SEC Division of Investment Management staff letter: W.R. Huff Asset Management Co., L.P.

10 AUG 1994

P "B l' Our Ref. No. 93-172-CC

W.R. Huff Asset
RESPONSE OF THE OFFICE OF CHIEF COUNSEL Management Co., L. P. DIVI SION OF INVESTMENT MANAGEMENT File No. 801-32541 Your letter of May 26, 1994 requests our assurance that we

would not recommend enforcement action to the Commission under

the Investment Advisers Act of 1940 ("Advisers Act") if W.R. Huff

Asset Management Co., L. P. ( "WRH"), a registered investment

adviser, does not treat certain of its limited partners as

advisory representatives for purposes of the recordkeeping

requirements of Rule 204-2 (a) (12) under the Advisers Act. ~/ WRH is a Delaware limited partnership with two general

partners, two limited partners who are also employees of WRH, and

five individual limited partners each of whom owns, holds, or

controls less than five percent of WRH' s i imi ted partnership

interests ("Outside Limited Partners"). You state that the

Outside Limited Partners are passive investors; they do not

participate in formulating investment decisions for WRH' s

advisory clients and do not receive any advance information

regarding WRH' s investment decisions or securities transactions

for clients. The outside Limited Partners' access to WRH's

offices has been, and will continue to be, strictly limited.

Al though one outside Limited Partner and relatives of two Outside

Limited Partners are WRH advisory cl ients, you state that WRH has

full investment discretion to trade securities on behalf of these

(a~d all of its) advisory clients, and that clients receive no

advance information regarding proposed purchases or sales of any

securi ties. lj

Rule 204-2(a) (12) requires each registered investment

adviser to maintain records of securities transactions of its

advisory representatives, which the rule defines to include "any

Å/ With certain exceptions not relevant here, Rule 204-2(a) (12)

requires registered investment advisers to maintain records

of every transaction in securities in which the adviser or

any advisory representative thereof has or acquires a direct or indirect beneficial interest. £/ One outside Limited Partner reviews WRH' s general ledger quarterly for all Outside Limited Partners. The ledger

contains WRH's financial records and a list of advisory

clients, but does not include any information about

securities held in client portfolios or transactions effected or to be effected for clients.

• 2
  partner" of the adviser. ~/ The Commission adopted Rule 204 2 (a) (12) as a means of preventing "scalping" which it described a~ a practice "whereby an investment adviser, or any person who

obtains information concerning a securities recommendation being

made by such investment adviser prior to the dissemination of

such information, trades on the anticipated short-run market

acti vi ty which may ensue from the issuance by the adviser of the securities recommendations." ~/

You state that the outside Limited Partners are analogous to

an incorporated investment adviser's non-controlling

shareholders, who are not included within the definition of

advisory representative unless they also have another

relationship with the adviser that is specified in the rule.

Because the Outside Limited Partners have no other relationship

wi th WRH, and do not receive or have access to advance

information about WRH i S investment decisions or trading

activities, you believe that it would be consistent with the

purposes of the rule to treat the Outside Limited Partners like

their shareholder counterparts and not require WRH to maintain

records of their securities transactions. 2/

~/ Other persons included wi thin the def ini tion of "advisory representative" include the adviser i s directors and off ice" s, and those employees who participate in making investment recommendations or obtain information about

investment recommendations prior to the effective

dissemination thereof; and any of the following persons who

obtain information concerning securities recommendations

prior to the effective dissemination thereof: (i) persons in

a control relationship to the adviser, (ii) any affiliated

person of such control person, and (iii) any affiliated

person of such affiliated person.

~/ See Investment Advisers Act Release Nos. 203 (Aug. 11, 1966)

and 436 (Feb. 14, 1975) (releases adopting and amending Rule

204-2 (a) (12)). We note that the rule was intended to address other conflicts of interests in addition to

scalping. See American Syndicate Advisors (pub. avail.

Sept. 29, 1986) and Cortland Financial Group, Inc. (pub.

avail. Sept. 26, 1985) (no-action relief denied

notwi thstanding the unlikelihood of scalping because records

potentially could reveal soft dollar arrangements or other

brokerage practices that might create a conflict of interest) . 2/ You also state that relief is appropriate because there is

little practical risk of scalping in the high yield bond

market (in which WRH specializes) because (1) the price of

these securities generally does not fluctuate much, and (2)

• 3
  You also point out that the Commission recently sought to

equalize the treatment of limited partners and shareholders under

the Investment Company Act of 1940 ("1940 Act"), recognizing that

they are similarly situated. Section 2(a) (3) (D) of the 1940 Act

defines affiliated person to include any "partner" of another

person. The Commission recently adopted Rule 2a3-1 under the

1940 Act to except limited partners from this definition if the

sole reason for the affiliation arises from being a limited

partner investor. ~/ We are persuaded that the same reasoning

underlying the adoption of Rule 2a3-1 applies in the

circumstances you describe.
Accordingly, on the basis of the facts and representations

in your letter, we would not recommend enforcement action to the

Commission under Rule 204-2(a)
(12) if WRH does not maintain

records of the outside Limited Partners' securities transactions.

This response expresses the Division's position on enforcement

action only and does not purport to express any legal conclusions

on the issues presented.

