Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Notices 28291 

common control with, the other person. 

Applicants state that RBC is an affiliated 

person of each of the other Applicants 

within the meaning of section 2(a)(3) of 

the Act. Applicants state that the entry 

of the Injunction results in Applicants 

being subject to the disqualification 

provisions of section 9(a) of the Act. 

2. Section 9(c) of the Act provides that 

the Commission shall grant an 

application for exemption from the 

disqualification provisions of section 

9(a) if it is established that these 

provisions, as applied to the Applicants, 

are unduly or disproportionately severe 

or that the Applicants’ conduct has been 

such as not to make it against the public 

interest or the protection of investors to 

grant the exemption. Applicants have 

filed an application pursuant to section 

9(c) seeking a temporary and permanent 

order exempting them and Covered 

Persons from the disqualification 

provisions of section 9(a) of the Act. 

3. Applicants believe they meet the 

standards for exemption specified in 

section 9(c). Applicants state that the 

prohibitions of section 9(a) as applied to 

them would be unduly and 

disproportionately severe and that the 

conduct of the Applicants has been such 

as not to make it against the public 

interest or the protection of investors to 

grant the exemption from section 9(a). 

4. Applicants state that the alleged 

conduct giving rise to the Injunction did 

not involve any of the Applicants acting 

in the capacity of investment adviser or 

subadviser to any Fund or in the 

capacity of principal underwriter for 

any open-end Fund. Applicants also 

state that none of the current or former 

directors, officers, or employees of the 

Fund Servicing Applicants had any 

knowledge of, or had any involvement 

in, the conduct alleged in the 

Complaint. Applicants further state that 

the personnel at RBC who were 

involved in the violations alleged in the 

Complaint have had no involvement in 

providing investment advisory, 

subadvisory or principal underwriting 

services to Funds and will not have any 

future involvement in such activities. 

5. Applicants state that the inability to 

continue to provide investment advisory 

and subadvisory services to Funds and 

principal underwriting services to openend Funds would result in potential 

hardship for the Funds and their 

shareholders. Applicants state that they 

will, as soon as reasonably practical, 

distribute written materials, including 

an offer to meet in person to discuss the 

materials, to the boards of directors of 

the Funds (‘‘Boards’’) for which the 

Applicants serve as investment adviser, 

investment subadviser or principal 

underwriter, including the directors 

who are not ‘‘interested persons,’’ as 

defined in section 2(a)(19) of the Act, of 

such Funds, and their independent legal 

counsel as defined in rule 0–1(a)(6) 

under the Act, relating to the 

circumstances that led to the Injunction, 

any impact on the Funds, and the 

application. Applicants state they will 

provide the Boards with all information 

concerning the Injunction and the 

application that is necessary for the 

Funds to fulfill their disclosure and 

other obligations under the federal 

securities laws. 

6. Applicants also state that, if they 

were barred from providing services to 

Funds, the effect on their businesses 

and employees would be severe. 

Applicants state that they have 

committed substantial resources to 

establish an expertise in providing 

advisory and distribution services to 

Funds. Applicants further state that 

prohibiting them from providing such 

services would not only adversely affect 

their businesses, but would also 

adversely affect approximately 35 

employees who are involved in those 

activities. 

7. Applicants have not previously 

received an exemption under section 

9(c) as the result of conduct that 

triggered section 9(a). 

Applicants’ Condition 

Applicants agree that any order 

granting the requested relief will be 

subject to the following condition: 

Any temporary exemption granted 

pursuant to the application shall be 

without prejudice to, and shall not limit 

the Commission’s rights in any manner 

with respect to, any Commission 

investigation of, or administrative 

proceedings involving or against, 

Covered Persons, including, without 

limitation, the consideration by the 

Commission of a permanent exemption 

from section 9(a) of the Act requested 

pursuant to the application or the 

revocation or removal of any temporary 

exemptions granted under the Act in 

connection with the application. 

Temporary Order 

The Commission has considered the 

matter and finds that Applicants have 

made the necessary showing to justify 

granting a temporary exemption. 

