80_FR_62322 80 FR 62123 - Fidelity Management & Research Company and FMR Co., Inc.; Notice of Application

80 FR 62123 - Fidelity Management & Research Company and FMR Co., Inc.; Notice of Application

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 80, Issue 199 (October 15, 2015)

Page Range62123-62125
FR Document2015-26146

Federal Register, Volume 80 Issue 199 (Thursday, October 15, 2015)
[Federal Register Volume 80, Number 199 (Thursday, October 15, 2015)]
[Notices]
[Pages 62123-62125]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-26146]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. IA-4220/803-00225]


Fidelity Management & Research Company and FMR Co., Inc.; Notice 
of Application

October 8, 2015.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an exemptive order under section 206A 
of the Investment Advisers Act of 1940 (the ``Advisers Act'') and rule 
206(4)-5(e).

-----------------------------------------------------------------------

Applicant: Fidelity Management & Research Company (``FMR'') and FMR 
Co., Inc. (``FMRC'' and, together with FMR, ``Applicants'').

Relevant Advisers Act Sections: Exemption requested under section 206A 
of the Advisers Act and rule 206(4)-5(e) from rule 206(4)-5(a)(1) under 
the Advisers Act.

Summary of Application: Applicants request that the Commission issue an 
order under section 206A of the Advisers Act and rule 206(4)-5(e) 
exempting Applicants from rule 206(4)-5(a)(1) under the Advisers Act to 
permit Applicants to receive compensation from certain government 
entities for investment advisory services provided to the government 
entities within the two-year period following a contribution by a 
covered associate of the Applicants to an official of the government 
entities.

Filing Dates: The application was filed on August 28, 2014, an amended 
and restated application was filed on May 11, 2015, and a second 
amended and restated application was filed on September 24, 2015.

Hearing or Notification of Hearing: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving Applicants with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on November 2, 2015, and should be accompanied by proof of

[[Page 62124]]

service on the Applicants, in the form of an affidavit or, for lawyers, 
a certificate of service. Pursuant to rule 0-5 under the Advisers Act, 
hearing requests should state the nature of the writer's interest, any 
facts bearing upon the desirability of a hearing on the matter, the 
reason for the request, and the issues contested. Persons may request 
notification of a hearing by writing to the Commission's Secretary.

ADDRESSES: Brent J. Fields, Secretary, Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-1090. Fidelity 
Management & Research Company and FMR Co., Inc., 245 Summer Street, 
Boston, MA 02210.

