Securities and Exchange Commission
In the Matter of
MFS SECURITIES CORP.
For Review of Action Taken by the
NEW YORK STOCK EXCHANGE, INC.
Member organization of national securities exchange was denied continuance of status when its member employees were suspended by the exchange. Member organization did not participate in hearing before exchange. Held, review proceeding is dismissed.
Dominic F. Amorosa, for MFS Securities Corp.
Jay N. Fastow, of Weil, Gotshal & Manges LLP, for the New York Stock Exchange, Inc.
Appeal filed: February 1, 2002
Last brief received: December 23, 2002
MFS Securities Corp., formerly a member organization of the New York Stock Exchange, Inc. ("NYSE" or "Exchange"), appeals from the termination of its status. The NYSE terminated MFS's status as a member organization after the Exchange suspended MFS's two members. To the extent we make findings of fact, we base our findings on an independent review of the record.
A. MFS became a member organization of the NYSE in 1980 and was a so-called two-dollar broker.1 As relevant here, a member organization is a corporation that is registered as a broker or dealer (or exempt from such registration) and that has at least one officer or employee who is a member of the Exchange.2
Marco Savarese was an officer, director, and the sole stockholder of MFS.3 Because of health problems, Marco Savarese could not work on the floor of the Exchange. MFS employed Marco Savarese's sons, Mark and John Savarese, as floor brokers. Both Mark and John Savarese were members of the Exchange, and they were the sole members affiliated with MFS.4
On February 25, 1998, Mark and John Savarese were charged with criminal violations of Section 11(a) of the Securities Exchange Act of 19345 and with criminal reporting and recordkeeping violations. That same day, the Exchange summarily suspended Mark and John Savarese. Also on February 25, the Commission filed a complaint seeking an injunction against MFS, Mark Savarese, and John Savarese for violations of the securities laws and NYSE rules.6 Marco Savarese was not named in any of these actions.
NYSE Rule 312(f) provides that the Exchange may permit a member organization whose sole member has "died or ceased to be associated" with the member organization to remain a member organization for a period of time in order to associate a new member. The rule provides that the member organization's continued status must be "consistent with the protection of investors and the public interest," and the member organization must be in compliance with Exchange requirements. On February 26, 1998, MFS requested that, under NYSE Rule 312(f), the firm be permitted to remain a member organization while it sought to hire and qualify Thomas Geraghty as a member. On February 27, 1998, Marco Savarese sent a letter representing that MFS was in net capital compliance. On February 28, 1998, the staff denied MFS's request without stating any reasons.
By letter dated March 2, 1998, MFS notified the Exchange that it wished to hire James Burke, who was already a member of the Exchange, as MFS's qualifying member. By letter dated March 4, 1998, the NYSE staff denied the request. The staff stated that Mark Savarese owned his membership so that his suspension did not operate as a conveyance of that membership to MFS.7 The NYSE staff added that, since both members employed by MFS were suspended, MFS was no longer a member organization of the Exchange. On March 5, 1998, the Exchange staff required MFS to file its final FOCUS report and complete a form with respect to its "retirement," noting that MFS had been terminated as a membership organization.
On March 6, 1998, MFS requested that the Exchange's Board of Directors review the staff's decision. On March 28, 1998, following briefing, counsel for both MFS and the Exchange appeared before the Board.
The Exchange argued that MFS automatically ceased to be a member organization when the NYSE summarily suspended Mark and John Savarese. In the Exchange's view, at that point, MFS's sole remedies were to seek an exemption under NYSE Rule 312(f) or to reapply for membership. The Exchange asserted that the staff properly denied MFS's request for an exemption under Rule 312(f). The NYSE noted that MFS was named in the Commission's injunctive action, which alleged, among other things, that Mark and John Savarese had falsified MFS's records and that MFS improperly reported income on its FOCUS reports. The Exchange also questioned whether Marco Savarese had exercised reasonable supervision over Mark and John Savarese's activities.
