The following is an excerpt from the SEC website:
"Issue 2011-161
August 19, 2011
Commission Announcements
The Securities and Exchange Commission and the Commodity Futures Trading Commission (CFTC) have approved for publication in the Federal Register a request for public comment that is expected to assist in conducting a joint study on stable value contracts.
Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act provides for the comprehensive regulation of swaps and security-based swaps and includes definitions of key terms relating to such regulation. It requires the SEC and CFTC to jointly conduct a study to determine whether stable value contracts fall within the definition of a swap, and if so, whether exempting such contracts from the swap definition is appropriate and in the public interest.
The Dodd-Frank Act calls for the SEC and CFTC to make the determination in consultation with the Department of Labor, the Department of the Treasury, and the state entities that regulate the issuers of stable value contracts.
Public comments must be received on or before 30 days after publication in the Federal Register. (Press Rel. 2011-169)
Enforcement Proceedings
In the Matter of Peter Emrich, Alberto Ferreiras, James Frankfurth, Frank Rossi, and Dana Valensky
The Commission announced that on August 18, 2011, it issued an Order Instituting Administrative Proceedings Pursuant to Section 15(b) of the Securities Exchange Act of 1934 and Notice of Hearing (Order or OIP) against Peter Emrich (Emrich), Alberto Ferreiras (Ferreiras), James Frankfurth (Frankfurth), Frank Rossi (Rossi), and Dana Valensky (Valensky) (jointly Respondents). The Division of Enforcement alleges in the Order that:
Emrich pleaded guilty to one count of conspiracy to commit securities fraud in violation of 18 U.S.C. Section 371 before the United States District Court for the Eastern District of New York in United States v. Kozak, et al., 02-CR-879 (the Kozak Case), a criminal case arising from an unregistered offering of securities of Out of the Black Partners LLC, a California limited liability company. On May 10, 2010, a criminal judgment was entered against Emrich.
Frankfurth pleaded guilty to one count of conspiracy to commit securities fraud in violation of 18 U.S.C. Section 371 in the Kozak Case. On June 21, 2010, a criminal judgment was entered against Frankfurth.
Ferreiras pleaded guilty to the charges against him in the Kozak Case and United States v. Leonard, et al. 02-CR-881 (the Leonard Case), a related criminal case in the United States District Court for the Eastern District of New York arising from unregistered offerings of securities of two California limited liability companies, Little Giant, LLC and Heritage Film Group, LLC. In the Kozak and Leonard Cases, Ferreiras was charged with conspiracy and securities fraud. Ferreiras also pleaded guilty to one count of conspiracy to commit mail fraud in violation of 18 U.S.C. Sections 1349 and 3147 and eight counts of mail fraud in violation of 18 U.S.C. Sections 1341, 3147 and 2 before the United States District Court for the Eastern District of New York in United States v. Ferreiras, et al., 07-CR-325 (the ATM Case), a criminal case arising from a fraudulent scheme involving the sale of cashless ATM machines. On July 23, 2009, a criminal judgment was entered against Ferreiras in the Leonard, Kozak and ATM Cases.
Rossi pleaded guilty to two counts of conspiracy to commit securities fraud in violation of 18 U.S.C. Section 371 in the Leonard Case. On March 21, 2011, a criminal judgment was entered against Rossi.
Valensky pleaded guilty before the United States District Court for the Eastern District of New York to two counts of conspiracy to commit securities fraud in U.S. v. Noorai, et al., 02-CR-880 (the Noorai Case), a criminal case arising from an unregistered offering of securities, and one count of conspiracy to commit securities fraud in the Leonard Case. On Nov. 10, 2010, a criminal judgment was entered against Valensky in the Noorai and Leonard Cases.
The Order finds that the indictments in the Kozak and Leonard Cases alleged, among other things, that the Respondents and others concealed or conspired to conceal from investors the actual amount of sales commissions that would be paid from the proceeds of the offerings. The indictment in the ATM Case alleged that Ferreiras and his co-conspirator carried out a scheme to obtain money and property from others by means of materially false representations and omissions in connection with the sale of cashless ATM machines.