FOR FURTHER INFORMATION CONTACT: Kyle R. Ahlgren, Senior Counsel, or 
Holly Hunter-Ceci, Branch Chief, at (202) 551-6825 (Division of 
Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's Web site either at http://www.sec.gov/rules/iareleases.shtml or by searching for the file number, or for an 
applicant using the Company name box, at http://www.sec.gov/search/search.htm, or by calling (202) 551-8090.
    Applicants' Representations:
    1. Applicants are affiliated asset management companies registered 
with the Commission as investment advisers under the Investment 
Advisers Act of 1940 (the ``Act''). Applicants manage mutual funds 
offered as investment options in participant-directed plans sponsored 
by two Massachusetts government entities (``Client 1'' and ``Client 
2'', respectively, or collectively, the ``Clients''). Client 1 
initially entered into its agreement with FMR in 2007 and Client 2 
initially entered into its agreement with FMR and FMRC in 1994.
    2. Thomas Hense (the ``Contributor'') is a Group Chief Investment 
Officer of Applicants and a resident of Massachusetts. He assumed his 
current role in 2008, and is a ``covered associate'' of the Applicants, 
as such term is defined by rule 206(4)-5(f)(2)(i) due to his role as a 
supervisor of one or more employees who may solicit investment advisory 
business from government entities on behalf of each Client. The 
Contributor has very limited direct interactions with clients regarding 
their investments. The Contributor's primary role is to supervise a 
team of investment professionals who manage client funds and accounts. 
To the best of the Contributor's knowledge, the Contributor attended 
only two meetings with any Massachusetts government entities in the 
past two years, and neither of those meetings involved the solicitation 
of business or either of the Clients.
    3. The recipient of the Contribution was Jeffrey McCormick (the 
``Recipient''), an independent candidate for Massachusetts Governor. 
The investment providers and options of Client 1 (including the mutual 
funds to be offered as investment options to employees) are directly 
selected by a board that includes a majority of gubernatorial 
appointees. The investment decisions of Client 2 (including the 
selection of mutual funds to be offered as investment options to 
employees) are directly made by the Treasurer of Client 2 under 
oversight of the President of Client 2. The board of Client 2, which 
includes a majority of gubernatorial appointees, has authority to 
appoint the Treasurer and President of Client 2. As a result of these 
appointment powers with respect to the Clients, the Governor of 
Massachusetts and any candidate for that office (including the 
Recipient) is an ``official'' as that term is defined by rule 206(4)-
5(f)(6)(ii).
    4. On December 21, 2013 (the ``Contribution Date''), the 
Contributor made a contribution in the amount of $500 to the 
Recipient's campaign. Because the Contributor was a ``covered 
associate'' of Applicants, the Clients were ``government entities'' and 
the Recipient was an ``official'' as those terms are defined in rule 
206(4)-5(f), the Contribution triggered Rule 206(4)-5's prohibition 
against receiving compensation for advisory services provided to the 
Clients during the two years following the Contribution Date. At the 
time of the Contribution, Applicants were not discussing or 
anticipating any new arrangements with the Clients. No material changes 
in the relationship between any of the funds managed by Applicants and 
any participant-directed plans sponsored by the Clients or any other 
material changes in relevant investment patterns occurred after the 
Contribution.
    5. The Contributor lives and works in Massachusetts and has made 
prior donations to Massachusetts candidates for federal offices. The 
Contribution was consistent in size and motivation with those prior 
contributions. The Contributor decided to make the Contribution upon 
receiving an email solicitation form the Recipient's campaign. The 
Contributor's decision was based entirely on the personal friendship he 
maintained with the Recipient and the fact that he supported the 
Recipient in his efforts to run for Governor of Massachusetts. The 
reason for the Contribution was wholly unrelated to the investment 
advisory services provided to the Clients by the Applicants. The 
Contributor did not discuss the Contribution with the Recipient or with 
any of his staff, or with the Applicants or their other covered 
associates.
    6. Applicants implemented pay-to-play policies and procedures (the 
``Policies'') on March 8, 2011. In accordance with the Policies, the 
Contributor was required to pre-clear all contributions to federal, 
state or local candidates or organizations. The Contributor annually 
received training on the Policies. On January 6, 2014, the Contributor 
promptly self-reported the Contribution to the Applicants' Compliance 
Department upon completing his certification questionnaire in 
accordance with the Policies and realizing that he had failed to pre-
clear the Contribution. On January 7, 2014, the Contributor requested a 
full refund of the Contribution from the Recipient's campaign. The 
Contributor received a full refund on January 14, 2014.
    7. Applicants established an escrow account for the Clients and are 
currently segregating all compensation for advisory services paid to 
the Applicants attributable to the Clients' assets under management of 
the Applicants for the two-year period beginning on the Contribution 
Date.
    8. After learning of the Contribution, the Applicants took steps to 
limit the Contributor's contact with any representative of a Client for 
the duration of the two-year period beginning on the Contribution Date, 
including informing the Contributor that he could have no contact with 
any representative of a Client other than making substantive 
presentations to the Client's representatives and consultants about the 
investment strategies that the Applicants manage for the Clients.
    Applicants' Legal Analysis:
    1. Rule 206(4)-5(a)(1) under the Advisers Act prohibits a 
registered investment adviser from providing investment advisory 
services for compensation to a government entity within two years after 
a contribution to an official of the government entity is made by the 
investment adviser or any covered associate of the investment adviser. 
Each Client is a ``government entity,'' as defined in rule 206(4)-
5(f)(5), the Contributor is a ``covered associate'' as defined in rule 
206(4)-5(f)(2), and the Official is an ``official'' as defined in rule 
206(4)-5(f)(6).
    2. Section 206A of the Advisers Act grants the Commission the 
authority to

[[Page 62125]]

