SEC Division of Corporation Finance no-action letter: Merrill Lynch and Co., Inc. and Bank of America Corporation

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
February 11,2009 DIVISION OF
CORPORATION FINANCE
Kevin P. McEnery

Wilmer Cutler Pickering Hale and Dorr LLP

1875 Pennsylvania Avenue, NW

Washington, DC 20006

Re: In the Matter of Merrill Lynch Pension Consulting (File No. HO-10195) Regarding Merrill Lynch & Co., Inc. and Bank of America Corporation;.. Waiver Requests of Ineligible Issuer Status under Rule 405 of the Securities Act Dear Mr. McEnery:
This is in response to your letter dated February 3, 2009, written on behalf ofMerrill Lynch & Co., Inc. ("Company") and its parent Bank of America Corporation ("BAC") constituting an application for relief from the Company and BAC being considered "ineligible issuers" under Rule 405(l)(vi) of the Securities Act of 1933 ("Securities Act"). The Company and BAC both request relief from each being considered an "ineligible issuer" under Rule 405, due to the entry on January 30,2009, of a Commission Order ("Order") pursuant to Sections 203(e) and 203(k) ofthe Investment Advisers Act of 1940 ("Advisers Act"), naming Merrill Lynch, Pierce, Fenner & Smith, Inc. ("MLPFS") as the respondent. The Order finds, among other things, that MLPFS . violated Section 206(2) of the Advisers Act. Based on the facts and representations in your letter, and assuming the Company, BAC and MLPFS comply with the Order, the Commission, pursuant to delegated authority has determined that the Company and BAC have made a showing of good cause under Rule 405(2) and that the Company and BAC will not be considered ineligible issuers by reason ofthe entry ofthe Order. Accordingly, the relief described above from the Company and . BAC being ineligible issuers under Rule 405 of the Securities Act is hereby granted and the effectiveness ofsuch relief is as ofthe date ofthe entry ofthe Order. Any different facts from those represented or non-compliance with the Order might require us to reach a different conclusion. Sincerely, ?tla:terlO5fMtJ-g Chief, Office of Enforcement Liaison Division of Corporation Finance

WILMERHALE
Kevin P. Mdnery
+1 202 663 6596 (t)
+1 202 663 6363 (I) kevin.mcenery@wilmerhale.com February 3, 2009 By E-MAIL AND U.S. MAIL Chief, Office ofEnforcement Liaison Division ofCorporation Finance U.S. Securities and Exchange Commission 100 F Street, N,E. Washington, DC 20549 Re: In the Matter of Merrill Lynch Pension Consulting, File No. HO-I0195 Dear Ms. Kosterlitz:
We submit this application on behalfofour client Merrill Lynch & Co.~ Inc. ("Merrill") in connection with a contemplated settlement arising out ofthe above-entitled investigation by the Securities and Exchange Commission (the "Commission"). The contemplated settlement will result in the issuance by the Commission of an Order Instituting Administrative and Cease-and￾Desist Proceedings Pursuant to Sections 203(e) and 203(1<:) ofthe Investment Advisers Act of 1940, Making Findings, and Imposing Remedial Sanctions and a Cease-and-Desist Order as to Merrill Lynch, Pierce, Fenner & Smith Inc. (the "Proposed Order"), in which Merrill Lynch, Pierce, Fenner & Smith Inc. ("Merrill Lynch"), a direct wholly-owned subsidiary ofMerrill, is the only respondent. Merrill hereby requests, pursuant to Rule 405 promulgated under the Securities Act of 1933 (the "Securities Act"), 17 C.F.R. § 230.405, that the Commission determine that, for good cause shown, it is not necessary under the circumstances that Merrill and its parent Bank ofAmerica Corporation ("Bank ofAmerica") be considered an "ineligible issuer" under Rule 405. Merrill requests that this determination be effective upon the issuance ofthe Proposed Order. It is our understanding that the Staffofthe Commission's Division ofEnforcement does not object to the Division ofCorporation Finance providing the requested determination under Rule 405. BACKGROUND The Staffofthe Commission's Division ofEnforcement and Merrill Lynch have reached agreement on the terms of a settlement. Merrill Lynch has submitted an executed Offer of Settlement (the "Offer") in which it neither admits nor denies the findings ofthe Commission's Proposed Order but in which it consents to the entry ofthe Proposed Order. The Commission's Wilmer Cutler Pickering Hale and Dorr UP, 1875 Pennsylvania Avenue NW, Washingron, DC 20006 Baltimore Beijing Berlin Boston Brussels London Municl1 New York Northern Virginia Oxford Palo Alto Waltham Washington

