SEC News Digest

COMMISSION ANNOUNCEMENTS

Commission Meetings

Closed Meeting - Thursday, February 26, 2009 - 2:00 p.m.

The subject matter of the closed meeting scheduled for Thursday, February 26, will be: institution and settlement of injunctive actions; institution and settlement of administrative proceedings of an enforcement nature; other matters relating to enforcement proceedings.

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.

ENFORCEMENT PROCEEDINGS

In The Matter of Diamondback Capital Management, LLC

On February 20, the Commission issued an Order Instituting Administrative and Cease-and-Desist Proceedings, Pursuant to Section 203(e) of the Investment Advisers Act of 1940 and Section 21C of the Securities Exchange Act of 1934, Making Findings and Imposing Remedial Sanctions and Cease-and-Desist Order (Order) against Diamondback Capital Management, LLC. The Order finds that from August 2005 until October 2005, Diamondback willfully violated Rule 105 of Regulation M on four occasions. On each occasion, in connection with a follow-on offering, Diamondback sold securities short within five business days before the pricing of the offering, and covered the short sale, in whole or in part, with shares purchased in the offering. The violative trades generated profits of $94,014 for Diamondback's hedge-fund client.

The Commission's Order censures Diamondback and orders it to cease and desist from committing or causing any violations or any future violations of Rule 105 of Regulation M and to pay disgorgement of $94,014 and prejudgment interest of $21,154 and a civil penalty of $47,007. Diamondback consented to the issuance of the Order without admitting or denying the Commission's findings, except as to the Commission's jurisdiction over it and the subject matter of these proceedings. (Rel. 34-59428; IA-2843; File No. 3-13376)

SEC Issues Notice of Proposed Distribution Plan and Opportunity for Comment in the Matter of John W. Adams and AIP, LLC (Hawaiian Airlines, Inc.)

The Commission announced today that it has given notice, pursuant to Rule 1103 of the Securities and Exchange Commission's Rules on Fair Fund and Disgorgement Plans, 17 C.F.R. § 201.1103, that the Division of Enforcement has filed a proposed plan (Distribution Plan) for the distribution of monies in the matter of John W. Adams and AIP, LLC.

The Distribution Plan provides for distribution of the disgorgement and prejudgment interest of $2,470,471 paid by John W. Adams and AIP, LLC, plus any accumulated interest, less any federal, state, or local taxes on the interest. The proposed plan provides for distribution of the monies on a pro rata basis to the holders of Hawaiian's outstanding common stock at the close of market on June 27, 2002 who (a) did not tender their shares to Hawaiian in the tender offer; or (b) who tendered their shares but who timely withdrew that tender and whose shares were not purchased by Hawaiian in the tender offer. Each claimant shall receive a pro rata share of the Distribution Fund calculated by a Fund Administrator after payment of the Fund Administrator's reasonable fees and reimbursement of the Fund Administrator's reasonable costs and expenses.

A copy of the Distribution Plan may be obtained by submitting a written request to Tracy L. Davis, Esq., Assistant Regional Director, United States Securities and Exchange Commission, 44 Montgomery Street, Suite 2600, San Francisco, CA 94104. Interested parties may also print a copy of the proposed Distribution Plan from the Commission's public website, http://www.sec.gov. Any person or entity wishing to comment on the Distribution Plan must do so in writing by submitting their comments within 30 days of the date of the notice (i) to the Office of the Secretary, United States Securities and Exchange Commission, 100 F Street, N.E., Washington, DC 20549-1090; or (ii) via the Commission's Internet comment form (www.sec.gov/litigation/admin.shtml); or (iii) by sending an e-mail to rule-comments@sec.gov. Comments submitted by e-mail or via the Commission's web site should include the Administrative Proceeding File Number (Admin. Proc. File No. 3-11676) in the subject line. Comments received will be publicly available. Persons should submit only information that they wish to make publicly available. (Rel. 34-59433; File No. 3-11676)

Judgments Entered Against Defendants Pietro Cimino, Philip Pritchard, Global Development & Environmental Resources, Inc. and California-Based Securities Attorney Carmine J. Bua

The Commission announced that on Oct. 1, 2008, the United States District Court for the Middle District of Florida entered a Final Judgment, by consent, against Defendant Carmine J. Bua ordering him to pay disgorgement in the amount of $3,820, prejudgment interest in the amount of $284 and imposing a civil penalty of $40,000. Previously, on May 28, 2008, the Court entered a Judgment of Permanent Injunction and Other Relief, by consent, against Bua. On Sept. 5, 2008, the Court also entered Judgments, by consent, against Pietro Cimino, Philip Pritchard and Global Development & Environmental Resources, Inc., and against Anthony M. Cimini on Jan. 14, 2009. The Judgments enjoin: Global from violations of Sections 5 and 17(a) of the Securities Act of 1933 (Securities Act), and Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 (Exchange Act); Bua and Cimini from violations of Section 5 of the Securities Act and Section 10(b) and Rule 10b-5 of the Exchange Act; and Pritchard and Cimino from violations of Section 17(a) of the Securities Act and Section 10(b) and Rule 10b-5 of the Exchange Act. The Judgments against Bua, Cimino, Pritchard and Cimini also bar them from participating in an offering of a penny stock and permanently bar Cimino, Prichard and Cimini from acting as officers or directors of a public company registered with the Commission. Finally, the Judgments against Global, Pritchard, Cimino and Cimini provide for disgorgement with prejudgment interest and the potential imposition of civil penalties, in amounts to be determined by the Court upon the Commission's motion.

