[Federal Register Volume 71, Number 97 (Friday, May 19, 2006)]
[Notices]
[Pages 29189-29190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7646]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-27318; 812-13291]


Morgan Stanley and Co. Incorporated, et al.; Notice of 
Application and Temporary Order

May 15, 2006.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Temporary order and notice of application for a permanent order 
under section 9(c) of the Investment Company Act of 1940 (``Act'').

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Summary of Application: Applicants have received a temporary order 
exempting them and any other company of which Morgan Stanley & Co. 
Incorporated (``MS&Co.'') is or in the future becomes an affiliated 
person (``Covered Persons'') from section 9(a) of the Act with respect 
to an injunction entered against MS&Co. on May 12, 2006 by the U.S. 
District Court for the District of Columbia (the ``Injunction''), until 
the Commission takes final action on an application for a permanent 
order. Applicants also have applied for a permanent order with respect 
to the Injunction.

Applicants: MS&Co., Morgan Stanley AIP GP LP, Morgan Stanley Asset & 
Investment Trust Management Co., Limited, Morgan Stanley Investment 
Advisors Inc., Morgan Stanley Investment Management Company, Morgan 
Stanley Investment Management Inc., Morgan Stanley Investment 
Management Limited, Van Kampen Advisors Inc., and Van Kampen Asset 
Management (together, the ``Advisers''); Morgan Stanley Distribution, 
Inc., Morgan Stanley Distributors Inc., and Van Kampen Funds Inc. 
(together, the ``Underwriters''); Morgan Stanley Capital Partners III, 
Inc., Morgan Stanley Global Emerging Markets, Inc., Morgan Stanley 
Private Equity Asia, Inc., Morgan Stanley Venture Capital III, Inc., 
MSDW Capital Partners IV, Inc., MSDW OIP Investors, Inc., MSDW Real 
Estate Special Situations II Manager, L.L.C., MSDW Venture Partners IV, 
Inc., MSREF II, Inc., MSREF III, Inc., MSREF IV, L.L.C., MSREF V, 
L.L.C. and MSVP 2002, Inc. (together, ``ESC Managers'' and, with the 
Advisers and Underwriters, the ``Applicants'').

Filing Dates: The application was filed on May 10, 2006. Applicants 
have agreed to file an amendment during the notice period, the 
substance of which is reflected in this notice.

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 June 9, 2006, and should be accompanied by proof of service on 
Applicants, in the form of an affidavit, or for lawyers, a certificate 
of service. Hearing requests should state the nature of the writer's 
interest, the reason for the request, and the issues contested. Persons 
who wish to be notified of a hearing may request notification by 
writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington, DC 20549-1090; Applicants, c/o Barry Fink, 
Esq., Morgan Stanley, 1221 Avenue of the Americas, 22nd Floor, New 
York, NY 10020.

FOR FURTHER INFORMATION CONTACT: John Yoder, Senior Counsel, at (202) 
551-6878, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division 
of Investment Management, Office of Investment Company Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
Public Reference Desk, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington DC 20549-0102, (telephone (202) 551-5850).

Applicants' Representations

    1. Each Applicant is a direct or indirect subsidiary of Morgan 
Stanley, a Delaware corporation. Morgan Stanley is a publicly held 
global financial services company that, through its subsidiaries and 
affiliates, provides investment, financing, advisory, insurance, 
banking and related products and services. MS&Co., a Delaware 
corporation, is a global financial services firm and is registered as a 
broker-dealer under the Securities Exchange Act of 1934 (the ``Exchange 
Act'') and as an investment adviser under the Investment Advisers Act 
of 1940. MS&Co. serves as principal underwriter for, and the other 
Applicants serve as investment adviser, subadviser, depositor or 
principal underwriter for, numerous registered investment companies 
(``Funds''). The ESC Managers serve as the general partner or 
investment adviser to certain employees' securities companies operating 
pursuant to Commission orders (included in the term ``Funds'').\1\
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    \1\ Morgan Stanley Capital Investors, L.P., Investment Company 
Act Release Nos. 24340 (Mar. 17, 2000) (notice) and 24389 (Apr. 12, 
2000) (order); Morgan Stanley Venture Investors, L.P., Investment 
Company Act Release Nos. 20206 (Apr. 8, 1994) (notice) and 20276 
(May 4, 1994) (order).
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    2. On May 12, 2006, the U.S. District Court for the District of 
Columbia entered the Injunction against MS&Co. in a matter brought by 
the Commission.\2\ The Commission alleged in the complaint 
(``Complaint'') that MS&Co. violated section 17(b) of the Exchange Act 
and rule 17a-4(j) thereunder of the Exchange Act by failing to produce 
e-mails to the Commission staff pursuant to Commission subpoenas and 
requests in the Commission's investigation into MS&Co.'s practices in 
allocating shares of stock in initial public offerings and an 
investigation into conflicts of interest between the firm's research 
and investment banking practices. Without admitting or denying any of 
the allegations in the Complaint, except as to jurisdiction, MS&Co. 
consented to the entry of the Injunction as well as the payment of a 
civil penalty of $15 million.\3\
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    \2\ U.S. Securities and Exchange Commission v. Morgan Stanley & 
Co. Incorporated, Final Judgment Against Morgan Stanley & Co. 
Incorporated, 06:CV00882 (RCL) (D.D.C., filed May 12, 2006).
    \3\ The civil penalty would be reduced by any amounts up to 
$5,000,000 paid by MS&Co. pursuant to its agreements with NASD and 
the New York Stock Exchange to pay a total of $5,000,000 in 
penalties in related proceedings.
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Applicants' Legal Analysis

    1. Section 9(a)(2) of the Act, in relevant part, prohibits a person 
who has been enjoined from engaging in or continuing any conduct or 
practice in connection with the purchase or sale of a security from 
acting, among other things, as an investment adviser or depositor of 
any registered investment company or a principal underwriter for any 
registered open-end investment company, registered unit investment 
trust or registered face-amount certificate company. Section 9(a)(3) of 
the Act makes the prohibition in section 9(a)(2) applicable to a 
company, any affiliated person of which has been disqualified under the 
provisions of section 9(a)(2). Section 2(a)(3) of the Act defines 
``affiliated person'' to include any person directly or indirectly 
controlling, controlled by, or under common control with, the other 
person.

