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U.S. Securities and Exchange Commission

SEC News Digest

Issue 2010-227
December 2, 2010

COMMISSION ANNOUNCEMENTS

Deputy Chief Litigation Counsel Mark A. Adler Leaving SEC After 13 Years of Service

The Securities and Exchange Commission announced today that Mark A. Adler, Deputy Chief Litigation Counsel of the Division of Enforcement, will leave the agency this month after 13 years of service. He will join the Public Company Accounting Oversight Board (PCAOB) as Deputy Chief Trial Counsel in the Division of Enforcement and Investigations.

As Deputy Chief Litigation Counsel since 2004, Mr. Adler worked with the Chief Litigation Counsel to oversee the Division of Enforcement's nationwide litigation program. During the past year, he also served as Acting Chief Litigation Counsel. Mr. Adler established Division-wide policies and practices related to litigation. He advised trial attorneys and investigative staff nationwide on litigation matters including charging decisions, legal theories, evidentiary and privilege issues, trial strategy and presentation, and electronic discovery. He coordinated with other offices and divisions across the agency on litigation issues, and counseled and assisted enforcement staff on cases involving financial fraud, stock options backdating, the Foreign Corrupt Practices Act, insider trading, and emergency relief.

"Mark has provided a steady hand in guiding the Division's litigation program, and his many contributions to the Division are reflected in the strong trial record compiled by the Division's litigators," said Robert Khuzami, Director of the SEC's Division of Enforcement. "Extremely well-liked and respected throughout the Commission, Mark exhibited a serious commitment to enforcing the securities laws and has been a strong advocate for investors."

Matthew Martens, the SEC's Chief Litigation Counsel, said, "Mark is a terrific trial lawyer who has been an invaluable resource to the Division's senior management, litigators and staff attorneys in Washington and the regional offices. They repeatedly looked to Mark for his sound, thoughtful and creative advice. His many contributions were a great benefit to the Trial Unit."

Mr. Adler said, "It has been a privilege to work with the Division of Enforcement litigation and investigative staff nationwide who are so talented and committed to protecting investors. I am so proud of our trial attorneys and litigation staff throughout the country who do a tremendous job representing the Commission. I have learned so much from my colleagues in the Division of Enforcement and throughout the Commission. Working with them has made my career in public service truly rewarding."

Prior to his appointment as the SEC's Deputy Chief Litigation Counsel, Mr. Adler was an Assistant Chief Litigation Counsel and lead trial counsel in complex federal district court actions and administrative proceedings involving financial fraud, insider trading, offering fraud, and market manipulation.

Before joining the SEC staff in 1997, Mr. Adler spent more than nine years at the Department of Justice, where he investigated, prosecuted, and tried major white collar criminal cases and obtained convictions against savings and loan executives and owners, real estate developers, accountants, and attorneys in cases involving complex bank fraud, money laundering, illegal political contributions, perjury, fraudulent mortgage loan sales, bank bribery, and bankruptcy fraud. From 1981 to 1987, Mr. Adler handled civil litigation and other general commercial matters in private practice in New York City.

A native of Albany, N.Y., Mr. Adler received his undergraduate degree summa cum laude from Tufts University in 1978, and his law degree from Harvard Law School in 1981. (Press Rel. 2010-235)


Notice of the Effectiveness of the Withdrawal of Japan Credit Rating Agency, Ltd. (JCR) From Registration as a Nationally Recognized Statistical Rating Organization (NRSRO) With Respect to Issuers of Asset-Backed Securities

On Sept. 24, 2007, the Commission issued an order granting the registration of JCR as an NRSRO in the following classes of credit ratings: (1) financial institutions; (2) insurance companies; (3) corporate issuers; (4) issuers of asset-backed securities; and (5) issuers of government securities.

On Oct. 18, 2010, JCR furnished to the Commission on Form NRSRO a notice of withdrawal from registration in the category of issuers of asset-backed securities.

Pursuant to Rule 17g-1 under the Exchange Act, JCR's withdrawal from registration in the category of issuers of asset-backed securities became effective on Dec. 2, 2010, 45 days after the notice was furnished to the Commission. Thus, as of Dec. 2, 2010, JCR should not be treated as an NRSRO with respect to credit ratings for issuers of asset-backed securities.


