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SEC's Paltry Settlement With Nasdaq

Stocks in this article: NDAQ FB MS

A previous version of this story incorrectly stated the terms of the settlement.

NEW YORK ( TheStreet) - The Securities and Exchange says it has won a record fine from Nasdaq (NDAQ) on its botched listing of Facebook (FB) shares.

The SEC said Wednesday it had agreed to a $10 million penalty against Nasdaq for its violation of numerous securities laws in Facebook's initial public offering, the largest ever fine against an exchange, according to the regulatory agency.

While Nasdaq will be paying $10 million to settle a series of mishaps and violations that caused over 30,000 discrepant orders for Facebook stock in its May 18, 2012 IPO, the company won't be admitting or denying guilt.

Nasdaq is being fined for allowing Facebook's IPO to progress even though system glitches on its trading platform hadn't been fully resolved, in a decision that led to the delay of thousands of buy and sell orders for Facebook shares and a messy first day of trading.

"This action against NASDAQ tells the tale of how poorly designed systems and hasty decision-making not only disrupted one of the largest IPOs in history, but produced serious and pervasive violations of fundamental rules governing our markets," George S. Canellos, Co-Director of the SEC's Division of Enforcement, said in a statement.

Too bad the SEC's settlement amounts to a slap on the wrist.

The SEC states that Nasdaq violated multiple securities laws, however, the exchange "has agreed to a settlement without admitting or denying the SEC's findings."

One twist to the SEC's settlement is further detail on Nasdaq's shorting for Facebook shares, which netted the exchange a $10.8 million profit.

According to the SEC's complaint, Nasdaq used an unauthorized trading account known as as an "error account" to take a short position in 3 million Facebook shares. That short trade netted Nasdaq a profit of $10.8 million.

"NASDAQ further violated its rules when it assumed a short position in Facebook of more than three million shares in an unauthorized error account. NASDAQ's rules do not permit it to use an error account for any purpose. NASDAQ subsequently covered that short position for a profit of approximately $10.8 million, also in violation of its rules," the SEC's complaint states.

On May 21, 2012, Nasdaq disclosed the gain and said it would contribute the profit towards funding an accommodation policy for Facebook shareholders. In July 2012, the exchange voluntarily proposed a $62 million accommodation program to compensate certain members for their losses in connection with the Facebook IPO, in a move the SEC accepted this March.

"The order censures NASDAQ and NES, imposes a $10 million penalty on NASDAQ, and requires both NASDAQ and NES to cease and desist from committing or causing these violations and any future violations. The order also requires NASDAQ and NES to complete numerous undertakings," the SEC's complaint concludes.

" We have put in place innovative safeguards and taken a number of steps to help ensure that NASDAQ continues to deliver the world's best trading technology," Robert Greifeld, chief executive officer of Nasdaq said in a statement.

Greifeld cited remedies such as a dedicated positions for Chief Information Officer and Global Head of Market Systems, changes to Nasdaq's IPO and opening and closing crosses and additional technology and performance testing.

The New York-based electronic exchange isn't the only one to settle as it relates to the Facebook IPO debacle. Morgan Stanley (MS) also settled, paying $5 million.

-- Written by Antoine Gara in New York

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