Accordingly, 

It is hereby ordered, pursuant to 

section 9(c) of the Act, that Applicants 

and any other Covered Persons are 

granted a temporary exemption from the 

provisions of section 9(a), solely with 

respect to the Injunction, subject to the 

condition in the application, from June 

9, 2009, until the Commission takes 

final action on their application for a 

permanent order. 

By the Commission. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–13980 Filed 6–12–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. IC–28764; File No. 812–13662] 

Banc of America Securities LLC, et al.; 

Notice of Application and Temporary 

Order 

June 9, 2009. 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Temporary order and notice of 

application for a permanent order under 

section 9(c) of the Investment Company 

Act of 1940 (‘‘Act’’). 

SUMMARY: Summary of Application: 

Applicants have received a temporary 

order exempting them from section 9(a) 

of the Act, with respect to an injunction 

entered against Banc of America 

Securities LLC (‘‘BAS’’) and Banc of 

America Investment Services, Inc. 

(‘‘BAI’’) on June 9, 2009 by the United 

States District Court for the Southern 

District of New York (‘‘Injunction’’) 

until the Commission takes final action 

on an application for a permanent order. 

Applicants also have applied for a 

permanent order. 

APPLICANTS: BAS, BAI, Columbia 

Management Advisors, LLC (‘‘CMA’’), 

Columbia Wanger Asset Management, 

LP (‘‘CWAM’’), Columbia Management 

Distributors, Inc. (‘‘CMDI’’), Banc of 

America Investment Advisors, Inc. 

(‘‘BAIA’’), Bank of America Capital 

Advisors LLC (‘‘BACA’’), U.S. Trust 

Hedge Fund Management, Inc. 

(‘‘USTHFM’’), Merrill Lynch, Pierce, 

Fenner & Smith, Incorporated 

(‘‘MLPFS’’), IQ Investment Advisors 

LLC (‘‘IQ’’), Roszel Advisors, LLC 

(‘‘Roszel’’), Nuveen Asset Management 

(‘‘NAM’’), Nuveen Investments Advisers 

Inc. (‘‘NIA’’), Nuveen Investments 

Institutional Services Group, LLC 

(‘‘ISG’’), Nuveen HydePark Group, LLC 

(‘‘Nuveen HydePark’’), NWQ Investment 

Management Company LLC (‘‘NWQ’’), 

Nuveen Investment Solutions, Inc. 

(‘‘NIS’’), Santa Barbara Asset 

Management, LLC (‘‘Santa Barbara’’), 

Symphony Asset Management LLC 

(‘‘Symphony’’), Tradewinds Global 

Investors, LLC (‘‘Tradewinds’’) and 

Winslow Capital Management, Inc. 

(‘‘Winslow’’, together with NAM, NIA, 

ISG, Nuveen HydePark, NWQ, NIS, 


pwalker on PROD1PC71 with NOTICES
28292 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Notices 

1Applicants request that any relief granted 

pursuant to the application also apply to any other 

company of which BAS or BAI is or may become 

an affiliated person (together with the Applicants, 

the ‘‘Covered Persons’’). 

2Securities and Exchange Commission v. Banc of 

America Securities LLC and Banc of America 

Investment Services, Inc., Judgment against Banc of 

America Securities LLC and Banc of America 

Investment Services, Inc., 09 CIV 5170 (S.D.N.Y., 

entered June 9, 2009). 

Santa Barbara, Symphony and 

Tradewinds, the ‘‘Nuveen Advisers’’), 

Nuveen Investments, LLC (‘‘Nuveen 

Investments’’), KECALP Inc. 

(‘‘KECALP’’) and Merrill Lynch 

Ventures, LLC (‘‘Ventures’’) 

(collectively, ‘‘Applicants’’).1

DATES: Filing Date: The application was 

filed on June 3, 2009. Applicants have 

agreed to file an amendment during the 

notice period, the substance of which is 

reflected in this notice. 

HEARING OR NOTIFICATION OF HEARING: An 

order granting the application will be 

issued unless the Commission orders a 

hearing. Interested persons may request 

a hearing by writing to the 

Commission’s Secretary and serving 

applicants with a copy of the request, 

personally or by mail. Hearing requests 

should be received by the Commission 

by 5:30 p.m. on July 6, 2009, and should 

be accompanied by proof of service on 

applicants, in the form of an affidavit or, 

for lawyers, a certificate of service. 

