
[Federal Register: February 24, 2010 (Volume 75, Number 36)]
[Notices]               
[Page 8418-8421]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24fe10-153]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61530; File No. SR-CBOE-2010-014]

 
Self-Regulatory Organizations; Chicago Board Options Exchange, 
Incorporated; Notice of Filing and Immediate Effectiveness of Proposed 
Rule Change Relating to a Settlement Payment Obligation

February 17, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'' or ``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice 
is hereby given that on February 3, 2010, the Chicago Board Options 
Exchange, Incorporated (``CBOE'' or ``Exchange'') filed with the 
Securities and Exchange Commission (``Commission'' or ``SEC'') the 
proposed rule change as described in Items I, II and III below, which 
Items have been prepared by the CBOE. CBOE has filed the proposal 
pursuant to Section 19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-
4(f)(3) thereunder,\4\ which renders the proposal effective upon filing 
with the Commission. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested parties.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(3).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    CBOE is filing this proposed rule change with the Commission under 
Section 19(b) of the Act in connection with a matter that is concerned 
solely with the administration of the Exchange.\5\
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    \5\ 15 U.S.C. 78s(b).
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II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, CBOE 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 CBOE 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange agreed to make a Payment described below pursuant to 
the Stipulation of Settlement (``Stipulation'') into which the Exchange 
entered on August 20, 2008, with The Board of Trade of the City of 
Chicago, Inc. (``Board of Trade'' or ``CBOT''), its parent company CME 
Group, Inc. (``CME Group''), and a class of persons (collectively, the 
``CBOT Parties'').\6\ The Stipulation resolves a lawsuit (``CBOT 
Lawsuit'') brought by the CBOT Parties against the Exchange and its 
Board of Directors (``CBOE Board'').\7\ The Court of Chancery of the 
State of Delaware (the ``Delaware Court'') approved the Stipulation on 
June 3, 2009 in a Memorandum Opinion (``Opinion'') and entered its 
Order of Final Approval and Final Judgment on July 29, 2009.\8\ On 
December 2, 2009, the Delaware Supreme Court approved the dismissal of 
all appeals of the Order of Final Approval and Final Judgment. The 
dismissal constitutes the final judicial approval of the Stipulation.
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    \6\ The Stipulation can be found at (http://www.cboe.org/Legal/
pdf/StipulationofSettlement.pdf). The Stipulation was amended on 
September 30, 2008 to change, among other things, an eligibility 
date to participate in the settlement. This first amendment can be 
found at (http://www.cboe.org/Legal/pdf/
AmendmenttoStipulationofSettlement.pdf). The Stipulation also was 
amended on October 6, 2008 to change, among other things, the 
settlement period. This second amendment can be found at (http://
www.cboe.org/Legal/pdf/SecondAmendment.pdf).
    \7\ CME Group Inc. et al. v. CBOE Inc. et al., Civil Action No. 
2369-VCN (Filed Aug. 23, 2006).
    \8\ CME Group Inc. et al. v. CBOE Inc. et al., Civil Action No. 
2369-VCN (Memorandum Opinion dated June 3, 2009). This Opinion can 
be found at (http://www.cboe.org/Legal/pdf/_0603134855_001.pdf).
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    The Exchange is filing this proposed rule change in connection with 
its obligation to make the Payment pursuant to the Stipulation. The

[[Page 8419]]

