SEC Division of Corporation Finance no-action letter: Wells Fargo & Company

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

DIVISION OF June 8, 2009 CORPORATION FINANCE
Mr. David S. Huntington
Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, New York 10019-6064 Re: In the Matter ofEvergreen Investment Management Company LLC, CB-2389) Wells Fargo & Company - Waiver Request of Ineligible Issuer Status under Rule 405 of the Securities Act Dear Mr. Huntington:
This is in response to your letter dated June 4,2009, written on behalf of Wells Fargo & Company (Company) and its subsidiaries Evergreen Investment Management Company, LLC (ElMCO) and Evergreen Investment Services, Inc. (EIS) and constituting an application for relief from the Company being considered an "ineligible issuer" under Rule 405(1 )(vi) ofthe Securities Act of 1933 (Securities Act). The Company requests relief from being considered an "ineligible issuer" under Rule 405, due to the entry on June 8, 2009, of a Commission Order (Order) pursuant to Sections 15(b), and 21(e) of the Securities Exchange Act of 1934 (Exchange Act), Sections 203(e), and 203(k) ofthe Investment Advisers Act of 1940 (Advisers Act), and Sections 9(b) and 9(f) of the Investment Company Act of 1940 (Investment Company Act) naming EIMCO and EIS as respondents (Respondents). The Order finds, among other things, that:
EIMCO violated and thatEIS aided and abetted and caused EIMCO's violations of Section 206(2) of the Advisers Act; EIMCO violated Section 204A of the Advisers Act; EIS violated
Section 15(f) of the Exchange Act; that EIS violated Rule 22c-l(a) promulgated under the
Investment Company Act; EIMCO aided and abetted and caused violations of Section 17(a)(2) of the Investment Company Act; EIMCO violated Section 34(b) of the Investment Company Act and that EIS violated Section 17(a) of the Exchange Act and Rule 17a-4(b)(4) thereunder. Based on the facts and representations in your letter, and assuming the Company and the Respondents 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 from the Company being an ineligible issuer under Rule 405 ofthe 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, !Cco-t;:1.. ?f1~ '0 Chief, Office ofEnforcement Liaison Division of Corporation Finance

PAUL. WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
TELEPHONE (212) 373-3000
FACSIMILE (212) 757·3990
LL.OYD K. GARRISON (1946#1991 )
RANDOLPH E. PAUL ( 1946-1956)
SIMON H. RIFKrNO (1950-1995,
LOUIS $. WEISS ( 1927-19S0,
JOHN F. WHARTON (, 927-1977)
WRITER'S DIRECT DIAL NUMBER
(212) 373-3124
WRITER'S DIRECT FACSIMIL.E
(212) 492-0124
WRITER'S DIRECT E·MAIL ADDRESS dhuntington@paulweiss.com 200t K STREET, NW WASHINGTON, DC 20006-1047 TELEPHONE (202) 223-7300 FACSIMILE (2021 223-7420 FUKOKU SEIMEI BUILDING 2-2 UCHISAIWAICHO 2-CHOME CHIYODA-KU. TOKYO 100-0011, JAPAN TE:LEPHONE (8t-3) 3597·8101 FACSIMILE (B1-31 3597-8120 UNIT 3601. FORTUNE PLAZA OFFICE TOWER A NO.7 DONG $ANt-lUAN ZHONGL,U CHAO YANG DISTRICT eElJlNG 100020 PEOPLE'S REPUBLIC OF CHINA TELEPHONE (86·10) 5828-6300 FACSIMILE (86-10) 6530-9070/9080 12TH FL.OOR, HONG KONG CLUB BUILDING 3A CHATER ROAD. CENTRAL HONG KONG TELEPHONE (852) 2536·9933 FACSIMILE (852) 2536-9622 ALDER CASTL.E 10 NOBLE STREET LONDON EC2V 7JU, U.K. TELEPHONE (44 20) 7367 1600 FACSIMILE (44 20) 7367 1650 June 4,2009 MATTHEW W, ABBOTT MARK H. A1...COTT ALLAN J. ARFFA ROBERT A. ATKINS JOHN F. BAUGHMAN LYNN B. SAYARO DANIEL J. BELLER MITCHELL L. BERG MARK S. BERGMAN BRUCE BIRENBOUd H. CHRISTOPHER BOEHNING ANGELO BONVINO HENK BRANDS JAMES L.. BROCHIN RICHARO J. BRONSTEIN DAVID W. BROWN SUSANNA M. BUERGEL PATRICK S. CAMPBELL· JEANETTE K. CHAN YYONNE Y. F. CHAN LEWIS R. CLAYTON JAY COHEN KELLEY A. CORNISH CHARLES E. DAVIDOW DOUGLAS R. DAVIS THOMAS V. DE LA BASTIDE III ARIEL J. DECKELBAUM JAMES M. DUBIN ANDREW J. EHRLICH LESLIE GORDON FAGEN MARC FALCON E PETER L. FELCHER ROSERTO FINZI PETER E. FISCH ROBERT C. FLEDER MARTIN FLUPw1ENBAUM ANDREW J. FOLEY HARRIS B. FREIDUS MANUEL S. FREY KENNETH A. GALLO MICHAEL £. GERTZMAN PAUL D. GINSBERG ERIC S. GOLDSTEIN ERIC GOOOISON CHARLES H. GOOGE, JR. ANDREW G. GORDON BRUCE A. GUTENPLAN GAINES GWATHMEY, 111 ALAN S. HALPERIN CLAUDIA HAMMERMAN GERARD E. HARPER BRIAN S. HERMANN ROBERT M. HIRSH MICHELE HIRSHMAN JOYCE S. HUANG MEREDITH J. KANE ROBERTA A. KAPLAN BRAD S. KARP JOHN C. KENNEDY ALAN W. KORNBERG DANIEL J. KRAMER

