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NETCOALITION v. S.E.C.

Nos. 09-1042, 09-1045.

615 F.3d 525 (2010)

NETCOALITION, Petitioner v. SECURITIES AND EXCHANGE COMMISSION, Respondent. NYSE Arca, Inc. and The NASDAQ Stock Market, LLC, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided August 6, 2010.

Attorney(s) appearing for the Case

Carter G. Phillips argued the cause for the petitioners. Dennis C. Hensley, Kevin J. Campion, Richard D. Bernstein, and Roger D. Blanc were on brief.

Mark R. Pennington, Assistant General Counsel, Securities and Exchange Commission, argued the cause for the respondent. Michael A. Conley, Deputy Solicitor, and Luis de la Torre, Senior Litigation Counsel, were on brief.

Douglas W. Henkin argued the cause for intervenors NYSE Arca, Inc. et al. in support of the respondent. David S. Cohen, Eugene Scalia and Amir C. Tayrani were on brief.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge.

In 2006, NYSE Arca, one of the largest securities exchanges in the United States, proposed to begin charging a fee to investors for access to its proprietary "depth-of-book" product, ArcaBook. ArcaBook lists pending orders placed on NYSE Arca— specifically, bids to buy at prices lower than, and offers to sell at prices higher than, the prevailing market price. The Securities and Exchange Commission (SEC or Commission...

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