Exchange has concluded that the Payment is part of the business 
decision it made to resolve the CBOT Lawsuit, and that its act of 
making the Payment therefore is concerned solely with the 
administration of the Exchange. Even though CBOE believes that this 
rule filing does not implicate its responsibilities as a self-
regulatory organization (``SRO''), and thus is not required to be 
submitted as a proposed rule change, the Exchange is filing it with the 
SEC out of an abundance of caution because CBOE agreed in the 
Stipulation to use its best efforts to obtain any necessary SEC 
approval to make the Payment. CBOE has subsequently concluded that the 
proposed rule change can be filed under Section 19(b)(3)(A)(iii) of the 
Exchange Act \9\ and Rule 19b-4(f)(3) \10\ thereunder because the 
proposed rule change is concerned solely with the administration of the 
Exchange. Accordingly, the proposed rule change will take effect upon 
its filing with the SEC. CBOE has concluded that this rule filing 
satisfies the conditions for making the payment that are contained in 
the Stipulation.
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    \9\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \10\ 17 CFR 240.19b-4(f)(3).
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(i) Background on the CBOT Lawsuit
    As described in the Stipulation, CBOE was established and initially 
funded by the Board of Trade. As a result, in 1972, the Board of Trade 
included a right in Article Fifth(b) (``Article Fifth(b)'') of CBOE's 
Certificate of Incorporation--known as the ``Exercise Right''--that 
allows a Board of Trade ``member'' to become a member of CBOE without 
separately paying for that membership. Board of Trade members who 
became CBOE members pursuant to Article Fifth(b) were known as 
``Exerciser Members.'' Under CBOE rules, only an individual can become 
an Exerciser Member.
    In response to CBOE's plans to demutualize, the Board of Trade, 
which had already demutualized, its parent CBOT Holdings, Inc. (``CBOT 
Holdings''), and two individuals representing a class of certain Board 
of Trade members filed the CBOT Lawsuit on August 23, 2006. In that 
lawsuit, the plaintiffs sought, among other things, a declaratory 
judgment that CBOE was required, by Article Fifth(b) and an agreement 
interpreting Article Fifth(b), to treat Exerciser Members of CBOE the 
same in the demutualization as CBOE members who paid for their 
memberships (``CBOE Seat Owners'').
    On October 17, 2006, CBOT Holdings and Chicago Mercantile Exchange 
Holdings, Inc., now known as CME Group, announced a transaction whereby 
CME Group would merge with CBOT Holdings, and CME Group would survive 
the merger (the ``CME Transaction''), with the Board of Trade becoming 
a wholly-owned subsidiary of CME Group after the CME Transaction. In 
response to that announcement, CBOE filed an interpretation of Article 
Fifth(b) with the Commission on December 12, 2006 pursuant to Section 
19(b) of the Exchange Act.\11\ In that rule filing (the ``Eligibility 
Rule Filing''), CBOE sought the Commission's approval of its 
interpretation of Article Fifth(b) that, upon consummation of the CME 
Transaction, no persons any longer would qualify as ``members'' of the 
Board of Trade as that term is used in Article Fifth(b) and that, as a 
result, no person would be eligible to be an Exerciser Member of 
CBOE.\12\
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    \11\ 15 U.S.C. 78s(b).
    \12\ See Securities Exchange Act Release No. 55190 (Jan. 29, 
2007), 72 FR 5472 (Feb. 6, 2007) (notice of filing of SR-CBOE-2006-
106).
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    On June 6, 2007, CME Group and CBOT Holdings announced that the 
vote to approve the CME Transaction would take place on July 9, 2007 
and that, if approved, the CME Transaction would be consummated 
immediately thereafter. To address the impact of the CME Transaction on 
the membership status of Exerciser Members, the CBOE filed 
Interpretation and Policy .01 of CBOE Rule 3.19 (the ``Continued 
