Effective November 4, 2022, This Letter is Withdrawn. Please

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December 10, 1998

Our Ref No. 98-11-CC

RESPONSE OF THE OFFICE OF CIllEF COUNSEL

DIVISION OF INVESTMENT MANAGEMENT

Franklin Management, Inc.

File No. 801-13802

Your letter of December 7, 1998 seeks assurance that the staff would not recommend

enforcement action to the Commission under Section 206(4) of the Investment Advisers Act of

1940 (the"Advisers Act") and Rule 206(4)-l(a)(2) thereunder if, as described more fully

below, Franklin Management, Inc. ("Franklin"), a registered investment adviser, distributes to

existing and prospective advisory clients a quarterly report which identifies and discusses

some, but not all, of the specific securities bought, sold, or held by the adviser for investment

advisory accounts.

Fninklin Management, Inc. ("Franklin") is an investment adviser registered under the

Advisers Act. You represent that Franklin provides investment~Q,.vice and management

services to individuals, institutions and non-profit organizations (the "advisory clients"). Each

of the advisory client accounts managed by Franklin (the "managed accounts") typically falls

within a specific investment category (e~g.• growth, fIXed-income) that reflects the advisory

client's investment objectives. Currently, Franklin prepares a quarterly report for each

separate investment category that discusses recent market developments and the adviser's

market outlook (the "Reports"). Franklin sends these Reports to'existing advisory clients with

managed accounts, and to prospective advisory clients.

Franklin proposes to include in th~ Reports information about some of the specific

portfolio management decisions made during the preceding quarter, and some of the reasons

for those decisions. Specifically, Franklin wants to identify and discuss specific securities that

were bought, sold, or held for managed accounts within an investment category, some of the

reasons for the management decisions affecting managed accOunts in a specific category, or a

brief analysis of the issuer of the security. You believe that this information could be useful to

existing and prospective clients because· it coUld help them to better understand the adviser's

actions, and the reasons underlying the adviser's investment decisions. You also state that

some existing .and prospective clients specifically have requested that this type of information

be included in the Reports.

You represent that Franklin will use objective, non-performance based criteria to select

the securities that it will list and discuss in a Report. For example, Franklin might select

securities based upon the largest dollar amount of purchases or sales of securities made for

managed accounts in a category, the largest positions held during the quarter by managed

accounts in a category, or some other objective criteria. You represent that Franklin will use

the same selection criteria for each quarter for a particular investment category. You also

represent that the Reports will not discuss, directly or indirectly, the amount of any profits or

losses, realized or unrealized, of any of the specific securities. You represent that each Report

will contain disclosure that generally states that the specific securities identified and described

2

do not represent all of the securities purchased, sold, or recommended for advisory clients, and

that the reader should not assume that investments in the seCurities identified and discussed

were or will be profitable. You further represent that you will maintain, and make available to

the Commission staff upon request, records that evidence: (1) the complete list of all seciIrities .

recommended by Franklin in the preceding year for·the specific investment category covered

by each Report; (2) the infonnation set forth in Rule 206(4)-1(a)(2)(A) for each

recommendation;l and (3) the criteria used to select the specific securities listed in each

2

Report.

You state that it would not be practical to prepare and distribute Reports that list all of

the securities, with all of the infonnation contemplated by Rule 206(4)-1(a)(2), that Franklin

has purchased, sold, or recommended to advisory clients during the preceding year (e.g.,

Franklin has recommended over 500 specific securities within the preceding year period). You

also state that it would not be feasible for Franklin to prepare an individualized written report

for each advisory client because of the large number of accoun~dermanagement. You

further contend that it is not necessary to prepare individualized written reports for each client

because most managed accounts in the same investment category will be invested in similar

proportions in substantially the same securities. 3

.

.