2.-. (i.-fo '~-l$ d: A~ (l- wu Lu - Uv Barbara Chretien-Dar Senior counsel

the Outside Limited Partners cannot participate in the high

yield bond market because the securities often are

restricted in accordance with Rule 144A under the Securities

Act of 1933. We disagree. While high yield bonds may be less susceptible to scalping than other types of securities, the potential for abuse still exists. The prices of these securi ties can be highly volatile and may fluctuate in response to sizeable purchases and sales.

§/ See Investment Company Act Release No. 19658 (Aug. 25, 1993). The rule does not provide an exception for a limited partner of an investment company that is affiliated by

virtue of any other relationship described in Section

2 (a) (3), such as a 5 percent or greater ownership stake in the company.

Investment Advisers Act of 1940 SULLIVAN & CROMWELL Rule 204-2(a) (12) NEW YORK TELEPHONE: 12121 558'~000

TELEX' 6269" (INTERNATIONAL) 127816IDOMESTIC)

C"'BLE ADDRESS: LADYCOURT. NEW YORK I¿ef f!At~wf~/lJ/~/OOOJ¡ - ¿J¡98 ,...CSIMILE:(212) sse-35e8 025 BROAD STREET) (212) 558-3792 1250 P"'RK ..VENUE) 250 PARK "'VENUE, NEW YORK 10177-0021

1701 PENNSYLV..NI.. "'VE., N.W., W..SHINGTON, D.C. 20006-5605

~ SOUTH "LOWER STREET, LOS "'NGELES 90071-2901

8, PLACE VENDÓME.75001 PARIS
ST. OL..VE'S HOUSE,91 IRONMONGER L"'NE, LONDON ECZV 8EY

101 COLLINS STREET. MELBOURNE 3000

2-1. MARUNOUCHI I'CHOME. CH'YODA-KU. TOKYO 100

3602 GLOUCESTER TOWER, II PEDDER STREET. HONG KONG

May 26, 1994

ACT .. AA
By Hand SECON
RULE Office of the Chief Counsel, Q 04 -& Co.) ( ~) Division of Investment Management, PULIC Securities and Exchange Commission, AVAILABILIT (?- 10-- '1i￾450 Fifth Street, N.W. Washington, D. C. 20549. Re: W.R. Huff Asset Manaqement Co.. L.P.

Dear Sirs:

On behalf of our client W. R. Huff Asset Management

Co., L.P., a Delaware limited partnership ("WRH"), and on

behalf of any persons that may from time to time be limited

partners of WR, we hereby respectfully request that the staff (the "Staff") of the Securities and Exchange

Commission (the "Commission") confirm to us that, based on

the facts set forth in this letter, certain limited partners

of WR that own, hold or control less than five percent of the outstanding limited partner interests of WR should not

be treated as "advisory representatives" pursuant to Rule

.' 204-2 (a) (12) under the Investment Advisers Act of 1940, as amended (the "Act"), and that therefore the Staff would not

recommend enforcement action to the Commission if WRH does

not maintain the records of securities transactions of such

Office of the Chief Counsel -2 limited partners as is required for the securities

transactions of advisory representatives pursuant to Rule

204-2 (a) (12) .
I. Background Information

WR is currently one of the leading managers of

high yield debt securities in the United states and is

registered as an investment adviser under the Act with its

principal place of business at 30 Schuyler Place,

Morristown, New Jersey. WRH is a limited partnership with

two general partners (the II General Partners") including Mr. William R. Huff, two limited partners who are also employees

of WR with an aggregate partnership interes~ of less than nine percent (the II Employee Limited Partners") * and five

individuals who each own a limited partnership interest of

less than five percent (the II outside Limited Partners" and,

together with the Employee Limited Partners, the II Limi ted Partners. ). WR is the successor to a New York limited

partnership organized in 1984. In 1984, the outside Limited

Partners were brought in to provide capital to fund the

operations of WR until WR became self-supporting. Three

• One of the two Employee Limited Partners will retire

this year, after which WR will treat him as an Outside

Limited Partner, and WR undertakes that all of its

undertakings with respect to the other outside Limited

Partners will apply to the Employee Limited Partner

upon his retirement.

250 LAN01/76821.05

Office of the Chief Counsel -3 of the Outside Limited Partners, one of whom is currently

the Reviewing Limited Partner (as defined below), had an

existing business relationship with Mr. Huff. These three

Outside Limited Partners in turn brought in the remaining

outside Limited Partners (the II Additional outside Limited Partners" ). None of the General Partners, Employee Limited

Partners or staff of WRH has or has ever had any personal,

social or business relationship, nor has ever even met or

spoken with, these Additional outside Limited Partners.

