See NYSE Letter, supra note 109, at 6 (citing 

Volume-Based Exchange Transaction Pricing for 

NMS Stocks, Securities Exchange Act Release No. 

98766 (Oct. 18, 2023), 88 FR 76282 (Nov. 6, 2023) 

(File No. S7–18–23) (Proposed Rule)). 

159See Regulation NMS: Minimum Pricing 

Increments, Access Fees, and Transparency of 

Better Priced Orders, Securities Exchange Act 

Release No. 101070 (Sept. 18, 2024), 89 FR 81620 

(Oct. 8, 2024) (File No. S7–30–22) (Final Rules) 

(‘‘Regulation NMS Amendments’’). 

160See NYSE Letter, supra note 109, at 6–7. 

161See Regulation NMS Amendments, supra note 

159. 

162See id. 

163See id., 89 FR at 81760. 

164See Notice of Proposed Order Directing the 

Exchanges and the Financial Industry Regulatory 

Authority To Submit a New National Market 

System Plan Regarding Consolidated Equity Market 

Data, Securities Exchange Act Release No. 87906 

(Jan. 8, 2020), 85 FR 2164, 2176 (Jan. 14, 2020) (File 

No. 4–757) (‘‘While exchange group market share 

has remained relatively steady over the past several 

years, competition for order flow among the 

exchanges and the registration of new national 

securities exchanges that trade equities may lead to 

more significant changes in market share.’’) 

(citation omitted). 

165See Governance Order, supra note 11, 85 FR 

at 28714 (‘‘[U]sing a look-back period of at least four 

of the six calendar months preceding a vote of the 

operating committee for determining whether an 

exchange group or an unaffiliated exchange has met 

the threshold for a second vote would allow the 

voting structure of the New Consolidated Data Plan 

to adapt over time to potential fluctuations in 

trading volume among exchanges, while avoiding 

frequent changes in vote allocations resulting from 

short-term changes in trading activity.’’). 

166See Governance Order, supra note 11, 85 FR 

at 28713. 

167See Cboe Letter I, supra note 109, at 6–11; 

Cboe Letter II, supra note 109, at 4. 

168See Nasdaq Letter, supra note 109, at 5. 

169See Cboe Letter I, supra note 109, at 3, 6–11. 

170See Article IV, Section 4.3 of the Proposed CT 

Plan. 

171See Cboe Letter I, supra note 109, at 3, 6–11. 

This commenter further states that its suggested 

voting allocation would support, as proposed, the 

Proposed CT Plan’s provision that an exchange 

would be eligible to vote on the Proposed CT Plan’s 

operating committee only if it operates a trading 

venue. See id. 

continuing concentration of voting 

power.’’ 156

And although commenters state that 

further growth in the number of equities 

exchanges and further dispersion of 

trading volume across venues counter 

the Commission’s concerns about 

exchange consolidation—and that, by 

the Commission’s own reasoning, the 

threshold for a second vote was 

incorrectly set because it would now fail 

to assign a second vote to one of the 

three SRO groups—the ability of an SRO 

group or unaffiliated SRO to cross the 

threshold over time, in either direction, 

is entirely consistent with the voting 

scheme’s express purpose. That 

purpose, as the Commission stated in 

the Governance Order, is ‘‘to rebalance 

voting power in Plan governance to 

address the disproportionate influence 

of affiliated exchange groups.’’ 157

Indeed, that an SRO group’s market 

share has crossed the threshold for a 

second vote since 2020 demonstrates 

that the threshold selected by the 

Commission was set at a level that 

would, over time, continue to 

distinguish the very largest SRO groups 

and non-affiliated SROs—which will 

receive two votes on the Operating 

Committee—from the other SRO groups 

and non-affiliated exchanges—which 

would receive one vote. Thus, an 

analysis of the relevant data—the 

current distribution of equity trading 

volume across the exchanges and 

exchange groups, as well as the future 

distribution of voting power on the 

Operating Committee of the Proposed 

CT Plan—supports the Proposed CT 

Plan’s allocation of a second vote on the 

Operating Committee only to SRO 

groups or non-affiliated SROs with at 

least a 15-percent share of equities 

trading volume. 

(C) Commission Rulemaking 

One commenter states that a proposed 

Commission rulemaking would affect 

the distribution of trading volume in a 

way that would undercut the rationale 

behind the 15-percent threshold for a 

second vote. This commenter states that 

the Commission’s October 2023 

proposal regarding volume-based 

exchange transaction pricing for NMS 

stocks would drive trading volumes 

away from exchanges to off-exchange 

venues where volume-based pricing 

would still be available.158 The 

commenter states that the Commission’s 

proposed changes to on- and offexchange minimum pricing increments 

and exchange access fees 159 are likely to 

further impact the distribution of 

trading across on- and off-exchange 

venues, as well as the market shares of 

individual exchanges and SRO 

groups.160

The Commission does not agree that 

a potential future change in the 

distribution of trading in the equities 

markets, including from the 

Commission’s recently adopted 

amendments to Regulation NMS,161

would merit changing the volume 

threshold for a second vote on the 

Proposed CT Plan’s Operating 

Committee. And if rules adopted by the 

Commission were to significantly 

change the distribution of on- versus offexchange trading, then the Commission 

could consider whether the threshold 

should be revisited, whether by 

proposed plan amendment or 

Commission rulemaking. For example, 

if the commenter were correct that 

Commission rulemaking would move 

significant trading volume off exchange, 

then lowering the threshold might be 

appropriate. However, the only recent 

rule amendments with expected 

distributional effects on order flow are 

the recently adopted Regulation NMS 

Amendments.162 However, far from 

sending order flow off exchange, the net 

effect of the rules is expected to be 

additional order flow on the exchanges, 

potentially increasing the overall market 

share of the exchanges.163 Directionally 

this effect would be opposite to the 

commenter’s position and does not 

support its rational for lowering the 

threshold. 

Changes in the distribution of trading 

may occur for many reasons in the 

future.164 And that one SRO group has 

experienced a decline in market share 

crossing the 15-percent threshold does 

not undermine the rationale in initially 

setting that threshold. Indeed, the 

Commission considered such a 

possibility at the time the 15-percent 

threshold was set,165 and this 

eventuality is consistent with the 

Commission’s purpose in selecting the 

15-percent threshold, which was to 

rebalance voting power to address the 

disproportionate influence of affiliated 

exchange groups.166

(D) Alternative Proposed Voting 

Framework 

One commenter suggests,167 and 

another commenter supports,168

modifying the Proposed CT Plan to 

provide for a three-tiered voting 

framework in which SRO groups and 

non-affiliated SROs would receive 

either one, two, or three votes based on 

their consolidated equity market share. 

Pursuant to the commenter’s suggestion, 

all SRO groups or unaffiliated SROs 

would receive at least one vote; SRO 

groups or unaffiliated SROs with 

between 5 and 15-percent consolidated 

equity market share would receive two 

votes; and those with more than 15- 

percent consolidated equity market 

share would receive three votes.169 This 

commenter suggests that the Proposed 

CT Plan require a two-thirds majority 

vote for Plan action and that the 

calculation of consolidated equity 

market share in the Proposed CT 

Plan 170 be modified by removing 50 

percent of the transaction volume 

reported by the Transaction Reporting 

Facilities (‘‘TRFs’’) 171 because, 

according to the commenter, the TRFs 

contribute ‘‘only trades, while 

exchanges contribute both trades and 

quotes, and any calculation of 

consolidated equity market share should 


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172Cboe Letter I, supra note 109, at 3. 

173See Nasdaq Letter, supra note 109, at 5. 

174See NYSE Letter, supra note 109, at 6. 

175See supra notes 153–156 and accompanying 

text; Governance Order, supra note 11, 85 FR at 

28714. 

176 Governance Order, supra note 11, 85 FR at 

28714. 

177 Id. 

178See supra note 173 and accompanying text. 179See Governance Order, supra note 11, 85 FR 

at 28712 (‘‘[T]he term ‘consolidated equity market 

share’ means the average daily dollar equity trading 

volume of an exchange group or unaffiliated SRO 

as a percentage of the average daily dollar equity 

trading volume of all of the SROs, as reported by 

the Equity Data Plans or the New Consolidated Data 

Plan.’’ (emphasis added; citation omitted)); 

Amended Governance Order, supra note 23, 88 FR 

at 61639 (providing that the threshold for a second 

vote on the Operating Committee is ‘‘consolidated 

equity market share of more than 15 percent during 

four of the previous six months preceding a vote of 

the operating committee’’). 

180MEMX–IEX–MIAX Pearl-LTSE Letter, supra 

note 109, at 2–4. 

181 Id. at 3. 

182 Id. at 5. 

183Cboe Letter III, supra note 109, at 2. 

184See id. at 3. See also supra Section 

II.B.5(c)(i)(D) (discussing the commenter’s 

suggested alternative voting framework). 

185See supra note 20 and accompanying text. 

186See Cboe Letter III, supra note 109, at 3. 

187 Id. at 3. 

188 Id. at 3–4. 

189See Amended Governance Order, supra note 

23, 88 FR at 61639. 

190See Nasdaq v. SEC, supra note 20; see also 

Cboe Letter I, supra note 109; Cboe Letter II supra 

note 109; Cboe Letter III, supra note 109; Nasdaq 

Letter, supra note 109, NYSE Letter, supra note 109. 

191See supra note 190 and accompanying text. 

192Nasdaq v. SEC, supra note 20, 38 F.4th at 

1140. 

193Nasdaq v. SEC, supra note 20, Reply Brief for 

Petitioners, 2022 WL 225906 at *24. 

recognize this distinction.’’ 172 Another 

commenter states that including the 

TRF volume is an error, and while it 

would remove the TRF volume from the 

calculation of consolidated equity 

market share altogether, it supports the 

other commenter’s suggestion of 

removing 50 percent of transaction 

volume on the TRFs as a reasonable 

compromise.173

Another commenter states that the 

Commission should consider more than 

just trading market share when 

evaluating the significance of the SRO 

or SRO group in the trading ecosystem 

because, according to the commenter, it 

would not be reasonable to conclude 

that an exchange group that generates a 

substantial portion of equity market data 

and commands more than 10 percent of 

the trading market share is no longer 

significant enough to warrant a second 

vote.174

As discussed above and in the 

Governance Order,175 one reason that 

the Commission selected the 15-percent 

threshold for a second vote was to avoid 

creating the expectation that SRO 

groups should receive a third vote at a 

higher market share (e.g., 20 percent), 

which would perpetuate the ability of 

two exchange groups to command a 

majority of votes, which would 

perpetuate the status quo.176 The 

Proposed CT Plan’s vote allocation 

should not be designed to perpetuate 

the concentration of voting power 

among SRO groups or provide 

incentives for further exchange-group 

consolidation. Therefore, an individual 

SRO group should not receive a third 

vote on the Proposed CT Plan’s 

Operating Committee, regardless of 

trading volume. 

The Commission disagrees with 

commenters suggesting that the 

calculation of ‘‘consolidated equity 

market share’’ should be modified to 

remove some or all TRF volume from 

that calculation, because, as the 

Commission stated in the Governance 

Order, the threshold for a second vote 

on the Operating Committee is designed 

to reflect ‘‘the importance to the 

national market system of those 

exchanges that, in their roles as SROs, 

therefore oversee trading activity that 

generates a significant amount of equity 

market data,’’ 177 and removing from the 

calculation some or all of the trading 

volume that occurs off exchange would 

serve to exaggerate the share of trading 

activity that occurs on any given 

exchange. Further, the Proposed CT 

Plan’s inclusion of TRF volume is not 

an ‘‘error,’’ as characterized by a 

commenter,178 as the vote allocation 

scheme and underlying calculation in 

the Proposed CT Plan are consistent 

with the requirements of both the 

Governance Order and the Amended 

Governance Order.179

(E) The Effect of the D.C. Circuit’s 

Ruling 

Some commenters state that while the 

D.C. Circuit held that the Commission 

could not allocate votes to non-SRO 

market participants, the Commission 

should not ‘‘relitigate’’ the allocation of 

votes to SRO groups because the court 

already found that the arguments 

opposing the voting allocation in the 

Proposed CT Plan were without 

merit.180 These commenters state that 

‘‘the court’s ruling is clear: the 

Commission is free to consider the 

policy objectives it identified in 

allocating votes, and the mandated 

allocation of votes among SROs was 

proper.’’ 181 Thus, these commenters 

state that the proposed allocation of 

votes, including the 15-percent 

threshold for a second vote, is 

consistent with the Exchange Act and 

request that the Commission approve 

the Proposed CT Plan without change to 

the proposed voting structure.182

In response, another commenter states 

that ‘‘the D.C. Circuit did not consider 

whether the 15% voting threshold was 

consistent either with the Exchange Act 

or the . . . APA . . . because that issue 

was never presented to the Court.’’ 183

This commenter states that the 

Commission is not precluded from 

considering this commenter’s 

alternative voting framework.184 The 

commenter further states that the D.C. 

Circuit ruled only on the three issues 

raised by the petitioning exchanges,185

and did not rule that any of the other 

mandates in the Governance Order were 

proper.186 Moreover, this commenter 

states, because the D.C. Circuit vacated 

the 2021 Approval Order in its entirety, 

this had the procedural effect of 

‘‘sending the SEC and the SROs back to 

the drawing board on how to structure 

voting under the Plan.’’ 187 Finally, this 

commenter states that the Commission 

‘‘did not limit the scope of the issues 

that could be raised by commenters,’’ 

and instead broadly sought comment on 

the Proposed CT Plan.188

The Commission agrees that the D.C. 

Circuit’s ruling does not preclude 

consideration of comments on any 

aspect of the Proposed CT Plan or the 

Amended Governance Order, including 

the voting framework for the Proposed 

CT Plan. The Commission disagrees, 

however, that the D.C. Circuit’s decision 

did not address or uphold the allocation 

of votes to SROs in the Governance 

Order. The precise allocation of votes to 

SROs in the Governance Order and the 

2021 Approval Order—which is 

identical to that required by the 

Amended Governance Order 189—was 

upheld by the court.190 In challenging 

the 2021 Approval Order, the SRO 

groups 191 contended that ‘‘the 

Commission’s use of SRO Groups 

departs from the Commission’s past 

practice of treating affiliated SROs as 

distinct legal entities in other regulatory 

settings and subjects affiliated SROs to 

less favorable treatment as compared to 

unaffiliated SROs.’’ 192 The petitioning 

SROs argued that the Commission’s 

‘‘bare assertion that its arbitrary 15% 

threshold for a second ‘SRO Group’ vote 

reflects the significance of those SROs’ 

contributions to the national market 

system is . . . insufficient because it 

fails to justify affording the same 

number of votes to SRO groups that 

exceed the 15-percent threshold no 

matter their market share or the number 

of SROs in the group.’’ 193 They argued 

that the Commission ‘‘arbitrarily 

selected a 15% threshold for acquiring 

a second vote solely to dilute the 


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194Nasdaq v. SEC, supra note 20, Opening Brief 

for Petitioners, 2022 WL 225907 at *16. 

195 Id., 2022 WL 225907 at *52–53. 

196 Id. 

197Commenters’ statements about other 

commenters’ underlying interests or motivations do 

not affect the Commission’s analysis. See, e.g., Cboe 

Letter III, supra note 109, at 6; MEMX–IEX–MIAX 

Pearl-LTSE Letter, supra note 109, at 4. 

198See Amended Governance Order, supra note 

23, at 61631–32. 

199See Article IV, Section 4.7 of the Proposed CT 

Plan (providing for, among other things, the 

formation, composition, and function of the 

Advisory Committee). 

200See Article IV, Section 4.3(c)(ii) of the 

Proposed CT Plan (providing that the decision to 

enter into Executive Session will be subject to a 

majority vote of the Operating Committee). 

201See Article IV, Section 4.3(c)(iii) of the 

Proposed CT Plan (providing that the decision to 

discuss a matter in a legal subcommittee pursuant 

to Section 4.8(d) of the Proposed CT Plan will 

require only a majority vote of the Operating 

Committee). 

202See Article IV, Section 4.3(c)(iv) of the 

Proposed CT Plan (providing that decisions 

concerning the operation of the Company as an LLC 

as specified in Section 10.3 and Section 11.2 of the 

Proposed CT Plan will require a majority vote of the 

Operating Committee). See also Article X, Section 

10.3 of the Proposed CT Plan (providing that any 

compromise or settlement of any tax audit or 

litigation affecting members, as well as any material 

proposed inaction or election to be taken by the 

Partnership Representative, require a majority vote 

of Members); and Article XI, Section 11.2 of the 

Proposed CT Plan (providing that the distribution 

of proceeds from the liquidation of the Company to 

Members is subject to a majority vote of the 

Members). 

203See OIP, supra note 6, 89 FR at 33413. 

204See MEMX Letter, supra note 109, at 12. 

205See id. 

206See id. 

207See id. 

208Letter from Kelvin To, Founder and President, 

Data Boiler Technologies, LLC, (Feb. 26, 2024) 

(‘‘Data Boiler Letter’’), at 2, 4. 

affiliated SROs’ voting power,’’ 194 and 

that there could be no ‘‘justifiable 

reason for treating an SRO group with 

14% market share differently from an 

otherwise identical SRO group with 

15% market share.’’ 195 The court, 

however, found the petitioners’ 

arguments about the allocation of votes 

to SROs and SRO groups to be ‘‘without 

merit.’’ 196 Further, the D.C. Circuit did 

not qualify in any way its judgment 

upholding the voting allocation scheme 

in the Governance Order. Thus, the 

court’s decision did not cast any doubt 

on the Commission’s reasoning in the 

Governance Order, and in fact left the 

allocation of votes to SROs unchanged. 

The Commission has considered the 

comments regarding the voting scheme, 

including alternatives suggested by 

commenters. However, as discussed 

above, the voting allocation in the 

Governance Order remains 

appropriate.197

(F) SRO Revisions to Section 4.3 

Section 4.3(a) of Article IV of the 

Proposed CT Plan differs from the 

corresponding provision of the 2021 CT 

Plan approved by the Commission in 

three respects. First, and consistent with 

the Amended Governance Order, 

proposed Section 4.3(a) omits 

provisions regarding the participation of 

non-SRO representatives as members of 

the Operating Committee and modifies 

the voting provisions to conform with 

modifications required by the Amended 

Governance Order.198 Second, as 

proposed, Section 4.3(a), specifies that 

the average daily dollar equity trading 

volume used in the calculation of 

consolidated equity market share for 

purposes of establishing the SRO voting 

allocation pursuant to that section shall 

be that as reported under the Proposed 

CT Plan, or under the CQ, CTA, and 

UTP Plans, rather than as solely as 

reported under the CT Plan. The textual 

addition to Section 4.3(a) is appropriate 

because the average daily dollar equity 

trading volume of the Equity Data Plans, 

as proposed, would inform the initial 

allocation of SRO votes pursuant to this 

section. Thereafter, and for all 

subsequent allocation of SRO votes, it is 

the Proposed CT Plan’s average daily 

dollar equity trading volume—and not 

that of the Equity Data Plans—that will 

be required to form the basis of that 

calculation. Finally, proposed Section 

4.3(a) differs from the corresponding 

provision of the 2021 CT Plan in that 

the provision adds ‘‘quoting on the 

FINRA Alternative Display Facility’’ to 

the non-exhaustive list of activities that 

shall not cause FINRA to be considered 

to operate a market center within the 

meaning of Section 4.3. This change to 

proposed Section 4.3(a) makes clear that 

quoting activity outside the Proposed 

CT Plan, such as that on the FINRA 

Alternative Display Facility, will not 

figure into calculation for allocating 

SRO votes pursuant to Section 4.3(a) of 

the Proposed CT Plan. 

For the reasons discussed above, the 

Commission is approving Article IV, 

Section 4.3(a) of the Proposed CT Plan 

as proposed. 

(ii) Operating Committee Actions and 

Voting 

Article IV, Section 4.3(b) of the 

Proposed CT Plan provides that (with 

the limited exceptions listed in Section 

4.3(c)) all actions of the Operating 

Committee will require the affirmative 

vote of not less than two-thirds of all 

votes on the Operating Committee, 

allocated in the manner provided for in 

Section 4.3(a). 

As proposed, Section 4.3(c) provides 

that, notwithstanding the provisions of 

Section 4.3(b) the following Operating 

Committee actions that would require a 

majority vote of the Operating 

Committee: (1) the selection of the 

Advisory Committee; 199 (2) the decision 

to enter into Executive Session; 200 (3) 

the decision to discuss a matter in a 

legal subcommittee pursuant to Section 

4.8(d) of the Proposed CT Plan; 201 and 

(4) decisions concerning the operation 

of the Company as an LLC.202

In the OIP, the Commission solicited 

comment on, among other things, 

whether there were additional actions of 

the Proposed CT Plan that should not be 

subject to the two-thirds voting 

requirement in Section 4.3(b) of the 

Proposed CT Plan.203 The Commission 

received several comments addressing 

the two-thirds voting requirement in 

Section 4.3(b) of the Proposed CT Plan. 

One commenter states that the Proposed 

CT Plan should be modified to provide 

that a simple—rather than two-thirds— 

majority vote would be required for 

most actions of the Operating 

Committee, including those relating to 

implementation of the Proposed CT 

Plan, such as selection of the 

independent administrator, or filing of 

required fee amendments.204 This 

potential modification, the commenter 

states, would streamline the Proposed 

CT Plan’s decision-making process and 

reduce the risk of the delay in 

implementing the Proposed CT Plan.205

This commenter states that the proposed 

two-thirds voting requirement is likely 

to be unworkable in practice, leading to 

gridlock, inaction, and delays in 

implementation.206 This commenter 

states that another option would be to 

require different voting thresholds 

depending on the subject matter under 

consideration, adding that the 

commenter would not be opposed to 

requiring a two-thirds supermajority for 

more significant Proposed CT Plan 

amendments that are subject to a 

unanimous vote under the Equity Data 

Plans.207

One commenter opposes the proposed 

two-thirds rather than simple majorityvote threshold, stating that it is, in 

conjunction with the allocation of 

voting by SRO group, ‘‘a compromise, 

rather than striking an appropriate 

balance in the divergence between 

private rights and social costs,’’ that will 

‘‘cause stagnation rather than encourage 

innovation,’’ and that the Operating 

Committee will ‘‘continue to be a 

bureaucracy with countless arguments 

among SROs and with the Advisory 

Committee, while market participants 

continue to suffer from ever higher 

market data and connectivity costs.’’ 208


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209To effect this modification, the Commission is 

inserting, under Section 4.3(c)(i), the words ‘‘the 

election of the Chair and other Officers of the Plan;’’ 

and renumbering proposed Section 4.3(c)(i)–(iv) as 

Section 4.3(c)(ii–v) accordingly. See Article IV, 

Section 4.3 of the Proposed CT Plan (as approved). 

210With respect to the Equity Data Plans, unless 

otherwise specified, a majority vote of the 

Participants entitled to vote is required to constitute 

the action of the Operating Committees, including 

the election of a Chair. See Exhibit A, Article V, 

Section 2, and Article IV(a) of the CTA Plan; Article 

IV.C–D of the UTP Plan. 

211Amended Governance Order, supra note 23, 

88 FR at 61632. 

212See id. at 61639–41. 

213See id. 

214See 2021 Approval Order, supra note 19, 86 

FR at 44166–68, 44213–14. 

215See Amended Governance Order, supra note 

23, 88 FR at 61639–41. 

216See id. at 61632 (stating that ‘‘because nonSRO representatives will no longer be required to 

be included as voting members of the operating 

committee of the Revised New Consolidated Data 

Plan, the Commission is modifying the Governance 

Order’s requirements to provide that the Revised 

New Consolidated Data Plan must provide for 

participation by non-SROs in the operation of the 

plan as members of an advisory committee’’). 

217See id. 

218See Article I, Section 1.1(84) of the Proposed 

CT Plan (as approved) (defining the term ‘‘Voting 

Representative’’). 

219See supra note 209 and accompanying text. 

220See 2021 Approval Order, supra note 19, 86 

FR at 44166–68. 

The Commission agrees that certain 

additional actions by the Operating 

Committee should be subject to a 

majority vote pursuant to Section 4.3(c), 

beyond those proposed, in order to 

facilitate efficient operation of the 

Operating Committee and the Proposed 

CT Plan. Specifically, the Commission 

is modifying Section 4.3(c) to permit the 

election of the Chair and other Officers 

of the Plan by majority vote of the 

Operating Committee, rather than by the 

proposed two-thirds majority.209 This 

modification is appropriate because 

requiring a two-thirds majority vote of 

the Operating Committee, as proposed, 

could provide opportunities for a 

minority of the votes allocated on the 

Operating Committee to obstruct a 

purely administrative action necessary 

for the day-to-day operations of the 

Proposed CT Plan.210 Thus, modifying 

this section to require a majority vote of 

the Operating Committee to elect the 

Chair and Officers of the Proposed CT 

Plan is appropriate because it will 

reduce the likelihood of unnecessary 

delays in the administration and 

implementation of the Proposed CT 

Plan. 

Further expanding the list of actions 

that can be taken by a majority vote of 

the Operating Committee is not 

warranted. While commenters raise 

concerns about potential gridlock, 

stagnation, or inefficiency, as the 

Commission stated in the Amended 

Governance Order: 

the requirement for a two-thirds majority 

strikes an appropriate balance between 

ensuring that plan action has broad support 

among members of the operating committee 

while also preventing a single SRO group or 

unaffiliated SRO from vetoing plan action. 

Moreover, requiring a two-thirds, rather than 

a simple, majority of SRO votes, in 

conjunction with allocating votes by 

exchange group, prevents a small number of 

SRO groups from dictating plan action 

without further support from other SRO 

members.211

Section 4.3(b) differs from the 

corresponding provision in 2021 CT 

Plan approved by the Commission in 

that it conforms to the requirements of 

the Amended Governance Order by: (1) 

removing provisions regarding the 

participation of non-SRO 

representatives as members of the 

Operating Committee, and (2) modifying 

voting provisions to provide that all 

actions by the Operating Committee 

shall require a two-thirds majority vote 

of the votes allocated to the Operating 

Committee, except for the actions 

specified in Section 4.3(c).212 Section 

4.3(c) differs from the corresponding 

provision in the 2021 CT Plan in that it 

conforms to requirements of the 

Amended Governance Order by 

removing provisions relating to the 

participation of non-SROs 

representatives as members of the 

Operating Committee and by requiring a 

majority vote of the Operating 

Committee for the selection of members 

of the Advisory Committee pursuant to 

Section 4.7. Separately, Section 4.3(c) 

adds to the actions requiring only a 

majority vote of the Operating 

Committee: (1) the election of the Chair 

and Officers of the Plan, as modified by 

the Commission, as well as (2) the 

decision to discuss a matter in a legal 

subcommittee pursuant to Section 4.8(d) 

of the Proposed CT Plan,213 which, as 

discussed above, is consistent with the 

Amended Governance Order. 

For the reasons discussed above, the 

Commission is approving Sections 

4.3(b) as proposed and Section 4.3(c) as 

renumbered and modified. 

(d) Meetings of the Operating 

Committee 

Article IV, Section 4.4 of the Proposed 

CT Plan addresses meetings of the 

Operating Committee. Sections 4.4(a) 

through 4.4(f) contain general 

provisions regarding Operating 

Committee meetings, and Section 4.4(g) 

contains provisions specific to meetings 

in Executive Session. 

Sections 4.4(a) through 4.4(f) are 

identical to the corresponding 

provisions of the 2021 CT Plan 

approved by the Commission,214 with 

the following exceptions, all of which 

are consistent with the requirements of 

the Amended Governance Order.215

First, as proposed, Section 4.4(a) adds a 

reference to ‘‘Advisory Committee 

members’’ 216 and corrects a crossreference to reflect the numbering of 

paragraphs in the Proposed CT Plan. 

Second, proposed Section 4.4(c) deletes 

language regarding quorum 

requirements of Voting Representatives, 

consistent with the requirements of the 

Amended Governance Order.217 And 

third, for the same reason as explained 

above—that the replaced term is the 

defined term—proposed Section 4.4(e) 

replaces reference to ‘‘SRO Voting 

Representatives’’ with reference to 

‘‘Voting Representatives.’’ 218 The 

Commission is, however, modifying the 

text of Section 4.4(e)(ii) to replace the 

reference to ‘‘Section 4.3’’ in the first 

sentence of paragraph (ii) of Section 

4.4(e) with a reference to ‘‘Section 

4.3(c),’’ to conform this provision to the 

Commission’s modifications to Section 

4.3(c)(i) regarding the election of the 

Chair and other officers of the Proposed 

CT Plan.219 Separately, the Commission 

is modifying Section 4.4(e) to replace 

the term ‘‘Operative Date’’ with the term 

‘‘Effective Date’’ as that term is defined 

in the Recitals. This change is 

appropriate because the Effective Date 

of the Agreement is the date it is 

approved by the Commission, whereas 

the Operative Date, as defined, does not 

occur until the date that Members 

conduct, through the Company, the 

Processor and Administrator functions 

related to the public dissemination of 

real-time consolidated equity market 

data and the Equity Data Plans cease 

their operations. As proposed, Section 

4.4(e) states that the Chair of the 

Operating Committee shall be elected 

beginning with the first quarterly 

meeting of the Operating Committee 

following the Operative Date. The 

modification will, consistent with the 

role and functions of the Chair as 

outlined in Section 4.4(e), facilitate the 

implementation of the Proposed CT 

Plan, as the Chair will be able to be 

elected following the Effective Date and 

will be able to enter into contracts on 

behalf of the Company. 

The Commission received no 

comments on Section 4.4(a)–(d) and (f) 

of the Proposed CT Plan, and for the 

foregoing reasons, as well as for the 

reasons stated with respect to the 

corresponding provisions in the 2021 

Approval Order,220 the Commission is 

approving Section 4.4(a)–(d), and (f) of 


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221See id. at 44166–72. 

222See Article IV, Section 4.4(g) of the Proposed 

CT Plan. 

223See id. 

224See Article IV, Section 4.4(g) of the Proposed 

CT Plan. 

225See Article IV, Section 4.4(g)(i)(A)–(E) of the 

Proposed CT Plan. 

226See Article IV, Section 4.4(g)(ii) of the 

Proposed CT Plan. 

227See id. 

228See Article IV, Section 4.4(g)(iii) of the 

Proposed CT Plan. 

229See id. 

230See ICI Letter, supra note 109, at 3, n.11. 

231 Id. See also Section 4.4(g)(i) of the 2021 CT 

Plan; 2021 Approval Order, supra note 19, 86 FR 

at 44214. 

232See 2021 Approval Order, supra note 19, 86 

FR at 44170 (stating that ‘‘the topics that may be 

discussed in Executive Session should be 

specifically enumerated in the CT Plan to provide 

transparent and clear boundaries’’). 

233See id. (modifying Article IV, Section 4.4(g)(i) 

of the 2021 CT Plan to require that the items for 

discussion in an Executive Session ‘‘shall be’’ 

limited to the topics enumerated in subsections 

4.4(g)(i)(A)–(E) of that plan). 

234To effect this change, the Commission is 

modifying proposed Section 4.4(g)(i) of the 

Proposed CT Plan to delete the word ‘‘should’’ and 

replace it with ‘‘shall.’’ The Commission is also 

making a conforming change to proposed Section 

4.4(g)(i) of the Proposed CT Plan to remove the 

word ‘‘as’’ that appears after ‘‘topics’’ in that 

subsection. 

235 2021 Approval Order, supra note 19, 86 FR at 

44171. 

236 ICI Letter, supra note 109, at 3. 

237See 2021 Approval Order, supra note 19, 86 

FR at 44170–71. 

238See id. 

239See Amended Governance Order, supra note 

23, 88 FR at 61639–41. 

240See 2021 Approval Order, supra note 19, 86 

FR at 44168–71. 

the Proposed CT Plan as proposed, and 

Section 4.4(e) as modified.221

Article IV, Section 4.4(g) of the 

Proposed CT Plan provides that, 

notwithstanding any other provision of 

the Proposed CT Plan, the Voting 

Representatives, Member Observers, 

SEC staff, and other persons as deemed 

appropriate by a majority vote of the 

Voting Representatives may meet in an 

Executive Session of the Operating 

Committee to discuss an item of 

business for which it is appropriate to 

exclude the Advisory Committee. A 

request to meet in Executive Session 

must be included on the written agenda 

for an Operating Committee meeting, 

along with a clearly stated rationale as 

to why that item would be appropriate 

for discussion in Executive Session.222

A majority vote of the Voting 

Representatives would be required to 

create an Executive Session.223 The 

Voting Representatives would be 

permitted to discuss only the topic for 

which the Executive Session was 

created and would disband upon fully 

discussing the topic.224

Article IV, Section 4.4(g)(i) of the 

Proposed CT Plan also provides that 

topics discussed in Executive Session 

‘‘should’’ be limited to the following: (1) 

any topic that requires discussion of 

Highly Confidential Information; (2) 

Vendor or Subscriber Audit Findings; 

(3) litigation matters; (4) responses to 

regulators with respect to inquiries, 

examinations, or findings; and (5) other 

discrete matters approved by the 

Operating Committee.225 Section 

4.4(g)(ii) states that the mere fact that a 

topic is controversial or a matter of 

dispute does not, by itself, make a topic 

appropriate for Executive Session.226

This section further provides that the 

minutes for an Executive Session must 

include the reason for including any 

item in an Executive Session.227 Section 

4.4(g)(iii) provides that requests to 

discuss a topic in Executive Session 

must be included on the written agenda 

for the Operating Committee meeting, 

along with the clearly stated rationale 

for each topic as to why such discussion 

is appropriate for Executive Session.228

This section further provides that the 

rationale may be that the topic to be 

discussed falls within the list of topics 

that may be discussed pursuant to 

paragraph 4.4(g)(i).229

The Commission received one 

comment on Section 4.4(g). Specifically, 

one commenter suggests that the 

Proposed CT Plan should be modified 

to: (1) use non-discretionary, rather than 

permissive language, with respect to the 

scope of potential items that could be 

discussed in Executive Session and (2) 

preclude discussions regarding contract 

negotiations with the plan processors or 

the plan administrator in Executive 

Session.230 This commenter states that 

‘‘similar policy rationales for narrowly 

tailoring the use of Executive Sessions 

or other exclusive meeting forums apply 

where non-SROs are Advisory 

Committee members’’ rather than voting 

non-SRO members, as provided in the 

2021 CT Plan.231

The Commission agrees with the 

commenter that the Proposed CT Plan 

should provide clear boundaries with 

respect to the scope of potential topics 

permitted to be discussed in an 

Executive Session.232 Thus, for the same 

reasons discussed in the 2021 Approval 

Order,233 the Commission is modifying 

Article IV, Section 4.4(g)(i) of the 

Proposed CT Plan to require that the 

items for discussion in an Executive 

Session ‘‘shall be’’ limited to the topics 

enumerated in subsections 4.4(g)(i)(A)– 

(E) of the Proposed CT Plan.234

As the Commission stated in the 2021 

Approval Order, ‘‘not every topic that 

may be appropriate for Executive 

Session can be foreseen, and . . . some 

provision must therefore be made in the 

CT Plan for unanticipated topics 

suitable for Executive Session.’’ 235 The 

language in Section 4.4(g)(i)(E) that 

permits the SROs to meet in Executive 

Session to discuss ‘‘[o]ther discrete 

matters approved by the Operating 

Committee’’ provides the necessary 

flexibility for unanticipated topics to be 

addressed without altering the list of 

permissible topics for Executive Session 

into a non-exclusive list of suggestions. 

The Commission does not agree with 

the commenter’s suggestion that the 

Proposed CT Plan provide that 

‘‘discussions regarding contract 

negotiations with the Processors or 

Administrator’’ do not qualify for 

discussion in Executive Session.236

While the Commission specifically 

added this language to the plan it 

approved in the 2021 Approval 

Order,237 that was in the context of an 

Operating Committee that included 

Non-SRO Voting Representatives as full 

members, and the Commission did not 

believe that it was appropriate for any 

members of the Operating Committee to 

be excluded from such discussions by 

holding the discussions in an SRO-only 

Executive Session.238 In the Proposed 

CT Plan, however, the Operating 

Committee will not include any nonSRO representatives,239 and it is 

therefore appropriate, and consistent 

with the Amended Governance Order, 

for the Operating Committee to meet in 

Executive Session to discuss ‘‘[a]ny 

topic that requires discussion of Highly 

Confidential Information,’’ which, by 

definition, includes discussion 

concerning contract negotiations with 

the Processors or the Administrator. 

Section 4.4(g) of the Proposed CT Plan 

differs from the corresponding provision 

of the 2021 CT Plan approved by the 

Commission 240 in several respects. 

First, this section conforms to 

requirements of the Amended 

Governance Order by removing 

provisions governing the participation 

of non-SROs as members of the 

Operating Committee, and, relatedly, by 

using the terms ‘‘Voting 

Representatives’’ rather than ‘‘SRO 

Voting Representatives,’’ and ‘‘Advisory 

Committee’’ rather than ‘‘Non-SRO 

Voting Representatives.’’ Separately, 

Section 4.4(g)(i) differs in that it (1) 

removes, as a topic not permitted for 

discussion within an Executive Session, 

discussions regarding contract 

negotiations with the Processor or the 

Administrator for the reasons discussed, 

and (2) removes a provision addressing 

voting requirements for actions 

requiring a vote in Executive Session, 


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241See id. at 44170. 

242See id. at 44168–71. 

243See id. 

244See id. 

245See Article IV, Section 4.6(a). This Section 

further provides that neither the Company nor any 

Member shall have any rights by virtue of this 

Agreement in any business ventures of any such 

Person. See id. 

246See Article IV, Section 4.6(b) of the Proposed 

CT Plan. 

247See id. 

248See id. 

249See 2021 Approval Order, supra note 19, 86 

FR at 44173–74. 

250See id. 

251See Article IV, Section 4.7(a) of the Proposed 

CT Plan. 

252See Article IV, Section 4.7(b)(i) of the 

Proposed CT Plan. 

253See Article IV, Section 4.7(b)(ii) of the 

Proposed CT Plan. 

254See Article IV, Section 4.7(c) of the Proposed 

CT Plan. 

255See id. 

256See Article IV, Section 4.7(d) of the Proposed 

CT Plan. 

which reduces redundancy because 

such requirements are set forth in 

Section 4.3(a). The modification made 

by the Commission to Section 4.4(g)(i) 

(to replace ‘‘should’’ with ‘‘shall’’) is 

appropriate because it conforms this 

provision with the corresponding 

provision of the 2021 CT Plan approved 

by the Commission.241 For the foregoing 

reasons, as well as those stated in the 

2021 Approval Order with respect to the 

corresponding provisions of the 2021 

CT Plan, (apart from those pertaining to 

the participation of non-SROs 

representatives as members of the 

operating committee of the 2021 CT 

Plan, which is not included in the 

Proposed CT Plan),242 the Commission 

is approving Section 4.4(g) as modified. 

(e) Certain Transactions 

Article IV, Section 4.5 of the Proposed 

CT Plan states that the Company is not 

prohibited from employing or dealing 

with persons in which an SRO or any 

of its affiliates has a connection or a 

direct or indirect interest. Specifically, 

the section provides that the fact that a 

Member or any of its Affiliates is 

directly or indirectly interested in or 

connected with any person employed by 

the Company to render or perform a 

service, or from which or to whom the 

Company may buy or sell any property, 

shall not prohibit the Company from 

employing or dealing with such person. 

Section 4.5 is identical to the 

corresponding provision of the 2021 CT 

Plan approved by the Commission,243

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comment on 

Section 4.5 of the Proposed CT Plan, 

and for the same reasons stated in the 

2021 Approval Order,244 the 

Commission is approving Section 4.5 of 

the Proposed CT Plan as proposed. 

(f) Company Opportunities 

Article IV, Section 4.6(a) of the 

Proposed CT Plan provides that each 

Member, its Affiliates, and each of its 

respective equity holders, controlling 

persons, and employees may have 

business interests and engage in 

business activities in addition to those 

relating to the Company.245 Section 

4.6(b) provides that Members are 

permitted to have, and may presently or 

in the future have, investments or other 

business relationships with persons 

engaged in the business of the Company 

other than through the Company, and 

that Members have and may develop 

strategic relationships with businesses 

that are and may be competitive or 

complementary with the Company.246

Section 4.6(b) further provides that none 

of the SROs shall be obligated to 

recommend or take any action that 

prefers the interest of the Company or 

any other Member over its own 

interests, prohibited from pursing and 

engaging in other activities, nor 

obligated to inform or present to the 

Company any opportunity, relationship, 

or investment.247 Finally, this section 

states that Members will not acquire or 

be entitled to any interest or 

participation in any other business as a 

result of the participation therein of any 

of the other Members, and that the 

involvement of another Member in any 

other business does not constitute a 

conflict of interest by such person with 

respect to the Company. This provision 

defines investments or other business 

relationships with persons engaged in 

the business of the Company other than 

through the Proposed CT Plan as ‘‘Other 

Business.’’ 248 Separately, Exhibit B 

(‘‘Disclosures’’) of the Proposed CT Plan 

provides a list of questions and 

instructions tailored to elicit responses 

that disclose potential conflicts of 

interest. 

Section 4.6 is identical to the 

corresponding provision of the 2021 CT 

Plan approved by the Commission,249

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comment on 

Section 4.6 of the Proposed CT Plan, 

and, for the same reasons stated in the 

2021 Approval Order,250 the 

Commission is approving Section 4.6 of 

the Proposed CT Plan as proposed. 

(g) Advisory Committee 

Article IV, Section 4.7 of the Proposed 

CT Plan governs the formation, 

composition, and function of the 

Advisory Committee to the Proposed CT 

Plan. Section 4.7(a) provides that, 

notwithstanding any other provision of 

the Proposed CT Plan, an Advisory 

Committee to the Proposed CT Plan 

shall be formed and shall function in 

accordance with the provisions set forth 

in that section.251 Section 4.7(b) governs 

the composition of the Advisory 

Committee. Specifically, this section 

provides that the members of the 

Advisory Committee will be selected by 

the Operating Committee for two-year 

terms as follows: (1) by affirmative vote 

of a majority of the Members entitled to 

vote, the Operating Committee will 

select at least one representative from 

each of the following categories to be 

members of the Advisory Committee: 

(A) an institutional investor; (B) a 

broker-dealer with a predominantly 

retail investor customer base; (C) a 

broker-dealer with a predominantly 

institutional investor customer base; (D) 

a securities market data vendor that is 

not affiliated or associated with a 

Member, broker-dealer, or investment 

adviser with third-party clients; (E) an 

issuer of NMS stock that is not affiliated 

or associated with a Member, brokerdealer, or investment adviser with thirdparty clients; and (F) a Retail 

Representative.252 Section 4.7(b)(i) 

further addresses Advisory Committee 

selections and provides that the 

Operating Committee will not be 

permitted to select any person 

employed by or affiliated with any 

Member or its affiliates or facilities.253

Section 4.7(b)(ii) governs Member 

selections and provides that each 

Member will have the right to select one 

member of the Advisory Committee, 

provided, however, that a Member will 

not be permitted to select any person 

employed by or affiliated with any 

Member or its affiliates or facilities. 

