UNITED STATES OF AMERICA
Before the
SECURITIES AND EXCHANGE COMMISSION

INVESTMENT ADVISERS ACT OF 1940
Rel. No. 2202 / December 3, 2003

Administrative Proceedings
File No. 3-9918

The Barr Financial Group, Inc. ("BFG" or the "Firm"), an investment adviser, and Alfred E. Barr, BFG's president, seek reconsideration of our opinion and order issued October 2, 2003.¹ In that order, we found that respondents willfully violated Section 207 of the Investment Advisers Act of 1940² by making untrue statements of material fact in documents filed by BFG with the Commission during 1997 and 1998. We further found that, in 1999, respondents were permanently enjoined from violating Advisers Act Section 204 and "regulations thereunder governing the conduct of investment advisers under Rule 204-2 of the Advisers Act."³ Based on those findings, we ordered that: respondents cease and desist from committing or causing any violations or future violations of Advisers Act Sections 204 and 207; Barr be barred from associating with any investment adviser; and BFG's registration as an investment adviser be revoked.

Respondents challenge the sanctions as excessive. Among other things, respondents argue that, because they were subject to injunctive proceedings in the United States District Court for the Middle District of Florida, the Commission cannot impose additional sanctions in this administrative proceeding. According to respondents, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars the sanctions at issue because they are "so punitive in nature."

We consider respondents' reconsideration motion under Commission Rule of Practice 470.⁴ That rule provides for reconsideration in "exceptional" cases,⁵ where it is necessary to correct manifest errors of law or fact or permit the presentation of newly discovered evidence.⁶ Respondents' motion affords no basis for reconsideration of our October 2 opinion.⁷

Endnotes

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¹ The Barr Financial Group, Inc., Inv. Advisers Act Rel. No. 2179 (Oct. 2, 2003), __ SEC Docket ____.

² 15 U.S.C. § 80b-7. Section 207 prohibits investment advisers from willfully making "any untrue statement of a material fact" in certain applications or reports filed with the Commission.

³ 15 U.S.C. § 80b-4 and 17 C.F.R. § 275.204-2. Section 204 requires investment advisers to file reports with the Commission, maintain books and records, and make those books and records available to Commission personnel for examination. Rule 204-2 establishes recordkeeping requirements for investment advisers.

⁴ 17 C.F.R. § 201.470.

⁵ The Comment to Rule 470 states that "[a] motion for reconsideration is intended to be an exceptional remedy." Rules of Practice, 60 Fed. Reg. 32,738, 32,780 (Jun. 23, 1995).

⁶ KPMG Peat Marwick LLP, Exchange Act Rel. No. 44050 (Mar. 8, 2001), 74 SEC Docket 1351, 1352-53 n.7 (specifying that efficiency and fairness concerns embodied in federal court practice of rejecting motions for reconsideration unless correction of manifest errors of law or fact or presentation of newly discovered evidence is sought "likewise inform our review of motions for reconsideration under Rule 470").

⁷ Compare Robert Sayegh, Exchange Act Rel. No. 41762 (Aug. 19, 1999), 70 SEC Docket 1126 (reconsideration granted to take account of intervening change in applicable law).

http://www.sec.gov/litigation/opinions/ia-2202.htm