``conditionally or unconditionally exempt any person or transaction . . 
. from any provision or provisions of [the Advisers Act] or of any rule 
or regulation thereunder, if and to the extent that such exemption is 
necessary or appropriate in the public interest and consistent with the 
protection of investors and the purposes fairly intended by the policy 
and provisions of [the Advisers Act].''
    3. Rule 206(4)-5(e) provides that the Commission may exempt an 
investment adviser from the prohibition under rule 206(4)-5(a)(1) upon 
consideration of the factors listed below, among others:
    (1) Whether the exemption is necessary or appropriate in the public 
interest and consistent with the protection of investors and the 
purposes fairly intended by the policy and provisions of the Advisers 
Act;
    (2) Whether the investment adviser: (i) Before the contribution 
resulting in the prohibition was made, adopted and implemented policies 
and procedures reasonably designed to prevent violations of the rule; 
and (ii) prior to or at the time the contribution which resulted in 
such prohibition was made, had no actual knowledge of the contribution; 
and (iii) after learning of the contribution: (A) Has taken all 
available steps to cause the contributor involved in making the 
contribution which resulted in such prohibition to obtain a return of 
the contribution; and (B) has taken such other remedial or preventive 
measures as may be appropriate under the circumstances;
    (3) Whether, at the time of the contribution, the contributor was a 
covered associate or otherwise an employee of the investment adviser, 
or was seeking such employment;
    (4) The timing and amount of the contribution which resulted in the 
prohibition;
    (5) The nature of the election (e.g., federal, state or local); and
    (6) The contributor's apparent intent or motive in making the 
contribution which resulted in the prohibition, as evidenced by the 
facts and circumstances surrounding such contribution.
    4. Applicants request an order pursuant to section 206A and rule 
206(4)-5(e), exempting them from the two-year prohibition on 
compensation imposed by rule 206(4)-5(a)(1) with respect to investment 
advisory services provided to the Clients within the two-year period 
following the Contribution (the ``Order'').
    5. Applicants submit that the exemption is necessary and 
appropriate in the public interest and consistent with the protection 
of investors and the purposes fairly intended by the policy and 
provisions of the Act.
    6. Applicants represent that the Clients determined to invest with 
Applicants and established those advisory relationships on an arm's 
length basis free from any improper influence as a result of the 
Contribution, and there was no connection between the Contribution and 
any past or potential business between the Clients and the Applicants.
    7. Applicants note that causing the Applicants to provide advisory 
services without compensation for a two-year period would result in a 
financial loss to the Applicants of approximately $2.7 million--an 
amount that is 5,400 times the amount of the Contribution. Applicants 
contend that such a result is greatly disproportionate to the violation 
and is not consistent with the protection of investors or a purpose 
fairly intended by the policies and provisions of the Act.
    8. Applicants note that they had adopted and implemented the 
Policies at the time of the Contribution and had the Policies in place 
at all times since the adoption of rule 205(4)-5. Applicants represent 
that they perform compliance testing and they have a rigorous and 
robust screening of prospective hires and internal employees being 
considered for covered associate positions.
    9. Applicants represent that at no time did any employees or 
covered associates of the Applicants, or any executive or employee of 
the Applicants' affiliates, other than the Contributor, know of the 
Contribution prior to the Contributor's self-report to Applicants' 
compliance personnel.
    10. Applicants represent that the Applicants and the Contributor 
took all available steps to promptly obtain a return of the 
Contribution after the Contributor's self-report to Applicants' 
compliance personnel, and the full amount of the Contribution was fully 
refunded within one week of the refund request. Applicants established 
an escrow account for all compensation for advisory services 
attributable to the Clients' assets under management of the Applicants 
for the two-year period beginning on the Contribution Date.
    Applicants' Conditions:
    Applicants agree that the Order will be subject to the following 
conditions:
    1. The Contributor will be prohibited from soliciting investments 
from any ``government entity'' client or prospective ``government 
entity'' client for which the Recipient is an ``official'' as defined 
in rule 206(4)-5(f)(6) until December 21, 2015 (the ``Restricted 
Period'').
    2. Notwithstanding Condition 1, the Contributor will be (i) 
permitted to respond to inquiries from, and make presentations to, any 
government entity client described in Condition 1 regarding accounts 
already managed by the Applicants as of December 21, 2013 and (ii) 
permitted to respond to inquiries from any government entity client 
regarding an account established with the Applicants by such government 
entity client after December 21, 2013. The Applicants will maintain a 
log of such interactions, which will be maintained and presented in an 
easily accessible place for a period of not less than five years, the 
first two years in an appropriate office of the Applicants, and will be 
available for inspection by the staff of the Commission.
    3. The Contributor will receive written notification of these 
conditions and will provide a quarterly certification of compliance 
through the Restricted Period. Copies of the certifications will be 
maintained and preserved by the Applicants in an easily accessible 
place for a period of not less than five years, the first two years in 
an appropriate office of the Applicants and will be available for 
inspection by the Staff of the Commission.
    4. The Applicants will conduct testing reasonably designed to 
prevent violations of the conditions of the Order and maintain records 
regarding such testing, which will be maintained and preserved in an 
easily accessible place for a period of not less than five years, the 
first two years in an appropriate office of the Applicants, and will be 
available for inspection by staff of the Commission.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-26146 Filed 10-14-15; 8:45 am]
BILLING CODE 8011-01-P



                                                                                Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Notices                                               62123

