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Press Release Source: The Depository Trust & Clearing Corporation

Federal Court Dismisses Lawsuit against DTCC
Friday June 2, 9:41 am ET


NEW YORK--(BUSINESS WIRE)--June 2, 2006--The Depository Trust & Clearing Corporation (DTCC) announced today that by order entered May 31, 2006, the United States District Court for the District of Nevada, Las Vegas, has dismissed Whistler Investment, Inc.'s lawsuit against DTCC and its subsidiaries. The dismissal was "with prejudice," meaning that Whistler may not seek to amend its complaint.

In granting DTCC's motion to dismiss, the court agreed with DTCC that clearing and settlement rules promulgated by DTCC's subsidiaries and approved by the U.S. Securities and Exchange Commission (SEC) cannot be challenged under state law. Because DTCC's Stock Borrow Program (SBP), the target of the lawsuit, is explicitly approved by and subject to the ongoing oversight of the SEC, the legal challenge is barred by the Supremacy Clause of the U.S. Constitution, on grounds of both "field" and "conflicts" preemption.

This order is the fourth time in the last year that a court has ruled that plaintiffs are not permitted to sue DTCC or its subsidiaries for carrying out functions that are regulated and overseen by the SEC. These are among a number of suits that have been brought, largely by bulletin board traded companies, who seek to blame their poor stock performance and failed business models on DTCC and the national market system for clearance and settlement. To date, except for one case where DTCC's dismissal motion is pending, all of the cases either have been dismissed by the courts or withdrawn by the plaintiffs.

"We are very pleased that judges across the country continue to reject these meritless claims," said Larry Thompson, DTCC's General Counsel. "Last year, DTCC settled more than $1.4 quadrillion in securities transactions. We play a pivotal role in the U.S. capital markets by providing the capacity, certainty and reliability required to clear and settle today's enormous trading volumes and maintain the integrity and soundness of the U.S. capital markets. All of our operations and activities are carried out under SEC-approved rules and are subject to strict federal regulatory oversight. This arrangement ensures uniformity and accountability in clearing and settling securities transactions and, in turn, provides the stability that is essential to the efficient functioning of our capital markets."

In ordering the dismissal of the Whistler case, Judge Robert C. Jones explicitly adopted the reasoning of Judge Kenneth L. Ryskamp of the United States District Court for the Southern District of Florida in the case of Capece v. DTCC. In that case, which was dismissed by the court on October 11, 2005, Judge Ryskamp specifically found that, "Allowing Plaintiffs to assert a state law cause of action against Defendants (DTCC and its subsidiaries) would require Defendants to tailor their practices with regard to the SBP (stock borrow program) to satisfy each state's formulation of the standard of care in a negligence action. Such a result would destroy the Congressionally-mandated uniform system governing securities trading."

Thompson concluded, "By dismissing the Whistler case, Judge Jones has reaffirmed the importance and value of having clearly delineated authority in the area of market operations. We completely agree with this result, as does the SEC which has weighed in unequivocally on this issue."

In February 2006, the SEC filed a "friend of the court" brief in support of DTCC in one of the dismissed cases, Nanopierce Technologies Inc. v. DTCC, urging the Supreme Court of Nevada to affirm the lower court decision dismissing the case. The Nanopierce case, which makes identical claims to those in the Whistler action, is pending on appeal before the Supreme Court of Nevada. The SEC brief can be accessed at: http://www.sec.gov/litigation/briefs/nanopiercesecbrief.pdf. Additionally, in a May 12, 2006 follow-up letter to the Supreme Court of Nevada the SEC wrote, "Plaintiffs' claims are preempted because evaluating these claims of alleged defects has been entrusted by Congress to the (SEC), not to state courts."

In its letter to the Nevada court, the SEC stated, "The (SEC) found that the clearance and settlement system complies with the requirements of the Exchange Act when it approved the system more than twenty years ago, and it has continued to be of that view as it has exercised oversight responsibility ever since."

The SEC also stated that it "has adopted Regulation SHO for the purpose of preventing abusive naked short selling, and if it concludes that further steps are required, it will take them."

"The court's decision and the forceful statements made by the SEC underscore what DTCC has been saying since this misguided litigation campaign began," said Thompson. "Short selling and naked short selling are trading strategies and are not connected to the post-trade clearance and settlement of securities transactions. There is nothing in DTCC's operating procedures, activities or conduct that justifies these frivolous suits."

