SECURITIES EXCHANGE ACT OF 1934
Release No. 42109 / November 5, 1999
ACCOUNTING AUDITING ENFORCEMENT
Release No. 1201 / November 5, 1999
Admin. Proc. File No. 3-9952
: In the Matter of : : JETHRO J. BARLOW, CPA, : ALAN K. BURTON, : J. EDWARDS COX, : ROBERT G. WEEKS, : DAVID A. HESTERMAN, and : KENNETH L. WEEKS : :
Order Granting Motion To Amend Order Instituting Proceedings
On October 15, 1999, the Division of Enforcement moved, pursuant to Rule 200(d)(1), to amend the Order Instituting Proceedings in this matter.1 The Division contends that several inadvertent omissions were made in the relief requested against respondents Barlow, Burton, and Cox. The omitted requests for relief concern various reporting and recordkeeping violations that the respondents are alleged to have committed.
Specifically, the Division notes that Barlow, Burton and Cox were charged with violations of Section 13(a) of the SecuritiesExchange Act of 19342 and Exchange Act Rules 13a-1,3 13a-11,4 and 13a-13,5 and that Barlow and Cox also were charged with violations of Exchange Act Rule 13a-10.6 The Division points out, however, that the relief requested in the order fails to include that (1) Barlow cease and desist from all violations of Exchange Act Rule 13a-10; (2) Burton cease and desist from all violations of Exchange Act Rules 13a-1, and 13a-11; and (3) Cox cease and desist from all violations of Exchange Act Rules 13a-1, 13a-11, and 13a-13. The Division requests, therefore, that the Commission amend the order to include requests for relief consistent with the alleged violations.
We have stated that amendment of orders instituting proceedings should be freely granted, subject only to the consideration that other parties not be surprised nor their rights prejudiced.7 Respondents will suffer no surprise or prejudice by allowing the amendment to the order because they were put on notice of the alleged reporting and recordkeeping violations at issue, as these violations were included in the allegation portion of the original order. The requested amendment is within the scope of the original order and seeks merely to conform the relief requested to the charges alleged by the Division.8 Moreover, the procedural posture of the case the hearing of this matter is not scheduled to begin until January 4, 2000 ensures that respondents will suffer no prejudice from the requested amendment.
Accordingly, it is ordered that the Division of Enforcement's Motion to Amend the Order for Proceedings be, and hereby is, granted.
By the Commission.
Jonathan G. Katz
1 Rule 200(d)(1) provides that "[u]pon motion by a party, the Commission may, at any time, amend an order instituting proceedings to include new matters of fact or law." 17 C.F.R. § 201.200(d)(1) (1999). The administrative law judge denied, without prejudice, the Division's motion to amend the order pursuant to Rule 200(d)(2).
2 15 U.S.C. 78m(a) (1997).
3 17 C.F.R. § 240.13a-1 (1999).
4 17 C.F.R. § 240.13a-11 (1999).
5 17 C.F.R. § 240.13a-13 (1999).
6 17 C.F.R. § 240.13a-10 (1999).
7 Carl L. Shipley, 45 S.E.C. 589, 595 (1974).
8 See Rule 200(d) cmt. d, 60 Fed. Reg. 32,738, 32,757 (1995) (where "amendments are within the scope of the original order, either a hearing officer or the Commission has the authority to amend the order"); see also John Francis D'Acquisto, Securities Exchange Act Rel. No. 1696 (Jan. 21, 1998), 66 SEC Docket 1094, 1099.