Membership Interpretation'') with the SEC on July 2, 2007.\13\ The 
Continued Membership Interpretation, which was effective upon filing, 
provided that persons who were Exerciser Members in good standing 
before the consummation of the CME Transaction would temporarily retain 
their CBOE membership status until the SEC ruled on the Eligibility 
Rule Filing (persons who temporarily retained their CBOE membership 
status pursuant to the Continued Membership Interpretation and the 
Transition Rule Filing (as defined below) are referred to as ``CBOE 
Temporary Members,'' and the rights they hold are referred to as 
``Temporary Memberships'').\14\ On July 9, 2007, the shareholders of 
CME Group and CBOT Holdings and members of the Board of Trade voted to 
approve the CME Transaction. The CME Transaction was consummated on 
July 12, 2007, and the Board of Trade became a wholly-owned subsidiary 
of CME Group.\15\
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    \13\ See Securities Exchange Act Release No. 56016 (Jul. 5, 
2007), 72 FR 38106 (Jul. 12, 2007) (notice of filing and immediate 
effectiveness of SR-CBOE-2007-77).
    \14\ In order to be an Exerciser Member immediately prior to the 
CME Transaction, a CBOT ``member'' needed to hold (i) one B-1 
Membership, (ii) one Exercise Right Privilege, and (iii) 27,338 
shares of CBOT Common Stock.
    \15\ As part of the CME Transaction, the 27,338 shares of CBOT 
Common Stock were converted into 10,251.75 shares of CME Group 
Common Stock.
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    On September 10, 2007, CBOE filed Interpretation and Policy .02 of 
CBOE Rule 3.19 (the ``Transition Rule Filing'') with the SEC.\16\ The 
Transition Rule Filing, which was effective upon filing, provided that 
the membership status of CBOE Temporary Members would continue after 
the SEC approved the Eligibility Rule Filing until, among other things, 
the consummation of a transaction pursuant to which either CBOE was 
converted into a stock corporation or memberships in CBOE were 
converted into stock. Pursuant to the Continued Membership 
Interpretation and the Transition Rule Filing, all CBOE Temporary 
Members were required to pay access fees (``Access Fees'') to CBOE to 
have continued trading access to the Exchange.
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    \16\ See Securities Exchange Act Release No. 56458 (Sept. 18, 
2007), 72 FR 54309 (Sept. 24, 2007) (notice of filing and immediate 
effectiveness of SR-CBOE-2007-107).
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    On January 15, 2008, the SEC approved the interpretation in the 
Eligibility Rule Filing that no person qualifies to become or remain an 
Exerciser Member of CBOE pursuant to Article Fifth(b) following the CME 
Transaction.\17\ On March 14, 2008, certain CBOT Parties filed a 
Petition for Review in the United States Court of Appeals for the 
District of Columbia Circuit, Case No. 08-1116, seeking review of the 
SEC order approving the Eligibility Rule Filing (the ``Federal 
Appeal''). The Federal Appeal was dismissed on December 4, 2009, 
following the termination of the CBOT Lawsuit.
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    \17\ See Securities Exchange Act Release No. 57159 (Jan. 15, 
2008), 73 FR 3769 (Jan. 22, 2008) (order approving SR-CBOE-2006-
106).
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    As noted above, CBOE entered into the Stipulation with the CBOT 
Parties on August 20, 2008 to settle the CBOT Lawsuit. The Stipulation 
was approved by the CBOE membership on September 17, 2008, and was 
approved by the Delaware Court on June 3, 2009. The Stipulation, among 
other things, provides for the payment of consideration to the members 
of the settlement class.
    The Stipulation provides that subject to Commission approval, part 
of that consideration would be a payment (``Payment'') to class members 
who also qualified as CBOE Temporary Members and who beneficially owned 
the three parts necessary to be an Exerciser Member on July 11, 2007 
(``Eligible

