[Federal Register Volume 65, Number 244 (Tuesday, December 19, 2000)]
[Notices]
[Pages 79439-79441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32208]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 24789/December 12, 2000]


INVESTMENT COMPANY ACT OF 1940; Vanguard Index Funds et al.

    In the Matter of; Vanguard Index Funds, The Vanguard Group, 
Inc., Vanguard Marketing Corporation, P.O. Box 2600, Valley Forge, 
PA 19482, (812-12094), Order under section 6(c) of the Investment 
Company Act of 1940 granting exemptions from sections 2(a)(32), 
18(f)(1), 18(i), 22(d) and 24(d) of the Act and Rule 22c-1 under the 
Act and under sections 6(c) and 17(b) of the Act granting exemptions 
from sections 17(a)(1) and (2) of the Act and denying a request for 
hearing.

    Vanguard Index Funds, The Vanguard Group, Inc. and Vanguard 
Marketing Corporation (collectively, ``Vanguard'') filed an application 
on May 12, 2000, and amended the application on July 12, 2000. 
Applicants requested an order under section 6(c) of the Investment 
Company Act of 1940 (``Act'') for exemptions from sections 2(a)(32), 
18(f)(1), 18(i), 22(d), and 24(d) of the Act and rule 22c-1 under the 
Act, and under sections 6(c) and 17(b) of the Act for exemptions from 
sections 17(a)(1) and (2) of the Act. The requested order would permit: 
(a) certain open-end management investment companies (``Funds'') to 
issue a new class of shares with limited redeemability (``VIPERS''); 
(b) secondary market transactions in VIPERs at negotiated prices on a 
national securities exchange; (c) dealers to sell VIPERs to secondary 
market purchasers unaccompanied by a prospectus, when prospectus 
delivery is not required by the Securities Act of 1933 (``Securities 
Act''); and (d) certain affiliated persons of the Funds to deposit 
securities into, and receive securities from, the Funds in connection 
with the purchase and redemption of aggregations of VIPERs.
    On October 6, 2000, a notice of the filing of the application was 
issued (Investment Company Act Release No. 24680). The notice gave 
interested persons an opportunity to request a hearing and stated that 
an order disposing of the application would be issued unless a hearing 
was ordered. On October 30, 2000, Standard & Poor's (``S&P''), a 
division of McGraw-Hill Companies, Inc. (``McGraw-Hill''), submitted a 
hearing request on the application (``Hearing Request'').
    Rule 0-5(c) states that the Commission will order a hearing on a 
matter, upon the request of an ``interested person'' or upon its own 
motion, if it appears that a hearing is ``necessary or appropriate in 
the public interest or for the protection of

[[Page 79440]]

