
[Federal Register: October 8, 2009 (Volume 74, Number 194)]
[Notices]               
[Page 51900-51901]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc09-95]                         


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60763; File No. SR-NYSE-2009-94]

 
Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To 
Modify Its Requirements With Respect to Quarterly Earnings Releases

October 1, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Exchange Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby 
given that on September 16, 2009, New York Stock Exchange, LLC (the 
``NYSE'' or the ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. The Exchange has designated this proposal eligible for 
immediate effectiveness pursuant to Rule 19b-4(f)(6) \3\ under the 
Exchange Act. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Section 203.02 of the Listed Company 
Manual to provide that companies can disseminate their quarterly 
earnings releases by means of any Regulation Fair Disclosure 
(``Regulation FD'') compliant method (or combination of methods). This 
filing also amends Section 203.01 to provide that the press release 
required under that section must be published in a manner consistent 
with the guidance provided in Section 202.06(C) for companies complying 
with the Exchange's timely release policy by issuing a press release.
    The text of the proposed rule change is available on the Exchange's 
Web site (http://www.nyse.com), at the Exchange's Office of the 
Secretary and at the Commission's Public Reference room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of and basis for the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of these statements may be examined at 
the places specified in Item IV below. The NYSE has prepared summaries, 
set forth in Sections A, B and C below, of the most significant aspects 
of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Section 203.02 of the Listed Company Manual requires any listed 
company that is required to file interim financial statements with the 
SEC to release to the press an interim earnings release as soon as its 
interim financial statements are available. Section 203.02 refers the 
reader to Section 202.06 for an understanding of how to issue a 
quarterly earnings release in a manner consistent with the Exchange's 
immediate release policy. Section 202.06(A) explicitly states that 
annual and quarterly earnings releases are always subject to the 
immediate release policy.
    The Exchange recently amended Section 202.06 to provide that listed 
companies can comply with the Exchange's immediate release policy by 
disseminating the information using any method (or combination of 
methods) that constitutes compliance with Regulation FD.\4\ The 
Exchange now proposes to amend Section 203.02 to harmonize its 
requirements with those of Section 202.06 as amended, by providing that 
companies can disseminate their quarterly earnings releases in 
compliance with the timely alert policy as recently amended. 
Consequently, companies will have the option of disseminating their 
quarterly earnings releases either by issuing a press release or by 
using any other method (or combination of methods) that constitutes 
compliance with Regulation FD. The Exchange believes that this is 
consistent with Nasdaq's approach to quarterly earnings releases under 
its immediate release policy.\5\
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    \4\ See Securities Exchange Act Release No. 59823 (April 27, 
2009), 74 FR 20516 (May 4, 2009) (SR-NYSE-2009-40).
    \5\ See Securities Exchange Act Release No. 46288 (July 31, 
2002), 67 FR 51306 (August 7, 2002) (SR-NASD-2002-85) (the ``Nasdaq 
Amendment'').
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    Section 203.01 requires any company that does not comply with the 
SEC's proxy rules to post to its Web site a prominent undertaking in 
the English language to provide all holders (including preferred 
stockholders and bondholders) the ability, upon request, to receive a 
hard copy of the company's complete audited financial statements free 
of charge and simultaneously issue a press release stating that its 
annual report has been filed with the SEC. This press release must also 
specify the company's Web site address and indicate that shareholders 
have the ability to receive a hard copy of the company's complete 
audited financial statements free of charge upon request. Section 
203.01 currently provides that this press release must be published 
pursuant to the Exchange's press release policy. In order to clarify 
this requirement in light of the recent amendment to Section 202.06, 
the Exchange proposes to revise Section 203.01 to specify that the 
press release requirement of Section 203.01 may only be complied with 
by issuing a press release in a manner consistent with the immediate 
release policy for press releases and not by any other means permitted 
by the immediate release policy.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) \6\ of the Exchange Act in general and furthers the 
objectives of Section 6(b)(5) of the Exchange Act,\7\ in particular in 
that it is designed to promote just and equitable principles of trade, 
to foster cooperation and coordination with persons engaged in 
regulating, clearing, settling, processing information with respect to, 
and facilitating transactions in securities, to remove impediments to 
and perfect the mechanism of a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest. The Exchange believes that the proposed amendment is 
consistent with the investor protection objectives of Exchange Act in 
that it harmonizes the Exchange's immediate release policies with 
respect to quarterly reporting with the SEC's requirements in 
Regulation FD and makes clear that the press release required by 
Section 203.01 in connection with the filing of a listed company's 
annual report must be disseminated in compliance with the press release 
policy of Section 202.06 and not by any other Regulation FD compliant 
method.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not

[[Page 51901]]

necessary or appropriate in furtherance of the purposes of Exchange 
Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the proposed rule change: (i) Does not significantly affect 
the protection of investors or the public interest; (ii) does not 
impose any significant burden on competition; and (iii) does not become 
operative for 30 days after the date of the filing, or such shorter 
time as the Commission may designate if consistent with the protection 
of investors and the public interest, provided that the self-regulatory 
organization has given the Commission written notice of its intent to 
file the proposed rule change at least five business days prior to the 
date of filing of the proposed rule change or such shorter time as 
designated by the Commission, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of Exchange Act \8\ and Rule 
19b-4(f)(6) thereunder.\9\
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(6).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of Exchange Act.

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 Exchange 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 e-mail to rule-comments@sec.gov. Please include 
File Number SR-NYSE-2009-94 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2009-94. This file 
number should be included on the subject line if e-mail 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 inspection and 
copying in the Commission's Public Reference Room, on official business 
days between the hours of 10 a.m. and 3 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-
NYSE-2009-94 and should be submitted on or before October 29, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-24260 Filed 10-7-09; 8:45 am]

BILLING CODE 8011-01-P
