James L. Bari, Jr.
SECURITIES EXCHANGE ACT OF 1934
Rel. No. 48292 / August 6, 2003
Admin. Proc. File No. 3-11048
In the Matter of the Application of JAMES L. BARI, JR. For Review of Disciplinary Action Taken by NASD |
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ORDER REMANDING PROCEEDINGS TO REGISTERED SECURITIES ASSOCIATION
On the basis of the Commission's opinion issued this day, it is
ORDERED that the proceedings on the application of James L. Bari, Jr. be, and they hereby are, remanded to NASD for further proceedings consistent with that opinion.
By the Commission.
Jonathan G. Katz
Secretary
| 1 | NASD Procedural Rule 8210(a) requires registered persons to respond to NASD requests for information |
| 2 | Article V, Section 4(a) of NASD By-Laws provides that a person whose association with a member has been terminated and who is no longer associated with any NASD member continues to be subject to the filing of a complaint based upon a failure to provide information requested by NASD for two years after the effective date of the termination. |
| 3 | NASD Procedural Rule 9541(b) authorizes NASD to issue to any person associated with a member who fails to provide information requested by NASD a written notice specifying the nature of the failure and stating that the failure to take corrective action within 20 days after service of such written notice constitutes grounds for suspending the person's association with the NASD member. |
| 4 | NASD Procedural Rule 9544 provides that persons associated with a member who are suspended pursuant to NASD Rule 9541(b) and who fail to request a hearing to challenge the suspension within six months of receipt of a pre-suspension notice will be automatically barred or expelled. |
| 5 | NASD sent the Pre-Suspension, Suspension, and Bar Notices by Federal Express, certified mail, and first class mail. The Pre-Suspension Notice sent by Federal Express was signed for by a person other than Bari. The Suspension Notice sent by Federal Express was returned to NASD. The Notice of Bar sent by Federal Express was returned to NASD marked "recipient moved and left no forwarding address or phone number." |
| 6 | As NASD notes, we have previously sustained Rule 8210 violations over objections that the notices were sent to the wrong address where NASD sent the requests for information to the CRD address and any known, more current address. See Warren B. Minton, Jr., Exchange Act Rel. No. 46709, 2002 SEC Lexis 2712 (Oct. 23, 2002); Ashton Noshir Gowadia, 53 S.E.C. 786 (1998); Nazmi C. Hassanieh, 52 S.E.C. 87 (1994). However, NASD maintains the burden of establishing that therequests were sent to such locations. |
| 7 | See Stephen R. Flaks, 46 S.E.C. 891, 895 n.8 (1977); John P. Goldsworthy, 53 S.E.C. 576, 580 (1998). |
| 8 | We have considered all of the parties' arguments. We reject or sustain them to the extent that they are inconsistent or in accord with the views expressed in this opinion. |