SEC Division of Corporation Finance no-action letter: The Goldman Sachs Group, Inc.

,~~~~oExcy,~~ UNITED STATES g SECURITIES AND EXCHANGE COMMISSION ~n~ ~o~ WASHINGTON, D.C. 20549 '~MX,~,~ May 31, 2006 DIYISION OF CORPORATION FINANCE David B. Harms, Esq. Sullivan &Cromwell, LLP 125 Broad Street New York, NY 10004-2498 Re: In the Matter of Certain Auction Practices File No. HO-9954 Goldman, Sachs & Co.—Waiver Request of Ineligible Issuer Status under Rule 405 of the Securities Act Dear Mr. Harms: This is in response to your letter dated May 3, 2006, written on behalf of The Goldman Sachs Group, Inc. (Company) and its subsidiary Goldman, Sachs & Co. (GS&Co.), and constituting an application for relief from the Company and GS&Co. being considered "ineligible issuers" under Rule 405(1)(vi) of the Securities Act of 1933 (Securities Act). The Company and GS&Co. each request relief from being considered an "ineligible issuer" under Rule 405, due to the entry on May 31, 2006, of a Commission Order (Order) pursuant to Section 8A of the Securities Act and Section 15(b) of the Securities Exchange Act of 1934, naming GS&Co. as a respondent. The Order finds, among other things, that GS&Co. violated Section 17(a)(2) of Securities Act and requires that GS&Co. cease and desist from committing or causing any violations and any future violations of Section 17(a)(2) of the Securities Act. Based on the facts and representations in your letter, and assuming the Company and GS&Co. will comply with the Order, the Commission, pursuant to delegated authority has determined that the Company and GS&Co. have made a showing of good cause under Rule 405(2) and that the Company and GS&Co. will not be considered ineligible issuers by reason of the entry of the Order. Specifically, we determined under these facts and representations that the Company and GS&Co. have shown that the terms of the Order were agreed to in a settlement prior to December 1, 2005. Accordingly, the relief described above from the Company and GS&Co. being ineligible issuers under Rule 405 of the Securities Act is hereby granted. Any different facts from those represented or non-compliance with the Order might require us to reach a different conclusion. Sincerely,~ ~~~~ Mar y~K rl'rtz Chief, Office of Enforcement Liaison Division of Corporation Finance