Securities Act of 1933 — Section 5, Rule 180
RESPONSE OF THE CHIEF COUNSEL'S OFFICE
IM Ref. No. 20129281437
Your letter, dated November 25, 2013, requests assurance that we would not recommend enforcement action to the Securities and Exchange Commission ("Commission") under section 5 of the Securities Act of 1933 ("1933 Act") against ABA Retirement Funds ("ABA RF"), an Illinois not-for-profit corporation, as sponsor of the ABA RF Program (the "Program"), or the American Bar Association Members/Northern Trust Collective Trust (the "Program's Collective Trust") if the Program's Collective Trust files a post-effective registration statement on Form S-1 under the 1933 Act to remove the units of beneficial interest in the Program's Collective Trust ("Units") from registration under the 1933 Act, and thereafter ceases to register the Units under the 1933 Act. We are providing you such assurance in this letter, as detailed below.
You state the following:
Based on the facts and circumstances described in your letter, we would not recommend enforcement action to the Commission under section 5 of the 1933 Act against ABA RF or the Program's Collective Trust if the Program's Collective Trust files a post-effective registration statement on Form S-1 under the 1933 Act to remove the Units from registration under the 1933 Act, and thereafter ceases to register the Units under the 1933 Act.
Our response is based, in part, on the following representations:
Our response expresses our view on enforcement action only and does not express any legal or interpretive position on the issues presented. Because our position is based upon the facts and representations set forth in your letter, any different facts or representations may require a different conclusion.
 The ABA Members Plans are classified under Internal Revenue Service ("IRS") procedures as "master plans" designed to allow qualified employers to establish and maintain employee benefit plans that are qualified under section 401(a) of the Code. The trustees of each Individually Designed Plan must represent that such Plan is qualified under section 401(a) of the Code to be eligible to participate in the Program.
 The Conduit Trusts hold only units issued by the Program's Collective Trust and the assets held in the Program's self-managed discount brokerage option, and such trusts have been determined by the IRS to be tax-exempt trusts under section 501(a) of the Code.
 The FISA (1) obligates Northern Trust, in relevant part, to (a) develop and maintain a Program investment policy, which specifies the Investment Options to be provided by the Program's Collective Trust and the investment objectives and performance benchmarks of such options and (b) operate the Program's Collective Trust in a manner consistent with such policy, (2) specifies the fees payable to Northern Trust and (3) requires that Northern Trust accept complete fiduciary liability under the Employee Retirement Income Security Act of 1974 ("ERISA") for its activities as trustee. In addition, because of its discretion to engage, retain and terminate Northern Trust as the trustee of the Program's Collective Trust, the ABA RF's activities are subject to ERISA. In accordance with the FISA, Northern Trust has entered into a master services agreement with a wholly-owned subsidiary pursuant to which such subsidiary carries out Northern Trust's obligations to act as trustee of the Collective Trust and perform related duties.
 The Program's Collective Trust relies on the exclusion from the definition of investment company contained in section 3(c)(11) of the Investment Company Act of 1940 ("1940 Act").
 Rule 180 under the 1933 Act provides that:
(a) Any interest or participation in a single trust fund or in a collective trust fund maintained by a bank, or any security arising out of a contract issued by an insurance company, issued to an employee benefit plan shall be exempt from the provisions of section 5 of the Act if the following terms and conditions are met:
(1) The plan covers employees, some or all of whom are employees within the meaning of section 401(c)(1) of the Internal Revenue Code of 1954, and is either: (i) A pension or profit-sharing plan which meets the requirements for qualification under section 401 of such Code, or (ii) an annuity plan which meets the requirements for the deduction of the employer's contribution under section 404(a)(2) of such Code;
(2) The plan covers only employees of a single employer or employees of interrelated partnerships; and
(3) The issuer of such interest, participation or security shall have reasonable grounds to believe and, after making reasonable inquiry, shall believe immediately prior to any issuance that:
(i) The employer is a law firm, accounting firm, investment banking firm, pension consulting firm or investment advisory firm that is engaged in furnishing services of a type that involve such knowledge and experience in financial and business matters that the employer is able to represent adequately its interests and those of its employees; or
(ii) In connection with the plan, the employer prior to adopting the plan obtains the advice of a person or entity that (A) is not a financial institution providing any funding vehicle for the plan, and is neither an affiliated person as defined in section 2(a)(3) of the Investment Company Act of 1940 of, nor a person who has a material business relationship with, a financial institution providing a funding vehicle for the plan; and (B) is, by virtue of knowledge and experience in financial and business matters, able to represent adequately the interests of the employer and its employees.
(b) Any interest or participation issued to a participant in either a pension or profit-sharing plan which meets the requirements for qualification under section 401 of the Internal Revenue Code of 1954 or an annuity plan which meets the requirements for the deduction of the employer's contribution under section 404(a)(2) of such Code, and which covers employees, some or all of whom are employees within the meaning of section 401(c)(1) of such Code, shall be exempt from the provisions of section 5 of the Act.
 Form N-1A is the registration form used by open-end management investment companies to register under the 1940 Act and to offer their securities under the 1933 Act. See Form N-1A, available at http://www.sec.gov/about/forms/formn-1a.pdf.
 The Division of Investment Management generally permits third parties to rely on no-action or interpretive letters to the extent that the third party's facts and circumstances are substantially similar to those described in the underlying request for a no-action or interpretive letter. See Informal Guidance Program for Small Entities, Investment Company Act Release No. 22587 (Mar. 27, 1997), n. 20. In light of the very fact-specific nature of the request, however, the position expressed in this letter applies only to ABA RF, as sponsor of the Program, and the Program's Collective Trust, and no other entity may rely on this position.
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