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U.S. Securities and Exchange Commission

UNITED STATES OF AMERICA
Before the
SECURITIES AND EXCHANGE COMMISSION

SECURITIES EXCHANGE ACT OF 1934
Release No. 49565 / April 15, 2004

ACCOUNTING AND AUDITING ENFORCEMENT
Release No. 1990 / April 15, 2004

ADMINISTRATIVE PROCEEDING
File No. 3-11458


In the Matter of

KENNETH W. WINGER,
Chartered Accountant, and
PAUL R. HUMPHREYS,
Chartered Accountant,

Respondents.


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ORDER INSTITUTING PUBLIC
ADMINISTRATIVE PROCEEDING AND
IMPOSING A TEMPORARY SUSPENSION
PURSUANT TO RULE 102(e)(3) OF THE
COMMISSION'S RULES OF PRACTICE

I.

The Securities and Exchange Commission ("Commission") deems it appropriate and in the public interest to issue an order temporarily suspending Kenneth W. Winger ("Winger") and Paul R. Humphreys ("Humphreys") ("Respondents") pursuant to Rule 102(e)(3) of the Commission's Rules of Practice.1

II.

The Commission's public files disclose that:

  1. Winger was Safety-Kleen Corp.'s ("Safety-Kleen") President and Chief Executive Officer and a member of its Board of Directors until his resignation in May 2000. Winger, 65 years old, is a Canadian citizen, resides in Canada, and, at all relevant times, was licensed in Canada as a chartered accountant.

  2. Humphreys was Safety-Kleen's Senior Vice President and Chief Financial Officer until his resignation in May 2000. Humphreys, 44 years old, is a Canadian citizen, resides in Canada, and, at all relevant times, was licensed in Canada as a chartered accountant. On December 12, 2002, Humphreys was indicted by a federal grand jury in the Southern District of New York on one count each of conspiracy, securities fraud, and bank fraud.

  3. Safety-Kleen is a Delaware corporation that was headquartered in Columbia, South Carolina during the relevant time period. Safety-Kleen's stock was registered with the Commission pursuant to Section 12(b) of the Securities Exchange Act of 1934 ("Exchange Act") and was listed for trading on the New York Stock Exchange until it was delisted on June 12, 2000. On June 9, 2000, Safety-Kleen and 73 of its wholly-owned domestic subsidiaries filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. On December 24, 2003, Safety-Kleen emerged from bankruptcy as a private company.

III.

The Commission makes the following findings:

  1. On December 12, 2002, the Commission filed a complaint against Safety-Kleen, Winger, Humphreys, and two other senior executives in SEC v. Safety-Kleen Corp., et al., 02 Civ. 9791 (S.D.N.Y.). The Commission alleged, among other things, that Winger and Humphreys knowingly or recklessly engaged in a fraudulent accounting scheme in which Commission filings made by Safety-Kleen between November 1998 and March 2000, and press releases issued by the company during the same time period, contained materially false and misleading financial statements and disclosures. The complaint also alleged that Winger and Humphreys made false and misleading statements and omissions to auditors. In addition, the complaint alleged that Humphreys knowingly circumvented and failed to implement internal accounting controls and knowingly falsified and caused others to falsify the company's books, records, and accounts. The Complaint alleged that Humphreys violated Section 17(a) of the Securities Act of 1933 ("Securities Act") [15 U.S.C. 77q(a)] and Sections 10(b) and 13(b)(5) of the Exchange Act [15 U.S.C. 78j(b) and 78m(b)(5)] and Rules 10b-5, 13b2-1, and 13b2-2 [17 C.F.R. 240. 10b-5, 13b2-1, and 13b2-2] thereunder; and that Winger violated Section 17(a) of the Securities Act [15 U.S.C. 77q(a)] and Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)] and Rules 10b-5 and 13b2-2 [17 C.F.R. 240. 10b-5 and 13b2-2] thereunder.

  2. On November 18, 2003, the court entered a final judgment, by default, finding that Winger and Humphreys violated Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rules 10b-5 and 13b2-2 promulgated thereunder, that Humphreys violated Section 13(b)(5) of the Exchange Act and Rule 13b2-1 thereunder, and enjoining Winger and Humphreys from future violations of those same provisions. The court also ordered that Winger and Humphreys be prohibited from acting as an officer or director of any public company, that Winger pay disgorgement and prejudgment interest in the amount of $249,323.55, and a civil penalty in the amount of $190,471.58, and that Humphreys pay disgorgement and prejudgment interest in the amount of $85,832.46, and a civil penalty in the amount of $65,562.00.

IV.

Based on the foregoing, the Commission finds that Winger and Humphreys have been enjoined and have been found to have violated provisions of the federal securities laws within the meaning of Rule 102(e)(3) of the Commission's Rules of Practice. In view of this finding the Commission deems it necessary and appropriate and in the public interest that Winger and Humphreys be temporarily suspended from appearing or practicing before the Commission.

Accordingly, it is hereby ORDERED, effectively immediately, that Winger and Humphreys are temporarily suspended from appearing or practicing before the Commission.

It is FURTHER ORDERED that Winger and Humphreys may within thirty (30) days after service of this Order, file a petition with the Commission to lift the temporary suspension. If no petition is received by the Commission within thirty (30) days after service of the Order, the suspension shall become permanent pursuant to Rule 102(e)(3)(ii).

If a petition is received within thirty (30) days after service of this Order, the Commission shall either lift the temporary suspension, or set the matter down for a hearing at a time and place to be designated by the Commission, or both. If a hearing is ordered, following the hearing, the Commission may lift the suspension, censure the petitioner, or disqualify the petitioner from appearing or practicing before the Commission for a period of time or permanently pursuant to Rule 102(e)(3)(iii).

This Order shall be served upon Winger and Humphreys personally or by certified mail.

By the Commission.

Jonathan G. Katz
Secretary

Endnotes

 

http://www.sec.gov/litigation/admin/34-49565.htm


Modified: 04/15/2004