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Laminaiare Corp., TAM Restaurants, Inc., Upside Development, Inc., Exchange Act Rel. 56685, October 22, 2007

Denial of Motion to Amend Order Instituting Proceedings
Pages - 4


This is the companion decision to the Commission's November 15, 2007 decision.  It was only recently posted to the Commission's web site.

These proceedings were brought pursuant to Exchange Section 12(j) to suspend or revoke the registration of, among others, TAM Restaurants, now known as Aerofoam Metals, Inc.  the Division of Enforcement sought to amend the order instituting proceedings to strike Aerofoam as a party.  The ALJ initially granted the motion, despite the fact that the Commission's rules permit the ALJ to amend the OIP only if the amendment is within the scope of the original order.  Motions to dismiss all charges against a respondent are not considered to be within the scope of the original order, and thus may only be ruled on by the Commission itself.

Respondent TAM opposed the Division's motion arguing that there was uncertainty about whether or not Aerofoam had in fact acquired TAM.  The Division had claimed that TAM was not actually acquired by Aerofoam, claiming it had information that Aerofoam had acquired a different company also named TAM.  Aerofoam did not object to the motion.

The Commission ruled that while orders to amend should be freely granted, this rule is subject to the proviso that other parties should be neither surprised, nor prejudiced by amendments.  Finding the evidence confusing, the Commission denied the motion, finding that the record concerning the relationship between TAM and Aerofoam requires "further development.