Section 4.7(c), as proposed, sets forth 

the function of the Advisory Committee. 

Specifically, Section 4.7(c) provides that 

members of the Advisory Committee 

will have the right to submit their views 

to the Operating Committee on Plan 

matters, prior to a decision by the 

Operating Committee on such 

matters.254 This section further provides 

that such matters will include, but not 

be limited to, any new or modified 

product, fee, contract, or pilot program 

that is offered or used pursuant to the 

Plan.255 Finally, Section 4.7(d), as 

proposed, clarifies that members of the 

Advisory Committee are not Members of 

the Company.256

One commenter supports provisions 

addressing the composition and 

attendance at Operating Committee and 

subcommittee meetings by members of 


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257See ICI Letter, supra note 109, at 2. 

258See Amended Governance Order, supra note 

23, 88 FR at 61632, 61639. 

259See Article IV Section 4.3(c)(ii) of the 

Proposed CT Plan (as approved). 

260See Amended Governance Order, supra note 

23, 88 FR at 61639 (‘‘The Revised New 

Consolidated Data Plan shall provide for a nonvoting Advisory Committee to be selected by 

majority vote of the operating committee.’’). 

261The Commission is further modifying Section 

4.7(b)(i) to (1) remove, from its first sentence, the 

comma and spacing after ‘‘vote,’’ as well as the ‘‘t’’ 

that immediately follows, and (2) substitute, for the 

stricken ‘‘t,’’ a capital ‘‘T.’’ See Article IV, Section 

4.3(c)(ii) of the Proposed CT Plan (as approved). 

262Accordingly, the Commission is renumbering 

proposed Sections 4.7(c) and (d) as Section 4.7(d) 

and (e), respectively. 

263Amended Governance Order, supra note 23, 

88 FR at 61639. 

264See id. 

265See id. 

266See Article IV, Section 4.8(a) of the Proposed 

CT Plan. 

267See id. 

268See id. 

269See ICI Letter, supra note 109, at 2. 

270See Amended Governance Order, supra note 

23, 88 FR at 61641. 

271See 2021 Approval Order, supra note 19, 86 

FR at 44214. 

272See Amended Governance Order, supra note 

23, 88 FR at 61631, 61641. 

the Advisory Committee, stating that 

this feature of the Proposed CT Plan is 

essential to providing non-SRO market 

participants with the transparency 

needed to continue to provide their 

views to the Operating Committee and 

participate in plan governance.257

As required by the Amended 

Governance Order, the Proposed CT 

Plan provides for participation by nonSROs in the operation of the Proposed 

CT Plan as members of an advisory 

committee.258 Further, the provisions of 

Section 4.4(a) (permitting attendance by 

Advisory Committee members at 

meetings of the Operating Committee, 

except for Executive Sessions), Section 

4.4(b) (requiring the provision of 

subcommittee minutes to members of 

the Advisory Committee), and Section 

4.8(c) (permitting attendance by 

Advisory Committee members at 

subcommittee meetings, other than a 

legal subcommittee) provide 

transparency in the operations of the 

Proposed CT Plan, as supported by the 

commenter. 

The Commission is, however, 

modifying proposed Section 4.7 to 

further conform provisions regarding 

the composition and selection of 

members of the Advisory Committee 

with the requirements of the Amended 

Governance Order. First, the 

Commission is modifying Section 4.7(b) 

to require that selection of members of 

the Advisory Committee shall be by 

majority vote of the Operating 

Committee,259 as required by the 

Amended Governance Order,260 rather 

than ‘‘[b]y affirmative vote of a majority 

of the Members entitled to vote,’’ as 

proposed. The modification is 

appropriate to conform the Proposed CT 

Plan to the requirements of the 

Amended Governance Order, which 

requires that votes on the Operating 

Committee shall be allocated by SRO 

Group or Non-Affiliated SRO rather 

than by individual SROs. To effect this 

modification the Commission, is 

deleting, from paragraph (b)(i) of 

proposed Section 4.7 the following text: 

‘‘Members of the Advisory Committee 

shall be selected for two-year terms as 

follows: (i) Operating Committee 

Selections. By affirmative vote of a 

majority of the Members entitled to 

vote.’’ 261 The Commission is further 

modifying Section 4.7(b), as 

renumbered, to insert, in its first 

sentence, the words ‘‘by majority vote,’’ 

and is moving the phrase ‘‘Members of 

the Advisory Committee shall be 

selected for two-year terms’’ to a new 

Section 4.7(c).262

Further, the Commission is modifying 

the Proposed CT Plan by deleting 

Section 4.7(b)(ii) in its entirety. Section 

4.7(b)(ii) would have provided each 

SRO with the ability to appoint a person 

to serve on the Advisory Committee. 

That provision, however, is inconsistent 

with the requirement of the Amended 

Governance Order: 

The Revised New Consolidated Data Plan 

shall provide for a non-voting Advisory 

Committee to be selected by majority vote of 

the operating committee. The Advisory 

Committee shall consist of individuals 

representing each of the following categories: 

an institutional investor, a broker-dealer with 

a predominantly retail investor customer 

base, a broker-dealer with a predominantly 

institutional investor customer base, a 

securities market data vendor, an issuer of 

NMS stock, and a person who represents the 

interests of retail investors (‘‘retail 

representative’’), provided that the 

representatives of the securities market data 

vendor and the issuer are not permitted to be 

affiliated or associated with an SRO, a 

broker-dealer, or an investment adviser with 

third-party clients.263

The Amended Governance Order thus 

requires that members of the Advisory 

Committee be selected by a majority 

vote of the Operating Committee and 

lists the categories of persons who shall 

constitute the Advisory Committee to 

allow for participation by non-SROs in 

the operation of the new NMS plan.264

The modification to delete Section 

4.7(b)(ii) of the Proposed CT Plan is 

appropriate because, as discussed 

above, that provision is inconsistent 

with requirements of the Amended 

Governance Order.265 Permitting each of 

the SROs that are ‘‘Members’’ of the 

Proposed CT Plan to appoint its own 

member to the Advisory Committee 

would create an Advisory Committee 

numerically dominated by the chosen 

representatives of individual SROs, 

rather than one reflecting the broader 

industry perspectives provided by the 

six required categories specified by the 

Amended Governance Order. 

For the foregoing reasons, the 

Commission is approving Section 4.7 of 

the Proposed CT Plan as modified. 

(h) Subcommittees 

Section 4.8 of Article IV of the 

Proposed CT Plan governs the Operating 

Committee’s discretion to create and 

disband subcommittees, as well as the 

selection of subcommittee chairs, 

permissible attendees at subcommittee 

meetings, minutes of subcommittee 

meetings, and special provisions 

applicable to meetings of a legal 

subcommittee. 

(i) Selection of Subcommittee Chairs 

Paragraph (a) of Section 4.8 permits 

the Operating Committee to create and 

disband subcommittees and to 

determine the duties, responsibilities, 

powers, and composition of any of its 

subcommittees.266 This paragraph also 

requires that subcommittee chairs be 

selected by the Operating Committee 

from Voting Representatives.267

Furthermore, this paragraph provides 

that the Operating Committee may not 

delegate to a subcommittee the 

administrative functions to be 

performed by the Administrator of the 

Proposed CT Plan.268

One commenter supports the 

provision of the Proposed CT Plan 

precluding subcommittees from carrying 

out administrative functions of the 

independent administrator.269

Article IV, Section 4.8(a) is consistent 

with requirements of the Amended 

Governance Order 270 and differs from 

the corresponding provision of the 2021 

CT Plan approved by the 

Commission 271 in that, consistent with 

requirements of the Amended 

Governance Order, it (1) removes all 

references to ‘‘SRO Voting 

Representatives,’’ (2) replaces the term 

‘‘SRO Voting Representatives’’ with 

Voting Representatives, and (3) 

prohibits the Operating Committee from 

delegating to a subcommittee the 

administrative functions to be 

performed by the Administrator.272 For 

the foregoing reasons, as well as those 

in the 2021 Approval Order (apart from 

those pertaining to the participation of 


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273See 2021 Approval Order, supra note 18, 86 

FR 44174. 

274See Article IV, Section 4.8(b) of the Proposed 

CT Plan. 

275See ICI Letter, supra note 109, at 2. 

276See Amended Governance Order, supra note 

23, 88 FR at 61638, 61641. 

277See Article IV, Section 4.8(c) of the Proposed 

CT Plan. 

278See Amended Governance Order, supra note 

23, 88 FR at 61631, 61638–39. 

279See 2021 Approval Order, supra note 19, 86 

FR at 44175, 44214. 

280See Amended Governance Order, supra note 

23, 88 FR at 61631–32. 

281See 2021 Approval Order, supra note 19, 86 

FR at 44175, 44214. 

282See Article IV, Section 4.8(d) of the Proposed 

CT Plan. 

283See id. 

284See id. 

285See ICI Letter, supra note 109, at 2, n.6. 

286See id. at 3, 4. 

287See id. at 3, n.11. 

288See Section 4.8(d) of the Proposed CT Plan. 

289See Section 4.10 of the Proposed CT Plan 

(Commission Access to Information and Records). 

290See Amended Governance Order, supra note 

23, 88 FR at 61638–39. 

291See id. at 61631. 

292See id. 

293See id. at 61641. 

non-SRO representatives as members of 

the operating committee of the 2021 CT 

Plan, which is not included in the 

Proposed CT Plan),273 the Commission 

is approving Section 4.8(a) as proposed. 

(ii) Transparency of Subcommittee 

Meetings 

Paragraph (b) of Section 4.8 provides 

that, except that as provided for minutes 

of the legal subcommittee in Section 

4.8(d), the Secretary or designee will 

prepare minutes of all subcommittee 

minutes and that such minutes will be 

made available to the Operating 

Committee and members of the 

Advisory Committee.274

One commenter supports the 

provisions of the Proposed CT Plan 

addressing the preparation and 

distribution of all meeting minutes.275

Section 4.8(b) differs from the 

corresponding provision of the 2021 CT 

Plan approved by the Commission in 

that it conforms this provision with 

requirements of the Amended 

Governance Order regarding 

transparency of subcommittee 

meetings.276 Accordingly, the 

Commission is approving Section 4.8(b) 

as proposed. 

(iii) Permissible Attendees of 

Subcommittee Meetings 

Paragraph (c) of Section 4.8 of the 

Proposed CT Plan states that Voting 

Representatives, the Advisory 

Committee, Member Observers, SEC 

staff, and other persons as deemed 

appropriate by the Operating Committee 

may attend subcommittee meetings.277

Section 4.8(c) is consistent with 

requirements of the Amended 

Governance Order 278 and substantively 

similar to the corresponding provision 

of the 2021 CT Plan approved by the 

Commission,279 other than for replacing 

the term ‘‘Non-SRO Voting 

Representatives’’ with ‘‘the Advisory 

Committee,’’ consistent with 

requirements in the Amended 

Governance Order.280 The Commission 

received no comments on Section 4.8(c), 

and, for the same reasons as stated in 

the 2021 Approval Order (apart from 

those pertaining to participation of nonSRO representatives as member of the 

operating committee of the 2021 CT 

Plan, which is not part of the Proposed 

CT Plan),281 the Commission is 

approving Section 4.8(c) as proposed. 

(iv) Legal Subcommittee 

Article IV, Section 4.8(d) provides 

that Voting Representatives, Member 

Observers, and other persons as deemed 

appropriate by majority vote of the 

Voting Representatives may meet in a 

subcommittee to discuss an item that 

exclusively affects the Members with 

respect to the following: (1) litigation 

matters or responses to regulators with 

respect to inquiries, examinations, or 

findings; and (2) other discrete legal 

matters approved by the Operating 

Committee.282 Section 4.8(d) further 

provides that the Secretary will prepare 

the minutes of legal subcommittee 

meetings, and that such minutes will 

include the following: (i) attendance at 

the meeting; (ii) the subject matter of 

each item discussed; (iii) sufficient nonprivileged information to identify the 

rationale for referring the matter to the 

legal subcommittee, and (iv) the 

privilege or privileges claimed with 

respect to that item.283 This paragraph 

further provides that such minutes will 

be made available only to the Voting 

Representatives, Member Observers, and 

other persons deemed appropriate by a 

majority vote of the Operating 

Committee.284

One commenter supports the 

provisions of the Proposed CT Plan 

addressing the preparation and 

distribution of all meeting minutes.285

This commenter also states that the 

Commission should reincorporate 

provisions of the 2021 CT Plan 

approved by the Commission that were 

intended to promote the role of nonSROs, including expanding the scope of 

information required to justify referral 

of a matter to a legal subcommittee.286

This commenter states that similar 

policy rationales for narrowly tailoring 

the use of Executive Sessions or other 

exclusive meetings apply when nonSROs are Advisory Committee 

members.287

The provisions of proposed Section 

4.8(d) sufficiently limit the matters that 

may be discussed in a legal 

subcommittee meeting of the Proposed 

CT Plan. Proposed Section 4.8(d) 

specifically requires that a matter 

referred to the legal subcommittee be 

limited to ‘‘an item that exclusively 

affects the Members’’ in two 

circumstances: (1) litigation matters or 

responses to regulators with respect to 

inquiries, examinations, or findings; and 

(2) other discrete legal matters approved 

by the Operating Committee.288

Moreover, referral to the legal 

subcommittee must be approved by a 

majority vote of the Operating 

Committee. The SROs have a right to 

consult with legal counsel with respect 

to such items, and permitting non-SROs 

to attend discussions regarding those 

items might cause a waiver of the SROs’ 

attorney-client privilege. 

Moreover, the provisions of proposed 

Section 4.8(d) provide sufficient 

accountability regarding the use by the 

SROs of the legal subcommittee. 

Minutes of legal subcommittee meetings 

will be required, and those minutes 

must, for each matter discussed, identify 

the privilege claimed and include 

sufficient non-privileged information to 

identify the reason the matter was 

referred to the legal subcommittee. 

These minutes, like all CT Plan 

documents, will be available to the 

Commission and its staff,289 which will 

provide accountability regarding use of 

the legal subcommittee, while 

preserving, to the extent appropriate, 

the SROs’ attorney-client privilege with 

respect to discussions at legal 

subcommittee meetings. 

Therefore, the provisions of proposed 

Section 4.8(d) are consistent with the 

requirements of the Amended 

Governance Order.290 Moreover, other 

than for differences to conform to 

requirements of the Amended 

Governance Order, including (1) the 

omission of references to Non-SRO 

Voting Representatives,291 which are no 

longer part of the Proposed CT Plan, (2) 

the use of the term ‘‘Voting 

Representative’’ rather than ‘‘SRO 

Voting Representative,’’ 292 as well as (3) 

the addition of specific requirements 

regarding the content, preparation, and 

distribution of subcommittee 

minutes,293 the provisions of Section 

4.8(d) are substantively similar to the 

corresponding provisions of the 2021 

CT Plan approved by the 


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294See 2021 Approval Order, supra note 19, 86 

FR at 44175–77. 

295See 2021 Approval Order, supra note 19, 86 

FR at 44175–77. 

296See Article IV, Section 4.9(a) of the Proposed 

CT Plan. 

297See id. 

298See id. 

299See id. 

300See id. 

301See Article IV, Section 4.9(b) of the Proposed 

CT Plan. 

302See id. 

303See Article IV, Section 4.9(c) of the Proposed 

CT Plan. 

304See Article IV, Section 4.3(a) of the Proposed 

CT Plan. 

305See Amended Governance Order, supra note 

23, 88 FR at 61631. 

306Article IV, Section 4.9 of the Proposed CT Plan 

corresponds to Article IV, Section 4.8 of the 2021 

CT Plan. See 2021 Approval Order, supra note 19, 

86 FR at 44215. 

307See 2021 Approval Order, supra note 19, 86 

FR at 44178. 

308See id. 

309See Article IV, Section 4.10 of the Proposed 

CT Plan. 

310See 2021 Approval Order, supra note 19, at 86 

FR at 44178. 

311See Securities Exchange Act Release Nos. 

88823 (May 6, 2020), 85 FR 28046 (May 12, 2020); 

88824 (May 6, 2020), 85 FR 28119 (May 12, 2020) 

(collectively, the ‘‘Conflicts of Interest Approval 

Orders’’). In the Governance Order, as well as in the 

Amended Governance Order, the Commission 

ordered the SROs to incorporate into the new NMS 

plan provisions consistent with the Conflicts of 

Interest Approval Orders. See Governance Order, 

supra note 11, 85 FR at 28726; Amended 

Governance Order, supra note 23, 88 FR at 61633– 

34, 61640. 

312See Amended Governance Order, supra note 

23, 88 FR at 61634–35, 61640. 

313See Article I, Section 1.1(64) of the Proposed 

CT Plan (defining ‘‘Restricted Information’’). 

314See Article I, Section 1.1(34) of the Proposed 

CT Plan (defining ‘‘Highly Confidential 

Information’’). 

315See supra notes 313–314 and accompanying 

text. 

316See Article IV, Section 4.11(a) of the Proposed 

CT Plan. 

317See Article IV, Section 4.11(c) of and Exhibit 

B to the Proposed CT Plan. 

Commission.294 For the foregoing 

reasons, as well as those in the 2021 

Approval Order (apart from those 

pertaining to the participation of nonSRO representatives as members of the 

operating committee of the 2021 CT 

Plan, which is not included in the 

Proposed CT Plan),295 the Commission 

is approving Section 4.8(d) as proposed. 

(i) Officers 

Section 4.9 of Article IV of the 

Proposed CT Plan governs the selection 

of CT Plan Officers. Paragraph (a) of 

Section 4.9 provides that, other than the 

Chair, the Operating Committee may, 

from time to time, designate and 

appoint one or more persons as Officers 

of the Company.296 This paragraph 

further provides that other than the 

Chair, no such officer need be a Voting 

Representative.297 Pursuant to this 

paragraph, any officer so designated will 

have such authority and perform such 

duties as the Operating Committee may, 

from time to time, delegate to them, and 

that any such delegation may be 

revoked at any time by the Operating 

Committee.298 Paragraph (a) of Section 

4.9 further provides that the Operating 

Committee may assign titles to 

particular Officers, and that each Officer 

will hold office until a successor is 

designated, or until the Officer’s death, 

resignation, or removal, as provided in 

the Proposed CT Plan.299 This 

paragraph further provides that an 

individual may hold any number of 

offices, and that Officers shall not be 

entitled to receive salary or other 

compensation, unless approved by the 

Operating Committee.300 This section 

further provides that any Officer may 

resign at any time, that such resignation 

must be made in writing, and that it 

shall take effect at the time specified in 

the notice, or if no time be specified, at 

the time of its receipt by the Operating 

Committee.301 Pursuant to this section, 

the acceptance of a resignation will not 

be necessary to make it effective.302

Finally, this section provides that any 

officer may be removed at any time by 

a majority vote of the Members.303

The Commission is modifying Section 

4.9 to provide that a majority vote of the 

Operating Committee, rather than of its 

Members, shall be required to remove 

any Officer. To effect this modification, 

the Commission is therefore deleting, 

from proposed Section 4.9(c), the word 

‘‘Members,’’ and substituting the words 

‘‘Operating Committee.’’ This 

modification is appropriate to make the 

provision consistent with the 

requirements of Section 4.3(a) of the 

Proposed CT Plan, which governs the 

allocation of votes to the Members of the 

Proposed CT Plan. As required by the 

Amended Governance Order, Section 

4.3 allocates votes to SRO Groups and 

Non-Affiliated SROs—not to each 

individual SRO that is a Member of the 

Proposed CT Plan.304

Other than as modified by the 

Commission to conform to Amended 

Governance Order requirements 

regarding action of the Operating 

Committee,305 as discussed above, 

Section 4.9 is, other than for immaterial 

differences,306 substantively similar to 

the corresponding provision of the 2021 

CT Plan approved by the 

Commission.307 The Commission 

received no comments addressing 

Section 4.9 of the Proposed CT Plan, 

and, for the reasons discussed above, as 

well as for the reasons stated in the 2021 

Approval Order (apart from those 

pertaining to the participation of nonSRO representatives as members of the 

operating committee of the 2021 CT 

Plan, which is not included in the 

Proposed CT Plan),308 the Commission 

is approving Section 4.9 of the Proposed 

CT Plan as modified. 

(j) Commission Access to Information 

and Records 

Section 4.10 of Article IV of the 

Proposed CT Plan provides that 

‘‘[n]othing in this Agreement shall be 

interpreted to limit or impede the rights 

of the Commission or SEC staff to access 

information and records of the Company 

or any of the Members (including their 

employees) pursuant to U.S. federal 

securities laws and the rules and 

regulations promulgated 

thereunder.’’ 309 This provision is 

identical to the corresponding provision 

of the 2021 CT Plan approved by the 

Commission,310 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments addressing this 

provision, and the Commission is 

approving Section 4.10 of the Proposed 

CT Plan as proposed. 

(k) Disclosure of Potential Conflicts of 

Interest; Recusal 

Article IV, Section 4.11 of the 

Proposed CT Plan sets forth the 

disclosure requirements with respect to 

conflicts of interest, and the provisions 

for recusal, as approved by the 

Commission 311 with certain modified 

requirements as set forth in the 

Amended Governance Order.312

(i) Disclosure Requirements 

Section 4.11 of Article IV provides 

that the Members (including any 

Member Observers), the Processors, the 

Administrator, and each service 

provider or subcontractor (each a 

‘‘Disclosing Party’’) engaged in 

Company business (including the audit 

of Subscribers’ data usage) that has 

access to Restricted 313 or Highly 

Confidential Information 314

(‘‘Disclosing Parties’’), as defined in the 

Plan,315 shall complete a prescribed 

questionnaire and be subject to the 

disclosure requirements as described in 

Section 4.11(c) and Exhibit B to the Plan 

to disclose all material facts necessary to 

identify potential conflicts of interest.316

Exhibit B to the Proposed CT Plan 

provides a list of questions and 

instructions tailored to elicit responses 

that disclose potential conflicts of 

interest.317 Section 4.11(a) also states 

that the Operating Committee, a 

Member, Processors, or Administrator 


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318See Article IV, Section 4.11(a) of the Proposed 

CT Plan. 319See id. 320See Article IV, Section 4.11(a)(i) of the 

Proposed CT Plan. 321See Article IV, Section 4.11(a)(ii) of the 

Proposed CT Plan. 

322See Article IV, Section 4.11(a)(iii) of the 

Proposed CT Plan. 

323See Article IV, Section 4.11(a)(iv) of the 

Proposed CT Plan. 

324See Amended Governance Order, supra note 

23, 88 FR at 61631–32. 

325See 2021 Approval Order, supra note 19, 86 

FR at 44178–82, 44221–22. 

326See Amended Governance Order, supra note 

23, 88 FR at 61631–32. 

327See Article I, Sections 1.16–1.18 of the 

Proposed CT Plan (as approved). 

328See Article IV, Section 4.11(b)(i) of the 

Proposed CT Plan. 

329See Article IV, Section 4.11(b)(ii) of the 

Proposed CT Plan. 

330See Article IV, Section 4.11(b)(iii) of the 

Proposed CT Plan. 

331See Article IV, Section 4.11(b)(iv) of the 

Proposed CT Plan. 

332See ICI Letter, supra note 109, at 2, n.6. 

333See id. 

334See 2021 Approval Order, supra note 19, 86 

FR at 44178–82, 44215. 

335See Amended Governance Order, supra note 

23, 88 FR at 61635, 61640 (requiring that the term 

‘‘licensing’’ include ‘‘all functions related to 

monitoring or ensuring a subscriber’s compliance 

with the terms of the license contained in its data 

subscription agreement and all functions relating to 

the auditing of subscriber data usage and 

payment’’). 

may not use a service provider or 

subcontractor on Company business 

unless that service provider or 

subcontractor has agreed in writing to 

provide the disclosures required by this 

section and has submitted completed 

disclosures to the Administrator prior to 

starting work.318

Section 4.11(a) further provides that if 

state laws, rules, or regulations, or 

applicable professional ethics rules or 

standards of conduct, would act to 

restrict or prohibit a Disclosing Party 

from making any particular required 

disclosure, a Disclosing Party must refer 

to such law, rule, regulation, or 

professional ethics rule or standard and 

include in response to that disclosure 

the basis for its inability to provide a 

complete response, and further, that this 

would not relieve the Disclosing Party 

from disclosing any information it is not 

restricted from providing.319

Section 4.11(a) also describes 

circumstances in which a potential 

conflict of interest may exist,320

provides for required updates of 

disclosures,321 provides for public 

dissemination of disclosures,322 and 

provides that Disclosing Parties that are 

not Members or members of the 

Advisory Committee to comply with the 

required disclosure and recusal 

provisions in their respective 

agreements with the Company, a 

Member, the Administrator, or the 

Processors.323

Section 4.11(a) differs substantively 

from the corresponding provision of the 

2021 CT Plan approved by the 

Commission only in that, consistent 

with the Amended Governance 

Order,324 the term ‘‘Non-SRO Voting 

Representatives’’ has been struck where 

it appeared and has been replaced by 

‘‘members of the Advisory Committee’’ 

in Section 4.11(a)(iv). The Commission 

is modifying proposed Section 4.11(a) to 

add ‘‘members of the Advisory 

Committee’’ to the first sentence of this 

section, which defines ‘‘Disclosing 

Parties.’’ It is appropriate that members 

of the Advisory Committee be included 

in the definition, given that they are 

replacing the Non-SRO Voting 

Representatives, will have access to 

Restricted or Highly Confidential 

Information, and are referenced in 

Section 4.11(a)(iv) as a Disclosing Party, 

they should be subject to the 

requirements of Section 4.11, including 

disclosing all material facts necessary to 

identify potential conflicts of interest 

and be recused consistent with Section 

4.11(b) (discussed below). Additionally 

Exhibit B (the disclosure questionnaire) 

differs substantively from the 

corresponding portion of the 2021 CT 

Plan approved by the Commission 325

only in that, consistent with the 

Amended Governance Order,326 it 

replaces references to Non-SRO Voting 

Representatives with references to 

members of the Advisory Committee. 

The Commission received no comments 

on Section 4.11(a) of the Proposed CT 

Plan, and for the foregoing reasons, the 

Commission is approving Section 

4.11(a) as modified and Exhibit B as 

proposed. 

(ii) Recusal 

Article IV, Section 4.11(b) of the 

Proposed CT Plan discusses recusals 

and expressly prohibits a Member from 

appointing as its Voting Representative, 

alternate Voting Representative, or a 

Member Observer a person that is 

responsible for or involved with 

procurement for, or development, 

modeling, pricing, licensing (including 

all functions related to monitoring or 

ensuring a subscriber’s compliance with 

the terms of the license contained in its 

data subscription agreement and all 

functions relating to the auditing of 

subscriber data usage and payment), or 

sale of proprietary market data product 

offered to customers of the CT Feeds,327

if the person has a financial interest 

(including compensation) that is tied 

directly to the Disclosing Party’s market 

data business or the procurement of 

market data, and if that compensation 

would cause a reasonable objective 

observer to expect the compensation to 

affect the impartiality of the 

representative.328 Section 4.11(b) further 

requires recusal of a Disclosing Party 

(including its representative(s), 

employees, and agents) from 

participating in Company activities if it 

has not submitted the required 

disclosure form, or the Operating 

Committee votes that the Disclosing 

Party’s disclosure form is materially 

deficient. Pursuant to this paragraph (ii), 

such recusal will be in effect until the 

Disclosing Party submits a sufficiently 

complete disclosure form to the 

Administrator.329 Section 4.11(b)(iii) 

provides that a Disclosing Party, 

including its representatives(s), and its 

Affiliates and their representatives(s), is 

recused from voting on matters in which 

it or its Affiliate is seeking a position or 

contract with the Company or has a 

position or contract with the Company 

and whose performance is being 

evaluated by the Company.330 Section 

4.11(b)(iv) requires that all recusals, 

including a person’s determination of 

whether to voluntarily recuse himself or 

herself, be reflected in the meeting 

minutes.331

One commenter supports the 

provision of the Proposed CT Plan that 

prohibits an SRO from appointing a 

representative that is involved with 

licensing of proprietary data 

products.332 This commenter also 

supports the Proposed CT Plan’s 

inclusion of provisions applying the 

conflicts-of-interest policies to any SROdesignated person, including a member 

observer, that attends operating 

committee and subcommittee meetings 

as proposed under this section.333

Proposed Section 4.11(b) differs 

substantively from the corresponding 

provision of the 2021 CT Plan approved 

by the Commission 334 only in that it 

includes language specified by the 

Commission in the Amended 

Governance Order.335 Accordingly, the 

Commission is approving Section 

4.11(b) as proposed. 

(iii) Required Disclosures 

Article IV, Section 4.11(c) of the 

Proposed CT Plan provides that, as part 

of the disclosure regime, the Members, 

the Processors, the Administrator, 

members of the Advisory Committee, 

and service providers and 

subcontractors must respond to 

questions that are tailored to elicit 

responses that disclose the potential 

conflicts of interest as set forth in 

Exhibit B. 


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336See 2021 Approval Order, supra note 19, 86 

FR at 44181–82, 44215. 

337See Amended Governance Order, supra note 

23, 88 FR at 61631–32. 

338See Article IV, Section 4.12 of the Proposed 

CT Plan. See also Section 1.1(3) of the Proposed CT 

Plan (defining ‘‘Covered Persons’’). 

339See Article IV, Section 4.12 of the Proposed 

CT Plan. 

340See 2021 Approval Order, supra note 19, 86 

FR at 44182–90. 

341See id. at 44182–89, 44222–24. 

342See id. 

343See id. 

344See id. 

345See Amended Governance Order, supra note 

23, 88 FR at 61631–32. 

346See 2021 Approval Order, supra note 19, 86 

FR at 44186; see also Paragraph (b)(iii)(A)(4) of 

Exhibit C. 

Proposed Section 4.11(c) differs 

substantively from the corresponding 

2021 CT Plan provision approved by the 

Commission 336 only in that, consistent 

with the Amended Governance 

Order,337 it replaces a reference to 

‘‘Non-Voting SRO Representatives’’ with 

a reference to ‘‘members of the Advisory 

Committee.’’ The Commission received 

no comments addressing Section 4.11(c) 

of the Proposed CT Plan, and the 

Commission is approving Section 

4.11(c) as proposed. 

(l) Confidentiality Policy 

Article IV, Section 4.12 provides that 

all Covered Persons are subject to the 

Confidentiality Policy set forth in 

Exhibit C to the Proposed CT Plan.338

This Section further provides that the 

Company will arrange for Covered 

Persons that are not Voting 

Representatives, Member Observers, or 

members of the Advisory Committee to 

comply with the Confidentiality Policy 

under their respective agreements with 

either the Company, a Member, the 

Administrator, or the Processors.339

This provision is identical to the 

corresponding provision of the 2021 CT 

Plan approved by the Commission,340

and it was not required to be modified 

by the Amended Governance Order. The 

Commission received no comments 

addressing Section 4.12 of the Proposed 

CT Plan, and the Commission is 

approving Section 4.12 of the Proposed 

CT Plan as proposed. 

Exhibit C to the Proposed CT Plan 

constitutes the Confidentiality Policy 

and describes the purpose and scope of 

the policy, including, among other 

things, the procedures regarding the 

custodian of and designations for all 

documents, as well as the procedures 

concerning Restricted Information, 

Highly Confidential Information, and 

Confidential Information. 

The Commission received no 

comments on Exhibit C. 

Paragraph (a) of the Confidentiality 

Policy lays out the purpose and scope 

of the policy. Paragraph (a) is 

unchanged from the corresponding 

provision of the 2021 CT Plan approved 

by the Commission,341 and it was not 

required to be modified by the 

Amended Governance Order. The 

Commission is approving paragraph (a) 

of Exhibit C as proposed. 

Paragraph (b) of the Confidentiality 

Policy lays out the procedures for 

treatment and disclosure of Restricted 

Information, Highly Confidential 

Information, and Confidential 

Information. Paragraph (b)(i) is identical 

to the corresponding 2021 CT Plan 

provisions approved by the 

Commission,342 and it was not required 

to be modified by the Amended 

Governance Order. The Commission is 

approving paragraph (b)(i) of the Exhibit 

C as proposed. 

Paragraph (b)(ii) of Exhibit C sets forth 

the procedures concerning Restricted 

Information. While paragraph (b)(ii) was 

not required to be modified by the 

Amended Governance Order, this 

paragraph has been reorganized from 

the corresponding provisions of the 

2021 CT Plan approved by the 

Commission,343 and the substance of the 

provisions has not changed. The 

Commission is, however, making one 

modification to this paragraph. In 

paragraph (b)(ii)(A)(2), where the policy 

states that any authorization to disclose 

Restricted Information must identify the 

Covered Persons or third party 

authorized to receive information, the 

Commission is modifying this sentence 

to specify that the Restricted 

Information to be disclosed must also be 

specified: ‘‘Any authorization to 

disclose Restricted Information must 

specify the information to be disclosed 

and identify the Covered Persons or 

third party authorized to receive the 

Restricted Information. . . .’’ This 

modification is appropriate, as it is 

designed to help ensure that the 

Restricted Information is tightly 

controlled and that only the Restricted 

Information specified is permitted to be 

disclosed. Accordingly, the Commission 

is approving paragraph (b)(ii) of Exhibit 

C as modified. 

Paragraph (b)(iii) of Exhibit C sets 

forth the procedures concerning Highly 

Confidential Information. While 

paragraph (b)(iii) was not required to be 

modified by the Amended Governance 

Order, this paragraph has been 

reorganized from the corresponding 

provisions of the 2021 CT Plan 

approved by the Commission,344 and 

the substance of the provisions has 

changed in only three respects. 

First, for the reasons explained above, 

references to a ‘‘Non-SRO Voting 

Representative’’ have been replaced by 

references to ‘‘a member of the Advisory 

Committee.’’ 345 Second, proposed 

paragraph (b)(iii)(A)(2) would permit 

Voting Representatives to share certain 

Highly Confidential Information with 

‘‘officers and employees’’ of a Member 

who have direct or supervisory 

responsibility for the Member’s 

participation in the plan, rather than 

with only ‘‘officers’’ as in the 2021 CT 

Plan. The addition of ‘‘employees’’ to 

the list of persons who may receive 

certain Highly Confidential Information 

is appropriate because disclosure would 

still be limited to those with direct or 

supervisory responsibility for the 

Member’s participation in the plan and 

because not all persons with such 

responsibilities may formally be 

‘‘officers’’ of a Member. 

And third, proposed paragraph 

(b)(iii)(A)(1) would permit disclosures 

of Highly Confidential Information in 

specified circumstances ‘‘or as 

otherwise required by law (such as 

those required to receive the 

information to ensure the Member 

complies with its regulatory 

obligations).’’ In the 2021 Approval 

Order, the Commission specifically 

removed identical quoted language in 

response to commenters’ concern that it 

was too broad and their request for 

greater clarity. Consequently, the 

Commission in the 2021 CT Plan 

separately permitted the disclosure of 

Highly Confidential Information ‘‘as 

required by Applicable Law’’ because it 

provided greater specificity as to when 

Highly Confidential Information could 

be disclosed, consistent with the 

defined term.346 Moreover, paragraph 

(b)(iii)(A)(2) of the Proposed CT Plan 

would permit a Voting Representative to 

share Highly Confidential Information 

with ‘‘officers or employees of a 

Member who have direct or supervisory 

responsibility for the Member’s 

participation in the Plan, or with agents 

for the Member supporting the 

Member’s participation in the Plan,’’ 

which would thereby facilitate the 

Member’s ability to meet its regulatory 

obligations with respect to the 

operations of the Proposed CT Plan. 

Accordingly, it is appropriate to modify 

paragraph (b)(iii)(A)(1) of Exhibit C to 

delete the phrase ‘‘or as otherwise 

required by law (such as those required 

to receive the information to ensure the 

Member complies with its regulatory 

obligations).’’ 

The Commission is also modifying 

paragraph (b)(iii) to make the following 


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347See supra Section II.B.2. 

348See id. 

349See 2021 Approval Order, supra note 19, 86 

FR at 44182–89, 44222–24. 

350See id. at 44188, 44223. 

351See Article V, Section 5.1 of the Proposed CT 

Plan. 

352See id. 

353See 2021 Approval Order, supra note 19, 86 

FR at 44190–91, 44215. 

354See Article V, Section 5.2 of the Proposed CT 

Plan. 

355See id. 

356See 2021 Approval Order, supra note 19, 86 

FR at 44191–92, 44215. 

357See Article V, Section 5.3(a) of the Proposed 

CT Plan. 

358See id. 

359See id. 

typographical corrections. In paragraph 

(b)(iii)(A)(1), the Commission is 

correcting a cross-reference to read 

‘‘Section 4.8(d)’’ instead of ‘‘Section 

4.7(c).’’ In paragraph (b)(iii)(A)(2), the 

Commission is correcting two references 

to ‘‘SRO Voting Representatives’’ to read 

‘‘Voting Representatives’’ because that is 

the defined term in the Proposed CT 

Plan,347 and the Commission is also 

correcting a reference to ‘‘Restricted 

Information’’ to read ‘‘Highly 

Confidential Information’’ because the 

paragraph in fact relates to procedures 

concerning Highly Confidential 

Information. In paragraph (b)(iii)(A)(5), 

which discusses disclosures to third 

parties, the Commission is striking two 

references to ‘‘Covered Persons’’ 

because the paragraph discusses 

disclosure to identified third parties that 

are acting as Agents, rather than to 

Covered Persons. There are two 

paragraphs numbered (b)(iii)(A)(5), and 

the Commission is renumbering the 

second of those paragraphs as paragraph 

(b)(iii)(A)(6). The Commission is also 

correcting a reference to ‘‘SRO Voting 

Representatives’’ in paragraph (b)(iii)(B) 

to read ‘‘Voting Representative’’ because 

other references to SRO Voting 

Representatives in the Proposed CT Plan 

have been removed and replaced with 

references to Voting Representatives to 

conform to the Amended Governance 

Order.348 These modifications are 

appropriate because they would 

alleviate confusion on those referencing 

the Proposed CT Plan by correcting 

typographical errors. For the reasons 

discussed above, the Commission is 

approving paragraph (b)(iii) of Exhibit C 

as modified. 

Paragraph (b)(iv) of Exhibit C to the 

Proposed CT Plan governs procedures 

concerning Confidential Information. 

With one exception, paragraph (b)(iv) as 

proposed is identical to the 

corresponding provisions of the 2021 

CT Plan approved by the 

Commission,349 and it was not required 

to be modified by the Amended 

Governance Order. That exception is 

that the word ‘‘only’’ was removed from 

the corresponding provision in the 2021 

CT Plan that stated, ‘‘Additionally, a 

Covered Person may disclose 

Confidential Information only to other 

persons who need to receive such 

information to fulfill their 

responsibilities to the Plan, including 

oversight of the Plan.’’ (Emphasis 

added.) Although the Commission 

added the word ‘‘only’’ to this sentence 

in the 2021 Approval Order,350 the 

general provision of paragraph (a)(iii) of 

Exhibit C—which provides that 

‘‘Covered Persons may not disclose 

Restricted, Highly Confidential, or 

Confidential information except as 

consistent with this Policy and directed 

by the Operating Committee’’— 

sufficiently limits the authorization 

provided by paragraph (b)(iv)(A) 

without adding the word ‘‘only’’ in the 

sentence described above. The 

Commission is, however, modifying the 

last phrase of paragraph (b)(iv)(A), ‘‘or 

as may be otherwise required by law,’’ 

to read, ‘‘or as may be otherwise 

required by Applicable Law.’’ The 

modification is appropriate because it 

uses a term specifically defined in the 

Proposed CT Plan, thus adding clarity to 

the application of the phrase, and 

because the modification will make 

paragraph (b)(iv)(A) consistent with 

paragraph (b)(iii)(A)(4) as proposed, 

which also uses the term ‘‘Applicable 

Law.’’ 

For the reasons discussed above, the 

Commission is approving paragraph 

(b)(iv) of Exhibit C as modified. 

6. The Processors; Information; 

Indemnification 

Article V of the Proposed CT Plan sets 

forth the provisions related to the 

Processors. 

(a) General Functions of the Processors 

Pursuant to Article V, Section 5.1, the 

Company, under the direction of the 

Operating Committee, shall be required 

to enter into agreements with the 

Processors obligating the Processors to 

perform certain processing functions on 

behalf of the Company (the ‘‘Processor 

Services Agreements’’).351 The Proposed 

CT Plan specifies that, among other 

things, the Company shall require the 

Processors to collect from the Members, 

and consolidate and disseminate to 

Vendors and Subscribers, Transaction 

Reports and Quotation Information in 

Eligible Securities in a manner designed 

to ensure the prompt, accurate, and 

reliable collection, processing, and 

dissemination of information with 

respect to all Eligible Securities in a fair 

and non-discriminatory manner.352

Proposed Section 5.1 is identical to 

the corresponding provision of the 2021 

CT Plan approved by the 

Commission,353 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments addressing this 

provision, and the Commission is 

approving Section 5.1 as proposed. 

(b) Evaluation of the Processors 

Article V, Section 5.2 of the Proposed 

CT Plan requires that the Processors’ 

performance of their functions under 

the Processor Services Agreements shall 

be subject to review at any time as 

determined by an affirmative vote of the 

Operating Committee, provided, 

however, that a review will be 

conducted at least once every two 

calendar years but not more than once 

each calendar year unless the Processors 

have materially defaulted under the 

Processor Services Agreement and the 

default has not been cured within the 

applicable cure period established in 

the Processor Services Agreement, in 

which case such limitations will not 

apply.354 This section further provides 

that the Operating Committee may 

review the Processors at staggered 

intervals.355

Proposed Section 5.2 is identical to 

the corresponding provision of the 2021 

CT Plan approved by the 

Commission,356 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments addressing this 

provision, and the Commission is 

approving Section 5.2 as proposed. 

