In the United States Court of Appeals For the Eleventh Circuit

USCA11 Case: 23-13396 Document: 134 Date Filed: 11/27/2024 Page: 2 of 2 Order of the Court Intervenors.

Petition for Review of a Decision of the Securities and Exchange Commission Agency No. 34-98290

The motion of amici curiae Securities Industry and Financial Markets Association and Virtu Financial, Inc. to file an amicus brief in support of Petitioners’ motion for a stay and injunctive relief is

Clerk of the United States Court of Appeals for the Eleventh Circuit

In the United States Court of Appeals For the Eleventh Circuit

USCA11 Case: 23-13396 Document: 115 Date Filed: 09/19/2024 Page: 2 of 2 Order of the Court Intervenors.

Petition for Review of a Decision of the Securities and Exchange Commission Agency No. 34-98290

The motion for an extension of time to and including Sep- tember 30, 2024, to file Respondent and Intervenors’ response to Petitioners’ motion for stay and injunctive relief is GRANTED.

In the United States Court of Appeals For the Eleventh Circuit

USCA11 Case: 23-13396 Document: 107 Date Filed: 06/18/2024 Page: 2 of 2 Order of the Court Intervenors.

Petition for Review of a Decision of the Securities and Exchange Commission Agency No. 34-98290

The motion to withdraw attorney Timothy D. Katsiff as counsel is GRANTED.

The clerk is DIRECTED to terminate attorney Timothy D. Katsiff from appeal number 23-13396.

Atlanta, Georgia 30303 David J. Smith Clerk of Court

January 17, 2024 For rules and forms visit www.ca11.uscourts.gov

Appeal Number: 23-13396-B Case Style: American Securities Association, et al v. U.S. Securities and Exchange Commission Agency Docket Number: 34-98290 The enclosed order has been ENTERED.

Although not required, non-incarcerated pro se parties are permitted to use the ECF system by registering for an account at www.pacer.gov.

Information and training materials related to electronic filing are available on the Court's website.

Hopen, David A., Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Amici Curiae Securities Industry and Financial Markets Association et al. 58.

Reisner, Lorin L., Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Amici Curiae Securities Industry and Financial Markets Association et al. 125.

Representatives Mark Alford, Don Bacon, Michael Collins, Scott Fitzgerald, French Hill, Barry Loudermilk, Alex X. Mooney, Ralph Norman, John Rose, Keith Self, Randy Weber, and Steve Womack, Amici Curiae.

Schwartz, Yishai, Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Amici Curiae Securities Industry and Financial Markets Association et al.

Shanmugam, Kannon K., Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Amici Curiae, Securities Industry and Financial Markets Association et al. 134.

Hopen, David A., Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Amici Curiae Securities Industry and Financial Markets Association et al. 58.

Lipshutz, Brian M., Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Amici Curiae Securities Industry and Financial Markets Association et al. 80.

Reisner, Lorin L., Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Amici Curiae Securities Industry and Financial Markets Association et al. 125.

Representatives Mark Alford, Don Bacon, Michael Collins, Scott Fitzgerald, French Hill, Barry Loudermilk, Alex X. Mooney, Ralph Norman, John Rose, Keith Self, Randy Weber, and Steve Womack, Amici Curiae.

Schwartz, Yishai, Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Amici Curiae Securities Industry and Financial Markets Association et al.

Financial Industry Regulatory Authority, Inc., Plan Participant of Intervenor Consolidated Audit Trail, LLC; 54.

Michael, Christopher G., Counsel of Record for Amici Curiae Senator Tom Cotton and 21 Other Members of Congress; 108.

Quinn Emanuel Urquhart & Sullivan, LLP, Counsel for Amici Curiae Senator Tom Cotton and 21 Other Members of Congress; 141.

Skorup, Brent, Counsel of Record for Amici Curiae Cato Institute and Investor Choice Advocates Network; 155.

Nicholas J. Bronni, counsel for Amici Curiae, State of Arkansas et al., respectfully moves to withdraw as an attorney of record in this matter.

Representatives Mark Alford, Don Bacon, Michael Collins, Scott Fitzgerald, French Hill, Barry Loudermilk, Alex X. Mooney, Ralph Norman, John Rose, Keith Self, Randy Weber, and Steve Womack, Amici Curiae.

Yet with the finish line in sight, the SROs, backed by a pliant SEC, have suddenly decided to irrevocably implement the challenged Order before this Court can determine its lawfulness.

While the SROs insist the Dodd-Frank Act stripped this Court of its inherent authority to issue such relief, nothing in that law, which concerns the SEC’s review of fee filings not challenged here, eliminates this Court’s power to preserve the status quo while it considers an Order undeniably within its purview.