WILMERHALE
February 3,2009
Proposed Order will address Merrill Lynch's conduct in connection with its pension consulting services advisory program.. In summary, the Commission will find that Merrill Lynch breached its fiduciary duty to certain ofits pension fund clients and prospective clients by misrepresenting and omitting to disclose material infonnation. More specifically, the Proposed Order will find that: (l) Merrill Lynch failed to disclose the facts creating the material conflict of interest in recommending clients use directed brokerage to pay hard dollar fees and in recommending the use of Merrill Lynch's transition management service; and (2) it made misleading statements to the clients ofone ofits offices in Florida regarding its manager identification process. In addition, the Proposed Order will find that Merrill: (1) as a result ofsuch conduct, violated Section 206(2) ofthe Investment Advisers Act of 1940 ("Advisers Act"); (2) failed reasonably to supervise its investment adviser representatives in the Florida office with respect to the provision ofadvisory services to its consulting services clients; and (3) violated Advisers Act Section 204 and Rule 204-2(a)(14) thereunder by failing to maintain records of the offer or delivery ofdisclosure statements. The Proposed Order also will: (a) censure Merrill Lynch; (b) require Merrill Lynch to cease-and￾desist from committing or causing any violations and any future violations ofAdvisers Act Sections 204 and 206(2), and Rule 204-2(a)(14) thereunder; and (c) require Merrill Lynch to pay a civil penalty of$1 million within 90 days ofthe issuance ofthe Proposed Order. Merrill has been a publicly traded company listed on the New York Stock Exchange and has been a reporting company under the Exchange Act. Merrill has identified itselfin filings with the Commission as a well-known seasoned issuer. On January 1, 2009, a wholly-owned subsidiary ofBank of America merged with and into Merrill, with Merrill continuing as the surviving corporation and a subsidiary ofBank ofAmerica. Bank ofAmerica is a publicly traded company listed on the New York Stock Exchange and is a reporting company under the Exchange Act. Bank ofAmerica has identified itselfin filings with the Commission as a well￾know issuer. Merrill Lynch is registered as an investment adviser under the Investment Advisers Act of 1940 and as a broker-dealer under the Exchange Act. Merrill and Bank ofAmerica are at this time the only issuers that are parents ofMerrill Lynch. DISCUSSION In 2005, the Commission revised the registration, communications, and offering processes under the Securities Act.] As part ofits refonn, the Commission added a new category ofissuer, i.e., a well-known seasoned issuer, that will be permitted to benefit to the greatest degree from the changes to the rules governing the offering process. The Commission defined a well-known Securities Offering Refonn, Securities Act Release No. 8591, Exchange Act Release No. 52,056, Investment Company
Act Release No. 26,993, 70 Fed. Reg. 44,722, 44,790 (Aug. 3,2005).

WILMERHALE
February 3, 2009 seasoned issuer as an issuer that is required to file reports pursuant to Section 13(a) or Section 15(d) ofthe Exchange Act and that satisfies other requirements, including the requirement that the issuer not be an ineligible issuer. The Commission also adopted rules permitting the use of free-writing prospectuses in registered offerings by issuers; including, but not limited to, well￾known seasoned issuers and other offering participants. Pursuant to Securities Act Rules 164 and 433, an issuer may use a free-writing prospectus only ifit is not an ineligible issuer? Securities Act Rule 405 makes an issuer ineligible when, among other things:
(vi) Within the past three years (but in the case ofa decree or order agreed to in a settlement, not before December 1, 2005), the issuer or any entity that at the time was a subsidiary ofthe issuer was made the subject of any judicial or administrative decree or order arising out of a governmental action that:
(A) Prohibits certain conduct or activities regarding, including future violations of, the anti-fraud provisions ofthe federal securities laws; (B) Requires that the person cease and desist from violating the anti-fraud provisions ofthe federalsecurities laws; or (C) Determines that the person violated the anti-fraud provisions of the federal securities laws. Securities Act Rule 405 also authorizes the Commission.to detennine, ''upon a showing ofgood cause, that it is not necessary under the circumstances that the issuer be considered an ineligible issuer." The Commission delegated the function ofgranting or denying such applications to the Director ofthe Division ofCorporation Finance.3