MFS responded that the staff's action had deprived MFS of an opportunity to respond to the Exchange's allegations and had effectively deprived MFS of its membership without due process. MFS argued that it should have been granted a hearing under NYSE Rule 475(a). The rule requires that the NYSE provide a hearing upon 15 days prior written notice if the Exchange wishes to limit or deny any person access to Exchange or member services.8
On April 2, 1998, the NYSE Board remanded the matter to the staff "for the purpose of promptly affording [MFS] a reasonable opportunity to present additional facts. Appropriate written notice shall be given by the Division and an appropriate record shall be made. The present status of [MFS] remains the same until the Division renders a decision, which decision shall be rendered as promptly as possible." The Board stated that it took the actions because of the summary suspension of MFS's members "and the underlying allegations of violations of laws and rules that give rise to the suspensions." The Board stated that it had "no conclusion on the merits of the matter."
The staff contacted MFS and asked it to make a submission in writing or orally by April 9, 1998. On April 7, 1998, a new attorney for MFS filed an appearance and requested additional time to review the record. On April 20, 1998, the Exchange provided additional documents to the new attorney.
The record contains no evidence of further communication between MFS and the NYSE until August 17, 1998, when a third attorney appeared for MFS and asked the Exchange to approve the transfer of Mark Savarese's membership to Marco Savarese. The Exchange "re-elected" Marco Savarese to membership effective September 24, 1998, and, on October 15, 1998, approved the lease of the membership to an unrelated third party.
B. MFS sued the NYSE for contractual and antitrust violations. The District Court dismissed the complaint.9 The United States Court of Appeals for the Second Circuit affirmed the dismissal of the contractual claims but remanded the antitrust claims to the District Court, pending the Commission's expressing its views on whether the NYSE's actions contravened the Exchange Act or the NYSE's rules.10
Invoking the doctrine of primary jurisdiction, the Court of Appeals stated:
The propriety, under the NYSE rules and the Exchange Act, of MFS's termination is crucial both to understanding and to identifying, with any degree of specificity, MFS's antitrust claim. SEC review of MFS's termination might, for example, result in MFS's reinstatement as a member of the Exchange, thereby possibly mooting the entire antitrust claim. Conversely, the SEC might approve of MFS's termination. But in so doing, the Commission would necessarily pass on the process accorded MFS, thereby determining whether, in its judgment, the manner in which MFS was terminated violated the Exchange Act and the rules of the NYSE."11
The Court remanded the proceeding to the district court with directions to stay the proceedings until the Commission acted upon "a promptly filed application for review." The Court concluded that it was up to the Commission "in the first instance" to consider "whether such an application for review is timely. 15 U.S.C. § 78s(d)(2)."12
In response to the Court's directive, MFS filed an application for review on February 1, 2002. Exchange Act Section 19(d)(2) provides that a person aggrieved by the action of a self-regulatory organization ("SRO") generally must seek Commission review within thirty days of the time that the aggrieved person and the Commission receive notice of the SRO's action.13 Section 19(d)(2) permits the Commission to accept an application for review "within such longer period as [the Commission] may determine." However, we have previously stated that "only under extraordinary circumstances will we authorize the filing of a late appeal from an SRO action."14
Although MFS objects to actions taken by the NYSE in late winter 1998, we did not receive the instant application until February 1, 2002.15 Generally, we would reject such an application as untimely.16
Nonetheless, the United States Court of Appeals for the Second Circuit has asked for the Commission's views as to whether the NYSE's actions comported with the Exchange Act and the NYSE's rules. MFS's application presents novel facts and legal issues. We conclude that this set of unusual circumstances constitutes "extraordinary circumstances." We accordingly accept MFS's application for review.17
Having filed an application for review with the Commission, MFS subsequently asked that the entire Commission recuse itself and appoint an independent arbitrator to consider this matter. MFS initially complained that the Commission's former Chairman and his former law firm represented the NYSE in connection with the Commission's investigation of various floor broker activities, which MFS asserts led to the proceedings against them. MFS then updated its request for Commission recusal on the ground that the Commission's current Chairman was head of the NYSE in the early 1990s and, along with his subordinates, assertedly approved and encouraged floor brokers' profit sharing with their customers. Although both the former and current Chairman recused themselves from participation in this proceeding, MFS claims that the Commission is "hopelessly conflicted."