The Outside Limited Partners of WRH are entirely

passive investors. According to the terms of the Agreement

of Limi tp1 Partnership governing WR, the General Par~ners have the exclusive right to manage the business of the

partnership to the complete exclusion of the Limited

Partners. In fact, the outside Limited Partners have never

participated in the management of WR in any respect and, in

particular, have not participated in the formulation of

investment decisions to buy or sell securities on behalf of

WR's investment management clients and have not obtained

information (either in advance or after the fact) concerning

WR's investment decisions or trading activities (including

any transaction reports or client account statements). As a'

condition of the relief requested hereby, WRH will undertake

to continue to exclude the Outside Limited Partners from the

250 LAN01/7óS21.05

Office of the Chief Counsel -4 process of formulating and executing WR' s securities

investment decisions and from receiving any client

information.
One of the Outside Limited Partners (the

"Reviewing Limited Partner") receives WR's general ledger for review on a quarterly basis on behalf of the other

Outside Limited Partners. This ledger contains WR' s

financial records and also includes a list of its investment

management cl ients and the fees received from each such

client, but contains no information concerning securities

held in the clients' portfolios or the securities trading

activities conducted on behalf of WR's clients.

The Reviewing Limited Partner came to fulfill that

function not by any explicit written agreement, but rather

for practical reasons: (i) the Reviewing Limited Partner

was principally responsible for bringing in as Limited

Partners the Additional Outside Limited Partners, (ii) the

Reviewing Limited Partner had prior business relationships

with both Mr. Huff and the Additional Outside Limited

Partners and (iii) the Reviewing Limited Partner is a

certified public accountant, (M CPA") and therefore qualified

to review WR's general ledger.
WR understands that the Reviewing Limited Partner no longer personally reviews the general ledger. Instead,

250 LAN01/7óS21.05

Office of the Chief Counsel -5 he refers the general ledger to another CPA (the

• Independent CPA.) for such review. The outside Limited
  Partners pay the Independent CPA for their pro rata share of her fees. The outside Limited Partners (other than the

Reviewing Limited Partner) do not receive the general ledger

or any summary, excerpt or other report thereof of any kind.

They receive only their quarterly distributions of profits

from WR's operations. As a condition to the relief

requested hereby, WR will undertake to continue to provide

the Reviewing Limited Partner with only the type of

information he has previously received; the other outside

Limited Partners will continue to receive only their

quarterly distributions of profits.
One of the outside Limited Partners and relatives

of two of the outside Limited Partners are al so WRH cl ients .

As with WR's other clients, the investment management

agreements with these clients provide that WRH has full

investment discretion and authority with respect to the

trading of securities in their respective accounts. These

clients receive monthly statements which list the securities

owned in their respective accounts, their cost basis and

current market prices. These clients are not consulted

prior to the purchase or disposition of any security, nor

250 LAN01/76821.05

Office of the Chief Counsel -6 are they provided with information concerning such

transactions prior to their effective execution. As a

condition of the relief reqúested hereby, WR will undertake

to continue to provide these clients with no more than the

type of information they have previously received.

II. Discussion

A. Relief Requested

Absent the relief sought herein, pursuant to Rule

204-2(a) (12) (A) of the Act, the outside Limited Partners

would be deemed to be II advisory representatives" solely

because they are limited partners. An advisory

representative may engage in transactions in securities in

which such advisory representative has, or by reason of such

transaction acquires, a direct or indirect beneficial

ownership C- Securities Transactions"). Pursuant to Rule

204-2 (a) (12) of the Act, an investment adviser is required to maintain records of Securities Transactions of its advisory representatives unless the transactions are effected in accounts over which neither the adviser nor any advisory representative has any direct or indirect influence or control or the transactions are in securities which are direct obligations of the United states (all Securities Transactions other than such excepted transactions, the

• Personal Securities Transactions.).
  250 LAN01/76821.0S

Office of the Chief Counsel -7
We believe that the definition of advisory

representative in Rule 204-2 (a) (12) should be interpreted to

exclude the outside Limited Partners of WR. We do not believe that requiring WR to maintain records of all of the

outside Limited Partners' Personal Securities Transactions

would further the underlying purposes of Rule 204-2 (a) (12) . On behalf of our client WR, we request that the Staff

confirm to us that the outside Limited Partners should not

be treated as "advisory representatives" pursuant to Rule

204-2 (a) (12) under the Act, and that therefore the Staff

would not recommend enforcement action to the Commission if

WR does not maintain the records of Personal Securities Transactions of such Outside Limited Partners as is required

for the Personal Securities Transactions of advisory

representatives pursuant to Rule 204-2 (a) (12) . WR has in the past and will continue in the future to maintain the records required pursuant to Rule

204-2 (a) (12) with respect to the Personal Securities Transactions of the General Partners and the Employee

Limited Partners. The relief requested herein would apply

only to the Outside Limited Partners. In addition, WRH will

undertake to continue to exclude the Outside Limited

Partners from the process of formulating and executing WRH' s

250 LAN01/7681.05

Office of the Chief Counsel -8 investment decisions and trading activities and from

receiving any information related thereto.
B. Rule 204-2 (a) (12)
Rule 204-2 (a) (12) of the Act requires that all

advisers maintain a record of every Personal Securities

Transaction of the investment adviser or of any advisory

representative of such investment adviser.