• NOT "OMITTED TO TH!: NEW YORK BAA
  DAVID K. LAKHOHIR JOHN E. LANGE DANIEL J. LEFFELL XIAOYU GREG L.IU JEFFREY O. MARELL JULIA TARVER MASON MARCO V. MASOTTI EDWIN S. MAYNARD DAYID W. MAYO TOBY S. MYERSON JOHN E. NATHAN CATHERINE NYARADY ALEX YOUNG K. OH JOHN J. O'NEIL KELLEY O. PARKER ROBERT P. PARKER MARC E. PERLMUTTER MARK F. POMERANTZ VALERIE E. RADWANER CAREY R. RAMOS CARL L. REISNER WALTER G. RICCIAROI WAL.TER RIEMAN RICHARD A. ROSEN ANOREWN.ROSENSERG PETER J. ROTHENBERG JACQUELINE P. RUBIN RAPHAEL M. RUSSO JEFFREY O. SAFERSTEIN JEFFREY e. SAMUELS DALE M. SARRO TERRY E. SCHIMEK KENNETH M. SCHNEIDER ROBERT B. SCHUMER JAMES H. SCHWAB STEPHEN J. SHIMSHAK DAVID R. SICULAR MOSES SILYERMAN STEVEN SIMKIN JOSEPH J. SIMONS MARILYN SOBEL TARUN M. STEWART ERIC ALAN STONE AIDAN SYNNOTT ROBYN F. TARNOFSKY JUDITH R. THOYER DANIEL J. TOAL MARK A. UNDERBERG LlZA M. VELAZQUEZ MARIA T. VULLO LAWRENCE G. WEE THEODORE V. WELLS. JR. BETH A. WILKINSON STEVEN J. WILLIAMS LAWRENCE I. WITOORCHIC JORDAN E. YARETT KAYE N. YOSHINO TONG YU TRACEY A. ZACCONE T. ROBERT ZOCHOWSKI. JR FIRST CLASS MAIL AND EMAIL Mary J. Kosterlitz, Esq. Chief, Office of Enforcement Liaison Division of Corporation Finance, Stop 3628 Securities and Exchange Commission 100 F Street, N.E. Washington, DC 20549 Re: In the Matter of Evergreen Investment Management Company, LLC and Evergreen Investment Services. Inc. (File No. 8-2389) - Waiver Request under Rule 405 Dear Ms. Kosterlitz:
  We submit this letter on behalfof Evergreen Investment Management Company, LLC ("EIMCO"), Evergreen Investment Services, Inc. ("EIS," and, together with EIMCO, the "Settling Firms") and Wells Fargo & Company ("Wells Fargo"), in connection with a contemplated settlement between the Settling Firms and the Securities and Exchange Commission (the "Commission") in the above referenced administrative proceedings. The conduct at issue in the contemplated settlement occurred prior to December 31, 2008, which is the date the Settling Firms became indirect subsidiaries of Wells Fargo. Through its direct and indirect subsidiaries, Wells Fargo offers banking, brokerage, advisory and other financial services to institutional and individual customers worldwide. Doc#: USI :5602337v7

