One Step Ahead

[Bo14172]

What does $25 get you?

A motion praying (legal term) the SEC grant leave to John Martin via Attorney Frizzle to become a party or non-party participant inthis matter. I read the entire motion (which wasn't long) and wasn't specific in their relevance to this hearing. It was a motion without focus in my humble opinon.

You know how I feel about this. I have many opinons about the motion. For now, the only part that matters is the part of the motion which refers to Rule 210 of the SEC's Rules of Practice. He mentions it only in passing, and only in a way that he understands a denial may be issued based on Rule 210.

Of course a denial will occur.

In #(1) below, no person shall be granted leave to become a party or a non-party participanton a limited basis in an enforcement or disciplinary proceding. They mention the only exception is found in section (c).

Here's what section (c) says:

"In any proceeding, other than an enforcement proceeding, a disciplinary proceeding, a proceeding to review a self-regulatory determination, or a proceeding to review a Board determination, any person may seek leave to participate on a limited basis as a non-party participant as to any matter affecting the person's interests:"

So even in exception to the rule (section c), enforcement procedings and disciplinary procedings are types of procedings which DO NOT allow parties to be granted leave to become participants.

Further, I saw no court stamp on his document to determine when this was filed. I've seen some say there is no time limit on this filing. Those posters are WRONG. As you can read from Rule 210 itself, the party filing the motion must do so no later than 20 days before the hearing takes place. Thus if Mr. Frizzle filed this yesterday, he just made the threshold. if he filed it today (4-6-05) he is within the 20 day threshold which may be another basis for denial without the SEC judge to even have to consider the motion itself.

CMKX's last pr is a full admittance to their delinqincy. Nothing other than evidence to the matter of the suit will be considered relevant.

I still question the motive of those so called respected posters encouraging others to submit $25. This intervention is way premature, not done in the right way with an attorney who does not practice securites law.

Last if representation is needed on behalf of the shareholders, this is not the way counsel is selected. A shareholder's meeting with a choice of QUALIFIED COUNSEL IN SECURITIES LAW AND SHAREHOLDER REPRESENTATION making presentations to the group is the way to select counsel. If it came to that someday, I would humbly offer to lead such a selection process and decision.

Below is SEC's rule 210, link and language.

Bo
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Link: http://www.sec.gov/about/rulesprac060304.htm

Language:
Rule 210. Parties, Limited Participants and Amici Curiae.
(a) Parties in an Enforcement or Disciplinary Proceeding, a Proceeding to Review a Self-Regulatory Organization Determination, or a Proceeding to Review a Board Determination.

(1) Generally. No person shall be granted leave to become a party or a non-party participant on a limited basis in an enforcement or disciplinary proceeding, a proceeding to review a determination by a self-regulatory organization pursuant to Rules 420 and 421, or a proceeding to review a determination by the Board pursuant to Rules 440 and 441, except as authorized by paragraph (c) of this rule.

(2) Disgorgement Proceedings. In an enforcement proceeding, a person may state his or her views with respect to a proposed plan of disgorgement or file a proof of claim pursuant to Rule 612.

(b) Intervention as a Party.

(1) Generally. In any proceeding, other than an enforcement proceeding, a disciplinary proceeding, a proceeding to review a self-regulatory determination, or a proceeding to review a Board determination, any person may seek leave to intervene as a party by filing a motion setting forth the person's interest in the proceeding:

(i) in a proceeding under the Public Utility Holding Company Act of 1935, any representative of interested consumers or security holders, or any other person whose participation in the proceeding may be in the public interest or for the protection of investors or consumers, may be admitted as a party upon the filing of a written motion setting forth the person's interest in the proceeding.

(ii) in a proceeding under the Investment Company Act of 1940, any representative of interested security holders, or any other person whose participation in the proceeding may be in the public interest or for the protection of investors, may be admitted as a party upon the filing of a written motion setting forth the person's interest in the proceeding.

(2) Intervention as of Right.

(i) in proceedings under the Public Utility Holding CompanyAct of 1935, any interested representative, agency, authority or instrumentality of the United States or any interested State, State commission, municipality or other political subdivision of a state shall be admitted as a party to any proceeding upon the filing of a written motion requesting leave to be admitted.