Rule 204-2 (a) (12) (A) defines advisory representative to include (1) any partner, officer or director of the investment adviser; (2) any employee who makes any recommendation, who participates in the determination of which recommendation shall be made, or whose functions or duties relate to the determination of which recommendation shall be made; (3) any employee who, in connection with his duties, obtains any information concerning which securities are being recommended prior to the effective dissemination of such recommendations or of the information concerning such recommendations; and (4) any control person of the investment adviser or any affiliated person of such control person who obtains information concerning securities recommendations being made by such investment adviser prior to the effective dissemination of such recommendations or of the information concerning such recommendations. 250 LANoi/7682i .05

Office of the Chief Counsel -9
Absent the relief sought herein, the Outside

Limi ted Partners would be deemed advisory representatives of

WR for no other reason than because they are 1 imi ted partners of WR. WR would therefore be required to maintain records of the Outside Limited Partners' Personal

Securi ties Transactions. The Outside Limited Partners do

not fall wi thin the definition of advisory representative

under Rule 204-2 (a) (12) (A) in any other respect.

C. Analysis of Rule 204-2 (a) (12)

Rule 204-2(a)
(12) was adopted pursuant to the

authori ty granted the Commission in Sections 204, 206 (4) and

211(a) pf the Act. Generally, Section 204 of the Act

requires every investment adviser to make, keep and preserve

for such periods, such records and reports as the Commission

by its rules and regulations may prescribe as necessary or

appropriate in the public interest or for the protection of

investors. Section 206 (4) prohibits any investment adviser

from engaging in any act, practice, or course of business

which is fraudulent, deceptive or manipulative and gives the

Commission the authority, by rules and regulations, to

define and prescribe means reasonably designed to prevent

such fraudulent, deceptive and manipulative acts, practices

and courses of business. Section 211 (a) gives the Commission authority to make, issue, amend and rescind such

250 LAN01/76821.05

Office of the Chief Counsel -10 rules and regulations as are necessary or appropriate to the

exercise of the functions and powers conferred upon it under

the Act.

Rule 204-2 (a) (12) was adopted in order to "assist

the Commission in determining whether a further rule to

prohibit scalping is necessary...." Adoption of Amendment

to Rule 204-2, Investment Advisers Act Release No. 203,

(1966-1967 Transfer Binder) Fed. Sec. L. Rep. (CCH) ~ 77,401, at 82,712 (Aug. 11, 1966). "Scalping," as defined by the Commission in a release which amended Rule 204-2 (a) (12) and adopted Rule 204-2 (a) (13) in 1975, "is a practice whereby an investn ~nt adviser, or any person who obtains information concerning a securities recommendation being made by such

investment adviser prior to the dissemination of such

information, trades on the anticipated short-run market

activity which may ensue from the issuance by the advisor of

the securities recommendation. ". Investment Advisers Act

Release No. 436 (the "Amending Release"), (1974-1975

Transfer Binder) Fed.Sec.L.Rep. (CCH) ~ 80,113, at 85,116-17

(Feb. 29, 1975). The Commission also stated in the Amending

Release that Rule 204-2 (a) (12) has

• The United states Supreme Court, in S. E. C. v. Capital Gains Research Bureau. Inc., 375 U.S. 180 (1963), found

scalping to be a fraudulent and deceptive practice

within the meaning of Section 206 of the Act.

250 LAN01/76821.05

Office of the Chief Counsel -11 served as a deterrent to the practice of scalping since

it requires all advisory representatives (i.~., persons

who may have information concerning advisory

recommendations prior to dissemination) to report all

of their securities transactions to their affiliated

advisory firms on a regular basis. These reports are,

moreover, subject to examination by representatives of

the Commission. It is necessary and important,

therefore, that records of securities transactions be

maintained for all persons who obtain information

concerning advisory recommendations prior to the

issuance and dissemination of such recommendations.

Amending Release at 85,117.

As indicated in the Amending Release, the

Commission views sub-paragraphs (12) and (13) of Rule 204 2 (a) as complementary with their primary purpose being to

prevent scalping On the basis of information concerning

securities recommendations made available to advisory

representatives prior to the effective dissemination of such

information. The Commission stated that since information

effectively disseminated to advisory clients and other

intended users II is no longer suitable as a basis for engaging in scalping,. it is not necessary for an adviser to

maintain records of securities transactions of persons who

receive information concerning a securities recommendation

only contemporaneous with or subsequent to the effective

dissemination of such information. To clarify these points,

the Amending Release amended Rule 204-2 (a) (12) and added Rule 204-2 (a) (13). The amendment to Rule 204-2 (a) (12) 250 LAN01/76821.05

Office of the Chief Counsel -12 carved out from the definition of II advisory representative"

those employees, controlling persons of investment advisers,

affiliated persons of such controlling persons or affiliated

persons of such affiliated persons who obtain information

with respect to the investment adviser's securities

recommendations after the effective dissemination of such

information.
Rule 204-2 (a) (13) of the Act prescribes the same record keeping requirements for Personal Securities

Transactions of investment advisers and advisory

representatives II where the investment adviser is primarily engaged in a business or ~usiness~s other than advising

registered investment companies or other advisory clients."

Rule 204-2 (a) (13), however, limits the record-keeping requirements in the case of partners, officers and

directors, as well as employees, controlling persons and

affiliates, to those persons who have some relationship to

the investment advisory business performed by the registered

investment adviser or who obtain information concerning

investment recommendations prior to the effective

dissemination of such information.