                                                  through issuance of an NSCC Important                     IV. Solicitation of Comments                            For the Commission, by the Division of
                                                  Notice                                                                                                          Trading and Markets, pursuant to delegated
                                                                                                              Interested persons are invited to                   authority.12
                                                  2. Statutory Basis                                        submit written data, views and                        Robert W. Errett,
                                                     Section 17A(b)(3)(F) of the Act                        arguments concerning the foregoing,                   Deputy Secretary.
                                                  requires, in part, that NSCC’s Rules be                   including whether the proposed rule                   [FR Doc. 2015–26151 Filed 10–14–15; 8:45 am]
                                                  designed to promote the prompt and                        change is consistent with the Act.                    BILLING CODE 8011–01–P
                                                  accurate clearance and settlement of                      Comments may be submitted by any of
                                                  securities transactions and to protect                    the following methods:
                                                  investors and the public interest.11 By                                                                         SECURITIES AND EXCHANGE
                                                                                                            Electronic Comments                                   COMMISSION
                                                  permitting additional, eligible
                                                  transactions to settle through CNS or the                   • Use the Commission’s Internet                     [Release No. IA–4220/803–00225]
                                                  Balance Order Accounting Operation,                       comment form (http://www.sec.gov/
                                                  and receive the benefit of NSCC’s                         rules/sro.shtml); or                                  Fidelity Management & Research
                                                  settlement services, including, in the                                                                          Company and FMR Co., Inc.; Notice of
                                                                                                              • Send an email to rule-comments@
                                                  case of CNS, the central counterparty                                                                           Application
                                                                                                            sec.gov. Please include File Number SR–
                                                  trade guarantee, the proposal would
                                                  offer protection to investors and the                     NSCC–2015–005 on the subject line.                    October 8, 2015.
                                                  public interest by mitigating its                                                                               AGENCY:  Securities and Exchange
                                                                                                            Paper Comments
                                                  Members’ settlement risk and                                                                                    Commission (‘‘Commission’’).
                                                  counterparty risk with respect to those                     • Send paper comments in triplicate                 ACTION: Notice of application for an
                                                  transactions. Therefore, NSCC believes                    to Brent J. Fields, Secretary, Securities             exemptive order under section 206A of
                                                  the proposed rule change would                            and Exchange Commission, 100 F Street                 the Investment Advisers Act of 1940
                                                  promote the prompt and accurate                           NE., Washington, DC 20549–1090.                       (the ‘‘Advisers Act’’) and rule 206(4)–
                                                  clearance and settlement of securities                                                                          5(e).
                                                                                                            All submissions should refer to File
                                                  transactions by reducing these risks,
                                                  consistent with the requirements of the                   Number SR–NSCC–2015–005. This file                    APPLICANT:   Fidelity Management &
                                                  Act, in particular section 17A(b)(3)(F),                  number should be included on the                      Research Company (‘‘FMR’’) and FMR
                                                  cited above.                                              subject line if email is used. To help the            Co., Inc. (‘‘FMRC’’ and, together with
                                                                                                            Commission process and review your                    FMR, ‘‘Applicants’’).
                                                  (B) Clearing Agency’s Statement on                        comments more efficiently, please use                 RELEVANT ADVISERS ACT SECTIONS:
                                                  Burden on Competition                                     only one method. The Commission will                  Exemption requested under section
                                                    NSCC does not believe that the                          post all comments on the Commission’s                 206A of the Advisers Act and rule
                                                  proposed rule changes would have any                      Internet Web site (http://www.sec.gov/                206(4)–5(e) from rule 206(4)–5(a)(1)
                                                  impact on competition because the                         rules/sro.shtml). Copies of the                       under the Advisers Act.
                                                  proposal would apply equally to all                       submission, all subsequent                            SUMMARY OF APPLICATION: Applicants
                                                  NSCC Members that submit CMU trades                       amendments, all written statements                    request that the Commission issue an
                                                  through NSCC’s RTTM service.                              with respect to the proposed rule                     order under section 206A of the
                                                                                                            change that are filed with the                        Advisers Act and rule 206(4)–5(e)
                                                  (C) Clearing Agency’s Statement on                        Commission, and all written                           exempting Applicants from rule 206(4)–
                                                  Comments on the Proposed Rule                                                                                   5(a)(1) under the Advisers Act to permit
                                                                                                            communications relating to the
                                                  Change Received From Members,                                                                                   Applicants to receive compensation
                                                                                                            proposed rule change between the
                                                  Participants, or Others                                                                                         from certain government entities for
                                                                                                            Commission and any person, other than
                                                    NSCC has not received any written                       those that may be withheld from the                   investment advisory services provided
                                                  comments relating to this proposal.                       public in accordance with the                         to the government entities within the
                                                  NSCC will notify the Commission of any                                                                          two-year period following a
                                                                                                            provisions of 5 U.S.C. 552, will be
                                                  written comments received by NSCC.                                                                              contribution by a covered associate of
                                                                                                            available for Web site viewing and
                                                                                                                                                                  the Applicants to an official of the
                                                  III. Date of Effectiveness of the                         printing in the Commission’s Public                   government entities.
                                                  Proposed Rule Change, and Timing for                      Reference Room, 100 F Street NE.,
                                                                                                                                                                  FILING DATES: The application was filed
                                                  Commission Action                                         Washington, DC 20549 on official
                                                                                                                                                                  on August 28, 2014, an amended and
                                                                                                            business days between the hours of                    restated application was filed on May
                                                    Within 45 days of the date of                           10:00 a.m. and 3:00 p.m. Copies of the                11, 2015, and a second amended and
                                                  publication of this notice in the Federal                 filing also will be available for                     restated application was filed on
                                                  Register or within such longer period                     inspection and copying at the principal               September 24, 2015.
                                                  up to 90 days (i) as the Commission may                   office of NSCC and on DTCC’s Web site
                                                  designate if it finds such longer period                                                                        HEARING OR NOTIFICATION OF HEARING: An
                                                                                                            (http://dtcc.com/legal/sec-rule-                      order granting the application will be
                                                  to be appropriate and publishes its                       filings.aspx). All comments received
                                                  reasons for so finding or (ii) as to which                                                                      issued unless the Commission orders a
                                                                                                            will be posted without change; the                    hearing. Interested persons may request
                                                  the self-regulatory organization                          Commission does not edit personal
                                                  consents, the Commission will:                                                                                  a hearing by writing to the
                                                                                                            identifying information from
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                                                                                                                                  Commission’s Secretary and serving
                                                    (A) By order approve or disapprove                      submissions. You should submit only                   Applicants with a copy of the request,
                                                  such proposed rule change, or                             information that you wish to make                     personally or by mail. Hearing requests
                                                    (B) institute proceedings to determine                  available publicly. All submissions                   should be received by the Commission
                                                  whether the proposed rule change                          should refer to File Number SR–NSCC–                  by 5:30 p.m. on November 2, 2015, and
                                                  should be disapproved.                                    2015–005 and should be submitted on                   should be accompanied by proof of
                                                                                                            or before November 5, 2015.
                                                    11 15   U.S.C. 78q–1(b)(3)(F).                                                                                  12 17   CFR 200.30–3(a)(12).