In the Whistler case, DTCC has sought to impose monetary sanctions against the plaintiffs' counsel for having brought frivolous litigation. That application will be pursued vigorously before Judge Jones.

About DTCC

DTCC is the parent company for the nation's principal clearing and settling firm, National Securities Clearing Corporation (NSCC) and the nation's principal securities depository, The Depository Trust Company (DTC). NSCC is registered with the SEC to record, clear, and settle equity, bond, money market, government, mortgage-backed, insurance, and other security transactions. NSCC's services are utilized by the country's major brokerage firms, the U.S. government, the New York Stock Exchange, NASDAQ, the American Stock Exchange, and other markets. DTC is the nation's principal securities depository. DTCC's clearing and settlement subsidiaries are regulated by the SEC, which approves the rules under which they operate.



Source: The Depository Trust & Clearing Corporation
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Pooor Nanopierce.

http://www.nanopierce.com/

Which is only a buck because of a 20-to-1 reverse split... Was $35 a share, split adjusted, in may, 2002...

http://biz.yahoo.com/e/060522/vytc.ob10qsb.html

Tsk. No revenues...

But they've got plenty of shares to sell to eager bagholders out there, if only they could convince them that the stock's not a nickel becaue the company can't even claim to have a nickel's worth of revenue, but because of naked shorting!

http://www.investigatethesec.com/FW4.html
A hunk of garbage from the "newswire" of head pumper of smallcap garbage, Mr. rent-an-analyst, Gayle Essary...

Dang naked shorts, ruining all the good ones.

Sj
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Seth,

You going to stick aroung to defend your sarcastic post or is your position so weak that it can not stand public debate?

Please let me know.

CB
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Run that through a spell check.
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Chris-

Reasoning with you is similar to P.J. O'Rourke's observation about Germans.

"You can always reason with a German. You can always reason with a barnyard animal, too, for all the good it does.
-- (Holidays in hell, 1989)"

http://www.amusingquotes.com/h/o/P._J._ORourke_1.htm

Can't blame Seth for having better uses of his time.

t
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Thanks for the name calling. UR.
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No. of Recommendations: 3
Can't blame Seth for having better uses of his time.

If he has enough time to make a sarcastic attack (as he has done time and time again repetitively) he should make time to defend it. Especially as a journalist for TMF, but maybe that is just how he operates..without accountability.

I would like to think differently.
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Has Seth not made it clear what he thinks about all this?

Will it be the 29th time that he says something that you will finally get what he's talking about?

Fill in the blanks, man.

et
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No. of Recommendations: 3
Seth only posts his biased view and I GET what his perception is about..but I disagree and ask him to explain his reasoning with his evidence of a non issue. He does not answer but just regurgitates his opinion over, refused to answer questions outright:
And no, i won't be answering loaded questions that are simply a smokescreen to fool the gullible.

Calls a name, calls another name. Refuses some more.

Look I hoping it is not as bad as it seems.

I would like to give the guy a fair chance to respond.
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Like I said I think his position is weak and he knows it.
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Thanks for the name calling. UR.

LOL! Whatever you got was well-deserved, methinks, cuz:

First, that was ET talking to you, not me.

Second, I'm not sure I saw any name-call in his post. An insult, yes, but no name-call.

And third, I now see that you ended the first part of your answer with a period, making it look like you were . . . signing my initials? Don't do that.

UsuallyReasonable
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Sorry UR about the confusion I wouldn't want to ruin your online anonymous identity.
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Who recs this crapola? Seriously.

UsuallyReasonable
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Who recs this crapola? Seriously.

UsuallyReasonable


LOL

Took the words right outta my mouth.

et
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Suspect #1 - Hannibal100
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Does anyone know if Chris' mom has a TMF subscription?

On second thought, if his mom were here, she would have grabbed him by the ear and pulled him home by now.
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I always thought Hannibal and vexas were the same person. Ever notice the similar thought processes and writing style?
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No way!

There is absolutely nothing similar about Hannibal & Vexas.

Though I have sometimes thought that Squints & Seth
have a lot in common.

Citiblonde1
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CB,

Hannibal and Vexas are almost indistinguishable. (Although, I've always thought Chris is a little better looking.)
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Does anyone know if Chris' mom has a TMF subscription?