• 2 This request for reliefis being made not only for the purpose of continuing to qualify 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. 3 Rule 30-1 provides in relevant part that "[p]ursuant to the provisions of Public Law No. 87-592 .. ., the Securities and Exchange Commission hereby delegates, until the Commission orders otherwise, the following functions to the Director of the Division of Corporation Finance to be performed by him or under his direction by such person ... as may be designated from time to time by the Chairman of the Commission: [Securities Act Functions] (a) With respect to registration of securities pursuant to the Securities Act ... (10) To authorize the granting or denial of applications, upon a showing of good cause,

WIIMERHALE
February 3,2009
. Merrill therefore requests that the Commission or its delegate determine that it is not necessary for Merrill to be considered an ineligible issuer, now or in the future, on the following grounds:

1. The conduct to be addressed by the Proposed Order does not relate to
   disclosures and offerings of securities by Merrill or Bank of America. The Proposed Order will concern Merrill Lynch's conduct in connection with its pension consulting services advisory program.
2. A determination that Merrill or Bank of America will be an "ineligible
   issuer" would be disproportionately and unduly severe. A determination that Merrill or Bank ofAmerica will be an ineligible issuer as a result ofthe anticipated entry ofthe Proposed Order would be unduly and disproportionately severe, given the lack of anyrelationship between the findings in the Proposed Order involving Merrill Lynch and any disclosure or offering activity conducted by Merrill or Bank ofAmerica. Moreover, the anticipated settlement will be the result ofintensive negotiations between Merrill Lynch and the Division ofEnforcement. Its terms will have been carefully crafted to meet and balance the competing concerns of all involved. fu connection with the anticipated settlement, Merrill Lynch will pay a $1 million civil money penalty, will be censured, and will be ordered to cease and desist from violating the provisions ofthe Advisers Act listed above. Applying the designation ofineligible issuer to Merrill Lynch's parent issuers, with the consequences thereof, would, in effect, unfairly impose an additional punishment in excess ofthe agreed-upon settlement terms negotiated by Merrill Lynch in good faith.
3. Merrill Lynch has taken significant steps to ensure that the violative conduct
   found in the Proposed Order does not recur. The Commission will state in the Proposed Order that, in determining to accept Merrill Lynch's Offer, the Commission considered voluntary and significant remedial acts promptly undertaken by Merrill Lynch.

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fulight ofthe foregoing, Merrill believes that any determination that the contemplated Proposed Order will render it or Bank ofAmerica an ineligible issuer would be unwarranted, contrary to the public interest, and unnecessary for the protection ofinvestors, and that Merrill has shown good cause for a determination by the Commission, or its delegate, that Merrill and Bank of America will not be deemed to be ineligible issuers upon entry ofthe Proposed Order. that it is not necessary under the circwnstances that the issuer be considered an ineligible issuer as defined in Rule 405:' 17 C.F.R. § 200.30-1(a)(10).

WILMERHALE

February 3, 2009
PageS
Accordingly, Merrill respectfully urges the Commission, or its delegate, pursuant to Securities Act Rule 405 or Rule 30-1(a)(1 0), to determine, effective upon the issuance ofthe Proposed Order, that it is not necessary that Merrill or Bank ofAmerica be considered an ineligible issuer for any purpose under the Commission rules. Merrill previously has not sought or obtained such relief, but Bank ofAmerica has.4 If you have any questions regarding this request, please contact me at the above-listed number. Very truly yours, Cc: Jennifer S. Leete, Esq. Branch Chief Division ofEnforcement Bank ofAmerica Corporation (May 1, 2008), http://www.sec.gov/divisions/corpfin/cf￾noaction/2008/boac050108-405.pdf. 4