An irreverent Wall Street Blog
UPDATE: Potentially Dubious Flexible Rescheduling Of SEC Hearing And Awry,Alaska Cruise
June 14, 2017This is an UPDATE of "Potentially Dubious Flexible Rescheduling Of SEC Hearing" (BrokeAndBroker.com Blog, May 19, 2017)
3. On numerous occasions, from at least June 2013 to the present, Meyers Associates violated Securities Act Section 5 by facilitating the unregistered sale of hundreds of millions of penny stock shares, without performing adequate due diligence regarding the sales' Section 5 compliance.4. In addition, regarding the same penny-stock transactions as well as others, Meyers Associates repeatedly violated Exchange Act Section 17(a), and Rule 17a-8 thereunder, by failing to file suspicious activity reports ("SARs") with the United States Treasury Department's Financial Crimes Enforcement Network ("FinCEN"), as required by the Bank Secrecy Act of 1970 ("BSA") and its implementing regulations. Meyers Associates failed to file required SARs for suspicious penny stock sale transactions that resulted in proceeds of at least $24.8 million.5. From June 2013 to the present, Meyers Associates earned a total of at least $493,000 in commissions and fees from the above illegal penny-stock sales and unreported suspicious transactions.6. Respondent Telfer was Meyers Associates' AML officer and, pursuant to the firm's written AML program (the "AML Program"), was personally responsible for monitoring customer transactions for suspicious activity and ensuring the firm's compliance with SAR reporting requirements. By failing to monitor customer transactions and failing to cause the firm to file the required SAR reports, Telfer aided and abetted, and caused, Meyers Associates' violations of Exchange Act Section 17(a) and Rule 17a-8 thereunder.February 27, 2017 HearingSimply going by the seriousness of the allegations, we can all understand the SEC's concerns. On the other hand, it's sort of tough to justify the filing of the OIP on January 25, 2017, and the scheduling of a hearing for February 27, 2017, as was the case. Yeah, I know, it's all part of the give-and-take and back-and-forth of SEC regulatory proceedings. Still . . . unless you're an insider looking out, it all appears a bit of a rush to justice when the time between the filing of a complaint and the first hearing is only about one month. As noted by Chief Administrative Law Judge Brenda P. Murray in In the Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and John David Telfer, Respondents, (Order Postponing Hearing; Admin. Proc. Rul. Rel. No. 4578; Admin. Proc. File No. 3-17813 / February 1, 2017), about a week after the OIP was filed (and less than a month before the first, scheduled hearing) there wasn't even a record that :
Windsor Street Capital, L.P. (f/k/a Meyers Associates, L.P.), or John David Telfer have been served with the OIP. However, on January 31, the Division of Enforcement relayed a request from the parties to my office by telephone that I postpone the hearing and schedule a telephonic prehearing conference at any time on February 27, 2017.I GRANT the request, POSTPONE the hearing, and schedule a telephonic prehearing conference on February 27, 2017, at 9:30 a.m. ETMarch 1, 2017 OrderFollowing the prehearing conference of February 27, 2017, Chief ALJ Murray rescheduled the initial hearing to June 19, 2017. In the Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and John David Telfer, Respondents, (Order Following Prehearing Conference; Admin. Proc. Rul. Rel. No. 4643; Admin. Proc. File No. 3-17813 / March 1, 2017).Respondent's First Request for PostponementIn May 2017, Respondent Windsor Street Capital made its first request for a postponement of the initial hearing, which had been rescheduled by the ALJ to June 19, 2017. Respondent Telfer had previously made an offer of settlement, which the Division accepted and would be presenting to the Commission for approval. In the Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and John David Telfer, Respondents, (Order on Motion; Admin. Proc. Rul. Rel. No. 4805' Admin. Proc. File No. 3-17813 / May 17, 2017). In support of its request for a postponement, Respondent Windsor Street Capital informed the SEC that it had ceased the business practices that are alleged in the OIP (apparently to demonstrate the lack of likelihood of ongoing harm to the public). In further support of Respondent's postponement request, the May 17th Order states that:
Windsor represents that counsel has been focused on settlement negotiations and needs time to prepare for the hearing and one of two new co-counsel, David E. Robbins and Sam Silverstein, who submitted a notice of appearance on May 8, 2017, is unavailable because of a scheduling conflict."NO" but with "Flexibility"In response to Respondent's postponement request, the May 17th Order asserts that:
[W]hile the Division does not consent to a postponement, it has indicated it would be flexible on the hearing date.We don't consent but we're flexible on the date? Seriously?As a former regulator with two regulatory organizations, I fully understand why regulatory staff would push back against certain postponement requests. Respondents often make those requests in bad faith and only to disrupt the staff's trial preparation. On the other hand, given the specific facts in this case, a few weeks of additional time isn't that big of a deal. Frankly, given all the circumstances behind the postponement request, any veteran lawyer would expect that a reasonable trier-of-fact (be that an ALJ or judge) would grant an extension. Alas, litigation tends to devolve in silliness and this case is no exception. In support of its "NO" but with "flexibility," the Division purportedly argued that:
"Windsor has not articulated a reasonable basis for the postponement and because the requested delay is potentially unfair to the Division." Opp. at 1. If a postponement is granted, however, the Division stated it is available the week of June 26 and from July 19 to September 1. Id. It noted that July 19-25 is problematic for its litigation team and witnesses due to previously scheduled obligations. Id. at 1-2.
