SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
SECURITIES EXCHANGE ACT OF 1934
Rel. No. 40629 / November 3, 1998
Admin. Proc. File No. 3-9378
:
In the Matter of the Application of :
:
WARREN R. SCHREIBER :
430 Chestnut Drive :
East Hills, New York 11576 :
:
For Review of Disciplinary Action Taken by :
:
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. :
OPINION OF THE COMMISSION
REGISTERED SECURITIES ASSOCIATION -- REVIEW OF DISCIPLINARY PROCEEDINGS
Remand for Clarification of Basis for Credibility Findings
No deference could be given to the initial fact-finder's very general
credibility findings where the fact-finder's decision does not reflect
whether the fact-finder, in making these findings, considered a substantial
amount of record evidence that appears to contradict them. Held, sanctions
vacated and proceeding remanded for clarification of the basis for fact-
finder's credibility findings.
APPEARANCES:
Anthony W. Djinis and Paul J. Bazil, of Pickard & Djinis, for
Warren R. Schreiber.
Alden S. Adkins and Norman Sue, Jr., for NASD Regulation, Inc.
Appeal filed:August 27, 1997
Last brief filed: January 6, 1998
SNIPPETS:
SECURITIES AND EXCHANGE COMMISSION
REGISTERED SECURITIES ASSOCIATION -- REVIEW OF DISCIPLINARY PROCEEDINGS
No deference could be given to the initial fact-finder's very general credibility findings
sanctions vacated and proceeding remanded for clarification of the basis for factfinder's
Anthony W. Djinis and Paul J. Bazil, of Pickard & Djinis, for Warren R. Schreiber.
Alden S. Adkins and Norman Sue, Jr., for NASD Regulation, Inc.
Warren R. Schreiber, formerly a registered securities principal and a general securities
The NASD found that, in the last quarter of 1989, Schreiber violated Article III, Sections 1,
Specifically, the NASD determined that Schreiber knowingly participated in the unregistered
nsactions with or on behalf of customers without disclosing that Castleton and Merlin were under
The NASD censured Schreiber, fined him $100,000, barred him from associating with any NASD
To the extent we make findings in this matter, we base them on an independent review of the
Schreiber further asserts that the Market Surveillance Committee, the initial fact-finder
While we, in conducting our de novo review of a record on appeal, accord considerable weight
For the reasons discussed below, we cannot defer to the MSC's credibility "findings"
We accordingly remand for clarification of the basis for these findings.
Schedule E of the NASD's By-Laws provides that no member may participate in a public
While a generalized finding of credibility may well be sufficient in some instances, in this
The MSC does not address in its decision Lipow's admitted drug use during the time of the
We cannot discern from the decision whether this "finding" took into account the sizable
The NBCC decision, as well, omits reference to these affidavits.
One of the reasons the NBCC cited for its refusal to hear the proffered testimony of Cahill,
From the record it appears, however, that the request was a timely one made in accordance
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