SEC Division of Trading and Markets no-action letter: Sanford C. Bernstein & Co., LLC

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

DIVISION OF
TRADING AND MARKETS
June 9, 2009
Mr. Mark D. Fitterman
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., NW
Washington, DC 20004-2541
Re: No-Action Request of Sanford C. Bernstein & Co., LLC Dear Mr. Fitterman: .
We have received your letter ofApril 9, 2009 on behalfofSanford C. Bernstein & Co., LLC ("Bernstein") in which you request assurance that the Division ofTrading & Markets ("Division") will nO,t recommend enforcement action against Bernstein with respect to certain possession and control requirements for uncertificated securities. I understand the following facts to be pertinent to Bernstein's request. The request pertains to certain uncertificated interests ofDelaware Business Trusts ("DBTs") and Cayman Islands domiciled corporate entities ("Hedge Funds"). These uncertificated interests consist ofuncertificated "units" (the "Uncertificated Units") ofDBTs and uncertificated shares (the "Uncertificated Shares") of Hedge Funds relating to the collective investment vehicles listed on Schedule A of your letter of April 9, 2009. Neither the Uncertificated Units nor the Uncertificated Shares are registered-with the Securities and Exchange Commission ("Commission") under the Securities Act of 1933 ("Securities Act"). Bernstein carries the Uncertificated Units and the Uncertificated Shares on its books and records for the relevant customer's IRA account. In the case of the DBTs, Bernstein will notify The Northern Trust Company ("Northern Trust"), as custodial trustee, that it should register customer positions in the DBTs in Bernstein's name for the benefit ofthe relevant customers. In the case ofthe Hedge Funds, Bernstein will notify HSBC Trustee (Cayman) Island Limited ("HSBC (Cayman) Trustee") and State Street Cayman Trust Company Ltd ("State Street Cayman Trustee"), as applicable, thatthey should register customer positions in the Hedge Fund in Bernstein's name for the benefit ofthe relevant customers. . Youi letter pertains to the treatment ofNorthern Trust, HSBC (Cayman) Trustee or State Street Cayman Trustee, as the case may be, as good control locations for the funds listed on Schedule A to your letter ofApril 9, 2009 for purposes ofparagraph (c)(7) ofRule 15c3-3 (17 CFR 240.15c3-3) ("Rule l5c3-3") under the Securities Exchange Act

Mr. Mark D. Fitterman
June 9, 2009 of 1934 ("Exchange Act"). As you note in your letter, fully paid and excess margin securities carried by a broker-dealer for the account of a customer must be in the broker￾dealer's "physical possession or control" pursuant to paragraph(b) ofRule 15c3-3. It is the position ofthe Division that uncertificated securities will be deemed to be "underthe control of a broker or dealer" pursuant to paragraph (c) ofRule 15c3-3, and the Division will not recommend enforcement action to the Commission, provided that the entity maintaining the list registering customer positions in such uncertificated . securities meets any ofthe criteria ofsubparagraphs(1) through (6) ofparagraph (C).l . It appears that Northern Trust may be a bank (as defined in Section 3(a)(6) ofthe Exchange Act), in which case the Uncertificated Units would be deemed to be under the control of a broker or dealer pursuant to paragraph (c)(5) ofRule 15c3-3. IfBernstein determines that Northern Trust is a bank, a consideration ofwhether Northern Trust is a good control location for purposes ofparagraph (c)(7) ofRule 15c3-3 is unnecessary:
Based·on the foregoing facts and representations, the Division will not recommend enforcement action to the Commission ifBernstein treats HSBC (Cayman) Trustee or State Street Cayman Trustee, as the case may be, as good control locations for the funds listed on Schedule A to your letter of1\priI9, 2009 for purposes ofRule 15c3 3(c)(7) under the Exchange Act, provided that:
(a) Bernstein will carry the Uncertificated Shares "long" in customers' accounts; (b) Bernstein will reflect separately for the securities of each Hedge Fund all positions in its securities records or ledgers maintained pursuant to Rule 17a-3 under the Exchange Act (17CFR 240.17a-3); (c) Bernstein does not become aware of any substantial problems of an operational nature which HSBC (Cayman) Trustee or State Street Cayman Trustee may be experiencing and which may endanger the interests of the customers; (d) Bernstein will obtain written assurances that the Uncertificated Shares are not subject to any right, charge, security interest, lien, or claim of any kind in favor ofHSBC (Cayman) Trustee or State Street Cayman Trustee or any person claiming through HSBC (Cayman) Trustee or State Street Cayman Trustee; (e) The Uncertificated Shares are either registered with the Commission pursuant to the Securities Act, exempt from registration, or not required to be registered; and Pursuant to paragraph (c)(4) ofRule 15c3-3, a broker-dealer wishing to use a "foreign depository, foreign clearing agency or foreign custodian bank" entity to maintain a list registering customer positions in uncertificated securities must apply to the Commission for approval as a foreign control location in order to meet the requirements ofthe rule. See Securities Exchange Act Release No. 10429 (October 12, 1973).