[[Page 29190]]

Applicants state that MS&Co. is an affiliated person of each of the 
other Applicants within the meaning of section 2(a)(3) of the Act. 
Applicants state that, as a result of the Injunction, they would be 
subject to the prohibitions of section 9(a).
    2. Section 9(c) of the Act provides that the Commission shall grant 
an application for exemption from the disqualification provisions of 
section 9(a) if it is established that these provisions, as applied to 
the applicants, are unduly or disproportionately severe or that the 
applicants' conduct has been such as not to make it against the public 
interest or the protection of investors to grant the application. 
Applicants have filed an application pursuant to section 9(c) seeking a 
temporary and permanent order exempting them from the disqualification 
provisions of section 9(a) of the Act.
    3. Applicants believe they meet the standards for exemption 
specified in section 9(c). Applicants state that the prohibitions of 
section 9(a) as applied to them would be unduly and disproportionately 
severe and that the conduct of Applicants has been such as not to make 
it against the public interest or the protection of investors to grant 
the exemption from section 9(a).
    4. Applicants state that none of the persons who had any 
involvement in the conduct underlying the Injunction are current or 
former officers, directors or employees of the Covered Persons engaged 
in the provision of investment advisory, underwriting or depositor 
services to the Funds. Applicants further state that the alleged 
conduct underlying the Injunction did not involve any Funds.
    5. Applicants state that the inability to continue providing 
advisory services to the Funds and the inability to continue serving as 
principal underwriter or depositor to the Funds would result in 
potentially severe hardships for the Funds and their shareholders. 
Applicants also state that they will distribute as soon as is 
reasonably practical written materials, including an offer to meet in 
person to discuss the materials, to the boards of directors or trustees 
of the Funds (the ``Boards''), including the directors or trustees who 
are not ``interested persons,'' as defined in section 2(a)(19) of the 
Act, of the Funds and their independent legal counsel, as defined in 
rule 0-1(a)(6) under the Act, if any, regarding the Injunction, any 
impact on the Funds, and this application.\4\ Applicants will provide 
the Boards with all information concerning the Injunction and this 
application that is necessary for the Funds to fulfill their disclosure 
and other obligations under the federal securities laws.
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    \4\ With respect to Funds that are unit investment trusts 
(``UITs''), Applicants will provide written notification to the 
trustee for each of the UITs concerning the Injunction, any impact 
on the UITs, and the application, and will provide any other related 
information that may be requested by the trustee.
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    6. Applicants also assert that, if they were barred from providing 
services to the Funds, the effect on their businesses and employees 
would be severe. Applicants state that they have committed substantial 
resources over more than thirty years to establish an expertise in 
advising and underwriting Funds. Applicants recently applied for and 
received an exemption pursuant to section 9(c) of the Act for conduct 
relating to certain practices in allocating shares of stock in initial 
public offerings.\5\ Applicants also applied for an exemption for 
conduct relating to certain research analysts' conflicts of 
interest.\6\ In addition, Dean Witter Reynolds Inc., the predecessor of 
Morgan Stanley DW Inc., previously sought and received an exemption 
under section 9(c) of the Act.\7\
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    \5\ Morgan Stanley AIP GP LP, Investment Company Act Release 
Nos. 26749 (Feb. 4, 2005) (notice and temporary order) and 26779 
(Mar. 2, 2005) (permanent order).
    \6\ Morgan Stanley Investment Advisers Inc., Investment Company 
Act Release Nos. 26236 (Oct. 31, 2003) (notice and temporary order) 
and 26824 (Mar. 29, 2005) (permanent order).
    \7\ Dean Witter Reynolds Inc., Investment Company Act Release 
Nos. 17887 (Nov. 29, 1990) (notice and temporary order) and 18119 
(Apr. 29, 1991) (permanent order).
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Applicants' Condition

    Applicants agree that any order granting the requested relief will 
be subject to the following condition:
    Any temporary exemption granted pursuant to the application shall 
be without prejudice to, and shall not limit the Commission's rights in 
any manner with respect to, any Commission investigation of, or 
administrative proceedings involving or against, Covered Persons, 
including without limitation, the consideration by the Commission of a 
permanent exemption from section 9(a) of the Act requested pursuant to 
the application or the revocation or removal of any temporary 
exemptions granted under the Act in connection with the application.

Temporary Order

    The Commission has considered the matter and finds that Applicants 
have made the necessary showing to justify granting a temporary 
exemption.
    Accordingly, it is hereby ordered, pursuant to section 9(c) of the 
Act, that Covered Persons are granted a temporary exemption from the 
provisions of section 9(a), effective as of the date of the Injunction, 
solely with respect to the Injunction, subject to the condition in the 
application, until the date the Commission takes final action on an 
application for a permanent order.

    By the Commission.
Jill M. Peterson,
Assistant Secretary.
 [FR Doc. E6-7646 Filed 5-18-06; 8:45 am]
BILLING CODE 8010-01-P