In conformity with the Commission's policy in

adopting Rule 204-2 (a) (12), the relief requested hereby is

grounded On the Outside Limited Partners' actual lack of

250 LAN01/7óS21.05

Office of the Chief Counsel -13 access to information concerning investment decisions or

trading activities of WR and the resultant lack of risk of

scalping by them. As was noted above, the Outside Limited

Partners of WR are entirely passive investors: ( i) they have not, do not and cannot participate in management nor in

the formulations of investment decisions to buy or sell

securities on behalf of WRH's investment management clients

and (ii) each holds less than five percent of the total

partners ' capital of WR. Furthermore, there is no issue as to the Outside Limited Partners obtaining information

concerning WRH's investment decisions and trading activities

prior to the effective disseminati In of such information;

they never get such information. While one Outside Limited

Partner and relatives of two Outside Limited Partners are

WR clients and, as such, receive monthly statements of their portfolio positions, these statements only reflect

investment decisions and trading activities that have

already occurred in the previous month. Also, while the Reviewing Limited Partner receives WR's general ledger for

review on a quarterly basis on behalf of the other outside

Limited Partners, the general ledger contains no information

concerning securities held in the clients' portfolios or the

securities trading activities conducted on behalf of WRH

t clients.
250 LAN01/7681.05

Office of the Chief Counsel -14 The Staff has issued interpretive letters

exempting the reporting of Personal Securities Transactions

by advisory representatives in circumstances in which such

advisory representatives had no prior knowledge or access to

information about portfolio transactions of an investment

adviser or affiliated investment adviser. For example, in

Connecticut General Pension Services Inc. (publicly

available June 21, 1982) ("Connecticut General"), the Staff

advised Connecticut General that it would not recommend

action against Connecticut if it failed to maintain Personal

Securities Transactions reports for certain directors,

offic~rs and employees of Connecticut Geneyal who did not

prepare, have duties relating to or obtain advance

information regarding certain investment advice provided by

an affiliated investment adviser with respect to specific

investments by accounts used by Connecticut General. * Also, in Prudential Insurance Co. of America (publicly available June 3, 1977) ("Prudential"), the staff provided a similar no-action letter to Prudential, which was subj ect to the reporting requirements of Rule 204-2 (a) (13) as opposed

• Connecticut General limited its own advice with respect
  to the accounts to advice regarding general types of

investments of a similar nature, but not regarding specific securities. 250 LAN01/76821.05

Office of the Chief Counsel -15 to Rule 204-2 (a) (12) , * with respect to certain officers and employees who allocated the. funds of pension plan cl ients to

different Prudential accounts, but who were not in a

posi tion to engage in scalping because they did not participate in or have access to information regarding the

decisions with respect .to the publicly-traded securities

held by these accounts.
In addition to the lack of prior access to

information concerning investment decisions described above,

there is little practical risk of scalping abuse by the

outside Limited Partners in the high yield fixed income

securities in ihich WRH specializes, even if they ~ere to

• As mentioned above, the Commission views sub-paragraphs

(12) and (13) of Rule 204-2 (a) as complementary with

the same primary purpose - to prevent scalping.

See also TransAmerica Advisors, Inc. (publicly

available November 4, 1988), in which the staff

explained its modified position in The Boston Company,

Inc. (publicly available April 27, 1987) ("TBC") as

compared to Pioneering Management Corporation (publicly

available February 27, 1985 ("Pioneering"). The Staff

granted no-action relief in Pioneering for advisory

representatives' transactions in shares of open-end

funds, but limited this relief in TBC to "unaffiliated

open-end funds," because of its concern that advisory

representatives of an adviser managing a fund's

portfolio securities, or of an investment adviser

affiliated with that adviser, who have the ability to

gain access to information about impending portfol io transactions involving securities for which there is an

active secondary market, could misuse confidential

information.
250 LAN01/7681.05

Office of the Chief Counsel -16 gain prior access to information concerning WRH's investment

or trading decisions. Several factors reduce this risk. High yield fixed income securities are fUndamentally

different from equities in their susceptibility to scalping.

The securities generally are denominated in units of $1,000

face value. Except in the rare distressed or bankruptcy

situation, these securities do not trade more than a few

dollars above or below face value regardless of news about

the issuing company. Instead, the most significant determinant of bond prices is prevailing interest rates.

Unlike equities , it is highly unl ikely that information

concerning the investmp,ts of any single market participant

will significantly impact the price of the securities when

the information is finally disclosed. Thus, advance

information about such investments is of little or no value.