investors.'' The Commission has reviewed each of the issues raised in 
the Hearing Request and finds that none of the issues warrants ordering 
a hearing on the application. Set forth below is a summary of each of 
the arguments made by S&P in support of a hearing and the Commission's 
findings.
    First, S&P states that McGraw-Hill has filed suit against Vanguard 
concerning the use of S&P indices and trademarks in connection with the 
issuance of VIPERs (``Litigation''). S&P states that it is not in the 
public interest for the Commission to grant the requested exemptions 
when Vanguard's right to issue VIPERs is being challenged in the 
Litigation. S&P asserts that a potentially chaotic situation could 
develop if S&P prevails in the Litigation after the Commission allows 
the issuance of VIPERs.
    The Commission has determined that the Litigation is not relevant 
to the issues the Act requires the Commission to consider in deciding 
whether to grant or deny the application. The Litigation does not 
relate to or challenge any of the specific exemptions requested by 
Vanguard, nor does the Litigation assert any claims under the Act. With 
respect to any potential detriment that shareholders might suffer if 
S&P prevails in the Litigation after the issuance of VIPERs, any 
conclusions that the Commission might reach, even if a hearing were 
held, would require the Commission to speculate on the outcome of the 
Litigation and on the possible remedies that would be imposed.
    Second, S&P states that it is not in the interests of investors for 
Vanguard to issue VIPERs when Vanguard appears unable to meet its 
obligations as set forth in the notice. Specifically, S&P asserts that 
Vanguard's representatives in the Litigation suggest that VIPERs are 
simply shares of an additional class of an existing Fund, while the 
representations in the application indicate that Vanguard will 
highlight the differences between VIPERs and traditional mutual fund 
investments. S&P indicates that these contradictory public positions 
could lead to investor confusion.
    The Commission thoroughly considered the issue of potential 
investor confusion during the review of the application. In the 
application, Vanguard agrees to a variety of specific measures designed 
to address this issue. The Commission has determined that S&P has not 
raised any issue that, if substantiated, would indicate that Vanguard 
would not meet the obligations set forth in the application. If 
Vanguard were unable to meet its obligations, the Commission would take 
appropriate action.
    Third, S&P states that it is not in the interests of investors for 
the Commission to facilitate an unconventional investment that may 
never achieve its stated purpose of encouraging short-term traders not 
to trade in shares of the conventional classes of the Funds. 
Specifically, S&P states that because Vanguard may charge an 
administrative fee when shareholders in a conventional class of a Fund 
exchange shares for VIPERs, the Vanguard proposal may not succeed in 
drawing short-term traders from conventional classes to exchange-traded 
classes. S&P also states that a hearing would be appropriate to explore 
why Vanguard's current and previous prospectuses do not discuss the 
problems that the application attributes to short-term traders.
    The Commission finds that the specific issues raised by S&P are not 
relevant to the relief requested by Vanguard in the application. In the 
application, Vanguard represents that any administrative fee assessed 
on exchanges will comply with rule 11a-3 under the Act, which governs 
this type of fee. Vanguard has not requested any relief relating to the 
imposition of this fee. Any disclosure issues in current and prior 
prospectuses have been addressed previously as necessary during the 
disclosure review process and are not the subject of the application.
    Finally, S&P questions whether the Commission should grant the 
requested relief from section 24(d) of the Act, which would allow 
dealers to sell VIPERs to secondary market purchasers unaccompanied by 
a prospectus, when the Securities Act does not require prospectus 
delivery. S&P argues that because of the risks of the Litigation and 
the possible effect of the Litigation on the Funds, the Commission 
should require Vanguard to deliver prospectuses disclosing information 
about the Litigation to all VIPERs investors.
    The Commission fully considered issues relating to prospectus 
delivery relief during its review of the application. A condition to 
the prospectus delivery relief is that the national securities exchange 
that lists VIPERs will require the delivery of a product description to 
secondary market purchasers. As stated in the application, the product 
description must provide, among other things, a plain English overview 
of the material risks of owning the Fund's shares. The product 
description also must disclose the actions that would be taken if the 
Fund's license with S&P were terminated. In addition, the Commission 
understands that Vanguard intends to include a description of the 
Litigation in the product description that will be similar to the 
disclosure contained in the Fund's prospectus.
    On the basis of the foregoing, the Commission finds that S&P has 
not articulated any material issue of fact or law that is relevant to 
the Commission's decision whether to grant the requested relief or that 
has not been considered previously.\1\ It therefore appears that a 
hearing is not necessary or appropriate in the public interest or for 
the protection of investors.
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    \1\ The Commission does not deem it necessary to make a formal 
determination with respect to the status of S&P as an ``interested 
person'' within the meaning of section 40(a) of the Act and rule 0-
5(c) under the Act inasmuch as the Commission has determined that 
the assertions made and the issues raised in connection with the 
application do not warrant a hearing.
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    Accordingly,
    It Is Ordered that the request for a hearing is denied.
    The matter having been considered, it is found, on the basis of the 
information set forth in the application, as amended, that granting the 
requested exemptions is 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.
    It is further found that the terms of the proposed transactions are 
fair and reasonable and do not involve overreaching on the part of any 
person concerned, and that the proposed transactions are consistent 
with the policy of each registered investment company concerned and the 
general purposes of the Act.
    Accordingly,
    It Is Further Ordered, that the requested exemptions under section 
6(c) of the Act from sections 2(a)(32), 18(f)(1), 18(i), 22(d), and 
24(d) of the Act and rule 22c-1 under the Act, and under sections 6(c) 
and 17(b) of the Act from sections 17(a)(1) and (2), are granted, 
effective immediately, subject to the conditions contained in the 
application, as amended.
    The exemption from section 24(d) of the Act does not affect a 
purchaser's rights under the civil liability and anti-fraud provisions 
of the Securities Act. Thus, rights under section 11 and section 
12(a)(2) of the Securities Act extend to all purchasers who can trace 
their securities to a registration statement filed with the Commission, 
regardless of whether they were delivered a prospectus in connection 
with their purchase.


[[Page 79441]]


    By the Commission.
Jonathan G. Katz,
Secretary.
[FR Doc. 00-32208 Filed 12-18-00; 8:45 am]
BILLING CODE 8010-01-M