Analysis

Section 206(4) of the Advisers Act prohibits investment .advisers from engaging in any

act, practice, or cOurse of business that the Commission, by rule, defines as fraudulent,

deceptive or manipulative. Rule 206(4)-1(a)(2) under the Advisers Act generally provides that

lRule 206(4)-1(a)(2)(A) provides that the rule's prohibition against including past specific

recommendations that were or would have been profitable in an advertisement does not apply ifthe

advertisement ificludes or offers to furnish a list of all recommendations made by the adviser that

includes the following infonnation: (1) the name of each security recommended; (2) the date and nature

of each recommendation (e.g., whether to buy, sell or hold): (3) the market price at the time of the

recommendation; (4) the price of the security when the recommendation was to be acted upon; (5) the

market price of each such security at the most recent practicable date, and (6) a disclaimer regarding

the profitability of recommendations in the future.

7elephone conversation on December 9, 1998 between Lawrence Stadulis, counsel for

Franklin, and Mercer Bullard of the Commission staff.

3you represent that Franklin operates th~ managed accoUnts in accordance with Rule 3a-4

under the Investment Company Act of 1940. Rule 3a-4 provides a non-exclusive-safe harbor from the

definition of "investment company" for certain investment advisory programs that are designed to

provide the same or similar portfolio management services on a discretionary basis to a large number

of clients. You do not.seek our views, and we provide none, regarding the operation of Franklin's

investment advisory programs under Rule 3a-4.

3

it is a fraudulent, deceptive or manipulative act, practice, or course of business for any

4

investment adviser to publish, circulate, or distribute any advertisement "[w]hich refers~

directly or indirectly, to past specific recommendations of such. investment adviser which were

or would have been profitable to any person .... " Rule 206(4)-I(a)(2), however, does not

prohibit an advertisement "which sets out or offers to furnish a list of all recommendations

made by such investment adviser" during the preceding year, provided that the advertisement

5

or the list contains certain specific disclosure about the recommendations.

When the Commission adopted Rule 206(4)-1, it stated that advertisements containing

past SPeCific recommendations were inherently misleading because "by their very nature they

emphasize the comments and the activities favorable to the investment adviser and ignore those

which were unfavorable.,,6 The primary concern underlying the prohibition against

advertisements containing past specific recommendations is that an adviser could "cherry-pick"

7

its profitable recommendations and omit the unprofitable ones. Under those circumstances,

an advertisement could fraudulently or deceptively imply that ~recommendations listed, and

their profitability, are representative of the experience of the adviser's clients. Thus, the staff

consistently has interpreted Rule 206(4)-1(a)(2) as prohibiting advertisements containing only a

selected list of past specific recommendations, even if accompanied by an offer to fumishthe

remainder in a separate list. 8

By its terms, Rule 206(4)-1(a)(2) prohibits advisers from distributing advertisements

containing only "past specific recommendations." Thus, an advertisement that lists only the

4Franklin,s Reports would be "advertisements" as that tenn is-defined in Rule 206(4)-1(b)

under the Advisers Act because they would be communications addressed to existing and prospective

clients that offer advisory services regarding securities. See Munder Capital Management (pub. avail.

May 17, 1996) ('[m]aterials designed to maintain existing clients or solicit new clients for the adviser

are considered to be advertisements within Rule 206(4)-1. ").

5

See n.l, supra.

6Advisers Act Release No. 121 (Nov. 2, 1961) ("Adopting Release';).

7See Starr and Kuehl, Inc. (pub. avail. Apr. 17, 1976) (providing p~ospective clients with

selected past issues of an adviser's newsletter in order to solicit new subscribers could violate Rule

206(4)-I(a)(2».

8See Dow Theory Forecasts, Inc. (pub. avail. Aug. 26, 1983) ("Rule 206(4)-I(a)(2) does not

permit an advertisement which refers, directly or indirectly, to past specifi;c recommendations of an

investment adviser which were or would have been profitable to any person even if the advertisement

offers to provide a full list of all reconiInendations made eluting the pr~g period of not less than

one year with all the details specified in the rule. "). See also James B. Peeke & Co. (pub. avail. Sep.

13, 1982); J.D. _Minnick & Co. (pub. avail. Apr. 30, 197~).

'-.

