UNITED STATES OF AMERICA before the SECURITIES AND EXCHANGE COMMISSION SECURITIES EXCHANGE ACT OF 1934 Rel. No. 39521 / January 7, 1998 Admin. Proc. File No. 3-9140 : In the Matter of : ORDER GRANTING PETITION : FOR REVIEW AND SUMMARILY RICHARD CANNISTRARO : AFFIRMING INITIAL DECISION : : The Division of Enforcement ("Division") has petitioned us to review the May 21, 1997, initial decision of an administrative law judge. This is a public administrative proceeding initiated by the Division against respondent Richard Cannistraro pursuant to Sections 15(b) and 19(h) of the Securities Exchange Act of 1934 ("Exchange Act"). The Division is seeking to bar Cannistraro from being associated with a broker-dealer on the basis of criminal convictions entered September 1987 and March 1993 and a civil injunction based on the 1987 conviction, judgment for which was entered June 24, 1996. The order instituting this proceeding ("Order") was issued by the Commission on October 9, 1996. Despite repeated attempts at service, the Division and the Secretary of the Commission have been unable to serve the Order on Cannistraro. Because of its inability to serve Cannistraro, on April 1, 1997, the Division moved for suspension of this proceeding until it is able to serve Cannistraro. The law judge denied the motion, ruling that she did not have the authority under our Rules of Practice to suspend indefinitely a proceeding, and dismissed the proceeding without prejudice. The Division petitioned us to review the law judge's decision pursuant to our Rule of Practice 411(b)(2). We grant the Division's petition for appeal and summarily affirm the law judge's dismissal without prejudice. Our Rule of Practice 161 states that hearing officers may, for good cause shown, postpone the commencement of a hearing for a "reasonable period of time." Cannistraro s apparent evasion of the Division s attempts at service in this matter constitutes good cause for a postponement of the hearing in this matter. However, the requirement that postponements shall be for a "reasonable period of time," indicates that any postponement must be for a definite period of time and cannot be open-ended, as the Division urges. <(1)> <(1)> Cf. SEC v. Sloan, 436 U.S. 103, 111 (1978) (holding that this Commission is not statutorily authorized to issue a series of summary suspension orders based upon (continued...) The Division has not demonstrated any circumstances which might persuade us that a different reading of our Rules of Practice is appropriate. Although the Division argues that dismissal of this matter will mean that any proceeding to bar Cannistraro cannot be based on his September 1987 conviction, such a proceeding still may be predicated upon his 1993 conviction and/or the Division s 1996 injunction. <(2)> The Division explains that, when it ultimately locates Cannistraro, the need to refile the proceeding may give Cannistraro the opportunity to evade service once again -- i.e., the Division seeks to have the matter filed and ready for service in the event that Cannistraro is located. We believe that the procedures in place for expediting our review of time-sensitive matters will satisfy the Division's need for speedy service of any subsequent order on Cannistraro. For these reasons, we summarily affirm the law judge s decision. While summary affirmance is unusual, under these circumstances it is merited. <(3)> Not only is the record in this matter necessarily <(1)>(...continued) a single set of events or circumstances which threaten an orderly market). <(2)>/ Pursuant to Section 15(b)(6)(A)(ii) of the Exchange Act, an administrative proceeding to bar an individual from association with a broker-dealer may be predicated on a criminal conviction if the individual was convicted within ten years of the commencement of the administrative proceeding. Exchange Act Section 15(b)(6)(A)(iii) provides that an administrative proceeding may be based on an injunction. No time limitation is specified. <(3)>/ By summarily affirming a decision, we are determining implicitly that submission of briefs by the parties will not benefit us in reaching a decision. See Rule of Practice 411(e) (providing that we may "summarily affirm an initial decision based upon the petition for review and any response thereto, without further briefing, if [we find] that no issue raised in the petition for review warrants [our] further consideration") (emphasis added). Summary affirmance is rare, given that generally we have an interest in articulating our views on important matters of public interest and the parties have a right to full consideration of those matters. See Terry T. Steen, Admin. Proc. File No. 3-8798, Exchange Act Rel. No. 38675 (May 27, 1997), 64 SEC Docket 1785, 1786. Where briefing will not aid our decision-making process, however, summary affirmance is appropriate. Cf. Joseph A. Lugo, Admin. Proc. File No. 3-6740, Exchange Act (continued...) ======END OF PAGE 2====== abbreviated, consisting primarily of the Division's repeated motions for extensions of time to serve Cannistraro, summary affirmance here will not be unjust for either party. The Division, by means of its Petition for Review, has had ample opportunity to argue that we should vacate the law judge s dismissal, and Respondent Cannistraro, who has successfully evaded the Division's attempts at service for more than a year, is not likely to enter an appearance now, even were we to order the parties to brief their arguments to us. Accordingly, IT IS ORDERED that the Division s Petition for Review be, and it hereby is, granted; and it is further ORDERED that the law judge's decision below be, and it hereby is, summarily affirmed; and it is further ORDERED that this proceeding be, and it hereby is, dismissed without prejudice. By the Commission. Jonathan G. Katz Secretary <(3)>(...continued) Rel. No. 25982 (August 8, 1988), 41 SEC Docket 946 (summarily affirming law judge's decision because of appellant's failure to file briefs in support of his appeal). ======END OF PAGE 3======