[Federal Register Volume 74, Number 224 (Monday, November 23, 2009)]
[Notices]
[Pages 61193-61197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27997]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61002; File No. SR-FINRA-2009-050]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Order Approving a Proposed Rule Change Relating to 
Availability of Information Pursuant to FINRA Rule 8312 (FINRA 
BrokerCheck Disclosure)

November 13, 2009.

I. Introduction

    On July 24, 2009, the Financial Industry Regulatory Authority, Inc.

[[Page 61194]]

(``FINRA'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to make available in BrokerCheck information about 
former associated persons of a FINRA member who were the subject of a 
final regulatory action as defined in Form U4 that has been reported to 
the Central Registration Depository (``CRD[supreg]'' or ``CRD 
System''). The proposal was published for comment in the Federal 
Register on August 7, 2009.\3\ The Commission received fifty-two 
comments on the proposal.\4\ FINRA responded to the comments on October 
15, 2009.\5\ This order approves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 60462 (August 7, 
2009), 74 FR 41470 (August 17, 2009 ``Notice'').
    \4\ See Exhibit A for a list of comment letters.
    \5\ See letter to Elizabeth M. Murphy, Secretary, Commission, 
from Richard E. Pullano, Associate Vice President and Chief Counsel, 
FINRA, dated October 15, 2009 (``Response Letter'').
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II. Description of the Proposal

    Pursuant to FINRA Rule 8312, BrokerCheck allows the public to 
obtain information regarding current and former members, as well as 
associated persons and persons who were associated with a member within 
the preceding two years. Formerly registered persons, although no 
longer in the securities industry in a registered capacity, may, 
however, work in other investment-related industries or attain 
positions of trust. FINRA thus proposed to expand the information 
available via BrokerCheck to certain information with respect to 
persons who were associated with a member but who have not been 
associated with a member in the preceding two years (``formerly 
associated persons''), if those persons were the subject of any final 
regulatory action, as defined in Form U4, that has been reported to CRD 
via a uniform registration form.\6\
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    \6\ See proposed FINRA Rule 8312(c).
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    ``Final regulatory action'' includes any final action of the 
Commission, Commodity Futures Trading Commission, a Federal banking 
agency, the National Credit Union Administration, another Federal 
regulatory agency, a State regulatory agency, a foreign financial 
regulatory authority, or a self-regulatory organization, including 
actions that have been appealed.\7\ FINRA staff will review the 
information on Forms U4 and U5 (including predecessor questions), as 
well as information filed on Form U6, to determine whether a formerly 
associated person is subject to a final regulatory action and should be 
included in BrokerCheck pursuant to the proposed rule.\8\
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    \7\ See Form U4 questions 14C, 14D, and 14E, as well as Question 
7D of Form U5. See also Section 3(a)(39) of the Act.
    \8\ Under the proposed rule change, FINRA may disclose a final 
action that is reported by a regulator on a Form U6 even if that 
action has not been reported by an individual on a Form U4 because, 
for example, the individual was not registered at the time the final 
regulatory action was reported.
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    For such formerly associated persons,\9\ FINRA will disclose: (i) 
Information concerning any final regulatory action; (ii) administrative 
information, such as employment and registration history as reported on 
a registration form; (iii) the most recently submitted comment, if any, 
provided by the person, if the comment is relevant and in accordance 
with the procedures established by FINRA; and (iv) dates and names of 
qualification examinations passed by the formerly associated person, if 
available.\10\
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    \9\ Certain information about some formerly associated persons 
who have not been associated with a member since January 1, 1999, 
may not be available through BrokerCheck. As discussed more fully in 
the Notice, two conditions apply to a small percentage of 
individuals who were no longer registered at the time Web CRD was 
established in 1999. First, not all of these individuals' records 
are available in the Web CRD format; instead, their records exist in 
the Legacy CRD format. Second, for a very small percentage of 
individuals, certain administrative information is unavailable in 
either the Web or Legacy CRD format.
    \10\ See proposed FINRA Rule 8312(c).
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    The proposed rule change would not expand access to other 
information that is included in the CRD System, such as customer 
complaints, bankruptcies, liens, criminal events or arbitration claims. 
In addition, a final regulatory action would not include any action 
limited to the revocation or suspension of an individual's 
authorization to act as an attorney, accountant or Federal contractor 
(Form U4, Question 14F).
    If FINRA receives a request regarding a formerly associated person 
for which it has data in a different format, FINRA's staff will 
manually prepare the BrokerCheck report, convert the report to an 
electronic format, and make the report available through BrokerCheck. 
Once the information has been converted to the Web CRD format it will 
be available in Web CRD from that point forward.\11\
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    \11\ FINRA stated that if it identifies or becomes aware of 
potentially inappropriate information, including customer names, 
confidential account information or possibly offensive or 
potentially defamatory language in a BrokerCheck report, FINRA would 
balance the value of the language in controversy for regulatory and 
investor protection purposes against the objector's asserted privacy 
rights and/or potential defamation claims. Based on this balancing, 
FINRA may determine to redact language from BrokerCheck reports on a 
case-by-case basis. See the Notice, citing, e.g., Securities 
Exchange Act Release No. 42402 (February 7, 2000), 65 FR 7582 
(February 15, 2000) (Order Approving SR-NASD-99-45).
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III. Summary of Comments and FINRA's Response