4

current recommeridations9 of an adviser would not be subject to Rule 206(4)-1(a)(2).10 The

Reports would not contain only current recommendations, however, because you propose that

the Reports include discussion and analysis of specific securities that Franklin may no longer

be recommending.

Rule 206(4)-l(a)(2) prohibits advertisements that contain past specific recommendations

which "were or would have been profitable to any person. "11 You contend that the Reports do

not fall within the literal prohibition of Rule 206(4)-l(a)(2) because they will not state, directly

or indirectly, whether any of the specific securities identified and discussed in the Reports

were or would have been profitable. You also contend that, because the specific securities that

would be discussed in the Reports would be selected based upon objective, non-performance

based criteria that would be consistently applied, the Reports would not emphasize the

favorable recommendations and ignore the unfavorable, and thus should not be prohibited by

Rule 206(4)-l(a)(2).

~>~.

.

We disagree. The express wording of Rule 206(4)-l(a)(2»>rohibits any advertisement

that contains selected past specific recommendations that were or would have been profitable

regardless of whether the advertisement directly or indirectly states whether the

recommendations were or would have been-profitable. Rule 206(4)-1(a)(2) was intended to

prohibit advertisements by an investment adviser that would give existing or prospective clients

a misleading impression of an -adviser's performance by selectively referring to profitable past

recommendations of the adviser while ignoring the unprofitable. 12 To prevent such misleading

advertisements, the Commission adopted a broad prohibition against advertisements containing

selected past specific recommendations that were or would have been profitable.

~ether a specific recommendation is a past recommendation Or' a current recommendation

will depend largely on.the facts and circumstances as of the time that the advertisement is distributed to

a recipient. For example, an advertisement containing only an adviser's current recommendations, and

thus was not subject to Rule 206(4)-1(a)(2), could fall within the prohibition of the rule if the

advertisement were distributed after the adviser ceases recommending any of the particular securities

listed, or if the advertisement indicated that any of the current recommendations listed were

recommended by the adviser in the past. See,~, Starr and Kuehl, supra n.7 (once current

recommendations that had become stale).

10Advertisements that contain an adviser's current recommendations, however, are subject to

Rule 206(4)-1(a)(5) under the Advisers Act. Rule 206(4)-1(a)(5) generally prohibits advisers from

distributing advertisements that contain any untrue statement of material fact or are otherwise false or

misleading.

llRule 206(4)-1(a)(2) does not prohibit an adviser from distributing advertisements that identify

and discuss the adviser's unprofitable recommendations.

12See Adopting Release, supra n.6; Starr and Kuehl, supra n.7.

5

Nonetheless, we would not recommend enforcement action to the Commission under

Section 206(4) pursuant to Rule 206(4)-1(a)(2) if Franklin distributes the Reports, prepared

and presented in the manner described in your letter, to existing·or prospective clients. As

discussed above, Rule 206(4)-1(a)(2) was intended to prevent an adviser from distributing

advertisements that would give clients a misleading impression of the adviser's performance by

emphasizing its profitable recommendations while ignoring its unprofitable ones. We believe

that Reports prepared and presented in the manner described in your letter could be useful

information to existing and prospective clients, and do not raise the dangers that Rule 206(4)1(a)(2) was designed to prevent. The use of objective, non-performance bas~ selection

criteria should limit an adviser's ability to cherry-pick its profitable recommendations to the

exclusion of its unprofitable ones, and this, coupled with the requirement that the Reports will

not discuss the amount of profit or loss of any particular security recommended by the adviser,

should prevent an advertisement from misleading clients about an adviser's performance based

solely upon the inclusion of past specific recommendations: Thus, in taking this position, we

. rely in.particular

on your representations that: (1) Franklin wilL~ objective, non"

performance based criteria to select the specific securities that it \W1list and discuss in the

Reports; (2) Franklin will use the same selection criteria for each quarter for each particular

investment category; (3) the Reports will not discuss, directly or indirectly, the amount of the

profits or losses, realized or unrealized, of any of the specific securities; and (4) Franklin will

maintain the records described above, and, upon request, make them available for inspection

by the staff of the Commission.