Hearing requests should state the nature 

of the writer’s interest, the reason for the 

request, and the issues contested. 

Persons who wish to be notified of a 

hearing may request notification by 

writing to the Commission’s Secretary. 

ADDRESSES: Secretary, U.S. Securities 

and Exchange Commission, 100 F 

Street, NE., Washington, DC 20549– 

1090; Applicants: BAS, One Bryant 

Park, New York, NY 10036; BAI, CMA, 

BAIA, BACA, 100 Federal Street, 

Boston, MA 02110; CWAM, 227 West 

Monroe Street, Suite 3000, Chicago, IL 

60606; CMDI, One Financial Center, 

Boston, MA 02110; USTHFM, 225 High 

Ridge Road, West Building, Stamford, 

CT 06905; MLPFS, IQ, KECALP, 

Ventures, North Tower, 4 World 

Financial Center, New York, NY 10080; 

Roszel, 1700 Merrill Lynch Drive, 

Pennington, NJ 08534; and the Nuveen 

Advisers and Nuveen Investments, 333 

West Wacker Drive, Chicago, IL 60606. 

FOR FURTHER INFORMATION CONTACT: 

Emerson S. Davis, Senior Counsel, at 

202–551–6868, or Julia Kim Gilmer, 

Branch Chief, at 202–551–6821 

(Division of Investment Management, 

Office of Investment Company 

Regulation). 

SUPPLEMENTARY INFORMATION: The 

following is a temporary order and a 

summary of the application. The 

complete application may be obtained 

via the Commission’s Web site by 

searching for the file number, or an 

applicant using the Company name box, 

at http://www.sec.gov/search/ 

search.htm or by calling (202) 551– 

8090. 

Applicants’ Representations 

1. BAS, an indirect wholly owned 

subsidiary of Bank of America 

Corporation (‘‘BAC’’), is a full service 

U.S. investment bank and brokerage 

firm that provides a wide range of 

investment banking, and financial 

advisory services to corporate, 

institutional and individual clients. 

BAS is registered as an investment 

adviser under the Investment Advisers 

Act of 1940 (‘‘Advisers Act’’) and is 

registered as a broker-dealer under the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’). BAI is a wholly 

owned subsidiary of Bank of America, 

N.A. and also an indirect subsidiary of 

BAC. BAI is registered as an investment 

adviser under the Advisers Act and is 

registered as a broker-dealer under the 

Exchange Act. While BAS and BAI do 

not currently serve, and no existing 

company of which BAS or BAI is an 

affiliated person (other than the 

Applicants) currently serves, as 

investment adviser, depositor or 

principal underwriter for a registered 

investment company (‘‘RIC’’), or 

principal underwriter for any registered 

open-end investment company, 

registered investment trust (‘‘UIT’’) or 

face amount certificate company or 

employees’ securities companies 

(‘‘ESC’’, and together with RICs, the 

‘‘Funds,’’ and such services, the ‘‘Fund 

Servicing Activities’’), each may do so 

in the future. CMA, CWAM, BAIA, 

BACA, USTHFM, IQ, Roszel, the 

Nuveen Advisers and KECALP are 

registered as investment advisers under 

the Advisers Act and provide 

investment advisory or subadvisory 

services to Funds. Ventures provides 

investment advisory services to an ESC. 

CMDI, MLPFS and Nuveen Investments 

are registered as broker-dealers under 

the Exchange Act and serve as principal 

underwriters for certain Funds. Nuveen 

Investments also serves as depositor to 

certain UITs. 

2. On June 9, 2009, the United States 

District Court for the Southern District 

of New York entered a judgment, which 

included the Injunction, against BAS 

and BAI (‘‘Judgment’’) in a matter 

brought by the Commission.2 The 

Commission alleged in the complaint 

(‘‘Complaint’’) that BAS and BAI 

violated section 15(c) of the Exchange 

Act in connection with the marketing 

and sale of auction rate securities 

(‘‘ARS’’). The Complaint alleged that 

BAS and BAI misled customers 

regarding the fundamental nature and 

increasing risk associated with ARS that 

they underwrote, marketed and sold. 

