UNITED STATES OF AMERICA

before the

SECURITIES AND EXCHANGE COMMISSION

INVESTMENT ADVISERS ACT OF 1940

Release No. 6571 / March 11, 2024

Admin. Proc. File No. 3-19733

In the Matter of

NICHOLAS J. GENOVESE

ORDER SCHEDULING BRIEFS

On March 24, 2020, the Securities and Exchange Commission issued an order instituting 

proceedings (“OIP”) against Nicholas J. Genovese (“Respondent”) pursuant to Section 203(f) of 

the Investment Advisers Act of 1940.

1

 After Respondent filed an answer to the OIP, the 

Commission ordered the parties to conduct a prehearing conference.2 

On March 5, 2024, the Division of Enforcement filed a statement detailing its efforts to 

confer with Respondent, who is currently incarcerated. The Division stated that it had 

successfully reached Respondent by telephone on February 29, 2024, and conducted a prehearing 

conference with him. According to the Division’s statement, Respondent disputes that the 

Division has complied with its obligations to produce documents under Rule of Practice 230, and 

he did not agree to the Division filing a motion for summary disposition.

3

 The Division states, 

however, that it provided Respondent “[a]ll relevant documents connected to” this proceeding on 

July 21, 2020, and that it is appropriate for it to seek summary disposition because this follow-on 

proceeding is based on Respondent’s criminal conviction. The Division proposes a briefing 

schedule for its anticipated motion.

Under the circumstances, we believe it would serve the interests of justice and not result 

in prejudice to the parties to set a briefing schedule for the Division’s motion for summary 

disposition and for the parties to address their dispute regarding the Division’s compliance with 

1 Nicholas J. Genovese, Advisers Act Release No. 5468, 2020 WL 1433033 (Mar. 24, 

2020).

2 Nicholas J. Genovese, Advisers Act Release No. 6542, 2024 WL 450813 (Feb. 5, 2024).

3 See Rule of Practice 250(b), 17 C.F.R. § 201.250(b) (providing that “any party” may 

make a motion for summary disposition “after a respondent’s answer has been filed and 

documents have been made available to that respondent for inspection and copying pursuant to” 

Rule of Practice 230, 17 C.F.R. § 201.230).
2

Rule 230.

4

 Accordingly, IT IS ORDERED that the Division’s motion for summary disposition 

against Respondent shall be filed by March 22, 2024; Respondent’s opposition brief shall be 

filed by May 7, 2024;

5 and the Division’s reply brief shall be filed by May 21, 2024.6

 

The motion for summary disposition should address each statutory element of the 

relevant provisions of Section 203(f) of the Advisers Act.

7

 The motion should also discuss 

relevant authority relating to the legal basis for, and the appropriateness of, the requested 

sanctions and include evidentiary support sufficient to make an individualized assessment of 

whether those sanctions are in the public interest.8

 And in this case, the motion should attach 

4 See Rule of Practice 100(c), 17 C.F.R. § 201.100(c).

5 Because he is proceeding pro se and is incarcerated, documents that Respondent sends to 

the Office of the Secretary for filing in this proceeding are considered “filed” when delivered to 

prison authorities. See Nicholas J. Genovese, Advisers Act Release No. 6389, at *2 n.12 (Aug.

30, 2023). As referenced below, he must also mail those documents to the Division.

6 Attention is called to Rules of Practice 150-153, 17 C.F.R. §§ 201.150-153, with respect 

to form and service, and Rule of Practice 250(e) and (f), 17 C.F.R. § 250(e) and (f), with respect 

to length limitations. See also Pending Admin. Proceedings, Exchange Act Release No. 88415, 

2020 WL 1322001 (Mar. 18, 2020) (stating that “pending further order of the Commission, all 

reasonable requests for extensions of time will not be disfavored as stated in Rule 161” (citing 

17 C.F.R. § 201.161(b)(1)).

7 See generally Rapoport v. SEC, 682 F.3d 98, 108 (D.C. Cir. 2012) (requiring 

“meaningful explanation for imposing sanctions”); McCarthy v. SEC, 406 F.3d 179, 190 (2d Cir. 

2005) (stating that “each case must be considered on its own facts”); Ross Mandell, Exchange 

Act Release No. 71668, 2014 WL 907416, at *2 (Mar. 7, 2014) (requiring explanation of “why 

the facts and circumstances of this case warrant the [sanctions] imposed”), vacated in part on 

other grounds, Exchange Act Release No. 77935, 2016 WL 3030883 (May 26, 2016); Gary L. 

