RULES AND RELATED MATTERS
SEC Proposes to Amend the Rule Exempting a Foreign Private Issuer From Registration Under Section 12(g) of the Exchange Act
The Commission issued a release proposing to amend the rule that exempts a foreign private issuer from having to register a class of equity securities under Section 12(g) of the Exchange Act based on the submission to the Commission of information that the issuer has published outside the United States. The proposed amendments would permit issuers meeting specified criteria, which do not depend on the number of its U.S. holders, to claim the exemption under Exchange Act Rule 12g3-2(b) without having to submit a written application to the Commission. The deadline for comments on the rule proposal is 60 days following its publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Elliot Staffin, Special Counsel, Office of International Corporate Finance, (202) 551-3450. (Rel. 34-57350; International Series Rel. 1307; File No. S7-04-08)
In the Matter of Michael K. Openshaw
On February 19, the Commission issued an Order Instituting Administrative Proceedings Pursuant to Rule 102(e) of the Commission's Rules of Practice, Making Findings and Imposing Remedial Sanctions (Order) against Michael K. Openshaw. The Order finds that on Dec. 17, 2007, the Commission filed a complaint against Openshaw in SEC v. Michael K. Openshaw, Civil Action No. 2:07-cv-0977 (D. Utah). The Order also finds that on Jan. 22, 2008, the court entered an order permanently enjoining Openshaw, by consent, from future violations of Sections 10(b) and 13(b)(5) of the Exchange Act and Rules 10b-5, 13a-14, 13b2-1 and 13b2-2 thereunder, and aiding and abetting violations of Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act and Rules 12b-20, 13a-1, and 13a-13 thereunder. Openshaw was not ordered to pay a civil money penalty based on his sworn representations in his Statement of Financial Condition.
The Commission's complaint alleged that from September through December of 2004, Openshaw, who was then CFO of Q Comm International, a Utah corporation, completed five unauthorized bank wires, transferring a total of $1,525,000 to a Q Comm vendor. According to the complaint, Openshaw wired these funds without approval and without disclosing the transfers to the other members of Q Comm's management or its auditors. Openshaw concealed the transfers through improper accounting entries and by altering documents. The complaint alleges that Openshaw's acts caused Q Comm's financial statements for the year ended Dec. 31, 2004 and quarter ended March 31, 2005 to be materially misleading and to deviate from Generally Accepted Accounting Principles. In addition, the Commission alleges that Openshaw falsely certified the annual report for the year ended Dec. 31, 2004.
The Order suspends Openshaw from appearing or practicing before the Commission as an attorney. Openshaw consented to the issuance of the Order without admitting or denying any of the findings in the Order, except as to the Commission's personal and subject matter jurisdiction, which Openshaw admitted to. (Rel. 34-57353; AAE Rel. 2789; File No. 3-12964)
In the Matter of Justin F. Ficken
An Administrative Law Judge has issued an Initial Decision in the matter of Justin F. Ficken. The Initial Decision finds that the U.S. District Court for the District of Massachusetts permanently enjoined Respondent Ficken from future violations of Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), and Exchange Act Rule 10b-5. Additionally, the district court ordered Respondent Ficken to disgorge $589,854 in ill-gotten gains. The Initial Decision concludes that, pursuant to Section 15(b)(6) of the Exchange Act and Section 203(f) of the Investment Advisers Act of 1940, it is in the public interest to bar Respondent Ficken from association with any broker or dealer, or investment adviser. (Initial Decision No. 345; File No. 3-12832)
Immediate Effectiveness of Proposed Rule Change
A proposed rule change filed by the NYSE Arca relating to listing standards for Index-Linked Exchangeable Notes in NYSE Arca Equities Rule 5.2(j)(4) (SR-NYSEArca-2008-18) has become effective pursuant to Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of February 19. (Rel. 34-57343)
Approval of Proposed Rule Change
The Commission approved a proposed rule change (SR-NASDAQ-2007-100) submitted by the NASDAQ Stock Market to Nasdaq Rule 7033 to modify the fees charged for the Mutual Fund Quotation Service and to correct certain errors in the rule manual. Publication is expected in the Federal Register during the week of February 19. (Rel. 34-57347)
Accelerated Approval of Proposed Rule Changes
The Commission granted accelerated approval of a proposed rule change (SR-NASDAQ-2008-010) filed by the NASDAQ Stock Market to trade units of the United States 12 Month Oil Fund, LP and the United States 12 Month Natural Gas Fund, LP pursuant to the unlisted trading privileges. Publication is expected in the Federal Register during the week of February 19. (Rel. 34-57348)
The Commission granted accelerated approval to a proposed rule change submitted by the Chicago Board Options Exchange (SR-CBOE-2008-07) requesting permanent approval of two pilot programs that increase position and exercise limits. Publication is expected in the Federal Register during the week of February 19. (Rel. 34-57352)
SECURITIES ACT REGISTRATIONS
RECENT 8K FILINGS