UNITED STATES OF AMERICA
In the Matter of
MICHAEL T. HIGGINS,
ORDER INSTITUTING PROCEEDINGS,
The Securities and Exchange Commission ("Commission") deems it appropriate and in the public interest to institute a public administrative proceeding against Michael T. Higgins ("Higgins") pursuant to Section 203(f) of the Investment Advisers Act of 1940 ("Advisers Act").
In anticipation of these proceedings, Higgins has submitted an Offer of Settlement ("Offer") which the Commission has determined to accept. Solely for the purposes of this proceeding, and any other proceeding brought by or on behalf of the Commission or in which the Commission is a party, Higgins has admitted the jurisdiction of the Commission over him and over the subject matter of this proceeding and the findings set forth below (except the allegations of the Commission's complaint described in paragraph III.C. below, which Higgins neither admits nor denies) and Higgins has consented to the issuance of this Order Instituting Proceedings, Making Findings and Imposing Remedial Sanctions ("Order"), and to the entry of the findings and the imposition of the remedial sanctions set forth below.
On the basis of this Order and Higgins's Offer, the Commission finds that:
A. Michael T. Higgins, age 37, resides in San Anselmo, California. From 1997 to April 2000, Higgins acted as an unregistered investment adviser, providing investment advice for compensation to a hedge fund known as the Ballybunion Capital Partners, L.P. (the "Fund");
B. On May 9, 2000, the Commission commenced an action, Securities and Exchange Commission v. Higgins, et al., Case No. C-00-1657 WHA (the "Injunctive Action"), in the United States District Court for the Northern District of California, alleging in its Complaint that Higgins violated: Section 17(a) of the Securities Act of 1933 ("Securities Act"); Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 thereunder; and Sections 206(1) and 206(2) of the Advisers Act.
C. The Commission's Complaint in the Injunctive Action alleged that from December 1998 through March 2000, Higgins raised more than $7.6 million by making material misrepresentations and omissions to investors and prospective investors in the Fund, in connection with the purchase or sale, and in the offer or sale, of securities, while acting as an unregistered investment adviser; and that during 1999 and 2000, Higgins materially misled prospective and current investors regarding the past and current performance of the Fund.
D. On August 10, 2000, the United States District Court for the Northern District of California entered an Order of Permanent Injunction, Asset Freeze and Other Equitable Relief against Higgins in the Injunctive Action pursuant to which the United States District Court ordered that Higgins be permanently enjoined and restrained from, directly or indirectly, violating Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Sections 206(1) and 206(2) of the Advisers Act.
E. On February 6, 2001, the United States District Court for the Northern District of California entered judgment against Higgins, pursuant to a plea of guilty, in United States v. Michael Timothy Higgins, Case No. 3-00-307 based upon a violation of 15 U.S.C. §§ 78j(b) and 78ff and 17 C.F.R. § 240.10b-5 involving the same conduct alleged in the Injunctive Action.
In view of the foregoing, the Commission deems it appropriate and in the public interest to impose the sanctions that are set forth in the Offer submitted by Higgins.
Accordingly, IT IS HEREBY ORDERED that Higgins is barred from association with any investment adviser.
By the Commission.
Jonathan G. Katz
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