[[Page 8420]]

CBOE Temporary Members'').\18\ The Payment to each such Eligible CBOE 
Temporary Member would equal the total amount of Access Fees paid to 
CBOE by such Eligible CBOE Temporary Member during the period from June 
1, 2008 to the date CBOE demutualizes (``CBOE Demutualization Date'') 
or the date CBOE is restructured in a different manner (``CBOE 
Conversion Event Date'').\19\ The Payment would be measured exclusively 
in respect of Access Fees that were paid in respect of CBOE Temporary 
Membership(s) held because the Eligible CBOE Temporary Member 
beneficially owned the three parts necessary to be an Exerciser Member 
on July 11, 2007. Under the Stipulation, the Payment would be paid by 
CBOE within five business days of the later of (i) the CBOE 
Demutualization Date or the CBOE Conversion Event Date, and (ii) the 
SEC's order approving CBOE's request to make the Payment.
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    \18\ See supra note 14. The Payment is referred to in the 
Stipulation as the ``Supplemental Fee Based Payment,'' and is 
described in paragraph 36G of the Stipulation.
    \19\ The Stipulation defines the ``CBOE Demutualization Date'' 
as ``the date on which the CBOE Demutualization Transaction is 
effective,'' the ``CBOE Demutualization Transaction'' as the ``the 
transaction in which the memberships held by CBOE Seat Owners will 
be converted into or exchanged for Class A Common Stock of the CBOE 
Demutualization Entity,'' and the ``CBOE Demutualization Entity'' as 
``CBOE Holdings, Inc., a Delaware stock corporation, or such other 
Delaware stock corporation, including CBOE, if applicable, the 
common stock of which is issued to CBOE Seat Owners and [certain 
members of the settlement class] in the CBOE Demutualization 
Transaction.''
    In addition, the Stipulation defines the ``CBOE Conversion Event 
Date'' as ``the date on which a CBOE Conversion Event is 
effective,'' and the ``CBOE Conversion Event'' as ``(i) any 
consolidation, combination or merger of CBOE with another entity, 
other than the CBOE Demutualization Transaction, regardless of which 
entity is the surviving entity, in connection with which CBOE Seat 
Owners shall be entitled to receive securities, cash, assets, rights 
or other property or things of value (or any combination thereof) in 
respect of their memberships, (ii) the sale, lease, transfer, 
license or other disposition, in a single transaction or series of 
transactions, of all or substantially all of the assets of CBOE, 
(iii) any liquidation, dissolution, or winding up of CBOE or (iv) 
any recapitalization, reorganization or other transaction or event, 
or series of transactions or events, other than the CBOE 
Demutualization Transaction, upon the effectiveness of which CBOE 
Seat Owners shall be entitled to receive securities, cash, assets, 
rights or other property or things of value (or any combination 
thereof) upon conversion, sale or other disposition of, or in 
exchange for, their memberships.''
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(ii) Discussion
    Under paragraph 22 of CBOE's fee schedule, every CBOE Temporary 
Member is required to pay a monthly fee to CBOE to have access to the 
Exchange (i.e., an Access Fee). This paragraph provides in part that 
this fee ``is assessed to each person granted temporary CBOE membership 
status under CBOE Rule 3.19.02,'' and that this fee ``is non-
refundable.''
    CBOE is filing this proposed rule change to reflect its conclusion 
that the Payment is part of the business decision it made to resolve 
the CBOT Lawsuit, and that its act of making the Payment therefore is 
concerned solely with the administration of the Exchange.\20\ In this 
regard, CBOE believes that while the Payment is measured by the Access 
Fees paid by Eligible CBOE Temporary Members, it should not be viewed 
as a refund or waiver of such fees. Rather, it should be viewed as part 
of the settlement consideration that CBOE made the business decision to 
pay, as reflected in the Stipulation, to resolve the CBOT Lawsuit. When 
the Payment is viewed in this manner, CBOE believes that its act of 
making the Payment is an action concerned solely with the 
administration of the Exchange. As noted above, CBOE is filing this 
interpretation out of an abundance of caution, even though CBOE 
believes that it does not implicate CBOE's obligations as an SRO.
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    \20\ As noted above, CBOE has determined to file the proposed 
rule change under Section 19(b)(3)(A)(iii) of the Exchange Act and 
Rule 19b-4(f)(3) thereunder because it is concerned solely with the 
administration of CBOE. 15 U.S.C. 78s(b)(3)(A)(iii) and 17 CFR 
240.19b-4(f)(3).
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    As described above and in detail in the Delaware Court's Opinion, 
the settlement set forth in the Stipulation is the product of hard-
fought negotiations between CBOE and the CBOT Parties. The litigation 
was commenced by the CBOT Parties in August 2006, but the dispute 
underlying the litigation--namely, the scope of the Exercise Right--has 
been subject to disagreements and disputes between CBOE and the CBOT 
almost since the inception of the Exercise Right in 1972. The 
settlement is intended to resolve once and for all the disputes over 
the Exercise Right. The court approved the settlement, including the 
Payment, finding it to be fair and reasonable.
    In approving the Payment, as well as another portion of the total 
settlement consideration related to Access Fees (collectively with the 
Payment, the ``Additional Payments''), the Delaware Court rejected 
objections by certain member organizations that the Additional Payments 
should also be paid to CBOE member organizations. Specifically, the 
Delaware Court stated that:

    If rights to Additional Payments were opened up to legal 
entities generally, the exposure of CBOE would increase materially. 
This is but one part of a much larger settlement negotiation 
process. In the context of the overall settlement and in recognition 
that many contested lines had to be drawn, the Court concludes that 
the conditions for qualifying for Additional Payments were 
established reasonably. In short, the objections of [those member 
organizations] to the fairness of the Settlement are overruled. 
(footnotes omitted)

