Order: In the Matter of Paul Azeff et al.

Order
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IN THE MATTER OF THE SECURITIES ACT,
R.S.O. 1990, c. S.5 AS AMENDED

- AND -

IN THE MATTER OF PAUL AZEFF, KORIN BOBROW,
MITCHELL FINKELSTEIN, HOWARD JEFFREY MILLER AND
MAN KIN CHENG (a.k.a. FRANCIS CHENG)

ORDER



    WHEREAS on September 22, 2010, the Ontario Securities Commission (the “Commission”) issued a Notice of Hearing, pursuant to ss. 127 and 127.1 of the Securities Act, R.S.O. 1990, c. S.5 (the “Securities Act”), accompanied by a Statement of Allegations of Staff of the Commission (“Staff”) with respect to the Respondents Howard Jeffrey Miller (“Miller”) and Man Kin Cheng (“Cheng”) for a hearing to commence on October 18, 2010;

    AND WHEREAS the Respondents were served with the Notice of Hearing and Statement of Allegations dated September 22, 2010 on September 22, 2010;

    AND WHEREAS at a hearing on October 18, 2010, counsel for Staff, counsel for the Respondent Cheng, and Miller, appearing on his own behalf, consented to the scheduling of a confidential pre-hearing conference on January 11, 2011 at 3:00 p.m.;

    AND WHEREAS on November 11, 2010, the Commission issued a Notice of Hearing, pursuant to ss. 127 and 127.1 of the Securities Act, accompanied by an Amended Statement of Allegations of Staff which added the Respondents Paul Azeff (“Azeff”), Korin Bobrow (“Bobrow”) and Mitchell Finkelstein (“Finkelstein”), for a hearing to commence on January 11, 2011;

    AND WHEREAS the Respondents were served with the Notice of Hearing and Amended Statement of Allegations dated November 11, 2010 on November 11, 2010;

    AND WHEREAS following a hearing on January 11, 2011, counsel for Staff, counsel for the Respondents Azeff, Bobrow, Finkelstein and Cheng, and Miller, appearing on his own behalf, attended a confidential pre-hearing conference;

    AND WHEREAS at the confidential pre-hearing conference on January 11, 2011, all parties made submissions regarding the disclosure made by Staff and it was ordered by the Commission, on the consent of all parties, that Staff and the Respondents would exchange written proposals concerning outstanding disclosure issues and that a motion date would be set for February 22, 2011 regarding disclosure issues, if necessary;

    AND WHEREAS at the request of the Respondents, and on the consent of Staff, it was agreed that the February 22, 2011 motion date would be adjourned to April 8, 2011;

    AND WHEREAS a disclosure motion was held on April 8, 2011 and, after submissions by the parties, the Panel issued a Confidentiality Order and Adjournment Order dated April 8, 2011, adjourning the Respondents’ disclosure motion and the hearing in this matter to a pre-hearing conference, the date of which was to be agreed to by the parties and provided to the Office of the Secretary;

    AND WHEREAS on April 18, 2011, Staff filed an Amended Amended Statement of Allegations;

    AND WHEREAS the Panel issued an amended Confidentiality Order and Adjournment Order dated April 19, 2011 scheduling, on consent of all parties, a confidential pre-hearing conference on June 2, 2011 at 10:00 a.m.;

    AND WHEREAS all parties consented to an adjournment of the confidential pre-hearing conference from June 2, 2011 at 10:00 a.m. to August 17, 2011 at 10:00 a.m. to allow Staff to provide the Respondents with further disclosure in this matter;

    AND WHEREAS on July 6, 2011, counsel for Finkelstein served Staff with motion materials seeking a stay of the proceeding against him (the “Stay Motion”) and Staff has indicated that: a) it intends to bring a motion that the Stay Motion is premature and should be heard at the hearing on the merits (the “Prematurity Motion”); and b) it intends to bring a motion to seek leave to put before the Panel at the hearing of the Stay Motion certain “without prejudice” communications (the “Privilege Motion”);

    AND WHEREAS counsel for Azeff and Bobrow indicated that they intend to bring a motion to compel records from a third party (the “Third Party Records Motion”);

    AND WHEREAS the Respondents have advised that they may seek to continue the hearing of the previous disclosure motion, which had been held on April 8, 2011 and had been adjourned on April 8, 2011 and June 1, 2011, or may bring other motions relating to disclosure issues (the “Disclosure Motion”);

    AND WHEREAS a pre-hearing conference was held on August 17, 2011 and Staff and the Respondents made submissions regarding the scheduling of the various motions, including the Stay Motion, the Prematurity Motion, the Privilege Motion, the Third Party Records Motion and the Disclosure Motion;

    AND WHEREAS the Commission is of the opinion that it is in the public interest to make this order;

    IT IS ORDERED THAT:

  1. The Privilege Motion shall be heard on September 26, 2011 at 9:00 a.m.;
  2. The Prematurity Motion and the Stay Motion shall be heard together commencing on November 9, 2011 at 10:00 a.m. and continuing on November 10 and 11, 2011, if necessary;
  3. The Third Party Records Motion shall be scheduled to be heard on a date after the Prematurity Motion and the Stay Motion have been heard and decided;
  4. The Disclosure Motion shall be adjourned to a date that will be fixed after the four motions referred to in paragraphs 1, 2 and 3 of this order have been heard and decided; and
  5. Dates for the hearing on the merits of the matter shall be set after the motions referred to in paragraphs 1, 2, 3 and 4 of this order have been heard and decided.

    DATED at Toronto this 30th day of August, 2011.

 

 

" Edward P. Kerwin "
Edward P. Kerwin