To the Office of the Secretary
Dear Mr. Secretary:
On September 4, 2006 I submitted the attached comments pertaining to the Bank One Distribution Plan, Administrative File No. 3-11530, via the Commission's Internet Comment Form. Due to the fact that other comments dated after my submission are listed on your website, as promised, I am concerned that my comments, which are not listed, have been received and duly recorded by the Commission. If so, they should also be recorded and available for public viewing. I am therefore attaching a second copy of those comments for your review, and am submitting them via "Option #3", this time, i.e., email, as stated on your website.
Very truly yours,
W. Theodore Kuck
September 4, 2006
To the Securities and Exchange Commission: On the matter of the Banc One Investment Advisors' Settlement and Plan of Distribution
We have considerable concern about this Settlement and Plan of Distribution as it pertains to "Transparent Omnibus" or "Opaque Omnibus" accounts, as defined therein, and held by Bank One Corporation through its Bank One Trust Company, who acted as the full discretion manager or Trustee of such accounts. Such accounts might take the form, namely, of Irrevocable Trust Accounts managed on behalf of beneficiaries by Bank One Trust Company, invested 100% in the One Group of Mutual Funds, and sub-advised or managed by Banc One Investment Advisors. All of these Trust accounts are potential participants in this Settlement and Plan of Distribution.
I am among the Beneficiaries of just such a Trust account. The Beneficiaries found that Bank One Trust Company failed in its fiduciary responsibility as Trustee of that Irrevocable Trust, particularly as it pertains to the market-timing and after-hours activities of its affiliate, who it hired to manage the assets, namely, Banc One Investment Advisors. In permitting this activity to continue, and in retaining and maintaining Banc One Investment Advisors, Bank One Trust Company (Trustee) failed to place the interests of the Beneficiaries of that Trust foremost before the interests of the Bank One Corporation and its Affiliates. This is now a matter of litigation filed in the State of Ohio, Montgomery County Common Pleas Court, Probate Division, Dayton, Ohio - Case No. 2005 MSC 00172. Prior to initiating that litigation, the Beneficiaries sought the assistance and advice of the Securities and Exchange Commission and informed the Commission of our findings by letter to Mr. Stephen M. Cutler, Director dated November 5, 2003, with subsequent response from Mr. Paul A. Montoya, Chief of Branch of Enforcement #4, dated January 22, 2004. We also sought the help of the Comptroller of the Currency by letters dated April 13, 2004 and subsequently - Case No. 471199. They advised us to seek legal guidance, which we subsequently did. Litigation commenced thereafter.
It now appears that nowhere in this Plan of Distribution have you provided assurances that any of the Omnibus Accounts, managed by, or pursuant to the Trusteeship of, Bank One Trust Company will be identified as shareholders for distributions. There has been no provision made in this Plan to see that the Bank One Trust Company identify those shareholders, in fact, it appears that the responsibility (but not obligation) to identify shareholders of all "Omnibus Accounts" rests entirely on the broker, manager or Trustee of those Omnibus Accounts.
We believe that Bank One Trust Company has failed, in the past, to provide proper fiduciary representation of its Trust Account Beneficiaries, a very substantial class of shareholders in the One Group of Funds as seen, among other things, by its failure to file claims on behalf of those shareholders in Class Action Litigation that is currently pending against Bank One Corporation and its affiliates pertaining to these same matters. It is perfectly understandable why the Trust Company refuses to file those claims, because it would be filing a claim against itself (or more accurately, its affiliates), and therefore it apparently has not done it. Therefore, why should we expect Bank One Trust Company to take action that is any different now, in seeking proper reimbursement of these settlement distributions?
Our recommendation, with regard to this Plan of Distribution is, that you make assurances that Bank One Corporation and its affiliates, be required to identify each and every shareholder represented by any account held and managed or supervised or reported on, within The Bank One Corporation and among its affiliates. Otherwise you will fail to assure that the Bank One Corporation will not once again self-deal and fail in its fiduciary responsibility as Trustee and Investment Manager and obviate the Plan of Distribution, itself. Realize importantly, that by Bank One Trust Company alerting Trust Account Beneficiaries, via receipt of such distributions, it will also be drawing attention to the fact that the Trust Company management failed its clients and Beneficiaries (who were One Group shareholders) in providing proper fiduciary Trusteeship. These Beneficiaries have been substantially removed from knowledge of these proceedings, due to the very nature of the irrevocable and full discretion nature of these Trusts. In that regard, we are unaware that Bank One ever sent an information statement to its Trust clients pertaining to this Settlement, nor in regard to this Plan of Distribution. By failing to identify these accounts, the Bank would protect itself from further opening itself up to criticism and potential litigation from these same Trust Account Beneficiaries.
These Beneficiaries are an entirely different group of potential plaintiffs that were also harmed by the activities of Banc One Investment Advisors' active- trading and market-timing activities. Alerting the public and the Bank's Trust clients to this is obviously something that the Bank would like to avoid. Failing to identify those Omnibus Accounts, as shareholders, would aid Bank One Trust Company's ability to keep the matter covered up. We urge you, to see that this does not occur, and that the Bank be forced to make distributions to this particular group of shareholders who have no representation with the Plan Administrator (or IDC), other than Bank One Trust Company. Bank One Trust Company is not a disinterested party in how, and to whom, these distributions are made.