(ii) in proceedings under the Investment Company Act of 1940, any interested State or State agency shall be admitted as a party to any proceeding upon the filing of a written motion requesting leave to be admitted.

(c) Leave to Participate on a Limited Basis. In any proceeding, other than an enforcement proceeding, a disciplinary proceeding, a proceeding to review a self-regulatory determination, or a proceeding to review a Board determination, any person may seek leave to participate on a limited basis as a non-party participant as to any matter affecting the person's interests:

(1) Procedure. Motions for leave to participate shall be in writing, shall set forth the nature and extent of the movant's interest in the proceeding, and, except where good cause for late filing is shown, shall be filed not later than 20 days prior to the date fixed for the commencement of the hearing. Leave to participate pursuant to this paragraph (c) may include such rights of a party as the hearing officer may deem appropriate. Persons granted leave to participate shall be served in accordance with Rule 150; provided, however, that a party to the proceeding may move that the extent of notice of filings or other papers to be provided to persons granted leave to participate be limited, or may move that the persons granted leave to participate bear the cost of being provided copies of any or all filings or other papers. Persons granted leave to participate shall be bound, except as may be otherwise determined by the hearing officer, by any stipulation between the parties to the proceeding with respect to procedure, including submission of evidence, substitution of exhibits, corrections of the record, the time within which briefs or exceptions may be filed or proposed findings and conclusions may be submitted, the filing of initial decisions, the procedure to be followed in the preparation of decisions and the effective date of the Commission's order in the case. Where the filing of briefs or exceptions or the submission of proposed findings andconclusions are waived by the parties to the proceedings, a person granted leave to participate pursuant to this paragraph (c) shall not be permitted to file a brief or exceptions or submit proposed findings and conclusions except by leave of the Commission or of the hearing officer.

(2) Certain Persons Entitled to Leave to Participate. The hearing officer is directed to grant leave to participate under this paragraph (c) to any person to whom it is proposed to issue any security in exchange for one or more bona fide outstanding securities, claims or property interests, or partly in such exchange and partly for cash, where the Commission is authorized to approve the terms and conditions of such issuance and exchange after a hearing upon the fairness of such terms and conditions.

(3) Leave to Participate in Certain Commission Proceedings by a Representative of the United States Department of Justice, a United States Attorney's Office, or a Criminal Prosecutorial Authority of any State or any Other Political Subdivision of a State. The Commission or the hearing officer may grant leave to participate on a limited basis to an authorized representative of the United States Department of Justice, an authorized representative of a United States Attorney, or an authorized representative of any criminal prosecutorial authority of any State or any other political subdivision of a State for the purpose of requesting a stay during the pendency of a criminal investigation or prosecution arising out of the same or similar facts that are at issue in the pending Commission enforcement or disciplinary proceeding. Upon a showing that such a stay is in the public interest or for the protection of investors, the motion for stay shall be favored. A stay granted under this paragraph (c)(3) may be granted for such a period and upon such conditions as the Commission or the hearing officer deems appropriate.

(d) Amicus Participation.

(1) Availability. An amicus brief may be filed only if:

(i) a motion for leave to file the brief has been granted;

(ii) the brief is accompanied by written consent of all parties;

(iii) the brief is filed at the request of the Commission or the hearing officer; or

(iv) the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth.

(2) Procedure. An amicus brief may be filed conditionally with the motion for leave. The motion for leave shall identify the interest of the movant and shall state the reasons why a brief of an amicus curiae is desirable. Except as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position the amicus will support, unless the Commission or hearing officer, for cause shown, grants leave for a later filing. In the event that a later filing is allowed, the order granting leave to file shall specify when an opposing party may reply to the brief. A motion of an amicus curiae to participate in oral argument will be granted only for extraordinary reasons.

(e) Permission to State Views. Any person may make a motion seeking leave to file a memorandum or make an oral statement of his or her views. Any such communication may be included in the record; provided, however, that unless offered and admitted as evidence of the truth of the statements therein made, any assertions of fact submitted pursuant to the provisions of this paragraph (e) will be considered only to the extent that the statements therein made are otherwise supported by the record.

(f) Modification of Participation Provisions. The Commission or the hearing officer may, by order, modify the provisions of this rule which would otherwise be applicable, and may impose such terms and conditions on the participation of any person in any proceeding as it may deem necessary or appropriate in the public interest.