A hearing will be scheduled before an Administrative Law Judge to determine whether the allegations contained in the OIP are true, to afford Respondents an opportunity to respond, and to determine what, if any, remedial sanctions are appropriate and in the public interest.
The OIP requires the Administrative Law Judge to issue an initial decision no later than 210 days from the date of service of the Order, pursuant to Rule 360(a)(2) of the Commission’s Rules of Practice. (Rel. 34-65167; File No. 3-14509)
In the Matter of International Poultry Co., Inc. (n/k/a Carley Enterprises, Inc.)
An Administrative Law Judge has issued an Order Making Findings and Revoking Registration by Default as to Respondent IPEX, Inc. (n/k/a Salus Labs International, Inc.) (Default Order) in International Poultry Co., Inc. (n/k/a Carley Enterprises, Inc.), Admin. Proc. No. 3-14439. The Order Instituting Proceedings alleged that Respondent repeatedly failed to file required annual and quarterly reports while its securities were registered with the Securities and Exchange Commission. The Default Order finds these allegations to be true and revokes the registration of each class of registered securities of IPEX, Inc. (n/k/a Salus Labs International, Inc.) pursuant to Section 12(j) of the Securities Exchange Act of 1934.
The proceeding has ended as to all other Respondents. See International Poultry Co. Inc. (n/k/a Carley Enterprises Inc.), Securities Exchange Act Release No. 65027 (August 4, 2011). (Rel. 34-65168; File No. 3-14439)
Commission Revokes Registration of Securities of Directcom, Inc. (n/k/a Directcom Marketing, Inc.) for Failure to Make Required Periodic Filings
On August 19, 2011, the Commission revoked the registration of each class of registered securities of Directcom, Inc. (n/k/a Directcom Marketing, Inc.) (Directcom) for failure to make required periodic filings with the Commission.
Without admitting or denying the findings in the Order, except as to jurisdiction, which it admitted, Directcom consented to the entry of an Order Making Findings and Revoking Registration of Securities Pursuant to Section 12(j) of the Securities Exchange Act of 1934 as to Directcom, Inc. (n/k/a Directcom Marketing, Inc.) finding that it had failed to comply with Section 13(a) of the Securities Exchange Act of 1934 (Exchange Act) and Rules 13a-1 and 13a-13 thereunder and revoking the registration of each class of Directcom’s securities pursuant to Section 12(j) of the Exchange Act. This Order settled the proceedings brought against Directcom in In the Matter of Derand Real Estate Investment Trust, et al., Administrative Proceeding File No. 3-14489.
Brokers and dealers should be alert to the fact that Exchange Act Section 12(j) provides, in pertinent part, as follows:
No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked . . . .
For further information see Order Instituting Administrative Proceedings and Notice of Hearing Pursuant to Section 12(j) of the Securities Exchange Act of 1934, In the Matter of Derand Real Estate Investment Trust, et al., Administrative Proceeding File No. 3-14489, Exchange Act Release No. 64971, July 26, 2011. (Rel. 34-65169; File No. 3-14489)
Commission Revokes Registration of Securities of One IP Voice, Inc. (n/k/a Indian Hill Holdings Corporation) for Failure to Make Required Periodic Filings
On August 19, 2011, the Commission revoked the registration of each class of registered securities of One IP Voice, Inc. (n/k/a Indian Hill Holdings Corporation) (OIVO) for failure to make required periodic filings with the Commission.
Without admitting or denying the findings in the Order, except as to jurisdiction, which it admitted, OIVO consented to the entry of an Order Making Findings and Revoking Registration of Securities Pursuant to Section 12(j) of the Securities Exchange Act of 1934 as to One IP Voice, Inc. (n/k/a Indian Hill Holdings Corporation) finding that it had failed to comply with Section 13(a) of the Securities Exchange Act of 1934 (Exchange Act) and Rules 13a-1 and 13a-13 thereunder and revoking the registration of each class of OIVO’s securities pursuant to Section 12(j) of the Exchange Act. This Order settled the charges brought against OIVO in In the Matter of bioMETRX, Inc., et al., Administrative Proceeding File No. 3-14465.