Commission Meetings

Closed Meeting - Wednesday, December 8, 2010 - 10:00 a.m.

The subject matter of the Closed Meeting scheduled for Wednesday, Dec. 8, 2010 will be: an adjudicatory matter.

At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551-5400.


RULES AND RELATED MATTERS

Order Extending Temporary Conditional Exemption for Nationally Recognized Statistical Rating Organizations from Requirements of Rule 17g-5 under the Securities Exchange Act of 1934 and Request for Comment

On Nov. 23, 2010, the Commission issued an order pursuant to Section 36 of the Exchange Act that conditionally would exempt nationally recognized statistical rating organizations (NRSROs) from Rule 17g-5(a)(3) until Dec. 2, 2011, with respect to structured finance products where: (1) the issuer of the structured finance product is a non-U.S. person; and (2) the NRSRO has a reasonable basis to conclude that the structured finance product will be offered and sold upon issuance, and that any arranger linked to the structured finance product will effect transactions of the structured finance product after issuance, only in transactions that are outside of the U.S. (Rel. 34-63363)


Order Extending Temporary Exemption

The Commission has extended and modified a temporary exemption under the Exchange Act in connection with a request of ICE Trust U.S. LLC (ICE Trust) related to central clearing of credit default swaps. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63387)


Order Extending Temporary Exemption

The Commission has extended a temporary exemption under the Exchange Act in connection with a request of Chicago Mercantile Exchange, Inc. (CME) related to central clearing of credit default swaps. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63388)


Order Extending Temporary Exemption

The Commission has extended a temporary exemption under the Exchange Act in connection with a request of ICE Clear Europe, Limited (ICE Clear Europe) related to central clearing of credit default swaps. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63389)


Order Extending Temporary Exemption

The Commission has extended a temporary exemption under the Exchange Act in connection with a request of Eurex Clearing, AG (Eurex) related to central clearing of credit default swaps. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63390)


Commission Proposes Extending Rule 206(3)-3T

On December 1, the Commission proposed extending a temporary rule - Rule 206(3)-3T -- that allows advisers who are registered as broker-dealers to engage in principal trading. Without the two year extension, the rule would expire on December 31, 2010. The extension allows the Commission to take into account recent legislative developments, as well as its own experiences with the operation of the rule to date.

Comments on the proposal should be received by the Commission within 14 days after publication in the Federal Register. (Rel. IA-3118; S7-23-07)


ENFORCEMENT PROCEEDINGS

In the Matter of Animatrix, Inc., et al.

On December 2, an Administrative Law Judge issued an Order Making Findings and Revoking Registrations by Default (Default Order) as to Animatrix, Inc., Apex Resorts Corp. (n/k/a West Hawk Development Corp.), Apollo Capital Group, Artibles, Inc., Asche Transportation Services, Inc., Asia SuperNet Corp., Assembly and Manufacturing Systems Corp., and Azul Holdings Inc. in Animatrix, Inc., Administrative Proceeding No. 3-14108. The Default Order finds that the eight Respondents failed to comply with Section 13(a) of the Securities Exchange Act of 1934 (Exchange Act) and Exchange Act Rules 13a-1 and 13a-13 or 13a-16 because each Respondent failed to make periodic filings with the Commission for a number of years. Based on these findings, the Default Order, pursuant to Section 12(j) of the Exchange Act, revokes the registration of each class of registered securities of each of these companies. (Rel. 34-63408; File No. 3-14108)


Commission Revokes Registrations of Securities of Colormax Technologies, Inc. for Failure to Make Required Periodic Filings

On December 2, the Commission instituted a settled proceeding pursuant to Section 12(j) of the Securities Exchange Act of 1934 (Exchange Act) revoking the registration of each class of registered securities of Colormax Technologies, Inc. (CXTE) for failure to make required periodic filings with the Commission.

Without admitting or denying the findings of the order, except as to jurisdiction, which it admitted, CXTE consented to the entry of an Order Instituting Proceedings, Making Findings, and Revoking Registration of Securities Pursuant to Section 12(j) of the Securities Exchange Act of 1934 finding that it had failed to comply with Section 13(a) of the Exchange Act and Rules 13a-1 and 13a-13 thereunder and revoking the registration of each class of CXTE's securities pursuant to Section 12(j) of the Exchange Act.

