Thus, since they do not have to name ING Groep, N.V. as a respondent, the issue whether or not the Complainants abandoned their motion to amend the complaint to name ING Groep, N.V. is moot.
Conclusion
Since the record contains at least some evidence that ING Groep, N.V. is a covered company for SOX purposes and that ING NAIC is its subsidiary, and since the Complainants are not required to name ING Groep, N.V. as a respondent and are entitled to prove that ING NAIC acted as its agent, we DENY the motion to dismiss and REMAND for proceedings consistent with the foregoing.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 18 U.S.C.A. § 1514(A) (West 2007).
2 Id.
3 Administrative Law Judge's (ALJ) Feb. 17, 2006 Decision and Order Granting Respondent's Motion to Dismiss (D. & O.) at 4.
4 ALJ Exhibit (ALJX) 2 (Mar. 24, 2005 OSHA Determination) at 1.
5 Id. A covered employer is a company with "a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or . . . is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company." 18 U.S.C.A. § 1514A(a).
6 ALJX 2 at 1-2.
7 D. & O. at 2 n.2.
8 Hearing Transcript, p. 455-459.
9 Secretary's Order No. 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1980.110(a) (2007).
10 29 C.F.R. § 1980.110(b).
11 5 U.S.C.A. § 557(b) (West 1996).
12 Cf. Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993) (analogous provision of Surface Transportation Assistance Act); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991) (same).
13 D. & O. at 4.
14 18 U.S.C.A. § 1514(A).
15 D. & O. at 5.
16 ARB No. 04-149, ALJ No. 2004-SOX-011 (ARB May 31, 2006).
17 ARB No. 03-126, ALJ No. 2003-SOX-018 (ARB Feb. 25, 2004).
18 Klopfenstein, slip op. at 13-14.
19 Id. at 13.