SEC Division of Corporation Finance no-action letter: Deutsche Bank AG

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
January 9,2007 DIVISION OF
CORPORATION FINANCE
Mr. William R. Baker, I11
Latham & Watkins LLP
555 Eleventh Street, N.W., Suite 1000
Washngton, D.C. 20004-1 304
Re: In the matter of Auction Rate Securities Practices (HO-09954), Deutsche Bank, AG Waiver Request of Ineligible Issuer Status under Rule 405 of the Securities Act Dear Mr. Baker:
This is in response to your letter dated December 14,2006, written on behalf of your client Deutsche Bank AG (Company) and its subsidiary Deutsche Bank Trust Company Americas (DBTCA) and constituting an application for relief fiom the Company being considered an "ineligible issuer" under Rule 405(l)(vi) of the Securities Act of 1933 (Securities Act). The Company requests relief fiom being considered an ineligible issuer under Rule 405, due to the entry on January 9,2007, of a Commission Order (Order) pursuant to Section 8A of the Securities Act of 1933 (Securities Act) naming DBTCA as a respondent. The Order finds, among other things, that DBTCA caused violations of
Section 17(a)(2) of the Securities Act.
Based on the facts and representations in your letter, and assuming the Company and DBTCA will comply with the Order, the Commission, pursuant to delegated authority has determined that the Company has made a showing of good cause under Rule 405(2) and that the Company will not be considered an ineligible issuer by reason of the entry of the Order. Accordingly, the relief described above fiom the Company being an ineligible issuer under Rule 405 of the Securities Act is hereby granted. Any different facts fiom those represented or non-compliance with the Order might require us to reach a different conclusion. Mary Kosterlitz Chief, Office of Enforcement Liaison Division of Corporation Finance

William R. Baker Ill 555 Eleventh Street, N.W.. Suite 1000 Partner Washington, D.C. 20004-1 304 Direct Dial: (202) 637-1007 Tel: (202) 637-2200 Fax: (202) 637-2201 william.baker@lw.com www.1w.com FIRMIAFFILIATE OFFICES Brussels New York Chicago Northern Virginia Frankfurt Orange County Hamburg Paris Hong Kong San Diego December 14,2006 London San Francisco Los Angeles Shanghai Milan Silicon Valley Moscow Singapore Munich Tokyo VIA FEDERAL EXPRESS New Jersey Washington, D.C. File No. 0391 15-0001 Mary Kosterlitz, Esq. Chief of the Office of Enforcement Liaison Division of Corporation Finance Securities and Exchange Commission 100 F Street, N.E. Washington, D.C. 20549 Re: In the Matter of Auction Rate Securities Practices, File No. HO-09954 Dear Ms. Kosterlitz:
We are writing on behalf of our client, Deutsche Bank AG, and its subsidiary, Deutsche Bank Trust Company Americas ("DBTCA," and, collectively, "DBAG). DBTCA is a respondent in the above-referenced investigation commenced by the Securities and Exchange Commission (the "Commission"). The investigation relates to certain practices involving auction-rate securities. Two other auction agents are also respondents in this proceeding and, together with DBTCA, are negotiating a settlement with the Division of Enforcement. We hereby request, pursuant to amended Rule 405 under the Securities Act of 1933 (the "Securities Act"), that the Division of Corporation Finance, on behalf of the Commission, determine that DBAG shall not be considered an "ineligible issuer" as defined in Rule 405 as a result of the proposed order to be entered in the above-referenced investigation, as described below. We request that ths determination be made effective upon entry of the proposed order. It is our understanding that the Division of Enforcement does not object to such determination. BACKGROUND In connection with the above-referenced proceeding, which was brought pursuant to Section 8A of the Securities Act, DBTCA and the Division of Enforcement have reached an agreement in principle to settle the matter as described below, and DBTCA expects to submit to the Commission an offer of settlement in which, for the purpose of this proceeding, it will consent to the entry of an order by the Commission (the "Order") without admitting or denying the matters set forth in the Order (except as to the jurisdiction of the Commission and the subject matter of the proceeding).

