Securities Exchange Act of 1934
Release No. 34-60403 / July 30, 2009
Administrative Proceeding File Nos. 3-11445, 3-11446, 3-11447, 3-11448, 3-11449, 3-11558, 3-11559
In the Matter of Bear Wagner Specialists LLC; Fleet Specialist, Inc.; LaBranche & Co. LLC; Spear, Leeds & Kellogg Specialists LLC; Van der Moolen Specialists USA, LLC; Performance Specialist Group LLC; SIG Specialists, Inc. Respondents. |
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Notice of Closing of the Distribution Funds and Opportunity for Comment as to Use of Remaining Funds |
Notice is hereby given, pursuant to Rule 1103 of the Securities and Exchange Commission's ("Commission") Rules on Fair Fund and Disgorgement Plans, 17 C.F.R. § 201.1103, that (i) Heffler Radetich & Saitta L.L.P. ("Heffler"), the Fund Administrator in the above-captioned matters, has determined to close the Distribution Funds established with respect to the Respondents following a sixth and final distribution, and has recommended that the Commission seek public comments on the use of the remaining funds left after all the payments to injured customers and for administrative expenses have been made, in accordance with the Commission's May 17, 2006 Order (the "May 2006 Order"), Exchange Act Rel. No. 53823, and (ii) the Division of Enforcement has recommended that the Commission publish a Notice of Closing of the Distribution Funds and Opportunity for Comment as to Use of Remaining Funds.
On March 30, 2004, and July 26, 2004, the Commission issued Orders Instituting Administrative and Cease-and-Desist Proceedings, Making Findings, and Imposing Remedial Sanctions and Cease-and-Desist Orders Pursuant to Sections 15(b)(4) and 21C of the Securities Exchange Act of 1934 (collectively, the "Specialist Firm Orders") against Bear Wagner Specialists LLC, Fleet Specialist, Inc. (now Banc of America Specialist, Inc.), LaBranche & Co. LLC, Spear, Leeds & Kellogg Specialists LLC, Van der Moolen Specialists USA, LLC, Performance Specialist Group LLC, and SIG Specialists, Inc. (collectively, the "Specialist Firms"). See Exchange Act Rel. Nos. 49498 â" 49502 and Nos. 50075 â" 50076. Among other things, the Specialist Firm Orders directed the Specialist Firms to pay disgorgement and civil penalties totaling $247,028,778, and provided for the settlement funds to be used to reimburse injured customers for their loss, pay prejudgment interest to the injured customers, and pay the costs of administering the distribution plan ("Plan") implemented by Heffler. The Plan, as adopted by the May 2006 Order, included the payment of post-judgment interest to the injured customers as well. To date, Heffler has made five distributions under the Plan, totaling, in the aggregate, more than $123 million, comprised of over $96 million in disgorgement and over $26 million in pre- and post-judgment interest. The distributions have involved the issuance of more than 348,000 checks to injured customers.
The Plan provides that when Heffler determines that "efforts to identify the Injured Customers have been exhausted," it will submit a final report to the Commission recommending that the matter be closed. Heffler views its efforts to identify the injured customers as having been exhausted, and has recommended that the Commission notify the public of Heffler's position. By Order dated July 30, 2009, the Commission has so notified the public and has identified the steps to be taken by Heffler in making a sixth and final distribution, following which distribution the above-captioned matters, as pertains to identifying injured customers and making distributions, will be considered closed by the Commission, and Heffler will begin the process of closing out the Distribution Funds pursuant to the Plan. See Exchange Act Rel. No. 34-60402.
The Specialist Firm Orders also provided that "[t]he Commission shall determine the appropriate use for the benefit of investors of any funds left" after all contemplated payments to injured customers and for administrative expenses have been made. The May 2006 Order adopting the Plan provided that "[t]he Commission believes that the determination of what to do with any Remaining Funds left . . . should be made by the Commission at a later date, after further public notice and comment." Heffler has considered the appropriate use of the remaining funds and has determined that the remaining funds should be transferred to the United States Treasury. However, in light of the May 2006 Order, which calls for further public notice and comment prior to the Commission making its determination, Heffler has recommended, and the Division of Enforcement concurs, that the Commission publish a notice seeking public comments as to the use of the remaining funds in these matters. In Heffler's estimate, there will be approximately $135 million of remaining funds left in the Distribution Funds after all the payments to the injured customers and for administrative expenses have been made. If no public comments are received pursuant to this Notice, the Commission shall issue an order to transmit the Remaining Funds to the United States Treasury.
OPPORTUNITY FOR COMMENT
Pursuant to this Notice, all interested parties are advised that the Plan may be obtained by visiting http://www.sec.gov/litigation/admin/34-53025-pdp.pdf or www.hrsclaimsadministration.com, or by submitting a written request to Ronald A. Bertino, c/o Heffler, Radetich & Saitta, LLP, 1515 Market Street, Suite 1700, Philadelphia, PA 19102. Further, all persons desiring to comment on the use to be made of any remaining funds left after the contemplated payments have been made, may submit their comments, in writing, no later than August 31, 2009:
to the Office of the Secretary, United States Securities and Exchange Commission, 100 F Street, NE, Washington, D.C. 20549-1090;
by using the Commission's Internet comment form (http://www.sec.gov/litigation/admin.shtml); or
by sending an e-mail to rule-comments@sec.gov.
Comments submitted by email or via the Commission's website should include the appropriate Administrative Proceeding File Number(s) in the subject line. Comments received will be available to the public. Persons should only submit information that they wish to make publicly available.
By the Commission.
Elizabeth M. Murphy
Secretary