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
Mary J. Kosterlitz, Esq.
We hereby request, pursuant to Rule 405 ("Rule 405") promulgated under the Securities Act of 1933, as amended (the "Securities Act"), that the Division of Corporation Finance (the "Division"), acting pursuant to delegated authority, grant a waiver to Wells Fargo with respect to any "ineligible issuer" status (as defined in Rule
405) that may arise as a result ofthe entry ofthe Order (as defined below) or any related
state order, judgment or decree. \ We request that this waiver be made effective upon entry ofthe Order. BACKGROUND The Settling Firms have engaged in settlement discussions with the staffofthe Division of Enforcement in connection with the administrative proceedings referenced . above, which will be brought pursuant to Sections 15(b)(4) and 21C ofthe Securities Exchange Act of 1934, as amended (the "Exchange Act"), Sections 203(e) and 203(k) of the Investment Advisers Act of 1940, as amended (the "Advisers Act"), and Sections 9(b) and 9(t) ofthe Investment Company Act of 1940, as amended (the "Investment Company Act"). As a result ofthese discussions, the Settling Firms have submitted an offer of settlement, pursuant to which they have consented to the entry of an Order ofthe Commission (the "Order"). Under the terms ofthe offer of settlement, the Settling Finns will neither admit nor deny any ofthe findings in the Order, except as to jurisdiction. The Order relates to alleged violations of the federal securities' laws by the . Settling Firms as a result of the overstatement of the net asset value of the Evergreen Ultra Short Opportunities Fund (the "Ultra Fund"), the selective disclosure of certain information concerning the Ultra Fund to some but not all Ultra Fund shareholders, certain prohibited securities transactions involving the Ultra Fund and the failure to comply with certain record-keeping requirements. Under the terms of the Order, the Commission will:
(i) Censure EIMCO under Section 203(e) of the Advisers Act and censure EIS under Section 15(b)(4) of the Exchange Act; (ii) Require EIMCO to cease and desist from committing or causing any violations or any future violations bfSections 204A and 206(2) ofthe Advisers Act and Sections 17(a)(l) and 34(b) of the Investment Company Act and Rule 22c-l(a) promulgated thereunder; (iii) Require EIS to cease and desist from committing or causing any violations or any future violations of Section 206(2) ofthe Advisers Act and Sections 15(t) and Section 17(a) ofthe Exchange Act, Rule 17a-4(b)(4) promulgated under the Exchange Act and Rule 22c-l(a) promulgated under the Investment Company Act; The Settling Firms expect to enter into a settlement with the Massachusetts Securities Division arising from matters related to the activity described in the Order. To the extent that any such settlement may result in an order, judgment or decree that would cause an ineligibility under Rule 405, this request also covers any such resulting ineligibility. .

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
. Mary J. Kosterlitz, Esq.

1. The conduct ofthe Settling Finns addressed in the Order occurred prior to
   Wells Fargo's acquisition of the Settling Finns and does not relate to activities undertaken by Wells Fargo with respect to its own disclosure as an issuer of securities or in any of its own disclosure in its filings with the Commission.
2. The Settling Finns and their affiliates have a strong record of compliance
   with the securities laws. In addition, the Settling Finns voluntarily cooperated with the Division of Enforcement in the investigation of this matter and agreed to pursue a comprehensive settlement at the request of the DivisionofEnforcement. Under the tenns of the contemplated settlement, the Settling Firms have agreed to undertake certain remedial and corrective measures related to compliance oversight.
3. Being considered an ineligible issuer will preclude Wells Fargo from
   taking advantage ofmany ofthe benefits described in the Offering Reform Release and will leave the company at a significant disadvantage to its peer firms and hinder necessary and periodic access to the capital markets through significantly increased time, labor and cost of such access.
4. The disqualification of Wells Fargo from the benefits described in the
   Offering Reform Release is unduly and disproportionately severe, given that the Commission staff has negotiated a settlement with the Settling Firms and reached a satisfactory conclusion to this matter.
5. The Division has previously exercised its waiver authority in comparable
   situations.
   In light of the foregoing, we respectfully submit that it is not necessary under the circumstances that Wells Fargo be considered an ineligible issuer as a result ofthe entry of the Order or any related state order, judgment or decree, and that it has shown good cause that relief should be granted. Please do not hesitate to contact me at (212) 373-3124 regarding this request. Sincerely, Dotut'ld I.),i j '/.-. David S. Huntington cc: Charles Neal, Wells Fargo & Company

Robert L. Lee, Wells Fargo & Company