The Commission commenced this action by filing its complaint on May 22, 2008, against the above-mentioned defendants, among others. The complaint alleged the defendants engaged in a complex scheme to evade the registration provisions of the federal securities laws by creating a fraudulently backdated convertible promissory note, using a forged assignment to assign the note to three foreign entities, and then converting the note into purportedly unrestricted Global shares. The complaint also alleged that Bua drafted the assignment and legal opinion letter authorizing the issuance of the purportedly unrestricted shares, despite possessing information which undermined the validity of the note and its subsequent assignment. [SEC v. Global Development & Environmental Resources, Inc., et al., Civil Action No. 8:08-cv-993-T27MAP (M.D. Fla.)] (LR-20908)

INVESTMENT COMPANY ACT RELEASES

Mainstay VP Series, Inc, et al.

A notice has been issued giving interested persons until March 18, 2009, to request a hearing on an application filed by Mainstay VP Series Fund, Inc. (Fund) and New York Life Investment Management LLC (NYLIM) (together, the Applicants). The Applicants request an order, pursuant to Section 6(c) of the Investment Company Act, as amended, granting relief from the provisions of Section 9(a), 13(a), 15(a) and 15(b) of the Act and Rules 6e-2(b)(15) and 6e 3(T)(b)(15) thereunder to the extent necessary to permit each life insurance company separate account supporting variable life insurance contracts (VLI Account(s)) to hold shares of the Fund or a future fund when one or more of the following other types of investors also hold shares of the Fund or a future fund: (1) life insurance company separate accounts supporting variable annuity contracts (VA Accounts), whether or not the life insurance company is an affiliated person of the insurance company depositor of any VLI Account, (2) VLI Accounts supporting scheduled or flexible premium variable life insurance contracts, whether or not the life insurance company is an affiliated person of the insurance company depositor of any other VLI Account, (3) general accounts of insurance company depositors of VA Accounts and/or VLI Accounts, (4) the Fund's investment adviser or future fund's investment adviser (or an affiliated person of the investment adviser), or (5) qualified group pension plans and group retirement plans in accordance with Section 817(h) of the Internal Revenue Code and the U.S. Treasury regulations and Internal Revenue Service guidelines thereunder, as described in more detail below, outside the separate account context. A "future fund" is any investment company (or investment portfolio or series thereof), other than the Fund, shares of which are sold to VLI Accounts and to which NYLIM or its affiliates may in the future serve as investment adviser, investment subadviser, investment manager, administrator, principal underwriter or sponsor. (Rel. IC-28619 - February 20)

SELF-REGULATORY ORGANIZATIONS

Accelerated Approval of Proposed Rule Changes

The Commission published notice of filing of Amendments No. 1 and 2 and granted accelerated approval to a proposed rule change (SR-CBOE-2008-115), as modified by Amendments No. 1 and 2, filed by Chicago Board Options Exchange pursuant to Rule 19b-4 under the Securities Exchange Act of 1934 relating to FLEX Options expirations. Publication is expected in the Federal Register during the week of February 23. (Rel. 34-59417)

The Commission has granted accelerated approval of a proposed rule change, as modified by Amendment No. 1, submitted by the NASDAQ Stock Market (SR-NASDAQ-2009-005) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 to reduce certain order exposure periods on the NASDAQ Options Market from three seconds to one second. Publication is expected in the Federal Register during the week of February 23. (Rel. 34-59421)

Immediate Effectiveness of Proposed Rule Changes

A proposed rule change filed by the International Securities Exchange (SR-ISE-2009-06) relating to fee changes has become immediately 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 February 23. (Rel. 34-59410)

A proposed rule change by New York Stock Exchange (SR-NYSE-2009-13) amending certain NYSE rules to reflect that Designated Market Makers on the Exchange no longer act as agents for orders entered on the Exchange 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 February 23. (Rel. 34-59415)

A proposed rule change by NYSE Alternext US (SR-NYSEALTR-2009-09) amending certain NYSE Alternext Equities Rules to reflect that Designated Market Makers (DMMs) on the Exchange no longer act as agents for orders entered on the Exchange 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 February 23. (Rel. 34-59416)

A proposed rule change filed by NYSE Alternext US (SR-NYSEALTR-2009-07) to provide instructions as to the payment of listing fees in connection with the listing of additional securities 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 23. (Rel. 34-59418)

A proposed rule change (SR-BX-2009-011) filed by the Boston NASDAQ OMX BX to eliminate the $3 underlying price requirement for continued listing and listing of additional series on the Boston Options Exchange Facility 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 February 23. (Rel. 34-59419)

A proposed rule change (SR-NASDAQ-2009-011) filed by the NASDAQ Stock Market to establish an Exchange Direct Order for the NASDAQ Options Market 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 February 23. (Rel. 34-59420)

A proposed rule change (SR-NASDAQ-2009-009) filed by the Nasdaq Stock Market to clarify Nasdaq's definition of controlled company 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 February 23. (Rel. 34-59424)

SECURITIES ACT REGISTRATIONS

• Latest Securities Act registrations (TXT)

RECENT 8K FILINGS

• Latest 8-K filings (TXT)

http://www.sec.gov/news/digest/2009/dig022309.htm