SEC Division of Corporation Finance no-action letter: Bear, Stearns & Co. Inc.

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C 20549
DIVISION OF
CORPORATION FINANCE October 3 1,2003
Dennis J. Block, Esq.
Cadwalader, Wickersham & Taft LLP
100 Maiden Lane
New York, New York 10038
Re: Bear, Steams & Co. Inc. -Waiver Request under Regulation A and Rule 505 of Regulation D Dear Mr. Block This is in response to your letter dated October 3 1,2003, written on behalf of Bear, Steams & Co. Inc. (the "Firm") and constituting an application for relief under Rule 262 of Regulation A and Rule 505(b)(2)(iii)(C) of Regulation D under the Securities Act of 1933. You requested relief from disqualifications from exemptions available urlder Regulation A and Rule 505 of Regulation D that qise, by ~irtyegf~the enw.,.today d 'kommission .I JiI of the injunction included in the Final Judgment in Securities and ~xchang";?
V. Bear, Stearns & Co. Inc. (S.D.N.Y.) (the "Final Judgment"). You also requested relief
under those pr&isions from disqualifications that arise by virtue of the entry of an order, judgment or decree of a U.S. state or territorial court addressing the same conduct and based on the same facts as the conduct and facts addressed in the complaint that resulted in the entry of the Final Judgment. - For purposes of this letter, we have assumed as facts the representations set forth in your letter. We also have assumed that the Firm will comply with the Final Judgment and any such state or temtorial court order, judgment or decree. On the basis of your letter, the Commission, pursuant to delegated authority, has determined that you have made a showing of good cause under Rule 262 and Rule 505(b)(2)(iii)(C) that it is not necessary under the circumstances to deny the exemptions available under Regulation A and Rule 505 of Regulation D by reason of the entry of the Final Judgment or any state or temtorial court injunction of the nature described above. Accordingly, the relief described above from the disqualifying provisions of Regulation A and Rule 505 of Regulation D is hereby granted. Sincerely, <./. Mauri Osheroff Associate Director, Regulatory Policy

CADWALADER

Cadwalader, Wickersham & Tuft LLP
100 Maiden he New York
New Yo& NY 10038 Chvlottc
Td: 212 504-6000 Waslungton
Fu.212 504-6666 London
Dennis J. Block
Direa Dial: (2 12) 504-5555
Direct Fax:(212) 504-5557
E-Mail: dblock@cwt.com
October 3 1,2003
BY FEDERAL EXPRESS
Gerald J. Laporte, Esq.
Chief, Office of Small Business Policy
Division of Corporation Finance
U.S, Securities and Exchange ,Commission ,- r- 3 .,<.'<'. ,,. I , I., r 450 Fifth Street, N.W., Room 3501 Washington, D.C. 20549-03 10 Re: In the Matter of Certain Analyst Conflicts of Interest, File No. HO-9479 Dear Mr. Laporte:
We submit this letter on behalf of our client, Bear, Steams & Co. Inc. ("BS&Co."), in connection with a settlement agreement (the "Settlement") arising out of a joint investigation by the Securities and Exchange Commission (the "Commission"), the New York Stock Exchange, Inc. (the "NYSE"), NASD Inc. ("NASD") and various U.S. state and territorial regulatory agencies (the "States") into research analyst conflicts of interest at BS&Co. and several other large investment banking firms. BS&Co. below requests, pursuant to Rule 262 of Regulation A and Rule 505(b)(2)(iii)(C) of Regulation D of the Commission promulgated under the Securities Act of 1933 (the "~ecurities Act"), a waiver of any disqualification from exemptions under Regulation A and Rule 505 of Regulation D that may be applicable to BS&Co. and any of its affiliates as a result of the entry of the Final Judgment (as defined below) and any related disqualifying order, judgment or decree of a state or territorial court addressing the same conduct as is addressed in the Complaint (as defined below). BS&Co. also requests that these waivers be granted effective upon entry of - the Final Judgment or such state or territorial court injunction. It is our understanding that the Division of Enforcement does not object to the grant of the requested waivers by the Division of Corporation Finance. '4