(c) Process for Selecting New Processors 

Article V, Section 5.3 of the Proposed 

CT Plan requires that the Operating 

Committee, by an affirmative vote 

pursuant to Section 4.3 of the Proposed 

CT Plan,357 establish procedures for 

selecting a new Processor (the 

‘‘Processor Selection Procedures’’).358

The Proposed CT Plan requires that the 

Processor Selection Procedures be 

established no later than upon the 

termination or withdrawal of a 

Processor or the expiration of a 

Processor Services Agreement with a 

Processor.359 The Processor Selection 

Procedures are required to set forth, at 

a minimum: (i) the minimum technical 

and operational requirements to be 

fulfilled by the Processor; (ii) the criteria 

for selecting the Processor; (iii) the 

entities (other than Voting 

Representatives) that are eligible to 

comment on the selection of the 

Processor; and (iv) the entity that will: 


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360See Article V, Section 5.3(b)(i)(A)–(C) of the 

Proposed CT Plan. 

361See Article V, Section 5.3(a) of the Proposed 

CT Plan. 

362 Id. 

363See Letter from James P. Dombach, Davis 

Wright Tremaine LLP, to Vanessa Countryman, 

Secretary, Commission, at 2 (Oct. 23, 2023) 

(‘‘Transmittal Letter’’). 

364See Transmittal Letter, supra note 363, at 2. 

365See Letter from Christina Qi, Chief Executive 

Officer, Luca Lin, Chief Technology Officer, Zach 

Banks, Engineering Director, Databento Inc., at 1– 

2 (Mar. 15, 2024) (‘‘Databento Letter’’). 

366See Fidelity Letter, supra note 80, at 6. 

367 Id. 

368See Article V, Section 5.3 of the Proposed CT 

Plan. 

369See 2021 Approval Order, supra note 19, 86 

FR at 44192, 44216. 

370See Article V, Section 5.4 of the Proposed CT 

Plan. 

371See Article V, Section 5.4(a)(ii)(A)–(F) of the 

Proposed CT Plan. 

372See Article V, Section 5.4(a)(iii)(A) of the 

Proposed CT Plan. 

373See Article V, Section 5.4(a)(iii)(B) of the 

Proposed CT Plan. In addition, proposed Section 

5.4(a)(iii)(B) provides that if FINRA’s quotation 

facility provides a proprietary feed of its quotation 

information, then the quotation facility will also 

furnish the Processors with the time of the 

quotation as published on the quotation facility’s 

proprietary feed. FINRA shall convert any quotation 

times reported to it to nanoseconds and shall 

furnish such times to the Processors in nanoseconds 

since Epoch. See Article V, Section 5.4(a)(iii)(B) of 

the Proposed CT Plan. 

374See Article V, Section 5.4(b)(i)–(ii) of the 

Proposed CT Plan; Notice, supra note 4, 89 FR at 

5015. 

(A) draft the Operating Committee’s 

request for proposal for a new Processor; 

(B) assist the Operating Committee in 

evaluating bids for the new Processor; 

and (C) otherwise provide assistance 

and guidance to the Operating 

Committee in the selection process.360

The Operating Committee, as part of the 

process of establishing the Processor 

Selection Procedures, is permitted to 

solicit and consider the timely comment 

of any entity affected by the operation 

of the Proposed CT Plan.361

Section 5.3 provides that the 

Operating Committee does not need to 

establish Processor Selection Procedures 

‘‘if the Operating Committee initially 

selects the CQ Plan and CTA Plan’s 

processor and the UTP Plan’s processor 

to provide the same services to the 

Company that are currently provided 

under the CQ Plan, CTA Plan, and UTP 

Plan.’’ 362 In the Transmittal Letter, the 

SROs state that, because the focus of the 

Amended Governance Order is the 

selection of a new independent 

Administrator rather than new 

Processors, the SROs believe it is 

reasonable for the Operating Committee 

to have the option of continuing with 

the current processors without having to 

go through an extensive procedure for 

selecting the processors.363 The SROs 

state that this option would also allow 

for quicker implementation of the plan 

by allowing the Operating Committee to 

focus on the selection of the new 

Administrator.364

With respect to Section 5.3(a), one 

commenter states that it supports the 

proposal to provide the Operating 

Committee with the option of selecting 

an existing NMS plan processor to serve 

as processor for the Proposed CT Plan, 

provided that selection of the current 

processor is for the sole purpose of 

expediting transition to the competing 

consolidator model, and that such 

processor be fully retired at the end of 

the transition period.365 Another 

commenter agrees that it is reasonable 

for the Operating Committee to have the 

option to continue with the current 

processors.366 This commenter states its 

‘‘expectation’’ that the Commission and 

the SROs ‘‘will promptly take the 

requisite steps necessary to transition to 

a competitive decentralized 

consolidation model for consolidated 

market data such that the role of a CT 

Plan Processor is time-limited, 

mitigating the need to create new 

procedures for Plan Processor 

selection.’’ 367

The establishment of Processor 

Selection Procedures is appropriate, as 

proposed, because the existing exclusive 

SIP model will continue to operate 

during the transition to the competing 

consolidator model, and the proposed 

Selection Procedures are reasonably 

designed to help ensure that the 

Operating Committee establishes a 

process that governs the selection of a 

new Processor for the Proposed CT Plan 

through a fair, transparent, and 

competitive process. The Commission 

agrees with the commenter, that it is 

reasonable to provide the Operating 

Committee with the option of initially 

selecting the current processors to 

provide the same services under the 

Proposed CT Plan without having to 

establish procedures for their selection, 

as proposed in Section 5.3(a).368

Providing the Operating Committee 

with this option should facilitate 

implementation of the Proposed CT 

Plan as the Operating Committee would 

not have to immediately undertake the 

extensive process for selecting and 

onboarding a new Processor, and may 

instead focus on the selection of the 

new Administrator and other key 

governance reforms necessary under the 

Proposed CT Plan. 

Other than as discussed above, 

Section 5.3 of the Proposed CT Plan is 

substantively similar to the 

corresponding provisions of the 2021 

CT Plan approved by the 

Commission.369 For the reasons 

discussed above, the Commission is 

approving Article V, Section 5.3 as 

proposed. 

(d) Transmission of Information to 

Processors by Members 

Article V, Section 5.4 of the Proposed 

CT Plan sets forth the manner in which 

each Member is responsible for 

promptly collecting and transmitting to 

the Processors accurate Quotation 

Information and Transaction Reports as 

set forth in the Processor Services 

Agreements.370 In particular, this 

section requires Members to include the 

following elements in their Quotation 

Information: (i) identification of the 

Eligible Security, using the listing 

market’s symbol; (ii) the price bid and 

offered, together with size; (iii) for 

FINRA, the FINRA Participant along 

with the FINRA Participant’s market 

participant identification or Member 

from which the quotation emanates; (iv) 

appropriate timestamps; (v) 

identification of quotations that are not 

firm; and (vi) through appropriate codes 

and messages, withdrawals and similar 

matters.371 In the case of a national 

securities exchange, the Quotation 

Information must include the reporting 

Participant’s matching engine 

publication timestamp.372 In the case of 

FINRA, the Quotation Information must 

include the quotation publication 

timestamp that FINRA’s bidding or 

offering member reports to FINRA’s 

quotation facility in accordance with 

FINRA rules.373

In addition, Section 5.4 requires 

Members to report the following 

elements to in their Transaction Reports 

to the Processor as set forth in the 

Processor Services Agreement: (i) 

identification of the Eligible Security, 

using the listing market’s symbol; (ii) 

the number of shares in the transaction; 

(iii) the price at which the shares were 

purchased or sold; (iv) the buy/sell/ 

cross indicator; (v) appropriate 

timestamps; (vi) the market of 

execution; and (vii) through appropriate 

codes and messages, late or out-ofsequence trades, corrections, and 

similar matters.374

Each Member must also (a) transmit 

Transaction Reports to the Processors as 

soon as practicable, but not later than 

ten seconds, after the time of execution, 

(b) establish and maintain collection 

and reporting procedures and facilities 

reasonably designed to comply with this 

requirement, and (c) designate as ‘‘late’’ 

any last sale price not collected and 

reported as described above or as to 

which the Member has knowledge that 

the time interval after the time of 


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375See Article V, Section 5.4(b)(iv) of the 

Proposed CT Plan; Notice, supra note 4, 89 FR at 

5015. 

376See id. 

377See Article V, Section 5.4(c) of the Proposed 

CT Plan. 

378See Article V, Section 5.4(b)(v)(A)–(G) of the 

Proposed CT Plan (as adopted). 

379See Article V, Section 5.4(d)(i) of the Proposed 

CT Plan (as adopted). Section 5.4(d)(ii) of the 

Proposed CT Plan specifies the procedures for 

addressing claims by a Member Indemnified Party. 

380See 2021 Approval Order, supra note 19, 86 

FR at 44193. 

381See Article V, Section 5.5(a) of the Proposed 

CT Plan. Section 5.5(b) of the Proposed CT Plan 

provides that each Member may utilize a dedicated 

Member line into the Processors to transmit 

Transaction Reports and Quotation Information to 

the Processors. 

382See Article V, Section 5.5(c) of the Proposed 

CT Plan. 

383See id. 

384See id. 

385See id. 

386See 2021 Approval Order, supra note 19, 86 

FR at 44194. 

387See Article VI, Section 6.1 of the Proposed CT 

Plan. 

388See 2021 Approval Order, supra note 19, 86 

FR at 44194–95. 

execution is significantly greater than 

the time period referred to above.375

This section provides that Members will 

seek to reduce the time period for 

reporting last sale prices to the 

Processors as conditions warrant.376

Section 5.4(c) of the Proposed CT Plan 

sets forth the symbols that shall be used 

to denote the applicable Member.377

Section 5.4 excludes the following 

types of transactions from being 

required to be reported to the 

Processors: (i) transactions that are part 

of a primary distribution by an issuer or 

of a registered secondary distribution or 

of an unregistered secondary 

distribution; (ii) transactions made in 

reliance on Section 4(a)(2) of the 

Securities Act of 1933; (iii) transactions 

in which the buyer and the seller have 

agreed to trade at a price unrelated to 

the current market for the security (e.g., 

to enable the seller to make a gift); (iv) 

the acquisition of securities by a brokerdealer as principal in anticipation of 

making an immediate exchange 

distribution or exchange offering on an 

exchange; (v) purchases of securities 

pursuant to a tender offer; (vi) purchases 

or sales of securities effected upon the 

exercise of an option pursuant to the 

terms thereof or the exercise of any 

other right to acquire securities at a preestablished consideration unrelated to 

the current market; and (vii) transfers of 

securities that are expressly excluded 

from trade reporting under FINRA 

rules.378

Furthermore, Section 5.4(d) provides 

that each Member agrees, severally and 

not jointly, to indemnify and hold 

harmless and defend the Company, each 

other Member, the Processors, the 

Administrator, the Operating 

Committee, and each of their respective 

directors, officers, employees, agents, 

and Affiliates (each, a ‘‘Member 

Indemnified Party’’) from and against 

any and all loss, liability, claim, 

damage, and expense whatsoever 

incurred or threatened against such 

Member Indemnified Party as a result of 

a system error or disruption at such 

Member’s Market affecting any 

Transaction Reports, Quotation 

Information, or other information 

reported to the Processors by such 

Member and disseminated by the 

Processors to Vendors and Subscribers. 

This section further provides that this 

indemnity shall be in addition to any 

liability that the indemnifying Member 

may otherwise have.379

The provisions of Section 5.4 relating 

to each Member’s obligations to collect 

and transmit to the Processors accurate 

and reliable Quotation Information and 

Transaction Reports are reasonably 

designed to facilitate the collection and 

dissemination of consolidated equity 

market data for NMS stocks for the 

beneficial use of investors and the 

market.380 Section 5.4 differs 

substantively from the corresponding 

provisions of the 2021 CT Plan 

approved by the Commission in that it 

(1) replaces the term ‘‘Participant’’ with 

‘‘Member,’’ which difference is 

appropriate to correspond with the 

definitions in the Proposed CT Plan, 

and (2) updates, in Section 5.4(c), the 

symbols used to denote the applicable 

Member, which difference is 

appropriate to help ensure the accuracy 

of this information. The Commission 

received no comments addressing this 

provision, which was not required to be 

modified by the Amended Governance 

Order, and the Commission is approving 

Section 5.4, as renumbered and 

proposed. 

(e) Operational Issues 

Article V, Section 5.5 of the Proposed 

CT Plan requires each Member to be 

responsible for collecting and validating 

quotes and last sale reports within its 

own system prior to transmitting this 

data to the Processors.381 This section 

also requires each Member to promptly 

notify the Processors whenever a level 

of trading activity or unusual market 

conditions prevent such Member from 

collecting and transmitting Transaction 

Reports or Quotation Information to the 

Processor, or where a trading halt or 

suspension in an Eligible Security is in 

effect in its market.382 This provision 

further requires the Member to resume 

collecting and transmitting Transaction 

Reports and Quotation Information to 

the Processors as soon as the condition 

or event is terminated.383 In the event of 

a system malfunction that prevents a 

Member or its members from 

transmitting Transaction Reports or 

Quotation Information to the Processors, 

the Member is required to promptly 

notify the Processors of such event or 

condition.384 Upon receiving such a 

notification, Section 5.5 of the Proposed 

CT Plan requires the Processors to take 

appropriate action, including either 

closing the quotation or purging the 

system of the affected quotations.385

Section 5.5 is identical to the 

corresponding provision of the 2021 CT 

Plan approved by the Commission 386

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comments 

addressing Section 5.5 of the Proposed 

CT Plan, and the Commission is 

approving Section 5.5 as proposed. 

7. The Administrator 

Article VI of the Proposed CT Plan 

sets forth provisions relating to the 

Administrator. 

(a) General Functions of the 

Administrator 

Pursuant to Article VI, Section 6.1, 

the Company, under the direction of the 

Operating Committee, will be required 

to enter into an agreement with the 

Administrator (the ‘‘Administrative 

Services Agreement’’) obligating the 

Administrator to perform certain 

administrative functions on behalf of 

the Company, including: recordkeeping; 

administering vendor and subscriber 

contracts; administering fees, including 

billing, collection, and auditing of 

vendors and subscribers; administering 

distributions; tax functions of the 

Company; the preparation of the 

Company’s audited financial reports; 

and support of Company governance.387

Section 6.1 of the Proposed CT Plan 

is identical to the corresponding 

provision of the 2021 CT Plan approved 

by the Commission, except that the 

provision now includes ‘‘support of 

Company governance’’ among the 

Administrator’s functions.388 Including 

this additional function for the 

Administrator is reasonable given the 

extensive responsibilities of the 

Administrator for supporting the 

operations of the plan. This section was 

not required to be modified by the 

Amended Governance Order. The 

Commission received no comments 

addressing Section 6.1, and for the 

reasons discussed above, the 


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389See Article VI, Section 6.2 of the Proposed CT 

Plan. 

390See 2021 Approval Order, supra note 19, 86 

FR at 44194–99, 44217. 

391See Amended Governance Order, supra note 

23, 88 FR at 61640. 

392See Letter from Mark Schaedel, CEO, DataBP, 

LLC, at 3–4 (Feb.23.2024) (‘‘dataBP Letter’’). 

393See Nasdaq Letter, supra note 109, at 7. 

394See id. 

395See id. 

396See id. (emphasis in original). 

397See 2021 Approval Order, supra note 19, 86 

FR at 44197. 

398See id. 

399See id. 

400See Article IV, Section 4.1(a)(i) of the 

Proposed CT Plan (providing, in part, that ‘‘the 

Operating Committee shall have full and complete 

discretion to manage and control the business and 

affairs of the Company, to make all decisions 

affecting the business and affairs of the Company, 

and to take all such actions as it deems necessary 

or appropriate to accomplish the purposes of the 

Company, including . . . selecting, overseeing, 

specifying the role and responsibilities of, and 

evaluating the performance of, the Administrator’’). 

See also 2021 Approval Order, supra note 19, 86 

FR at 44197. 

401See 2021 Approval Order, supra note 19, 86 

FR at 44197. 

402See Nasdaq v. SEC, supra note 20, 38 F.4th 

at 1143 (‘‘Although petitioners contend that nonSRO data vendors face ‘the exact same conflict’ as 

SROs selling competing data products, the conflict 

is not the same because, as the Commission notes, 

the SROs have ‘sufficient voting power’ and 

‘incentive’ to ensure that any non-SRO chosen to 

serve as administrator ‘would [not] face a financial 

conflict of interest and act as a direct competitor to 

the SROs’ proprietary data business.’ ’’ (quoting 

2021 Approval Order, supra note 19, 86 FR at 

44197) (internal citations omitted). 

403See SIFMA Letter, supra note 109, at 5. The 

commenter states that such a scenario could call 

into question the independence of the new 

Administrator. See id. 

404See id. 

405Amended Governance Order, supra note 23, 

88 FR at 61639. 406See supra Section II.B.5(l) (discussing 

Confidentiality Policy of the Proposed CT Plan). 

407See supra note 400 and accompanying text. 

408See supra notes 313–316 and accompanying 

text. 

409See 2021 Approval Order, supra note 19, 86 

FR at 44217. 

410See Article VI, Section 6.3 of the Proposed CT 

Plan. 

411See 2021 Approval Order, supra note 19, 86 

FR at 44198. 

Commission is approving Section 6.1 as 

proposed. 

(b) Independence of the Administrator 

Article VI, Section 6.2 of the Proposed 

CT Plan requires that the Administrator 

selected by the Operating Committee 

may not be owned or controlled by a 

corporate entity that, either directly or 

via another subsidiary, offers for sale its 

own proprietary market data 

products.389 Section 6.2 of the Proposed 

CT Plan is identical to the 

corresponding provision of the 2021 CT 

Plan approved by the Commission 390

and is consistent with the requirements 

of the Amended Governance Order.391

One commenter supports having an 

independent administrator, stating that 

an independent administrator with a 

unique balance of experience and 

expertise, but without conflict, will be 

the single most important factor for the 

successful transition to a unified 

consolidated tape.392 Another 

commenter states that the Proposed CT 

Plan should not only exclude SROs 

from serving as Administrator, but also 

data vendors that sell proprietary 

market data products or consolidate 

proprietary market data for sale as their 

own product.393 According to this 

commenter, vendors may provide users 

with an alternative to consolidated 

equity market data offered under the 

Proposed CT Plan,394 compromising the 

independence of such a vendor.395 The 

commenter recommends that, Section 

6.2 of the Proposed CT Plan should be 

modified to read as follows: The 

Administrator may not be owned or 

controlled by a corporate entity that, 

either directly or via another subsidiary, 

offers for sale its own proprietary 

market data products or that of single or 

multiple Participants.396

The Commission addressed a similar 

comment in the 2021 Approval Order, 

and, as it stated in that order, the 

Commission did not mandate in the 

Governance Order that non-SRO data 

vendors serve as the new independent 

Administrator.397 Nor are such entities 

the only viable alternative 

Administrator.398 The Commission 

chose to address one substantial, 

inherent conflict of interest when it 

decided that any plan Administrator 

cannot be owned or controlled by a 

corporate entity that offers for sale its 

own proprietary equity market data 

products.399 The Proposed CT Plan, as 

proposed and approved, under the 

direction of the Operating Committee, 

can exercise discretion in the selection 

of the new Administrator, including 

ensuring that any potential conflict of 

interest does not compromise the 

independence of the selected 

Administrator.400 Furthermore, the 

Operating Committee of the Proposed 

CT Plan would not have any incentive 

to choose as the Administrator a nonSRO entity that would face a financial 

conflict of interest and act as a direct 

competitor to the SROs’ proprietary data 

business.401 The D.C. Circuit upheld the 

rationality of this reasoning.402 And, for 

these same reasons, the Commission 

again declines to modify the restrictions 

on entities that can serve as 

Administrator in the manner suggested 

by the commenter. 

Another commenter states that the 

scope of the independence requirement 

might be too narrow.403 This commenter 

states that one or more exchange groups 

could seek to establish a new 

‘‘independent’’ administrator by 

spinning off or selling to a new 

corporate entity the administrator 

functions, even though all of the 

employees of such a new entity would 

remain the same or nearly the same after 

the spin-off or sale.404

With respect to this concern, an 

Administrator of the Proposed CT Plan 

would not be ‘‘independent’’ of a 

disqualified entity if its employees were 

also employees of that disqualified 

entity. Because the Administrator and 

its employees would have access to 

‘‘sensitive information of significant 

commercial or competitive value,’’ 405

those employees would have a conflict 

of interest if simultaneously employed 

by an entity that offers for sale its own 

proprietary data products, which would 

defeat the purpose of the independence 

requirements in the Proposed CT Plan 

for the Administrator, as well as the 

limitations on sharing information 

under the Confidentiality Policy.406

Therefore, it is appropriate to further 

protect against the potential for misuse 

of sensitive information by modifying 

Section 6.2 to add an additional 

requirement: ‘‘The Administrator may 

not employ any person who is also 

employed by a corporate entity that, 

either directly or via a subsidiary, offers 

for sale its own PDP.’’ More generally, 

as discussed above,407 the Operating 

Committee can also exercise discretion 

in the selection of the new 

Administrator to ensure that any 

potential conflict of interest does not 

compromise the independence of the 

selected Administrator, and on an 

ongoing basis, the Administrator will be 

required to disclose all material facts 

necessary to identify potential conflicts 

of interest.408

Other than as modified by the 

Commission, Section 6.2 of the 

Proposed CT Plan is identical to the 

corresponding provision of the 2021 CT 

Plan approved by the Commission 409

and was not required to be modified by 

the Amended Governance Order. For 

the foregoing reasons, the Commission 

is approving Article V, Section 6.2 as 

modified. 

(c) Evaluation of the Administrator 

Article VI, Section 6.3 of the Proposed 

CT Plan sets forth the provisions for the 

evaluation of an Administrator.410

Section 6.3 is identical to the 

corresponding 2021 CT Plan provisions 

approved by the Commission 411 and 

was not required to be modified by the 


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412See Article VI, Section 6.4 of the Proposed CT 

Plan. 

413See 2021 Approval Order, supra note 19, 86 

FR at 44198–99, 44217. 

414See MEMX Letter, supra note 109, at 4, 7–9. 

415See id. 

416See id. at 6–8. 

417See id. at 8. 

418See id. at 5–7. 

419See Jordan Letter, supra note 84, at 2. 

420See id. at 1–2. 

421See MEMX Letter, supra note 109, at 5–7; 

Jordan Letter, supra note 84, at 2; dataBP Letter, 

supra note 392, at 3–4. 

422See supra note 422 and accompanying text. 

423See Notice, supra note 4, 89 FR at 5027–29 

(Exhibit F to the Proposed CT Plan); see also infra 

section II.B.15(a) (discussing the implementation 

timeline for the Proposed CT Plan). 

424See Article I, Section 1.1(56) of the Proposed 

CT Plan (as modified; defining the term ‘‘Operative 

Date’’ as ‘‘the date that (i) the Members conduct, 

through the Company, the Processor and 

Administrator functions related to the public 

dissemination of real-time consolidated equity 

market data for Eligible Securities required by the 

Commission to be performed by the Members under 

the Exchange Act and the rules and regulations 

thereunder and (ii) the CQ Plan, CTA Plan, and 

UTP Plan cease their operations’’). 

425See 15 U.S.C. 78k–1(c)(1)(B) (to ensure the 

‘‘prompt, accurate, reliable, and fair collection, 

processing, distribution, and publication of 

information with respect to quotations for and 

transactions in such securities and the fairness and 

usefulness of the form and content of such 

information.’’). 

426See 2021 Approval Order, supra note 19, 86 

FR at 44199–200, 44217–18. 

427See SIFMA Letter, supra note 109, at 4–5. 

Amended Governance Order. The 

Commission received no comments 

addressing Section 6.3 of the Proposed 

CT Plan, and the Commission is 

approving Article VI, Section 6.3 as 

proposed. 

(d) Process for Selecting New 

Administrator 

Article VI, Section 6.4 of the Proposed 

CT Plan sets forth the provisions for the 

selection of an Administrator.412

Section 6.4 of the Proposed CT Plan is 

identical to the corresponding provision 

of the 2021 CT Plan approved by the 

Commission 413 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments addressing this 

provision, and the Commission is 

approving Section 6.4 as proposed. 

(e) Interim Administrator(s) 

One commenter states that the 

Commission should modify the 

Proposed CT Plan to allow the 

Operating Committee to appoint one of 

the current administrators of the Equity 

Data Plans as interim Administrator 

until such time as the Operating 

Committee selects and onboards a new 

independent Administrator that meets 

the requirements for an independent 

administrator under the Amended 

Governance Order.414 The commenter 

states that appointment of such an 

interim Administrator would allow the 

Plan to become operative while the 

Operating Committee works towards 

full implementation of all required Plan 

elements.415 This commenter states that 

selection and onboarding of an 

independent Administrator would, 

according to the proposed schedule, 

account for the majority of the 30-month 

implementation period.416 The 

commenter is also concerned that the 

selection and onboarding of a new 

Administrator is a potential source of 

delay, as the process is not fully within 

the control of the Operating Committee. 

Thus, the commenter states that there is 

no need for the implementation of other 

governance reforms to be tied to the new 

Administrator.417 Another commenter 

states that selecting an interim 

administrator, as suggested,418 is a good 

idea because, once selected, this interim 

administrator could start developing 

plan policies that are not dependent on 

the independent administrator, possibly 

drawing on the expertise of members of 

the Market Data Administration 

subcommittee of the Equity Data 

Plans.419 This commenter states that the 

goal should be to implement the plan at 

the earliest possible time, and that 

appointing an interim administrator 

would advance that objective.420

The Commission agrees with 

commenters 421 that timely 

implementation of the Proposed CT 

Plan is important and that the Proposed 

CT Plan should provide for an option, 

such as that suggested by a 

commenter,422 by which key governance 

reforms, such as those governing the 

allocation of SRO votes for action by the 

Operating Committee, could be 

implemented before the proposed 30 

months. Interim Administrator(s) that 

are already familiar with, and have vast 

experience in, the operation of the 

Equity Data Plans could assist in having 

the Proposed CT Plan become operative 

prior to the selection and onboarding of 

an independent Administrator that the 

SROs have acknowledged would be a 

lengthy process.423 Although 

commenters have suggested the 

appointment of a single interim 

administrator, the ability of the 

Operating Committee to pick either or 

both of the current administrators of the 

Equity Data Plans as Interim 

Administrator(s) may facilitate the 

timely achievement of the date by 

which the Proposed CT Plan will 

become operative.424 The flexibility to 

employ either or both of the current 

administrators of the Equity Data Plans 

would permit the Operating Committee, 

if it so chooses, to postpone the work 

involved in transitioning from one 

administrator to another until such time 

as a permanent, independent 

Administrator has been selected and 

thus to postpone this effort until closer 

to the Operative Date. 

Therefore, the Commission is 

modifying the Proposed CT Plan, to 

provide, in new Section 6.5, that the 

Operating Committee may select one or 

more of the current administrators of the 

CTA Plan, CQ Plan, and UTP Plan to 

perform the general functions of the 

Administrator under Section 6.1 of the 

Proposed CT Plan on an interim basis 

during the implementation of the Plan, 

consistent with the timeline set forth in 

Article XIV of this Agreement (‘‘Interim 

Administrator(s)’’), notwithstanding the 

provisions with respect to the 

independence of the Administrator 

(Section 6.2) and the selection process 

of the Administrator (Section 6.4). This 

modification is appropriate to enhance 

efficiencies associated with the 

completion of actions necessary for a 

timely implementation of the Proposed 

CT Plan.425

8. Regulatory Matters 

Article VII of the Proposed CT Plan 

sets forth provisions governing 

regulatory matters. 

(a) Regulatory and Operational Halts 

Section 7.1 of Article VII addresses 

regulatory and operational halts, and it 

is unchanged from the corresponding 

provision of the 2021 CT Plan approved 

by the Commission,426 with one 

exception. That exception is the 

addition of new paragraph 7.1(c)(ii)(D), 

which would permit notice of a 

regulatory halt to be disseminated by ‘‘a 

notification via an alternate Processor, if 

available.’’ 

One commenter states that the only 

acceptable backup for a processor 

should be an automated regulatory halt 

message notification by an alternate 

Processor, as proposed in paragraph (D) 

of Section 7.1(c)(ii), and that, for this 

reason, paragraphs (A)–(C) of Section 

7.1(c)(ii) should be deleted.427 This 

commenter further states that the 

current two processors should serve as 

backups for each other in the same 

manner that the NYSE and Nasdaq serve 

as backups for each other for Trade 

Reporting Facility and closing auctions 

purposes. The commenter also states 

that if the Proposed CT Plan were to 

move to a single processor prior to 

future implementation of competing 

consolidators, the plan should address 


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428See id. at 5. 

429See id. at 4–5. 

430See Article VII, Section 7.2 of the Proposed CT 

Plan. 

431See Article VII, Section 7.2(b)(i) of the 

Proposed CT Plan. Relatedly, Article VII, Section 

7.2(b)(i) of the 2021 CT Plan read as follows: 

‘‘Members that execute transactions in Eligible 

Securities outside of Regular Trading Hours, shall 

report such transactions as follows: (i) transactions 

in Eligible Securities executed between 4:00 a.m. 

and 9:29:59 a.m. ET and between 4:00:01 p.m. and 

8:00 p.m. ET, shall be designated with an 

appropriate indicator to denote their execution 

outside normal market hours.’’ See 2021 Approval 

Order, supra note 19, 86 FR at 44218. 

432See Article VIII, Section 8.1(a) of the Proposed 

CT Plan. 

433See id. 

434See Article VIII, Section 8.1(b) of the Proposed 

CT Plan. Additionally, Section 8.1(c) of the 

Proposed CT Plan provides that the provisions of 

Section 8.1 and other provisions of this Agreement 

relating to the maintenance of Capital Accounts are 

intended to comply with be interpreted and applied 

in a manner consistent with such Treasury 

Regulations. See id. 

435See Article VIII, Section 8.2 of the Proposed 

CT Plan. 

436See Article VIII, Section 8.3 of the Proposed 

CT Plan (providing, in part, that ‘‘[e]xcept as set 

forth in this Section 8.3 and Section 11.2, and 

subject to the provisions of Section 13.1, 

Distributions shall be made to the Members at the 

times and in the aggregate amounts set forth in 

Exhibit D. Notwithstanding any provisions to the 

contrary contained in this Agreement, the Company 

shall not make a Distribution to a Member on 

account of its interest in the Company if such 

Distribution would violate Section 18–607 of the 

Delaware Act or other Applicable Law’’). 

437See 2021 Approval Order, supra note 19, 86 

FR at 44200, 44218–19. 

438See id. at 44200, 44218. 

439See Article VI, Section 6.1 of the Proposed CT 

Plan (providing, in part, that ‘‘the Administrator 

shall perform administrative functions on behalf of 

the Company including recordkeeping; 

administering Vendor and Subscriber contracts; 

administering Fees, including billing, collection, 

and auditing of Vendors and Subscribers; 

administering Distributions; tax functions of the 

Company; and the preparation of the Company’s 

audited financial reports; and support of Company 

governance’’). 

440See 2021 Approval Order, supra note 19, 86 

FR at 44200, 44218–19. 

441See Article IX, Section 9.1 of the Proposed CT 

Plan. 

the single point of failure that would 

exist.428

While the proposal to disseminate 

Regulatory Halt notices through an 

alternate Processor in the event another 

Processor is unable to disseminate the 

notices is reasonable, the Commission 

does not share the commenter’s view 

that this should be the only permitted 

backup, to the exclusion of all other 

alternatives in proposed paragraph 

7.2(c)(ii) 429—namely, notification via a 

proprietary data product, a posting on a 

publicly available Member website, or 

system status messages—absent a 

representation from the SROs that such 

an alternate Processor backup 

functionality has been developed and 

tested. Absent such a representation, 

modifying Section 7.1 as the commenter 

proposes would create uncertainty with 

respect to compliance with 

requirements under this section, as well 

the potential for unnecessary delays in 

the implementation of the Proposed CT 

Plan. For the foregoing reasons, the 

Commission is approving Section 7.1 of 

the Proposed CT Plan as proposed. 

(b) Hours of Operation of the System 

Section 7.2 of Article VII of the 

Proposed CT Plan governs the hours of 

operation during which time Quotation 

Information and Transaction Reports 

must be entered by Members and will be 

disseminated by the Processor.430

Section 7.2 of the Proposed CT Plan 

differs from the corresponding provision 

of the 2021 CT Plan approved by the 

Commission in two respects. First, 

Section 7.2(a) clarifies that, during 

Regular Hours, Transaction Reports 

shall be entered by Members pursuant 

to that section ‘‘for executions that 

occur from 9:30 a.m. until 4:00:00 p.m. 

ET’’ rather than ‘‘between 9:30 a.m. and 

4:00:10 p.m. ET.’’ Second, Section 

7.2(b)(i) adds a parenthetical to the 

provision that, outside of Regular Hours, 

reports for transactions in Eligible 

Securities executed from 4:00 a.m. up to 

9:30:00 a.m. ET ‘‘(or as otherwise 

designated by a Member as an execution 

occurring outside of Regular Trading 

Hours)’’ must be designated with a 

certain indicator to denote their 

execution outside normal market 

hours.431 These differences are 

appropriate to provide greater 

specificity with respect to the 

information to be submitted pursuant to 

Section 7.2. The Commission is 

modifying proposed Section 7.2 to 

replace the reference to ‘‘Section 7.3’’ in 

paragraph (b)(iv) with ‘‘Section 7.2.’’ 

This modification is appropriate to 

correct a typographical error because the 

reference in paragraph (b)(iv) of Section 

7.2 is to ‘‘this Section,’’ which in this 

context is Section 7.2 rather than 

Section 7.3, and because the Proposed 

CT Plan does not contain a section 

numbered ‘‘7.3.’’ The Commission 

received no comments addressing this 

provision. For the reasons discussed 

above, the Commission is approving 

Section 7.2 of the Proposed CT Plan as 

modified. 

9. Capital Contributions; Capital 

Accounts 

Article VIII of the Proposed CT Plan 

sets forth the provisions related to the 

establishment and maintenance of 

capital accounts for the Members, 

additional capital contributions to the 

Company, and the distribution of 

revenues of the Company to the 

Members. Specifically, Article VIII, 

Section 8.1 of the Proposed CT Plan 

requires a separate capital account to be 

established by the Company and 

maintained by the Administrator for 

each Member.432 In addition, the 

Proposed CT Plan specifies the formula 

for crediting and debiting a Member’s 

capital account.433

Section 8.1(b) of the Proposed CT 

Plan further provides that the fair 

market value of contributed, distributed, 

or revalued property shall be agreed to 

by the Operating Committee or, if there 

is no such agreement, by an 

appraisal.434

Section 8.2 of the Proposed CT Plan 

specifies that no Member will be 

obligated or permitted to make any 

additional contribution to the capital of 

the Company except with the approval 

of the Operating Committee.435

Section 8.3 of the Proposed CT Plan 

requires the distributions of revenues of 

the Company to the Members at the 

times and in the aggregate amounts set 

forth in Exhibit D to the Proposed CT 

Plan.436

Article VIII of the Proposed CT Plan 

differs from the corresponding provision 

of the 2021 CT Plan approved by the 

Commission 437 in that it provides that 

the capital accounts will be established 

by the Company and maintained by the 

Administrator, whereas in the 

corresponding provision of the 2021 CT 

Plan it was the Company that both 

established and maintained such 

accounts.438

The Commission received no 

comments on Article VIII of the 

Proposed CT Plan. The function of 

administering the capital accounts is 

reasonably within the scope of the 

general functions of the Administrator 

under Section 6.1 of the Proposed CT 

Plan.439 For this reason, and as the other 

provisions in Article VIII are 

substantively similar to the 

corresponding provisions of the 2021 

CT Plan approved by the 

Commission 440 and were not required 

to be modified by the Amended 

Governance order, the Commission is 

approving Article VIII of the Proposed 

CT Plan as proposed. 

10. Allocations 

Article IX of the Proposed CT Plan 

sets forth the provisions related to the 

allocation of profits and losses of the 

Company to Members. Pursuant to 

Article XI, Section 9.1, the profits and 

losses of the Company must be 

determined for each fiscal year in a 

manner consistent with GAAP.441

Article IX, Section 9.2 provides that 


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442See Article IX, Section 9.2(a) of the Proposed 

CT Plan. 

443See Article IX, Section 9.2(b)–(d) of the 

Proposed CT Plan. 

444See Paragraph (b) of Exhibit D to the Proposed 

CT Plan. 

445See Paragraph (c) of Exhibit D to the Proposed 

CT Plan. 

446See Paragraph (e) of Exhibit D to the Proposed 

CT Plan. 

447See Paragraph (f) of Exhibit D to the Proposed 

CT Plan. 

448See Paragraph (g) of Exhibit D to the Proposed 

CT Plan. 

449See Paragraph (h) of Exhibit D to the Proposed 

CT Plan. 

450See Paragraph (i) of Exhibit D to the Proposed 

CT Plan. 

451See Paragraph (d) of Exhibit D to the Proposed 

CT Plan. 

452See Paragraph (j) of Exhibit D to the Proposed 

CT Plan. 

453See Paragraph (k) of Exhibit D to the Proposed 

CT Plan. 

454See Paragraph (l) of Exhibit D to the Proposed 

CT Plan. 

455See Paragraph (m) of Exhibit D to the Proposed 

CT Plan. 

456See Nasdaq Letter, supra note 109, at 2, 6. 

457 Id. at 6. 

458 Id. 

459See Letter from Marcia E. Asquith, Corporate 

Secretary, EVP, Board and External Relations, 

Financial Industry Regulatory Authority, Inc., dated 

May 20, 2024 (‘‘FINRA Letter’’) at 2–4. 

460See id. at 3. 

461The ‘‘MDI Rules’’ as used in this order, and 

as relevant to this order, are Rules 600, 603, and 614 

of Regulation NMS. 17 CFR 242.600, 242.603, 

242.614. See also Securities Exchange Act Release 

No. 90610 (Dec. 9, 2020), 86 FR 18596 (Apr. 9, 

2021) (File No. S7–03–20) (‘‘MDI Rules Release’’); 

Securities Exchange Act Release No. 90610A (May 

24, 2021), 86 FR 29195 (June 1, 2021) (File No. S7– 

03–20) (technical correction to MDI Rules Release). 

Several exchanges filed petitions for review 

challenging the MDI Rules in the D.C. Circuit, 

which were denied on May 24, 2022. See The 

Nasdaq Stock Market LLC, et al. v. SEC, No. 21– 

1100 (D.C. Cir. May 24, 2022). 

462See id. 

463See id. 

464See id. 

465See id. at 2, 4. 

466See Amended Governance Order, supra note 

23, 88 FR at 61631. See also 2021 Approval Order, 

supra note 19, 86 FR at 44201–202. 

467See 2021 Approval Order, supra note 19, 86 

FR at 44201 (citing Market Data Infrastructure, 

Securities Exchange Act Release No. 90610 (Dec. 9, 

2020), 86 FR 18596 (File No. S7–03–20) (Final 

Rule)). 

468See id. 

469See 2021 Approval Order, supra note 19, 86 

FR at 44224. 

470 Data Boiler Letter, supra note 208, at 5. 

471 Id. 

472See id. 

profits and losses of the Company must 

be allocated among the Members in 

accordance with Exhibit D of the 

Proposed CT Plan.442 Section 9.2 also 

specifies the procedures for certain 

allocation events in accordance with 

federal tax code regulations.443

Exhibit D of the Proposed CT Plan 

outlines the methodology for revenue 

sharing among Members. 

Paragraphs (b), (c), and (e) through (i) 

of Exhibit D set forth the definitions 

used for determining the revenue 

sharing among Members, including 

‘‘Security Income Allocation,’’ 444

‘‘Volume Percentage,’’ 445 ‘‘Trading 

Share,’’ 446 ‘‘Trade Rating,’’ 447 ‘‘Quoting 

Share,’’ 448 ‘‘Quote Rating,’’ 449 and 

‘‘Quote Credits.’’ 450

Paragraph (d) of Exhibit D specifies a 

cap on the Net Distributable Operating 

Income of the Proposed CT Plan.451

Paragraph (j) of Exhibit D specifies the 

formula for determining the Net 

Distributable Operating Income for any 

calendar year.452

Paragraph (k) of Exhibit D specifies 

that once a new Member implements a 

Processor-approved electronic interface 

with the Processors, the Member will 

become eligible to receive revenue.453

Paragraph (l) of Exhibit D specifies the 

Company will cause the Administrator 

to provide Members with written 

estimates of each Member’s quarterly 

Net Distributable Operating Income 

within 45 calendar days of the end of 

the quarter.454

Paragraph (m) of Exhibit D specifies 

that the Company will cause the 

Administrator to submit to the Members 

a quarterly itemized statement setting 

forth the basis upon which Net 

Distributable Operating Income was 

calculated.455

One commenter suggests modifying 

the definition of ‘‘Net Distributable 

Operating Income’’ under paragraph (j) 

of Exhibit D to remove a 6.25% 

allocation to FINRA.456 This commenter 

states that the proposed FINRA set-aside 

is a ‘‘historical artifact’’ and 

‘‘inconsistent with the overall scheme of 

revenue distribution,’’ which the 

commenter states bases revenue sharing 

on the contribution of each participant 

to market transparency.457 The 

commenter states that ‘‘payments to 

FINRA, like that of all participants, 

should be based on the principle of 

contribution to the market,’’ and that the 

6.25% adjustment should be removed 

from the calculation.458

In response to the commenter, another 

commenter opposes removal of the 

6.25% FINRA set-aside from the 

calculation of ‘‘Net Distributable 

Operating Income’’ under paragraph (j) 

of Exhibit D.459 This commenter states 

that because both the inclusion of OTC 

Equity Data and the associated 6.25% 

revenue allocation were in the 2021 CT 

Plan approved by the Commission, and 

these provisions were not challenged in 

the subsequent litigation, the Amended 

Governance Order requires that these 

provisions remain in the Proposed CT 

Plan.460 This commenter further states 

that the Market Data Infrastructure 

Rules (‘‘MDI Rules’’) 461 will ultimately 

resolve the treatment of OTC Equity 

Data under the Proposed CT Plan,462 in 

part because the final MDI Rules will 

require FINRA to identify and build 

alternative means for distributing OTC 

Equity Data to investors.463 The 

commenter states that, until the MDI 

Rules are implemented, the most 

efficient way to provide investors with 

this important information is to include 

OTC Equity data together with NMS 

stock data under the applicable NMS 

Plan.464 Finally, the commenter states 

that the 6.25% revenue allocation is an 

integral part of the overall revenue 

allocation formula and reflects the 

Commission-approved determination 

that such revenue is appropriate, and 

accordingly recommends that the 

Commission retain it in Exhibit D.465

As stated in the Amended Governance 

Order, the provisions of the 2021 

Approval Order that were not 

challenged—including the 6.25% setaside for FINRA—continue to be 

appropriate for the Proposed CT Plan.466

Separately, the Commission agrees that 

the provisions of the Commission’s MDI 

Rules will resolve this issue,467 and that 

when the Proposed CT Plan becomes 

the effective NMS plan for 

dissemination of equity market data 

under the MDI Rules, the Proposed CT 

Plan will no longer include OTC data 

within the definition of ‘‘core data,’’ and 

no revenue allocation of plan revenues 

for OTC data will be necessary or 

appropriate.468 Moreover, because the 

provisions of the Proposed CT Plan 

related to the allocation of profits and 

losses of the Company to the Members, 

including those relating to the 6.25% 

revenue allocation to FINRA, are 

consistent with the corresponding 

provision of the 2021 CT Plan,469 it is 

not necessary to modify the Proposed 

CT Plan as suggested by the commenter. 