                                             VerDate Sep<11>2014     17:19 Oct 14, 2015   Jkt 238001   PO 00000   Frm 00112   Fmt 4703   Sfmt 4703   E:\FR\FM\15OCN1.SGM    15OCN1


                                                  62124                       Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Notices

                                                  service on the Applicants, in the form                  with any Massachusetts government                     Governor of Massachusetts. The reason
                                                  of an affidavit or, for lawyers, a                      entities in the past two years, and                   for the Contribution was wholly
                                                  certificate of service. Pursuant to rule 0–             neither of those meetings involved the                unrelated to the investment advisory
                                                  5 under the Advisers Act, hearing                       solicitation of business or either of the             services provided to the Clients by the
                                                  requests should state the nature of the                 Clients.                                              Applicants. The Contributor did not
                                                  writer’s interest, any facts bearing upon                  3. The recipient of the Contribution               discuss the Contribution with the
                                                  the desirability of a hearing on the                    was Jeffrey McCormick (the                            Recipient or with any of his staff, or
                                                  matter, the reason for the request, and                 ‘‘Recipient’’), an independent candidate              with the Applicants or their other
                                                  the issues contested. Persons may                       for Massachusetts Governor. The                       covered associates.
                                                  request notification of a hearing by                    investment providers and options of                      6. Applicants implemented pay-to-
                                                  writing to the Commission’s Secretary.                  Client 1 (including the mutual funds to               play policies and procedures (the
                                                  ADDRESSES: Brent J. Fields, Secretary,                  be offered as investment options to                   ‘‘Policies’’) on March 8, 2011. In
                                                  Securities and Exchange Commission,                     employees) are directly selected by a                 accordance with the Policies, the
                                                  100 F Street NE., Washington, DC                        board that includes a majority of                     Contributor was required to pre-clear all
                                                  20549–1090. Fidelity Management &                       gubernatorial appointees. The                         contributions to federal, state or local
                                                  Research Company and FMR Co., Inc.,                     investment decisions of Client 2                      candidates or organizations. The
                                                  245 Summer Street, Boston, MA 02210.                    (including the selection of mutual funds              Contributor annually received training
                                                                                                          to be offered as investment options to                on the Policies. On January 6, 2014, the
                                                  FOR FURTHER INFORMATION CONTACT: Kyle
                                                                                                          employees) are directly made by the                   Contributor promptly self-reported the
                                                  R. Ahlgren, Senior Counsel, or Holly
                                                                                                          Treasurer of Client 2 under oversight of              Contribution to the Applicants’
                                                  Hunter-Ceci, Branch Chief, at (202) 551–
                                                                                                          the President of Client 2. The board of               Compliance Department upon
                                                  6825 (Division of Investment
                                                                                                          Client 2, which includes a majority of                completing his certification
                                                  Management, Chief Counsel’s Office).                    gubernatorial appointees, has authority               questionnaire in accordance with the
                                                  SUPPLEMENTARY INFORMATION: The                          to appoint the Treasurer and President                Policies and realizing that he had failed
                                                  following is a summary of the                           of Client 2. As a result of these                     to pre-clear the Contribution. On
                                                  application. The complete application                   appointment powers with respect to the                January 7, 2014, the Contributor
                                                  may be obtained via the Commission’s                    Clients, the Governor of Massachusetts                requested a full refund of the
                                                  Web site either at http://www.sec.gov/                  and any candidate for that office                     Contribution from the Recipient’s
                                                  rules/iareleases.shtml or by searching                  (including the Recipient) is an ‘‘official’’          campaign. The Contributor received a
                                                  for the file number, or for an applicant                as that term is defined by rule 206(4)–               full refund on January 14, 2014.
                                                  using the Company name box, at                          5(f)(6)(ii).                                             7. Applicants established an escrow
                                                  http://www.sec.gov/search/search.htm,                      4. On December 21, 2013 (the                       account for the Clients and are currently
                                                  or by calling (202) 551–8090.                           ‘‘Contribution Date’’), the Contributor               segregating all compensation for
