44238 Federal Register / Vol. 82, No. 182 / Thursday, September 21, 2017 / Notices 

22For purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. See 15 U.S.C. 78c(f). 

23 17 CFR 200.30–3(a)(12). 

1Exchange Act Release No. 77112 (Feb. 11, 2016), 

File No. SR–OCC–2015–02. 

2BATS Global Markets, Inc. (‘‘BATS’’) was 

initially a petitioner, but later withdrew. 

3The petitioners had also opposed OCC’s motion 

to lift the automatic stay in place pending the 

Commission’s review of the Capital Plan. The 

Commission found, however, that it was ‘‘in the 

public interest to the lift the stay during the 

pendency of the Commission’s review.’’ Exchange 

Act Release No. 75886 at 2 (Sept. 10, 2015), File No. 

SR–OCC–2015–02. The Commission noted that it 

‘‘believes that the concerns raised by Petitioners 

regarding potential monetary and competitive harm 

do not currently justify maintaining the stay during 

the pendency of the Commission’s review.’’ Id. 

4Susquehanna Int’l Grp., LLP v. SEC, 866 F.3d 

442, 443 (D.C. Cir. 2017). 

5 Id. at 446. 

6 Id. at 451. 

7 Id. 

8By separate order of today’s date, we are issuing 

a scheduling order governing the proceedings on 

remand. 

9Petitioner KCG has not joined the instant 

motion. 

proposed rule change operative upon 

filing.22

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is: (i) Necessary or appropriate in 

the public interest; (ii) for the protection 

of investors; or (iii) otherwise in 

furtherance of the purposes of the Act. 

If the Commission takes such action, the 

Commission shall institute proceedings 

to determine whether the proposed rule 

should be approved or disapproved. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include File Number SR– 

GEMX–2017–42 on the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–GEMX–2017–42. This file 

number should be included on the 

subject line if email is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

Internet Web site (http://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for Web site viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street NE., 

Washington, DC 20549, on official 

business days between the hours of 

10:00 a.m. and 3:00 p.m. Copies of the 

filing also will be available for 

inspection and copying at the principal 

office of the Exchange. All comments 

received will be posted without change; 

the Commission does not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

available publicly. All submissions 

should refer to File Number SR–GEMX– 

2017–42 and should be submitted on or 

before October 12, 2017. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.23

Eduardo A. Aleman, 

Assistant Secretary. 

[FR Doc. 2017–20088 Filed 9–20–17; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[File No. SR–OCC–2015–02; Release No. 

81628] 

Before the Securities and Exchange 

Commission; Securities Exchange Act 

of 1934; In the Matter of the Options 

Clearing Corporation; Corrected Order 

Denying Motion for Stay 

September 14, 2017. 

On February 11, 2016, the 

Commission issued an order (‘‘Approval 

Order’’) approving the Options Clearing 

Corporation’s (‘‘OCC’’) plan for raising 

additional capital (‘‘Capital Plan’’ or 

‘‘Plan’’) to support its function as a 

systemically important financial market 

utility.1 BOX Options Exchange LLC, 

KCG Holdings, Inc. (‘‘KCG’’), Miami 

International Securities Exchange, LLC, 

and Susquehanna International Group, 

LLP (collectively ‘‘petitioners’’) 2 filed a 

petition for review of the Approval 

Order in the U.S. Court of Appeals for 

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

Circuit’’), challenging the Commission’s 

Approval Order as inconsistent with the 

Exchange Act and lacking in the 

reasoned decisionmaking required by 

the Administrative Procedure Act. 

After filing their petition for review, 

petitioners filed a motion for a stay in 

the D.C. Circuit asking the court to stay 

the Commission’s Approval Order 

pending the court’s review. The D.C. 

Circuit denied petitioners’ request for a 

stay.3

In ruling on the petition for review, 

the D.C. Circuit concluded that the 

Approval Order did not ‘‘represent the 

kind of reasoned decisionmaking 

required by either the Exchange Act or 

the Administrative Procedure Act,’’ and 

therefore remanded the case to the 

Commission for further proceedings.4 In 

so ruling, the court did not reach any of 

petitioners’ arguments that the Plan was 

inconsistent with the substantive 

requirements of the Exchange Act, 

finding instead that the Commission’s 

failure to make the required findings 

under the Act required a remand.5

The court also considered whether to 

vacate the Approval Order prior to 

remand, and decided not to vacate. As 

the court explained, ‘‘the SEC may be 

able to approve the Plan once again, 

after conducting a proper analysis on 

remand.’’ 6 Because both parties had 

assured the court that it would be 

possible to unwind the Capital Plan at 

a later time, and ‘‘no party contends that 

the task would be materially more 

difficult if done then rather than now,’’ 

the court declined to vacate the Capital 

Plan and instead remanded the case ‘‘to 

give the SEC an opportunity to properly 

evaluate the Plan.’’ 7 The D.C. Circuit’s 

mandate, which issued on August 18, 

2017, returned the matter to the 

Commission for further proceedings.8

Petitioners 9 now seek a partial stay of 

the Capital Plan—specifically, a stay of 

the dividend payments to be made to 

the shareholder exchanges under the 

Plan—while the Commission considers 

the Plan as directed by the D.C. Circuit. 

