Prof. Jayanth R. Varma’s Financial Markets Blog

A blog on financial markets and their regulation

Why waste taxpayer money to enforce stupid exchange rules?

Early this month, the US SEC passed an order against Behruz and Kenny about how they fraudulently obtained liquidity rebates from the option exchanges on which they traded. When I read this order, my first reaction was to laugh out loud at the stupidity of the alleged victims: some of the largest option exchanges in the US were running pretty silly liquidity rebate schemes. I can understand that regulators might wish to step in to protect small retail investors against their own stupidity, but if somebody like the CBOE chooses to run a scheme that is basically an open invitation to be gamed, my inclination would be to let them suffer the consequences. For the regulator to go after the alleged offender is to my mind a waste of tax payers’ money. I do take Stigler’s classic paper on the optimum enforcement of laws quite seriously.

The first charge against Behruz and Kenny is that they earned $2 million of liquidity rebates (and exchange fees avoided) from the option exchanges by misrepresenting “customer” status for their trading accounts. If you are not a broker-dealer, your orders are treated as “customer” orders unless your trading goes above the threshold of 390-order per day. To reach the 390-order threshold, you would have to enter an order every minute from market open to market close. “Customer” orders do not incur any transaction fees and receive higher liquidity rebates from the exchanges. In practice, trading activity was reviewed quarterly to determine to determine the “customer” status. If the trading was below 390-order per day during one quarter, then the trading account received “customer” status in the next quarter. To see how silly this is, note that if you did not trade at all one quarter, you would have “customer” status in the next quarter even if you were pumping thousands of orders a day in that quarter. Why somebody would think up such a stupid implementation of the rule in this day and age is beyond me.

Behruz and Kenny could have traded thousands of orders a day for six months in the year, and spent their time at the beach for the remaining six months without falling afoul of the SEC. But they were more greedy and wanted to trade with “customer” status round the year. So they created two accounts and switched between them each quarter – when they were trading thousands of orders a day in one account, they kept the other account almost dormant so that that other account would have “customer” status in the next quarter when the first account lost that status. The rules did however require that accounts with the same beneficial ownership should be aggregated for determining “customer” status, and Behruz and Kenny misrepresented the beneficial ownership to avoid this result. One way of looking at the SEC action is that they brought offenders to book, but the other way of looking at it is that the SEC is encouraging large and sophisticated players to create silly rules and implement them in silly ways, confident that the SEC will clean up after them.

The second charge is that Behruz and Kenny used spoofing orders to earn liquidity rebates from the (Nasdaq OMX) PHLX options exchange. The typical scheme was to enter a series of large hidden All-or-None (AON) orders to buy options at a price that was a penny more than the option’s current best bid. Because they are hidden, these AON orders do not change the best bid. Behruz and Kenny then placed smaller (typically one lot), non-bona fide sell orders at the same price as the AON. These orders were too small to execute against the AON order, but (since they were not hidden) they lowered the option’s best offer by one penny. The idea was to induce genuine sellers to send sell orders at the new best offer. When enough such sell orders arrived to make up the quantity of the AON order, they all executed against the AON. The PHLX in its infinite wisdom regarded the AON orders (that nobody could see) as having provided liquidity to the market. Since the AON buy order was sitting in the order book before the sale orders arrived, the AON was deemed to have provided liquidity while the sell orders were deemed to have taken liquidity. The PHLX gave a liquidity rebate to Behruz and Kenny, and charged a liquidity take fee to the sellers. Behruz and Kenny then turned around to execute the same strategy on the opposite side to dispose of the options that they had just bought – a large hidden AON sell order and a small displayed buy order.

One can have a debate on whether liquidity rebates and the maker-taker model make sense at all. But there is no debate about the silliness of what PHLX is doing. The idea that a hidden AON buy order that did not even move the best bid offered liquidity to the market is laughable. In a rational market, exchanges that do stupid things should lose money or business or both – the survival of the smartest. The regulators should not be trying to protect the silly and impede this market dynamic.

A recent blog post by the Streetwise Professor makes an even broader but similar argument about spoofing in general. He says that sophisticated and knowledgeable players have the incentive to detect spoofing and take defensive measures that would reduce the frequency and scale of spoofing activity. Therefore regulators need not bother much about it. I tend to agree. Harris’ classic book on market microstructure for practictioners (Trading and Exchanges, OUP, 2002) has a whole chapter on “bluffers” and within that there is a section in particular on how bluffers discipline liquidity providers. We might have invented a more exotic name (spoofing) for what has been known for centuries as bluffing, but the basic principles remain the same – spoofers discipline the HFTs.


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