Mary Kosterlitz, Esq.
December 14,2006
In the Order, if approved, the Commission will make findings, without admission or denial by DBTCA, that DBTCA caused violations of Section 17(a)(2) of the Securities Act in connection with certain practices relating to auction-rate securities. Based on these findings, the Order will require DBTCA to cease and desist from committing or causing any current or future violations of Section 17(a)(2) and to pay a civil money penalty of $750,000. DISCUSSION Under a number of Securities Act rules that became effective on December 1, 2005, a company that qualifies as a "well-known seasoned issuer" as defined in Rule 405 will be eligible, among other things, to register securities for offer and sale under an "automatic shelf registration statement," as so defined, and to have the benefits of a streamlined registration process under the Securities Act. Companies that qualify as well-known seasoned issuers will be entitled to conduct registered offerings more easily and with substantially fewer restrictions. Pursuant to Rule 405, however, a company cannot qualify as a well-known seasoned issuer if it is an "ineligible issuer." Similarly, the new Securities Act rules will permit an issuer and other offering participants to communicate more freely during registered offerings by using free￾writing prospectuses, but only if the issuer is not an ineligible issuer.' Thus, being an ineligible issuer will disqualify an issuer from a number of significant benefits under the new rules. Rule 405 defines "ineligible issuer" to include any issuer of securities with respect to which the following is true: "Within the past three years . . .,the issuer or any entity that at the time was a subsidiary of the issuer was made the subject of any . . . administrative . . . order arising out of a governmental action that . . . [rlequires that the person cease and desist from violating the anti-fiaud provisions of the federal securities laws." Notwithstanding the foregoing, paragraph (2) of the definition provides that an issuer "shall not be an ineligible issuer if the Commission determines, upon a showing of good cause, that it is not necessary under the circumstances that the issuer be considered an ineligible issuer." The Commission has delegated authority to the Division of Corporation Finance to grant waivers from any of the ineligibility provisions of this definiti~n.~ 1 Being an ineligible issuer will disqualify an issuer under the definition of "well-known seasoned issuer", thereby preventing the issuer from using an automatic shelf registration statement (see new Rule 405) and limiting its ability to communicate with the market prior to filing a registration statement (see new Rule 163). In addition, being an ineligible issuer will disqualify an issuer, whether or not it is a well-known seasoned issuer, under new Rules 164 and 433, thereby preventing the issuer and other offering participants from using fiee-writing prospectuses during registered offerings of its
securities. Consequently, this request for relief is being made not only for the purpose of qualifling as a well-known seasoned issuer but for all purposes of the definition of "ineligible issuer" in Rule 405 -i.e., for whatever purpose the definition may now or hereafter be used under the federal securities laws, including SEC rules. 2 See 17 C.F.R. 8 200.30-1. See also note 2 15 in Release No. 33-8591 (July 19,2005).

Mary Kosterlitz, Esq.
December 14,2006
LATHAMaWATKI NSLLP
The Order might be deemed to be an administrative order of the kind that would result in DBAG becoming an ineligible issuer for a period of three years after the Order is entered. This result would preclude DBAG from qualifjmg as a well-known seasoned issuer and having the benefit of automatic shelf registration and other provisions of the new rules for three years. This would be a significant detriment for these entities. DBAG is a frequent issuer of registered securities that offers and sells securities under a shelf registration statement in both one-off transactions and in an ongoing medium-term note program. For DBAG, the shelf registration process provides an important means of access to the U.S. capital markets, and these markets are an important source of funding for the company's global operations. Consequently, automatic shelf registration and the other benefits available to a well-known seasoned issuer will be significant for DBAG. As described above, Rule 405 authorizes the Commission to determine that a company shall not be an ineligible issuer, notwithstanding the fact that the company becomes subject to an otherwise disqualifjmg administrative order. We believe that there is good cause, in their case, for the Commission to make such a determination with respect to the Order on the following grounds.

1. Disqualification of DBAG as an ineligible issuer is not warranted given
   the nature of the violation found in the Order. The alleged conduct relates primarily to auction agents' conduct of auctions of auction rate securities in ways that were not adequately disclosed in the disclosure documents for the securities or that did not conform to the procedures disclosed in those documents. The Order does not challenge DBAG's disclosures in their own filings with the Commission, nor does it allege fraud in connection with DBAG's offerings of their own securities.
2. DBAG has a strong record of compliance with the securities laws and
   voluntarily cooperated with the Division of Enforcement's inquiry into this matter. DBAG also has implemented policies and procedures designed to help prevent recurrence of the conduct that is the subject of the Order.
3. Disqualification of DBAG as an ineligible issuer would be unduly and
   disproportionately severe. The Order will require DBTCA to pay a civil money penalty of $750,000. Making DBAG an ineligible issuer would result in an additional penalty beyond what the Order requires. In light of the foregoing, we believe that disqualification of DBAG as an ineligible issuer is not necessary under the circumstances, either in the public interest or for the protection of investors, and that DBAG has shown good cause for the requested relief to be granted. Accordingly, we respectfully request that the Division of Corporation Finance, on behalf of the Commission, pursuant to Rule 405, determine that it is not necessary under the circumstances that DBAG be an "ineligible issuer" within the meaning of Rule 405 as a result of the Order. We request that this determination be made for all purposes of the definition of

Mary Kosterlitz, Esq.
December 14,2006
"ineligible issuer," however it may now or hereafter be used under the federal securities laws and the rules thereunder. If you have any questions regarding this request, please contact the undersigned at (202) 637-1 007. Sincerely, William R. Baker I11 of LATHAM & WATKINS LLP cc: Kenneth R. Lench, Esq. (Division of Enforcement)