On second thought, if his mom were here, she would have grabbed him by the ear and pulled him home by now.


I guess your of such high stature with your ability to bring another users mom into the discussion. I won't talk about your family I guess I am just from another generation. You got me. You win. Your right.

I won't go there.
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Hannibal and Vexas are almost indistinguishable. (Although, I've always thought Chris is a little better looking.)

WTF?
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WTF?

Chris,

Just wanted to point out that this question can be asked of nearly every one of your posts.

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Chris:

Ask Mom for a copy of "The Elements of Style" for your next birthday present.

This then/than, your/you're torture has got to stop.

Especially if you actually want people to answer your little queries.

t
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ET how old are you? Seriously.

20-30 30-40 40-50 50-60?

I am curious.
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ET how old are you? Seriously.

20-30 30-40 40-50 50-60?


It's a new one!

UsuallyReasonable
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I sometimes wonder about the difference between people who will confront others in a direct manner and those who will not. I am frequently told that the former group is vicious or insensitive but I think it is just the opposite. It takes a great deal of bravery and self discipline or sometimes kindness to be direct with other people. I am not talking about the kind of confrontation that is just to get one's jollies, like telling someone off, but rather the type of confrontation that makes one unpopular, but is necessary to produce positive, constructive change in the long run. Those who wish to take the moral high ground and lie to themselves about their "superiority" and compassion by avoiding confrontation and having others do their dirty work know deep down what they are. Or they sublimate their feelings by posting anonymously on other people's blogs to say impolite things to people that they would be terrified to confront in the real world. -Dr. Helen

Food for thought.

-Chris
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Eurotrashis a well-known 34-year old techno fan from Stuttgart. When he's not here antagonizing the consipracy theorists with his stubborn adherance to common sense, you can find him moshing to Clockwerk and pouring back the smart beverages.

Rumor has it he's responsible for the return of the mullet, though the Flock of Seagulls model, not the Kentucky Waterfall.

Sj
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Eurotrashis(sp) a well-known 34-year old techno fan from Stuttgart. When he's not here antagonizing the consipracy(sp) theorists with his stubborn adherance(sp) to common sense, you can find him moshing to Clockwerk(sp) and pouring back the smart beverages.

Rumor has it he's responsible for the return of the mullet, though the Flock of Seagulls model, not the Kentucky Waterfall.


Seth I am glad you cleared that up. I was beginning to worry about you not having any meaningful content.

BTW I am not knocking your spelling. I am sure I am much worse than you. I am just hoping for two things. #1) TMF adds a spell check. #2) ET understands sometimes grammar / spelling takes a backseat to a thought on a message board.
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ET understands sometimes grammar / spelling takes a backseat to a thought on a message board.

I understand Chris. But what's your excuse?
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I am not talking about the kind of confrontation that is just to get one's jollies, like telling someone off, but rather the type of confrontation that makes one unpopular, but is necessary to produce positive, constructive change in the long run.

Just so, Chris, and by telling you how ridiculous we think you are for insisting people answer personal questions here that have no bearing on anything and are none of your business, we are trying to make just that sort of constructive change in you.

UsuallyReasonable
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Check out the Euro Mullet.

I had you pegged for a "Barry Melrose".
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I peeked around the net for mullet pix and I have to admit, good old Barry's came to mind. His or the Hanson Brothers doos are more my speed than Flock of Seagulls or Aha.

Then again, I never did the mullet thang, even back in the day. Had hair down to the mid-shoulder from '76-'81 or so, but it was more of a typical mid-70's bad haircut (long all around) than a conceived coif.

Foil, coach.

et
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Can you characterize the Hanson Bros. do's as mullets? More like just greasy long hair. But B. Melrose is solid.
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Well of course you are right. The Hansons definitely had pre-mullet doos. I'm not sure there were true mullets out there until after the Saturday Night Fever period, were there? I seem to remember that after the John Travolta thing petered out, New Jersey adopted the mullet as the State coiffure.

murdockroad has a mullet. No, sorry. That's a Mulligan.

et
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Out here in the Midwest, we favor the Billy Ray Cyrus along with a sleeveless T-shirt and an armband tattoo (barbed wire preferred, but tribal designs also welcome).

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