Thus, the Delaware Court recognized that the Additional Payments, 
including the Payment, were the product of a highly-negotiated 
settlement.\21\
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    \21\ While the Delaware Court referred to these Additional 
Payments as ``rebates'' in its Opinion, we believe that these 
Additional Payments are more properly characterized as part of the 
business decision to settle the CBOT Lawsuit.
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    In addition to the Delaware Court's approval of the settlement, the 
CBOE membership voted to approve the settlement on September 17, 2008. 
Prior to that membership vote, CBOE provided the membership with 
electronic access to a copy of the Stipulation, as well as an 
information circular on August 20, 2008 that summarized key settlement 
terms.\22\ This information circular outlined the total settlement 
consideration, and included a description of the Payment. Thus, CBOE 
believes that the membership was fully informed that the Payment was 
part of the settlement consideration that CBOE made the business 
decision to pay in order to resolve the CBOT Lawsuit. Accordingly, CBOE 
believes that the Payment should be viewed as such, rather than as a 
refund or waiver of Access Fees.
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    \22\ See CBOE Information Circular IC08-143.
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    CBOE believes that its act of making the Payment does not implicate 
its responsibilities under Section 6(b)(4) of the Exchange Act, which 
requires CBOE's rules to ``provide for the equitable allocation of 
reasonable dues, fees, and other charges among its members and issuers 
and other persons using its facilities.'' \23\ In this regard, CBOE 
believes that its act of making the Payment should not viewed as a fee 
change subject to this provision. Instead, CBOE believes that its act 
of making the Payment should be viewed as an undertaking to give full 
effect to the business decision it made to resolve the CBOT Lawsuit.
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    \23\ 15 U.S.C. 78f(b)(4).
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    Similarly, CBOE believes that its act of making the Payment does 
not implicate its responsibilities under Sections 6(b)(5) and 6(b)(8) 
of the Exchange Act.\24\ Section 6(b)(5) requires CBOE's rules ``to 
promote just and equitable principles of trade'' and to avoid ``unfair 
discrimination between customers, issuers, brokers, or dealers,''

[[Page 8421]]

and Section 6(b)(8) requires CBOE's rules to ``not impose any burden on 
competition not necessary or appropriate in furtherance of the purposes 
of'' the Exchange Act.\25\ CBOE believes that its act of making the 
Payment should not be viewed as treating an Eligible CBOE Temporary 
Member differently from a non-Eligible CBOE Temporary Member. Rather, 
CBOE believes that its act of making the Payment should be viewed as an 
undertaking to give full effect to the business decision it made to 
resolve the CBOT Lawsuit.
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    \24\ 15 U.S.C. 78f(b)(5) and (b)(8).
    \25\ Id.
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2. Statutory Basis
    For the reasons described above, the Exchange believes that this 
proposed rule change is not inconsistent with its obligations under 
Section 6(b) of the Exchange Act.\26\ In particular, CBOE believes that 
its act of making the Payment does not implicate its obligations under 
Sections 6(b)(4), 6(b)(5) and 6(b)(8) of the Exchange Act,\27\ or other 
obligations it has under Section 6(b) of the Exchange Act.\28\ Rather, 
CBOE believes that its act of making the Payment should be viewed as an 
undertaking to give full effect to the business decision it made to 
resolve the CBOT Lawsuit.
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    \26\ 15 U.S.C. 78f(b).
    \27\ 15 U.S.C. 78f(b)(4), (b)(5) and (b)(8).
    \28\ 15 U.S.C. 78f(b).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    CBOE does not believe that the proposed rule change will impose any 
burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(iii) of the Act \29\ and subparagraph (f)(3) of Rule 19b-4 
thereunder.\30\ At any time within 60 days of the filing of the 
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 the Act.
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    \29\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \30\ 17 CFR 240.19b-4(f)(3).
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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 e-mail to rule-comments@sec.gov. Please include 
File Number SR-CBOE-2010-014 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-CBOE-2010-014. 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 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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the self-regulatory 
organization. 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-
CBOE-2010-014 and should be submitted on or before March 17, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
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    \31\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-3641 Filed 2-23-10; 8:45 am]
BILLING CODE 8011-01-P