    The Commission received fifty-two comment letters on the proposed 
rule change.\12\ Most comments focus on two issues. First, commenters 
address the provision of FINRA Rule 8312 that provides for the release 
of certain information regarding an individual who is a current or 
former member or current associated person of a member of FINRA, or a 
person who has been an associated person of a member of FINRA within 
the past two preceding years. FINRA is not making a substantive change 
to this provision.\13\ Second, commenters take issue with the limited 
nature of the information to be disclosed regarding formerly associated 
persons.
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    \12\ See supra, note 4.
    \13\ Current FINRA Rule 8312(a); proposed to be re-numbered to 
FINRA Rule 8312(b).
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A. General Two-Year BrokerCheck Disclosure Period

    Most information available through BrokerCheck is only available 
with respect to current or former members, or associated persons of 
members, or persons who were associated persons of FINRA members within 
the preceding two years.\14\ Forty commenters argue that, for investor 
protection purposes, this two-year time frame should be increased so 
that information remains available to the public via BrokerCheck for a 
longer period of time--anywhere from five years to forever.\15\ Twelve 
commenters \16\ advised a six-year disclosure period, which corresponds 
to the time limit in FINRA's rule for the submission of arbitration 
claims involving public customers (``eligibility

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rule'').\17\ FINRA believes that these comments are outside the scope 
of the rule proposal, since it is not proposing to change the two-year 
disclosure period currently set forth in Rule 8312; rather, the 
proposed rule change expands BrokerCheck only with respect to formerly 
associated persons who are subject to a final regulatory action.\18\
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    \14\ Id. FINRA stated that some commenters incorrectly mentioned 
that information regarding an individual is ``purged'' from 
BrokerCheck once that individual ceases to be registered with FINRA 
for a period of two years. See, e.g., comment letters from Lipner, 
Van Kampen, Sigler, Speyer, and Claxton. FINRA stated that the 
information is retained in the CRD system even though it is not 
displayed through BrokerCheck and would be available for display 
through BrokerCheck should the individual reregister with FINRA or 
otherwise become covered by BrokerCheck. See Response Letter at 2.
    \15\ See comment letters from Lipner, Van Kampen, Sigler, 
Pounds, Steiner, Neuman, Bleecher, Estell, Layne, PIABA, Schultz 1, 
Shewan, Port, Graham, Speyer, AARP, Griffin, Sherman, Cornell, 
Evans/Edmiston, St. John's, Rosenfield, Ilgenfritz, Buchwalter, 
Miller, Rosca, Guiliano, Greco, Sonn, Haigney, Sutherland, Davis, 
Mougey, Claxton, DeVita, Ledbetter, Gladden, McCauley, Malarney, and 
Willcutts.
    \16\ See comment letters from Pounds, Steiner, Estell, PIABA, 
Schultz 1, Graham, Rosenfield, Ilgenfritz, Miller, Greco, Sonn, and 
Haigney.
    \17\ See FINRA Rule 12206.
    \18\ See Response Letter at 3. FINRA clarifies that four 
commenters (Lipner, Neuman, AARP, and Malarney) erroneously state 
that the proposal will limit the time frame during which information 
on former registered persons will be available through BrokerCheck.
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    Nevertheless, FINRA notes that the two-year disclosure period 
coincides with the period in which an individual can return to the 
industry without being required to requalify by examination and the 
initial period in which an individual remains subject to FINRA's 
jurisdiction.\19\ FINRA states that when the two-year time frame was 
proposed, FINRA believed that the two-year time frame struck the 
appropriate balance between an investor's interest in being easily able 
to obtain information about a former registered person and a person's 
desire for privacy once he has left the securities industry,\20\ and it 
continues to believe that is the proper balance today.\21\
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    \19\ See Response Letter at 3, citing Securities Exchange Act 
Release No. 42240 (December 16, 1999), 64 FR 72125 (December 23, 
1999) (Notice of Filing SR-NASD-99-45).
    \20\ Id. FINRA also notes that the Commission received no 
comments when FINRA proposed establishing the two-year disclosure 
period for BrokerCheck.
    \21\ See Response Letter at 3.
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    Finally, FINRA disagrees with the commenters who represent 
investors in securities litigation or other matters who suggest a six-
year disclosure period, which FINRA believes is in order to make it 
easier to conduct research on former registered persons.\22\ FINRA 
states that the BrokerCheck system was established principally to help 
members of the public determine whether to conduct or continue to 
conduct business with a FINRA member or any of the member's associated 
persons and not for the purpose suggested by these commenters.\23\ 
FINRA believes that the commenters' attempt to link the time limitation 
on the submission of claims provided for under the eligibility rule and 
the time frame for BrokerCheck disclosure is misplaced, since the time 
limitation under the eligibility rule is determined by the date of the 
occurrence or event giving rise to the claim and has no relationship 
whatsoever to the termination of an individual's registration with 
FINRA.\24\ Therefore, in FINRA's opinion, the commenters' suggested 
change is outside the scope of the rule proposal and also would not 
necessarily address the commenters' concerns.\25\
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    \22\ See Response Letter at 4, citing e.g., comment letters from 
PIABA, Rosca, Greco, Sonn, and Haigney.
    \23\ See Response Letter at 4.
    \24\ Id.
    \25\ Id.
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B. Expanding Access to Disclosure Information, Other Than Final 
Regulatory Actions, Pertaining to Individuals Not Registered With FINRA 
for More Than Two Years

