SecProbe.io

CORRESP
1
filename1.htm

   c56916_corresp.htm -- Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing

March 12, 2009

AS FILED ON EDGAR AND

VIA FACSIMILE

Securities and Exchange Commission

Division of Corporation Finance

Attn: Tabatha Akins, Staff Accountant

100 F Street, N.E., Mail Stop 6010

Washington, DC 20549

Re:

Elite Pharmaceuticals, Inc.

Item 4.01 of Form 8-K, filed February 19, 2009

File No. 001-15697

Dear Ms. Akins:

          On behalf of our client, Elite Pharmaceuticals, Inc., a Delaware corporation (the “Company”), we transmit simultaneously herewith
for filing under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), by means of the Electronic Data Gathering, Analysis, and Retrieval system, the Company’s
Current Report on Form 8-K/A (the “Amended Filing”) amending the Current Report on Form 8-K originally filed by the
Company on February 19, 2009 (File No. 001-15697) (the “Original Filing”) and a separate acknowledgement letter from the Company. All capitalized terms used, but not otherwise
defined, herein shall have the respective definitions assigned thereto in the Amended Filing.

          We are in receipt of your letter addressed to the Company, dated February 25, 2009 (the “Comment Letter”), which you sent on behalf of the Division of Corporation Finance of the Securities and Exchange Commission (the “Commission”). Set forth below is the response
of the Company to each of the comments set forth in the Comment Letter, numbered to correspond thereto.

Comment

Number

Response to Comment

  1.

       The Company takes notice of, but respectfully
      disagrees with, your comment. For the reasons stated below, the Company
      disputes the Commission’s position that the Company’s failure
    to file a report under Item 4.01 of Form 8-K within 4 days of the completion
      of the merger, on January 1, 2009 (the “Merger”),
      of the Company’s former independent accountants, Miller Ellin & Company
      (“Miller Ellin”),
      with and into Rosen Seymour Shapss Martin & Company LLP (“Rosen
      Seymour”), the Company’s current
      independent accountants, constitutes a delinquency that may negatively
    impact the Company’s eligibility requirements for filing on Form S-3.

    Comment

      Number

    Response to Comment

         Upon completion
        of the Merger on January 1, 2009, Rosen Seymour, as a matter of law,
        succeeded Miller Ellin as the Company’s
        independent accountants, and the Company formally engaged Rosen Seymour,
        the successor in interest of Miller Ellin’s business and operations,
        as its new independent accountant and the principal accountant to audit
        its financial statements. Notwithstanding the Merger, there was very
        little change in the Company’s ongoing relationship with its accountants.
        In fact, many of the individual professionals who oversaw the Company’s
        matters and headed the Company’s account at Miller Ellin have continued
    in such capacity at Rosen Seymour upon giving effect to the Merger and through
        the present.

         Based upon
        the circumstances described above, the Company did not consider there
        to be a change in independent accountants for purposes of Item 4.01 of
        Form 8-K upon the occurrence of the Merger. Furthermore, the Company
        was not notified that the Merger constituted a change in independent
        accountants until its receipt of a letter, dated February 12, 2009 (the “Notification
        Letter”), from Rosen Seymour, whereby
        Rosen Seymour (1) notified the Company that the Merger is considered
        by the Commission to be a change in independent accountants under Item
        4.01(b), and (2) advised the Company to file a Form 8-K using the language
        suggested by Rosen Seymour in the Notification Letter. Upon receipt of
        the Notification Letter, the Company prepared the Original Filing based
        on the language suggested therein by Rosen Seymour; the Company filed
        the Original Filing within 4 business days of the date of the Notification
    Letter.

         Based upon
        the foregoing, and the Company’s good
        faith effort to comply with the disclosure requirements of Item 4.01
        of Form 8-K upon its receipt of the Notification Letter from Rosen Seymour,
        the Company respectfully requests the Commission to consider as timely
        the filing of the Original Filing disclosing the change in the Company’s
        independent accountants and, thus, not to treat such filing of the Original
        Filing as a delinquency that may negatively impact the Company’s
        eligibility requirements for filing on Form S-3.

    2.

         The Company
        has amended the Original Filing in accordance with your comment to provide
        all disclosures required by Item 304(a)(1) of Regulation S-K. In the
        Amended Filing, such disclosures are contained in the first four paragraphs
    under Item 4.01, which are reproduced below for your convenience.

