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by Mike Caswell

Benjamin Kirk, the Vancouver-area man charged by the U.S. Securities Commission for the pump-and-dump of Nutranomics Inc. and other stocks, has asked a judge to throw out the charges. The SEC claims that Mr. Kirk and others unloaded millions of shares in the midst of paid promotions. While Mr. Kirk is only accused of receiving $4.2-million, the SEC says that the overall scheme produced $77.3-million in gains. (All figures are in U.S. dollars.)

Mr. Kirk's request to throw out the case is contained in a motion filed on Tuesday, Feb. 3, in federal court in Boston. He seeks to dismiss the matter partly on technical grounds, such as the length of time it took the SEC to charge him and the SEC's failure to properly serve him with the case. He also addresses the core of the matter -- the SEC's claim that he participated in a pump-and-dump.

In particular, Mr. Kirk says that the SEC has not accused him of many of the things that would comprise a pump-and-dump. "It does not allege that Mr. Kirk created promotions, distributed promotions, placed trades, directed trading activity, interacted with brokers or market makers, controlled nominee entities, or managed brokerage accounts holding Nutranomics shares," Mr. Kirk's motion reads. The SEC also did not accuse him of making any misstatements or of drafting any promotional material, the motion states.

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