Separately, one commenter disagrees 

with the provisions in Exhibit D relating 

to revenue sharing, stating that the 

‘‘entirety of Exhibit D revenue sharing 

scheme is nothing more than SROs 

meeting behind closed doors in dividing 

the cake of SIPs/CC revenue.’’ 470 This 

commenter states that costs should be 

minimized because ‘‘putting data in 

motion from one place to another incurs 

no costs.’’ 471 According to this 

commenter, quote and trade distribution 

should be rewarded differently, and 

suggests adopting a format paralleling 

that of the music industry.472


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473See id. 

474See Governance Order, supra note 11, 85 FR 

at 28728. 

475See 2021 Approval Order, supra note 19, 86 

FR at 44200–02, 44224–25. 

476See id. at 44224. 

477See Article X, Section 10.1(a) of the Proposed 

CT Plan. 

478See Article X, Section 10.2(a) of the Proposed 

CT Plan. 

479See Article X, Section 10.2(b) of the Proposed 

CT Plan. 

480See Article X, Section 10.3(a) of the Proposed 

CT Plan. 

481See Article X, Section 10.3(b) of the Proposed 

CT Plan. 

482See Article X, Section 10.3(c) of the Proposed 

CT Plan. 

483See 2021 Approval Order, supra note 19, 86 

FR at 44202. 

484See Article XI, Section 11.1 of the Proposed 

CT Plan. 

485See 2021 Approval Order, supra note 19, 86 

FR at 44202. 

486See Article XI, Section 11.2 of the Proposed 

CT Plan. 

487See 2021 Approval Order, supra note 19, 86 

FR at 44202–03. 

488See Article XI, Section 11.3 of the Proposed 

CT Plan. 

489See 2021 Approval Order, supra note 19, 86 

FR at 44203. 

In response to the comment that the 

proposed revenue sharing arrangement 

is unjustified, and the suggestion that 

the format for quote and trade 

distribution should parallel that of the 

music industry,473 it is unclear from the 

comment how revenue sharing in one 

industry may be applicable to the 

Proposed CT Plan. Furthermore, the 

SROs as operators of the SIPs are well 

suited to determine how the revenues 

are distributed among the SROs.474

The provisions of the Proposed CT 

Plan related to the allocation of profits 

and losses of the Company to the 

Members are identical to those of the 

2021 CT Plan approved by the 

Commission,475 and are consistent with 

the requirements of the Amended 

Governance Order.476 For the reasons 

discussed above, the Commission is 

approving Article IX as proposed. 

11. Records and Accounting; Reports 

Article X of the Proposed CT Plan sets 

forth the Company’s obligations and 

policies related to accounting and tax 

matters. Article X, Section 10.1 of the 

Proposed CT Plan specifies that the 

Operating Committee shall determine 

all matters concerning accounting 

procedures of the Company and 

maintain an accounting system that 

enables the Company to produce 

accounting records and information 

substantially consistent with GAAP.477

Article X, Section 10.2 of the Proposed 

CT Plan specifies that the Company is 

intended to be treated as a partnership 

for federal, state, and local income tax 

purposes.478 Pursuant to this section, all 

tax returns are required to be prepared 

in a manner consistent with the 

Distributions made in accordance with 

Exhibit D to the Proposed CT Plan.479

Article X, Section 10.3 of the Proposed 

CT Plan sets forth provisions regarding 

the functions and duties of an entity 

appointed as the ‘‘Partnership 

Representative’’ of the Company as 

required by the federal tax code.480 The 

Partnership Representative is required 

to use reasonable efforts to notify each 

Member of all significant matters that 

may come to its attention and to forward 

to each Member copies of all significant 

written communications it receives in 

such capacity.481 The Partnership 

Representative must also consult with 

the Members before taking any material 

actions with respect to tax matters and 

must not compromise or settle any tax 

audit or litigation affecting the Members 

without the approval of a majority of 

Members.482

Sections 10.1–10.3 are identical to the 

corresponding provisions of the 2021 

CT Plan approved by the 

Commission,483 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments addressing 

Article X, and the Commission is 

approving the provisions of Article X as 

proposed. 

12. Dissolution and Termination 

(a) Dissolution of the Company 

Article XI, Section 11.1 of the 

Proposed CT Plan specifies the events 

that would trigger the dissolution of the 

Company, including: (i) unanimous 

written consent of the Members to 

dissolve the Company; (ii) the sale or 

other disposition of all or substantially 

all the Company’s assets outside the 

ordinary course of business; (iii) an 

event which makes it unlawful or 

impossible for the Company business to 

be continued; (iv) the withdrawal of one 

or more Members such that there is only 

one remaining Member; or (v) the entry 

of a decree of judicial dissolution under 

Section 18–802 of the Delaware Act.484

Section 11.1 of the Proposed CT Plan 

is identical to the corresponding one in 

the 2021 CT Plan approved by the 

Commission 485 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments addressing 

Section 11.1, and the Commission is 

approving this provision of the 

Proposed CT Plan as proposed. 

(b) Liquidation and Distribution 

Article XI, Section 11.2 of the 

Proposed CT Plan sets forth the 

procedures for the liquidation and 

distribution of assets following the 

dissolution of the Company. 

Specifically, Section 11.2 requires the 

Members to appoint a liquidating 

trustee to wind up the affairs of the 

Company by (i) selling its assets in an 

orderly manner (so as to avoid the loss 

normally associated with forced sales), 

and (ii) applying and distributing the 

proceeds of such sale, together with 

other funds held by the Company: (a) 

first, to the payment of all debts and 

liabilities of the Company; (b) second, to 

the establishments of any reserves 

reasonably necessary to provide for any 

contingent recourse liabilities and 

obligations; (c) third, to the Members in 

accordance with Exhibit D of the 

Proposed CT Plan; and (d) fourth, to the 

Members as determined by a majority of 

Members.486

Section 11.2 of the Proposed CT Plan 

is identical to the corresponding 

provision in the 2021 CT Plan approved 

by the Commission 487 and was not 

required to be modified by the 

Amended Governance Order. The 

Commission received no comments 

addressing Section 11.2, and the 

Commission is approving Article XI, 

Section 11.2 of the Proposed CT Plan as 

proposed. 

(c) Termination 

Article XI, Section 11.3 of the 

Proposed CT Plan sets forth termination 

procedures following the dissolution of 

the Company. Specifically, Section 11.3 

provides that each Member will receive 

a statement prepared by the 

independent accountants retained on 

behalf of the Company that shall set 

forth (i) the assets and liabilities of the 

Company as of the date of the final 

distribution of Company’s assets under 

Section 11.2 of the Proposed CT Plan 

and (ii) the net profit or net loss for the 

fiscal period ending on such date, and 

upon completion of the dissolution, 

winding up, liquidation, and 

distribution of the liquidation proceeds, 

the Company will terminate.488 Section 

11.3 is identical to the corresponding 

provision in the 2021 CT Plan approved 

by the Commission 489 and was not 

required to be modified by the 

Amended Governance Order. The 

Commission received no comments 

addressing this provision, and the 

Commission is approving Article XI, 

Section 11.3 as proposed. 

13. Exculpation and Indemnification 

(a) Exculpation and Indemnification 

Article XII, Sections 12.1 and 12.2 of 

the Proposed CT Plan provide broad 

liability, exculpation, and 


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490See Article I, Section 1.1(84) of the Proposed 

CT Plan (defining ‘‘Voting Representative’’). 

491See 2021 Approval Order, supra note 19, 86 

FR at 44203–04. 

492See Article XII, Section 12.3 of the Proposed 

CT Plan. 

493See 2021 Approval Order, supra note 19, 86 

FR at 44204–05. 

494See Article XII, Section 12.4 of the Proposed 

CT Plan. 

495See 2021 Approval Order, supra note 19, 86 

FR at 44205. 

496See Article XII, Section 12.5 of the Proposed 

CT Plan. 

497See 2021 Approval Order, supra note 19, 86 

FR at 44205. 

498See Article XIII, Section 13.1 of the Proposed 

CT Plan. 

499See id. 

500See 2021 Approval Order, supra note 19, 86 

FR at 44205. 

501See id. 

502See Article XIII, Section 13.3 of the Proposed 

CT Plan. As proposed, Section 13.3 also states the 

effective dates for communications under this 

section. See id. 

503See 2021 Approval Order, supra note 19, 86 

FR at 44206. 

indemnification protections for SROs 

and Voting Representatives. 

Specifically, Section 12.1 provides that 

the liability of each Member and each 

individual currently or formerly serving 

as an SRO Voting Representative (each, 

an ‘‘Exculpated Party’’) will be limited 

to the maximum extent permitted by 

applicable law or as otherwise expressly 

provided in the Proposed CT Plan ‘‘for 

any loss suffered in connection with a 

breach of any fiduciary duty, errors in 

judgment or other acts or omissions by 

such Exculpated Party.’’ Section 12.2 

provides indemnification to current or 

former SROs and Voting Representatives 

(‘‘Company Indemnified Party’’) for 

losses from being a Party to a 

Proceeding. 

The Commission is making a 

modification to Section 12.1 to delete 

‘‘SRO’’ from the term ‘‘SRO Voting 

Representative,’’ as used in this section. 

This modification is appropriate 

because the defined term in the 

Proposed CT Plan is ‘‘Voting 

Representative,’’ and not ‘‘SRO Voting 

Representative.’’ 490 Aside from the one 

modification to Section 12.1, the 

provisions in Sections 12.1 and 12.2. are 

identical to the corresponding 

provisions in the 2021 CT Plan 

approved by the Commission,491 and 

were not required to be modified by the 

Amended Governance Order. The 

Commission received no comments 

addressing Sections 12.1 and 12.2 of the 

Proposed CT Plan, and the Commission 

is approving Sections 12.1 of the 

Proposed CT Plan as modified, and 12.2 

of the Proposed CT Plan as proposed. 

(b) Advance Payment 

Article XII, Section 12.3 of the 

Proposed CT Plan provides for the 

payment of reasonable expenses 

incurred by a Company Indemnified 

Party who is a named defendant or 

respondent to a Proceeding, except that 

such Company Indemnified Party must 

repay such amount if it is ultimately 

determined that he or she is not entitled 

to indemnification.492 This provision is 

identical to the corresponding provision 

in the 2021 CT Plan approved by the 

Commission,493 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments on this 

provision, and the Commission is 

approving Section 12.3 of the Proposed 

CT Plan as proposed. 

(c) Appearance as a Witness 

Article XII, Section 12.4 of the 

Proposed CT Plan provides for the 

payment or reimbursement of 

reasonable out-of-pocket expenses 

incurred by a Company Indemnified 

Party in connection with appearance as 

a witness or other participation in a 

Proceeding at a time when the Company 

Indemnified Party is not a named 

defendant or respondent in the 

Proceeding.494 This provision is 

identical to the corresponding provision 

in the 2021 CT Plan approved by the 

Commission,495 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments on this 

provision, and the Commission is 

approving Section 12.4 as proposed. 

(d) Nonexclusivity of Rights 

Article XII, Section 12.5 of the 

Proposed CT Plan provides that the 

right to indemnification and the 

advancement and payment of expenses 

conferred in Article XII shall not be 

exclusive of any other right a Company 

Indemnified Person may have or 

hereafter acquire.496 This provision is 

identical to the corresponding provision 

in the 2021 CT Plan approved by the 

Commission,497 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments on Section 12.5, 

and the Commission is approving this 

provision as proposed. 

14. Miscellaneous Provisions 

Article XIII of the Proposed CT Plan 

sets forth miscellaneous provisions 

governing the Proposed CT Plan. 

(a) Expenses 

Section 13.1 of the Proposed CT Plan 

governs the payment of expenses by the 

Proposed CT Plan and requires that all 

such expenses be paid before any 

allocations may be made to the 

Members.498 Section 13.1 further 

provides that Members will be 

responsible for reserves for contingent 

liabilities and that each Member shall be 

responsible for the costs of any 

technical enhancements ‘‘made at its 

request and solely for its use,’’ unless 

another Member subsequently makes 

use of the enhancement.499 This 

provision is identical to the 

corresponding provision in the 2021 CT 

Plan approved by the Commission,500

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comments on 

Section 13.1, and the Commission is 

approving Section 13.1 of the Proposed 

CT Plan as proposed. 

(b) Entire Agreement 

Section 13.2 provides that the 

Proposed CT Plan will supersede the 

existing Equity Data Plans and all other 

prior agreements with respect to 

consolidated equity market data. The 

provision is identical to the 

corresponding provision in the 2021 CT 

Plan approved by the Commission,501

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comments on 

Section 13.2, and the Commission is 

approving Section 13.2 of the Proposed 

CT Plan as proposed. 

(c) Notices and Addresses 

Section 13.3 of the Proposed CT Plan 

provides that all communications must 

be written and sets forth the permissible 

methods of delivery.502 This provision 

is identical to the corresponding 

provision in the 2021 CT Plan approved 

by the Commission,503 and was not 

required to be modified by the 

Amended Governance Order. The 

Commission received no comments on 

Section 13.3, and Commission is 

approving Section 13.3 of the Proposed 

CT Plan as proposed. 

(d) Governing Law 

Section 13.4 of the Proposed CT Plan 

provides that Delaware law will be the 

governing law for the Proposed CT Plan. 

Specifically, the Proposed CT Plan 

states that the Agreement will be 

‘‘governed by and construed in 

accordance with the Delaware Act and 

internal laws and decisions of the State 

of Delaware, without regard to the 

conflicts of laws principles thereof’’ but 

will also be subject to ‘‘any applicable 

provisions of the Exchange Act and any 


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504See Article XIII, Section 13.4 of the Proposed 

CT Plan. 

505See 2021 Approval Order, supra note 19, 86 

FR at 44206. 

506See Article XIII, Section 13.5(c)(v) of the 

Proposed CT Plan (emphasis added). 

507See id. In the 2021 Approval Order, the 

Commission modified renumbered paragraph (v) of 

Section 13.5(c) of the plan to delete substantively 

similar language. See 2021 Approval Order, supra 

note 19, 86 FR at 44206. 

508See Article XIII, Section 13.5(c)(v) of the 

Proposed CT Plan. 

509See Article IV, Section 4.3 of the Proposed CT 

Plan. 

510See 2021 Approval Order, supra note 19, 86 

FR at 44206. 

511See Article XIII, Section 13.6 of the Proposed 

CT Plan. 

512See 2021 Approval Order, supra note 19, 86 

FR at 44206. 

513See Article XIII, Section 13.7 of the Proposed 

CT Plan. Section 13.7 further provides that ‘‘except 

as provided in Section 3.7(b), the Members shall not 

have any duty or obligation to any creditor of the 

Company to make any contribution to the Company 

or to issue any call for capital pursuant to this 

Agreement.’’ See id. 

514See 2021 Approval Order, supra note 19, 86 

FR at 44206. 

515See Article XIII, Section 13.8 of the Proposed 

CT Plan. 

516See id. 

517See 2021 Approval Order, supra note 19, 86 

FR at 44207. 

518See Article XIII, Section 13.9 of the Proposed 

CT Plan. 

519See 2021 Approval Order, supra note 19, 86 

FR at 44207. 

520See Article XIII, Section 13.10 of the Proposed 

CT Plan. 

521See 2021 Approval Order, supra note 19, 86 

FR at 44207. 

rules and regulations promulgated 

thereunder.’’ 504

Section 13.4 of the Proposed CT Plan 

is identical to the corresponding 

provision in the 2021 CT Plan approved 

by the Commission,505 and was not 

required to be modified by the 

Amended Governance Order. The 

Commission received no comments 

addressing Section 13.4, and the 

Commission is approving Section 13.4 

of the Proposed CT Plan as proposed. 

(e) Amendments 

Section 13.5 of the Proposed CT Plan 

governs amendments to the Proposed 

CT Plan. Paragraph (a) of Section 13.5 

states that the Proposed CT Plan may be 

modified when authorized by the 

Operating Committee pursuant to 

Section 4.3, subject to the requirements 

of section 11A of the Exchange Act and 

Rule 608 of Regulation NMS. 

Paragraph (b) of Section 13.5 sets 

forth the process for Ministerial 

Amendments, in which the Chair of the 

Operating Committee may modify the 

Proposed CT Plan by filing an 

amendment with the Commission 

unilaterally, so long as the required 48- 

hours advance written notice is 

provided to the Operating Committee. 

Paragraph (c) of Section 13.5 defines the 

term, ‘‘Ministerial Amendment’’ to 

include, among other things, an 

amendment to the Proposed CT Plan 

pertaining to ‘‘incorporating a change 

(A) that a Governmental Authority 

requires relating to the governance or 

operation of an LLC, (B) that requires 

conforming language to the text of this 

Agreement, and (C) whose conforming 

language to the text of this Agreement 

has been approved by the affirmative 

vote of the Operating Committee 

pursuant to Section 4.3 or upon 

approval by a majority of Members 

pursuant to Section 13.5(b), as 

applicable.’’ 506

The Commission is modifying 

paragraph (v) of Section 13.5(c) to delete 

the language that reads, ‘‘or upon 

approval by a majority of the Members 

pursuant to Section 13.5(b), as 

applicable.’’ 507 This modification is 

appropriate because the language is 

textually unclear. Moreover, the 

Commission’s modification is 

appropriate to conform this provision 

with Section 4.3 of the Proposed CT 

Plan governing action by the Operating 

Committee, which provides for voting 

by SRO group or Non-Affiliated SRO, 

rather than by the ‘‘Members’’ of the 

Plan (which would be each of the 

individual SROs), as proposed.508 And 

this would be the case whether the 

action in question requires the 

affirmative vote of two-thirds, or a 

simple majority of the votes allocated to 

the Operating Committee.509 As 

modified, Section 13.5 of the Proposed 

CT Plan is identical to the 

corresponding provision in the 2021 CT 

Plan approved by the Commission,510

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comments on 

this provision, and the Commission is 

approving Section 13.5 of the Proposed 

CT Plan as modified. 

(f) Successors 

Section 13.6 of the Proposed CT Plan 

provides that the Proposed CT Plan 

shall bind and inure ‘‘to the benefit of 

the Members and their respective legal 

representatives and successors.’’ 511 The 

provision is identical to the 

corresponding provision in the 2021 CT 

Plan approved by the Commission,512

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comments on 

Section 13.6, and the Commission is 

approving the provision as proposed. 

(g) Limitation on Rights of Others 

Section 13.7 of the Proposed CT Plan 

provides that the Proposed CT Plan 

shall not be for the benefit of or 

enforceable by any creditor of the 

Proposed CT Plan and shall not create 

any legal rights, remedies, or claims.513

The provision is identical to the 

corresponding provision in the 2021 CT 

Plan approved by the Commission,514

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comments on 

Section 13.7, and the Commission is 

approving the provision as proposed. 

(h) Counterparts 

Article XIII, Section 13.8 of the 

Proposed CT Plan provides that the 

Members to the Proposed CT Plan may 

execute the Proposed CT Plan 

individually in ‘‘any number of 

counterparts,’’ no one of which need 

contain the signature of all Members.515

Section 13.8 further provides that, as 

many counterparts as shall together 

contain all such signatures shall 

constitute one and the same 

instrument.516

Section 13.8 is identical to the 

corresponding provision in the 2021 CT 

Plan approved by the Commission,517

and was not required to be modified by 

the Amended Governance Order. The 

Commission received no comments on 

Section 13.8, and the Commission is 

approving the provision as proposed. 

(i) Headings 

Section 13.9 of the Proposed CT Plan 

provides that CT Plan headings are for 

‘‘reference purposes only and shall not 

be deemed to be a part of this 

Agreement or to affect the meaning or 

interpretation of any provisions of this 

Agreement.’’ 518 The provision is 

identical to the corresponding provision 

in the 2021 CT Plan approved by the 

Commission,519 and was not required to 

be modified by Amended Governance 

Order. The Commission received no 

comments on Section 13.9, and the 

Commission is approving the provision 

as proposed. 

(j) Validity and Severability 

Section 13.10 of the Proposed CT Plan 

provides that any determination that 

any provision of the Proposed CT Plan 

is invalid or unenforceable shall not 

affect the validity or enforceability of 

any other provisions of the Proposed CT 

Plan, all of which shall remain in full 

force and effect.520 Section 13.10 is 

identical to the corresponding provision 

in the 2021 CT Plan approved by the 

Commission,521 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments on Section 13.10, 


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522See Article XIII, Section 13.11 of the Proposed 

CT Plan. 

523See 2021 Approval Order, supra note 19, 86 

FR at 44207. 

524See Article XIII, Section 13.12 of the Proposed 

CT Plan. 

525See 2021 Approval Order, supra note 19, 86 

FR at 44207. 

526See Article XIV, Section 14.1 of the Proposed 

CT Plan. 

527See id. 

528See id. 

529See id. 

530See id. 

531See OIP, supra note 6, 89 FR at 33413. 

532See id. 

533See ICI Letter, supra note 109, at 3–4. 

534MEMX Letter, supra note 109, at 5–7. 

535See id. 

536See Article XIV, Section 14.1 of the Proposed 

CT Plan (as approved). 

and the Commission is approving the 

provision as proposed. 

(k) Statutory References 

Article XIII, Section 13.11 of the 

Proposed CT Plan provides that the 

references in the Proposed CT Plan to a 

particular statute or regulation, or a 

provision thereof, ‘‘shall be deemed to 

refer to such statute or regulation, or 

provision thereof, or to any similar or 

superseding statute or regulation, or 

provision thereof, as is from time to 

time in effect.’’ 522 Section 13.11 is 

identical to the corresponding provision 

in the 2021 CT Plan approved by the 

Commission,523 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments on Section 13.11, 

and the Commission is approving the 

provision as proposed. 

(l) Modifications To Be in Writing 

Article XIII, Section 13.12 of the 

Proposed CT Plan provides that the 

Proposed CT Plan constitutes the entire 

understanding of its parties, and that 

any amendment, modification, or 

alteration of the Proposed CT Plan must 

in writing and must be adopted in 

accordance with the provisions of 

Section 13.5.524 Section 13.12 is 

identical to the corresponding provision 

in the 2021 CT Plan approved by the 

Commission 525 and was not required to 

be modified by the Amended 

Governance Order. The Commission 

received no comments on Section 13.12, 

and the Commission is approving the 

provision as proposed. 

15. Implementation 

Article XIV of the Proposed CT Plan 

governs the proposed schedule for 

implementation of the Proposed CT 

Plan. 

(a) Implementation Timeline 

Section 14.1 provides that the steps to 

implement the Proposed CT Plan, and 

the timelines for completing these 

various steps, are set forth in Exhibit 

F.526 The proposed timelines would 

begin when the Proposed CT Plan is 

approved by the Commission and that 

approval is published on the 

Commission’s website.527 Section 14.1 

further provides (1) that the steps to 

implement the plan have been 

organized into multiple workstreams, 

some of which can be performed in 

parallel, and others which have 

dependencies that need to be completed 

before they can begin, and (2) that, in 

Exhibit F to the Proposed CT Plan, the 

Company has identified such 

dependencies, some of which are 

outside the control of the Operating 

Committee.528

Furthermore, as proposed, Section 

14.1 provides that, in the event a 

workstream listed in Exhibit F takes 

shorter or, due to factors outside the 

Operating Committee’s reasonable 

control, takes longer than expected, the 

timelines for contingent steps will be 

adjusted accordingly to account for such 

change.529 As proposed in this section, 

any lengthening of the timeline would 

require the affirmative vote of the 

Operating Committee, and must be 

based on a reasonable determination 

that the timeline needs to be 

extended.530 Finally, as proposed, this 

section provides that, in such instances, 

the Operating Committee would be 

required to include any adjustment in 

its written progress report to the 

Commission in accordance with Section 

14.2 of the Proposed CT Plan. 

In the OIP, the Commission sought 

comment on the proposed 

implementation timeline, including, 

among other things, (1) whether any 

elements of the proposed timeline 

should be shortened to ensure that 

implementation of the Proposed CT 

Plan can be achieved within a 

reasonable time, (2) whether the 

proposed implementation schedule’s 

dependencies—the steps that need to be 

completed before other steps can 

begin—are justified or otherwise 

reasonable, and (3) whether certain 

dependencies could be removed or 

modified to accelerate implementation 

of the Proposed CT Plan.531 Finally, the 

Commission sought comment on (1) 

whether the Commission should modify 

the Proposed CT Plan to allow the 

Operating Committee to appoint one or 

more of the current Equity Data Plan 

administrators to serve as interim 

Administrator for the Proposed CT Plan 

pending the selection and onboarding of 

a permanent independent Administrator 

that meets the Amended Governance 

Order’s requirements for the 

independent plan Administrator, (2) the 

advantages or disadvantages associated 

with appointing such an interim 

Administrator, (3) how an interim 

Administrator might affect the 

implementation schedule for the 

Proposed CT Plan, and (4) whether, and, 

if so, how, the implementation schedule 

should be modified, were the 

Commission to modify the Proposed CT 

Plan to permit the appointment of such 

an interim Administrator.532

One commenter states that the 

Commission should consider measures 

to address unwarranted delays because 

the proposed timeline could be 

lengthened by a vote of the Operating 

Committee.533 Another commenter 

states that the provision allowing the 

Operating Committee to extend the 

proposed timeline is a potential source 

of delay and an aspect of the Proposed 

CT Plan that ‘‘leaves much to be 

desired.’’ 534 This commenter states that 

the Commission should take all 

necessary steps to ensure that the 

Proposed CT Plan is implemented as 

expeditiously as possible.535

The Commission agrees that it is not 

appropriate for the Operating 

Committee of the Proposed CT Plan to 

be able to unilaterally modify the 

timeline for implementation by the 

affirmative vote of the Operating 

Committee, without being required to 

file a proposed amendment with the 

Commission. Such a provision could 

permit the implementation deadlines to 

be delayed indefinitely without a clear 

mechanism for enforcement of the 

implementation schedule. Accordingly, 

it is appropriate to modify the Proposed 

CT Plan to remove from proposed 

Section 14.1 of the Proposed CT Plan 

the ability of the Operating Committee 

to unilaterally extend the 

implementation timeline.536 The 

removal of this provision, however, 

would still permit the Operating 

Committee to file an amendment to the 

Plan with the Commission pursuant to 

Rule 608 of Regulation NMS or to 

otherwise seek exemptive relief from the 

Commission to extend any of the 

implementation deadlines. 

Additionally, as discussed below, the 

Commission is substantially simplifying 

the implementation schedule by setting 

deadlines for the most significant 

milestones, rather than for each step of 

the implementation schedule, thereby 

reducing the likelihood that the SROs 

would not be able to comply with the 

implementation schedule in the event of 

delays in the completion of any of the 

over 30 discrete activities that were set 


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537See 2021 Approval Order, supra note 19, 86 

FR 44145–46 (citing Governance Order, supra note 

11, 85 FR at 28703–05, 28711). 

538See dataBP Letter, supra note 392, at 3–4. 

539See id. 

540See id. 

541See id. 

542See MEMX Letter, supra note 109, at 6. 

543See id. at 6, 9. 

544See id. at 6. 

545See id. at 9–10. 

546 Id. at 7–8. 

547 Id. at 9. 

548See SIFMA Letter, supra note 109, at 3. 

549See Article XIV, Section 14.1(b) of the 

Proposed CT Plan (as approved). 

550See Exhibit F to the Proposed CT Plan (as 

proposed). 

551See Article XIV, Section 14.1(c) of the 

Proposed CT Plan (as approved). 

forth in the Proposed CT Plan’s 

implementation schedule. This 

modification is appropriate because it 

balances the need to provide a 

mechanism for adjusting the established 

implementation deadlines in the event 

of delay with the important goal of 

facilitating the timely implementation of 

the Proposed CT Plan, which is ‘‘critical 

to reducing existing redundancies, 

inefficiencies, and inconsistencies in 

the current Equity Data Plans and to 

modernizing plan governance.’’ 537

One commenter supports laying out a 

detailed transition plan as proposed, 

and offers two suggestions for 

improving the proposed transition 

schedule.538 First, this commenter 

supports progressing Workstream 2 

(establishing fees, policies, and data 

subscriber agreements) in parallel with 

selecting and negotiating the contract 

with the independent administrator 

(Workstreams 3 and 4).539 Second, the 

commenter states that Workstreams 5.3, 

5.5, 5.6, and 5.7 (concerning customers 

transition from the legacy plans to the 

Proposed CT Plan) could be completed 

in fewer than the proposed ten months, 

and in as little as six months.540 One 

commenter states that all items in 

Workstream 2 (establishing fees, polices, 

data subscriber agreements) should not 

have to be completed as a condition to 

beginning work on Workstream 5 

(independent administrator commences 

operations).541

One commenter states that the 

proposed 30-month implementation 

period is too long,542 and that the 

Commission should not ‘‘wait for all 

reforms to be ready before any could be 

implemented.’’ 543 This commenter 

states that merely setting an earlier 

deadline or reducing the timeframe for 

completing workstreams, however, 

would be insufficient given the 

potential sources of delay described by 

the SROs.544 According to the 

commenter, making the Operative Date 

contingent on the completion of all 

workstreams in Exhibit F, as proposed, 

would incentivize the three SRO groups 

to create gridlock in the voting process 

and remain responsible for the 

dissemination of consolidated market 

data through the current Equity Data 

Plans.545 This commenter states that 

because ‘‘the selection and onboarding 

of the independent Administrator is 

responsible for the lion’s share of the 

30-month implementation period,’’ the 

Commission should amend the 

Proposed CT Plan ‘‘to allow the 

Operating Committee to select one of 

the two current Administrators of the 

Equity Data Plans as interim 

Administrator until such time as the 

Operating Committee selects and 

onboards a new Administrator that 

meets the Plans requirements for 

independence.’’ 546 This amendment, 

the commenter states, ‘‘would allow the 

Plan to become operative while the 

Operating Committee works towards 

full implementation of all required Plan 

elements.’’ 547 Another commenter 

states that making the Service Level 

Agreement (‘‘SLA’’) terms part of the 

selection process could reduce the time 

for contract negotiations with the new 

Administrator from 4 months to 2 

months.548

The Commission recognizes the 

challenges associated with completing 

the actions required for implementation 

of the Proposed CT Plan and the 

complexity of the endeavor, as 

illustrated by Exhibit F to the Proposed 

CT Plan. And while setting enforceable 

deadlines for the implementation of the 

Proposed CT Plan is necessary for the 

timely achievement of the Operative 

Date, setting enforceable deadlines for 

each of the 30 individual tasks specified 

in Exhibit F is impracticable because the 

failure of the Operating Committee to 

meet the deadline for any of those 

tasks—whether or not the specific 

deadline was critical to the timely 

implementation of the Proposed CT 

Plan—would require the Operating 

Committee either to file a proposed 

amendment with the Commission to 

modify the implementation schedule or 

to seek exemptive relief from the 

Commission. Instead, the detailed 

project-management information 

outlined in Exhibit F would be 

appropriate for, and should be included 

in, the written progress reports required 

by Section 14.2 of the Proposed CT 

Plan, because including such detail in 

the written progress reports would 

provide transparency to the Commission 

and to market participants about the 

progress of implementation without 

requiring that any delay in the 

completion of a subtask creates the need 

for a proposed plan amendment or a 

request for exemptive relief from the 

Commission. 

Accordingly, the Commission is not 

adopting the commenters’ suggestions 

with respect to modifying or otherwise 

reconfiguring the workstreams proposed 

in Exhibit F. Instead, the Commission is 

deleting Exhibit F in its entirety and is 

replacing the text of Section 14.1 with 

a series of fixed deadlines for high-level 

milestones along the implementation 

timelines. The Commission recognizes 

that the SROs have extensive experience 

in operating the existing Equity Data 

Plans, and that they can draw on that 

experience to develop internal 

workstreams reasonably suited to help 

ensure the timely completion of the 

specific actions needed to implement 

the Proposed CT Plan within the 

deadlines specified in Section 14.1 as 

modified and approved by the 

Commission. The modification is 

appropriate because it strikes a balance 

between helping to ensure that 

implementation proceeds in a timely 

manner while providing for flexibility 

in the scheduling of individual 

implementation tasks. 

Accordingly, having considered the 

implementation schedule in Section 

14.1 and Exhibit F of the Proposed CT 

Plan, the Commission is replacing 

Section 14.1 of the Proposed CT Plan as 

proposed with a series of deadlines for 

specific milestones in the 

implementation of the Proposed CT 

Plan. 

First, new paragraph 14.1(a) provides 

that, no later than one month after the 

Effective Date, the Voting 

Representatives shall be determined 

pursuant to Section 4.2 of the Proposed 

CT Plan.549 This timeframe is the same 

as proposed by the SROs in Exhibit F, 

Workstream 1, and therefore does not 

represent, in and of itself, a substantive 

modification of the Proposed CT Plan as 

proposed.550 Moreover, the SROs, who 

have already selected their 

representatives to the operating 

committees of the existing Equity Data 

Plans, and who have extensive 

experience in doing so, should be able 

to select their Voting Representatives to 

the Operating Committee within the 

timeframe provided. 

Second, new paragraph 14.1(b) 

provides that, that no later than three 

months after the Effective Date, the 

Voting Representatives shall select the 

members of the Advisory Committee.551

This three month timeframe is the same 

as proposed by the SROs in Exhibit F, 


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552See Exhibit F to the Proposed CT Plan; Notice, 

supra note 4, 89 FR at 5026–29. 

553See, e.g., Section III(e)(ii) of the CTA Plan; 

Section IV.E.(b) of the UTP Plan. 

554See Article XIV, Section 14.1(d) of the 

Proposed CT Plan (as approved). 

555See Exhibit F to the Proposed CT Plan; Notice, 

supra note 4, 89 FR at 5026–29. 

556 2021 Approval Order, supra note 19, 86 FR at 

44148. 

557See Workstream 2 (‘‘New Fees, Policies, and 

Data Subscriber Agreements’’) of proposed Exhibit 

F to the Proposed CT Plan. 

558See Fidelity Letter, supra note 80, at 4–5. 

559See id. 

560See id. 561 Id. 562See id.; Polygon Letter, supra note 82, at 1. 563See Article IV, Section 4.1(a)(iii) and (a)(v) of 

the Proposed CT Plan (as approved). 

564 15 U.S.C. 78k–1(c)(1)(D). 

565 17 CFR 242.603(a). 

566 17 CFR 242.603(a)(1). 

567 17 CFR 242.608. 

568See Exhibit F to the Proposed CT Plan; Notice, 

supra note 4, 89 FR at 5026–29. 

Workstream 1.552 Moreover, the SROs 

have extensive experience in selecting 

members of the advisory committee of 

the Equity Data Plans such that they 

should be able to finalize all actions to 

select members of the Advisory 

Committee within the timeframe 

provided.553

Third, new paragraph 14.1(c) provides 

that, no later than 12 months after the 

Effective Date, the Operating Committee 

shall file with the Commission proposed 

Fees charged to Vendors and 

Subscribers for Transaction Reports and 

Quotation Information in Eligible 

Securities.554 This 12-month timeframe 

is the same as proposed by the SROs in 

Exhibit F, Workstream 1.555 Moreover, 

given the importance of market data fees 

to both SROs and other market 

participants, the determination of 

Proposed CT Plan fees will be a critical 

priority for both SROs and members of 

the Advisory Committee. As stated in 

the 2021 Approval Order, ‘‘[a]ssessing 

fees to subscribers for access to the SIP 

data is one of the fundamental 

responsibilities of the Operating 

Committee and one of the issues most 

consequential to both SROs and other 

market participants.’’ 556 Additionally, 

through its extensive experience 

overseeing the Equity Data Plans and 

the national market system, the 

Commission has observed that the SROs 

have detailed and substantial preexisting knowledge and experience with 

the content and pricing of the equity 

data products that are disseminated 

under the current centralized SIP 

model. 

The Commission received several 

comments addressing the substance of 

the fee amendment required to be filed 

by the Proposed CT Plan.557 One 

commenter states that the Commission 

should ensure that the fees proposed for 

the Proposed CT Plan are fair and 

reasonable.558 This commenter states 

that the Commission should encourage 

the Proposed CT Plan to evaluate new 

or alternative fee models for 

consolidated equity market data.559

According to this commenter, data costs 

are currently charged to retail customers 

on a per investor basis (based on 

whether they are acting in a nonprofessional or professional capacity) 

and to broker-dealers via a myriad of 

additional fees (e.g., display fees, nondisplay fees, access fees, etc.) for use of 

this exact same data.560 The commenter 

states that this ‘‘complex and often 

opaque pricing model is completely 

inconsistent with the cost to the SROs 

to produce the data (which does not 

scale on a per investor basis) and is 

highly biased towards the retail 

investor.’’ 561

The Commission received comments 

expressing concern about the fees 

required to be proposed for the 

Proposed CT Plan, as well as suggesting 

that the Commission clarify regulatory 

standards or encourage alternative 

models for such fee-related filings in the 

Proposed CT Plan.562 With respect to 

the development of fees for equity 

market data to be disseminated by the 

Proposed CT Plan more broadly, Article 

IV, Section 4.1 of the Proposed CT Plan 

charges the Operating Committee with 

‘‘developing fair and reasonable fees for 

equity market data,’’ as well as with 

‘‘assessing the marketplace for equity 

data products and ensuring that CT Plan 

feeds are priced in a manner that is fair 

and reasonable, and designed to ensure 

the widespread availability of CT Feeds 

data to investors and market 

participants.’’ 563 And fees for data 

under the Proposed CT Plan will be 

established at a later date as proposed 

amendments, and any such fees will be 

assessed against the statutory and 

regulatory standards that apply to fees 

proposed by the effective national 

market system plan(s), including 

Sections 11A(c)(1)(D) of the Exchange 

Act 564 and Rule 603(a) under 

Regulation NMS.565 The proposed fees 

must be fair and reasonable.566 They 

must also be filed with the Commission 

pursuant to Rule 608 567 and would be 

published for public comment and 

thereafter must be approved by the 

Commission before becoming effective. 

Therefore, the requirement that fees be 

fair and reasonable need not be restated 

or otherwise clarified in the Proposed 

CT Plan. 

Fourth, new paragraph Section 

14.1(d) would require that, no later than 

30 months after the Effective Date, or no 

later than 90 days after the Commission 

has approved Fees charged to Vendors 

and Subscribers for Transaction Reports 

and Quotation Information in Eligible 

Securities, whichever date is later, the 

Proposed CT Plan shall conduct the 

Processor and Administrator functions 

related to the public dissemination of 

real-time consolidated Transaction 

Reports and Quotation Information for 

Eligible Securities. The 30-month 

timeframe is the same as proposed by 

the SROs in Exhibit F, Workstream 1,568

and the text of this new paragraph 

further recognizes that approval of fees 

by the Commission is a necessary step 

toward implementation of the Proposed 

CT Plan. Providing a minimum of 90 

days after Commission approval of the 

required fees is appropriate because the 

provision could not serve to shorten the 

30-month provision for implementing 

the other aspects of the Proposed CT 

Plan and because, once implementation 

of those other aspects is complete, 90 

days’ notice should be sufficient notice 

to market participants of the upcoming 

change in the dissemination of 

consolidated market data. Additionally, 

the Commission is modifying the 

Proposed CT Plan to permit the 

Operating Committee to appoint one or 

more of the current Equity Data Plan 

administrators to serve as Interim 

Administrator(s) pending the selection 

and onboarding of the Administrator, 

which, because the selection process for 

the Administrator would take 26 of the 

30-months in total required for the 

Proposed CT Plan to become operative, 

should reduce the likelihood that the 

process to select and onboard the 

independent Administrator would delay 

the Operative Date. 

Fifth, new paragraph 14.1(e) would 

provide that, no later than 30 months 

after the Effective Date, the 

Administrator of the Proposed CT Plan, 

consistent with the provisions of 

Section 6.2 and Section 6.4 of the 

Proposed CT Plan, shall be selected. 

This modification, in conjunction with 

the modification to the Proposed CT 

Plan to add new Section 6.5 (Interim 

Administrator(s)), is appropriate to 

facilitate the full and timely 

implementation of the Proposed CT 

Plan by permitting crucial reforms to the 

governance of the NMS plans for 

consolidated equity market data without 

delaying the process until the lengthiest 

implementation component can be 

completed. 

Several commenters support close 

Commission oversight of the Proposed 


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569See Fidelity Letter, supra note 80, at 4; ICI 

Letter, supra note 109, at 3–4; Polygon Letter, supra 

note 82, at 2; SIFMA Letter, supra note 109, at 4; 

MEMX Letter, supra note 109, at 7. 

570See Fidelity Letter, supra note 80, at 3–4. 

571Polygon Letter, supra note 82, at 2. 

572See Article XIV, Section 14.2 of the Proposed 

CT Plan. 

573See Article XIV, Section 14.2(a) of the 

Proposed CT Plan. 

574See Notice, supra note 4, 89 FR at 5027–29 

(Exhibit F of the Proposed CT Plan). 

575See Article XIV, Section 14.2(b) of the 

Proposed CT Plan. 

576See Fidelity Letter, supra note 80, at 4. 

