
[Federal Register: June 6, 2008 (Volume 73, Number 110)]
[Notices]               
[Page 32377]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jn08-129]                         


[[Page 32377]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-56145A; File No. SR-NASD-2007-023

 
Self-Regulatory Organizations; National Association of Securities 
Dealers, Inc. (n/k/a Financial Industry Regulatory Authority, Inc.); 
Order Approving Proposed Rule Change To Amend the By-Laws of NASD To 
Implement Governance and Related Changes To Accommodate the 
Consolidation of the Member Firm Regulatory Functions of NASD and NYSE 
Regulation, Inc.

May 30, 2008.

Amended

    In Part V of Securities Exchange Act Release No. 56145 (``Release 
No. 34-56145''), issued July 26, 2007,\1\ the Securities and Exchange 
Commission (``Commission'') is adding, immediately after the following 
sentence:
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    \1\ See Securities Exchange Act Release No. 56145 (July 26, 
2007), 72 FR 42169 (August 1, 2007) (FR Doc. E7-14855).

    Accordingly, after reviewing the record in this matter, the 
Commission believes that NASD has provided sufficient basis on which 
the Commission can find that, under the Exchange Act, NASD complied 
with its Certificate of Incorporation and By-Laws with respect to 
the proxy approval process and that the proposed amendments to its 
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By-Laws were properly approved by NASD members.

the following paragraph:

    This finding as to NASD compliance and members'' approval is not 
a definitive adjudication under state law, such as a trial court 
would make after an evidentiary hearing, regarding the claim that 
the proxy statement was misleading. Except to the extent that state 
law informs the Commission's finding that, as a federal matter under 
the Exchange Act, NASD complied with its Certificate of 
Incorporation and By-Laws with respect to the proxy approval process 
and that the proposed amendments to its By-Laws were properly 
approved by NASD members, the Commission is not purporting to decide 
a question of state law. The Commission does not intend that its 
determination regarding the NASD's uncontradicted prima facie 
showing before the Commission that the proxy statement was not 
misleading be binding on a court in a claim based on state law.

    In adding this clarifying language, the Commission is not vacating, 
nullifying or rendering void Release No. 34-56145, which approved 
NASD's proposed rule change to amend the By-Laws of NASD to implement 
governance and related changes to accommodate the consolidation of the 
member firm regulatory functions of NASD and NYSE Regulation, Inc. 
Release No. 34-56145, as amended herein, remains in effect as of July 
26, 2007, the date it was issued by the Commission.

    By the Commission.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-12631 Filed 6-5-08; 8:45 am]

BILLING CODE 8010-01-P