McDuff, Exchange Act Release No. 74803, 2015 WL 1873119, at *3 (Apr. 23, 2015) (remanding 

for development of additional evidence to “determine whether [the respondent] was acting as a 

broker or dealer at the time of his misconduct”).

8 See, e.g., Shawn K. Dicken, Exchange Act Release No. 89526, 2020 WL 4678066, at *2 

(Aug. 12, 2020) (requesting additional information from the Division “regarding the factual 

predicate for [the respondent’s] convictions” and “why these facts establish” the need for 

remedial sanctions); see also Shawn K. Dicken, Exchange Act Release No. 90215, 2020 WL 

6117716, at *1 (Oct. 16, 2020) (clarifying the additional information requested from the

Division). In addition, whether preclusive effect will be given to findings made in an underlying 

case will vary depending on the circumstances giving rise to the prior order or judgment. See, 

e.g., McDuff, 2015 WL 1873119, at *1, *3 (general jury verdict of guilty); Don Warner 

Reinhard, Exchange Act Release No. 61506, 2010 WL 421305, at *3–4 (Feb. 4, 2010) 

(injunction entered following default), appeal after remand, Exchange Act Release No. 63720, 

2011 WL 121451, at *5–8 (Jan. 14, 2011); cf. Reginald Buddy Ringgold, III, Advisers Act 

Release No. 6267, 2023 WL 2705591, at *3 (Mar. 29, 2023) (default judgment entered as 

sanction for litigation misconduct).
3

record evidence sufficient to conclude that the Division has complied with its obligations under 

Rule of Practice 230.9

An opposition to a motion for summary disposition should precisely specify the basis for 

that opposition, identify with particularity the material factual issues in dispute, and address 

relevant legal precedent from a court or the Commission.10 The opposition cannot rely on bare 

allegations or denials; it must instead point to evidence that shows there is a genuine and material 

factual dispute that can be resolved only by conducting an in-person hearing.11 Respondent shall

raise any arguments regarding the Division’s compliance with Rule of Practice 230 in his 

opposition brief.

A party’s failure to file a brief or comply with this order may result in the entry of 

default, the dismissal of one or more claims, the determination of a particular claim or claims at 

issue against that party, or the prohibition of the introduction of evidence or the exclusion of 

testimony concerning an issue.12 When a party defaults, the allegations in the OIP will be 

deemed to be true and the Commission may determine the proceeding against that party upon 

consideration of the record without holding a public hearing.13 

We remind the parties that any document filed with the Commission must also be served 

upon all participants in the proceeding and be accompanied by a certificate of service.14

9 In its report, the Division references, but does not attach, a July 21, 2020 cover letter to 

its document production to Respondent.

10 See, e.g., Peter Siris, Exchange Act Release No. 71068, 2013 WL 6528874, at *11 & 

n.68 (Dec. 12, 2013) (discussing appropriateness of summary disposition in follow-on 

proceedings and providing citations), petition denied, 773 F.3d 89 (D.C. Cir. 2014); Conrad P. 

Seghers, Advisers Act Release No. 2656, 2007 WL 2790633, at *4–6 (Sept. 26, 2007) 

(discussing unsuccessful attempt to oppose summary disposition), petition denied, 548 F.3d 129 

(D.C. Cir. 2008).

11 Healthway Shopping Network, Exchange Act Release No. 89374, 2020 WL 4207666, 

at *2 (July 22, 2020); James S. Tagliaferri, Exchange Act Release No. 75820, 2015 WL 

5139389, at *2 n.14 (Sept. 2, 2015) (explaining that the party opposing summary disposition 

cannot merely provide a list of factual issues that are asserted to be material or provide a list of 

potential witnesses without any “explanation of their expected testimony”).

12 Rule of Practice 180(c), 17 C.F.R. § 201.180(c).

13 Rules of Practice 155, 180, 17 C.F.R. §§ 201.155, .180.

14 See Rule of Practice 150, 17 C.F.R. § 201.150 (generally requiring parties to serve each 

other with their filings); Rule of Practice 151(d), 17 C.F.R. § 201.151(d) (“Papers filed with the 

Commission . . . shall be accompanied by a certificate stating the name of the person or persons 

served, the date of service, the method of service, and the mailing address or email address to 

which service was made, if not made in person.”).
4

For the Commission, by the Office of the General Counsel, pursuant to delegated 

authority.

Vanessa A. Countryman

Secretary