    Eighteen commenters express concern that FINRA's proposal may be 
too limiting in that it only expands BrokerCheck with respect to those 
formerly associated persons who are the subject of a final regulatory 
action, and for those persons, only with respect to certain 
information.\26\ Many of these commenters suggest that BrokerCheck 
should include additional information, such as arbitration claims, 
criminal proceedings, and bankruptcies and liens, contending that these 
other categories are just as valuable to investors as final regulatory 
actions.\27\ FINRA believes that these comments are outside the scope 
of the rule proposal because they pertain to categories of disclosure 
that are not the subject of the current rule proposal.\28\
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    \26\ See comment letters from Caruso, Bleecher, PIABA, Schultz 
1, Feldman, Sherman, Lewins, Cornell, Bakhtiari, Evans/Edmiston, St. 
John's, Rosenfield, NASAA, Guiliano, Sonn, Meyer, Haigney, and 
Amato. Two commenters stated that FINRA's proposed rule change would 
apply only to those formerly associated persons who are the subject 
of a final regulatory action and who work in other investment-
related industries or positions of trust. See comment letters from 
Schultz 1 and Sonn. FINRA clarified that the proposal will, in fact, 
apply to all former registered persons who are the subject of a 
final regulatory action regardless of their current occupation, if 
any. See Response Letter at 4.
    \27\ See, e.g., comment letters from PIABA, Schultz 1, Cornell, 
Evans/Edmiston, St. John's, and Rosenfield.
    \28\ See Response Letter at 4.
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    Notwithstanding that, FINRA states these other categories of 
information are more relevant when the individual is registered or was 
recently registered (i.e., within two years) and reiterates that it 
believes the proposal strikes a balance between personal privacy and 
investor protection concerns.\29\ FINRA justifies one distinction by 
noting that while final regulatory actions are subject to procedures 
that allow an opportunity for the person to present arguments to a 
fact-finder about the allegations before the final disposition of the 
matter,\30\ arbitration claims may not be subject to procedures that 
allow an opportunity for the person to present arguments to a fact-
finder about the allegations before final disposition. Further, FINRA 
notes, a firm may choose to settle an arbitration claim regardless of 
whether the person wishes to contest the claim (e.g., for business 
reasons). With respect to criminal charges and convictions, FINRA 
states that these claims that are reported subsequently may have a 
different disposition, which may significantly change the meaning of 
the matter as originally reported (for example, such charges or 
convictions may have been dismissed or expunged). Finally, FINRA does 
not think that reportable financial matters have the same degree of 
materiality as final regulatory actions such that they warrant 
disclosure on a permanent basis.
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    \29\ See Response Letter at 5.
    \30\ The formerly associated person has the opportunity to 
submit a comment for publication in BrokerCheck in response to 
information provided through BrokerCheck if the comment is in the 
form and in accordance with the procedures established by FINRA and 
relates to the information provided through BrokerCheck.
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IV. Discussion and Commission Findings

    After carefully reviewing the proposed rule change, the comment 
letters, and the Response Letter, the Commission finds that the 
proposal is consistent with the requirements of the Act and the rules 
and regulations thereunder applicable to a national securities 
association.\31\ In particular, the Commission finds that the proposal 
is consistent with Section 15A(b)(6) of the Act,\32\ which requires, 
among other things, that FINRA's rules be designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest.
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    \31\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \32\ 15 U.S.C. 78o-3(b)(6).
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    Specifically, the Commission believes that making information 
available through BrokerCheck about formerly associated persons who 
were the subject of a final regulatory action will help members of the 
public to protect themselves from unscrupulous people and thus the 
proposed rule change should help prevent fraudulent and manipulative 
acts and practices, and protect investors and the public interest. One 
commenter suggests the disclosure of this additional information may 
serve

[[Page 61196]]

as a deterrent to fraudulent activity.\33\ The Commission believes that 
the information FINRA proposes to disclose is relevant to investors and 
members of the public who wish to educate themselves with respect to 
the professional history of a formerly associated person. It is 
possible that a formerly associated person could become a financial 
planner or work in another related field where his securities record 
would help members of the public decide if they should accept his 
financial advice or rely on his advice or expertise. One commenter 
suggested a formerly associated person could serve as a non-public 
arbitrator.\34\ Clearly, in any of these circumstances, the formerly 
associated person's BrokerCheck information would be relevant in 
determining whether to do business with him, or, in the case of a 
claimant, in deciding whether to challenge a potential arbitrator.
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    \33\ See Cornell letter.
    \34\ See Estell letter.
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    The Commission agrees that the concerns raised by commenters who 
believe that the time frame for general disclosure should be increased 
are outside the scope of this proposal. However, the categories of 
information that should be disclosed for formerly associated persons is 
within the scope of the instant proposal and the commenters make a 
number of legitimate arguments with respect to the usefulness of the 
additional information they seek to have disclosed. The Commission 
understands that certain commenters, as well as other members of the 
public, may utilize information in BrokerCheck in considering whether 
to bring action against a formerly associated person for potentially 
actionable deeds \35\ and believes that this is a legitimate use for 
BrokerCheck. The Commission recognizes that the public's ability to 
access information, whether to inquire about a registered person or to 
obtain information in connection with an alleged wrongdoing of a 
formerly associated person may serve to protect investors, the 
integrity of the marketplace, and the public interest. The Commission 
urges the public to utilize all sources of information, particularly 
the databases of the State regulators, as well as legal search engines 
and records searches, in conducting a thorough search of any associated 
person's activities.
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    \35\ See supra, note 22.
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    The Commission notes that FINRA stated it would continue to 
evaluate all aspects of the BrokerCheck program to determine whether 
future circumstances should lead to greater disclosure through 
BrokerCheck.\36\ FINRA has a statutory obligation to make information 
available to the public and,\37\ as stated in the past, the Commission 
believes that FINRA should continuously strive to improve BrokerCheck 
because it is a valuable tool for the public in deciding whether to 
work with an industry member.\38\ The changes proposed in this filing 
will enhance BrokerCheck by including more information that should 
prove useful to the general public.
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    \36\ See Response Letter at 5.
    \37\ See Section 15A(i) of the Act.
    \38\ See, e.g., Securities Exchange Act Release No. 59916 (May 
13, 2009), 74 FR 23750 (May 20, 2009).
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    For the reasons discussed above, the Commission finds that the rule 
change is consistent with the Act.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\39\ that the proposed rule change (SR-FINRA-2009-050), be, and 
hereby is, approved.
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    \39\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\40\
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    \40\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.

Exhibit A--List of Comment Letters Received for FINRA-2009-050

    1. Daniel W. Roberts, President/CEO, Roberts & Ryan Investments 
Inc., dated August 21, 2009 (``Roberts'').
    2. Seth E. Lipner, Professor of Law, Zicklin School of Business, 
Baruch College, CUNY, dated August 27, 2009 (``Lipner'').
    3. Al Van Kampen, Attorney at Law, dated August 31, 2009 (``Van 
Kampen'').
    4. James A. Sigler, Esq., dated August 31, 2009 (``Sigler'').
    5. Herb Pounds, dated August 31, 2009 (``Pounds'').
    6. Leonard Steiner, Lawyer, dated August 31, 2009 (``Steiner'').
    7. David P. Neuman, Stoltmann Law Offices, PC, dated August 31, 
2009 (``Neuman'').
    8. Steven B. Caruso, Esq., Maddox Hargett & Caruso, P.C., dated 
September 1, 2009 (``Caruso'').
    9. Rob Bleecher, Attorney, dated September 1, 2009 (``Bleecher'').
    10. Barry D. Estell, Esq., dated September 1, 2009 (``Estell'').
    11. Richard M. Layne, Esq., Law Office of Richard M. Layne, dated 
September 1, 2009 (``Layne'').
    12. Brian N. Smiley, President, Public Investors Arbitration Bar 
Association, dated September 4, 2009 (``PIABA'').
    13. Laurence S. Schultz, Driggers, Schultz & Herbst, P.C., dated 
September 4, 2009 (``Schultz 1'').
    14. Scott R. Shewan, Pape Shewan LLP, dated September 4, 2009 
(``Shewan'').
    15. Robert C. Port, Esq., dated September 4, 2009 (``Port'').
    16. Jan Graham, Graham Law Offices, dated September 4, 2009 
(``Graham'').
    17. Jeffrey A. Feldman, dated September 7, 2009 (``Feldman'').
    18. Debra G. Speyer, Esq., Law Offices of Debra G. Speyer, dated 
September 7, 2009 (``Speyer'').
    19. Tim Canning, Law Offices of Timothy A. Canning, dated September 
8, 2009 (``Canning'').
    20. David Certner, Legislative Counsel and Legislative Policy 
Director, AARP, dated September 8, 2009 (``AARP'').
    21. Keith L. Griffin, Griffin Law Firm, LLC, dated September 8, 
2009 (``Griffin'').
    22. Steven M. Sherman, Sherman Business Law, received September 8, 
2009 (``Sherman'').
    23. Richard A. Lewins, Esq., dated September 8, 2009 (``Lewins'').
    24. William A. Jacobson, Esq., Associate Clinical Professor of Law, 
Director, Cornell Securities Law Clinic, dated September 8, 2009 
(``Cornell'').
    25. Ryan K. Bakhtiari, Aidikoff, Uhl and Bakhtiari, dated September 
8, 2009 (``Bakhtiari'').
    26. Jonathan W. Evans and Michael S. Edmiston, dated September 8, 
2009 (``Evans/Edmiston'').
    27. Christine Lazaro, Supervising Attorney, Lisa A. Catalano, 
Director, Peter J. Harrington, Legal Intern, Securities Arbitration 
Clinic, St. John's University School of Law, dated September 8, 2009 
(``St. John's'').
    28. William S. Shepherd, Managing Partner, Shepherd Smith Edwards 
Kantas, LLP, dated September 8, 2009 (``Shepherd'').
    29. Howard Rosenfield, Law Offices of Howard Rosenfield, received 
September 8, 2009 (``Rosenfield'').
    30. Rex Staples, General Counsel, North American Securities 
Administrators Association, dated September 8, 2009 (``NASAA'').
    31. Scott C. Ilgenfritz, Johnson, Pope, Bokor, Ruppel & Burns, LLP, 
dated September 8, 2009 (``Ilgenfritz'').
    32. Steve A. Buchwalter, Esq., dated September 8, 2009 
(``Buchwalter'').
    33. John Miller, Attorney, Swanson Midgley, LLC, dated September 9, 
2009 (``Miller'').
    34. Alin L. Rosca, Attorney at Law, John S. Chapman & Associates, 
LLC, received September 9, 2009 (``Rosca'').
    35. Nicholas J. Guiliano, The Guiliano Law Firm, received September 
9, 2009 (``Guiliano'').
    36. W. Scott Greco, Greco Greco, P.C., dated September 9, 2009 
(``Greco'').

[[Page 61197]]

    37. Jeffrey Sonn, Esq., Sonn & Erez, PLC, dated September 9, 2009 
(``Sonn'').
    38. Stephen P. Meyer, Esq., Meyer, Ford & Glasser, dated September 
10, 2009 (``Meyer'').
    39. Dayton P. Haigney, III, Attorney at Law, dated September 10, 
2009 (``Haigney'').
    40. John E. Sutherland, Brickley, Sears & Sorett, P.A., dated 
September 11, 2009 (``Sutherland'').
    41. Theodore M. Davis, Esq., dated September 11, 2009 (``Davis'').
    42. Peter J. Mougey, Esq., dated September 14, 2009 (``Mougey'').
    43. Roger F. Claxton, Law Office of Roger F. Claxton, dated 
September 15, 2009 (``Claxton'').
    44. Richard D. DeVita, Esq., dated September 15, 2009 (``DeVita'').
    45. Dale Ledbetter, Ledbetter & Associates, P.A., dated September 
16, 2009 (``Ledbetter'').
    46. William J. Gladden, JD, CFP, dated September 16, 2009 
(``Gladden'').
    47. Steven M. McCauley, Esq., dated September 16, 2009 
(``McCauley'').
    48. Michael W. Malarney, Esq., The Pearl Law Firm, P.A., dated 
September 17, 2009 (``Malarney'').
    49. Ronald M. Amato, Esq., Shaheen, Novoselsky, Staat, Filipowski 
Eccleston, PC, dated September 18, 2009 (``Amato'').
    50. Thomas P. Willcutts, Willcutts Law Group, LLC, dated September 
21, 2009 (``Willcutts'').
    51. Scot D. Bernstein, Law Offices of Scot D. Bernstein, dated 
September 24, 2009 (``Bernstein'').
    52. Laurence S. Schultz, Driggers, Schultz & Herbst, P.C., dated 
September 30, 2009 (``Schultz 2'').
[FR Doc. E9-27997 Filed 11-20-09; 8:45 am]
BILLING CODE 8011-01-P