577See id. 

578See SIFMA Letter, supra note 109, at 3. 

579See ICI Letter, supra note 109, at 3–4. 

580See Polygon Letter, supra note 82, at 2. 

581See ICI Letter, supra note 109, at 3, n.12. 

582See 2021 Approval Order, supra note 19, 86 

FR at 44149 (‘‘The requirement to provide progress 

reports in writing to the Commission on a quarterly 

basis and to make them publicly available is 

designed to help ensure that affected market 

participants are informed about the status of the 

steps that are taken to implement the CT Plan 

within the prescribed time periods. Providing 

periodic updates to the Commission should also 

facilitate holding the Operating Committee 

accountable for its progress in completing the 

interim steps towards satisfying the longer-range 

requirements.’’). 

583See id. (‘‘The Commission believes that this 

requirement should not be overly burdensome to 

the Operating Committee or distract from its 

performance of the specified actions required by the 

CT Plan, because the quarterly reports would 

essentially reflect the analysis the Operating 

Committee would need to undertake in any event 

for its diligent oversight of the implementation 

process.’’). 

584See ICI Letter, supra note 109, at 3, n.12. 

585See id. at 3–4. 

CT Plan implementation process.569

One commenter states that, consistent 

with Rule 608, the Commission needs to 

have strong oversight over the 

implementation process for the 

Proposed CT Plan because the SROs 

have resisted changes to the Equity Data 

Plans, and the Proposed CT Plan does 

not include financial penalties if the 

SROs’ implementation of the Proposed 

CT Plan does not proceed as 

anticipated.570 Another commenter 

states that the Commission should assert 

‘‘special oversight’’ over the process, 

and urges the Commission to hold 

member SROs more accountable.571

Another commenter states that the 

Commission should focus on robust 

oversight of the Operating Committee to 

ensure that the Proposed CT Plan is 

implemented as expeditiously as 

possible. 

With respect to the comment 

suggesting that the Commission should 

exercise special or strong oversight over 

the Proposed CT Plan’s implementation 

process, as well as the comment stating 

that the Proposed CT Plan does not 

provide for financial penalties in the 

event implementation of the plan does 

not proceed as anticipated, the 

modifications discussed above enhance 

the Commission’s oversight over the 

implementation process by removing 

the ability of the Operating Committee 

to unilaterally extend the 

implementation timeline and by 

providing enforceable deadlines for the 

achievement of key milestones in the 

process. Additionally, the written 

progress reports required by Section 

14.2 of the Proposed CT Plan will assist 

with the Commission’s oversight of the 

plan and its requirements, including 

oversight of the progress made toward 

completing each of the steps required to 

implement the Proposed CT Plan. The 

written reports will also be available to 

the Equity Data Plans’ websites, which 

should provide sufficient transparency 

and accountability with respect to 

implementation progress of the 

Proposed CT Plan. 

For the foregoing reasons, the 

Commission is approving Section 14.1 

of the Proposed CT Plan as modified. 

(b) Written Progress Reports 

Section 14.2 of the Proposed CT Plan 

sets forth requirements for certain 

written reports to the Commission.572

Specifically, Section 14.2(a) provides 

that beginning three months after the 

formation of the Operating Committee 

and continuing every three months until 

the Operative Date, the Operating 

Committee will provide written progress 

reports to the Commission.573 Section 

14.2(b) provides that such written 

progress reports will contain the actions 

undertaken to date by the Operating 

Committee and a detailed description of 

the progress made toward completing 

each of the steps listed in Exhibit F to 

the Proposed CT Plan.574 Finally, this 

section requires that the Operating 

Committee make such progress reports 

available on the CQ Plan and CTA 

Plan’s and UTP Plan’s websites, and on 

the Proposed CT Plan’s website, when 

available after the selection of the 

Administrator.575

One commenter supports the 

requirement that the Proposed CT Plan 

Operating Committee provide written 

progress reports to the Commission 

every three months, beginning from the 

formation of the Operating Committee 

until the Operative Date.576 This 

commenter also supports the 

requirement to publish the required 

progress reports on plan websites, 

including those of the Equity Data 

Plans.577 Another commenter suggests 

making clear that progress reports 

provided to the Commission under this 

section are also required to be made 

publicly available at the same time as 

reports are provided to the 

Commission.578 One commenter states 

that the Commission should closely 

monitor the Operating Committee’s 

progress, including carefully reviewing 

the public written progress reports that 

must be submitted to the 

Commission.579 Another commenter 

supports greater transparency during 

implementation of the Proposed CT 

Plan.580 One commenter states that 

Section 14.2 should be revised to clarify 

that posting of progress reports on the 

Equity Data Plans’ websites must occur 

prior to the selection of the independent 

administrator, rather than after a new 

administrator is selected, as proposed, 

so as to avoid unnecessary delay and 

ensure that this provision is consistent 

with the Amended Governance 

Order.581

The Commission agrees that ensuring 

transparency with respect to the 

progress made to implement the 

Proposed CT Plan will be helpful to 

market participants because such 

reports provide market participants 

visibility into the actions undertaken 

and the progress made toward 

completing each of the actions required 

for implementation of the Proposed CT 

Plan.582 For the reasons set out in the 

2021 Approval Order, the required 

frequency of the progress reports, one 

report every three months, should be 

sufficient to identify for the Commission 

any significant delays in 

implementation without imposing 

unnecessary burdens on efforts to 

implement the Proposed CT Plan.583

The Commission agrees with 

commenters, however, that Section 14.2 

should be clearer with respect to 

requirements governing the publication 

of progress reports.584 The Commission 

is therefore modifying Section 14.2 to 

clarify that publication of the required 

progress reports must be promptly made 

on the CTA Plan, the CQ Plan, and the 

UTP Plan websites ‘‘until such time as 

the Plan’s website becomes available.’’ 

This modification is appropriate to 

provide greater clarity with respect to 

requirements for publication of the 

required progress reports, including 

those concerning their timing. Requiring 

that such progress reports be made 

promptly available to the public on plan 

websites, as modified, is appropriate to 

help ensure that affected market 

participants are timely informed 

regarding the filing of such reports. 

The Commission agrees that close 

monitoring of progress towards the 

implementation of the Proposed CT 

Plan will be important.585 The 


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586See 2021 Approval Order, supra note 19, 86 

FR at 44149 (‘‘The Commission believes that this 

requirement should not be overly burdensome to 

the Operating Committee or distract from its 

performance of the specified actions required by the 

CT Plan, because the quarterly reports would 

essentially reflect the analysis the Operating 

Committee would need to undertake in any event 

for its diligent oversight of the implementation 

process.’’). 

587See Article XIV, Section 14.3(a) of the 

Proposed CT Plan. 

588See Article XIV, Section 14.3(b) of the 

Proposed CT Plan. 

589See id. 

590See 2021 Approval Order, supra note 19, 86 

FR at 44140. 

591 17 CFR 242.614(e)(1); see also MDI Rules 

Release, supra note 461, 86 FR at 18699. 

592MDI Rules Release, supra note 461, 86 FR at 

18699. 

593See Consolidated Tape Association; Order 

Disapproving the Thirty-Seventh Substantive 

Amendment to the Second Restatement of the CTA 

Plan and the Twenty-Eighth Substantive 

Amendment to the Restated CQ Plan, Securities 

Exchange Act Release No. 95850 (Sept. 21, 2022), 

87 FR 58560 (Sept. 27, 2022) (File No. SR–CTA/ 

CQ–2021–02); Joint Industry Plan; Order 

Disapproving the Fifty-First Amendment to the 

Joint Self-Regulatory Organization Plan Governing 

the Collection, Consolidation and Dissemination of 

Quotation and Transaction Information for NasdaqListed Securities Traded on Exchanges on an 

Unlisted Trading Privileges Basis, Securities 

Exchange Act Release No. 95848 (Sept. 21, 2022), 

87 FR 58544 (Sept. 27, 2022) (File No. S7–24–89). 

594See Consolidated Tape Association; Order 

Disapproving the Twenty-Fifth Charges 

Amendment to the Second Restatement of the CTA 

Plan and Sixteenth Charges Amendment to the 

Restated CQ Plan, Securities Exchange Act Release 

No. 95851 (Sept. 21, 2022), 87 FR 58613 (Sept. 27, 

2022) (File No. SR–CTA/CQ–2021–03); Joint 

Industry Plan; Order Disapproving the Fifty-Second 

Amendment to the Joint Self-Regulatory 

Organization Plan Governing the Collection, 

Consolidation and Dissemination of Quotation and 

Transaction Information for Nasdaq-Listed 

Securities Traded on Exchanges on an Unlisted 

Trading Privileges Basis, Securities Exchange Act 

Release No. 95849 (Sept. 21, 2022), 87 FR 58592 

(Sept. 27, 2022) (File No. S7–24–89). 

595See MEMX Letter, supra note 109, at 15–20. 

requirement to provide progress reports 

in writing to the Commission on a 

quarterly basis and to make them 

publicly available is designed to not 

only help ensure that affected market 

participants are informed about the 

status of the steps that are taken to 

implement the Proposed CT Plan within 

the prescribed time periods, but also to 

provide the Commission with periodic 

updates, which should facilitate holding 

the Operating Committee accountable 

for its progress in completing the 

interim steps towards satisfying the 

longer-range requirements. As discussed 

above, the required frequency of the 

progress reports should be sufficient to 

identify for the Commission any 

significant delays in implementation 

without imposing unnecessary burdens 

on efforts to implement the Proposed CT 

Plan.586 Thus, the required quarterly 

progress reports and the involvement of 

the Operating Committee, as well as of 

members of the Advisory Committee, 

should be sufficient to help ensure 

timely implementation of the Proposed 

CT Plan. 

Finally, the Commission is modifying 

Section 14.2(b) to replace the phrase 

‘‘steps listed in Exhibit F’’ with the 

phrase ‘‘steps required to implement the 

Plan.’’ This modification is appropriate 

to conform Section 14.2(b) with 

Commission modifications to Section 

XIV of the Proposed CT Plan governing 

its implementation. 

For the foregoing reasons, the 

Commission is approving Section 14.2 

as modified. 

(c) Transition From CQ Plan, CTA Plan, 

and UTP Plan 

Article XIV, Section 14.3 of the 

Proposed CT Plan addresses the 

transition from the current Equity Data 

Plans to the Proposed CT Plan. Section 

14.3(a) provides that until the Operative 

Date, the Members will continue to 

operate pursuant to the CQ Plan, CTA 

Plan, and UTP Plan with respect to the 

public dissemination of real-time 

consolidated equity market data for 

Eligible Securities rather than the 

Proposed CT Plan.587 And Section 

14.3(b) provides that, as of the Operative 

Date, the Members shall conduct, 

through the Company, the Processor and 

Administrator functions related to the 

public dissemination of real-time 

consolidated equity market data for 

Eligible Securities required by the 

Commission to be performed by the 

Members under the Exchange Act.588

Finally, paragraph (b) of Section 14.3 

further provides that the Members must 

file an amendment to the CQ Plan, CTA 

Plan, and UTP Plan to cease their 

operation as of the Operative Date.589

Section 14.3 is substantively similar 

to the corresponding provisions of the 

2021 CT Plan approved by the 

Commission,590 with the exception of 

the added requirement that, as of the 

Operative Date, the Members shall file 

an amendment to the CQ Plan, the CTA 

Plan, and the UTP Plan to cease those 

plans’ operations. This addition is 

appropriate as it clarifies the steps to be 

taken to complete the transition from 

the existing Equity Data Plans to the 

Proposed CT Plan. The Commission is 

also modifying the text of paragraph 

14.3(b) to add the words ‘‘and the rules 

and regulations thereunder’’ to the end 

of the phrase regarding the functions 

‘‘required by the Commission to be 

performed by the Members under the 

Exchange Act.’’ This modification is 

appropriate because the SROs are also 

subject to certain requirements with 

respect to NMS plans, including the 

Proposed CT Plan under the rules and 

regulations adopted by the Commission 

under the Exchange Act. The 

Commission received no comments 

addressing Section 14.3, and the 

Commission is approving Section 14.3 

of the Proposed CT Plan as modified. 

(d) Implementation of the MDI Rules 

Rule 614(e)(1) of the MDI Rules 

directed the participants of the effective 

national market system plan(s) for NMS 

stocks to file an amendment pursuant to 

Rule 608 of Regulation NMS to conform 

the effective national market system 

plan(s) for NMS stocks to reflect the 

provision of information with respect to 

quotations for and transactions in NMS 

stocks that is necessary to generate 

consolidated market data by the 

national securities exchange and 

national securities association 

participants to competing consolidators 

and self-aggregators.591 The MDI Rules 

also required that the amendment to the 

effective national market system plan(s) 

required under Rule 614(e)(1) ‘‘must 

include the fees proposed by the plan(s) 

for data underlying consolidated market 

data.’’ 592

On November 5, 2021, the SROs filed 

separate amendments of the Equity Data 

Plans pursuant to these requirements, 

and the Commission on September 22, 

2022, disapproved the proposed 

amendments, finding, in the case of the 

amendments relating to the expanded 

definition of ‘‘core data’’ and the 

introduction of competing 

consolidators, that the amendments did 

not conform the Equity Data Plans to 

reflect the provision of information with 

respect to quotations for and 

transactions in NMS stocks that is 

necessary to generate consolidated 

market data by the SROs to competing 

consolidators and self-aggregators,593

and, in the case of the associated fee 

amendments, that the amendments did 

not demonstrate that the proposed fees 

were fair, reasonable, and not 

unreasonably discriminatory.594

One commenter states that the 

Proposed CT Plan should be amended to 

require that the Proposed CT Plan 

assume responsibility for all core data, 

as defined in Rule 600(b)(21) of 

Regulation NMS, and not only the 

subset of core data that is currently 

made available by the Equity Data 

Pans.595 This commenter states that the 

‘‘Amended [Governance] Order and the 

infrastructure rule appear to require that 

the Plan include provisions that are 

consistent with the revised definition of 

‘core data’ in Rule 600(b)(21) of 


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596 Id. at 16–17 (emphasis in original). 

597See id. at 17. 

598 Id. 

599See SIFMA Letter, supra note 109, at 3–4. 

600See ICI Letter, supra note 109, at 4. 

601See Fidelity Letter, supra note 80, at 5–6; 

SIFMA Letter, supra note 109, at 3–4; ICI Letter, 

supra note 109, at 4. 

602See Fidelity Letter, supra note 80, at 5–6. 

603See SIFMA Letter, supra note 109, at 3–4. 

604See ICI Letter, supra note 109, at 4. 

605See SIFMA Letter, supra note 109, at 3. 606 17 CFR 242.614(e)(1). 607See supra note 593 and accompanying text. 608Securities Exchange Act Release No. 95848, 

supra note 593, 87 FR at 58545; Securities Exchange 

Act Release No. 95850, supra note 593, 87 FR at 

58561. 

609 Id. 

610See Regulation NMS Amendments, supra note 

159, 89 FR 81625. 

611See MDI Rules Release, supra note 461, 86 FR 

at 18699 (‘‘The first key milestone [in the 

implementation of the MDI Rules] will be the 

amendment to the effective national market system 

plan(s) required under Rule 614(e), which must 

include the fees proposed by the plan(s) for data 

underlying consolidated market data.’’). On Nov. 5, 

2021, the SROs filed proposed fee amendments 

pursuant to these requirements, but the 

Commission on Sept. 22, 2022, disapproved the 

amendments because they did not demonstrate that 

the proposed fees were fair, reasonable, and not 

unreasonably discriminatory. See Consolidated 

Tape Association; Order Disapproving the TwentyFifth Charges Amendment to the Second 

Restatement of the CTA Plan and Sixteenth Charges 

Amendment to the Restated CQ Plan, Securities 

Exchange Act Release No. 95851 (Sept. 21, 2022), 

87 FR 58613 (Sept. 27, 2022) (File No. SR–CTA/ 

CQ–2021–03); Joint Industry Plan; Order 

Disapproving the Fifty-Second Amendment to the 

Joint Self-Regulatory Organization Plan Governing 

the Collection, Consolidation and Dissemination of 

Quotation and Transaction Information for NasdaqListed Securities Traded on Exchanges on an 

Unlisted Trading Privileges Basis, Securities 

Exchange Act Release No. 95849 (Sept. 21, 2022), 

87 FR 58592 (Sept. 27, 2022) (File No. S7–24–89). 

612See Databento Letter, supra note 365, at 3. 

613See id. 

Regulation NMS,’’ 596 which would 

include data elements in addition to 

transaction reports and quotation 

information.597 This commenter further 

states that, ‘‘by contrast, Section 4.1 of 

the [Proposed CT] Plan replaces the 

broad reference to ‘core data’ in the 

Amended [Governance] Order with a 

significantly narrower reference’’ to the 

Operating Committee’s responsibilities 

with respect to Transaction Reports and 

Quotation Information in Eligible 

Security, which does not include all 

elements of ‘‘core data’’ as defined in 

Rule 600(b)(21) and is ‘‘flatly 

inconsistent with the Amended Order 

and the infrastructure rule.’’ 598

One commenter states that the 

Commission should clarify in this order 

its expectations with respect to 

establishing a credible plan for 

implementing the MDI Rules.599

Another commenter states that the 

Commission should require the SROs in 

the Proposed CT Plan to address other 

non-fee aspects prescribed in the MDI 

Rules, as this would address the current 

uncertainty as to when the current 

Operating Committee will submit 

revised proposals for the Commission’s 

approval.600

Several commenters suggest that the 

Commission address, whether in the 

Proposed CT Plan or in the order 

approving it, the fee proposals to be 

filed with the Commission under the 

MDI Rules.601 One commenter states 

that the Commission should require the 

SROs to act on the fees for data to be 

provided under the MDI Rules because, 

without approval of such fee filing, a 

competitive market for consolidated 

market data cannot begin.602 One 

commenter suggests that the 

Commission clarify, in the order 

approving the Proposed CT Plan, its 

expectations with respect to the timing 

for the SROs to propose fees for 

enhanced core equity market data to be 

distributed under the MDI Rules.603

Another commenter states that the 

Commission should require the SROs to 

re-file revised plan amendments setting 

the fees for the expanded core data 

elements to address the current 

uncertainty as to when the current 

Operating Committee will submit 

revised proposals.604

Another commenter seeks 

clarification with respect to whether the 

fees under the Proposed CT Plan would 

be for the equity market data currently 

distributed under the Equity Market 

Data Plans or for the enhanced core data 

to be distributed under the 

Commission’s MDI Rules.605

The Commission recognizes that the 

full implementation of the revised 

governance structure of the Proposed CT 

Plan and of the MDI Rules must be 

appropriately sequenced and that an 

important step toward full 

implementation of these initiatives 

should be the implementation of the 

new governance structure of the 

Proposed CT Plan. The immediate 

implementation of the MDI Rules 

through the Proposed CT Plan would be 

impracticable, because it would require 

simultaneous implementation of both a 

new governance structure and the 

provisions of the MDI Rules, and the 

immediate implementation of the MDI 

Rules through the existing Equity Data 

Plans does not make sense, given that 

those plans are to be phased out of 

operation in favor of the Proposed CT 

Plan. Therefore, the Commission is not 

modifying the Proposed CT Plan to 

require the dissemination of ‘‘core data’’ 

as defined in the MDI Rules. 

The SROs, however, remain under the 

obligation imposed by Rule 614(e) of 

Regulation NMS to file an amendment 

‘‘[c]onforming the effective national 

market system plan(s) for NMS stocks to 

reflect provision of information with 

respect to quotations for and 

transactions in NMS stocks that is 

necessary to generate consolidated 

market data by the national securities 

exchange and national securities 

association participants to competing 

consolidators and self-aggregators.’’ 606

Although, as described above,607 the 

SROs previously filed proposed 

amendments to the Equity Data Plans 

under Rule 614(e), the Commission 

disapproved those proposed 

amendments, finding that the proposed 

amendments ‘‘do not comply with Rule 

614(e)(1) because they do not conform 

the Plans to reflect the provision of 

information with respect to quotations 

for and transactions in NMS stocks that 

is necessary to generate consolidated 

market data by the SROs to competing 

consolidators and self-aggregators.’’ 608

Because the previously filed and 

disapproved amendments were 

‘‘inconsistent with the MDI Rules, 

specifically Rule 614(e),’’ 609 the 

participants to the effective national 

market system plan(s) will need to 

develop and file new proposed 

amendments pursuant to Rule 608,610

and—given that the approved CT Plan 

will, when fully implemented, replace 

the Equity Data Plans—it is the 

Commission’s expectation that the SROs 

will file these proposed amendments to 

the approved CT Plan. The proposed 

amendments would also need to include 

the fees proposed for data underlying 

consolidated market data.611

(e) Consideration of Other Actions 

One commenter states that the 

Commission should consider ways of 

expediting implementation of the MDI 

Rules, including through the use of 

exchange proprietary data feeds.612

Specifically, this commenter states that 

the Commission (or the SROs on their 

initiative) could allow market data 

vendors, who would register with the 

Commission, to use exchange 

proprietary market data feeds to 

generate consolidated market data 

pursuant to the MDI Rules on a 

temporary basis until the fee 

arrangements and related infrastructure 

for the Proposed CT Plan are finalized. 

Otherwise, this commenter states that 

market participants would have to wait 

over two and a half years before the 

Commission’s MDI Rules are 

implemented, even though the technical 

ability to actualize those rules already 

exists.613 This commenter further states 

that a top concern when implementing 


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614See id. at 2. 

615See id. 

616 Id. at 2. 

617 Id. 

618See Data Boiler Letter, supra note 208, at 8. 

619 Id. at 2–8. 

620See id. 

621 Id. 

622See id. at 6–8. 

623 Data Boiler Letter, supra note 208, at 6–8. 

624 Id. at 6–8. 

625See Polygon Letter, supra note 82, at 1. 

626 Governance Order, supra note 11, 85 FR at 

28707 (citing to Securities Exchange Act Release 

No. 87906 (Jan. 8, 2020), 85 FR 2164, 2173 (Jan. 14, 

2020) (File No. 4–757) (emphasis in original; 

citations omitted)). 

627See Governance Order, supra note 11, 85 FR 

at 28707. 

628See id. 

629See Polygon Letter, supra note 82, at 1. 

630See Governance Order, supra note 11, 85 FR 

at 28707. 

631 15 U.S.C. 78k–1. 

632 17 CFR 242.608. 

633 15 U.S.C. 78k–1. 

the Commission’s MDI Rules should be 

addressing certain onboarding 

paperwork and reporting processes.614

This commenter states that end users of 

consolidated market data should be 

required to contract with the competing 

consolidator of their choice, rather than 

with the Plan Administrator.615 To 

compensate the SROs for the loss of 

such downstream fee revenues, the 

commenter states that it would support 

a potential revenue sharing agreement, 

such as one whereby SROs would 

receive a portion of the competing 

consolidator’s revenue.616 The 

commenter further states that that 

consolidated market data should be sold 

to competing consolidators free and 

clear of downstream fees, such as device 

fees or non-display fees. Otherwise 

competing consolidators would be 

reduced to ‘‘mere fee collectors’’ for the 

plan, with little incentive for operating 

as such.617

One commenter suggests rejecting the 

Proposed CT Plan and revisiting the 

MDI Rules.618 This commenter states 

that the MDI Rules and the 

decentralized consolidator model 

‘‘undermined the latency issue and 

skewed towards the interests of 

subscribers and proprietary products’’ 

because users of SIPs or competing 

consolidators have an extra hop latency 

disadvantage that would affect demand 

of the new single consolidated tape.619

The commenter states that due to 

conflicting interests in connection with 

the sale of proprietary products, it is not 

in the exchanges’ interest to ensure that 

the consolidated tape feeds are 

delivered timely, without latency, and 

that they have no interest in ensuring 

that the data sent to the SIP, or 

eventually competing consolidator, is 

published in sync with their proprietary 

products.620 According to this 

commenter, ‘‘[w]ithout a secured and 

synchronized start line,’’ competing 

consolidators will never be a reasonable 

compromise, if not a close substitute, to 

compete with proprietary products.621

This commenter states that the 

Commission should facilitate the 

establishment of the NMS in accordance 

with and in furtherance of Congress’s 

objectives.622 To that end, this 

commenter suggests that the 

Commission: (1) disapprove the 

Proposed CT Plan and ‘‘ditch regulatory 

price control through MDIR and/or the 

CT Plan;’’ (2) mandate that the 

availability of market data across SIPs 

and competing consolidators and 

proprietary data fees be secured and 

synchronized in accordance with an 

atomic clock; (3) require market and 

data redistributors to maintain a 

connectivity disparity ratio between the 

fastest proprietary products and the 

slowest mass market product (<2.5 to 4 

times) to ensure consolidated market 

data evolves along with the ecosystem; 

(4) affirm that data ownership rights 

belong to content creators; (5) prohibit 

market centers from offering any 

proprietary products ‘‘that the 

maximum capacity cannot be 

concurrently used by at least 20% of all 

market participants,’’ and require that 

the offering of proprietary products 

must be ‘‘accompanied by at least one 

mass market product,’’ such as the SIPs 

or competing consolidator, that is 

‘‘available and affordable by 80% of all 

market participants;’’ (6) ensure that the 

hierarchical pricing of proprietary 

products be in proportion with the 

performance improvement over mass 

market products, and that proprietary 

product pricing be transparent and 

publicly disclosed; and (7) introduce 

price gouging rules in times of market 

volatility.623

With respect to the comment 

recommending disapproval of the 

Proposed CT Plan,624 the purpose of the 

Proposed CT Plan is to facilitate the 

collection and dissemination of core 

data so that the public has ready access 

to a comprehensive, accurate, and 

reliable source of information for the 

prices and volume of any NMS stock at 

any time during the trading day. With 

the modifications approved by the 

Commission, as set forth in this order, 

the Proposed CT Plan is reasonably 

designed to achieve these goals. 

Therefore, disapproval of the Proposed 

CT Plan would not ensure the prompt, 

accurate, reliable, and fair collection 

processing, distribution, or the 

publication of information with respect 

to NMS securities in the public interest. 

With respect to comments stating that 

the Proposed CT Plan seems to 

perpetuate the status quo of the Equity 

Data Plans,625 and as the Commission 

stated in the Governance Order, 

addressing issues with the current 

governance structure of the Equity Data 

Plans is ‘‘an important first step in 

responding to concerns about the 

consolidated data feed.’’ 626 The 

Commission recognizes that the 

inadequacies in the governance model 

of the Equity Data Plans that the 

Proposed CT Plan is designed to address 

may not be the sole cause of broader 

concerns about the consolidated feed.627

As the Commission stated in the 

Governance Order, however, the 

governance structure of the Equity Data 

Plans contributes significantly to the 

broader concerns about the consolidated 

data feed.628 Thus, contrary to the 

commenter’s statements,629 changing 

the governance structure through which 

the SROs oversee the operations of the 

SIPs, as provided under the Proposed 

CT Plan, is appropriate to create a 

governance structure that will reduce 

obstacles to ongoing improvement of the 

consolidated market data feeds in ways 

that the current governance structure of 

the Equity Data Plans has not.630

III. Conclusion 

For the reasons discussed above, the 

Commission finds that the Proposed CT 

Plan, as modified, is consistent with the 

requirements of section 11A of the 

Exchange Act,631 and Rule 608 

thereunder,632 that the NMS plan is 

necessary or appropriate in the public 

interest, for the protection of investors 

and the maintenance of fair and orderly 

markets, to remove impediments to, and 

perfect the mechanism of, a national 

market system, or otherwise in 

furtherance of the purposes of the 

Exchange Act. 

It is therefore ordered that, pursuant 

to section 11A of the Exchange Act,633

and the rules and regulations 

thereunder, the Proposed CT Plan (File 

No. 4–757), as modified, be and it 

hereby is approved and declared 

effective, and the Participants are 

authorized to act jointly to implement 

the Proposed CT Plan as approved as a 

means of facilitating a national market 

system. 


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94962 Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Notices 

By the Commission. 

Sherry R. Haywood, 

Assistant Secretary. 

Attachment A 

LIMITED LIABILITY COMPANY 

AGREEMENT OF CT PLAN LLC, a 

Delaware Limited Liability Company 

(As modified by the Commission; 

additions are italicized; deletions are 

[bracketed].) 

(1) This LIMITED LIABILITY 

COMPANY AGREEMENT (this 

‘‘Agreement’’) dated as of the [•] day of 

[•], [•] is made and entered into by and 

among the parties identified in Exhibit 

A, as Exhibit A may be amended from 

time to time (the ‘‘Members’’), which are 

the members of CT Plan LLC, a 

Delaware limited liability company (the 

‘‘Company’’). The Members shall 

constitute the ‘‘members’’ (as that term 

is defined in the Delaware Act) of the 

Company. 

RECITALS 

(a) On September 1, 2023, the 

Commission ordered the Members to act 

jointly in developing and filing with the 

Commission by October 23, 2023, a 

proposed new single national market 

system (‘‘NMS’’) plan to govern the 

public dissemination of real-time 

consolidated equity market data for 

NMS stocks. See Amended Order 

Directing the Exchanges and the 

Financial Industry Regulatory Authority 

to Submit a New National Market 

System Plan Regarding Consolidated 

Equity Market Data, Release No. 34– 

98271 (September 1, 2023), 88 FR 61630 

(Sept. 7, 2023) (File No. 4–757) (the 

‘‘Amended Order’’). This Agreement is 

being filed with the Commission, as 

directed in the Amended Order. 

(b) As the Members have already 

formed the Company as a limited 

liability company pursuant to the 

Delaware Act by filing a certificate of 

formation (the ‘‘Certificate’’) with the 

Delaware Secretary of State, this 

Agreement will become effective on the 

date (the ‘‘Effective Date’’) when 

approved by the Commission pursuant 

to Rule 608 of Regulation NMS as an 

NMS plan governing the public 

dissemination of real-time consolidated 

market data for Eligible Securities (the 

‘‘Plan’’). 

(c) It is understood and agreed that, in 

performing their obligations and duties 

under this Agreement, the Members are 

performing and discharging functions 

and responsibilities related to the 

operation of the national market system 

for and on behalf of the Members in 

their capacities as self-regulatory 

organizations, as required under the 

Section 11A of the Exchange Act, and 

pursuant to Rule 603(b) of Regulation 

NMS thereunder. It is further 

understood and agreed that this 

Agreement and the operations of the 

Company shall be subject to ongoing 

oversight by the Commission. No 

provision of this Agreement shall be 

construed to limit or diminish the 

obligations and duties of the Members 

as self-regulatory organizations under 

the federal securities laws and the 

regulations thereunder. 

Article I. 

DEFINITIONS 

Section 1.1 Definitions. 

As used throughout this Agreement 

and the Exhibits: 

(1) ‘‘Administrator’’ means the Person 

selected by the Company to perform the 

administrative functions under Article 

VI of this Agreement[described in this 

Agreement pursuant to the 

Administrative Services Agreement. The 

Person selected as the Administrator 

will not be owned or controlled by a 

corporate entity that, either directly or 

via another subsidiary, offers for sale its 

own proprietary market data product for 

NMS stocks]. 

(2) ‘‘Advisory Committee’’ means the 

committee formed in accordance with 

Section 4.7 of this Agreement. 

(3) ‘‘Affiliate’’ means, as to any 

Person, any other Person that, directly 

or indirectly, Controls, is Controlled by, 

or is under common Control with such 

Person. Affiliate or Affiliated, when 

used as an adjective, shall have a 

correlative meaning. 

[(3)](4) ‘‘Agent’’ means, for purposes 

of Exhibit C, agents of the Operating 

Committee, a Member, the 

Administrator, the Interim 

Administrator(s), and the Processors, 

including, but not limited to, attorneys, 

auditors, advisors, accountants, 

contractors or subcontractors. 

[(4)](5) ‘‘Applicable Law’’ means all 

applicable provisions of (a) 

constitutions, treaties, statutes, laws 

(including the common law), rules, 

regulations, decrees, ordinances, codes, 

proclamations, declarations or orders of 

any Governmental Authority; (b) any 

consents or approvals of any 

Governmental Authority; and (c) any 

orders, decisions, advisory or 

interpretative opinions, injunctions, 

judgments, awards, decrees of, or 

agreements with, any Governmental 

Authority. 

[(5)](6) ‘‘Best Bid and Offer’’ has the 

meaning ascribed to the term ‘‘best bid 

and best offer’’ by Rule 600(b)(8) of 

Regulation NMS. 

[(6)](7) ‘‘Capital Contributions’’ means 

any cash, cash equivalents, or other 

property that a Member contributes to 

the Company with respect to its 

Membership Interest. 

[(7)](8) ‘‘Chair’’ shall mean the 

individual elected pursuant to Section 

4.4(e). 

[(8)](9) ‘‘Code’’ means the Internal 

Revenue Code of 1986, as amended. 

[(9)](10) ‘‘Commission’’ or ‘‘SEC’’ 

means the U.S. Securities and Exchange 

Commission. 

[(10)](11) ‘‘Company Indemnified 

Party’’ means a Person, and any other 

Person of whom such Person is the legal 

representative, that is or was a Member 

or a[n SRO] Voting Representative. 

[(11)](12) ‘‘Confidential Information’’ 

means, except to the extent covered by 

the definitions for Restricted 

Information, Highly Confidential 

Information, or Public Information: (i) 

any non-public data or information 

designated as Confidential by the 

Operating Committee pursuant to 

Section 4.3; (ii) any document generated 

by a Member and designated by that 

Member as Confidential; and (iii) the 

individual views and statements of 

Covered Persons and SEC staff disclosed 

during a meeting of the Operating 

Committee or any subcommittees 

thereunder. 

[(12)](13) ‘‘Control’’ means, with 

respect to any Person, the possession, 

directly or indirectly, of the power to 

direct or cause the direction of the 

management and policies of such 

Person, whether through the ownership 

of voting securities (or other ownership 

interest), by contract or otherwise. 

[(13)](14) ‘‘Covered Persons’’ means 

representatives of the Members 

(including the [SRO ]Voting 

Representative, alternate Voting 

Representative, and Member Observers), 

members of the Advisory Committee, 

SRO Applicants, SRO Applicant 

Observers, the Administrator, the 

Interim Administrator(s), and the 

Processors; Affiliates, employees, and 

Agents of the Operating Committee, a 

Member, the Administrator, the Interim 

Administrator(s), and the Processors; 

and any third parties invited to attend 

meetings of the Operating Committee or 

subcommittees. Covered Persons do not 

include staff of the SEC. 

[(14)](15) ‘‘CQ Plan’’ means the 

Restated CQ Plan. 

[(15)](16) ‘‘CT Feeds’’ means the CT 

Quote Data Feed(s) and the CT Trade 

Data Feed(s). 

[(16)](17) ‘‘CT Quote Data Feed(s)’’ 

means the service(s) that provides 

Vendors and Subscribers with (i) 

National Best Bids and Offers and their 

sizes and the Members’ identifiers 


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providing the National Best Bids and 

Offers; (ii) each Member’s Best Bids and 

Offers and their sizes and the Member’s 

identifier; and (iii) in the case of FINRA, 

the identifier of the FINRA 

Participant(s) that constitute(s) FINRA’s 

Best Bids and Offers, in each case for 

Eligible Securities. 

[(17)](18) ‘‘CT Trade Data Feed(s)’’ 

means the service(s) that provides 

Vendors and Subscribers with 

Transaction Reports for Eligible 

Securities. 

[(18)](19) ‘‘CTA Plan’’ means the 

Second Restatement of the CTA Plan. 

[(19)](20) ‘‘Current’’ means, with 

respect to Transaction Reports or 

Quotation Information, such 

Transaction Reports or Quotation 

Information during the fifteen (15) 

minute period immediately following 

the initial transmission thereof by the 

Processors. 

[(20)](21) ‘‘Delaware Act’’ means the 

Delaware Limited Liability Company 

Act, Title 6, Chapter 18, §§ 18–101, et 

seq., and any successor statute, as 

amended. 

[(21)](22) ‘‘Distribution’’ means a 

distribution to the Members of revenues 

of the Company under this Agreement 

pursuant to Section 8.3 and Exhibit D of 

the Agreement. 

[(22)](23) ‘‘Eligible Security’’ means 

(i) any equity security, as defined in 

Section 3(a)(11) of the Exchange Act, or 

(ii) a security that trades like an equity 

security, in each case that is listed on a 

national securities exchange. 

[(23)](24) ‘‘ET’’ means Eastern Time. 

[(24)](25) ‘‘Exchange Act’’ means the 

Securities Exchange Act of 1934, as 

amended. 

[(25)](26) ‘‘Executive Session’’ means 

a meeting of the Operating Committee 

pursuant to Section 4.4(g), which 

includes [SRO ]Voting Representatives, 

Member Observers, SEC Staff, and other 

persons as deemed appropriate by a 

majority vote of the [SRO ]Voting 

Representatives. 

[(26)](27) ‘‘Extraordinary Market 

Activity’’ means a disruption or 

malfunction of any electronic quotation, 

communication, reporting, or execution 

system operated by, or linked to, the 

Processors or a Trading Center or a 

member of such Trading Center that has 

a severe and continuing negative 

impact, on a market-wide basis, on 

quoting, order, or trading activity or on 

the availability of market information 

necessary to maintain a fair and orderly 

market. For purposes of this definition, 

a severe and continuing negative impact 

on quoting, order, or trading activity 

includes (i) a series of quotes, orders, or 

transactions at prices substantially 

unrelated to the current market for the 

security or securities; (ii) duplicative or 

erroneous quoting, order, trade 

reporting, or other related message 

traffic between one or more Trading 

Centers or their members; or (iii) the 

unavailability of quoting, order, 

transaction information, or regulatory 

messages for a sustained period. 

[(27)](28) ‘‘Fees’’ means fees charged 

to Vendors and Subscribers for 

Transaction Reports and Quotation 

Information in Eligible Securities. 

[(28)](29) ‘‘Final Decision of the 

Operating Committee’’ means an action 

or inaction of the Operating Committee 

as a result of the vote of the Operating 

Committee, but will not include the 

individual votes of a Voting 

Representative. 

[(29)](30) ‘‘FINRA’’ means the 

Financial Industry Regulatory 

Authority, Inc. 

[(30)](31) ‘‘FINRA Participant’’ means 

a FINRA member that utilizes the 

facilities of FINRA pursuant to 

applicable FINRA rules. 

[(31)](32) ‘‘Fiscal Year’’ means the 

fiscal year of the Company adopted 

pursuant to Section 10.1(a) of this 

Agreement. 

[(32)](33) ‘‘GAAP’’ means United 

States generally accepted accounting 

principles in effect from time to time, 

consistently applied. 

[(33)](34) ‘‘Governmental Authority’’ 

means (a) the U.S. federal government 

or government of any state of the U.S., 

(b) any instrumentality or agency of any 

such government, (c) any other 

individual, entity or organization 

authorized by law to perform any 

executive, legislative, judicial, 

regulatory, administrative, military or 

police functions of any such 

government, or (d) any 

intergovernmental organization of U.S. 

entities, but ‘‘Governmental Authority’’ 

excludes any self-regulatory 

organization registered with the 

Commission. 

[(34)](35) ‘‘Highly Confidential 

Information’’ means any highly 

sensitive Member-specific, customerspecific, individual-specific, or 

otherwise sensitive information relating 

to the Operating Committee, Members, 

Vendors, Subscribers, or customers that 

is not otherwise Restricted Information. 

Highly Confidential Information 

includes: the Company’s contract 

negotiations with the Processors, or 

Administrator or Interim 

Administrator(s); personnel matters that 

affect the employees of SROs or the 

Company; information concerning the 

intellectual property of Members or 

customers; and any document subject to 

the Attorney-Client Privilege, Work 

Product Doctrine, or any other 

[applicable ]privilege or immunity 

recognized under Applicable Law. 

[(35)](36) ‘‘Limit Up Limit Down’’ 

means the Plan to Address 

Extraordinary Market Volatility 

pursuant to Rule 608 of Regulation NMS 

under the Exchange Act. 

[(36)](37) ‘‘Losses’’ means losses, 

judgments, penalties (including excise 

and similar taxes and punitive 

damages), fines, settlements, and 

reasonable expenses (including 

reasonable attorneys’ fees) actually 

incurred by such Company Indemnified 

Party as a Party to a Proceeding. 

[(37)](38) ‘‘Market’’ means (i) in 

respect of FINRA or a national securities 

association, the facilities through which 

FINRA Participants display quotations 

and report transactions in Eligible 

Securities to FINRA and (ii) in respect 

of each national securities exchange, the 

marketplace for Eligible Securities that 

such exchange operates. 

[(38)](39) ‘‘Market-Wide Circuit 

Breaker’’ means a halt in trading in all 

stocks in all Markets under the rules of 

a Primary Listing Market. 

[(39)](40) ‘‘Material SIP Latency’’ 

means a delay of quotation or last sale 

price information in one or more 

securities between the time data is 

received by the Processors and the time 

the Processors disseminate the data, 

which delay the Primary Listing Market 

determines, in consultation with, and in 

accordance with, publicly disclosed 

guidelines established by the Operating 

Committee, to be (a) material and (b) 

unlikely to be resolved in the near 

future. 

[(40)](41) ‘‘Member Observer’’ means 

any employee of a Member or any 

attorney to a Member (other than a 

Voting Representative) that a Member 

determines is necessary in connection 

with such Member’s compliance with 

its obligations under Rule 608(c) of 

Regulation NMS to attend Operating 

Committee and subcommittee meetings, 

provided that the designation of the 

Member Observer is consistent with the 

prohibition in Section 4.11(b)(i). 

[(41)](42) ‘‘Membership Fee’’ means 

the fee to be paid by a new Member 

pursuant to Section 3.2. 

[(42)](43) ‘‘Membership Interest’’ 

means an interest in the Company 

owned by a Member. 

[(43)](44) ‘‘Nasdaq’’ means The 

Nasdaq Stock Market LLC. 

[(44)](45) ‘‘National Best Bid and 

Offer’’ has the meaning ascribed to the 

term ‘‘national best bid and national 

best offer’’ by Rule 600(b)(43) of 

Regulation NMS. 

[(45)](46) ‘‘National securities 

association’’ means a securities 


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association that is registered under 

Section 15A of the Exchange Act. 

[(46)](47) ‘‘National securities 

exchange’’ means a securities exchange 

that is registered under Section 6 of the 

Exchange Act. 

[(47)](48) ‘‘Network A Security’’ 

means an Eligible Security for which 

NYSE is the Primary Listing Market. 

