Investment Advisers Act of 1940 — Section 206(4) and Rule 206(4)-3
RESPONSE OF THE OFFICE OF CHIEF COUNSEL
IM Ref. No. 20081010161
We would not recommend enforcement action to the United States Securities and Exchange Commission (“Commission”) under Section 206(4) of the Investment Advisers Act of 1940 (“Advisers Act”) and Rule 206(4)-3 thereunder if any investment adviser that is required to be registered pursuant to Section 203 of the Advisers Act pays to E*Trade Capital Markets LLC (“ETCM”)1 or any of its associated persons, as defined in Section 202(a)(17) of the Advisers Act, a cash solicitation fee, directly or indirectly, for the solicitation of advisory clients in accordance with Rule 206(4)-3,2 notwithstanding a Final Consent Judgment issued by the United States District Court for the Southern District of New York (the “Final Consent Judgment”) that otherwise would preclude such an investment adviser from paying such a fee, directly or indirectly, to ETCM or certain related persons.3
Our position is based on the facts and representations in your letter dated March 12, 2009, particularly ETCM’s representations that:
1. it will conduct any cash solicitation arrangement entered into with any investment adviser required to be registered under Section 203 of the Advisers Act in compliance with the terms of Rule 206(4)-3 except for the investment adviser’s payment of cash solicitation fees, directly or indirectly, to ETCM, which is subject to the Final Consent Judgment;
2. the Final Consent Judgment does not bar or suspend ETCM or any person currently associated with ETCM from acting in any capacity under the federal securities laws;4
3. it will comply with the terms of the Final Consent Judgment, including, but not limited to, the payment of disgorgement, pre-judgment interest, civil or administrative penalties and fines; and
4. for ten years from the date of the entry of the Final Consent Judgment, ETCM or any investment adviser with which it has a solicitation arrangement subject to Rule 206(4)-3 will disclose the Final Consent Judgment in a written document that is delivered to each person whom ETCM solicits (a) not less than 48 hours before the person enters into a written or oral investment advisory contract with the investment adviser or (b) at the time the person enters into such a contract, if the person has the right to terminate such contract without penalty within 5 business days after entering into the contract.
This position applies only to the Final Consent Judgment and not to any other basis for disqualification under Rule 206(4)-3 that may exist or arise with respect to ETCM or any of its associated persons.
1 ETCM is registered with the Commission as a broker-dealer, and is primarily engaged in over-the-counter market making activities. ETCM is a wholly-owned subsidiary of E*Trade Financial Corporation, a global financial services company.
2 Rule 206(4)-3 prohibits any investment adviser that is required to be registered under the Advisers Act from paying a cash fee, directly or indirectly, to any solicitor with respect to solicitation activities if, among other things, the solicitor is subject to an order, judgment or decree described in Section 203(e)(4) of the Advisers Act.
3 ivil Action No. 09-1976 (S.D.N.Y.) (March 11, 2009).
4 Section 9(a)(2) of the Investment Company Act of 1940 (the “Investment Company Act”) provides, in pertinent part, that a person may not serve or act as, among other things, an investment adviser or depositor of any investment company registered under the Investment Company Act or a principal underwriter for any registered open-end investment company or registered unit investment trust if, among other things, that person, by reason of any misconduct, is permanently or temporarily enjoined from acting, among other things, as an underwriter, broker, dealer or investment adviser, or from engaging in or continuing any conduct or practice in connection with any such activity, or in connection with the purchase or sale of any security. Section 9(a)(3) extends the prohibition to any company any affiliated person of which is disqualified pursuant to Section 9(a)(2).
The entry of the Final Consent Judgment, absent the issuance of an order by the Commission pursuant to Section 9(c) of the Investment Company Act that exempts ETCM from the provisions of Section 9(a) of the Investment Company Act, would effectively prohibit ETCM and its affiliated persons from, among other things, acting as an investment adviser to any registered investment company. You state that, pursuant to Section 9(c) of the Investment Company Act, ETCM and certain affiliated persons, on behalf of themselves and future affiliated persons, submitted an application to the Commission requesting (i) an order of temporary exemption from Section 9(a) of the Investment Company Act and (ii) a permanent order exempting ETCM, certain affiliated persons and future affiliated persons from the provisions of Section 9(a) of the Investment Company Act.
On March 12, 2009, the Commission issued an order granting ETCM, certain affiliated persons and future affiliated persons a temporary exemption from Section 9(a) of the Investment Company Act, pursuant to Section 9(c) of the Investment Company Act, with respect to the Final Judgment, until the date the Commission takes final action on the application for a permanent order. In re E-*Trade Capital Markets LLC, et al., SEC Rel. No. IC- 28645 (Mar. 12, 2009). Therefore, ETCM, certain affiliated persons and future affiliated persons are not currently barred or suspended from acting in any capacity specified in Section 9(a) of the Investment Company Act as a result of the Final Judgment.
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