Congress has charged the Commission with the power to review SRO adverse actions.18 The Supreme Court has held that, where Congress mandates that an agency hear certain types of proceedings, disqualification cannot be permitted to prevent the only tribunal with power to act from performing its duties.19
In Blinder, Robinson & Co. v. SEC,20 the Court of Appeals rejected the notion that disqualifying bias on the part of the Commission may be inferred from the alleged bias of its members. In Blinder, the petitioner contended that he had been harmed because the Commission imposed administrative sanctions after having earlier rejected his offer of settlement. The court noted that only one sitting Commissioner had participated in both actions. The court further stated:
It would be a strange rule indeed that inferred bias on such a tenuous basis, and then presumed that the bias spread contagion-like to infect Commissioners who were not even called upon to consider the settlement offer. To do so would manifest profound disrespect for Congress' deliberately structuring agencies as (typically) multi-member bodies, with staggered terms and with the requirement that the President appoint a certain number of members from the political party other than his own. To give credence to [petitioner's] dark suspicion of bias notwithstanding this carefully crafted structure would flout what Justice White, in writing for the [Supreme] Court in Withrow called "a presumption of honesty and integrity" on the part of those who serve in office.21
Here, Applicants fail to identify any action by any of the remaining commissioners that would evidence even the appearance of bias on any of their parts.22 None of the remaining commissioners participating in this decision was a member of the Commission before 2002, well after the events at issue here and our investigation of the NYSE. We deny Applicants' motion.
Section 19(f) of the Securities Exchange Act of 193423 governs our review of MFS's application for review of the Exchange's action. If we find that: (1) the specific grounds on which the NYSE based its action exist in fact; (2) the NYSE's action is in accordance with its rules; and (3) the NYSE rules are, and were applied in accordance with the purposes of the Exchange Act, we must dismiss the appeal, unless we find that the NYSE's action imposed an undue burden on competition.
By the end of the day on February 25, 1998, MFS did not have an Exchange member associated with the firm. MFS applied for an extension of membership to permit the firm to associate another member. The Exchange denied MFS's request without stating reasons.
The Exchange asserts that, once the Exchange suspended MFS's members, MFS ceased to be a member organization. At that point, the NYSE had an obligation to provide MFS with reasons for its actions and with a hearing. Exchange Act Section 6(b)(7)24 requires the Exchange to provide a "fair procedure" for prohibiting or limiting any person's access to services. Section 6(d)(2)25 requires that the person to be denied access be given notice of the proposed grounds for the denial and an opportunity to be heard. Section 6(d)(2) further requires that a record be maintained and that the exchange issue a statement setting forth its determination to deny access.
The NYSE's initial action terminated MFS's status as a member organization without any process at all. We recognize that NYSE Rule 312(f) does not specify a separate procedure by which requests for extensions of member organization status are considered.26 MFS argues that it was entitled to a hearing under NYSE Rule 475(a) that requires the NYSE to provide at least 15 days prior written notice to the person to be denied access and give that person an opportunity to be heard on the specific grounds for the prohibition or limitation.
The NYSE asserts that it provided MFS with a prompt hearing before its Board. MFS submitted a brief to the Board and on March 26, 1998, presented oral argument. As a result, it appears that the NYSE attempted to correct the initial omission. On April 2, 1998, the Board issued a written decision ordering that MFS be permitted to present additional information to the staff. The Board required that staff give appropriate written notice and that an appropriate record be made, and that the staff render a decision as soon as practicable. It appears that the proffered hearing would have provided fair procedures in accordance with Exchange Act Sections 6(b)(7) and 6(d)(2).
On April 3, 1998, the staff sent counsel for MFS a written request that the firm provide additional facts in accordance with the Board's decision. The staff further informed MFS that it had the choice of making a written and/or oral presentation. MFS did neither.
MFS now asserts that it refused to participate because it would be judged by the same persons who previously rejected its request for continued membership. MFS did not raise this objection to the NYSE at the time. Moreover, even if we were to accept MFS's argument that the NYSE staff would not be fair to the firm, MFS would have been entitled to appeal the staff's decision to the Board.27 After a decision by the Board, MFS could have sought review, including review of its fairness claim, from the Commission.