[(48)](49) ‘‘Network B Security’’ 

means an Eligible Security for which a 

national securities exchange other than 

NYSE or Nasdaq is the Primary Listing 

Market. 

[(49)](50) ‘‘Network C Security’’ 

means an Eligible Security for which 

Nasdaq is the Primary Listing Market. 

[(50)](51) ‘‘Non-Affiliated SRO’’ 

means a Member that is not affiliated 

with any other Member. 

[(51)](52) ‘‘NYSE’’ means the New 

York Stock Exchange LLC. 

[(52)](53) ‘‘Officer’’ means each 

individual designated as an officer of 

the Company pursuant to Section 4.8. 

[(53)](54) ‘‘Operating Committee’’ 

means the committee established under 

Article IV of this Agreement, each 

member of which shall be deemed a 

‘‘manager’’ (as defined in the Delaware 

Act) and shall be referred to herein as 

a Voting Representative. 

[(54)](55) ‘‘Operational Halt’’ means a 

halt in trading in one or more securities 

only on a Member’s Market declared by 

such Member and is not a Regulatory 

Halt. 

[(55)](56) ‘‘Operative Date’’ means the 

date that (i) the Members conduct, 

through the Company, the Processor and 

Administrator functions related to the 

public dissemination of real-time 

consolidated equity market data for 

Eligible Securities required by the 

Commission to be performed by the 

Members under the Exchange Act and 

the rules and regulations thereunder 

and (ii) the CQ Plan, CTA Plan, and 

UTP Plan cease their operations. 

[(56)](57) ‘‘Party to a Proceeding’’ 

means a Company Indemnified Party 

that is, was, or is threatened to be made, 

a party to a Proceeding, or is involved 

in a Proceeding, by reason of the fact 

that such Company Indemnified Party is 

or was a Member, or a[n SRO] Voting 

Representative. 

[(57)](58) ‘‘PDP’’ means a Member or 

non-Member’s proprietary market data 

product that includes Transaction 

Reports and Quotation Information data 

in Eligible Securities from a Member’s 

Market or a Trading Center, and if from 

a Member, is filed with the Commission. 

[(58)](59) ‘‘Person’’ means an 

individual, corporation, partnership, 

joint venture, limited liability company, 

Governmental Authority, 

unincorporated organization, trust, 

association, or other entity. 

[(59)](60) ‘‘Primary Listing Market’’ 

means the national securities exchange 

on which an Eligible Security is listed. 

If an Eligible Security is listed on more 

than one national securities exchange, 

Primary Listing Market means the 

exchange on which the security has 

been listed the longest. 

[(60)](61) ‘‘Proceeding’’ means any 

threatened, pending or completed suit, 

proceeding, or other action, whether 

civil, criminal, administrative, or 

arbitrative, or any appeal in such action 

or any inquiry or investigation that 

could lead to such an action. 

[(61)](62) ‘‘Processor(s)’’ means the 

entity(ies) selected by the Company to 

perform the processing functions 

described in this Agreement and 

pursuant to the Processor Services 

Agreement(s), including the operation of 

the System. 

[(62)](63) ‘‘Public Information’’ 

means: (i) any information that is not 

either Restricted Information or Highly 

Confidential Information or that has not 

been designated as Confidential 

Information; (ii) any Confidential 

Information that has been approved by 

the Operating Committee for release to 

the public; (iii) the duly approved 

minutes of the Operating Committee 

with detail sufficient to inform the 

public on matters under discussion and 

the views expressed thereon (without 

attribution); (iv) Vendor, Subscriber and 

performance metrics; (v) Processor 

transmission metrics; and (vi) any 

information that is otherwise publicly 

available, except for information made 

public as a result of a violation of the 

Company’s Confidentiality Policy or 

Applicable Law. Public Information 

includes, but is not limited to, any topic 

discussed during a meeting of the 

Operating Committee, an outcome of a 

topic discussed, or a Final Decision of 

the Operating Committee. 

[(63)](64) ‘‘Regulatory Halt’’ means a 

halt declared by the Primary Listing 

Market in trading in one or more 

securities on all Trading Centers for 

regulatory purposes, including for the 

dissemination of material news, news 

pending, suspensions, or where 

otherwise necessary to maintain a fair 

and orderly market. A Regulatory Halt 

includes a trading pause triggered by 

Limit Up Limit Down, a halt based on 

Extraordinary Market Activity, a trading 

halt triggered by a Market-Wide Circuit 

Breaker, and a SIP Halt. 

[(64)](65) ‘‘Restricted Information’’ 

means highly sensitive customerspecific financial information, 

customer-specific audit information, 

other customer financial information, 

and personal identifiable information. 

[(65)](66) ‘‘Quotation Information’’ 

means all bids, offers, displayed 

quotation sizes, market center 

identifiers and, in the case of FINRA, 

the identifier of the FINRA Participant 

that entered the quotation, all 

withdrawals, and all other information 

pertaining to quotations in Eligible 

Securities required to be collected and 

made available to the Processors 

pursuant to this Agreement. 

[(66)](67) ‘‘Regular Trading Hours’’ 

has the meaning provided in Rule 

600(b)(68) of Regulation NMS. Regular 

Trading Hours can end earlier than 4:00 

p.m. ET in the case of an early 

scheduled close. 

[(67)](68) ‘‘Retail Representative’’ 

means an individual who (1) represents 

the interests of retail investors, (2) has 

experience working with or on behalf of 

retail investors, (3) has the requisite 

background and professional experience 

to understand the interests of retail 

investors, the work of the Operating 

Committee of the Company, and the role 

of market data in the U.S. equity market, 

and (4) is not affiliated with a Member 

or broker-dealer. 

[(68)](69) ‘‘Self-regulatory 

organization’’ or ‘‘SRO’’ has the 

meaning provided in Section 3(a)(26) of 

the Exchange Act. 

[(69)](70) ‘‘SIP Halt’’ means a 

Regulatory Halt to trading in one or 

more securities that a Primary Listing 

Market declares in the event of a SIP 

Outage or Material SIP Latency. 

[(70)](71) ‘‘SIP Halt Resume Time’’ 

means the time that the Primary Listing 

Market determines as the end of a SIP 

Halt. 

[(71)](72) ‘‘SIP Outage’’ means a 

situation in which a Processor has 

ceased, or anticipates being unable, to 

provide updated and/or accurate 

quotation or last sale price information 

in one or more securities for a material 

period that exceeds the time thresholds 

for an orderly failover to backup 

facilities established by mutual 

agreement among the Processors, the 

Primary Listing Market for the affected 

securities, and the Operating Committee 

unless the Primary Listing Market, in 

consultation with the affected Processor 

and the Operating Committee, 

determines that resumption of accurate 

data is expected in the near future. 

[(72)](73) ‘‘SRO Applicant’’ means (1) 

any Person that is not a Member and for 

which the Commission has published a 

Form 1 to be registered as a national 

securities exchange or national 

securities association to operate a 

Market, or (2) a national securities 

exchange that is not a Member and for 


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which the Commission has published a 

proposed rules change to operate a 

Market. 

[(73)](74) ‘‘SRO Group’’ means a 

group of Members that are Affiliates. 

[(74)](75) ‘‘Subscriber’’ means a 

Person that receives Current Transaction 

Reports or Quotation Information from 

the Processors or a Vendor and that 

itself is not a Vendor. 

[(75)](76) ‘‘System’’ means all data 

processing equipment, software, 

communications facilities, and other 

technology and facilities, utilized by the 

Company or the Processors in 

connection with the collection, 

consolidation, and dissemination of 

Transaction Reports, Quotation 

Information, and other information 

concerning Eligible Securities. 

[(76)](77) ‘‘Taxes’’ means taxes, levies, 

imposts, charges, and duties (including 

withholding tax, stamp, and transaction 

duties) imposed by any taxing authority 

together with any related interest, 

penalties, fines, and expenses in 

connection with them. 

[(77)](78) ‘‘Trading Center’’ has the 

same meaning as that term is defined in 

Rule 600(b)(82) of Regulation NMS. 

[(78)](79) ‘‘Transaction Reports’’ 

means reports required to be collected 

and made available pursuant to this 

Agreement containing the stock symbol, 

price, and size of the transaction 

executed, the Market in which the 

transaction was executed, and related 

information, including a buy/sell/cross 

indicator, trade modifiers, and any other 

required information reflecting 

completed transactions in Eligible 

Securities. 

[(79)](80) ‘‘Transfer’’ means to directly 

sell, transfer, assign, pledge, encumber, 

hypothecate, or similarly dispose of, 

either voluntarily or involuntarily, by 

operation of law or otherwise, or to 

enter into any contract, option, or other 

arrangement or understanding with 

respect to the sale, transfer, assignment, 

pledge, encumbrance, hypothecation, or 

similar disposition of any Membership 

Interests owned by a Person or any 

interest (including a beneficial interest) 

in any Membership Interests owned by 

a Person. ‘‘Transfer’’ when used as a 

noun shall have a correlative meaning. 

[(80)](81) ‘‘UTP Plan’’ means the Joint 

Self-Regulatory Organization Plan 

Governing the Collection, Consolidation 

and Dissemination of Quotation and 

Transaction Information for NasdaqListed Securities Traded on Exchanges 

on an Unlisted Trading Privileges Basis. 

[(81)](82) ‘‘Vendor’’ means a Person 

that the Administrator has approved to 

re-distribute Current Transaction 

Reports or Quotation Information to the 

Person’s employees or to others. 

[(82)](83) ‘‘Voting Representative’’ 

means an individual designated by each 

SRO Group and each Non-Affiliated 

SRO pursuant to Section 4.2(a) to vote 

on behalf of such SRO Group or such 

Non-Affiliated SRO. 

Section 1.2 Interpretation. 

For purposes of this Agreement: (a) 

the words ‘‘include,’’ ‘‘includes,’’ and 

‘‘including’’ shall be deemed to be 

followed by the words ‘‘without 

limitation’’; (b) the word ‘‘or’’ is not 

exclusive; and (c) the words ‘‘herein,’’ 

‘‘hereof,’’ ‘‘hereby,’’ ‘‘hereto,’’ and 

‘‘hereunder’’ refer to this Agreement as 

a whole. The definitions given for any 

defined terms in this Agreement shall 

apply equally to both the singular and 

plural forms of the terms defined. 

Whenever the context may require, any 

pronoun shall include the 

corresponding masculine, feminine, and 

neuter forms. Unless the context 

otherwise requires, references herein: 

(x) to Articles, Sections, and Exhibits 

mean the Articles and Sections of, and 

Exhibits attached to, this Agreement; (y) 

to an agreement, instrument, or other 

document mean such agreement, 

instrument, or other document as 

amended, supplemented, and modified 

from time to time to the extent 

permitted by the provisions thereof; and 

(z) to a statute mean such statute as 

amended from time to time and 

includes any successor legislation 

thereto and any rules and regulations 

promulgated thereunder. This 

Agreement shall be construed without 

regard to any presumption or rule 

requiring construction or interpretation 

against the party drafting an instrument 

or causing any instrument to be drafted. 

The Exhibits referred to herein shall be 

construed with, and as an integral part 

of, this Agreement to the same extent as 

if they were set forth verbatim herein. 

Article II. 

ORGANIZATION 

Section 2.1 Formation. 

(a) The Members formed the Company 

as a limited liability company on [•], [•] 

pursuant to the Delaware Act by filing 

a certificate of formation (the 

‘‘Certificate’’) with the Delaware 

Secretary of State. 

(b) This Agreement shall constitute 

the ‘‘limited liability company 

agreement’’ (as that term is used in the 

Delaware Act) of the Company. The 

rights, powers, duties, obligations, and 

liabilities of the Members shall be 

determined pursuant to the Delaware 

Act and this Agreement. To the extent 

that the rights, powers, duties, 

obligations, and liabilities of any 

Member are different by reason of any 

provision of this Agreement than they 

would be under the Delaware Act in the 

absence of such provision, this 

Agreement shall, to the extent permitted 

by the Delaware Act, control. 

Section 2.2 Name. 

The name of the Company is ‘‘CT Plan 

LLC’’ and all Company business shall be 

conducted in that name or such other 

name or names as the Operating 

Committee may designate; provided, 

that the name shall always contain the 

words ‘‘Limited Liability Company’’ or 

the abbreviation ‘‘L.L.C.’’ or the 

designation ‘‘LLC.’’ 

Section 2.3 Registered Office; 

Registered Agent; Principal Office; 

Other Offices. 

(a) The registered office of the 

Company required by the Delaware Act 

to be maintained in the State of 

Delaware shall be the office of the initial 

registered agent named in the Certificate 

or such other office (which need not be 

a place of business of the Company) as 

the Operating Committee may designate 

from time to time in the manner 

provided by the Delaware Act and 

Applicable Law. 

(b) The registered agent for service of 

process of the Company in the State of 

Delaware shall be the initial registered 

agent named in the Certificate or such 

other Person or Persons as the Operating 

Committee may designate from time to 

time in the manner provided by the 

Delaware Act and Applicable Law. 

(c) The principal office of the 

Company shall be located at such place 

as the Operating Committee may 

designate from time to time, which need 

not be in the State of Delaware, and the 

Company shall maintain its books and 

records there. The Company shall give 

prompt notice to each of the Members 

of any change to the principal office of 

the Company. 

(d) The Company may have such 

other offices as the Operating 

Committee may designate from time to 

time. 

Section 2.4 Purpose; Powers. 

(a) The purposes of the Company are 

to engage in the following activities on 

behalf of the Members: 

(i) the collection, consolidation, and 

dissemination of Transaction Reports, 

Quotation Information, and such other 

information concerning Eligible 

Securities as the Members shall agree as 

provided herein; 

(ii) contracting for the distribution of 

such information; 

(iii) contracting for and maintaining 

facilities to support any activities 


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permitted in this Agreement and 

guidelines adopted hereunder, 

including the operation and 

administration of the System; 

(iv) providing for those other matters 

set forth in this Agreement and in all 

guidelines adopted hereunder; 

(v) operating the System to comply 

with Applicable Laws; and 

(vi) engaging in any other business or 

activity that now or hereafter may be 

necessary, incidental, proper, advisable, 

or convenient to accomplish any of the 

foregoing purposes and that is not 

prohibited by the Delaware Act, the 

Exchange Act, or other Applicable Law. 

(b) The Company shall have all the 

powers necessary or convenient to carry 

out the purposes for which it is formed, 

including the powers granted by the 

Delaware Act. 

(c) It is expressly understood that 

each Member shall be responsible for 

the collection of Transaction Reports 

and Quotation Information within its 

Market and that nothing in this 

Agreement shall be deemed to govern or 

apply to the manner in which each 

Member does so. 

Section 2.5 Term. 

The term of the Company commenced 

as of the date the Certificate was filed 

with the Secretary of State of the State 

of Delaware, and shall continue in 

existence perpetually until the 

Company is dissolved in accordance 

with the provisions of the Certificate or 

this Agreement. Notwithstanding the 

foregoing, this Agreement shall not 

become effective until the Effective 

Date. 

Section 2.6 No State-Law Partnership. 

The Members intend that the 

Company not be a partnership 

(including a limited partnership) or 

joint venture, and that no Member be a 

partner or joint venturer of any other 

Member by virtue of this Agreement for 

any purposes other than as set forth in 

Sections 10.2 and 10.3, and neither this 

Agreement nor any other document 

entered into by the Company or any 

Member relating to the subject matter of 

this Agreement shall be construed to 

suggest otherwise. 

Article III. 

MEMBERSHIP 

Section 3.1 Members. 

The Members of the Company shall 

consist of the Persons identified in 

Exhibit A, as updated from time to time 

to reflect the admission of new Members 

pursuant to this Agreement. 

Section 3.2 New Members. 

(a) Any national securities association 

or national securities exchange whose 

market, facilities, or members, as 

applicable, trades Eligible Securities 

may become a Member by (i) providing 

written notice to the Company, (ii) 

executing a joinder to this Agreement, at 

which time Exhibit A shall be amended 

to reflect the addition of such 

association or exchange as a Member, 

(iii) paying a Membership Fee to the 

Company as determined pursuant to 

Section 3.2(b), and (iv) executing a 

joinder to any other agreements to 

which all of the other Members have 

been made party in connection with 

being a Member. Membership Fees paid 

shall be added to the general revenues 

of the Company. 

(b) The Membership Fee shall be 

based upon the following factors: 

(i) the portion of costs previously paid 

by the Company (or by the Members 

prior to the formation of the Company) 

for the development, expansion, and 

maintenance of the System which, 

under GAAP, would have been treated 

as capital expenditures and would have 

been amortized over the five years 

preceding the admission of the new 

Member (and for this purpose all such 

capital expenditures shall be deemed to 

have a five-year amortizable life); and 

(ii) an assessment of costs incurred 

and to be incurred by the Company for 

modifying the System or any part 

thereof to accommodate the new 

Member, which are not otherwise 

required to be paid or reimbursed by the 

new Member. 

(c) Participants of the CQ Plan, CTA 

Plan, and UTP Plan will not be required 

to pay the Membership Fee. 

Section 3.3 Transfer of Membership 

Interests. 

Except as set forth in Section 3.4, a 

Member shall not have the right to 

Transfer (whether in whole or in part) 

its Membership Interest in the 

Company. 

Section 3.4 Withdrawal from 

Membership. 

(a) Any Member may voluntarily 

withdraw from the Company at any time 

on not less than 30 days’ prior written 

notice (the ‘‘Withdrawal Date’’), by (i) 

providing such notice of such 

withdrawal to the Company, (ii) causing 

the Company to file with the 

Commission an amendment to 

effectuate the withdrawal and (iii) 

Transferring such Member’s 

Membership Interest to the Company. 

(b) A Member shall automatically be 

withdrawn from the Company upon 

such Member no longer being a 

registered national securities association 

or registered national securities 

exchange. Such Member’s Membership 

Interest will automatically transfer to 

the Company. The Company shall file 

with the Commission an amendment to 

effectuate the withdrawal. 

(c) A withdrawal of a Member shall 

not be effective until approved by the 

Commission after filing an amendment 

to the Agreement in accordance with 

Section 13.5. 

(d) From and after the Withdrawal 

Date of such Member: 

(i) Such Member shall remain liable 

for any obligations under this 

Agreement of such Member (including 

indemnification obligations) arising 

prior to the Withdrawal Date (but such 

Member shall have no further 

obligations under this Agreement or to 

any of the other Members arising after 

the Withdrawal Date); 

(ii) Such Member shall be entitled to 

receive a portion of the Net 

Distributable Operating Income (if any) 

in accordance with Exhibit D 

attributable to the period prior to the 

Withdrawal Date of such Member; 

(iii) Such Member shall cease to have 

the right to have its Transaction Reports, 

Quotation Information, or other 

information disseminated over the 

System; and 

(iv) Profits and losses of the Company 

shall cease to be allocated to the Capital 

Account of such Member. 

Section 3.5 Member Bankruptcy. 

In the event a Member becomes 

subject to one or more of the events of 

bankruptcy enumerated in Section 18– 

304 of the Delaware Act, that event by 

itself shall not cause a withdrawal of 

such Member from the Company so long 

as such Member continues to be a 

national securities association or 

national securities exchange. 

Section 3.6 Undertaking by All 

Members. 

Following the [Operative]Effective 

Date, each Member shall be required, 

pursuant to Rule 608(c) of Regulation 

NMS, to comply with the provisions 

hereof and enforce compliance by its 

members with the provisions hereof. 

Section 3.7 Obligations and Liability 

of Members. 

(a) Except as otherwise provided in 

this Agreement or Applicable Law, no 

Member shall be obligated to contribute 

capital or make loans to the Company. 

(b) Except as provided in this 

Agreement or Applicable Law, no 

Member shall have any liability 

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whether to the Company, to any of the 

Members, to the creditors of the 

Company or to any other Person, for the 

debts, liabilities, commitments or any 

other obligations of the Company or for 

any losses of the Company. 

Notwithstanding the foregoing, to the 

extent that amounts have not been paid 

to the Processors or Administrator 

under the terms of the Processor 

Services Agreements and 

Administrative Services Agreement, 

respectively, or this Agreement, as and 

when due, (i) each Member shall be 

obligated to return to the Company its 

pro rata share of any moneys distributed 

to such Member in the one year period 

prior to such default in payment (such 

pro rata share to be based upon such 

Member’s proportionate receipt of the 

aggregate distributions made to all 

Members in such one year period) until 

an aggregate amount equal to the 

amount of any such defaulted payments 

has been re-contributed to the Company 

and (ii) the Company shall promptly 

pay such amount to the Processors or 

Administrator, as applicable. 

(c) In accordance with the Delaware 

Act, a member of a limited liability 

company may, under certain 

circumstances, be required to return 

amounts previously distributed to such 

member. It is the intent of the Members 

that no distribution to any Member 

pursuant to this Agreement shall be 

deemed a return of money or other 

property paid or distributed in violation 

of the Delaware Act. The payment of 

any such money or distribution of any 

such property to a Member shall be 

deemed to be a compromise within the 

meaning of the Delaware Act, and the 

Member receiving any such money or 

property shall not be required to return 

any such money or property to any 

Person; provided, however, that a 

Member shall be required to return to 

the Company any money or property 

distributed to it in clear and manifest 

accounting or similar error or as 

otherwise provided in Section 3.7(b). 

However, if any court of competent 

jurisdiction holds that, notwithstanding 

the provisions of this Agreement, any 

Member is obligated to make any such 

payment, such obligation shall be the 

obligation of such Member and not of 

the Operating Committee. 

(d) No Member (unless duly 

authorized by the Operating Committee) 

has the authority or power to represent, 

act for, sign for or bind the Company or 

to make any expenditure on behalf of 

the Company; provided, however, that 

the Tax Matters Partner may represent, 

act for, sign for or bind the Company as 

permitted under Sections 10.2 and 10.3 

of this Agreement. 

(e) To the fullest extent permitted by 

law, no Member shall, in its capacity as 

a Member, owe any duty (fiduciary or 

otherwise) to the Company or to any 

other Member other than the duties 

expressly set forth in this Agreement. 

Article IV. 

MANAGEMENT OF THE COMPANY 

Section 4.1 Operating Committee. 

[(f)](a) Except for situations in which 

the approval of the Members is required 

by this Agreement, the Company shall 

be managed by the Operating 

Committee. Unless otherwise expressly 

provided to the contrary in this 

Agreement, no Member shall have 

authority to act for, or to assume any 

obligation or responsibility on behalf of, 

the Company, without the prior 

approval of the Operating Committee. 

Without limiting the generality of the 

foregoing and except as otherwise 

expressly provided in this Agreement, 

the Operating Committee shall have full 

and complete discretion to manage and 

control the business and affairs of the 

Company, to make all decisions 

affecting the business and affairs of the 

Company, and to take all such actions 

as it deems necessary or appropriate to 

accomplish the purposes of the 

Company, including the following: 

(i) proposing amendments to this 

Agreement or implementing other 

policies and procedures as necessary to 

ensure prompt, accurate, reliable, and 

fair collection, processing, distribution, 

and publication of information with 

respect to Transaction Reports and 

Quotation Information in Eligible 

Securities and the fairness and 

usefulness of the form and content of 

that information; 

(ii) selecting, overseeing, specifying 

the role and responsibilities of, and 

evaluating the performance of, the 

Administrator, the Processors, an 

auditor, and other professional service 

providers, provided that any 

expenditures for professional services 

that are paid for from the Company’s 

revenues must be for activities 

consistent with the terms of this 

Agreement and must be authorized by 

the Operating Committee; 

(iii) developing and maintaining fair 

and reasonable Fees and consistent 

terms for the distribution, transmission, 

and aggregation of Transaction Reports 

and Quotation Information in Eligible 

Securities; 

(iv) reviewing the performance of the 

Processors and ensuring the public 

reporting of Processors’ performance 

and other metrics and information about 

the Processors; 

(v) assessing the marketplace for 

equity market data products and 

ensuring that the CT Feeds are priced in 

a manner that is fair and reasonable, and 

designed to ensure the widespread 

availability of CT Feeds data to 

investors and market participants; 

(vi) designing a fair and reasonable 

revenue allocation formula for 

allocating plan revenues to be applied 

by the Administrator, and overseeing, 

reviewing, and revising that formula as 

needed; 

(vii) interpreting the Agreement and 

its provisions; and 

(viii) carrying out such other specific 

responsibilities as provided under this 

Agreement. 

[(g)](b) The Operating Committee may 

delegate all or part of its administrative 

functions under this Agreement, 

excluding those administrative 

functions to be performed by the 

Administrator pursuant to Section 6.1, 

to a subcommittee, to one or more of the 

Members, or to other Persons (including 

the Administrator), and any Person to 

which administrative functions are so 

delegated shall perform the same as 

agent for the Company, in the name of 

the Company. For the avoidance of 

doubt, no delegation to a subcommittee 

shall contravene Section 4.3 and no 

subcommittee shall take actions 

requiring approval of the Operating 

Committee pursuant to Section 4.3 

unless such approval shall have been 

obtained. Any authority delegated 

hereunder is subject to the provisions of 

Section 4.3 hereof. 

[(h)](c) It is expressly agreed and 

understood that neither the Company 

nor the Operating Committee shall have 

authority in any respect of any 

Member’s proprietary systems. Neither 

the Company nor the Operating 

Committee shall have any authority over 

the collection and dissemination of 

quotation or transaction information in 

Eligible Securities in any Member’s 

Market, or, in the case of FINRA, from 

FINRA Participants. 

Section 4.2 Composition and Selection 

of Operating Committee. 

(a) Voting Representatives. The 

Operating Committee shall include one 

Voting Representative designated by 

each SRO Group and each NonAffiliated SRO to vote on behalf of such 

SRO Group or such Non-Affiliated SRO. 

Each SRO Group and each NonAffiliated SRO may designate an 

alternate individual or individuals who 

shall be authorized to vote on behalf of 

such SRO Group or such Non-Affiliated 

SRO, respectively, in the absence of the 

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(b) An SRO Applicant will be 

permitted to appoint one individual to 

attend (subject to Section 4.4(i)) 

regularly scheduled Operating 

Committee meetings in the capacity of 

a non-voting observer (each, an ‘‘SRO 

Applicant Observer’’). Each SRO 

Applicant may designate an alternate 

individual or individuals who shall be 

authorized to act as the SRO Applicant 

Observer on behalf of the SRO 

Applicant in the absence of the 

designated SRO Applicant Observer. If 

the SRO Applicant’s Form 1 petition or 

Section 19(b)(1) filing is withdrawn, 

returned, or is otherwise not actively 

pending with the Commission for any 

reason, then the SRO Applicant will no 

longer be eligible to have an SRO 

Applicant Observer attend Operating 

Committee meetings. 

(c) Notwithstanding anything to the 

contrary herein, (i) a national securities 

exchange that has ceased operations as 

a Market (or has yet to commence 

operation as a Market) and that is a NonAffiliated SRO will not be permitted to 

designate a Voting Representative and 

(ii) an SRO Group in which all national 

securities exchanges have ceased 

operations as a Market (or have yet to 

commence operation as a Market) will 

not be permitted to designate a Voting 

Representative. Such SRO Group or 

Non-Affiliated SRO may attend the 

Operating Committee as an observer but 

may not attend the Executive Session of 

the Operating Committee. In the event 

such an SRO Group or Non-Affiliated 

SRO does not commence operation as a 

Market for six months after first 

attending an Operating Committee 

meeting, such SRO Group or NonAffiliated SRO may no longer attend the 

Operating Committee until it 

commences/re-commences operation as 

a Market. 

Section 4.3 Action of Operating 

Committee. 

(a) Each Voting Representative shall 

be authorized to cast one vote on behalf 

of the SRO Group or Non-Affiliated SRO 

that he or she represents, provided, 

however, that each Voting 

Representative representing an SRO 

Group or Non-Affiliated SRO whose 

combined market center(s) have 

consolidated equity market share of 

more than fifteen (15) percent during 

four of the six calendar months 

preceding an Operating Committee vote 

shall be authorized to cast two votes. 

For purposes of this Section 4.3(a), 

‘‘consolidated equity market share’’ 

means the average daily dollar equity 

trading volume of Eligible Securities of 

an SRO Group or Non-Affiliated SRO as 

a percentage of the average daily dollar 

equity trading volume of all of the SRO 

Groups and Non-Affiliated SROs, as 

reported under this Agreement or under 

the CQ, CTA, and UTP Plans. For the 

avoidance of doubt, FINRA shall not be 

considered to operate a market center 

within the meaning of this Section 

4.3(a) solely by virtue of facilitating 

quoting on the FINRA Alternative 

Display Facility or trade reporting of 

Eligible Securities through the FINRA/ 

Nasdaq Trade Reporting Facility 

Carteret, the FINRA/Nasdaq Trade 

Reporting Facility Chicago, the FINRA/ 

NYSE Trade Reporting Facility, or any 

other trade reporting facility that FINRA 

may operate from time to time in 

affiliation with a registered national 

securities exchange to provide a 

mechanism for FINRA Participants to 

report transactions in Eligible Securities 

effected otherwise than on an exchange. 

(b) All actions of the Operating 

Committee will require an affirmative 

vote of not less than (2/3rd) two-thirds 

of all votes allocated in the manner 

described in Section 4.3(a) to Voting 

Representatives who are eligible to vote 

on such action. 

(c) Notwithstanding Section 4.3(b), 

the following actions will require only 

a majority vote of the Operating 

Committee: 

(i) the election of the Chair and other 

Officers of the Plan; 

(ii) the selection of members of the 

Advisory Committee pursuant to 

Section 4.7; 

[(ii)](iii) the decision to enter 

Executive Session pursuant to Section 

4.4(g), except for matters considered 

pursuant to Section 4.4(g)(i)(E); 

[(iii)](iv) the decision to discuss a 

matter in a legal subcommittee pursuant 

to Section 4.8(d); and 

[(iv)](v) decisions concerning the 

operation of the Company as an LLC as 

specified in Section 10.3 and Section 

11.2. 

Section 4.4 Meetings of the Operating 

Committee. 

(a) Subject to Section 4.4(g), meetings 

of the Operating Committee may be 

attended by each Voting Representative, 

Member Observers, SRO Applicant 

Observers, Advisory Committee 

members, SEC staff, and other persons 

as deemed appropriate by the Operating 

Committee. Meetings shall be held at 

such times and locations as shall from 

time to time be determined by the 

Operating Committee. Member 

Observers shall be entitled to attend and 

participate in any discussion at any 

such meeting, unless attendance or 

participation would be inconsistent 

with the provisions of Section 4.11(b), 

but shall not be entitled to vote on any 

matter. 

(b) Special meetings of the Operating 

Committee may be called by the Chair 

on at least 24 hours’ notice to each 

Voting Representative and all persons 

eligible to attend Operating Committee 

meetings. 

(c) Any action requiring a vote can be 

taken at a meeting only if a quorum of 

all Voting Representatives is present. A 

quorum is equal to the minimum votes 

necessary to obtain approval under 

Section 4.3(b), i.e., Voting 

Representatives reflecting 2/3rd of 

Operating Committee votes eligible to 

vote on such action. 

(i) Any Voting Representative recused 

from voting on a particular action (i) 

mandatorily pursuant to Section 4.10(b) 

or (ii) upon a Voting Representative’s 

voluntary recusal, shall not be 

considered in the numerator or 

denominator of the calculations in 

paragraph (c) for determining whether a 

quorum is present. 

(ii) A Voting Representative is 

considered present at a meeting only if 

such Voting Representative is either in 

physical attendance at the meeting or 

participating by conference telephone or 

other electronic means that enables each 

Voting Representative to hear and be 

heard by all others present at the 

meeting. 

(d) A summary of any action sought 

to be resolved at a meeting shall be sent 

to each Voting Representative entitled to 

vote on such matter at least one week 

prior to the meeting via electronic mail, 

portal notification, or regular U.S. or 

private mail (or if one week is not 

practicable, then with as much time as 

may be reasonably practicable under the 

circumstances); provided, however, that 

this requirement to provide a summary 

of any action prior to a meeting may be 

waived by the vote of the percentage of 

the Committee required to vote on any 

particular matter, under Section 4.3 

above. 

(e) Beginning with the first quarterly 

meeting of the Operating Committee 

following the [Operative]Effective Date, 

the Chair of the Operating Committee 

shall be elected for a one-year term from 

the constituent Voting Representatives 

(and an election for the Chair shall be 

held every year). Subject to the 

requirements of Section 4.3 hereof, the 

Chair shall have the authority to enter 

into contracts on behalf of the Company 

and otherwise bind the Company, but 

only as directed by the Operating 

Committee. The Chair shall designate a 

Person to act as Secretary to record the 

minutes of each meeting. The location 

of meetings shall be in a location 

capable of holding the number of 


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attendees of such meetings, or such 

other locations as may from time to time 

be determined by the Operating 

Committee. 

(i) To elect a Chair, the Operating 

Committee will elicit nominations for 

those individuals to be considered for 

Chair. 

(ii) In the event that no nominated 

Person is elected by an affirmative vote 

of the Operating Committee pursuant to 

Section 4.3(c), the Person(s) with the 

lowest number of votes will be 

eliminated from consideration. The 

Operating Committee will repeat this 

process until a Person is elected by 

affirmative vote of the Operating 

Committee pursuant to Section 4.3. In 

the event two candidates remain and 

neither is elected by an affirmative vote 

of the Operating Committee pursuant to 

Section 4.3(c), the Person receiving the 

most votes from Voting Representatives 

will be elected. 

(f) Meetings may be held by 

conference telephone or other electronic 

means that enables each Voting 

Representative to hear and be heard by 

all others present at the meeting. 

(g) Voting Representatives, Member 

Observers, SEC Staff, and other persons 

as deemed appropriate by a majority 

vote of the Voting Representatives may 

meet in Executive Session of the 

Operating Committee to discuss an item 

of business that falls within the topics 

identified in subsection (i) below and 

for which it is appropriate to exclude 

the Advisory Committee. A request to 

create an Executive Session must be 

included on the written agenda for an 

Operating Committee meeting, along 

with the clearly stated rationale as to 

why such item to be discussed would be 

appropriate for Executive Session. The 

creation of an Executive Session will be 

by a majority vote of Voting 

Representatives with votes allocated 

pursuant to Section 4.3(a)(1). The 

Executive Session shall only discuss the 

topic for which it was created and shall 

be disbanded upon fully discussing the 

topic. 

(i) Items for discussion within an 

Executive Session [should]shall be 

limited to the following topics[ as]: 

(A) Any topic that requires discussion 

of Highly Confidential Information; 

(B) Vendor or Subscriber Audit 

Findings; 

(C) Litigation matters; 

(D) Responses to regulators with 

respect to inquiries, examinations, or 

findings; and 

(E) Other discrete matters approved 

by the Operating Committee. 

(ii) The mere fact that a topic is 

controversial or a matter of dispute does 

not, by itself, make a topic appropriate 

for Executive Session. The minutes for 

an Executive Session shall include the 

reason for including any item in 

Executive Session. 

(iii) Requests to discuss a topic in 

Executive Session must be included on 

the written agenda for the Operating 

Committee meeting, along with the 

clearly stated rationale for each topic as 

to why such discussion is appropriate 

for Executive Session. Such rationale 

may be that the topic to be discussed 

falls within the list provided in 

subparagraph (g)(i). 

Section 4.5 Certain Transactions. 

The fact that a Member or any of its 

Affiliates is directly or indirectly 

interested in or connected with any 

Person employed by the Company to 

render or perform a service, or from 

which or to whom the Company may 

buy or sell any property, shall not 

prohibit the Company from employing 

or dealing with such Person. 

Section 4.6 Company Opportunities. 

(a) Each Member, its Affiliates, and 

each of their respective equity holders, 

controlling persons and employees may 

have business interests and engage in 

business activities in addition to those 

relating to the Company. Neither the 

Company nor any Member shall have 

any rights by virtue of this Agreement 

in any business ventures of any such 

Person. 

(b) Each Member expressly 

acknowledges that (i) the other Members 

are permitted to have, and may 

presently or in the future have, 

investments or other business 

relationships with Persons engaged in 

the business of the Company other than 

through the Company (an ‘‘Other 

Business’’), (ii) the other Members have 

and may develop strategic relationships 

with businesses that are and may be 

competitive or complementary with the 

Company, (iii) the other Members shall 

not be obligated to recommend or take 

any action that prefers the interests of 

the Company or any Member over its 

own interests, (iv) none of the other 

Members will be prohibited by virtue of 

their ownership of equity in the 

Company or service on the Operating 

Committee (or body performing similar 

duties) from pursuing and engaging in 

any such activities, (v) none of the other 

Members will be obligated to inform or 

present to the Company any such 

opportunity, relationship, or 

investment, (vi) such Member will not 

acquire or be entitled to any interest or 

participation in any Other Business as a 

result of the participation therein of any 

of the other Members, and (vii) the 

involvement of another Member in any 

Other Business in and of itself will not 

constitute a conflict of interest by such 

Person with respect to the Company or 

any of the Members. 

Section 4.7 Advisory Committee. 

(a) Formation. Notwithstanding any 

other provision of this Plan, an 

Advisory Committee to the Plan shall be 

formed and shall function in accordance 

with the provisions set forth in this 

section. 

(b) Composition. [Members of the 

Advisory Committee shall be selected 

for two year terms as follows: 

(i) Operating Committee Selections. 

By affirmative vote of a majority of the 

Members entitled to vote, t]The 

Operating Committee shall, by majority 

vote, select at least one representative 

from each of the following categories to 

be members of the Advisory Committee: 

(A) an institutional investor; (B) a 

broker-dealer with a predominantly 

retail investor customer base; (C) a 

broker-dealer with a predominantly 

institutional investor customer base; (D) 

a securities market data vendor that is 

not affiliated or associated with a 

Member, broker-dealer, or investment 

adviser with third-party clients; (E) an 

issuer of NMS stock that is not affiliated 

or associated with a Member, brokerdealer, or investment adviser with thirdparty clients; and (F) a Retail 

Representative. The Operating 

Committee shall not select any person 

employed by or affiliated with any 

Member or its affiliates or facilities. 

[(ii) Member Selections. Each Member 

shall have the right to select one 

member of the Advisory Committee. A 

Member shall not select any person 

employed by or affiliated with any 

Member or its affiliates or facilities.] 

(c) Term: Members of the Advisory 

Committee shall be selected for two-year 

terms. 

(d) Function. Members of the 

Advisory Committee shall have the right 

to submit their views to the Operating 

Committee on Plan matters, prior to a 

decision by the Operating Committee on 

such matters. Such matters shall 

include, but not be limited to, any new 

or modified product, fee, contract, or 

pilot program that is offered or used 

pursuant to the Plan. 

[(d)](e) Not Members of the Company. 

For the sake of clarity, members of the 

Advisory Committee are not Members of 

the Company. 

Section 4.8 Subcommittees. 

(a) Subject to Section 4.1, the 

Operating Committee shall have the 

power and right, but not the obligation, 

to create and disband subcommittees of 

the Operating Committee and to 


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determine the duties, responsibilities, 

powers, and composition of such 

subcommittees. Subcommittee chairs 

will be selected by the Operating 

Committee from Voting Representatives. 

Notwithstanding the foregoing, the 

Operating Committee may not delegate 

to a subcommittee those administrative 

functions to be performed by the 

Administrator. 

(b) Except as provided in Section 

4.8(d), the Secretary or designee shall 

prepare minutes of all subcommittee 

meetings and such minutes will be 

made available to the Operating 

Committee and members of the 

Advisory Committee. 

(c) Voting Representatives, the 

Advisory Committee, Member 

Observers, SEC Staff, and other persons 

as deemed appropriate by the Operating 

Committee may attend meetings of any 

subcommittees. 

(d) Notwithstanding paragraph (c), 

Voting Representatives, Member 

Observers, and other persons as deemed 

appropriate by majority vote of the 

Voting Representatives may meet in a 

subcommittee to discuss an item that 

exclusively affects the Members with 

respect to: (1) litigation matters or 

responses to regulators with respect to 

inquiries, examinations, or findings; and 

(2) other discrete legal matters approved 

by the Operating Committee. The 

Secretary shall prepare the minutes of 

such subcommittee’s meetings, and 

such minutes shall include, (i) 

attendance at the meeting; (ii) the 

subject matter of each item discussed; 

(iii) sufficient non-privileged 

information to identify the rationale for 

referring the matter to the legal 

subcommittee, and (iv) the privilege or 

privileges claimed with respect to that 

item. Such minutes will be made 

available only to the Voting 

Representatives, Member Observers, and 

other persons deemed appropriate by a 

majority vote of the Operating 

Committee. 

Section 4.9 Officers. 

(a) Except as provided in Section 

4.4(e), the Operating Committee may 

(but need not), from time to time, 

designate and appoint one or more 

persons as an Officer of the Company. 

Other than the Chair, no Officer need be 

a Voting Representative. Any Officers so 

designated shall have such authority 

and perform such duties as the 

Operating Committee may, from time to 

time, delegate to them. Any such 

delegation may be revoked at any time 

by the Operating Committee. The 

Operating Committee may assign titles 

to particular Officers. Each Officer shall 

hold office until such Officer’s 

successor shall be duly designated or 

until such Officer’s death, resignation, 

or removal as provided in this 

Agreement. Any number of offices may 

be held by the same individual. Officers 

shall not be entitled to receive salary or 

other compensation, unless approved by 

the Operating Committee. 

(b) Any Officer may resign at any 

time. Such resignation shall be made in 

writing and shall take effect at the time 

specified in the notice, or if no time be 

specified, at the time of its receipt by 

the Operating Committee. The 

acceptance of a resignation shall not be 

necessary to make it effective. 

(c) Any Officer may be removed at 

any time upon the majority vote of the 

[Members]Operating Committee. 

Section 4.10 Commission Access to 

Information and Records. 

Nothing in this Agreement shall be 

interpreted to limit or impede the rights 

of the Commission or SEC staff to access 

information and records of the Company 

or any of the Members (including their 

employees) pursuant to U.S. federal 

securities laws and the rules and 

regulations promulgated thereunder. 

Section 4.11 Disclosure of Potential 

Conflicts of Interest; Recusal. 