Without admitting or denying any of the 

allegations in the Complaint, except as 

to jurisdiction, BAS and BAI consented 

to the entry of the Judgment that 

included, among other things, the entry 

of the Injunction and certain 

undertakings to take various remedial 

actions for the benefit of purchasers of 

certain ARS. 

Applicants’ Legal Analysis 

1. Section 9(a)(2) of the Act, in 

relevant part, prohibits a person who 

has been enjoined from engaging in or 

continuing any conduct or practice in 

connection with the purchase or sale of 

a security, or in connection with 

activities as an underwriter, broker or 

dealer, from acting, among other things, 

as an investment adviser or depositor of 

any registered investment company or a 

principal underwriter for any registered 

open-end investment company, 

registered unit investment trust, or 

registered face-amount certificate 

company. Section 9(a)(3) of the Act 

makes the prohibition in section 9(a)(2) 

applicable to a company, any affiliated 

person of which has been disqualified 

under the provisions of section 9(a)(2). 

Section 2(a)(3) of the Act defines 

‘‘affiliated person’’ to include, among 

others, any person directly or indirectly 

controlling, controlled by, or under 

common control, with the other person. 

Applicants state that BAS and BAI are 

or may be considered affiliated persons 

of each of the other Applicants within 

the meaning of section 2(a)(3). 

Applicants state that, as a result of the 

Injunction, they would be subject to the 

prohibitions of section 9(a). 

2. Section 9(c) of the Act provides that 

the Commission shall grant an 

application for exemption from the 

disqualification provisions of section 

9(a) of the Act if it is established that 

these provisions, as applied to 

Applicants, are unduly or 

disproportionately severe or that the 

conduct of the Applicants has been such 

as not to make it against the public 

interest or the protection of investors to 

grant the exemption. Applicants have 

filed an application pursuant to section 

9(c) seeking a temporary and permanent 

order exempting the Applicants and the 

other Covered Persons from the 

disqualification provisions of section 

9(a). 


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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Notices 28293 

3. Applicants believe they meet the 

standards for exemption specified in 

section 9(c). Applicants state that the 

prohibitions of section 9(a) as applied to 

them would be unduly and 

disproportionately severe and that the 

conduct of Applicants has been such as 

not to make it against the public interest 

or the protection of investors to grant 

the requested exemption from section 

9(a). 

4. Applicants state that the conduct 

alleged in the Complaint did not involve 

any of the Applicants acting in their 

capacity as investment adviser, subadviser, depositor or principal 

underwriter for any of the Funds. 

Applicants also state that to the best of 

their knowledge, none of the current 

directors and officers of the Applicants 

(other than BAS and BAI) or their 

employees that engage in Fund 

Servicing Activities (or any other 

persons in such roles during the time 

period covered by the Complaint) 

participated in the conduct alleged in 

the Complaint to have constituted the 

violations that provide a basis for the 

Injunction. Applicants further state that 

any personnel at BAS and BAI who 

participated in the conduct alleged in 

the Complaint to have constituted the 

violations that provide a basis for the 

Injunction have had no, and will not 

have any future involvement in the 

Applicants’ Fund Servicing Activities. 

5. Applicants state that the inability of 

the Applicants to engage in Fund 

Servicing Activities would result in 

potentially severe financial hardships 

for the Funds they serve and the Funds’ 

shareholders or unitholders. Applicants 

state that they will distribute written 

materials, including an offer to meet in 

person to discuss the materials, to the 

boards of directors of the Funds (the 

‘‘Boards’’), including the directors who 

are not ‘‘interested persons,’’ as defined 

in section 2(a)(19) of the Act, of the 

Funds and their independent legal 

counsel as defined in rule 0–1(a)(6) 

under the Act, if any, regarding the 

Injunction, any impact on the Funds, 

and the application. Applicants state 

that they will provide the Boards with 

all information concerning the 

Injunction and the application that is 

necessary for the Funds to fulfill their 

disclosure and other obligations under 

the Federal securities laws. 