Another factor is that the high yield fixed income securities market is dominated by institutions. Many issues are traded in compliance with Rule 144A of the Securities Act of 1933, as amended, in which individuals like the outside Limited Partners cannot participate because they are not · qualified institutional buyers" Under the Rule. In the high yield markets available to the public, the II round lot" size trade presently is roughly $5 million. Even large public issues are thinly traded on a day to day basis by a 250 LAN01/76821.05

Office of the Chief Counsel -17 relatively smaii number of specialized brokers and the

trades themselves are rarely reported on any organized

exchange. Few individuals can trade at this level and the

transactions costs of an · odd lot- size trade would more

than offset any price change that could be expected based on

advance information of investment decisions or trading activities of an investment adviser such as WRH. In other words, it is extremely difficult if not impossible for an individual to engage in scalping in the high yield debt market. The Staff has issued no-action letters with

respect to the reporting of Per~Jnal Securities Transactions

by advisory representatives in circumstances in which there

is an insufficient market effect from the securities

investment recommendations made by the adviser. For

example, in Connecticut General, the Staff noted not only

the advisory representatives' lack of knowledge of the

specific securities to be purchased or sold by the accounts

for which such advisory representatives recommended general

types of investments, but also the fact that "amounts being

invested or disinvested by the accounts as a result of such

recommendations are unlikely to have an effect upon the

market prices of the securities purchased or sold sufficient

250 LAN01/76821.05

Office of the Chief Counsel -18 to permit such advisory representatives to engage in

, scalping' . "
The Staff has noted that "where there is not

a trading market for the securities recommended by the

adviser and the possibility of 'scalping' by an 'advisory

representative' does not exist, the purpose of Rule 204 2 (a) (12) is not served by requiring the advisory representative to maintain a record of his or her personal

securi ties transactions. II See Connecticut General. Other letters to substantially similar effect with respect to the

existence of a trading market are Massachusetts Financial

Services Company, (publicly available Oc~ober 6, 1992):

Lipper Analytical Services, Inc. (publ icly ava ilable June 5. 1990); TransAmerica Advisors, Inc. (publicly available

November 4, 1988); Joshua, Lauren & Co. Inc. (publicly

available October 11, 1988): and The Colonial Group, Inc.

(publicly available March 10, 1988).

The Staff has granted relief from Rule

204-2 (a) (12) on the basis that the potential for the abuse

which the rule was designed to monitor and prevent was not

present in particular situations. We submit that the same

reasoning should apply to the situation of the Outside

Limited Partners of WR. Because the Outside Limited

Partners do not participate in the management of WRH, do not

250 LAN01/76821.0S

Office of the Chief Counsel -19 control its General Partners, do not participate in the

formulation of securities investment decisions and have no

information concerning such securities investment decisions, the opportunities for self-dealing, scalping and the other types of abuse targeted by Rule 204-2 (a) (12) are not present in the context of transactions by WRH's Outside Limited

Partners and the recordkeeping and reporting requirements of

Rule 204-2(a) (12) should not be applied to them. Where, as

in the case of the Outside Limited Partners, the advisory

representative receives no information with respect to the

securities investment decisions of the investment adviser,

there is an effective barrier to scalping and oth~r improper

trading practices and the recordkeeping requirements of the

rule are no longer necessary.

In addition, although WRH is organized as a limited partnership, the outside Limited Partners are, in most respects, similar to shareholders of any investment adviser under the Act that is organized in corporate form. Unlike shareholders, however, who often enj oy the right to vote on the affairs of the corporation, the outside Limited Partners have no abil i ty whatsoever to control or bind WR. Yet, unless a shareholder is also an officer, director or employee of or in a control relationship to the investment adviser, or an affiliated person of such controlling person 250 LAN01/76821.05

Office of the Chief Counsel -20 or an affiliated person of such affiliated person, such

shareholder is not included in the definition of advisory

representative in Rule 204-2(a) (12) (A) of the Act. However,

as the term "partner" in Rule 204-2 (a) (12) (A) of the Act may

be broadly construed to encompass both general and 1 imi ted partners, the outside Limited Partners would be included in

the definition of advisory representative.

We bel ieve that the issue of access to trading

information and the applicability of related record keeping

requirements should not turn on the mere form of

organization of the entity. If WRH were organi zed as a

corporation rather than as a 1 imi ted partnership and the

outside Limited Partners had corresponding economic

interests in such corporation, they would not be subj ect to

the requirements of Rule 204-2 (a) (12) of the Act unless they were officers, directors, employees or controlling persons

of such corporation. None of the Outside Limited Partners

has powers analogous to officers or directors of

corporations or is an employee of or in a control

relationship to WR. The Outside Limited Partners should

not be deemed to be · advisory representatives" of WR merely

because they are partners with limited rights -- rights that

as a matter of law prohibit them from taking part in the

management and control of the 1 imi ted partnership and by

250 LAN01/76821.0S

Office of the Chief Counsel -21 contract limit them even further. Indeed, the outside

Limited Partners have fewer rights in respect of the affairs

of WR than common stockholders with equity investments of

similar proportion in a corporation because common

stockholders are entitled to vote in the election of

directors.
C. Analoqy to Investment Company Act of 1940

In another context (in this case relating to the substantive provisions of the Investment Company Act (the II ICA" ) and not only to a recordkeeping requirement such as Rule 204-2 (a) (12) of the Act), the Staff has granted relief to persons with less than five percent 1imited partnership interests from the prohibitions against principal transactions under Section 17 of the Investment Company Act.
Section 17 (a) of the ICA provides in part that, except for
certain transactions, it is unlawful for any II affiliated person- of a registered investment company or any affiliated

person of such person to knowingly sell to such registered

investment company any security or other property.