(a) Disclosure Requirements. The 

Members (including any Member 

Observers), the Processors, the 

Administrator, members of the Advisory 

Committee, and each service provider or 

subcontractor engaged in Company 

business (including the audit of 

Subscribers’ data usage) that has access 

to Restricted or Highly Confidential 

information (for purposes of this 

section, ‘‘Disclosing Parties’’) shall 

complete the applicable questionnaire 

to provide the required disclosures set 

forth in subsection (c) below to disclose 

all material facts necessary to identify 

potential conflicts of interest. The 

Operating Committee, a Member, 

Processors, or Administrator may not 

use a service provider or subcontractor 

on Company business unless that 

service provider or subcontractor has 

agreed in writing to provide the 

disclosures required by this section and 

has submitted completed disclosures to 

the Administrator prior to starting work. 

If state laws, rules, or regulations, or 

applicable professional ethics rules or 

standards of conduct, would act to 

restrict or prohibit a Disclosing Party 

from making any particular required 

disclosure, a Disclosing Party shall refer 

to such law, rule, regulation, or 

professional ethics rule or standard and 

include in response to that disclosure 

the basis for its inability to provide a 

complete response. This does not 

relieve the Disclosing Party from 

disclosing any information it is not 

restricted from providing. 

(i) A potential conflict of interest may 

exist when personal, business, financial, 

or employment relationships could be 

perceived by a reasonable objective 

observer to affect the ability of a person 

to be impartial. 

(ii) Updates to Disclosures. Following 

a material change in the information 

disclosed pursuant to Section 4.11(a), a 

Disclosing Party shall promptly update 

its disclosures. Additionally, a 

Disclosing Party shall update annually 

any inaccurate information prior to the 

Operating Committee’s first quarterly 

meeting of a calendar year. 

(iii) Public Dissemination of 

Disclosures. The Disclosing Parties shall 

provide the Administrator with its 

disclosures and any required updates. 

The Administrator shall ensure that the 

disclosures are promptly posted to the 

Company’s website. 

(iv) The Company will arrange for 

Disclosing Parties that are not Members 

or members of the Advisory Committee 

to comply with the required disclosures 

and recusals under this Section 4.11 and 

Exhibit B in their respective agreements 

with either the Company, a Member, the 

Administrator, or the Processors. 

(b) Recusal. 

(i) A Disclosing Party that is a 

Member may not appoint as its Voting 

Representative, alternate Voting 

Representative, or a Member Observer a 

person that is responsible for or 

involved with the procurement for, or 

development, modeling, pricing, 

licensing (including all functions 

related to monitoring or ensuring a 

subscriber’s compliance with the terms 

of the license contained in its data 

subscription agreement and all 

functions relating to the auditing of 

subscriber data usage and payment), or 

sale of PDP offered to customers of the 

CT Feeds if the person has a financial 

interest (including compensation) that is 

tied directly to the Disclosing Party’s 

market data business or the 

procurement of market data and if that 

compensation would cause a reasonable 

objective observer to expect the 

compensation to affect the impartiality 

of the representative. 

(ii) A Disclosing Party (including its 

representative(s), employees, and 

agents) will be recused from 

participating in Company activities if it 

has not submitted a required disclosure 

form or the Operating Committee votes 

that its disclosure form is materially 

deficient. The recusal will be in effect 

until the Disclosing Party submits a 

sufficiently complete disclosure form to 

the Administrator. 


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(iii) A Disclosing Party, including its 

representative(s), and its Affiliates and 

their representative(s), are recused from 

voting on matters in which it or its 

Affiliate (i) is seeking a position or 

contract with the Company or (ii) have 

a position or contract with the Company 

and whose performance is being 

evaluated by the Company. 

(iv) All recusals, including a person’s 

determination of whether to voluntarily 

recuse himself or herself, shall be 

reflected in the meeting minutes. 

(c) Required Disclosures. As part of 

the disclosure regime, the Members, the 

Processors, the Administrator, members 

of the Advisory Committee, and service 

providers and subcontractors must 

respond to questions that are tailored to 

elicit responses that disclose the 

potential conflicts of interest as set forth 

in Exhibit B. 

Section 4.12 Confidentiality Policy. 

All Covered Persons are subject to the 

Confidentiality Policy set forth in 

Exhibit C to the Plan. The Company will 

arrange for Covered Persons that are not 

Voting Representatives, Member 

Observers, or members of the Advisory 

Committee to comply with the 

Confidentiality Policy under their 

respective agreements with either the 

Company, a Member, the Administrator, 

or the Processors. 

Article V. 

THE PROCESSORS; INFORMATION; 

INDEMNIFICATION 

Section 5.1 General Functions of the 

Processors. 

Subject to the general direction of the 

Operating Committee, as more fully set 

forth in the agreement to be entered into 

between the Company and the 

Processors (the ‘‘Processor Services 

Agreements’’), the Company shall 

require the Processors to perform certain 

processing functions on behalf of the 

Company. Among other things, the 

Company shall require the Processors to 

collect from the Members, and 

consolidate and disseminate to Vendors 

and Subscribers, Transaction Reports 

and Quotation Information in Eligible 

Securities in a manner designed to 

assure the prompt, accurate, and reliable 

collection, processing, and 

dissemination of information with 

respect to all Eligible Securities in a fair 

and non-discriminatory manner. 

Section 5.2 Evaluation of the 

Processors. 

The Processors’ performance of their 

functions under the Processor Services 

Agreements shall be subject to review at 

any time as determined by a vote of the 

Operating Committee pursuant to 

Section 4.3; provided, however, that a 

review shall be conducted at least once 

every two calendar years but not more 

frequently than once each calendar year 

(unless the Processors have materially 

defaulted in their obligations under the 

Processor Services Agreements and such 

default has not been cured within the 

applicable cure period set forth in the 

Processor Services Agreements, in 

which event such limitation shall not 

apply). The Operating Committee may 

review the Processors at staggered 

intervals. 

Section 5.3 Process for Selecting New 

Processors. 

(a) No later than upon the termination 

or withdrawal of a Processor or the 

expiration of a Processor Services 

Agreement with a Processor, the 

Operating Committee shall establish 

procedures for selecting a new Processor 

(the ‘‘Processor Selection Procedures’’). 

The Operating Committee, as part of the 

process of establishing Processor 

Selection Procedures, may solicit and 

consider the timely comment of any 

entity affected by the operation of this 

Agreement. The Operating Committee 

will not need to establish Processor 

Selection Procedures if the Operating 

Committee initially selects the CQ Plan 

and CTA Plan’s processor and the UTP 

Plan’s processor to provide the same 

services to the Company that are 

currently provided under the CQ Plan, 

CTA Plan, and UTP Plan. 

(b) The Processor Selection 

Procedures shall be established by the 

affirmative vote of the Operating 

Committee pursuant to Section 4.3, and 

shall set forth, at a minimum: 

(i) the entity that will: 

(A) draft the Operating Committee’s 

request for proposal for bids on a new 

Processor; 

(B) assist the Operating Committee in 

evaluating bids for the new Processor; 

and 

(C) otherwise provide assistance and 

guidance to the Operating Committee in 

the selection process; 

(ii) the minimum technical and 

operational requirements to be fulfilled 

by the Processor; 

(iii) the criteria to be considered in 

selecting the Processor; and 

(iv) the entities (other than Voting 

Representatives) that are eligible to 

comment on the selection of the 

Processor. 

Section 5.4 Transmission of 

Information to Processors by Members. 

(a) Quotation Information. 

(i) Each Member shall, during the 

time it is open for trading, be 

responsible for promptly collecting and 

transmitting to the Processors accurate 

Quotation Information in Eligible 

Securities through any means set forth 

in the Processor Services Agreements to 

ensure that the Company complies with 

its obligations under the Processor 

Services Agreements. 

(ii) Quotation Information shall 

include: 

(A) identification of the Eligible 

Security, using the Listing Market’s 

symbol; 

(B) the price bid and offered, together 

with size; 

(C) for FINRA, the FINRA Participant 

along with the FINRA Participant’s 

market participant identification or 

Member from which the quotation 

emanates; 

(D) appropriate timestamps; 

(E) identification of quotations that 

are not firm; and 

(F) through appropriate codes and 

messages, withdrawals and similar 

matters. 

(iii) In addition, Quotation 

Information shall include: 

(A) in the case of a national securities 

exchange, the reporting Member’s 

matching engine publication timestamp; 

or 

(B) in the case of FINRA, the 

quotation publication timestamp that 

FINRA’s bidding or offering member 

reports to FINRA’s quotation facility in 

accordance with FINRA rules. In 

addition, if FINRA’s quotation facility 

provides a proprietary feed of its 

quotation information, then the 

quotation facility shall also furnish the 

Processors with the time of the 

quotation as published on the quotation 

facility’s proprietary feed. FINRA shall 

convert any quotation times reported to 

it to nanoseconds and shall furnish such 

times to the Processors in nanoseconds 

since Epoch. 

(b) Transaction Reports. 

(i) Each Member shall, during the 

time it is open for trading, be 

responsible for promptly transmitting to 

the Processor Transaction Reports in 

Eligible Securities executed in its 

Market by means set forth in the 

Processor Services Agreements. 

(ii) Transaction Reports shall include: 

(A) identification of the Eligible 

Security, using the Listing Market’s 

symbol; 

(B) the number of shares in the 

transaction; 

(C) the price at which the shares were 

purchased or sold; 

(D) the buy/sell/cross indicator; 

(E) appropriate timestamps; 

(F) the Market of execution; and 

(G) through appropriate codes and 

messages, late or out-of-sequence trades, 

corrections, and similar matters. 


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(iii) In addition, Transaction Reports 

shall include the time of the transaction 

as identified in the Member’s matching 

engine publication timestamp. However, 

in the case of FINRA, the time of the 

transaction shall be the time of 

execution that a FINRA member reports 

to a FINRA trade reporting facility in 

accordance with FINRA rules. In 

addition, if the FINRA trade reporting 

facility provides a proprietary feed of 

trades reported by the trade reporting 

facility to the Processor, then the FINRA 

trade reporting facility shall also furnish 

the Processors with the time of the 

transmission as published on the 

facility’s proprietary feed. The FINRA 

trade reporting facility shall convert 

times that its members report to it to 

nanoseconds and shall furnish such 

times to the Processors in nanoseconds 

since Epoch. 

(iv) Each Member shall (a) transmit all 

Transaction Reports in Eligible 

Securities to the Processors as soon as 

practicable, but not later than 10 

seconds, after the time of execution, (b) 

establish and maintain collection and 

reporting procedures and facilities 

reasonably designed to comply with this 

requirement, and (c) designate as ‘‘late’’ 

any last sale price not collected and 

reported in accordance with the abovereferenced procedures or as to which 

the Member has knowledge that the 

time interval after the time of execution 

is significantly greater than the time 

period referred to above. The Members 

shall seek to reduce the time period for 

reporting last sale prices to the 

Processors as conditions warrant. 

(v) The following types of transactions 

are not required to be reported to the 

Processors pursuant to this Agreement: 

(A) transactions that are part of a 

primary distribution by an issuer or of 

a registered secondary distribution or of 

an unregistered secondary distribution; 

(B) transactions made in reliance on 

Section 4(a)(2) of the Securities Act of 

1933; 

(C) transactions in which the buyer 

and the seller have agreed to trade at a 

price unrelated to the current market for 

the security (e.g., to enable the seller to 

make a gift); 

(D) the acquisition of securities by a 

broker-dealer as principal in 

anticipation of making an immediate 

exchange distribution or exchange 

offering on an exchange; 

(E) purchases of securities pursuant to 

a tender offer; 

(F) purchases or sales of securities 

effected upon the exercise of an option 

pursuant to the terms thereof or the 

exercise of any other right to acquire 

securities at a pre-established 

consideration unrelated to the current 

market; and 

(G) transfers of securities that are 

expressly excluded from trade reporting 

under FINRA rules. 

(c) The following symbols shall be 

used to denote the applicable Member: 

Code Member 

A .................. NYSE American LLC. 

B .................. Nasdaq BX, Inc. 

C .................. NYSE National, Inc. 

D .................. Financial Industry Regulatory 

Authority, Inc. 

H .................. MIAX Pearl Exchange, LLC. 

I ................... Nasdaq ISE, LLC. 

J .................. Cboe EDGA Exchange, Inc. 

K .................. Cboe EDGX Exchange, Inc. 

L .................. Long-Term Stock Exchange 

Inc. 

M ................. NYSE Chicago, Inc. 

N .................. New York Stock Exchange 

LLC. 

P .................. NYSE Arca, Inc. 

Q ................. The Nasdaq Stock Market 

LLC. 

U .................. MEMX LLC. 

V .................. Investors Exchange LLC. 

W ................. Cboe Exchange, Inc. 

X .................. Nasdaq PHLX LLC. 

Y .................. Cboe BYX Exchange, Inc. 

Z .................. Cboe BZX Exchange, Inc. 

(d) Indemnification. 

(i) Each Member agrees, severally and 

not jointly, to indemnify and hold 

harmless and defend the Company, each 

other Member, the Processors, the 

Administrator, the Operating 

Committee, and each of their respective 

directors, officers, employees, agents, 

and Affiliates (each, an ‘‘Member 

Indemnified Party’’) from and against 

any and all loss, liability, claim, 

damage, and expense whatsoever 

incurred or threatened against such 

Member Indemnified Party as a result of 

a system error or disruption at such 

Member’s Market affecting any 

Transaction Reports, Quotation 

Information, or other information 

reported to the Processors by such 

Member and disseminated by the 

Processors to Vendors and Subscribers. 

This indemnity shall be in addition to 

any liability that the indemnifying 

Member may otherwise have. 

(ii) Promptly after receipt by a 

Member Indemnified Party of notice of 

the commencement of any action, such 

Member Indemnified Party will, if it 

intends to make a claim in respect 

thereof against an indemnifying 

Member, notify the indemnifying 

Member in writing of the 

commencement thereof; provided, 

however, that the failure to so notify the 

indemnifying Member will only relieve 

the indemnifying Member from any 

liability which it may have to any 

Member Indemnified Party to the extent 

such indemnifying Member is actually 

prejudiced by such failure. In case any 

such action is brought against any 

Member Indemnified Party and it 

promptly notifies an indemnifying 

Member of the commencement thereof, 

the indemnifying Member will be 

entitled to participate in, and, to the 

extent that it elects (jointly with any 

other indemnifying Member similarly 

notified), to assume and control the 

defense thereof with counsel chosen by 

it. After notice from the indemnifying 

Member of its election to assume the 

defense thereof, the indemnifying 

Member will not be liable to such 

Indemnified Party for any legal or other 

expenses subsequently incurred by such 

Member Indemnified Party in 

connection with the defense thereof but 

the Member Indemnified Party may, at 

its own expense, participate in such 

defense by counsel chosen by it 

without, however, impairing the 

indemnifying Member’s control of the 

defense. If the indemnifying Member 

has assumed the defense in accordance 

with the terms hereof, the indemnifying 

Member may enter into a settlement or 

consent to any judgment without the 

prior written consent of the Member 

Indemnified Party if (i) such settlement 

or judgment involves monetary damages 

only, all of which will be fully paid by 

the indemnifying Member and without 

admission of fault or culpability on 

behalf of any Member Indemnified 

Party, and (ii) a term of the settlement 

or judgment is that the Person or 

Persons asserting such claim 

unconditionally and irrevocably release 

all Member Indemnified Parties from all 

liability with respect to such claim; 

otherwise, the consent of the Member 

Indemnified Party shall be required in 

order to enter into any settlement of, or 

consent to the entry of a judgment with 

respect to, any claim (which consent 

shall not be unreasonably withheld, 

delayed, or conditioned). 

Section 5.5 Operational Issues. 

(a) Each Member shall be responsible 

for collecting and validating quotes and 

last sale reports within its own system 

prior to transmitting this data to the 

Processors. 

(b) Each Member may utilize a 

dedicated Member line into the 

Processors to transmit Transaction 

Reports and Quotation Information to 

the Processors. 

(c) Whenever a Member determines 

that a level of trading activity or other 

unusual market conditions prevent it 

from collecting and transmitting 

Transaction Reports or Quotation 

Information to the Processor, or where 


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a trading halt or suspension in an 

Eligible Security is in effect in its 

Market, the Member shall promptly 

notify the Processors of such condition 

or event and shall resume collecting and 

transmitting Transaction Reports and 

Quotation Information to it as soon as 

the condition or event is terminated. In 

the event of a system malfunction 

resulting in the inability of a Member or 

its members to transmit Transaction 

Reports or Quotation Information to the 

Processors, the Member shall promptly 

notify the Processors of such event or 

condition. Upon receiving such 

notification, the Processors shall take 

appropriate action, including either 

closing the quotation or purging the 

system of the affected quotations. 

Article VI. 

THE ADMINISTRATOR 

Section 6.1 General Functions of the 

Administrator. 

Subject to the general direction of the 

Operating Committee, as more fully set 

forth in the agreement entered into 

between the Company and the 

Administrator (the ‘‘Administrative 

Services Agreement’’), the 

Administrator shall perform 

administrative functions on behalf of 

the Company including recordkeeping; 

administering Vendor and Subscriber 

contracts; administering Fees, including 

billing, collection, and auditing of 

Vendors and Subscribers; administering 

Distributions; tax functions of the 

Company; the preparation of the 

Company’s audited financial reports; 

and support of Company governance. 

Section 6.2 Independence of the 

Administrator. 

The Administrator may not be owned 

or controlled by a corporate entity that, 

either directly or via another subsidiary, 

offers for sale its own PDP. The 

Administrator may not employ any 

person who is also employed by a 

corporate entity that, either directly or 

via a subsidiary, offers for sale its own 

PDP. 

Section 6.3 Evaluation of the 

Administrator. 

The Administrator’s performance of 

its functions under the Administrative 

Services Agreement shall be subject to 

review at any time as determined by an 

affirmative vote of the Operating 

Committee pursuant to Section 4.3; 

provided, however, that a review shall 

be conducted at least once every two 

calendar years but not more frequently 

than once each calendar year (unless the 

Administrator has materially defaulted 

in its obligations under the 

Administrative Services Agreement and 

such default has not been cured within 

the applicable cure period set forth in 

the Administrative Services Agreement, 

in which event such limitation shall not 

apply). The Operating Committee shall 

appoint a subcommittee or other 

Persons to conduct the review. The 

Company shall require the reviewer to 

provide the Operating Committee with a 

written report of its findings and to 

make recommendations (if necessary), 

including with respect to the continuing 

operation of the Administrator. The 

Administrator shall be required to assist 

and participate in such review. The 

Operating Committee shall notify the 

Commission of any recommendations it 

may approve as a result of the review of 

the Administrator and shall supply the 

Commission with a copy of any reports 

that may be prepared in connection 

therewith. 

Section 6.4 Process for Selecting New 

Administrator. 

Prior to the Operative Date, upon the 

termination or withdrawal of the 

Administrator, or upon the expiration of 

the Administrative Services Agreement, 

the Operating Committee shall establish 

procedures for selecting a new 

Administrator (the ‘‘Administrator 

Selection Procedures’’). The Operating 

Committee, as part of the process of 

establishing Administrator Selection 

Procedures, may solicit and consider the 

timely comment of any entity affected 

by the operation of this Agreement. The 

Administrator Selection Procedures 

shall be established by the Operating 

Committee pursuant to Section 4.3, and 

shall set forth, at a minimum: 

(a) the entity that will: 

(i) draft the Operating Committee’s 

request for proposal for bids on a new 

Administrator; 

(ii) assist the Operating Committee in 

evaluating bids for the new 

Administrator; and 

(iii) otherwise provide assistance and 

guidance to the Operating Committee in 

the selection process. 

(b) the minimum technical and 

operational requirements to be fulfilled 

by the Administrator; 

(c) the criteria to be considered in 

selecting the Administrator; and 

(d) the entities (other than Voting 

Representatives) that are eligible to 

comment on the selection of the 

Administrator. 

Section 6.5 Interim 

Administrator(s). 

Notwithstanding the provisions of 

Sections 6.2 and 6.4 of this Agreement, 

the Operating Committee may select one 

or more of the current administrators of 

the CTA Plan, CQ Plan, and UTP Plan 

to perform the general functions of the 

Administrator under Section 6.1 of the 

Plan on an interim basis during the 

implementation of the Plan, consistent 

with the timeline set forth in Article XIV 

of this Agreement (‘‘Interim 

Administrator(s)’’). 

Article VII. 

REGULATORY MATTERS 

Section 7.1 Regulatory and 

Operational Halts. 

(a) Operational Halts. A Member shall 

notify the Processors if it has concerns 

about its ability to collect and transmit 

quotes, orders, or last sale prices, or 

where it has declared an Operational 

Halt or suspension of trading in one or 

more Eligible Securities, pursuant to the 

procedures adopted by the Operating 

Committee. 

(b) Regulatory Halts. 

(i) The Primary Listing Market may 

declare a Regulatory Halt in trading for 

any security for which it is the Primary 

Listing Market: 

(A) as provided for in the rules of the 

Primary Listing Market; 

(B) if it determines there is a SIP 

Outage, Material SIP Latency, or 

Extraordinary Market Activity; or 

(C) in the event of national, regional, 

or localized disruption that necessitates 

a Regulatory Halt to maintain a fair and 

orderly market. 

(ii) In making a determination to 

declare a Regulatory Halt under 

subparagraph (b)(i), the Primary Listing 

Market will consider the totality of 

information available concerning the 

severity of the issue, its likely duration, 

and potential impact on Member Firms 

and other market participants and will 

make a good-faith determination that 

the criteria of subparagraph (b)(i) have 

been satisfied and that a Regulatory Halt 

is appropriate. The Primary Listing 

Market will consult, if feasible, with the 

affected Trading Center(s), the other 

Members, or the Processors, as 

applicable, regarding the scope of the 

issue and what steps are being taken to 

address the issue. Once a Regulatory 

Halt under subparagraph (b)(i) has been 

declared, the Primary Listing Market 

will continue to evaluate the 

circumstances to determine when 

trading may resume in accordance with 

the rules of the Primary Listing Market. 

(c) Initiating a Regulatory Halt. 

(i) The start time of a Regulatory Halt 

is when the Primary Listing Market 

declares the halt, regardless of whether 

an issue with communications impacts 

the dissemination of the notice. 

(ii) If a Processor is unable to 

disseminate notice of a Regulatory Halt 


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or the Primary Listing Market is not 

open for trading, the Primary Listing 

Market will take reasonable steps to 

provide notice of a Regulatory Halt, 

which shall include both the type and 

start time of the Regulatory Halt, by 

dissemination through: 

(A) PDP; 

(B) posting on a publicly-available 

Member website; 

(C) system status messages; or 

(D) a notification via an alternate 

Processor, if available. 

(iii) Except in exigent circumstances, 

the Primary Listing Market will not 

declare a Regulatory Halt retroactive to 

a time earlier than the notice of such 

halt. 

(iv) Resumption of Trading After 

Regulatory Halts Other Than SIP Halts. 

The Primary Listing Market will declare 

a resumption of trading when it makes 

a good-faith determination that trading 

may resume in a fair and orderly 

manner and in accordance with its 

rules. 

(v) For a Regulatory Halt that is 

initiated by another Member that is a 

Primary Listing Market, a Member may 

resume trading after the Member 

receives notification from the Primary 

Listing Market that the Regulatory Halt 

has been terminated. 

(d) Resumption of Trading After SIP 

Halt. 

(i) The Primary Listing Market will 

determine the SIP Halt Resume Time. In 

making such determination, the Primary 

Listing Market will make a good-faith 

determination and consider the totality 

of information to determine whether 

resuming trading would promote a fair 

and orderly market, including input 

from the Processors, the other Members, 

or the operator of the system in question 

(as well as any Trading Center(s) to 

which such system is linked), regarding 

operational readiness to resume trading. 

The Primary Listing Market retains 

discretion to delay the SIP Halt Resume 

Time if it believes trading will not 

resume in a fair and orderly manner. 

(ii) The Primary Listing Market will 

terminate a SIP Halt with a notification 

that specifies a SIP Halt Resume Time. 

The Primary Listing Market shall 

provide a minimum notice of a SIP Halt 

Resume Time, as specified by the rules 

of the Primary Listing Market, during 

which period market participants may 

enter quotes and orders in the affected 

securities. During Regular Trading 

Hours, the last SIP Halt Resume Time 

before the end of Regular Trading Hours 

shall be an amount of time as specified 

by the rules of the Primary Listing 

Market. The Primary Listing Market may 

stagger the SIP Halt Resume Times for 

multiple symbols in order to reopen in 

a fair and orderly manner. 

(iii) During Regular Trading Hours, if 

the Primary Listing Market does not 

open a security within the amount of 

time as specified by the rules of the 

Primary Listing Market after the SIP 

Halt Resume Time, a Member may 

resume trading in that security. Outside 

Regular Trading Hours, a Member may 

resume trading immediately after the 

SIP Halt Resume Time. 

(e) Member to Halt Trading During 

Regulatory Halt. A Member will halt 

trading for any security traded on its 

Market if the Primary Listing Market 

declares a Regulatory Halt for the 

security. 

(f) Communications. Whenever, in the 

exercise of its regulatory functions, the 

Primary Listing Market for an Eligible 

Security determines it is appropriate to 

initiate a Regulatory Halt, the Primary 

Listing Market will notify all other 

Members and the affected Processors of 

such Regulatory Halt as well as provide 

notice that a Regulatory Halt has been 

lifted using such protocols and other 

emergency procedures as may be 

mutually agreed to between the 

Members and the Primary Listing 

Market. The affected Processors shall 

disseminate to Members notice of the 

Regulatory Halt (as well as notice of the 

lifting of a Regulatory Halt) (i) through 

the CT Feeds or (ii) any other means the 

affected Processors, in its sole 

discretion, considers appropriate. Each 

Member shall be required to 

continuously monitor these 

communication protocols established by 

the Operating Committee and the 

Processors during market hours, and the 

failure of a Member to do so shall not 

prevent the Primary Listing Market from 

initiating a Regulatory Halt in 

accordance with the procedures 

specified herein. 

Section 7.2 Hours of Operation of the 

System. 

(a) Quotation Information shall be 

entered, as applicable, by Members as to 

all Eligible Securities in which they 

make a market during Regular Trading 

Hours on all days the Processors are in 

operation. Transaction Reports shall be 

entered for executions that occur from 

9:30 a.m. until 4:00:00 p.m. ET by 

Members as to all Eligible Securities in 

which they execute transactions during 

Regular Trading Hours on all days the 

Processors are in operation. 

(b) Members that execute transactions 

in Eligible Securities outside of Regular 

Trading Hours, shall report such 

transactions as follows: 

(i) transactions in Eligible Securities 

executed from 4:00 a.m. up to 9:30:00 

a.m. ET (or as otherwise designated by 

a Member as an execution occurring 

outside of Regular Trading Hours) and 

after 4:00:00 p.m. until 8:00 p.m. ET, 

shall be designated with an appropriate 

indicator to denote their execution 

outside normal market hours; 

(ii) transactions in Eligible Securities 

executed after 8:00 p.m. and before 

12:00 a.m. (midnight) shall be reported 

to the Processors between the hours of 

4:00 a.m. and 8:00 p.m. ET on the next 

business day (T+1), and shall be 

designated ‘‘as/of’’ trades to denote their 

execution on a prior day, and be 

accompanied by the time of execution; 

(iii) transactions in Eligible Securities 

executed between 12:00 a.m. (midnight) 

and 4:00 a.m. ET shall be transmitted to 

the Processors between 4:00 a.m. and 

9:30 a.m. ET, on trade date, shall be 

designated with an appropriate 

indicator to denote their execution 

outside normal market hours, and shall 

be accompanied by the time of 

execution; and 

(iv) transactions reported pursuant to 

this Section [7.3]7.2 shall be included in 

the calculation of total trade volume for 

purposes of determining Net 

Distributable Operating Revenue, but 

shall not be included in the calculation 

of the daily high, low, or last sale. 

(c) Late trades shall be reported in 

accordance with the rules of the 

Member in whose Market the 

transaction occurred and can be 

reported between the hours of 4:00 a.m. 

and 8:00 p.m. ET. 

(d) The Processors shall collect, 

process and disseminate Quotation 

Information in Eligible Securities at 

other times between 4:00 a.m. and 9:30 

a.m. ET, and after 4:00 p.m. ET, when 

any Member or FINRA Participant is 

open for trading, until 8:00 p.m. ET (the 

‘‘Additional Period’’); provided, 

however, that the National Best Bid and 

Offer quotation will not be disseminated 

before 4:00 a.m. or after 8:00 p.m. ET. 

Members that enter Quotation 

Information or submit Transaction 

Reports to the Processors during the 

Additional Period shall do so for all 

Eligible Securities in which they enter 

quotations. 

Article VIII. 

CAPITAL CONTRIBUTIONS; CAPITAL 

ACCOUNTS 

Section 8.1 Capital Accounts. 

(a) A separate capital account 

(‘‘Capital Account’’) shall be established 

by the Company and maintained by the 

Administrator for each Member in 

accordance with section 704(b) of the 

Code and Treasury Regulation section 

1.704–1(b)(2)(iv). There shall be 


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credited to each Member’s Capital 

Account (i) the Capital Contributions (at 

fair market value in the case of 

contributed property) made by such 

Member (which shall be deemed to be 

zero for the initial Members), (ii) 

allocations of Company profits and gain 

(or items thereof) to such Member 

pursuant to Section 9.2 and (iii) any 

recaptured tax credits, or portion 

thereof, to the extent such increase to 

the tax basis of a Member’s interest in 

the Company may be allowed pursuant 

to the Code. Each Member’s Capital 

Account shall be decreased by (x) the 

amount of distributions (at fair market 

value in the case of property distributed 

in kind) to such Member, (y) allocations 

of Company losses to such Member 

(including expenditures which can 

neither by capitalized nor deducted for 

tax purposes, organization and 

syndication expenses not subject to 

amortization and loss on sale or 

disposition of the Company’s assets, 

whether or not disallowed under 

sections 267 or 707 of the Code) 

pursuant to Section 9.2 and (z) any tax 

credits, or portion thereof, as may be 

required to be charged to the tax basis 

of a Membership Interest pursuant to 

the Code. Capital Accounts shall not be 

adjusted to reflect a Member’s share of 

liabilities under section 752 of the Code. 

(b) The fair market value of 

contributed, distributed, or revalued 

property shall be agreed to by the 

Operating Committee or, if there is no 

such agreement, by an appraisal. 

(c) The foregoing provisions and the 

other provisions of this Agreement 

relating to the maintenance of Capital 

Accounts are intended to comply with 

Treasury Regulation section 1.704–1(b) 

promulgated under section 704(b) of the 

Code, and shall be interpreted and 

applied in a manner consistent with 

such Treasury Regulations. 

Section 8.2 Additional Capital 

Contributions. 

Except with the approval of the 

Operating Committee or as otherwise 

provided in this Section 8.2, no Member 

shall be obligated or permitted to make 

any additional contribution to the 

capital of the Company. The Members 

agree to make additional Capital 

Contributions from time to time as 

appropriate in respect of reasonable 

administrative and other reasonable 

expenses of the Company. 

Section 8.3 Distributions. 

Except as set forth in this Section 8.3 

and Section 11.2, and subject to the 

provisions of Section 13.1, Distributions 

shall be made to the Members at the 

times and in the aggregate amounts set 

forth in Exhibit D. Notwithstanding any 

provisions to the contrary contained in 

this Agreement, the Company shall not 

make a Distribution to a Member on 

account of its interest in the Company 

if such Distribution would violate 

Section 18–607 of the Delaware Act or 

other Applicable Law. Distributions 

may be made in cash or, if determined 

by the Operating Committee, in-kind. 

The Operating Committee may reserve 

amounts for anticipated expenses or 

contingent liabilities of the Company. In 

the event that additional Capital 

Contributions are called for, and any 

Member fails to provide the full amount 

of such additional Capital Contributions 

as set forth in the relevant resolution of 

the Operating Committee, any 

Distributions to be made to such 

defaulting Member shall be reduced by 

the amount of any required but unpaid 

Capital Contribution due from such 

Member. 

Article IX. 

ALLOCATIONS 

Section 9.1 Calculation of Profits and 

Losses. 

To the fullest extent permitted by 

Applicable Law, the profits and losses 

of the Company shall be determined for 

each fiscal year in a manner consistent 

with GAAP. 

Section 9.2 Allocation of Profits and 

Losses. 

(a) Except as otherwise set forth in 

this Section 9.2, for Capital Account 

purposes, all items of income, gain, loss, 

and deduction shall be allocated among 

the Members in accordance with Exhibit 

D. 

(b) For federal, state and local income 

tax purposes, items of income, gain, 

loss, deduction, and credit shall be 

allocated to the Members in accordance 

with the allocations of the 

corresponding items for Capital Account 

purposes under this Section 9.2, except 

that items with respect to which there 

is a difference between tax and book 

basis will be allocated in accordance 

with Section 704(c) of the Code, the 

Treasury Regulations thereunder and 

Treasury Regulations Section 1.704– 

1(b)(4)(i). 

(c) Notwithstanding any provision set 

forth in this Section 9.2, no item of 

deduction or loss shall be allocated to 

a Member to the extent the allocation 

would cause a negative balance in such 

Member’s Capital Account (after taking 

into account the adjustments, 

allocations and distributions described 

in Treasury Regulations Sections 1.704– 

1(b)(2)(ii)(d)(4), (5) and (6)) that exceeds 

the amount that such Member would be 

required to reimburse the Company 

pursuant to this Agreement or 

Applicable Law. 

(d) In the event any Member 

unexpectedly receives any adjustments, 

allocations, or distributions described in 

Treasury Regulations Sections 1.704– 

1(b)(2)(ii)(d)(4), (5) and (6), items of the 

Company’s income and gain shall be 

specially allocated to such Member in 

an amount and manner sufficient to 

eliminate as quickly as possible any 

deficit balance in its Capital Account 

created by such adjustments, allocations 

or distributions in excess of that 

permitted under Section 9.2(c). Any 

special allocations of items of income or 

gain pursuant to this Section 9.2(d) shall 

be taken into account in computing 

subsequent allocations pursuant to this 

Section 9.2 so that the net amount of 

any items so allocated and all other 

items allocated to each Member 

pursuant to this Section 9.2 shall, to the 

extent possible, be equal to the net 

amount that would have been allocated 

to each such Member pursuant to the 

provisions of this Section 9.2 if such 

unexpected adjustments, allocations or 

distributions had not occurred. 

Article X. 

RECORDS AND ACCOUNTING; 

REPORTS 

Section 10.1 Accounting. 

(a) The Operating Committee shall 

maintain a system of accounting which 

enables the Company to produce 

accounting records and information 

substantially consistent with GAAP. 

The Fiscal Year of the Company shall be 

the calendar year unless Applicable Law 

requires a different Fiscal Year. 

(b) All matters concerning accounting 

procedures shall be determined by the 

Operating Committee. 

Section 10.2 Tax Status; Returns. 

(a) It is the intent of this Company 

and the Members that this Company 

shall be treated as a partnership for 

federal, state and local income tax 

purposes. Neither the Company nor any 

Member shall make an election for the 

Company to be classified as other than 

a partnership pursuant to Treasury 

Regulations Section 301.7701–3 or 

otherwise. 

(b) The Company shall cause federal, 

state, and local income tax returns for 

the Company to be prepared and timely 

filed with the appropriate authorities 

and shall arrange for the timely delivery 

to the Members of such information as 

is necessary for such Members to 

prepare their federal, state and local tax 

returns. All tax returns shall be 

prepared in a manner consistent with 


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the Distributions made in accordance 

with Exhibit D. 

Section 10.3 Partnership 

Representative. 

(a) The Operating Committee shall 

appoint an entity as the ‘‘Partnership 

Representative’’ of the Company for 

purposes of Section 6223 of the Code 

and the Treasury Regulations 

promulgated thereunder, and all federal, 

state, and local Tax audits and litigation 

shall be conducted under the direction 

of the Partnership Representative. 

(b) The Partnership Representative 

shall use reasonable efforts to inform 

each Member of all significant matters 

that may come to its attention by giving 

notice thereof and to forward to each 

Member copies of all significant written 

communications it may receive in such 

capacity. The Partnership 

Representative shall consult with the 

Members before taking any material 

actions with respect to tax matters, 

including actions relating to (i) an IRS 

examination of the Company 

commenced under Section 6231(a) of 

the Code, (ii) a request for 

administrative adjustment filed by the 

Company under Section 6227 of the 

Code, (iii) the filing of a petition for 

readjustment under Section 6234 of the 

Code with respect to a final notice of 

partnership adjustment, (iv) the appeal 

of an adverse judicial decision, and (v) 

the compromise, settlement, or 

dismissal of any such proceedings. 

(c) The Partnership Representative 

shall not compromise or settle any tax 

audit or litigation affecting the Members 

without the approval of a majority of 

Members. Any material proposed 

action, inaction, or election to be taken 

by the Partnership Representative, 

including the election under Section 

6226(a)(1) of the Code, shall require the 

prior approval of a majority of Members. 

Article XI. 

DISSOLUTION AND TERMINATION 

Section 11.1 Dissolution of Company. 

The Company shall dissolve, and its 

assets and business shall be wound up, 

upon the occurrence of any of the 

following events: 

(a) Unanimous written consent of the 

Members to dissolve the Company; 

(b) The sale or other disposition of all 

or substantially all the Company’s assets 

outside the ordinary course of business; 

(c) An event which makes it unlawful 

or impossible for the Company business 

to be continued; 

(d) The withdrawal of one or more 

Members such that there is only one 

remaining Member; or 

(e) The entry of a decree of judicial 

dissolution under § 18–802 of the 

Delaware Act. 

Section 11.2 Liquidation and 

Distribution. 

Following the occurrence of an event 

described in Section 11.1, the Members 

shall appoint a liquidating trustee who 

shall wind up the affairs of the 

Company by (i) selling its assets in an 

orderly manner (so as to avoid the loss 

normally associated with forced sales), 

and (ii) applying and distributing the 

proceeds of such sale, together with 

other funds held by the Company: (a) 

first, to the payment of all debts and 

liabilities of the Company; (b) second, to 

the establishments of any reserves 

reasonably necessary to provide for any 

contingent recourse liabilities and 

obligations; (c) third, to the Members in 

accordance with Exhibit D; and (d) 

fourth, to the Members as determined by 

a majority of Members. 

Section 11.3 Termination. 

Each of the Members shall be 

furnished with a statement prepared by 

the independent accountants retained 

on behalf of the Company, which shall 

set forth the assets and liabilities of the 

Company as of the date of the final 

distribution of Company’s assets under 

Section 11.2 and the net profit or net 

loss for the fiscal period ending on such 

date. Upon compliance with the 

distribution plan set forth in Section 

11.2, the Members shall cease to be 

such, and the liquidating trustee shall 

execute, acknowledge, and cause to be 

filed a certificate of cancellation of the 

Company. Upon completion of the 

dissolution, winding up, liquidation, 

and distribution of the liquidation 

proceeds, the Company shall terminate. 

Article XII. 

EXCULPATION AND 

INDEMNIFICATION 

Section 12.1 Exculpation. 

Each Member, by and for itself, each 

of its Affiliates and each of its and their 

respective equity holders, directors, 

officers, controlling persons, partners, 

employees, successors and assigns, 

hereby acknowledges and agrees that it 

is the intent of the Company and each 

Member that the liability of each 

Member and each individual currently 

or formerly serving as a[n SRO] Voting 

Representative (each, an ‘‘Exculpated 

Party’’) be limited to the maximum 

extent permitted by Applicable Law or 

as otherwise expressly provided herein. 

In accordance with the foregoing, the 

Members hereby acknowledge and agree 

that: 

(a) To the maximum extent permitted 

by Applicable Law or as otherwise 

expressly provided herein, no present or 

former Exculpated Party or any of such 

Exculpated Party’s Affiliates, heirs, 

successors, assigns, agents or 

representatives shall be liable to the 

Company or any Member for any loss 

suffered in connection with a breach of 

any fiduciary duty, errors in judgment 

or other acts or omissions by such 

Exculpated Party; provided, however, 

that this provision shall not eliminate or 

limit the liability of such Exculpated 

Party for (i) acts or omissions which 

involve gross negligence, willful 

misconduct or a knowing violation of 

law, or (ii) as provided in Section 5.4(d) 

hereof, losses resulting from such 

Exculpated Party’s Transaction Reports, 

Quotation Information or other 

information reported to the Processors 

by such Exculpated Party (collectively 

‘‘Non-Exculpated Items’’). Any 

Exculpated Party may consult with 

counsel and accountants in respect of 

Company affairs, and provided such 

Person acts in good faith reliance upon 

the advice or opinion of such counsel or 

accountants, such Person shall not be 

liable for any loss suffered in reliance 

thereon. 

(b) Notwithstanding anything to the 

contrary contained herein, whenever in 

this Agreement or any other agreement 

contemplated herein or otherwise, an 

Exculpated Party is permitted or 

required to take any action or to make 

a decision in its ‘‘sole discretion’’ or 

‘‘discretion’’ or that it deems 

‘‘necessary,’’ or ‘‘necessary or 

appropriate’’ or under a grant of similar 

authority or latitude, the Exculpated 

Party may, insofar as Applicable Law 

permits, make such decision in its sole 

discretion (regardless of whether there 

is a reference to ‘‘sole discretion’’ or 

‘‘discretion’’). The Exculpated Party (i) 

shall be entitled to consider such 

interests and factors as it desires 

(including its own interests), (ii) shall 

have no duty or obligation (fiduciary or 

otherwise) to give any consideration to 

any interest of or factors affecting the 

Company or the Members, and (iii) shall 

not be subject to any other or different 

standards imposed by this Agreement, 

or any other agreement contemplated 

hereby, under any Applicable Law or in 

equity. 

Section 12.2 Right to Indemnification. 

(a) Subject to the limitations and 

conditions provided in this Article XII 

and to the fullest extent permitted by 

Applicable Law, the Company shall 

indemnify each Company Indemnified 

Party for Losses as a result of the 

Company Indemnified Party being a 


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Party to a Proceeding. Notwithstanding 

the foregoing, no such indemnification 

shall be available in the event the 

Company is a claimant against the 

Company Indemnified Party. 

(b) Indemnification under this Article 

XII shall continue as to a Company 

Indemnified Party who has ceased to 

serve in the capacity that initially 

entitled such Company Indemnified 

Party to indemnity hereunder; provided, 

however, that the Company shall not be 

obligated to indemnify a Company 

Indemnified Party for the Company 

Indemnified Party’s Non-Exculpated 

Items. 