                                                     Applicants’ Representations:                         made a contribution in the amount of                  advisory services paid to the Applicants
                                                     1. Applicants are affiliated asset                   $500 to the Recipient’s campaign.                     attributable to the Clients’ assets under
                                                  management companies registered with                    Because the Contributor was a ‘‘covered               management of the Applicants for the
                                                  the Commission as investment advisers                   associate’’ of Applicants, the Clients                two-year period beginning on the
                                                  under the Investment Advisers Act of                    were ‘‘government entities’’ and the                  Contribution Date.
                                                  1940 (the ‘‘Act’’). Applicants manage                   Recipient was an ‘‘official’’ as those                   8. After learning of the Contribution,
                                                  mutual funds offered as investment                      terms are defined in rule 206(4)–5(f), the            the Applicants took steps to limit the
                                                  options in participant-directed plans                   Contribution triggered Rule 206(4)–5’s                Contributor’s contact with any
                                                  sponsored by two Massachusetts                          prohibition against receiving                         representative of a Client for the
                                                  government entities (‘‘Client 1’’ and                   compensation for advisory services                    duration of the two-year period
                                                  ‘‘Client 2’’, respectively, or collectively,            provided to the Clients during the two                beginning on the Contribution Date,
                                                  the ‘‘Clients’’). Client 1 initially entered            years following the Contribution Date.                including informing the Contributor that
                                                  into its agreement with FMR in 2007                     At the time of the Contribution,                      he could have no contact with any
                                                  and Client 2 initially entered into its                 Applicants were not discussing or                     representative of a Client other than
                                                  agreement with FMR and FMRC in                          anticipating any new arrangements with                making substantive presentations to the
                                                  1994.                                                   the Clients. No material changes in the               Client’s representatives and consultants
                                                     2. Thomas Hense (the ‘‘Contributor’’)                relationship between any of the funds                 about the investment strategies that the
                                                  is a Group Chief Investment Officer of                  managed by Applicants and any                         Applicants manage for the Clients.
                                                  Applicants and a resident of                            participant-directed plans sponsored by                  Applicants’ Legal Analysis:
                                                  Massachusetts. He assumed his current                   the Clients or any other material                        1. Rule 206(4)–5(a)(1) under the
                                                  role in 2008, and is a ‘‘covered                        changes in relevant investment patterns               Advisers Act prohibits a registered
                                                  associate’’ of the Applicants, as such                  occurred after the Contribution.                      investment adviser from providing
                                                  term is defined by rule 206(4)–5(f)(2)(i)                  5. The Contributor lives and works in              investment advisory services for
                                                  due to his role as a supervisor of one or               Massachusetts and has made prior                      compensation to a government entity
                                                  more employees who may solicit                          donations to Massachusetts candidates                 within two years after a contribution to
                                                  investment advisory business from                       for federal offices. The Contribution was             an official of the government entity is
                                                  government entities on behalf of each                   consistent in size and motivation with                made by the investment adviser or any
                                                  Client. The Contributor has very limited                those prior contributions. The                        covered associate of the investment
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                  direct interactions with clients                        Contributor decided to make the                       adviser. Each Client is a ‘‘government
                                                  regarding their investments. The                        Contribution upon receiving an email                  entity,’’ as defined in rule 206(4)–5(f)(5),
                                                  Contributor’s primary role is to                        solicitation form the Recipient’s                     the Contributor is a ‘‘covered associate’’
                                                  supervise a team of investment                          campaign. The Contributor’s decision                  as defined in rule 206(4)–5(f)(2), and the
                                                  professionals who manage client funds                   was based entirely on the personal                    Official is an ‘‘official’’ as defined in
                                                  and accounts. To the best of the                        friendship he maintained with the                     rule 206(4)–5(f)(6).
                                                  Contributor’s knowledge, the                            Recipient and the fact that he supported                 2. Section 206A of the Advisers Act
                                                  Contributor attended only two meetings                  the Recipient in his efforts to run for               grants the Commission the authority to