Brokers and dealers should be alert to the fact that Exchange Act Section 12(j) provides, in pertinent part, as follows:

No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked . . . .

(Rel. 34-63409; File No. 3-14148)


Commission Revokes Registrations of Securities of Payphone Wind Down Corp. for Failure to Make Required Periodic Filings

On December 2, the Commission instituted a settled proceeding pursuant to Section 12(j) of the Securities Exchange Act of 1934 (Exchange Act) revoking the registration of each class of registered securities of Payphone Wind Down Corp. (Payphone) for failure to make required periodic filings with the Commission.

Without admitting or denying the findings of the order, except as to jurisdiction, which it admitted, Payphone consented to the entry of an Order Instituting Proceedings, Making Findings, and Revoking Registration of Securities Pursuant to Section 12(j) of the Securities Exchange Act of 1934 finding that it had failed to comply with Section 13(a) of the Exchange Act and Rules 13a-1 and 13a-13 thereunder and revoking the registration of each class of Payphone's securities pursuant to Section 12(j) of the Exchange Act.

Brokers and dealers should be alert to the fact that Exchange Act Section 12(j) provides, in pertinent part, as follows:

No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked . . . .

(Rel. 34-63410; File No. 3-14149)


INVESTMENT COMPANY ACT RELEASES

American United Life Insurance Company, et al.

A notice has been issued giving interested persons until Dec. 27, 2010 to request a hearing on an application filed by American United Life Insurance Company and AUL American Unit Trust (together, Applicant) requesting an exemptive order of the Securities and Exchange Commission pursuant to Section 26(c) of the Investment Company Act, as amended, approving the substitution of securities issued by the Vanguard Variable Insurance Fund Small Company Growth Portfolio (cusip-921925889) for securities issued by the Vanguard Explorer Fund (cusip-921926101), two funds of the same fund family but unaffiliated with Applicant. (Rel. IC-29521 - November 30)


SELF-REGULATORY ORGANIZATIONS

Immediate Effectiveness of Proposed Rule Changes

A proposed rule change filed by NASDAQ OMX PHLX (SR-Phlx-2010-167) relating to the extension of the Exchange's Penny Pilot Program and replacement on a semi-annual basis of Penny Pilot issues that have been delisted has become effective under Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63395)

A proposed rule change filed by the NASDAQ Stock Market (SR-NASDAQ-2010-150) relating to the extension of the Exchange's Penny Pilot Program and replacement on a semi-annual basis of Penny Pilot issues that have been delisted has become effective under Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63396)

A proposed rule change filed by NYSE Arca (SR-NYSEArca-2010-105) relating to the calculation of net asset value for the iShares® Gold Trust has become effective. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63398)

A proposed rule change filed by NASDAQ OMX PHLX relating to rebates and fees for adding and removing liquidity in Select Symbols (SR-Phlx-2010-168) has become effective under Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63402)


Proposed Rule Changes

BATS Exchange filed a proposed rule change (SR-BATS-2010-034), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 to create a directed order program. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63403)

The National Securities Clearing Corporation filed a proposed rule change (SR-NSCC-2010-16) pursuant to Section 19(b)(1) of the Act that would amend Procedure II (Trade Comparison and Recording Service) of the NSCC Rules & Procedures to modify the money tolerance comparison provisions for fixed income securities. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63404)


JOINT INDUSTRY PLAN RELEASES

Notice of Filing and Immediate Effectiveness of Proposed Amendment to the Plan for Reporting of Consolidated Options Last Sale Reports and Quotation Information

The Options Price Reporting Authority filed a notice of filing and immediate effectiveness of a proposed amendment pursuant to Section 11A of the Securities Exchange Act of 1934 and Rule 608 thereunder (SR-OPRA-2010-04) to revise the Plan for Reporting of Consolidated Options Last Sale Reports and Quotation Information to revise Section 4.04 of the Data Recipient Interface Specification and Section 4.15 of the Participant Interface Specification and make conforming Changes to Appendix D. Publication is expected in the Federal Register during the week of December 6. (Rel. 34-63400)


SECURITIES ACT REGISTRATIONS


RECENT 8K FILINGS

 

http://www.sec.gov/news/digest/2010/dig120210.htm


Modified: 12/02/2010