~.~

This letter addresses only an adviser's responsibilities with respect to Section 206(4) of

the Advisers Act as defined solely by Rule 206(4)-1(a)(2) thereunder. Advisers that distribute

advertisements containing selected past recommendations must ensure that the advertisements

13

comply with Rule 206(4)-1(a)(5) under the Advisers Act. Advisers that distribute .

13Rule 206(4)-I(a)(5) provides that it is a fraudulent, deCeptive or manipulative act, practice or

course of business within the meaning of Section 206(4) of the Advisers Act for any adviser to

distribute, directly or indirectly, any advertisement that contains any untrue statement of material fact

or that is otherwise false or misleading. Whether a particular advertisement is false or misleading

depends upon all the relevant facts and circumstances. See, Y.... Anametrics Investment Management

(pub. avail. May 5, 1977) (whether an advertisement is misleading will depend upon all of the

particular facts. including the form and content of the advertisement, the implications or inferences

arising out of the context of the advertisement. and the sophistication of the recipient of the

advertisement).

6

advertisements containing past specific recommendations also remain subject to the

14

prohibitions of Sections 206(1) and (2) of the Advisers Act.

CL~·4

Eileen M. Smiley

Senior Counsel

..:£

- ,....

14SeeCambiar Investors, Inc. (pub. avail. Aug. 28, 1997) (staff concurred with the view that

an advertisement containing a partial client list was not a testimonial within the meaning of Rule

206(4)-I(a)(I), and agreed not to recommend enforcement action under Section 206(4) of the Advisers

Act and Rule 206(4)-1(a)(5) if an adviser distributed an advertisement that contained Ii partial client list

if the selection criteria were objective and unrelated to the perfonnance of the clients' accounts, and

the advertisement contained certaindisclosure and a disclaimer).

Morgan, Lewis

1800 M Street, NW.

Washington, D.C. 20036-5869

& Bockius LLP

202-467-7000

Fax: 202-467-7176

COUNSELORS

AT

LAW

December 7, 1998

'7:';r'~I:=:'-'''::''-::';~~=-~l

REeD c).E.G.

Douglas J. Scheidt, Esq.

Associate Director and Chief Counsel

Division of Investment Management

Securities and Exchange Commission

450 Fifth Street, N.W.

Washington, D.C. 20549

Re:

Rule 206(4)-1 Under the Investment Advisers Act of 1940

. Dear Mr. Scheidt:

The purpose of this letter is to request that the staff of the Division of Investment Management

concur with our view that Rille 206(4)-1(a)(2) under the Investment Advisers Act of 1940

("Advisers Act") woilld not prohibit Franklin Management Inc:-("FMI") from providing to

existing or prospective clients advisory reports which identify and discuss some, but not all, of

the specific ~ecurities bought, sold or held for accounts that FMI managed during the last

calendar quarter, under the circumstances described below. In the alternative, this letter

requests assurance that the staff will not recommend enforcement action to the Securities and

Exchange Commission ("SEC") under Rille 206(4)-I(a)(2) ifFMI distributes such reports to

existing or prospective clients.

Background

The Franklin Templeton Group includes a number of advisers (the "Franklin Templeton

Advisers") that are registered with the SEC under the Advisers Act. Franklin Templeton

Advisers have been engaged in the investment management business for many years and serve

a large number and variety of clients throughout the world. In addition to providing

investment advice to investment companies organized in the United States and abroad,

WA05/36675.4

Philadelphia

Washington

New Yorl<

Los Angeles

Miami

Harrisburg

Pittsburgh

london

Brussels

Frankfurt

Tokyo

Singapore

Jakarta

Princeton

Douglas J. Scheidt

December 7, 1998

Page 2

Morgan, Lewis

& Bockius UP

Franklin Templeton Advisers offer private account management services to individuals,

institutions and non-profit organizations. As of September 30, 1998, Franklin Templeton

Advisers managed approximately $208 billion in private account assets.