We previously have refused to consider arguments on appeal from applicants who failed to avail themselves of an SRO's procedures.28 "It is clearly proper to require that a statutory right to review be exercised in an orderly fashion, and to specify procedural steps which must be observed as a condition to securing review."29
The parties' arguments on appeal demonstrate the importance of this requirement. MFS argues to us that Marco Savarese did nothing wrong, as evidenced by his re-election to NYSE membership. It further asserts that the Exchange did not act in good faith; that the actions in which Mark and John Savarese engaged had the approval of the NYSE; that no other member organization had been denied time to associate a new member in accordance with Rule 312(f); and that, once Mark Savarese was suspended, MFS was free to transfer his membership because his suspension abrogated Mark Savarese's right to retain his membership under the A-B-C agreement between himself and MFS.30
The NYSE responds that MFS ceased to be a member upon suspension of Mark and John Savarese; that the Exchange did not abuse its discretion in refusing an NYSE Rule 312(f) exception because MFS's only two members had been summarily suspended and criminally charged and the members, as well as MFS, had been sued by the Commission; that MFS got quicker review at the Board level than it would have received if the Exchange had conducted a hearing under NYSE Rule 475; and that Marco Savarese, by failing to participate in a hearing, avoided questions with respect to his supervision and concerning attestations that he made to the Exchange.
We also recognize that the procedure crafted by the Board was not identical to the procedure specified by NYSE Rule 475, since MFS was unable to conduct business during its pendency.31 However, we cannot assess the efficacy of these procedures. The record that might have resolved this and many of the parties' remaining assertions was not developed. That lack of a record is attributable to MFS's failure to exhaust the procedures offered by the Exchange. We are precluded from reviewing these assertions by MFS's decision not to pursue the offered procedures.32
In any event, it is not clear that any remedy would be available to MFS. Its membership was transferred several years ago, and that membership appears to be subject to a valid lease to an unrelated third party.33
Under the circumstances presented, we are constrained to dismiss MFS's application for review.34
By the Commission (Commissioners GLASSMAN, ATKINS and CAMPOS); Chairman DONALDSON and Commissioner GOLDSCHMID not participating.
By the Commission.
Jonathan G. Katz
UNITED STATES OF AMERICA
SECURITIES AND EXCHANGE COMMISSION
In the Matter of
MFS SECURITIES CORP.
For Review of Action Taken by the
NEW YORK STOCK EXCHANGE, INC.
On the basis of the Commission's opinion issued this day, it is
ORDERED that the application for review filed by MFS Securities Corp be, and it hereby is, dismissed.
By the Commission.
Jonathan G. Katz
|1||A two-dollar broker is an independent floor broker on the floor of the Exchange. Paine, Webber, Jackson & Curtis, Admin. Proc. File No. 3-6074, 1982 SEC LEXIS 2647 at *33 (Dec. 30, 1982).|
|2||Article I, Section 3(i) and (k).|
|3||Marco Savarese was an "allied member" of the Exchange, which the NYSE Constitution defines as an employee of a member organization who is not himself or herself a member of the Exchange and is either a principal executive officer of the member organization or a person who controls the member organization. Article I, Section 3(c).|
|4||The NYSE Constitution defines "member" as a natural person who is a member of the Exchange. Article I, Section 3(h).|
|5||15 U.S.C. § 78k(a).|
|6||The Commission's complaint alleged that Mark and John Savarese had violated Exchange Act Section 11(a), Exchange Act Rule 11a-1, and NYSE Rules 90(a), 95(a), and 111(a); that the brothers aided and abetted MFS in violation of Exchange Act Section 11(a), as well as aiding and abetting MFS and others in violations of Exchange Act Section 17(a) and Exchange Act Rules 11a-1 and 17a-3(a)(7); and that MFS had violated Exchange Act Sections 11(a) and 17(a), Exchange Act Rules 11a-1, 17a-3(a)(7), and 17a-5, and NYSE Rule 90(a). SEC v. The Oakford Corporation, 98 CIV 1366 (S.D.N.Y. Feb. 25, 1998).|
This complaint was subsequently dismissed and refiled. On May 2, 2001, MFS consented, without admitting or denying the allegations of the new complaint, to a final judgment enjoining MFS from violations of Section 17(a) of the Securities Act of 1933, Exchange Act Sections 10(b), 11(a), and 17(a), Exchange Act Rules 10b-5, 11a-1, 17a-3, and 17a-5, and NYSE Rules 90(a), 92(b), and 91. SEC v. The Oakford Corporation, 00 Civ. 2426 (JSR) (S.D.N.Y.).