                                             VerDate Sep<11>2014   17:19 Oct 14, 2015   Jkt 238001   PO 00000   Frm 00113   Fmt 4703   Sfmt 4703   E:\FR\FM\15OCN1.SGM   15OCN1


                                                                              Federal Register / Vol. 80, No. 199 / Thursday, October 15, 2015 / Notices                                               62125

                                                  ‘‘conditionally or unconditionally                      purposes fairly intended by the policy                   2. Notwithstanding Condition 1, the
                                                  exempt any person or transaction . . .                  and provisions of the Act.                            Contributor will be (i) permitted to
                                                  from any provision or provisions of [the                   6. Applicants represent that the                   respond to inquiries from, and make
                                                  Advisers Act] or of any rule or                         Clients determined to invest with                     presentations to, any government entity
                                                  regulation thereunder, if and to the                    Applicants and established those                      client described in Condition 1
                                                  extent that such exemption is necessary                 advisory relationships on an arm’s                    regarding accounts already managed by
                                                  or appropriate in the public interest and               length basis free from any improper                   the Applicants as of December 21, 2013
                                                  consistent with the protection of                       influence as a result of the Contribution,            and (ii) permitted to respond to
                                                  investors and the purposes fairly                       and there was no connection between                   inquiries from any government entity
                                                  intended by the policy and provisions of                the Contribution and any past or                      client regarding an account established
                                                  [the Advisers Act].’’                                   potential business between the Clients                with the Applicants by such
                                                     3. Rule 206(4)–5(e) provides that the                and the Applicants.                                   government entity client after December
                                                  Commission may exempt an investment                        7. Applicants note that causing the                21, 2013. The Applicants will maintain
                                                  adviser from the prohibition under rule                 Applicants to provide advisory services               a log of such interactions, which will be
                                                  206(4)–5(a)(1) upon consideration of the                without compensation for a two-year                   maintained and presented in an easily
                                                  factors listed below, among others:                     period would result in a financial loss               accessible place for a period of not less
                                                     (1) Whether the exemption is                         to the Applicants of approximately $2.7               than five years, the first two years in an
                                                  necessary or appropriate in the public                  million—an amount that is 5,400 times                 appropriate office of the Applicants, and
                                                  interest and consistent with the                        the amount of the Contribution.                       will be available for inspection by the
                                                  protection of investors and the purposes                Applicants contend that such a result is              staff of the Commission.
                                                  fairly intended by the policy and                       greatly disproportionate to the violation                3. The Contributor will receive
                                                  provisions of the Advisers Act;                         and is not consistent with the protection             written notification of these conditions
                                                     (2) Whether the investment adviser:                  of investors or a purpose fairly intended             and will provide a quarterly
                                                  (i) Before the contribution resulting in                by the policies and provisions of the                 certification of compliance through the
                                                  the prohibition was made, adopted and                   Act.                                                  Restricted Period. Copies of the
                                                  implemented policies and procedures                        8. Applicants note that they had                   certifications will be maintained and
                                                  reasonably designed to prevent                          adopted and implemented the Policies                  preserved by the Applicants in an easily
                                                  violations of the rule; and (ii) prior to or            at the time of the Contribution and had               accessible place for a period of not less
                                                  at the time the contribution which                      the Policies in place at all times since              than five years, the first two years in an
                                                  resulted in such prohibition was made,                  the adoption of rule 205(4)–5.                        appropriate office of the Applicants and
                                                  had no actual knowledge of the                          Applicants represent that they perform                will be available for inspection by the
                                                  contribution; and (iii) after learning of               compliance testing and they have a                    Staff of the Commission.
                                                  the contribution: (A) Has taken all                     rigorous and robust screening of                         4. The Applicants will conduct testing
                                                  available steps to cause the contributor                prospective hires and internal                        reasonably designed to prevent
                                                  involved in making the contribution                     employees being considered for covered                violations of the conditions of the Order
                                                  which resulted in such prohibition to                   associate positions.                                  and maintain records regarding such
                                                  obtain a return of the contribution; and                   9. Applicants represent that at no time
