UNITED STATES OF AMERICA
Before the
SECURITIES AND EXCHANGE COMMISSION

Securities Act of 1933
Release No. 8490 / September 23, 2004

Securities Exchange Act of 1934
Release No. 50435 / September 23, 2004

Administrative Proceeding
File No. 3-10230

I.

On June 14, 2000, the Securities and Exchange Commission ("Commission") entered an Order Instituting Public Administrative and Cease-and-Desist Proceedings Pursuant to Section 8A of the Securities Act of 1933 ("Securities Act"), Sections 15(b)(6) and 21C of the Securities Exchange Act of 1934 ("Exchange Act") ("Initial Order") against Respondent John M. Black, Jr. ("Black").

II.

Black has submitted an Offer of Settlement of John M. Black ("Offer") to these administrative proceedings, which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission, or to which the Commission is a party, and without admitting or denying the findings herein, except as to the Commission's jurisdiction over him, the subject matter of these proceedings, and paragraph III.D, which are admitted, Black consents to the entry of this Order Making Findings, Imposing Remedial Sanctions, and Imposing a Cease-and-Desist Order Pursuant to Section 8A of the Securities Act and Sections 15(b)(6) and 21C of the Securities Exchange Act of 1934 ("Order"), as set forth below.

III.

On the basis of this Order and Black's Offer, the Commission finds¹ that:

A. Black was associated as a registered representative with various broker-dealers that were registered with the Commission, including: a) from March 1993 through January 1995, Commonwealth Associates; and b) from February 1995 through September 1995, Meyers Pollock & Robbins, Inc. Black was also employed as Chief Operating Officer of Grady and Hatch & Company, Inc., a registered broker-dealer, from January 1997 through June 2000.

B. Black participated in the public offerings of ATR Industries ("ATR"), Learner's World, Inc. ("Learners"), Rollerball International, Inc. ("Rollerball"), Healthwatch Inc. ("Healthwatch") and Hytk Industries, Inc. ("Hytk") stock, which at all relevant times were penny stocks.

C. From in or about February 1999 through at least March 2000, Black received bribes in exchange for causing, either directly or through brokers controlled by Black, retail demand for ATR, Learners, Rollerball, Healthwatch and Hytk stock by recommending those stocks to retail customers. Black did not disclose to his customers that he received additional compensation to make his penny stock recommendations.

D. On February 4, 2003, Black pleaded guilty to one count of conspiracy to commit securities fraud, conspiracy to commit wire fraud, and conspiracy to commit commercial bribery in connection with the manipulation schemes concerning ATR, Learners, Rollerball, Hytk and Healthwatch stock and three counts of securities fraud in connection with the manipulation schemes concerning Rollerball, Learners and Hytk stock in U.S. v. Black, 100-Cr-628 (JGK).

E. In his plea allocution, Black admitted that during 1999 and 2000, he knowingly received bribes of cash for recommending ATR, Learners, Rollerball, Hytk, and Healthwatch stock to his retail clients, and that he did not disclose those payments to the clients. Black admitted that he also arranged for other brokers to receive bribes in exchange for recommending those same manipulated securities.

F. On December 23, 2003, Black was sentenced to 24 months in prison and 36 months of supervised release and on March 3, 2004 was ordered to pay $269,879.03 in restitution.

G. Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] prohibits the use of "any manipulative or deceptive device or contrivance," and Section 17(a)(1) of the Securities Act [15 U.S.C. § 77q(a)] and Rule 10b-5 under the Exchange Act [17 C.F.R. § 240.10b-5] prohibit the use of "any device, scheme, or artifice to defraud." One of the "basic aim[s] of the anti-fraud provisions [of the federal securities laws] is to 'prevent rigging of the market and to permit operation of the natural law of supply and demand.'" SEC v. First Jersey Secs., Inc., 101 F.3d 1450, 1466 (2d Cir. 1996) (quoting United States v. Stein, 456 F.2d 844, 850 (2d Cir. 1972)). "This prohibition with respect to manipulative activity is not confined to any particular type of manipulation, but . . . is necessarily designed to outlaw every device 'used to persuade the public that activity in a security is the reflection of a genuine demand instead of a mirage.'" SEC v. Resch-Cassin & Co., Inc., 362 F. Supp. 964, 975 (S.D.N.Y. 1973) (citation omitted).

H. Payment of undisclosed compensation to brokers or other securities professionals to tout stocks to others for the purpose of manipulating the public market for those stocks violates the anti-fraud provisions of the federal securities laws. See, e.g., United States v. Blitz, 533 F.2d 1329, 1338 (2d Cir. 1976) (undisclosed fees to brokers for selling stock promoted by payor violates the securities laws); United States v. Koss, 506 F.2d 1103, 1109 (2d Cir. 1974) (undisclosed kickback arrangement between representatives of group seeking to unload shares of manipulated stock and individual touting the stock violates Section 10(b) of the Exchange Act); United States v. Hayutin, 398 F.2d 944, 948-49 (2d Cir. 1968) (arranging for payment of undisclosed kickbacks to brokers held to constitute participation in market manipulation scheme); United States v. Cannistraro, 734 F. Supp. 1110, 1125 (D.N.J. 1990) (paying mutual fund managers to cause mutual funds to purchase stock promoted by payor "aptly characterize[d] as a bribery scheme" that "worked a fraud on shareholders of the Funds in violation of Rule 10b-5").

I. Black willfully violated Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder.

IV.

In view of the foregoing, the Commission deems it appropriate and in the public interest to impose the sanctions agreed to in Black's Offer.

Accordingly, it is hereby ORDERED that:

1. Pursuant to Section 8A of the Securities Act and Section 21C of the Exchange Act, Black cease and desist from committing or causing any violation and any future violations of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10b-5 promulgated thereunder;

2. Pursuant to Section 15(b)(6) of the Exchange Act, Black be, and hereby is, barred from association with any broker or dealer.

Any reapplication for association by Black will be subject to the applicable laws and regulations governing the reentry process, and reentry may be conditioned upon a number of factors, including, but not limited to, the satisfaction of any or all of the following: (a) any disgorgement ordered against Black, whether or not the Commission has fully or partially waived payment of such disgorgement; (b) any arbitration award related to the conduct that served as the basis for the Commission order; (c) any self-regulatory organization arbitration award to a customer, whether or not related to the conduct that served as the basis for the Commission order; and (d) any restitution order by a self-regulatory organization, whether or not related to the conduct that served as the basis for the Commission order.

3. Black be, and hereby is, barred from participating in any offering of 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.

By the Commission.

Endnotes

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¹  The findings herein are made pursuant to Respondent's Offer of Settlement and are not binding on any other person or entity in this or any other proceeding.

http://www.sec.gov/litigation/admin/33-8490.htm