Brokers and dealers should be alert to the fact that Exchange Act Section 12(j) provides, in pertinent part, as follows:
No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked . . . .
For further information see Order Instituting Administrative Proceedings and Notice of Hearing Pursuant to Section 12(j) of the Securities Exchange Act of 1934, In the Matter of bioMETRX, Inc., et al., Administrative Proceeding File No. 3-14465, Exchange Act Release No. 64880 (July 14, 2011). (Rel. 34-65170; File No. 3-14465)
Commission Settles With Two Defendants in Sedona Corporation Market Manipulation Fraud
The Securities and Exchange Commission announced today that on August 8, 2011, the U.S. District Court for the Southern District of New York entered final judgments against defendants Mottes Drillman and Jacob Spinner in a Commission injunctive action arising from fraudulent manipulative trading in the securities of Sedona Corporation. Without admitting or denying the allegations in the Commission's complaint, Drillman and Spinner consented to the entry of judgments enjoining them from future violations of the anti-fraud provisions of the federal securities laws and from aiding and abetting violations of the broker-dealer record-keeping provisions, ordering each of them to pay disgorgement of $4,000, representing ill-gotten gains received as a result of the conduct alleged in the complaint, together with prejudgment interest thereon in the amount of $3,107.25, and a civil penalty of $25,000.
The Commission's complaint alleges that, from February to April 2001, Drillman, Spinner, and others participated in a scheme with Andreas Badian, an official of an unregistered investment adviser firm, to manipulate Sedona’s stock price. The complaint also alleges that Drillman and Spinner aided and abetted violations of the broker-dealer record-keeping requirements through the creation of trade tickets which falsely reported short sales of Sedona stock as “long” sales. Four individuals and one entity remain as defendants in the litigation.
In related administrative proceedings, the Commission issued Orders suspending each of Drillman and Spinner from associating with any broker or dealer for a period of six months. Without admitting the Orders’ findings, except as to jurisdiction and as to the entry of the injunctions against them, Drillman and Spinner each consented to issuance of the Order suspending him. [SEC v. Andreas Badian, et al., Civ. Action. No.06 CV 2621 (LTS) (S.D.N.Y.)] (LR-22070); (Rel. 34-65171; File No. 3-14510; 34-65172; File No. 3-14511)
In the Matter of Matthew J. Ryan
On August 19, 2011, the Commission issued an Order Making Findings and Imposing Remedial Sanctions Pursuant to Section 15(b) of the Securities Exchange Act of 1934 (Order) against Matthew J. Ryan.
Ryan consented to a Commission Order barring him from association with any broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization, and from participating in any offering of penny stock. This sanction was based on Ryan’s guilty plea to one count of an indictment in United States v. Matthew John Ryan, Crim. Indictment No. 1:10-cr-00319-NAM (N.D.N.Y.), on February 22, 2011. This count charged Ryan with securities fraud and alleged that he made false representations to investors and used investor funds for multiple purposes he concealed, including to pay other investors’ purported returns and his personal expenses, such as his loan payments on luxury cars.
Ryan consented to the issuance of the Order without admitting or denying any of the findings therein, except as to jurisdiction and his guilty plea, which he admitted. (Rel. 34-65173; File No. 3-14297)
Investment Company Act Releases
Northern Lights Variable Trust, et al.