Gerald J. Laporte, Esq.
October 3 1,2003
BACKGROUND
The Commission, the NYSE, the NASD and the States have engaged in settlement discussions with BS&Co. in connection with the joint investigation described above. As a result of these discussions, the Commission filed a complaint (the "Complaint") on April 28, 2003 against BS&Co. in the United States District Court for the Southern District of New York (the "District Court") in a civil action captioned Securities and Exchange Commission v. Bear, Steams & Co. Inc., 03 CV 2937 (WHP). BS&Co. has executed a Consent of Defendant Bear, Steams &Co. Inc. (the "Consent") in which BS&Co. neither admits nor denies any of the allegations in the Complaint, except as to jurisdiction, but consents to the entry of a final judgment against BS&Co. by the District Court (the "Final Judgment"). The Final Judgment, among other things, enjoins BS&Co., directly or through its officers, directors, agents and employees, from violating rules cited in the Final Judgment. Additionally, the Final Judgment orders BS&Co. to make payments aggregating $80 million in settlement of the matters addressed in the Final Judgment and to comply with the undertakings set forth in the Final ~ud~ment.' , l1 ,- v - n Yo :D 1. ,,, 4 <#' 'A DISCUSSION BS&Co. understands that the entry of the Final Judgment could disqualify it and its affiliated entities from participating in certain offerings otherwise exempt under Regulation A and Rule 505 of Regulation D promulgated under the Securities Act, insofar as the Final Judgment may be deemed to cause BS&Ca to be subject to an order, judgment, or decree of a court of competent jurisdictionenjoining BS&Co. from engaging in or continuing to engage in any conduct or practice in connection with the purchase or sale of a security or arising out of the conduct of the business of an underwriter, broker or dealer. The Commission has the authority to waive the Regulation A and Rule 505 of Regulation D exemption disqualifications under a showing of good cause that such disqualifications are not necessary under the circumstances. See 17 C.F.R. $5 230.262 and 230.505(b)(2)(iii)(C). BS&Co. requests, on the following grounds, that the Commission waive any disqualifying effects that the Final Judgment may have under Regulation A and Rule 505 of Regulation D with respect to BS&Co. or its affiliates:

1. BS&Co.'S conduct addressed in the Final Judgment and alleged in the
   Complaint does not relate to offerings under Regulation A or Regulation D. BS&Co. is in the process of entering into settlement agreements relating to the activities referred to in the Complaint with the relevant state and territorial agencies (the ''State Settlement Agreements"). To the extent that any such State Settlement Agreement results in an injunction by a court of competent jurisdiction, BS&Co. intends this request to cover any resulting disqualifications under Regulation A and Rule 505 of Regulation D. I

Gerald J. Laporte, Esq.
October 31,2003
2. BS&Co. will undertake or has undertaken to improve and enhance its
compliance and surveillance policies and procedures in a manner reasonably designed to ensure compliance with the provisions of the Final Judgment, as outlined in the Term Sheet attached to the Final Judgment (the "Term Sheet").
3. The disqualification of BS&Co. from the exemptions under Regulation
A and Rule 505 of Regulation D would, we believe, have an adverse impact on third parties that have retained BS&Co. and its affiliates in connection with transactions that rely on these exemptions.
4. The disqualification of BS&Co. from the exemptions available under
Regulation A and Rule 505 of Regulation D would be unduly and disproportionately severe, given that: (i) the Final Judgment relates to activity which has already been addressed pursuant to recently adopted rules of the Commission, NYSE and NASD and pursuant to the Term Sheet; and (ii) the Commission staff has negotiated a settlement with BS&Co. and reached a satisfactory conclusion to this matter that will r~uire BS&Co. to make payments aggregating $80 million in settlement of the matters addressed irl the Final Jhdgment and wiH rqulre 'BS&Co. tomake feeriain, , t, )4 structural changes pursuant to the Term Sheet, as well as to make available to BS&Co.'s customers certain research prepared by third party research providers. In light of the foregoing, we believe that disqualification is not necessary, in the public interest or for the protection of investors, and that BS&Co. has shown good cause that relief should be granted. Accordingly, we respectfully request the Commission, pursuant to Rule 262 of Regulation A and Rule 505(b)(2)(iii)(C) of Regulation D, to waive, effective upon entry of the Final Judgment or any related disqualifying order, judgment or decree of a U.S. state or territorial court based on the same facts and addressing the same conduct as is addressed in the Complaint, the disqualification provisions in Regulation A and Rule 505 of Regulation D to the extent they may be applicable to BS&Co. and any of its affiliates as a result of the entry of the Final Judgment and any such order, judgment or decree.' 2 We note in support of this request that the Commission has, in other instances, granted relief under Rule 262 of Regulation A and Rule 505(b)(2)(iii)(C) of Regulation D for similar reasons. See, e.g., Credit Suisse First Boston Corporation, S.E.C. No-Action Letter (pub. avail. Jan. 29, 2002); Dain Rauscher, Incorporated, S.E.C. No-Action Letter (pub. avail. Sept. 27, 2001); Legg Mason Wood Walker, Incorporated, S.E.C. No-Action Letter (pub. - avail. June 11, 2001); In the Matter of Certain Market-Making Activities, S.E.C. No-Action Letter (pub. avail. Jan. 11, 1999); Stephens Incorporated, S.E.C. No-Action Letter (pub. avail. Nov. 23, 1998). NYLIBl 669723.4

Gerald J. Laporte, Esq.
October 3 1,2003'
If you have any questions regarding this request, please contact the undersigned at 2121504-5555. Sincerely, Dk-9 nis J. Bloc ""