Judith Kenney & Associates, P.A.
Law Offices 2001 Biscayne Boulevard, Suite 3402
Miami, Florida 33137
Telephone (305) 572-1020
Facsimile (305) 572-1085
e-mail jkenney@jkpalaw.com
January 30, 2009
VIA EDGAR
Martin F. James
Senior Assistant Chief Accountant
United Sates Securities and Exchange Commission
Division of Corporation Finance
Washington, D.C. 20549-7010
Re: Form 10-K for the fiscal year ended June 30, 2008
Filed September 29, 2008
File No. 000-21419
Dear Mr. James:
On behalf of Cardo Medical, Inc. (the "Company"), I am responding to the
Staff's comment letter, dated December 23, 2008, regarding the above-
referenced Form 10-K. For your convenience, we have incorporated the staff's
comments below, and our response follows each comment.
Form 10-K for the fiscal year ended June 30, 2008
- -------------------------------------------------
Item 9A(T) Controls and Procedures, page 8
Comment 1.
It appears that your management has performed an assessment of
disclosure controls and procedures (DCP) but it does not appear that your
management has concluded on its assessment of internal control over financial
reporting (ICFR) as of June 30, 2008. Since you were required to file or
filed an annual report for the prior fiscal year, it appears you are required
to report on your management's assessment of internal control over financial
reporting. Note that DCP and ICFR require two separate and distinct
assessments and conclusions.
If your management has not yet performed its assessment, we ask that you
complete your evaluation and amend your filing within 30 calendar days to
provide the required management's report on internal control over financial
reporting. Alternatively, please revise to provide a clear conclusion on
your assessment of ICFR as of June 30, 2008 in compliance with Section 404(a)
of the Sarbanes-Oxley Act.
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United States Securities and Exchange Commission
January 30, 2009
Page 2
In performing your evaluation, you may find the following documents
helpful: The Commission's release "Amendments to Rules Regarding
Management's Report on Internal Control Over Financial Reporting"
(Securities Act Release 8809/Financial Reporting Release 76). You can find
this release at: http://www.sec.gov/rules/final/2007/33-8809/pdf; the
Commission's release "Commission Guidance Regarding Management's Report on
Internal Control Over Financial Reporting Under Section 13(a) or 15(d) of the
Securities Exchange Act of 1934" (Securities Act Release 8010/Financial
Reporting Release 77). You can find this release at:
http://sec.gov/rules/interp/2007/33-8810.pdf; and the "Sarbanes-Oxley Section
404-A Guide for Small Business" brochure at:
(http://www.sec.gov/info/smallbus/404guide.shtml).
Please note that the failure to perform management's assessment
adversely affects the company's and its shareholders' ability to avail
themselves of rules and forms that are predicated on the current or timely
filing of Exchange Act reports. For further information regarding these
impacts, please see Compliance and Disclosure Interpretation 115.02, which
you can find at http://www.sec.gov/divisions/corpfin/guidance/regs-
kinterp.htm.
In addition, please evaluate whether management's failure to perform or
complete its report on internal control over financial reporting impacts its
conclusions regarding the effectiveness of your disclosure controls and
procedures as of the end of the fiscal year covered by the report and, as
appropriate, revise your conclusion of the effectiveness of disclosure
controls and procedures at June 30, 2008. In particular, please consider the
definition of disclosure controls and procedures provided in Rule 13a-15(e),
which indicates that effective controls and procedures would ensure that
information required to be disclosed by the issuer is recorded, processed,
summarized and reported within the time periods specified in the Commission's
rules and forms. In addition, as discussed in Compliance and Disclosure
Interpretation 115.02, which you can find at
http://www.sec.gov/divisions/corpfin/guidance/regs-kinterp.htm, failure to
file management's report on Internal Control over Financial Reporting
rendered your annual report materially deficient and also rendered the
company not timely or current in its Exchange Act Reporting.
Response to Comment 1
We have today filed Amendment No. 1 to the Company's Annual Report on
Form 10-K for the year ended June 30, 2008 (the "Amendment"). Although the
Company's principal executive officer and principal financial officer
conducted an evaluation of the Company's internal control over financial
reporting ("ICFR") as of June 30, 2008, we failed to include the Company's
conclusion that its ICFR was effective. We stated in the original Form 10-K
that "No material weaknesses in our internal control over financial reporting
were identified." The Amendment contains the appropriate conclusion.
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United States Securities and Exchange Commission
January 30, 2009
Page 3
Comment 2.
Please revise the language in your disclosure concerning changes in
your internal control over financial reporting to indicate whether there was
any change to your internal control over financial reporting that has
materially affected, or that is reasonably likely to materially affect, your
internal control over financial reporting, consistent with the language used
in amended Item 308(c) of Regulation S-K.
Response to Comment 2.
We have also revised the language in the paragraph regarding the absence
of significant changes in the Company's ICFR to include changes that
"materially affected, or are reasonably likely to materially affect" the
Company's ICFR.
*****************************************************************************
We believe that the Amendment addresses the Staff's comments and
corrects our prior omissions. The Company's acknowledgment is attached
hereto as Appendix A.
Very truly yours,
/s/Judith Kenney
---------------------------------
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Appendix A
I, Andrew Brooks, Chief Executive Officer of Cardo Medical, Inc. (the
"Company"), do hereby acknowledge that:
The Company is responsible for the adequacy and accuracy
of the disclosure in the filing;
Staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any
action with respect to the filing; and
The Company may not assert staff comments as a defense in
any proceeding initiated by the Commission or any person
under the federal securities laws of the United States.
Date: January 28, 2009 /s/ Andrew Brooks
--------------------------
Andrew Brooks
Chief Executive Officer
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