Similarly, Section 17 (d) of the ICA makes it

unlawful for any affiliated person of a registered

investment company or any affiliated person of such person

acting as principal to effect any transaction in which the

registered investment company is a joint or a joint and

250 LAN01/7óS21.05

Office of the Chief Counsel -22 several participant with such person or persons in

contravention of such rules and regulations as the

Commission may prescribe. Rule i 7d-1 of the ICA prohibits,

with certain exceptions, an affiliated person of any

registered investment company from participating in any

• joint enterprise or other joint arrangement or profit

sharing plan- with a registered investment company unless

the Commission issues a formal order permitting such joint

enterprise, arrangement or plan.

section 2(a) (3) of the ICA defines, in relevant
part, an "affiliated person" of another person to mean: "(A)
any p~rson directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; . (C) any person directly or indirectly controlling, controlled by, or under common control with such other person; (D) any officer, director, partner, copartner, or employee of such other person: (E) if such person is an investment company, any investment adviser thereof . . . ." The definition of

• affiliated person- in Section 2 (a) (3) of the ICA is similar
  to the definition of II advisory representative" in Rule 204 2 (a) (12) (A) of the Act in that it also provides for differential treatment of limited partners and shareholders

• limited partners are always deemed affiliated persons

250 LAN01/7óS21.05

Office of the Chief Counsel -23 whereas shareholders must own five percent or more of the

outstanding voting securities of such other person.

The Commission has issued a number of orders

pursuant to section 6 (c) exempting from the section 2 (a) (3) definition of affiliated persons limited partners of

investment companies of investment advisers thereof who hold

less than five of the interests in such entities organized

as limited partnerships. In ICA cases, applicants for an

exemption from the section 2 (a) (3) def ini tion have made contentions analogous to those made by us in this letter

arguing that the question of affiliation and the

applicability of related prohibitions should not turn on the

mere form of organization of the entity, that limited

partners should not be deemed to be II affiliated persons" of

a registered investment company merely because they are

partners with limited rights -- rights that as a matter of

law prohibit them from taking part in the management and

control of the limited partnership and which as a matter of

cOntract are even more restricted -- and that an exemption

would place transactions entered into by holders of less

than five percent of the limited partner interests of an

investment company On a footing more equal with investments

by holders of less than five percent of the shares of

affiliated persons of such investment company.

250 LAN01/76821.05

Office of the Chief Counsel -24 since 1976, the Commission has issued over forty

orders providing essentially this type of relief, thus

putting persons with less than five percent limited

partnership interests on equal footing with their

shareholder counterparts. Among the more recent letters,

~ Technology Funding Medical Partners I, L. P., Investment

Company Release No. 19183 (December 28, 1992) (less than

five percent limited partners treated like less than five

percent shareholders for purposes of section 2 (a) (3) of the ICA); Previously Owned Partnerships Income Fund-92,

Investment Company Release No. 19099 (November 16, 1992)

(same); Community Inver ~ment Partners II, L. P., Investment

Company Release No. 19004 (October 6, 1992) (same); The

Goldman Sachs Group, L.P., Investment Company Release No.

18994 (October 1, 1992) (same); Panther Partners, L.P.,

Investment Company Release No. 18213 (June 25, 1991) (same);

Renaissance Capital Partners II, Ltd., Investment Company

Release No. 18312 (September 13, 1991) (same); Renaissance

Capital Partners II, Investment Company Release No. 18174

(May 30, 1991) (same); and Equus Investments II, L.P.,

Investment Company Release No. 18011 (February 20, 1991)

(same) .
Indeed, the exemption for limited partners with

less than five percent partnership interests from the

250 LAN01/76821.05

Office of the Chief Counsel -25 def~nition of affiliated person in Section 2 (a) (3) of the ICA had become so routine and the force of the arguments in

support thereof so compelling that the Commission adopted,

effective September 30, 1993, Rule 2a3-1 of the ICA, which

excepts from the definition of affiliated person in section

2 (a) (3) those limited partners of limited partnership investment companies that are affiliated persons solely

because they are 1 imi ted partners. See Investment Company

General Partners Not Deemed Interested Persons; Investment

Company Limited Partners Not Deemed Affiliated Persons,

Investment Company Release No. 19658 (August 25, 1993), 58

FR 45834 (August 31, 1993) (ador ;ing release). Rule 2a3-1

of the ICA was proposed to codify the prior Commission

orders, thus giving the limited partners the same treatment

as shareholders for purposes of the affiliated person

definition, i.g., if a limited partner directly or

indirectly owns, controls or holds with the power to vote,

less than five percent of the outstanding voting interests

of the limited partnership investment company, the

investment adviser, or the principal underwriter, then the

limited partner would not be an affiliated person of such

persons Under Section 2(a) (3) (A) of the ICA. This permits a

limited partnership investment company to engage in

transactions with its limited partners and their affiliated

250 LAN01/76821.0S

Office of the Chief Counsel -26 persons to the same extent as if the investment company were

organized as a corporation, thereby making it easier for

investment companies desiring to use the 1 imi ted partnership form to do so.