Articulation and Potential Unfairness
Then there's the
really critical protest from the Division that the postponement is unfair . . .
well, on second thought, I misstate that argument. The Division doesn't assert
that the postponement is, in fact, unfair. Oh no. Not at all. The Division
argues that the postponement is "potentially" unfair. Impressive
legal argument! The Staff is actually arguing against a postponement not because they can actually
demonstrate to an ALJ that the actual delay would actually be unfair but they are
actually making the argument that the actual proposed delay could be "potentially" unfair.
In response to the
Division's flexible "NO" based upon concerns about articulation and
potential unfairness, the May 17th Order explains
that:
On May 16, 2017, Windsor submitted a letter objecting to the Division's characterization of its reasons for a postponement as "dubious," stating that counsel initially requested that the hearing not be scheduled until at least the third week of June, and arguing that not postponing the hearing would be extremely damaging and prejudicial to Windsor. Regarding its availability for the week of June 26, counsel only noted the possibility of a personal scheduling conflict on one day that week, but cannot predict the specific date at this time.
June 26, 2017
Rescheduled HearingChief ALJ Murray rescheduled the
hearing to June 26, 2017. In explaining her rationale, the ALJ states
that:
I am persuaded by the following. The OIP was issued three and a half months ago. The parties have known the hearing date since March 1. The Division, which has the burden of proof, has witnesses ready for the week of June 19, but is available the following week. At the prehearing conference, counsel for Windsor notified me that he expected the birth of a grandchild to occur on June 8 and would prefer not to schedule the hearing for that week or the following week, thus I scheduled the hearing to begin on June 19, 2017. Tr. 15.2 Now, in addition to the birth of a grandchild, we have new counsel's son's wedding, a fortieth wedding anniversary, and an Alaskan cruise. Mot. Ex. B at 2. Finally, the allegations are serious and should be resolved and there are no substantive issues to be resolved before the hearing can begin.
All of this for a one-week
extension?Bill Singer's
Comment
Chief ALJ Murray enunciated six
reasons for seeking a delay:
It was
with more than a bit of a wry smile that I recalled a request by none other
than Chief ALJ Murray for an extension of time so that ALJ Jason S. Patil could
file an Initial
Decision in a case that had required 12 days of hearings and produced
3,670 pages of transcript. In the Matter of Gregory T. Bolan, Jr. and Joseph C.
Ruggieri (Motion to the Commission for
Extension, Admin. Proc. Ruling No. 2844; Admin Proc. File 3-16178 /
June 23, 2015). Chief ALJ Murray had requested a 45-day extension for submission of the Initial Decision "out
of an abundance of caution." The
proposed Initial Decision did not apply to Respondent Bolan,
who had settled with the SEC.
In
setting forth her reasons for seeking an extension of the July 29, 2015, due
date, the ALJ offered this explanation:
I understand that a draft of the Initial Decision is all but completed, however, the review and cite checking by the law clerks/attorney-advisers has not yet begun. July and August will be a particularly busy time in the Office with the departure of the senior attorney adviser on June 26, several multi-week scheduled vacations by two of the remaining six attorney-advisers, the necessary review of hundreds of resumes and interviews of a lucky few to fill the attorney-adviser vacancy, extensive involvement in e-filing system development, and multiple deadlines in other cases on the horizon. It is best to avoid rushing on matters of this magnitude. For these reasons, by this motion, I request a forty-five day extension of the Initial Decision due date, to September 14, 2015.
- The legal review and cite checking of the Initial Decision isn't completed;
- A Senior Attorney Adviser is leaving. Note that it is an attorney acting only as an adviser, so it's not like this is someone first-chairing;
- Two of the remaining six attorneys are going on vacation. So that's, what, seven lawyers on this matter if we include the Senior Attorney Adviser?;
- Need to take time to hire a replacement for the departing attorney adviser;
- Some e-filing system is apparently in "development," and that's apparently causing some delay and
- The SEC has other matters and they all have deadlines, and I can't get this Initial Decision out on time because of that.
- Our law firm is charging our client $1,000 an hour and we would like to take a few more hours to make sure that our legal review and cite checking are exhausted.
- A lawyer is leaving our law firm.
- Two lawyers at our law firm are going on vacation.
- We are hiring new associates and partners and need to take time away from the regulatory proceeding for that purpose.
