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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)

Perpetual Securities, Inc., Cathy Y. Huang, Exchange Act Rel. 56962, December 13, 2007

Denial of motion to reconsider.


The Commission largely sustained NASD sanctions in an October, 4, 2007, opinion (see below) On October 26, 2007, after receiving an extension of time to file, respondents' filed a motion for reconsideration.

The Commission noted that such a motion is an "exceptional remedy designed only to correct manifest errors of law or fact in the previous opinion.  Further, factual matters raised in such motions will only be considered if additional factual evidence raised could not have been known or adduced before entry of the order being appealed.  

The Commission noted that here, respondents' had used their motion largely to rehash arguments they had made on direct appeal and had raised no new matters.  For example, respondents' reiterated their arguments that there was misconduct by the NASD in the underlying proceeding.  The Commission noted that it had considered those very arguments on appeal and had rejected them.  The Commission also rejected the claim that its Secretary's office had failed to serve its previous opinion, noting that delivery to respondents was by courier and confirmed after an initial problem transmitting it by facsimile.  Also, respondents' claimed that the opinion included a factual error.  The Commission noted that the statement in its opinion had been based on respondents' brief on appeal. 

Respondents' also made a claim of impropriety by the NASD staff that was not raised on appeal.  Because the matter could have been raised on appeal, the Commission ruled that this claim was not proper in a motion for reconsideration.  


Let the actual appeal begin.  The Commission labored for 6 weeks to issue a perfunctory 3 1/2 page opinion.  Delay in ruling on such motions only encourages more such motions as it allows appellants to delay final resolution of the matter.