On May 20, 1999, Mark and John Savarese pleaded guilty to conspiracy to violate Exchange Act Section 11(a) and Exchange Act Rule 11a-1. U.S. v. The Oakford Corporation, 79 F. Supp. 2d 357, 359 (S.D.N.Y. 1999). On July 28, 2000, Mark and John Savarese consented to injunctions in SEC v. Oakford.
|7||From the record, it appears that this is a reference to the so-called A-B-C agreement between MFS and Mark Savarese. See New York Stock Exchange Guide (CCH) Para. 2301.34 (discussing A-B-C agreements). Under the A-B-C agreement between MFS and Mark Savarese, in the event MFS ceased to be a member organization, Mark Savarese had the right for a period of 30 days thereafter to retain the membership upon payment of certain amounts.|
Before the NYSE Board, MFS asserted that Mark Savarese's right to retain his membership lapsed when he was suspended. The NYSE countered that, absent Mark Savarese's waiver, his right to retain the membership was indefeasible for the 30-day period and therefore MFS could not transfer the membership to any other person until it received Mark Savarese's waiver.
John Savarese leased his membership from his mother, Elizabeth Savarese. The record does not contain further information about the status or disposition of this membership.
|8||Rule 475(a) provides that the Exchange:|
shall not prohibit or limit any person with respect to access to services offered by the Exchange or any member or member organization thereof unless the Exchange shall have notified such person in writing of, and shall have given such person, upon not less than 15 days prior written notice, an opportunity to be heard upon, the specific grounds for such prohibition or limitation. The Exchange shall keep a record of any proceeding pursuant to this Rule. Any determination by the Exchange to prohibit or limit any person with respect to access to services offered by the Exchange or a member organization thereof shall be supported by a statement setting forth the specific grounds on which the prohibition or limitation is based.
|9||MFS Securities Corp. v. NYSE, 2001 U.S. Dist. LEXIS 420 (S.D.N.Y. Jan. 22, 2001).|
|10||MFS Securities Corp. v. NYSE, 277 F.3d 613, 614 (2d Cir.), cert. denied, 153 L. Ed.2d 781 (2002).|
|11||Id. at 620-21.|
The Court further observed that the Commission's determination would be reviewable by a court of appeals, and added, "Following the appellate court's decision, MFS might then be able to continue the instant suit in the district court." Id. at 621, n.8.
|12||Id. at 622.|
|13||By letter dated March 20, 1998, the NYSE sent a report of change in membership status for MFS. The notice informed the Commission that, because of the suspension of its two members, "the firm was no longer considered to be a member organization." It also stated that the Exchange had denied MFS an extension for membership under Rule 312(f), but noted that MFS had appealed "and could, therefore, be reinstated as a member organization in the near future."|
MFS asserts that, because the NYSE did not file written notice of its actions under Exchange Act Section 19(d)(2), 15 U.S.C. §78(d)(2), we are ousted from review. Assuming arguendo that the NYSE's March 1998 letter did not constitute notice under Exchange Act Section 19(d)(2), we have previously held that the failure of an SRO to file the required notice does not prevent Commission review. William J. Higgins, 48 S.E.C. 713, 717 (1987) (taking jurisdiction over alleged denial of access although NYSE declined to file notice under Section 19(d)(1)). Section 19(d)(2) grants the Commission the authority to review any SRO action "with respect to which a self-regulatory organization is required . . . to file notice. . .," whether or not such notice is filed. Under Section 19(d)(1), the Exchange is required to give us notice of actions that limit or deny access to services.
|14||Warren R. Minton, Jr., Exchange Act Rel. No. 46709 (Oct. 23, 2002), __ SEC Docket __, quoting Lance E. Van Alstyne, 53 S.E.C. 1093, 1098 (1998).|
|15||MFS also asserts that our review authority is limited to disciplinary proceedings. This assertion is without merit. We had jurisdiction over a timely appeal by MFS. Exchange Act Sections 19(d)(1) and 19(f) grant the Commission the authority to review SRO actions that deny or limit the aggrieved person's access to services offered by the SRO or its members. As MFS vigorously argued before the NYSE Board, the NYSE's action at a minimum denied MFS access to services.|
|16||Minton, __SEC Docket at __.|
|17||Because of the novel issues raised by this appeal, we have determined to accept MFS's application. Our action should not be viewed as indicating that we will accept other applications under similar circumstances.|
|18||Exchange Act Section 19(f), 15 U.S.C. §78s(f). See, e.g., Securities Industry Study, Report of the Subcommittee on Securities, Committee on Banking, Housing and Urban Affairs, 93d Cong. 1st Sess. 210 (1973) ("No provision of the Exchange Act confers jurisdiction upon the courts to directly review the self-regulatory activities of" an SRO. "As a consequence of the Commission's rather extensive power to review NASD action and inaction, parties aggrieved by NASD action have indirect access to the courts.").|
|19||In FTC v. Cement Institute, 333 U.S. 683 (1948), the Supreme Court refused to disqualify the entire membership of the FTC, explaining that, if all of the FTC commissioners were disqualified, neither the FTC nor any other administrative agency could act on the complaint. It elaborated:|
Congress has provided for no such contingency. It has not directed that the Commission disqualify itself under any circumstances, has not provided for substitute commissioners should any of its members disqualify, and has not authorized any other governmental agency to hold hearings, make findings, and issue cease-and-desist orders in proceedings against unfair trade practices.