Mr. MarkD. Fitterman
June 9, 2009
(f) Bernstein will maintain in a separate file a current list of all collective investment vehicles ofwhich interests will be carried on its books and records subject to the terms and conditions set forth above. The list will contain the name ofthe contact person, telephone number, and address for each collective investment vehicle. You should understand that this is a staffposition with respect to enforcement only, and does not purport to state any legal conclusions on this matter. The Division's position is confined to the facts as described herein. Any material change in circumstances may warrant a different conclusion and should be brought immediately to the Division's attention. Sincerely, Joseph 1. Levinson Special Counsel

Morgan. lewis &Bockius lLP
1111 Pennsylvania Avenue. NW
Washington. DC 20004
Tel: 202.739.3000
Fax: 202.739.3001 www.morgantewis.com
Mark D. Fitterman
Partner
202.739.5019 mfitterman@MorganLewis.com
April 9, 2009
VIA FACSIMILE AND MAIL
Mr. Michael Macchiaroli
Associate Director
Division ofTrading & Markets
U.S. Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Morgan Lewis COUNSELORS AT LAW
Re: Application for Control Location for Certain Uncertificated Securities Pursuant to Subparagraph (c)(7) of Rule 15c3-3 Dear Mr. Macchairoli:
On behalfofour client Sanford C. Bernstein & Co., LLC ("Bernstein"), a registered broker￾dealer, we request that the Division ofTrading & Markets advise us that, on the basis ofthe facts stated herein, it will not recommend that the Securities and Exchange Commission ("Commission") take enforcement action against Bernstein ifit carries on its books and record~, I for the account ofcustomers, certain uncertificated interests ofDelaware Business Trusts and Cayman Ishmds domiciled corporate entities (the "Uncertificated Securities") and treats the registrar and transfer agents ofthe Uncertificated Securities as good control locations for I purposes of Rule 15c3-3(c)(7) under the Securities Exchange Act of 1934 ("Exchange Act"). I The Uncertificated Securities consist ofuncertificated ''units'' of Delaware Business Trusts (the "DBTs") and uncertificated shares of Cayman Islands exempted corporations (the "Hedge I Funds") relating to the collective investment vehicles listed on Schedule A attached hereto. The UncertificatedSecurities are not registered with the Commission under the Securities Act of I 1933 ("Securities Act"). In each case, Bernstein carries the Uncertificated Securities on its J books and records for the relevant customer's IRA account. In the case ofthe DBTs, Bernstein will notify The Northern Trust Company (''Northern Trust"), as custodial trustee, that it should register customer positions in the DBTs in Bernstein's name for the benefit ofthe relevant customers. In the case of the Hedge Funds, Bernstein will notify HSBC Trustee (Cayman) Island Limited ("HSBC Trustee") and State Street CaymanTrust Company Ltd ("State Street"), I i I DB 1/62670538.2 I !