In its proposing release, the Commission, after

recognizing the disparity in treatment between limited

partners of a limited partnership investment company and

shareholders of a corporate investment company, stated that:

There appears to be no reason to treat limited partners

and shareholders of an investment company differently

under the affiliated transactions provisions of the

(ICA). Limited partners, like shareholders, are passive investors in the investment company, and where

neither type of investor owns more than five percent of

the voting securities, there is lit~le, if any,

potential . for overreaching. *

We believe that the exemptions to the Section

2 (a) (3) definition of affiliated persons granted to the less than five percent limited partners of limited partnership

investment companies, now codified in Rule 2a3-1 of the ICA,

are analogous to the relief we request from the Rule 204 2 (a) (12) of the Act definition of advisory representatives and provide support for the requested relief.

• Investment Company General Partners Not Deemed

Interested Persons; Investment Company Limited Partners

Not Deemed Affiliated Persons, Investment Company

Release No. 18868 (July 28, 1992), 58 FR 34726 (August

6, 1992) (proposing release).

250 LAN01/76821.05

Office of the Chief Counsel -27 D. Undertakinqs

As a condition to the relief requested hereby from

the record keeping requirements of WR pursuant to Rule 204 2 (a) (12) of the Act with respect to the Personal Securities Transactions of the outside Limited partners of WRH, WR

will undertake to continue to maintain the records required

pursuant to such Rule with respect to the Personal

Securi ties Transactions of the General Partners and the Employee Limited Partners.

Pursuant to these record keeping requirements, WR will maintain and enforce its written policies and procedures that involve regular reporting and rev"ew of Personal Securities Transactions. Among other things, WRH has policies that require: (i) the Employee Limited Partners to submit prior written requests for authorizations to trade in their personal accounts, (ii) approval from a designated compliance officer for any Personal Securities Transactions prior to a trade, (iii) the disclosure to WRH of all brokerage accounts maintained by the General Partners and Employee Limited Partners, (iv) the Employee Limited Partners to provide WRH with signed authorizations for the broker to provide WR with copies of all trade confirmations, monthly statements and year-end summaries (if such summaries are produced), (v) the review by a designated 250 LAN01/76821.05

Office of the Chief Counsel -28 senior compliance officer of WRH of such confirmations,

statements and summaries, (vi) the maintenance by WRH of

complete files of such confirmations, statements and

summaries and (vii) each of the General Partners and the

Employee Limited Partners to acknowledge in writing that he

has read and understands the policies and procedures of WR concerning Personal Securities Transactions and to agree to

comply with them. In addition, WRH will continuously

monitor these policies and procedures to ensure their

efficacy. Finally, although WR does not have an internal

education program, employees are regularly required to

attend seminars for investment advisers which include

discussions of conflicts of interest that may be present in

particular situations and give guidance as to what types of

information present the potential for abuse.

As a further condition to the relief requested

hereby, WR will undertake to continue to exclude the outside Limited Partners (including the retiring Employee

Limited Partner) from the process of formulating and

executing WR's securities investment decisions and from

receiving any trading information. Pursuant to such

undertaking, WR will continue to maintain and enforce policies and procedures reasonably designed to prevent the

250 LAN01/76821.05

Office of the Chief Counsel -29 Outside Limited Partners (including the retiring Employee

Limi ted Partner) from obtaining trading information. The offices of WR allow no access to the public and are secured by key pad entry and alarm systems. The portfolio position and trading activity records of WR are maintained only in the offices of WR, in locked file cabinets and restricted computer files. During the last five years, the Reviewing Limited

Partner has been to WRH's offices only twice, and then only

with prior appointments. The other Outside Limited Partners

have never been to WR's offices and no Outside Limited

Partner has ever had access to WRH's portfolio position and

trading activity records.

WR will undertake to continue I imi ting access by the Outside Limited Partners to WR's offices. While it is unlikely that there will be any future meetings with the Reviewing Limited Partner or the other outside Limited Partners, WR undertakes that any such meetings will be conducted off site. WR's General Partners and employees will continue to refrain from discussing portfolio positions or trading activities with the outside Limited Partners at these meetings or otherwise. WR will continue to keep its portfolio position and trading activity records secure and will not allow any access to the records by the Outside 250 LAN01/76821.05

Office of the Chief Counsel -30 Limited Partners. The outside Limited Partners, other than

the Reviewing Limited Partner, will continue to receive only

their quarterly distributions of profits.

As a further condition to the relief requested

hereby, WR will undertake to continue to provide the Reviewing Limited Partner with only the type of information

he has previously received: the general ledger, which

ledger contains the financial records of WRH and also

includes a list of its investment management clients and the

fees received from each such client, but which contains no

information concerning securities held in the clients'

portfolios or the securities trading activities of WRH.

III. Conclusion

In light of the foregoing, we request that the

Staff advise us that the Outside Limited Partners should not

be treated as "advisory representatives" pursuant to Rule

204-2 (a) (12) solely because they are limited partners of WR and that therefore the Staff would not recommend enforcement action to the Commission if WR does not maintain the records of Personal Securities Transactions of the outside Limited Partners as is required of advisory representatives pursuant to Rule 204-2 (a) (12) . If you have any questions with respect to the

foregoing or require further information with respect to

250 LAN01/76821.05

---

Office of the Chief Counsel -31 this request, please call the undersigned (212-558-4854) or

John Baumgardner (212-558-3866) or Donald Crawshaw

(212-558-4016) of this office.

Very truly yours,

l~ ~~\

Adam M. Kupitz

250 LAN01/76821.05