(c) The rights granted pursuant to this 

Article XII shall be deemed contract 

rights, and no amendment, 

modification, or repeal of this Article 

XII shall have the effect of limiting or 

denying any such rights with respect to 

actions taken or Proceedings arising 

prior to any amendment, modification, 

or repeal. It is expressly acknowledged 

that the indemnification provided in 

this Article XII could involve 

indemnification for negligence or under 

theories of strict liability. 

(d) The Company shall be the primary 

obligor in respect of any Company 

Indemnified Party’s claim for 

indemnification, for advancement of 

expenses, or for providing insurance, 

subject to this Article XII. The 

obligation, if any, of any Member or its 

Affiliates to indemnify, to advance 

expenses to, or provide insurance for 

any Company Indemnified Party shall 

be secondary to the obligations of the 

Company under this Article XII (and the 

Company’s insurance providers shall 

have no right to contribution or 

subrogation with respect to the 

insurance plans of such Member or its 

Affiliates). 

Section 12.3 Advance Payment. 

Reasonable expenses incurred by a 

Company Indemnified Party who is a 

named defendant or respondent to a 

Proceeding shall be paid by the 

Company in advance of the final 

disposition of the Proceeding upon 

receipt of an undertaking by or on 

behalf of such Company Indemnified 

Party to repay such amount if it shall 

ultimately be determined that he or she 

is not entitled to be indemnified by the 

Company. 

Section 12.4 Appearance as a Witness. 

Notwithstanding any other provision 

of this Article XII, the Company shall 

pay or reimburse reasonable out-ofpocket expenses incurred by a Company 

Indemnified Party in connection with 

his appearance as a witness or other 

participation in a Proceeding at a time 

when he is not a named defendant or 

respondent in the Proceeding. 

Section 12.5 Nonexclusivity of Rights. 

The right to indemnification and the 

advancement and payment of expenses 

conferred in this Article XII shall not be 

exclusive of any other right which any 

Company Indemnified Person may have 

or hereafter acquire under any law 

(common or statutory), provision of the 

Certificate or this Agreement or 

otherwise. 

Article XIII. 

MISCELLANEOUS 

Section 13.1 Expenses. 

The Company shall pay all current 

expenses, including any Taxes payable 

by the Company, whether for its own 

account or otherwise required by law 

(including any costs of complying with 

applicable tax obligations), third-party 

service provider fees, and all 

administrative and processing expenses 

and fees, as well as any other amounts 

owing to the Processors under the 

Processor Services Agreements, to the 

Administrator under the Administrative 

Services Agreement, or to the 

Processors, Administrator, or FINRA 

under Exhibit D to this Agreement, 

before any allocations may be made to 

the Members. Appropriate reserves, as 

unanimously determined by the 

Members, may be charged to the Capital 

Account of the Members for (i) 

contingent liabilities, if any, as of the 

date any such contingent liabilities 

become known to the Operating 

Committee, or (ii) amounts needed to 

pay the Company’s operating expenses, 

including administrative and processing 

expenses and fees, before any 

allocations are made to the Member. 

Each Member shall bear the cost of 

implementation of any technical 

enhancements to the System made at its 

request and solely for its use, subject to 

reapportionment should any other 

Member subsequently make use of the 

enhancement, or the development 

thereof. 

Section 13.2 Entire Agreement. 

Upon the Operative Date, this 

Agreement supersedes the CQ Plan, the 

CTA Plan, and the UTP Plan and all 

other prior agreements among the 

Members with respect to the subject 

matter hereof. This instrument contains 

the entire agreement with respect to 

such subject matter. 

Section 13.3 Notices and Addresses. 

Unless otherwise specified herein, all 

notices, consents, approvals, reports, 

designations, requests, waivers, 

elections, and other communications 

(collectively, ‘‘Notices’’) authorized or 

required to be given pursuant to this 

Agreement shall be in writing and may 

be delivered by certified or registered 

mail, postage prepaid, by hand, by any 

private overnight courier service, or 

notification through the Company’s web 

portal. Such Notices shall be mailed or 

delivered to the Members at the 

addresses set forth on Exhibit A or such 

other address as a Member may notify 

the other Members of in writing. Any 

Notices to be sent to the Company shall 

be delivered to the principal place of 

business of the Company or at such 

other address as the Operating 

Committee may specify in a notice sent 

to all of the Members. Notices shall be 

effective (i) if mailed, on the date three 

days after the date of mailing, (ii) if 

hand delivered or delivered by private 

courier, on the date of delivery, or (iii) 

if sent by through the Company’s web 

portal, on the date sent; provided, 

however, that notices of a change of 

address shall be effective only upon 

receipt. 

Section 13.4 Governing Law. 

This Agreement shall be governed by 

and construed in accordance with the 

Delaware Act and internal laws and 

decisions of the State of Delaware, 

without regard to the conflicts of laws 

principles thereof; provided, however, 

that the rights and obligations of the 

Members, the Processors and the 

Administrator, and of Vendors, 

Subscribers, and other Persons 

contracting with the Company in 

respect of the matters covered by this 

Agreement, shall at all times also be 

subject to any applicable provisions of 

the Exchange Act and any rules and 

regulations promulgated thereunder. For 

the avoidance of doubt, nothing in this 

Agreement waives any protection or 

limitation of liability afforded any of the 

Members or any of their Affiliates by 

common law, including the doctrines of 

self-regulatory organization immunity 

and federal preemption. 

Section 13.5 Amendments. 

(a) Except as this Agreement 

otherwise provides, this Agreement may 

be modified from time to time when 

authorized by the Operating Committee 

pursuant to Section 4.3, subject to the 

approval of the Commission or when 

such modification otherwise becomes 

effective pursuant to Section 11A of the 

Exchange Act and Rule 608 of 

Regulation NMS. 

(b) In the case of a Ministerial 

Amendment, the Chair of the 

Company’s Operating Committee may 

modify this Agreement by submitting to 


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the Commission an appropriate 

amendment that sets forth the 

modification; provided, however, that 

48-hours advance notice of the 

amendment to the Operating Committee 

in writing is required. Such an 

amendment shall become effective upon 

filing with the Commission in 

accordance with Section 11A of the 

Exchange Act and Rule 608 of 

Regulation NMS. 

(c) ‘‘Ministerial Amendment’’ means 

an amendment to this Agreement that 

pertains solely to any one or more of the 

following: 

(i) admitting a new Member to the 

Company; 

(ii) changing the name or address of 

a Member; 

(iii) incorporating a change that the 

Commission has implemented by rule 

and that requires no conforming 

language to the text of this Agreement; 

(iv) incorporating a change (A) that 

the Commission has implemented by 

rule, (B) that requires conforming 

language to the text of this Agreement, 

and (C) whose conforming language to 

the text of this Agreement has been 

approved by the affirmative vote of the 

Operating Committee pursuant to 

Section 4.3; 

(v) incorporating a change (A) that a 

Governmental Authority requires 

relating to the governance or operation 

of an LLC, (B) that requires conforming 

language to the text of this Agreement, 

and (C) whose conforming language to 

the text of this Agreement has been 

approved by the affirmative vote of the 

Operating Committee pursuant to 

Section 4.3[ or upon approval by a 

majority of Members pursuant to 

Section 13.5(b), as applicable]; or 

(vi) incorporating a purely technical 

change, such as correcting an error or an 

inaccurate reference to a statutory 

provision, or removing language that 

has become obsolete. 

Section 13.6 Successors. 

This Agreement shall be binding upon 

and inure to the benefit of the Members 

and their respective legal 

representatives and successors. 

Section 13.7 Limitation on Rights of 

Others. 

None of the provisions of this 

Agreement shall be for the benefit of or 

enforceable by any creditor of the 

Company. Furthermore, except as 

provided in Section 3.7(b), the Members 

shall not have any duty or obligation to 

any creditor of the Company to make 

any contribution to the Company or to 

issue any call for capital pursuant to 

this Agreement. Nothing in this 

Agreement shall be deemed to create 

any legal or equitable right, remedy or 

claim in any Person not a party hereto 

(other than any Person indemnified 

under Article XII). 

Section 13.8 Counterparts. 

This Agreement may be executed by 

the Members in any number of 

counterparts, no one of which need 

contain the signature of all Members. As 

many such counterparts as shall 

together contain all such signatures 

shall constitute one and the same 

instrument. 

Section 13.9 Headings. 

The section and other headings 

contained in this Agreement are for 

reference purposes only and shall not be 

deemed to be a part of this Agreement 

or to affect the meaning or interpretation 

of any provisions of this Agreement. 

Section 13.10 Validity and 

Severability. 

If any provision of this Agreement 

shall be held invalid or unenforceable, 

that shall not affect the validity or 

enforceability of any other provisions of 

this Agreement, all of which shall 

remain in full force and effect. 

Section 13.11 Statutory References. 

Each reference in this Agreement to a 

particular statute or regulation, or a 

provision thereof, shall be deemed to 

refer to such statute or regulation, or 

provision thereof, or to any similar or 

superseding statute or regulation, or 

provision thereof, as is from time to 

time in effect. 

Section 13.12 Modifications To Be in 

Writing. 

This Agreement constitutes the entire 

understanding of the parties hereto with 

respect to the subject matter hereof, and 

no amendment, modification or 

alteration shall be binding unless the 

same is in writing and adopted in 

accordance with the provisions of 

Section 13.5. 

Article XIV. 

IMPLEMENTATION 

Section 14.1 Implementation 

Timeline. 

[The steps to implement the Plan and 

timelines for completing these various 

steps are set forth in Exhibit F. The 

timeline shall begin when the Plan is 

approved by the Commission, and such 

approval is published on the 

Commission’s website. The steps to 

implement the Plan have been 

organized into multiple workstreams, 

some of which can be performed in 

parallel, and others have dependencies 

that need to be completed before they 

can begin. In the Exhibit F, the 

Company has identified such 

dependencies, some of which are 

outside the control of the Operating 

Committee. In the event a workstream 

listed in Exhibit F takes shorter or, due 

to factors outside the Operating 

Committee’s reasonable control, takes 

longer than expected, the timelines for 

contingent steps shall be adjusted 

accordingly to account for such change. 

Any lengthening of the timeline must be 

made by an affirmative vote of the 

Operating Committee pursuant to 

Section 4.3(b) and must be based on a 

reasonable determination that the 

timeline needs to be extended. In such 

instances, the Operating Committee will 

include the adjustment in its written 

progress report to the Commission in 

accordance with Section 14.2.] 

(a) No later than one month after the 

Effective Date, the Voting 

Representatives shall be determined 

pursuant to Section 4.2 of this 

Agreement. 

(b) No later than three months after 

the Effective Date, the Voting 

Representatives shall select the 

members of the Advisory Committee. 

(c) No later than 12 months after the 

Effective Date, the Operating Committee 

shall file with the Commission proposed 

Fees charged to Vendors and 

Subscribers for Transaction Reports and 

Quotation Information in Eligible 

Securities. 

(d) No later than 30 months after the 

Effective Date, or no later than 90 days 

after the Commission has approved Fees 

charged to Vendors and Subscribers for 

Transaction Reports and Quotation 

Information in Eligible Securities, 

whichever date is later, the Plan shall 

conduct the Processor and 

Administrator functions related to the 

public dissemination of real-time 

consolidated Transaction Reports and 

Quotation Information for Eligible 

Securities. 

(e) No later than 30 months after the 

Effective Date, the entity performing the 

role of Administrator of the Plan shall 

meet the requirements of Section 6.2 of 

this Agreement and shall have been 

selected pursuant to the process in 

Section 6.4 of this Agreement. 

Section 14.2 Written Progress Reports 

to Commission. 

(a) Beginning three months after the 

formation of the Operating Committee 

and continuing every three months until 

the Operative Date, the Operating 

Committee will provide written progress 

reports to the Commission every three 

months. 


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(b) The written progress reports will 

contain the actions undertaken to date 

by the Operating Committee and a 

detailed description of the progress 

made toward completing each of the 

steps [listed in Exhibit F]required to 

implement the Plan. The Operating 

Committee will promptly make such 

progress reports available on the CQ 

Plan and CTA Plan’s and UTP Plan’s 

websites until such time as[, and on] the 

Plan’s website becomes available[, when 

available after the selection of the 

Administrator]. 

Section 14.3 Transition From CQ 

Plan, CTA Plan, and UTP Plan. 

(a) Until the Operative Date, the 

Members will continue to operate 

pursuant to the CQ Plan, CTA Plan, and 

UTP Plan with respect to the public 

dissemination of real-time consolidated 

equity market data for Eligible 

Securities rather than this Agreement. 

(b) As of the Operative Date, the 

Members shall conduct, through the 

Company, the Processor and 

Administrator functions related to the 

public dissemination of real-time 

consolidated equity market data for 

Eligible Securities required by the 

Commission to be performed by the 

Members under the Exchange Act and 

the rules and regulations thereunder. 

The Members shall file an amendment 

to the CQ Plan, CTA Plan, and UTP Plan 

to cease their operation as of the 

Operative Date. 

IN WITNESS WHEREOF, the 

undersigned Members have executed 

this Agreement as of the day and year 

first above written. 

EXHIBIT A 

Members of CT Plan LLC 

Member Name and Address 

Cboe BYX Exchange, Inc., 400 South 

LaSalle Street, Chicago, Illinois 60605 

Cboe BZX Exchange, Inc., 400 South 

LaSalle Street, Chicago, Illinois 60605 

Cboe EDGA Exchange, Inc., 400 South 

LaSalle Street, Chicago, Illinois 60605 

Cboe EDGX Exchange, Inc., 400 South 

LaSalle Street, Chicago, Illinois 60605 

Cboe Exchange, Inc., 400 South LaSalle 

Street, Chicago, Illinois 60605 

Financial Industry Regulatory 

Authority, Inc., 1700 K Street NW, 

Washington, D.C. 20006 

Investors Exchange LLC, 3 World Trade 

Center 58th Floor, New York, New 

York 10007 

Long-Term Stock Exchange, Inc., 101 

Greenwich Street, 15th Floor, New 

York, New York 10014 

MEMX LLC, 382 NE 191st Street, Suite 

92178, Miami, FL 33179 

MIAX PEARL, LLC, 7 Roszel Road, 

Suite 1A, Princeton, New Jersey 

08540 

Nasdaq BX, Inc., One Liberty Plaza, 165 

Broadway, New York, New York 

10006 

Nasdaq ISE, LLC, One Liberty Plaza, 165 

Broadway, New York, New York 

10006 

Nasdaq PHLX LLC, FMC Tower, Level 

8, 2929 Walnut Street, Philadelphia, 

Pennsylvania 19104 

The Nasdaq Stock Market LLC, One 

Liberty Plaza, 165 Broadway, New 

York, NY 10006 

New York Stock Exchange LLC, 11 Wall 

Street, New York, New York 10005 

NYSE American LLC, 11 Wall Street, 

New York, New York 10005 

NYSE Arca, Inc., 11 Wall Street, New 

York, New York 10005 

NYSE Chicago, Inc., 11 Wall Street, New 

York, New York 10005 

NYSE National, Inc., 11 Wall Street, 

New York, NY 10005 

EXHIBIT B 

Disclosures 

(a) The Members must respond to the 

following questions and instructions: 

(i) Is the Member for profit or not-forprofit? If the Member is for profit, is it 

publicly or privately owned? If privately 

owned, list any owner with an interest 

of 5% or more of the Member, where to 

the Member’s knowledge, such owner, 

or any affiliate controlling, controlled 

by, or under common control with the 

owner, subscribes, directly or through a 

third-party vendor, to CT Feeds and/or 

Member PDP. 

(ii) Does the Member offer PDP? If yes, 

list each product, describe its content, 

and provide a link to where fees for 

each product are disclosed. 

(iii) Provide the names of the Voting 

Representative, any alternate Voting 

Representatives designated by the 

Member, and any Member Observers. 

Also provide a narrative description of 

such persons’ roles within the Member 

organization, including the title of each 

individual as well as any direct 

responsibilities related to the 

development, dissemination, sales, or 

marketing of the Member’s PDP, and the 

nature of those responsibilities 

sufficient for the public to identify the 

nature of any potential conflict of 

interest that could be perceived by a 

reasonable objective observer as having 

an effect on the operation of the 

Company. If such persons work in or 

with the Member’s PDP business, 

describe such persons’ roles and 

describe how that business and such 

persons’ Company responsibilities 

impacts their compensation. In 

addition, describe how such persons’ 

responsibilities with the PDP business 

may present a conflict of interest with 

their responsibilities to the Company. 

(iv) Does the Member, its Voting 

Representative, its alternate Voting 

Representative, or its Member Observers 

or any affiliate have additional 

relationships or material economic 

interests that could be perceived by a 

reasonable objective observer to present 

a potential conflict of interest with their 

responsibilities to the Company? If so, 

provide a detailed narrative discussion 

of all material facts necessary to identify 

the potential conflicts of interest and the 

effects they may have on the Company. 

(b) The Processors must respond to 

the following questions and 

instructions: 

(i) Is the Processor an affiliate of or 

affiliated with any Member? If yes, 

disclose the Member(s) and describe the 

nature of the affiliation. Include an 

entity-level organizational chart 

depicting the Processor and its affiliates. 

(ii) Provide a narrative description of 

the functions directly performed by 

senior staff, the manager employed by 

the Processor to provide Processor 

services to the Company, and the staff 

that reports to that manager. 

(iii) Does the Processor provide any 

services for any Member’s PDP, other 

NMS Plans, or creation of consolidated 

equity data information for its own use? 

If Yes, disclose the services the 

Processor performs and identify which 

NMS Plans. Does the Processor have any 

profit or loss responsibility for a 

Member’s PDP or any other professional 

involvement with persons the Processor 

knows are engaged in a Member’s PDP 

business? If so, describe. 

(iv) List the policies and procedures 

established to safeguard Restricted 

Information, Highly Confidential 

Information, and Confidential 

Information that is applicable to the 

Processor. 

(v) Does the Processor, or its 

representatives, have additional 

relationships or material economic 

interests that could be perceived by a 

reasonable objective observer to present 

a potential conflict of interest with the 

representatives’ responsibilities to the 

Company? If so, provide a detailed 

narrative discussion of all material facts 

necessary to identify the potential 

conflicts of interest and the effects they 

may have on the Company. 

(c) The Administrator must respond 

to the following questions and 

instructions: 

(i) Provide a narrative description of 

the functions directly performed by 

senior staff, the administrative services 


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manager, and the staff that reports to 

that manager. 

(ii) Does the Administrator provide 

any services for any Member’s PDP? If 

yes, what services? Does the 

Administrator have any profit or loss 

responsibility, or licensing 

responsibility, for a Member’s PDP or 

any other professional involvement with 

persons the Administrator knows are 

engaged in the Member’s PDP business? 

If so, describe. 

(iii) List the policies and procedures 

established to safeguard Restricted 

Information, Highly Confidential 

Information, and Confidential 

Information that is applicable to the 

Administrator. 

(iv) Does the Administrator, or its 

representatives, have additional 

relationships or material economic 

interests that could be perceived by a 

reasonable objective observer to present 

a potential conflict of interest with the 

representatives’ responsibilities to the 

Company? If so, provide a detailed 

narrative discussion of all material facts 

necessary to identify the potential 

conflicts of interest and the effects they 

may have on the Company. 

(d) The members of the Advisory 

Committee must respond to the 

following questions and instructions: 

(i) Provide the member of the 

Advisory Committee’s title and a brief 

description of the member of the 

Advisory Committee’s role within the 

firm as well as any direct 

responsibilities related to the 

procurement of PDP or CT Feeds or the 

development, dissemination, sales, or 

marketing of PDP, and the nature of 

those responsibilities sufficient for the 

public to identify the nature of any 

potential conflict of interest that could 

be perceived by a reasonable objective 

observer as having an effect on the 

operation of the Company. If such 

representatives work in or with their 

employer’s market data business, 

describe such member of the Advisory 

Committee’s roles and describe how that 

business impacts their compensation. In 

addition, describe how such 

representatives’ responsibilities with the 

market data business may present a 

conflict of interest with their 

responsibilities to the Company. 

(ii) Does the member of the Advisory 

Committee have responsibilities related 

to the firm’s use or procurement of 

market data? 

(iii) Does the member of the Advisory 

Committee have responsibilities related 

to the firm’s trading or brokerage 

services? 

(iv) Does the member of the Advisory 

Committee’s firm use the CT Feeds? 

Does the member of the Advisory 

Committee’s firm use a Member’s PDP? 

(v) Does the member of the Advisory 

Committee’s firm offer PDP? If yes, list 

each product, described its content, and 

provide information about the fees for 

each product. 

(vi) Does the member of the Advisory 

Committee’s firm have an ownership 

interest of 5% or more in one or more 

Members? If yes, list the Member(s). 

(vii) Does the member of the Advisory 

Committee actively participate in any 

litigation against the CQ Plan, CTA 

Plan, UTP Plan, or the Company? 

(viii) Does the member of the 

Advisory Committee or the member of 

the Advisory Committee’s firm have 

additional relationships or material 

economic interests that could be 

perceived by a reasonable objective 

observer to present a potential conflict 

of interest with their responsibilities to 

the Company. If so, provide a detailed 

narrative discussion of all material facts 

necessary to identify the potential 

conflicts of interest and the effects they 

may have on the Company. 

(e) Each service provider or 

subcontractor that has agreed in writing 

to provide required disclosures and be 

treated as a Disclosing Party shall 

respond to the following questions and 

instructions: 

(i) Is the service provider or 

subcontractor affiliated with a Member, 

Processor, Administrator, or employer 

of a member of the Advisory 

Committee? If yes, disclose with whom 

the person is affiliated and describe the 

nature of the affiliation. 

(ii) If the service provider’s or 

subcontractor’s compensation is on a 

commission basis or is tied to specific 

metrics, provide a detailed narrative 

summary of how compensation is 

determined for performing work on 

behalf of the Company. 

(iii) Is the service provider or 

subcontractor subject to policies and 

procedures (including information 

barriers) concerning the protection of 

confidential information that includes 

affiliates? If so, describe. If not, explain 

their absence. 

(iv) Does the service provider or 

subcontractor, or its representative, have 

additional relationships or material 

economic interests that could be 

perceived by a reasonable objective 

observer to present a potential conflict 

of interest with its responsibilities to the 

Company? If so, provide a detailed 

narrative discussion of all material facts 

necessary to identify the potential 

conflicts of interest and the effects they 

may have on the Company. 

(f) The responses to these questions 

will be posted on the Company’s 

website. If a Disclosing Party has any 

material changes in its responses, the 

Disclosing Party must promptly update 

its disclosures. Additionally, the 

Disclosing Parties must update the 

disclosures on an annual basis to reflect 

any changes. This annual update must 

be made before the first quarterly 

session meeting of each calendar year, 

which is generally held in midFebruary. 

EXHIBIT C 

Confidentiality Policy 

(a) Purpose and Scope. 

(i) The purpose of this Confidentiality 

Policy is to provide guidance to the 

Operating Committee, and all 

subcommittees thereof, regarding the 

confidentiality of any data or 

information (in physical or electronic 

form) generated by, accessed by, or 

transmitted to the Operating Committee 

or any subcommittee, as well as 

discussions occurring at a meeting of 

the Operating Committee or any 

subcommittee. 

(ii) This Policy applies to all Covered 

Persons. All Covered Persons must 

adhere to the principles set out in this 

Policy and all Covered Persons that are 

natural persons may not receive 

Company data and information until 

they affirm in writing that they have 

read this Policy and undertake to abide 

by its terms. 

(iii) Covered Persons may not disclose 

Restricted, Highly Confidential, or 

Confidential information except as 

consistent with this Policy and directed 

by the Operating Committee. 

(iv) The Administrator and Processors 

will establish written confidential 

information policies that provide for the 

protection of information under their 

control and the control of their Agents, 

including policies and procedures that 

provide systemic controls for 

classifying, declassifying, redacting, 

aggregating, anonymizing, and 

safeguarding information, that is in 

addition to, and not less than, the 

protection afforded herein. Such 

policies will be reviewed and approved 

by the Operating Committee pursuant to 

Section 4.3, publicly posted, and made 

available to the Operating Committee for 

review and approval every two years 

thereafter or when changes are made, 

whichever is sooner. 

(v) Information will be classified 

solely based on its content. 

(b) Procedures. 

(i) General 

(A) The Administrator and Processors 

will be the custodians of all documents 

discussed by the Operating Committee 

and will be responsible for maintaining 


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the classification of such documents 

pursuant to this Policy. 

(B) The Administrator may, under 

delegated authority, designate 

documents as Restricted, Highly 

Confidential, or Confidential, which 

will be determinative unless altered by 

an affirmative vote of the Operating 

Committee pursuant to Section 4.3. 

(C) The Administrator will ensure that 

all Restricted, Highly Confidential, or 

Confidential documents are properly 

labeled and, if applicable, electronically 

safeguarded. 

(D) All contracts between the 

Company and its Agents shall require 

Company information to be treated as 

Confidential Information that may not 

be disclosed to third parties, except as 

necessary to effect the terms of the 

contract or as required by law, and shall 

incorporate the terms of this Policy, or 

terms that are substantially equivalent 

or more restrictive, into the contract. 

(ii) Procedures Concerning Restricted 

Information. 

(A) Disclosure of Restricted 

Information 

(1) Except as provided below, Covered 

Persons in possession of Restricted 

Information are prohibited from 

disclosing it to others. 

(2) Covered Persons in possession of 

Restricted Information are prohibited 

from disclosing it to others, including 

Agents, except where authorized to do 

so by the Operating Committee. Any 

authorization to disclose Restricted 

Information must specify the 

information to be disclosed and identify 

the Covered Persons or third party 

authorized to receive the Restricted 

Information, and such disclosure must 

be in furtherance of the interests of the 

plan. Any authorization must be granted 

on a case-by-case basis, unless the 

Operating Committee grants standing 

approval to allow disclosure of specified 

recurring information to identified 

Covered Persons. Any Covered Person 

or third party receiving or having access 

to Restricted Information pursuant to 

this subparagraph must segregate such 

information, retain it in confidence, and 

use it only in a manner consistent with 

the terms of this Policy. 

(3) Covered Persons may disclose 

Restricted Information to the staff of the 

SEC or as otherwise required by 

Applicable Law, or to other Covered 

Persons as expressly provided for by 

this Policy. 

(B) If the Administrator determines 

that it is appropriate to share a 

customer’s financial information with 

the Operating Committee or a 

subcommittee thereof, the 

Administrator will first anonymize the 

information by redacting the customer’s 

name and any other information that 

may lead to the identification of the 

customer. 

(C) The Administrator may disclose 

the identity of a customer that is the 

subject of Restricted Information in 

Executive Session only if the 

Administrator determines in good faith 

that it is necessary to disclose the 

customer’s identity in order to obtain 

input or feedback from the Operating 

Committee or a subcommittee thereof 

about a matter of importance to the 

Company. In such an event, the 

Administrator will change the 

designation of the information at issue 

from ‘‘Restricted Information’’ to 

‘‘Highly Confidential Information,’’ and 

its use will be governed by the 

procedures for Highly Confidential 

Information in subparagraph (iii) below. 

(iii) Procedures Concerning Highly 

Confidential Information 

(A) Disclosure of Highly Confidential 

Information: 

(1) Highly Confidential Information 

may be disclosed in Executive Session 

of the Operating Committee or to the 

subcommittee established pursuant to 

Section [4.7(c)]4.8(d). Covered Persons 

in possession of Highly Confidential 

Information are prohibited from 

disclosing it to others, including Agents, 

except as provided below. This 

prohibition does not apply to 

disclosures to the staff of the SEC[or as 

otherwise required by law (such as 

those required to receive the 

information to ensure the Member 

complies with its regulatory 

obligations)]. 

(2) A[n SRO] Voting Representative 

may disclose certain Highly 

Confidential Information to officers or 

employees of a Member who have direct 

or supervisory responsibility for the 

Member’s participation in the Plan, or 

with agents for the Member supporting 

the Member’s participation in the Plan, 

provided that such information may not 

be used in the procurement for, or 

development, modeling, pricing, 

licensing, or sale of, PDP. The types of 

Highly Confidential Information 

permitted to be shared under this 

subparagraph shall consist of (i) the 

Plan’s contract negotiations with the 

Processor(s) or Administrator; (ii) 

communications with, and work 

product of, counsel to the Plan; and (iii) 

information concerning personnel 

matters that affect the employees of the 

Member or of the Plan. Any Covered 

Person receiving or having access to 

[Restricted Information]Highly 

Confidential Information pursuant to 

this subparagraph must segregate such 

information, retain it in confidence, and 

use it only in a manner consistent with 

the terms of this Policy. Any 

[SRO]Voting Representative who 

discloses Highly Confidential 

Information pursuant to this 

subparagraph shall maintain a log 

documenting each instance of such 

disclosure, including the information 

shared, the persons receiving the 

information, and the date the 

information was shared. 

(3) Highly Confidential Information 

may be disclosed to the staff of the SEC, 

unless it is protected by the AttorneyClient Privilege or the Work Product 

Doctrine. Any disclosure of Highly 

Confidential Information to the staff of 

the SEC will be accompanied by a FOIA 

Confidential Treatment request. 

(4) Highly Confidential Information 

may be disclosed, as required by 

Applicable Law. 

(5) The Operating Committee may 

authorize the disclosure of specified 

Highly Confidential Information to 

identified third parties that are acting as 

Agents. Any authorization must be 

granted on a case-by-case basis, unless 

the Operating Committee grants 

standing approval to allow disclosure of 

specified recurring information to 

identified third parties[Covered 

Persons]. Any [Covered Person or ]third 

party receiving or having access to 

Highly Confidential Information 

pursuant to this subparagraph must 

segregate such information, retain it in 

confidence, and use it only in a manner 

consistent with the terms of this Policy. 

[(5)](6) Apart from the foregoing, the 

Operating Committee has no power to 

authorize any other disclosure of Highly 

Confidential Information. 

(B) In the event that a Covered Person 

is determined by an affirmative vote of 

the Operating Committee pursuant to 

this Policy to have disclosed Highly 

Confidential Information, the Operating 

Committee will determine the 

appropriate remedy for the breach based 

on the facts and circumstances of the 

event. For a[n SRO] Voting 

Representative or Member Observer, 

remedies include a letter of complaint 

submitted to the SEC, which may be 

made public by the Operating 

Committee. For a member of the 

Advisory Committee, remedies include 

removal of that member of the Advisory 

Committee. 

(iv) Procedures Concerning 

Confidential Information 

(A) Confidential Information may be 

disclosed during a meeting of the 

Operating Committee or any 

subcommittee thereof. Additionally, a 

Covered Person may disclose 

Confidential Information to other 

persons who need to receive such 

information to fulfill their 


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responsibilities to the Plan, including 

oversight of the Plan. The recipient 

must segregate the information, retain it 

in confidence, and use it only in a 

manner consistent with the terms of this 

policy. A Covered Person also may 

disclose Confidential Information to the 

staff of the SEC, as authorized by the 

Operating Committee as described 

below, or as may be otherwise required 

by [law]Applicable Law. 

(B) The Operating Committee may 

authorize the disclosure of Confidential 

Information by an affirmative vote of the 

Operating Committee pursuant to 

Section 4.3. Any authorization must be 

granted on a case-by-case basis, unless 

the Operating Committee grants 

standing approval to allow disclosure of 

specified recurring information to 

identified Covered Persons. Any 

Covered Person or third party receiving 

or having access to Confidential 

Information pursuant to this 

subparagraph must segregate such 

information, retain it in confidence, and 

use it only in a manner consistent with 

the terms of this Policy. 

Notwithstanding the foregoing, the 

Operating Committee will not authorize 

the disclosure of Confidential 

Information that is generated by a 

Member or member of the Advisory 

Committee and designated by such 

Member or member of the Advisory 

Committee as Confidential, unless such 

Member or member of the Advisory 

Committee consents to the disclosure. 

(C) Members of the Advisory 

Committee may be authorized by the 

Operating Committee to disclose 

particular Confidential Information only 

in furtherance of the interests of the 

Company, to enable them to consult 

with industry representatives or 

technical experts, provided that the 

members of the Advisory Committee 

take any steps requested by the 

Operating Committee to prevent further 

dissemination of that Confidential 

Information, including providing the 

individual(s) consulted with a copy of 

this Policy and requesting that person to 

maintain the confidentiality of such 

information in a manner consistent with 

this policy. 

(D) A Covered Person that is a 

representative of a Member may be 

authorized by the Operating Committee 

to disclose particular Confidential 

Information to other employees or 

agents of the Member or its affiliates 

only in furtherance of the interests of 

the Company as needed for such 

Covered Person to perform his or her 

function on behalf of the Company. A 

copy of this Policy will be made 

available to recipients of such 

information who are employees or 

agents of a Member or its affiliates that 

are not Covered Persons, who will be 

required to abide by this Confidentiality 

Policy. 

(E) A Covered Person may disclose 

their own individual views and 

statements that may otherwise be 

considered Confidential Information 

without obtaining authorization of the 

Operating Committee, provided that in 

so disclosing, the Covered Person is not 

disclosing the views or statements of 

any other Covered Person or Member 

that are considered Confidential 

Information. 

(F) A person that has reason to believe 

that Confidential Information has been 

disclosed by another without the 

authorization of the Operating 

Committee or otherwise in a manner 

inconsistent with this Policy may report 

such potential unauthorized disclosure 

to the Chair of the Operating Committee. 

In addition, a Covered Person that 

discloses Confidential Information 

without the authorization of the 

Operating Committee will report such 

disclosure to the Chair of the Operating 

Committee. Such self-reported 

unauthorized disclosure of Confidential 

Information will be recorded in the 

minutes of the meeting of the Operating 

Committee and will contain: (a) the 

name(s) of the person(s) who disclosed 

such Confidential Information, and (b) a 

description of the Confidential 

Information disclosed. The name(s) of 

the person(s) who disclosed such 

Confidential Information will also be 

recorded in any publicly available 

summaries of Operating Committee 

minutes. 

EXHIBIT D 

Distributions 

Cost Allocation and Revenue Sharing 

(a) Payments. In accordance with 

Paragraph (l) of this Exhibit D, each 

Member will receive an annual payment 

(if any) for each calendar year that is 

equal to the sum of the Member’s 

Trading Shares and Quoting Shares 

(each as defined below), in each Eligible 

Security for such calendar year. In the 

event that total Net Distributable 

Operating Income (as defined below) is 

negative for a given calendar year, each 

Member will receive an annual bill for 

such calendar year to be determined 

according to the same formula 

(described in this paragraph) for 

determining annual payments to the 

Members. Unless otherwise stated in 

this agreement, a year shall run from 

January 1st to December 31st and 

quarters shall end on March 31st, June 

30th, September 30th, and December 

31st. The Company shall cause the 

Administrator to provide the Members 

with written estimates of each Member’s 

percentage of total volume within five 

business days of the end of each 

calendar month. 

(b) Security Income Allocation. The 

‘‘Security Income Allocation’’ for an 

Eligible Security shall be determined by 

multiplying (i) the Net Distributable 

Operating Income under this Agreement 

for the calendar year by (ii) the Volume 

Percentage for such Eligible Security 

(the ‘‘Initial Allocation’’), and then 

adding or subtracting any amounts 

specified in the reallocation set forth 

below. 

(c) Volume Percentage. The ‘‘Volume 

Percentage’’ for an Eligible Security 

shall be determined by dividing (A) the 

square root of the dollar volume of 

Transaction Reports disseminated by 

the Processors in such Eligible Security 

during the calendar year by (B) the sum 

of the square roots of the dollar volume 

of Transaction Reports disseminated by 

the Processors in each Eligible Security 

during the calendar year. 

(d) Cap on Net Distributable 

Operating Income. If the Initial 

Allocation of Net Distributable 

Operating Income in accordance with 

the Volume Percentage of an Eligible 

Security equals an amount greater than 

$4.00 multiplied by the total number of 

qualified Transaction Reports in such 

Eligible Security during the calendar 

year, the excess amount shall be 

subtracted from the Initial Allocation for 

such Eligible Security and reallocated 

among all Eligible Securities in direct 

proportion to the dollar volume of 

Transaction Reports disseminated by 

the Processors in Eligible Securities 

during the calendar year. A Transaction 

Report with a dollar volume of $5,000 

or more shall constitute one qualified 

Transaction Report. A Transaction 

Report with a dollar volume of less than 

$5,000 shall constitute a fraction of a 

qualified Transaction Report that equals 

the dollar volume of the Transaction 

Report divided by $5,000. 

(e) Trading Share. The ‘‘Trading 

Share’’ of a Member in an Eligible 

Security shall be determined by 

multiplying (i) an amount equal to fifty 

percent of the Security Income 

Allocation for the Eligible Security by 

(ii) the Member’s Trade Rating in the 

Eligible Security. 

(f) Trade Rating. A Member’s ‘‘Trade 

Rating’’ in an Eligible Security shall be 

determined by taking the average of (A) 

the Member’s percentage of the total 

dollar volume of Transaction Reports 

disseminated by the Processors in the 

Eligible Security during the calendar 

year, and (B) the Member’s percentage 

of the total number of qualified 


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1All costs associated with collecting, 

consolidating, validating, generating, and 

disseminating the FINRA OTC Data are borne 

directly by FINRA and not the Company and the 

Members. 

Transaction Reports disseminated by 

the Processors in the Eligible Security 

during the calendar year. 

(g) Quoting Share. The ‘‘Quoting 

Share’’ of a Member in an Eligible 

Security shall be determined by 

multiplying (A) an amount equal to fifty 

percent of the Security Income 

Allocation for the Eligible Security by 

(B) the Member’s Quote Rating in the 

Eligible Security. 

(h) Quote Rating. A Member’s ‘‘Quote 

Rating’’ in an Eligible Security shall be 

determined by dividing (A) the sum of 

the Quote Credits earned by the Member 

in such Eligible Security during the 

calendar year by (B) the sum of the 

Quote Credits earned by all Members in 

such Eligible Security during the 

calendar year. 

(i) Quote Credits. A Member shall 

earn one ‘‘Quote Credit’’ for each second 

of time (with a minimum of one full 

second) multiplied by dollar value of 

size that an automated best bid (offer) 

transmitted by the Member to the 

Processors during regular trading hours 

is equal to the price of the National Best 

Bid and Offer in the Eligible Security 

and does not lock or cross a previously 

displayed ‘‘automated quotation’’ (as 

defined under Rule 600 of Regulation 

NMS). The dollar value of size of a 

quote shall be determined by 

multiplying the price of a quote by its 

size. 

(j) Net Distributable Operating 

Income. The ‘‘Net Distributable 

Operating Income’’ for any particular 

calendar year shall mean: 

(i) all cash revenues, funds and 

proceeds received by the Company 

during such calendar year (other than 

Capital Contributions by the Members 

or amounts paid pursuant to Section 

3.7(b) of this Agreement), including all 

revenues from (A) the CT Feeds, which 

includes the dissemination of 

information with respect to Eligible 

Securities to foreign marketplaces, and 

(B) FINRA quotation data and last sale 

information for securities classified as 

OTC Equity Securities under FINRA’s 

Rule 6400 Series (the ‘‘FINRA OTC 

Data’’) ((A) and (B) collectively, the 

‘‘Data Feeds’’), and (C) any Membership 

Fees; less 

(ii) 6.25% of the revenue received by 

the Company during such calendar year 

attributable to the segment of the Data 

Feeds reflecting the dissemination of 

information with respect to Network C 

Securities and FINRA OTC Data (but, for 

the avoidance of doubt, not including 

revenue attributable to the segment of 

the Data Feeds reflecting the 

dissemination of information with 

respect to Network A Securities and 

Network B Securities), which amount 

shall be paid to FINRA as compensation 

for the FINRA OTC Data; 1 less 

(iii) reasonable working capital 

reserves and reasonable reserves for 

contingencies for such calendar year, as 

determined by the Operating 

Committee, and all costs and expenses 

of the Company during such calendar 

year, including: 

(A) all amounts payable during such 

calendar year to the Administrator 

pursuant to the Administrative Services 

Agreement or this Agreement; 

(B) all amounts payable during such 

calendar year to the Processors pursuant 

to the Processor Services Agreements or 

this Agreement; and 

(C) all amounts payable during such 

calendar year to third-party service 

providers engaged by or on behalf of the 

Company. 

(k) Initial Eligibility. At the time a 

Member implements a Processorapproved electronic interface with the 

Processors, the Member will become 

eligible to receive revenue. 

(l) Quarterly Distributions. The 

Company shall cause the Administrator 

to provide Members with written 

estimates of each Member’s quarterly 

Net Distributable Operating Income 

within 45 calendar days of the end of 

the quarter, and estimated quarterly 

payments or billings shall be made on 

the basis of such estimates. All quarterly 

payments or billings shall be made to 

each eligible Member within 45 days 

following the end of each calendar 

quarter in which the Member is eligible 

to receive revenue; provided, that each 

quarterly payment or billing shall be 

reconciled against a Member’s 

cumulative year-to-date payment or 

billing received to date and adjusted 

accordingly; further, provided, that the 

total of such estimated payments or 

billings shall be reconciled at the end of 

each calendar year and, if necessary, 

adjusted by March 31st of the following 

year. Interest shall be included in 

quarterly payments and in adjusted 

payments made on March 31st of the 

following year. Such interest shall 

accrue monthly during the period in 

which revenue was earned and not yet 

paid and will be based on the 90-day 

Treasury bill rate in effect at the end of 

the quarter in which the payment is 

made. Monthly interest shall start 

accruing 45 days following the month in 

which it is earned and accrue until the 

date on which the payment is made. 

(m) Itemized Statements. In 

conjunction with calculating estimated 

quarterly and reconciled annual 

payments under this Exhibit D, the 

Company shall cause the Administrator 

to submit to the Members a quarterly 

itemized statement setting forth the 

basis upon which Net Distributable 

Operating Income was calculated. Such 

Net Distributable Operating Income 

shall be adjusted annually based solely 

on the quarterly itemized statement 

audited pursuant to the annual audit. 

The Company shall cause the 

Administrator to pay or bill Members 

for the audit adjustments within thirty 

days of completion of the annual audit. 

Upon the affirmative vote of Voting 

Representatives pursuant to Section 4.3, 

the Company shall cause the 

Administrator to engage an independent 

auditor to audit the Administrator’s 

costs or other calculation(s). 

EXHIBIT E 

Fees 

(To be determined by the Operating 

Committee under this Agreement) 

[EXHIBIT F] * 

* The Commission has deleted proposed 

Exhibit F in its entirety. 

[FR Doc. 2024–27644 Filed 11–27–24; 8:45 am] 

BILLING CODE 8011–01–P 


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