Mr. Michael Macchiaroli
April 9, 2009
Morgan Lewis COUNSELORS AT LAW as applicable, that they should register customer positions in the Hedge Fund in Bernstein's name for the benefit of the relevant customers. 1 Fully paid and excess margin securities carried by a broker-dealer for the account of a customer must be in the broker-dealer's possession or control pursuant to paragraph (b) of Rule 15c3-3 under the Exchange Act. As a general matter, Bernstein promptly obtains and maintains the physical possession or control of all fully paid securities and excess margin securities carried for the account of its customers. In the case of the Uncertificated Securities, however, as noted by the staff in previous no-action letters it may be difficult to com~ly with the physical possession or control requirement with respect to uncertificated securities. ,· Since the DBTs and Hedge Funds do not issue certificates evidencing ownership of the Uncertificated Securities, upon the submission of an accepted subscription agreement, Bernstein will receive a confirmation and acknowledgment from Northern Trust, HSBC Cayman or State Street of the issuance ofUncertificated Securities. Accordingly, with respect to the Uncertificated Securities, Bernstein requests that the Division not object to treating Northern Trust, HSBC Trustee or State Street, as the case may be, as good control locations for purposes of Rule 15c3-3(c)(7), provided that:
(a) Bernstein will carry the Uncertificated Securities "long" in customers' accounts; (b) Bernstein will reflect separately for the securities of each DBT or Hedge Fund all positions in its securities records or ledgers maintained pursuant to Rule 17a-3 under the Exchange Act; (c) Bernstein does not become aware of any substantial problems of an operational nature which Northern Trust, HSBC Trustee or State Street may be experiencing and which may endanger the interests of the customers; 1 All of the Hedge Funds are custodied by HSBC Trustee, except for the Bernstein Multi-Strategy Fixed Income Fund, which is custodied by State Street Bank. 2 In previous Commission no-action letters relating to uncertificated limited partnership units, the Staff noted that such uncertificated units, if carried by a broker-dealer for the account of a customer, must be in the broker-dealer's possession or control pursuant to paragraph (b) of Rule 15c3-3. The Staff further noted that if no certificate is issued by the general partner, the broker-dealer could not have possession or control of the interests, but provided no-action relief for custody arrangements similar to those contemplated here, subject to certain conditions. We believe that the same analysis should apply to the treatment under Rule 15c3-3 of custodians for uncertificated "units" of Delaware Business Trusts and Cayman Island exempted corporations. See e.g., Wayne Hummer & Co., SEC No￾Action Letter, 1986 WL 65387 (S.E.C.) (public. avail. Apr. 8, 1986) and Wilmer Cutler & Pickering, SEC No-Action Letter, 1997 SEC No-Act. LEXIS 791 (S.E.C.) (public. avail. Jul. 30, 1997). DB 1/62670538.2

Morgan Lewis COVp.tSELOa.S AT LA.W
Mr. Michael Macchiaroli

April 9, 2009

(d) Bernstein will obtain written assurances that the Uncertificated Securities are not subject to any right, charge, security interest, lien, or claim of any kind in favor ofNorthern Trust, HSBC Trustee, or State Street or any person claiming through Northern Trust, HSBC Trustee, or State Street;3 (e) The Uncertificated Securities are either registered with the Commission pursuant to the Securities Act, exempt from registration,.or not required to be registered; and (f) Bernstein will maintain in a separate file a current list ofall collective investment vehicles ofwhich interests will be carried on its books and records subject to the terms and conditions set forth above. The list will contain the name ofthe contact person, telephone number, and address for each collective investment vehicle. Thank you for your assistance in this matter If you have any questions or seek any additional information regarding this request, please feel free to call me at 202.739.5019. Sincerely, W~/~ ~~vt.A:: .,'S~-~ Mark D. Fitterman cc: Thomas McGowan Joseph Levinson Cathleen Shine I i I f I _ ( 3 Bernstein has, in fact, obtained such a letter from HSBC Trustee. See attached Letter from HSBC Trustee (Cayman) Limited, dated December 20, 2007. DB 1/62670538.2

SCHEDULE A TO SANDFORD C. BERNSTEIN GOOD CONTROL LETTER 4/9/2009
I
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AS GLOBAL DIVERSIFIED STRATEGIES LTD HEDGE FUND A !HF HSBC BANK

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