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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)

ALJ Ordered To Render Initial Decision

Nasdaq Stock Market, Exchange Act Release 57741 (April 30, 2008)

Nasdaq appealed to the Commission a decision by the Consolidated Tape Operating Committee to impose a new entrant fee of $833,000.  The Commission accepted jurisdiction as the dispute involved registered securities information processors, national market system plans, or transaction reporting plans pursuant to Exchange Act Section 11A.  In June 2007 the matter was assigned to an ALJ who held a hearing in November 2007.  The ALJ then transmitted the record of the hearing to the Commission's Secretary without preparing an initial decision.  The ALJ based this refusal on the fact that the original Commission order did not explicitly order him to do so.  The Commission seems to have remedied its initial defalcation by now ordering the ALJ to prepare an initial decision.  The order also gave the ALJ 120 days to file his decision.


Silliness (and apparent lethargy) reigns.  While not an earth shattering dispute, this matter shows at best benign neglect by the Commission.  First, the initial order apparently omitted standard language in all orders referring matters to an ALJ for hearing ordering the ALJ to prepare an initial decision.  Believe me when I say that there are numbers of Commission staff who fly-speck every order the Commission enters, especially for inclusion of the usual boiler-plate language.  Second, the Commission apparently took its sweet time in remedying its initial "clerical" blunder.  Once it became aware of the defect in the initial order, it could have cured that with a one sentence order.