An order has been issued on an application filed by Northern Lights Variable Trust (the Fund) and Gemini Fund Services, LLC (Gemini) pursuant to Section 6(c) of the Investment Company Act of 1940, as amended (1940 Act). The order exempts separate accounts of life insurance companies supporting variable annuity contracts and variable life insurance contracts that may invest in shares of the Fund and shares of an Insurance Fund (as defined below), from the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, in situations where such shares are sold to and held by one or more of the following types of investors: (i) separate accounts registered as investment companies or separate accounts that are not registered as investment companies under the 1940 Act pursuant to exemptions from registration under Section 3(c) of the 1940 Act that fund variable annuity contracts (VA Accounts) and variable life insurance contracts (VLI Accounts) (VA and VLI Accounts together “Separate Accounts”) issued by both affiliated life insurance companies and unaffiliated life insurance companies; (ii) trustees of qualified group pension and group retirement plans outside of the Separate Account context; (iii) investment adviser(s) or affiliated person(s) of the investment adviser(s) to a series of an Insurance Fund, for the purpose of providing seed capital to a series of an Insurance Fund; and (iv) general accounts of insurance company depositors of VA Accounts and/or VLI Accounts. An Insurance Fund is any future investment company that is designed to fund VA Accounts and/or VLI Accounts and for which Gemini or any of its affiliates may serve in the future as investment adviser, sub-adviser, manager, administrator, principal underwriter or sponsor. (Rel. IC-29757 – August 16)
Standards Setting Boards
Approval of Proposed Rules
The Commission approved proposed rules (PCAOB-2011-02) submitted by the Public Company Accounting Oversight Board pursuant to Rule 19b-4 under the Securities Exchange Act of 1934 relating to the funding of the PCAOB’s operations. (Rel. 34-65162)
The Commission approved proposed rules (PCAOB-2011-01) submitted by the Public Company Accounting Oversight Board pursuant to Rule 19b-4 under the Securities Exchange Act of 1934 for an interim inspection program related to audits of brokers and dealers. (Rel. 34-65163)
Self-Regulatory Organizations
Proposed Rule Changes
The Commission issued a notice of filing of a proposed rule change by the Municipal Securities Rulemaking Board pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934, relating to amendments to Rule A-3, on Membership on the Board (SR-MSRB-2011-11). Publication is expected in the Federal Register during the week of August 22. (Rel. 34-65158)
NYSE Arca filed a proposed rule change (SR-NYSEArca-2011-54) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 and Rule 19b-4 thereunder relating to listing and trading of the WisdomTree Dreyfus Australia & New Zealand Debt Fund under NYSE Arca Equities Rule 8.600. Publication is expected in the Federal Register during the week of August 22. (Rel. 34-65160)
NYSE Arca filed a proposed rule change (SR-NYSEArca-2011-53) under Section 19(b)(1) of the Securities Exchange Act of 1934 to reflect a change to the benchmark index applicable to the Russell Equity ETF. Publication is expected in the Federal Register during the week of August 22. (Rel. 34-65161)
Immediate Effectiveness of Proposed Rule Changes
A proposed rule change filed by The NASDAQ Stock Market to change the name and modify the contents of the NASDAQ Ouch BBO Feed (SR-NASDAQ-2011-118) has become effective pursuant to Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of August 22. (Rel. 34-65159)
A proposed rule change filed by the New York Stock Exchange deleting the text of NYSE Rule 92 and adopting a new NYSE Rule 5320 that is substantially the same as Financial Industry Regulatory Authority Rule 5320 to prohibit trading ahead of customer orders with certain exceptions (commonly known as the Manning Rule) (SR-NYSE-2011-043) has become effective pursuant to Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of August 22. (Rel. 34-65164)
A proposed rule change filed by NYSE Amex deleting the text of NYSE Amex Equities Rules 92, 513, 514 and adopting new NYSE Amex Equities Rule 5320 that is substantially the same as Financial Industry Regulatory Authority Rule 5320 to prohibit trading ahead of customer orders with certain exceptions (commonly known as the Manning Rule) (SR-NYSEAmex-2011-59) has become effective pursuant to Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of August 22. (Rel. 34-65165)
A proposed rule change filed by NYSE Arca deleting the text of NYSE Arca Equities Rules 6.16 and 6.16A, and adopting new NYSE Arca Equities Rule 5320 that is substantially the same as Financial Industry Regulatory Authority Rule 5320 to prohibit trading ahead of customer orders with certain exceptions (commonly known as the Manning Rule) (SR-NYSEArca-2011-57) has become effective pursuant to Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of August 22. (Rel. 34-65166)"
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