- We are installing a new software system at our law firm; or, the ever popular, our law firm's software system is on the fritz and no one can figure out how to re-boot it or what the product code is for re-setting the outdated enterprise solution that some idiot bought many years ago.
- We have other clients to service at our law firm and this SEC matter is not the only case on which we are representing someone.
Anyone
want to place a small wager as to how a defense lawyer will fare if he or she
presents any of the last six excuses/explanations to a Wall Street
regulator? Talk about a "dubious" proposition!
In Proper
Perspective
I raise
the ghost of Chief ALJ's Murray's request for a 45-day extension in In the Matter of Gregory T. Bolan, Jr. and Joseph C.
Ruggieri, in order to place Respondent Windsor Street Capital's
request for postponement into fairer perspective. Like
Ruggieri, Windsor Street Capital also
involves a two Respondent caption with one respondent having settled prior to
the initiation of hearings. Laugh all you want about the reference to
Respondent Windsor Street Capital's lawyer wanting to take an Alaskan Cruise
but remember that when it is convenient, even the SEC's Chief ALJ trotted
out "several multi-week scheduled vacations
by two of the remaining six
attorney-advisers." Similarly, why was Chief ALJ Murray's request for a delay in
filing the Initial Decision appropriate because of a need to
undertake "the necessary review of hundreds of resumes and interviews
of a lucky few to fill the attorney-adviser
vacancy," but a delay is not okay when considering a defense
lawyer's son's wedding or 40th
anniversary?
In seeking an extension in Ruggieri, Chief ALJ Murray sagely admonished. "It is best to avoid rushing on
matters of this magnitude." What is at stake for
Respondent Windsor Street Capital would seem of far greater magnitude that the
inconvenience of several SEC lawyers having to work nights and weekends in order
to draft an Initial Decision. Hopefully, the one-week
extension granted to Respondent Windsor Street Capital will help it better
prepare; frankly, I'm not sure why more time was not granted but such are the
fun and games at the SEC.
By the way, in case you were
wondering how the Initial Decision postponement request in Ruggieri
fared, ALJ Jason S. Patil didn't file that document until September
14, 2015, which is a date subsequent to the due date of July 29, 2015. Chief
ALJ Murray got every single day of extension that she sought.
Bravo!
The Initial
Decision in Ruggieri found that although the Division had established that Ruggieri
traded on tips in four of six alleged instances, the Division had failed to
meet its burden of proof to establish that Bolan had tipped Ruggieri for a personal
benefit within
the meaning of Dirks v. SEC, 463 U.S. 646 (1983), and United States
v. Newman, 773 F.3d
438 (2d Cir. 2014). In
the Matter of Gregory T. Bolan, Jr. and Joseph C. Ruggieri (Initial
Decision, Init. Dec. Rel. No. 877; Admin Proc. File 3-16178
/ September 14, 2015).
You see . . . sometimes it's important to avoid rushing on matters of
this magnitude.
Also
READ: "Insider
Trading Case Collapses Over Personal Benefit Proof "(BrokeAndBroker.com
Blog, September 15,
2015)
UPDATE
June 13, 2017
On June 12, 2017, without admitting or denying the
findings, Respondent Telfer submitted an Offer of Settlement, which the SEC
accepted. In
the Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and
John David Telfer, Respondents, (Order
Making Findings and Imposing Remedial Sanctions and a Cease-And-Desist
Order; '34 Act Rel. No. 34-80908; Invest. Co. Act Rel. No.
82675; Admin. Proc. File No. 3-17813 / June 12, 2017).
The Order Making Findings
asserted that Telfer willfully aided and abetted and caused Meyers
Associates' violations of Section 17(a) of the Exchange Act and Rule 17a-8
thereunder, which require broker-dealers to file the reports required by the
Bank Secrecy Act, including SARs. In accordance with the terms of the Order
Making Findings, Telfer was ordered to cease and desist from future
'34 Act violations and to pay a $10,000 civil penalty; and he
was:
barred from association with any broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization;prohibited from serving or acting as an employee, officer, director, member of an advisory board, investment adviser or depositor of, or principal underwriter for, a registered investment company or affiliated person of such investment adviser, depositor, or principal underwriter; andbarred from participating in any offering of a penny stock, including: acting as a promoter, finder, consultant, agent or other person who engages in activities with a broker, dealer or issuer for purposes of the issuance or trading in any penny stock, or inducing or attempting to induce the purchase or sale of any penny stock.
On June 13, 2017, the Division and
Respondent Windsor Street Capital submitted a joint motion to stay the
proceeding because
everyone seems to have reached a settlement-in-principle. In the
Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and John
David Telfer, Respondents, (Stay
Order; Admin. Proc. Rul. Rel. No. 4869; Admin. Proc. File No. 3-17813
/ June 13, 2017). In response, Chief ALJ Murray stayed the proceeding but, out
of an abundance of commonsense and caution, she noted
that:
[T]he parties will notify me if things go awry.
Dedicated to Chief ALJ
Murray: