May 3, 2007
All comments should be received on or before April 30, 2007. See, http://www.sec.gov/rules/proposed/2007/34-55520fr.pdf
No comment dated after April 30, 2007 can be considered for the proposed rule changes. But I strongly urge the SEC to follow its statutory mandates and finally start protecting the rights and property of the retail investor. This accounts for more than 99% of the investing public.
In the case MASSACHUSETTS etal. v. ENVIRONMENTAL PROTECTION AGENCY et al. No. 05-1120 decided on April 02. 2007, the opinion of the Supreme Court of the United States is that if a federal agency has authority to regulate provisions of a federal act, then it cannot decide to avoid this statutory obligation. A decision to avoid its statutory obligation exceeds the scope of its discretion under the law.
This Supreme Court opinion confirms that the SEC, as a federal agency, cannot choose to ignore its statutory obligation in regard to the harm caused to investors by delivery failures of registered securities, which in turn are caused by the market maker exemptions and the grandfather clause.
Congress mandated in Rule 17A of the 1934 Securities Exchange Act that our markets have prompt, accurate clearance and delivery. It reads, "The prompt and accurate clearance and settlement of securities transactions, including the transfer of record ownership and the safeguarding of securities and funds related thereto, are necessary for the protection of investors and persons facilitating transactions by and acting on behalf of investors.
The SEC must further respect Section 36 of the 1934 Act, which only allows the SEC to create exemptions to the 1934 Act, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors
If the SEC intentionally ignores the retail investor again then oversight committees and a Bivens Action may be the answer. The individuals at the SEC who fail to take reasonable steps necessary for the protection of investors under their congressional mandate can be held liable. See, Bivens v. Six Unknown NamedAgents of Federal Bureau of Narcotics, 403 U.S. 388,(1971)
To further educate everyone on a Bivens Actions please read and save this linked document, you may want to give a copy to your lawyer:
http://www.usxp.com/secmemoinop.pdf