                                                                                                                                                                testing, which will be maintained and
                                                  (B) has taken such other remedial or                    did any employees or covered associates
                                                                                                                                                                preserved in an easily accessible place
                                                  preventive measures as may be                           of the Applicants, or any executive or
                                                                                                                                                                for a period of not less than five years,
                                                  appropriate under the circumstances;                    employee of the Applicants’ affiliates,
                                                                                                                                                                the first two years in an appropriate
                                                     (3) Whether, at the time of the                      other than the Contributor, know of the
                                                                                                                                                                office of the Applicants, and will be
                                                  contribution, the contributor was a                     Contribution prior to the Contributor’s
                                                                                                                                                                available for inspection by staff of the
                                                  covered associate or otherwise an                       self-report to Applicants’ compliance
                                                                                                                                                                Commission.
                                                  employee of the investment adviser, or                  personnel.
                                                  was seeking such employment;                               10. Applicants represent that the                    For the Commission, by the Division of
                                                     (4) The timing and amount of the                     Applicants and the Contributor took all               Investment Management, under delegated
                                                  contribution which resulted in the                      available steps to promptly obtain a                  authority.
                                                  prohibition;                                            return of the Contribution after the                  Robert W. Errett,
                                                     (5) The nature of the election (e.g.,                Contributor’s self-report to Applicants’              Deputy Secretary.
                                                  federal, state or local); and                           compliance personnel, and the full                    [FR Doc. 2015–26146 Filed 10–14–15; 8:45 am]
                                                     (6) The contributor’s apparent intent                amount of the Contribution was fully                  BILLING CODE 8011–01–P
                                                  or motive in making the contribution                    refunded within one week of the refund
                                                  which resulted in the prohibition, as                   request. Applicants established an
                                                  evidenced by the facts and                              escrow account for all compensation for               SECURITIES AND EXCHANGE
                                                  circumstances surrounding such                          advisory services attributable to the                 COMMISSION
                                                  contribution.                                           Clients’ assets under management of the
                                                     4. Applicants request an order                       Applicants for the two-year period                    [Release No. 34–76106; File No. SR–CBOE–
                                                  pursuant to section 206A and rule                       beginning on the Contribution Date.                   2015–081]
                                                  206(4)–5(e), exempting them from the                       Applicants’ Conditions:
                                                  two-year prohibition on compensation                       Applicants agree that the Order will               Self-Regulatory Organizations;
                                                  imposed by rule 206(4)–5(a)(1) with                     be subject to the following conditions:               Chicago Board Options Exchange,
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                  respect to investment advisory services                    1. The Contributor will be prohibited              Incorporated; Notice of Filing and
                                                  provided to the Clients within the two-                 from soliciting investments from any                  Immediate Effectiveness of a Proposed
                                                  year period following the Contribution                  ‘‘government entity’’ client or                       Rule Change Relating to Complex
                                                  (the ‘‘Order’’).                                        prospective ‘‘government entity’’ client              Orders
                                                     5. Applicants submit that the                        for which the Recipient is an ‘‘official’’
                                                  exemption is necessary and appropriate                  as defined in rule 206(4)–5(f)(6) until               October 8, 2015.
                                                  in the public interest and consistent                   December 21, 2015 (the ‘‘Restricted                     Pursuant to Section 19(b)(1) of the
                                                  with the protection of investors and the                Period’’).                                            Securities Exchange Act of 1934 (the


                                             VerDate Sep<11>2014   17:19 Oct 14, 2015   Jkt 238001   PO 00000   Frm 00114   Fmt 4703   Sfmt 4703   E:\FR\FM\15OCN1.SGM   15OCN1



Document Created: 2018-02-27 08:52:40
Document Modified: 2018-02-27 08:52:40
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of application for an exemptive order under section 206A of the Investment Advisers Act of 1940 (the ``Advisers Act'') and rule 206(4)-5(e).
DatesThe application was filed on August 28, 2014, an amended and restated application was filed on May 11, 2015, and a second amended and restated application was filed on September 24, 2015.
ContactKyle R. Ahlgren, Senior Counsel, or Holly Hunter-Ceci, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
FR Citation80 FR 62123 

2024 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR