October 21, 2005
Deloitte Touche Tohmatsu
Dear Mr. Horstmann:
The staff has reviewed your letter of October 21, 2005 concerning Deloitte Touche Tohmatsu's ("DTT") sale by its member firm in the United Kingdom, Deloitte & Touche LLP, of the Prophet software system and various other rights and assets (hereinafter collectively referred to as the "Prophet Assets"), to SunGard Sherwood Systems Group Ltd., (together with its parent corporation, SunGard Data Systems Inc., and the other affiliates and subsidiaries of SunGard Data Systems Inc. "SunGard"). Your letter details key terms of the transaction and conditions that DTT, including entities that have been considered part of DTT under Rule 2-01(f)(2) of Regulation S-X, have complied or will comply with in connection with the completion of the transaction. Your letter concludes that, based on its compliance with those terms and conditions, SunGard should not be considered an associated entity of DTT and that DTT should not be considered to have a "mutuality of interest" or a "direct or material indirect business relationship" with, or a "direct financial interest or material indirect financial interest" in, any of its audit clients as a result of the activities of SunGard including, without limitation, licensing Prophet Assets or providing services to, entering into any business relationships with and making or receiving investments in or from third parties, of SunGard and its officers, directors, employees and other affiliated persons.
As you are aware, the Sarbanes-Oxley Act of 2002 (the "Act") expressly prohibits any registered public accounting firm, or any associated person or entity of that firm, from providing certain non-audit services to its audit clients that are "issuers" as defined in the Act. The representations set forth in your letter indicate that DTT has already taken the following steps to divest of the Prophet Assets: (1) DTT has agreed to transfer all of its interest in the Prophet Assets in a private transaction to Sungard and no Sungard officer, director, employee or other affiliated person of SunGard will receive or retain any equity interest in DTT; (2) DTT has no corporate governance, or management role in Sungard or direct or indirect financial ties with SunGard (other than two transitional service arrangements); (3) SunGard does not and will not use any variant of the "Deloitte" name; (4) DTT does not and will not pay to or receive from SunGard any royalty, interest, dividend or other payments; (5) DTT and SunGard has not and will not enter into joint marketing, advertising or similar arrangements with each other; (6) DTT and SunGard are under no obligation to refer clients to one another and there will be no referral fees or other forms of compensation to each other for referrals; (7) DTT will not compete against SunGard for certain services under a three year Non-Compete Agreement; (8) shared services between DTT and SunGard are limited and transitional in nature and are for a period of no more than one year; and (9) SunGard has no obligation to DTT in connection with any retirement obligation and DTT has no obligation to SunGard in connection with retirement benefits to continuing or former partners, principals, or employees of DDT.
Assuming that the representations set forth in your letter are and continue to be accurate, and further assuming that DTT continues to comply with each of the terms and conditions set forth in your letter, the Office of the Chief Accountant ("OCA" or the "staff") will not recommend an enforcement action asserting that DTT lacks independence as a result of non-audit services provided to DTT's audit clients by SunGard or its employees. Of course, DTT otherwise remains fully subject to the Commission's independence requirements, as well as the provisions of the Act, with respect to matters not expressly covered by your letter and this response. OCA has taken this position based on the specific facts and circumstances represented in your letter. DTT will consent to any review deemed necessary by the staff, or the Public Company Accounting Oversight Board to ascertain compliance. If the divestiture is found not to have satisfied the terms and conditions represented to the staff or if any of the remaining terms or conditions in your letter are not met, the staff's position will be vitiated, and the staff may recommend an enforcement action. Further, OCA has taken this position based on its evaluation of the relevant policy considerations and does not thereby adopt or endorse the analysis or conclusions set forth in your letter. This response expresses OCA's position only on these particular facts and circumstances and does not purport to express any legal conclusions on this or any other matter.
Andrew D. Bailey, Jr.