Trading & Markets Counseling

Murphy & McGonigle's Trading and Markets Counseling practice represents exchanges and other market participants in seeking regulatory approval for complex proposals and in otherwise advising as to execution and clearing regulatory structures in the U.S. equities and options markets. Our practice is distinguished by the sophistication of the projects our clients entrust to us and the rare blend of legal, regulatory and market expertise our attorneys bring to those projects. In particular, we advise exchanges, markets, trading firms, private funds, clearing firms, clearing agencies and their related entities, guiding them through the transformational change that globalization, technology, competition and regulation have brought to the entire market structure. Our attorneys draw on a depth of knowledge and expertise that has been shaped not only by decades of advising clients as outside counsel on trading-related issues, but also by service as senior market regulators and policy makers at the Securities and Exchange Commission, and substantial time spent in and around the securities markets. In their former lives, our attorneys have played leadership roles at some of the most innovative trading-related firms of the last decade. Our partners include a former proprietary trader and equity analyst, the former general counsel of an institutional broker operating a leading Alternative Trading System (Instinet), and the former President of an exchange-affiliated institutional broker-dealer (Archipelago's Wave Securities).

Our core areas of expertise include: complex equity or options market structure issues; short sale regulation; broker-dealer financial responsibility; securities credit regulation; securities lending; underwriting and securities analyst issues; issuer repurchases; transfer agents; Dodd-Frank Act provisions relating to securities-based swap dealers; broker-dealer liquidations; new trading programs and products and related requests for exemptions and no action relief; and the SRO rule filing process.

Looking Forward

The lively mix of “knowns” and “unknowns” that will shape trading and markets regulation in 2018 makes projections a risky business. What we know is that Hester Peirce and Robert L. Jackson Jr. have been appointed to fill the two vacant Commissioner posts, the Commission’s Division of Trading and Markets (T&M) has a new Director and FINRA’s new CEO has been in his position for less than a year. Complicating all of this is the relative inaction, in general, on Capitol Hill. We might project that Commission rulemaking will be leaner, less prescriptive, and more deferential to market forces. That said, new Commission rulemaking may well be more procedurally constrained and more intensely scrutinized than it has been over the previous decade. We also see cybersecurity and FinTech issues receiving a good deal of attention. On a separate front, the Commission is likely to focus on SRO fees and economics. A petition for rulemaking seeking more disclosure related to exchange market data fee filings, as well the DC Circuit’s remand related to the OCC’s capital plan, may reveal whether and how the new T&M leadership impacts the Commission’s review of SRO and market data questions. Finally, exchanges will be reacting to the Second Circuit’s ruling that SRO immunity does not apply to exchanges facing fraud claims arising out of Michael Lewis’ Flash Boys.