In any event, petitioners need only show the lack of a stay would put them “at risk of irreparable harm by depriving them of [money] with no guarantee of eventual recovery.” Alabama Ass’n of Realtors v. HHS, 594 U.S. 758, 765 (2021) (emphases added); see Askins & Miller, 924 F.3d at 1359 (“the likelihood that a defendant will never pay” suffices).

The SROs therefore do not, and cannot, contend § 78s(b)(3)(C) expressly divested this Court of its inherent equitable authority, long recognized in the All Writs Act, to briefly stop the collection of CAT fees.

Representatives Mark Alford, Don Bacon, Michael Collins, Scott Fitzgerald, French Hill, Barry Loudermilk, Alex X. Mooney, Ralph Norman, John Rose, Keith Self, Randy Weber, and Steve Womack, Amici Curiae.

Yet with the finish line in sight, the SROs, backed by a pliant SEC, have suddenly decided to irrevocably implement the challenged Order before this Court can determine its lawfulness.

While the SROs insist the Dodd-Frank Act stripped this Court of its inherent authority to issue such relief, nothing in that law, which concerns the SEC’s review of fee filings not challenged here, eliminates this Court’s power to preserve the status quo while it considers an Order undeniably within its purview.

In any event, petitioners need only show the lack of a stay would put them “at risk of irreparable harm by depriving them of [money] with no guarantee of eventual recovery.” Alabama Ass’n of Realtors v. HHS, 594 U.S. 758, 765 (2021) (emphases added); see Askins & Miller, 924 F.3d at 1359 (“the likelihood that a defendant will never pay” suffices).

The SROs therefore do not, and cannot, contend § 78s(b)(3)(C) expressly divested this Court of its inherent equitable authority, long recognized in the All Writs Act, to briefly stop the collection of CAT fees.

USCA11 Case: 23-13396 Document: 116-1 Date Filed: 09/20/2024 Page: 4 of 13 No. 23-13396, American Securities Association v. U.S. Securities and Exchange Commission • • • • • • • • • • • Consolidated Audit Trail, LLC, Intervenor Consovoy McCarthy, PLLC, Counsel for Petitioner American Securi- ties Association Francisco, Noel John, Counsel for Petitioner Citadel Securities LLC Financial Industry Regulatory Authority, Inc., Member and Partici- pant of Intervenor Consolidated Audit Trail, LLC Flowers, Benjamin M., Counsel for Amici Curiae James Overdahl and S.P.

USCA11 Case: 23-13396 Document: 116-1 Date Filed: 09/20/2024 Page: 9 of 13 No. 23-13396, American Securities Association v. U.S. Securities and Exchange Commission • • • • • The Vanguard Group, Inc., Owner of More than 10% of Common Stock of Cboe Global Markets, Inc. as of June 30, 2023 Thoma Bravo UGP, LLC, Owner of More than 10% of Shares of Nasdaq, Inc. U.S. Securities and Exchange Commission, Respondent Unikowsky, Adam Granich, Counsel for Intervenor Consolidated Audit Trail, LLC Virtu Financial, Inc. (VIRT), Amicus Curiae Amici curiae Securities Industry and Financial Markets Association has no parent corporation, and no publicly held company owns 10% or more of its stock.

On behalf of industry members and their one million employees, SIFMA advocates on legislation, regulation, and business policy affecting re- tail and institutional investors, equity and fixed-income markets, and related products and services.

Respondent Securities and Exchange Commis- sion and intervenor Consolidated Audit Trail, LLC, take no position on the motion.

I, Kannon K. Shanmugam, a member of the Bar of this Court and coun- sel for amici curiae Securities Industry and Financial Markets Association and Virtu Financial, Inc., hereby certify, pursuant to Federal Rule of Appellate Procedure 27(d)(1)(E) and (d)(2) and Local Rule 27(a)(1), that the attached Motion for Leave to File Brief of Amici Curiae Securities Industry and Finan- cial Markets Association and Virtu Financial, Inc., in Support of Petitioners’ Opposed Time-Sensitive Motion for Stay and Injunctive Relief is proportion- ately spaced, has a typeface of 14 points or more, and contains 522 words.

Id. It was incumbent upon the Commission to address those differences head on and explain why alternative trading systems nonetheless are an apt comparator.

Were the Court nonetheless to vacate the Access-Fee-Cap Amendment, the Commission agrees with petitioners (Br. 60) that the Tick- Size Amendment should also be vacated because, as the Rules’ severability provision indicates, it ...

52 USCA Case #24-1350 Document #2109611 Filed: 04/07/2025 Page 65 of 72 It cited to a handful of scattered pages from comment letters, but none of those citations speaks to exchanges’ ability to innovate.

In sum, none of the Commission’s explanations for setting the new fee cap at 10 mils withstands arbitrary-and-capricious review.