SECURITIES EXCHANGE ACT OF 1934
Rel. No. 47357 / February 12, 2003

Admin. Proc. File No. 3-8873

In the Matter of

NICHOLAS P. HOWARD

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ORDER IMPOSING REMEDIAL SANCTIONS

On the basis of the Commission's opinion issued this day, it is

ORDERED that Nicholas P. Howard be, and he hereby is, suspended from association with any broker or dealer for a period of three months, effective at the opening of business on February 24, 2003; and it is further

ORDERED that Howard cease and desist from committing or causing any violation or future violation of Section 17(a) of the Securities Act of 1933, and Section 10(b) of the Securities Exchange Act of 1934 and Rules 10b-5 and 10b-9 thereunder; and it is further

ORDERED that, within 30 days of the entry of this order, Howard shall pay a civil money penalty in the amount of $50,000. Such payment shall be (a) made by United States postal money order, certified check, bank cashier's check, or bank money order made payable to the Securities and Exchange Commission; (b) hand-delivered or mailed to the Comptroller, Securities and Exchange Commission, 6432 General Green Way, Suite B, Mail Stop O-3, Alexandria, Virginia 22312; and (c) submitted under cover letter that identifies Howard as a respondent in this proceeding and lists the file number of this proceeding. Copies of the cover letter and check shall be sent to Yuri B. Zelinsky, counsel for the Division of Enforcement, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549.

By the Commission.

Jonathan G. Katz
Secretary

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1 15 U.S.C. § 77q(a).
2 15 U.S.C. § 78j(b).
3 17 C.F.R. §§ 240.10b-5 and 10b-9.
4 15 U.S.C. § 80a-17.
5 The affiliates were James Capel & Company, Ltd., a London-based securities firm, and Van Meer James Capel N.V., a Dutch brokerage firm.
6 Three JCI salesmen reported to Howard.
7 There is conflicting evidence as to whether or not counsel was aware of the plan.
8 IDG Europe was a California limited partnership whose general partner was a wholly-owned IDG subsidiary.
9 As described above, IDG did not make full payment for its shares until sometime in February 1991.
10 As a result of Howard's promotion, about 25 people reported to him.
11 See Securities Exchange Act Rel. No. 11532 (July 11, 1975), 7 SEC Docket 403.
12 See, e.g., SEC v. First Pacific Bancorp, 142 F.3d 1186, 1191 (9th Cir. 1998); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1192-1193 (5th Cir. 1995); A.J. White & Co. v. SEC, 556 F.2d 619, 623 (1st Cir. 1977); Richard H. Morrow, 53 S.E.C. 772, 777 (1998), and the authorities collected in notes 4 and 5 of that decision.
13 See, e.g., C.E. Carlson, Inc. v. SEC, 859 F.2d 1429, 1433-1434 (10th Cir. 1988), and the authorities cited therein; Gallagher & Co., 50 S.E.C. 557, 565-567 (1991), aff'd 963 F.2d 385 (11th Cir. 1992) (Table).
14 See C. Brock Lippitt, 48 S.E.C. 524, 526 (1986), aff'd sub nom. Svalberg v. SEC, 876 F.2d 181 (D.C. Cir. 1989), and thecases cited therein.
15 See SEC v. Blinder, Robinson & Co., 542 F. Supp. 468, 475 (D. Colo. 1982), aff'd, Fed. Sec. L. Rep. (CCH) ¶ 99,491 (10th Cir. 1983).
16 See, e.g., Investors Research Corp. v. SEC, 628 F.2d 168, 178 (D.C. Cir. 1980); Russo Secs. Inc., 53 S.E.C. 271, 278 (1997).
17 Graham v. SEC, 222 F.3d 994, 1004 (D.C. Cir. 2000); Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1990).
18 Marc N. Geman, Exchange Act Rel. No. 43963 (Feb. 14, 2001), 74 SEC Docket 999, 1033-1034, appeal pending, No. 01-9512 (10th Cir.). See also Jacob Wonsover, Exchange Act Rel. No. 41123 (Mar. 1, 1999), 69 SEC Docket 694, 712, aff'd, 205 F.3d 408 (D.C. Cir. 2000); Kirk A. Knapp, 51 S.E.C. 115, 134 (1992) ("[P]articipants in the industry must take responsibility for their compliance and cannot be excused for lack of knowledge, understanding, or appreciation of those requirements.").
19 Camp v. Dema, 948 F.2d 455, 459 (8th Cir. 1991).
20 SEC v. Falstaff Brewing Corp., 629 F.2d 62, 77 (D.C. Cir. 1980).
21 See SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1095 (2d Cir. 1972).
22 See, e.g., Camp v. Dema, supra; Cleary v. Perfectune, Inc., 700 F.2d 774, 777 (1st Cir. 1983).
23 See Camp v. Dema, supra, 948 F.2d at 460 ("Silence is included in the substantial assistance calculus if a duty to disclose exists.").
24 As we have previously stated, a finding that a respondentaided and abetted violations necessarily makes him a cause of those violations. See, e.g., Richard D. Chema, 53 S.E.C. 1049, 1059 n.20 (1998).
25 15 U.S.C. § 80a-2.
26 Since Howard was not charged under Section 9(f) of the ICA, we cannot find him a cause of JCI's violation, and no cease-and-desist order can issue with respect to Section 17(a)(1).
27 Credit Suisse First Boston Corp., Securities Act Rel. No. 7498 (Jan. 29, 1998), 66 SEC Docket 1241, 1250 n.4; Christopher LaPorte, Exchange Act Rel. No. 39171 (Sept. 30, 1997), 65 SEC Docket 1623, 1627 n.2.
28 See the court's discussion of willfulness in Wonsover v. SEC, 205 F.3d 408, 413 (D.C. Cir. 2000). The court reiterated its "traditional formulation of willfulness" for purposes of Section 15(b) of the Exchange Act. Citing its prior holding in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965), the Court noted that "willfully" in that provision "means intentionally committing the act which constitutes the violation," not that "the actor [must] also be aware that he is violating [the law]."
29 See supra, note 26.
30 We have considered all of the arguments advanced by the parties. We have rejected or accepted them to the extent that they are inconsistent or in accord with the views expressed herein.