OCC opposes the motion. 

In determining whether to grant a stay 

motion, the Commission typically 

considers whether (i) there is a strong 

likelihood that the moving party will 

succeed on the merits of its appeal; (ii) 

the moving party will suffer irreparable 

harm without a stay; (iii) any person 

will suffer substantial harm as a result 

of a stay; and (iv) a stay is likely to serve 


asabaliauskas on DSKBBXCHB2PROD with NOTICES
Federal Register / Vol. 82, No. 182 / Thursday, September 21, 2017 / Notices 44239 

10Bernerd E. Young, Exchange Act Release No. 

78440, 2016 WL 4060106, at *1 (July 29, 2016); see 

also Order Preliminarily Considering Whether to 

Issue Stay Sua Sponte and Establishing Guidelines 

for Seeking Stay Applications, Exchange Act 

Release No. 33870, 1994 WL 17920, at *1 (Apr. 7, 

1994). 

11 Young, Exchange Act Release No. 78440, 2016 

WL 4060106, at *1. 

12 866 F.3d at 451. 

13Kenny A. Akindemowo, Exchange Act Release 

No. 78352, 2016 WL 3877888, at *2 (July 18, 2016) 

(quoting Donald L. Koch, Exchange Act Release No. 

72443, 2014 WL 2800778, at *2 (June 20, 2014)); 

accord Wis. Gas Co. v. FERC, 758 F.2d 669, 674 

(D.C. Cir. 1985). 

14Akindemowo, 2016 WL 3877888, at *2 (quoting 

Koch, 2014 WL 2800778, at *2); accord Wis. Gas 

Co., 758 F.2d at 674. 

15Robert J. Prager, Exchange Act Release No. 

50634, 2004 WL 2480717, at *1 (Nov. 4, 2004); see 

also William Timpinaro, Exchange Act Release No. 

29927, 1991 WL 288326, at *3 (Nov. 12, 1991) 

(recognizing that ‘‘[m]ere injuries, however 

substantial, in terms of money, time, and energy 

necessarily expended in the absence of a stay, are 

not enough’’ to constitute irreparable harm) 

(quoting Va. Petroleum Jobbers Ass’n v. FPC, 259 

F.2d 921, 925 (D.C. Cir. 1958)). 

16Mot. at 1. 

17Mot. at 16. 

18 Id. 

19 Id. Petitioners cite the acquisition of BATS by 

CBOE Holdings, Inc.—which, we note, closed on 

February 28, 2017—in support of their argument, 

stating that there has been consolidation in the 

exchange marketplace while the Capital Plan has 

been in effect. But they supply no evidence of a 

causal relationship between that acquisition and the 

Capital Plan or the dividends at issue. 

20Mot. at 16. 

21Exchange Act Release No. 74136 (Notice of 

Proposed Rule Change) at 15, File No. SR–OCC– 

2015–02. 

22See Fed. R. App. P. 28(j) letter from petitioners, 

dated April 17, 2017 (asking the court ‘‘at a 

minimum, to stay operation of the dividend 

component of the Plan during a remand’’). 

1Exchange Act Release No. 77112, File No. SR– 

OCC–2015–02. 

2BATS Global Markets, Inc., was initially a 

petitioner, but later withdrew. 

the public interest.10 The party seeking 

a stay has the burden of establishing 

that relief is warranted.11 These factors 

weigh against granting petitioners’ stay 

request. 

First, with respect to likelihood of 

success on the merits, we note that the 

court did not address petitioners’ 

arguments that the Plan was 

inconsistent with the Exchange Act. 

Rather, it remanded for the Commission 

to ‘‘properly evaluate the Plan.’’ 12 By 

repeating their same arguments 

regarding consistency with the Act in 

support of a stay, petitioners are asking 

the Commission to opine on their 

likelihood of success before engaging in 

the further analysis directed by the 

court. We are not yet in a position to do 

so. Unlike the more typical situation in 

which the Commission addresses stay 

motions, here there is neither a full 

record nor a final decision on which to 

base such an analysis. Thus, we do not 

view this factor as weighing in favor of 

the partial stay request. 

