Investment Advisers Act of 1940 - Rule 206-4(3)
Bank of America, N.A.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
November 25, 2014
Response of the Chief Counsel's Office
Division Of Investment Management
IM Ref. No. 20141125141
File No. 801-14235
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 Bank of America, N.A. ("BANA"), Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch," successor by merger to Banc of America Securities LLC) (collectively, the "Respondents"), or any of the Respondents' 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)-3,1 notwithstanding an injunctive order issued by the United States District Court for the Western District of North Carolina (the "Judgment") that otherwise would preclude such an investment adviser from paying such a fee, directly or indirectly, to BANA, Merrill Lynch, or certain related persons.2
Our position is based on the facts and representations in your letter dated November 25, 2014, particularly the representations of each Respondent that:
- it will conduct any cash solicitation arrangement entered into with any investment adviser registered or required to be registered under Section 203 of the Advisers Act in compliance with the terms of Rule 206(4)-3 as if the Respondent were not disqualified for purposes of Rule 206(4)-3 by virtue of the Judgment;
- the Judgment does not bar or suspend it or any person currently associated with it from acting in any capacity under the federal securities laws;3
- it will comply with the terms of the Judgment, including, but not limited to, the payment of disgorgement and the civil penalty; and
- for ten years from the date of the entry of the Judgment, it or any investment adviser with which it has a solicitation arrangement subject to Rule 206(4)-3 will disclose the Judgment in a written document that is delivered to each person whom the Respondent 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 five (5) business days after entering into the contract.
This position applies only to the Judgment and not to any other basis for disqualification under Rule 206(4)-3 that may exist or arise with respect to BANA, Merrill Lynch, or any of either Respondent's associated persons.
Anil K. Abraham
Senior Special Counsel
1 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.
2 Securities and Exchange Commission v. Bank of America, N.A., et al., Civil Action No. 3:13-cv-447 (W.D.N.C. Nov. 25, 2014).
3 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 Judgment, absent the issuance of an order by the Commission pursuant to Section 9(c) of the Investment Company Act that exempts BANA and Merrill Lynch from the provisions of Section 9(a) of the Investment Company Act, would effectively prohibit each Respondent and companies of which it is an affiliated person from acting in any of the capacities set forth in Section 9(a) of the Investment Company Act. You state that, pursuant to Section 9(c) of the Investment Company Act, BANA, Merrill Lynch, 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 such persons from the provisions of Section 9(a) of the Investment Company Act.
On November 25, 2014, the Commission issued an order granting BANA, Merrill Lynch, 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 Judgment, until the date the Commission takes final action on the application for a permanent order. Banc of America Mortgage Securities, Inc., et al., SEC Rel. No. IC-31359 (Nov. 25, 2014). Therefore, BANA, Merrill Lynch, 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 Judgment.
The Incoming Letter is in Acrobat format.