333 U.S. at 701. MFS suggests that an arbitrator can consider this matter. As noted, Congress has charged the Commission with the duty to review adverse SRO actions. That review structure does not provide for our appointment of an independent arbitrator.
|20||837 F.2d 1099 (D.C. Cir. 1988).|
|21||Id. at 1106-07, citing Withrow v. Larkin, 421 U.S. 35, 55 (1975).|
|22||See U.S. v. State of Oregon, 44 F.3d 758, 772 (9th Cir. 1994) (holding that an "unacceptable probability of actual bias on the part of those who have actual decisionmaking power" must be established in order to prevail on a claim of bias).|
|23||15 U.S.C. § 78s(f).|
|24||15 U.S.C. § 78f(b)(7).|
|25||15 U.S.C. § 78f(d)(2).|
|26||The rule states that such requests are to be determined in the discretion of the Exchange and are not to be granted unless the extension is consistent with the protection of investors and the public interest and the member organization is otherwise in compliance with Exchange requirements.|
|27||Compare Stephen Boadt, 51 S.E.C. 683, 685 (1993) (alleged vendetta against applicant by NASD staff does not demonstrate that applicant did not receive fair hearing before NASD).|
|28||Indeed, we have rejected applications for review under these circumstances. Gary A. Fox, Exchange Act Rel. No. 46511 (Sept. 13, 2002), 78 SEC Docket 1534, 1536 (failure to participate in any NASD proceedings); Datek Securities Corporation, Exchange Act Rel. No. 32306 (May 14, 1993), 54 SEC Docket 199 (failure to file timely appeal from hearing panel decision); Royal Securities Corporation, 36 S.E.C. 275, 277 (1955) (failure to make timely request for review). As discussed above, we have accepted the application here because of the unusual circumstances presented.|
|29||Royal Securities, 36 SEC at 277. Accord First Jersey Securities, Inc. v. Bergen, 603 F.2d 690, 696 (3rd Cir. 1979) (dismissing attempt to enjoin NASD disciplinary proceeding and noting that procedure that called for hearing panel, review by NASD, review by the Commission, and by the Court of Appeals "allows the agency to gather evidence, exercise its discretion, and apply its expertise at more than one level").|
|30||See n.7 supra.|
|31||It is unclear from the record how MFS would have conducted business if the Exchange had granted it relief under NYSE Rule 312(f) until it associated a new member.|
|32||Gary A. Fox, 78 SEC Docket at 1536.|
|33||We recognize that Marco Savarese might seek to transfer the membership back to MFS. However, in the interim, MFS consented to an injunction prohibiting it from committing various violations of law and of the NYSE's rules. MFS is thereby subject to a statutory disqualification and could be denied membership on that basis. Exchange Act Sections 2(a)(39) (defining statutory disqualification) and 6(c)(2) (authorizing exchanges to deny membership to person who is statutorily disqualified). See, e.g., Robert J. Sayegh, 52 S.E.C. 1110, 1114 (1996) (finding applicant statutorily disqualified because of an injunction and denying association with NASD member).|
MFS asks for damages, but we do not have the power to make such an award. Beatrice J. Feins, 51 S.E.C. 918, 922 n.14 (1993); Exchange Act Section 19(f).
|34||We have considered all of the parties' contentions. We reject or sustain them to the extent that they are inconsistent or in accord with the views expressed herein.|