             Effective January 1,
          2009, Miller, Ellin & Company,
          LLP (“Miller Ellin”),
          the independent accountant of Elite Pharmaceuticals, Inc., a Delaware
          corporation (the “Registrant”),
          and the principal accountant engaged to audit the Registrant’s financial
          statements, consummated a merger (the “Merger”)
          of its practice into the practice of Rosen Seymour

    Comment

      Number

    Response
          to Comment

        Shapss Martin & Company LLP (“Rosen Seymour”),
          with Rosen Seymour the resulting surviving legal entity. As of the date
          of the Merger, Rosen Seymour, as a matter of law, succeeded Miller Ellin
          as the Registrant’s independent accountants, and the Registrant
          formally engaged Rosen Seymour, as successor in interest of Miller Ellin,
          as its new independent accountant and principal accountant to audit its
          financial statements. On February 19, 2009, the foregoing changes were
          unanimously approved and ratified by the Audit Committee of the Registrant’s
          Board of Directors (the “Audit Committee”).

             During the Registrant’s
          past two fiscal years, ended March 31, 2007 and March 31, 2008 (together,
          the “Fiscal Years”), respectively, Miller Ellin was
          engaged as the Registrant’s principal accountant to examine the
          Registrant’s financial statements for each such Fiscal Year. Miller
          Ellin’s reports on the Registrant’s financial statements for
          the Fiscal Years did not contain an adverse opinion or disclaimer of
          opinion, nor were such reports qualified or modified as to uncertainty,
          audit scope or accounting principles.

             During the Fiscal Years
          and through the date of the Merger, including the subsequent interim
          periods ended June 30, 2008, September 30, 2008 and December 31, 2008
          (the “Subsequent Interim Periods”), respectively, there
          were no disagreements with Miller Ellin, whether resolved or unresolved
          to Miller Ellin’s satisfaction, on any matter of accounting principles
          or practices, financial statement disclosure, or auditing scope or procedure,
          which, if not resolved to Miller Ellin’s satisfaction, would have
          caused it to make reference to the subject matter of the disagreement(s)
          in connection with its report.

             During the Fiscal Years
          and through the date of the Merger, including the Subsequent Interim
          Periods, no “reportable events” (as described in Item 304(a)(1)(v)
          of Regulation S-K) occurred that would be required by Item 304(a)(1)(v)
          to be disclosed in this report.

    3.

         The Company
        has revised the second paragraph of the Original Filing in accordance
        with your comment to state explicitly the disclosures required by Item
        304(a)(2). The revised disclosure in the Amended Filing, which is now
        located in the penultimate paragraph under Item 4.01, is reproduced below
    for your convenience.

             Except as described
          below, during the Fiscal Years and through the date of the Registrant’s engagement of Rosen
          Seymour, including the Subsequent Interim Periods, neither the Registrant
          nor anyone on its behalf consulted Rosen Seymour regarding either (i)
          the application of accounting principles to a specific transaction, either
          completed or proposed; or the type of audit opinion that might be rendered
          on the Registrant’s financial statements, and either a written report
          was provided to the Registrant or oral advice was provided that Rosen
          Seymour concluded was an important factor considered by the Registrant
          in reaching a decision as to the accounting, auditing or financial reporting
          issue, or (ii) any matter that was

    Comment

      Number

    Response
          to Comment

        either the subject of a “disagreement”(as
          defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions
          to such item) or “reportable events” (as described in Item
          304(a)(1)(v) of Regulation S-K). As previously disclosed in Amendment
          No. 1 to the Registrant’s Form 10-K/A, filed on January 16, 2009
          with the Securities and Exchange Commission (the “Commission”),
          the Registrant engaged Rosen Seymour to conduct a review of its internal
          controls over financial reporting, particularly with respect to the
          Registrant’s
          accounting procedures and related internal controls over expenditures,
          as a result of an investigation conducted by the Audit Committee regarding
          certain reimbursements of expenses that were made by the Registrant
          to Bernard J. Berk, its then-President, Chief Executive Officer and
          Chairman of the Registrant’s Board of Directors, without the prior
          receipt by the Registrant from Mr. Berk of adequate substantiation
          of such expenses. Rosen Seymour completed its review on January
            23, 2009 and determined that nothing came to its attention during
          such review to indicate that the Registrant’s current internal
          controls over financial reporting are not effective.

    4.

         The Company
        has included in the Amended Filing, as Exhibit 16.1, a signed and currently
        dated letter from its former accountants, Miller Ellin, in accordance
        with Item 304(a)(3) of Regulation S-K. The Company has also included
        in its amended filing, as Exhibit 16.2, an updated letter signed by its
        current accountants, Rosen Seymour, in accordance with Item 304(a)(2)
    of Regulation S-K.

                   Please
        contact the undersigned, at (212) 209-3059, if we may be of further assistance
    regarding the above matters.

Very truly yours,

  /s/ Louis Smookler, Esq.

Louis Smookler, Esq.