LexisNexis Corporate & Securities Law Community 2011 Top 50 Blogs

Bon mots

"You can observe a lot just by watching." Yogi Berra

"We do not distain to borrow wit or wisdom from any man who is capable of lending us either." Henry Fielding, Tom Jones

"In our complex society the accountant's certificate and the lawyer's opinion can be instruments for inflicting pecuniary loss more potent than the chisel or the crowbar." United States v. Benjamin, 328 F.2d 854, 862 (2d Cir. 1964)

Gregg Heinze, Exchange Act Rel. 56100 (July 19, 2007)

NYSE Appeal, failure to provide testimony to NYSE.

Time between appeal and decision - 8 months, 27 days.
Time between last brief and decision - 5 months, 20 days.
Pages - 10.


This is a rehash of the Turk decision of June 22, 2007 (see below). Respondent was a NYSE specialist.  Heinze asserted the 5th Amendment in response to an SEC subpoena and refused to appear before the NYSE in connection with a related investigation.  The Department of Justice was also conducting an investigation. The NYSE barred Heinze because of his failure to testify in its investigation.  Heinze claimed that the SEC, NYSE and DOJ were conducting a joint investigation and that hence the NYSE was a "state actor" subject to the 5th Amendment.

Just as in the Turk case, the Commission remanded to the NYSE to allow Heinze to develop his defense that the NYSE investigation, SEC investigation, and DOJ inquiry were so intertwined that he should be permitted to assert the 5th Amendment.

No surprise here, just a rehash of the Turk decision.

Here, the respondent alleged that NASD staff made comments indicating SEC control over its investigation.  Further, the Commission found that these allegations, if credible "would suggest the possibility that the Division exercised significant control and influence over the NYSE's investigation of Heinze, which would be relevant to a state action inquiry."  The remand was based on these circumstances and the fact that the NYSE decision came before recent Commission decisions such as Turk and similar cases.