6. Applicants also state that, if they 

were barred from providing Fund 

Servicing Activities to the Funds, the 

effect on their businesses and 

employees would be severe. Applicants 

state that they have committed 

substantial capital and resources to 

establishing an expertise in providing 

Fund Servicing Activities. Applicants 

further state that prohibiting them from 

providing Fund Servicing Activities 

would not only adversely affect their 

businesses (except for BAI and BAS) but 

would also adversely affect their 

employees who are involved in Fund 

Servicing Activities. Applicants also 

state that disqualifying KECALP and 

Ventures from continuing to provide 

investment advisory services to ESCs is 

not in the public interest or in 

furtherance of the protection of 

investors and would frustrate the 

expectations of eligible employees who 

invest in ESCs. Applicants state that it 

would not be consistent with the 

purposes of the ESC provisions of the 

Act to require another entity not 

affiliated with Merrill Lynch & Co., Inc., 

or BAC to manage the ESCs. 

7. Applicants state that several 

Applicants and certain of their affiliates 

have previously received orders under 

section 9(c), as described in greater 

detail in the application. 

Applicants’ Condition 

Applicants agree that any order 

granting the requested relief will be 

subject to the following condition: 

Any temporary exemption granted 

pursuant to the application shall be 

without prejudice to, and shall not limit 

the Commission’s rights in any manner 

with respect to, any Commission 

investigation of, or administrative 

proceedings involving or against, 

Covered Persons, including without 

limitation, the consideration by the 

Commission of a permanent exemption 

from section 9(a) of the Act requested 

pursuant to the application or the 

revocation or removal of any temporary 

exemptions granted under the Act in 

connection with the application. 

Temporary Order 

The Commission has considered the 

matter and finds that the Applicants 

have made the necessary showing to 

justify granting a temporary exemption. 

Accordingly, 

It is hereby ordered, pursuant to 

section 9(c) of the Act, that Applicants 

and any other Covered Persons are 

granted a temporary exemption from the 

provisions of section 9(a), solely with 

respect to the Injunction, subject to the 

condition in the application, from June 

9, 2009, until the Commission takes 

final action on their application for a 

permanent order. 

By the Commission. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–14006 Filed 6–12–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release Nos. 33–9037A; 34–60032A; IC– 

28757A; File No. 265–25] 

Investor Advisory Committee; Notice 

of Federal Advisory Committee 

Establishment; Correction 

In FR Doc. No. E9–13349, on page 

27359 for Tuesday, June 9, 2009, the 

link for sending electronic comments to 

the Commission was incorrectly stated 

in two places. The correct link reads as 

follows: (http://www.sec.gov/rules/ 

other.shtml). 

Dated: June 9, 2009. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–13934 Filed 6–12–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

Sunshine Act Meeting 

Notice is hereby given, pursuant to 

the provisions of the Government in the 

Sunshine Act, Public Law 94–409, that 

the Securities and Exchange 

Commission will hold a Closed Meeting 

on Friday, June 19, 2009 at 11 a.m. 

Commissioners, Counsel to the 

Commissioners, the Secretary to the 

Commission, and recording secretaries 

will attend the Closed Meeting. Certain 

staff members who have an interest in 

the matters also may be present. 

The General Counsel of the 

Commission, or his designee, has 

certified that, in his opinion, one or 

more of the exemptions set forth in 5 

U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) 

and 17 CFR 200.402(a)(3), (5), (7), 9(ii) 

and (10), permit consideration of the 

scheduled matters at the Closed 

Meeting. 

Commissioner Paredes, as duty 

officer, voted to consider the items 

listed for the Closed Meeting in a closed 

session. 

The subject matter of the Closed 

Meeting scheduled for Friday, June 19, 

2009 will be: institution and settlement 

of injunctive actions; institution and 

settlement of administrative 

proceedings; and other matters related 

to enforcement proceedings. 

At times, changes in Commission 

priorities require alterations in the 

scheduling of meeting items. 

For further information and to 

ascertain what, if any, matters have been 

added, deleted or postponed, please 

contact: 

The Office of the Secretary at (202) 

551–5400. 


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