Second, petitioners fail to establish 

that they will be irreparably harmed in 

the absence of a stay. To demonstrate 

irreparable harm, petitioners ‘‘must 

show an injury that is ‘both certain and 

great’ and ‘actual and not 

theoretical.’ ’’ 13 ‘‘A stay ‘will not be 

granted [based on] something merely 

feared as liable to occur at some 

indefinite time.’ ’’ 14 That ‘‘an applicant 

may suffer financial detriment does not 

rise to the level of irreparable injury 

warranting issuance of a stay.’’ 15

Petitioners acknowledge that the 

monetary aspects of the Plan ‘‘are 

readily reversible’’ 16 and that the court 

concluded that ‘‘the task of unwinding 

the Plan would be no more difficult if 

done after remand rather than 

immediately.’’ 17 They nonetheless 

argue that ‘‘[a] stay of the dividend is 

needed to prevent distortion of the 

competitive landscape from continuing 

to harm competition.’’ 18 But petitioners 

provide no evidence that competitors 

will be ‘‘driven from the marketplace’’ 

or that investors have ‘‘lost liquidity,’’ 

as petitioners claim.19 Thus, petitioners’ 

argument—which presumes they are 

correct on the merits regarding the 

Plan’s effect on competition—is too 

speculative at this stage to be the basis 

for relief. We also note that petitioners 

made these same arguments regarding 

competitive harm before the D.C. 

Circuit, yet the court did not stay or 

vacate the Plan. 

Finally, petitioners have not 

demonstrated that the balance of harm 

to others in the absence of a stay and the 

public interest favors a stay. Petitioners 

argue that ‘‘a stay would injur[e] 

nobody,’’ 20 because they are asking 

only to stay the dividend component of 

the Plan. But even setting aside the 

impact on shareholder exchanges that 

are due the dividends under the Plan, 

petitioners’ claim that the dividend 

component of the plan can be isolated 

is overly simplistic. Under the Plan, 

‘‘OCC would not be able to pay a refund 

on a particular date unless dividends 

were paid on the same date.’’ 21 A stay 

of the dividends to the shareholders 

would thus have the effect of also 

staying the payment of refunds to OCC’s 

members. 

Moreover, as discussed above, the 

court squarely considered whether to 

vacate the Plan or leave it in effect 

during the Commission’s 

reconsideration, and decided to leave 

the Plan, including the provisions with 

respect to dividends, in place. 

Petitioners’ request to stay that part of 

the Plan therefore, in fact, seeks a 

change in the status quo that we believe 

is unsupported at this time. Granting 

petitioners’ request would require 

piecemeal suspension of portions of the 

Plan, while leaving others in place, 

despite at least the possibility of having 

to reinstitute those provisions at a later 

date if the Commission, after conducting 

the required analysis on remand, should 

determine to approve the Plan. Indeed, 

the court implicitly rejected this type of 

partial stay when petitioners proposed it 

in a pre-decision letter to the court 22

and the court remanded without 

entering such a stay. We believe, as the 

court did, that the better course is to 

leave the status quo in place while we 

conduct a further review of the entirety 

of the Plan. 

Accordingly, we decline to impose 

the partial stay requested. 

For the reasons stated above, it is 

hereby: 

Ordered that movants’ request for a 

partial stay of the Capital Plan while the 

Commission considers the Plan 

pursuant to the direction of the D.C. 

Circuit is Denied. 

By the Commission. 

Brent J. Fields, 

Secretary. 

[FR Doc. 2017–20080 Filed 9–20–17; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[File No. SR–OCC–2015–02; Release No. 

81629] 

Before the Securities and Exchange 

Commission; Securities Exchange Act 

of 1934; In the Matter of the The 

Options Clearing Corporation For an 

Order Granting the Approval of 

Proposed Rule Change Concerning a 

Proposed Capital Plan for Raising 

Additional Capital That Would Support 

the Options Clearing Corporation’s 

Function as a Systemically Important 

Financial Market Utility; Corrected 

Order Scheduling Filing of Statements 

on Review 

September 14, 2017. 

On February 11, 2016, the 

Commission issued an order (‘‘Approval 

Order’’) approving the plan of the 

Options Clearing Corporation’s (‘‘OCC’’) 

for raising additional capital (the 

‘‘Plan’’) to support its function as a 

systemically important financial market 

utility.1 BOX Options Exchange LLC, 

KCG Holdings, Inc., Miami International 

Securities Exchange, LLC, and 

Susquehanna International Group, LLP 

(collectively ‘‘petitioners’’) 2 filed a 


asabaliauskas on DSKBBXCHB2PROD with NOTICES