Certain Franklin Templeton Advisers, including FMI, provide private account clients and

prospective clients with quarterly or other periodic reports discussing recent market

developments and their market outlook, investment strategies and any changes in strategies

since the prior quarter. Because managed accounts typically fall into separate investment

categories, a separate "Investment Outlook" report may be written for each investment

category and sent to all clients with accounts in that category.

Given the large number of accounts under management by each"franklin Templeton Adviser, it

is not feasible to write a separate "Investment Outlook" report f~ach client, nor is it

necessary since most aCcounts in a given category are generally invested in substantially the

same securities and in similar proportions, in accordance with the conditions of Rule 3a-4

under the Investment Company Act of 1940.

FMI would like to be able to include in its "Investment Outlook" reports information about

some of its specific portfolio management decisions during the most recent calendar quarter,

and the reasons for these decisions. Specifically, FMI wishes to be able to identify, by name,

and to discUss in the reports several specific securities that were bought, sold or held for

managed accounts during a given quarter, and explain the reasons for each such buy, sell or

hold decision or provide a brief analysis and review of the issuer of the securities. FMI

believes that this information would be useful to current and prospective clients and would

help them better understand and appreciate the actions taken and the thinking behind FMI's

investment approaches. Some existing and prospective clients have specifically asked that this

type of information be included in the "Investment Outlook" reports.

It would not be practical to prepare a report which attempted to discuss or even to list all

securities which FMI has purchased, sold or recommended to its clients over the past full year.

FMI typically recommends more than 500 securities during the course of a single year to its

clients. As a result, itwould not be practical to include in each "Investment Outlook" report

even a simple listing of these securities, let alone a detailed report concerning them. Also, the

utility of such a comprehensive listing or detailed report would be extremely limited given the

fact that FMI manages at least six separate categories of client investment accounts, each of

which invests in different types of securities. For example, a client following a tax exempt

investment strategy is not likely to be interested in small cap or real estate securities

recommended by FMI.

WA05/36675.4

Morgan. Lewis

Douglas J. Scheidt

December 7, 1998

Page 3

&

Bockius u.P

Therefore, FM! proposes to discuss in each "Investment Outlook" or similar report a limited

number of specific securities drawn from the portfolio holdings of accounts in the particular

investment category covered by the report. These securities will be selected on the basis of

objective, non-performance based criteria consistently applied. For example, FM! may discuss

the three largest purchases and the three largest sales by dollar size made for the accounts in a

category during the quarter or the three largest account holdings during a quarter. Other nonperformance related selection criteria could include selections made on an alphabetical or other

rotational basis among portfolio holdings. The selection criteria will be consistently applied

from quarter to quarter for each investment category for which a report is written. There will

be no mention of the amount of profits or losses, realized, unrealized or expected, on any ofthe

securities identified and discussed.

Each "Investment Outlook" report will include cautionary stat~:i1ents along the following lines:

The information provided in this report should not be considered a

recommendation to purchase or sell any particular security. There is no

assurance that any securitiesdiscussed herein win remain in an account's

portfolio at the time you receive this report or that securities sold have not been

repurchased. The securities discussed do not represent an account's entire

portfolio and in the aggregate may represent only a small percentage of an

account's portfolio holdings.

It should not be assumed that any of the securities transactions or holdings

discussed were or will prove to be profitable, or that the investment

recoI!lll1endations or decisions we make in the future will be profitable or will

equal" the investment performance of the securities discussed herein.

Applicable Law

Rule 206(4)-I(a)(2) under the Advisers Act makes it a fraudulent, deceptive or manipulative

act, practice or course of business for any investment adviser to use any advertisement:

Which refers, directly or indirectly, to past specific recommendations of such

investment adviser which were or would have been profitable to any person;

provided, however, that this shall not prohibit an advertisement which sets out

or offers to furnish a list of all recommendations made by such investment

adviser within the immediately preceding period of not less than one year if

such advertisement, and such list if it is furnished separately: (A) state the

WAOS/36675.4

Douglas J. Scheidt

December 7, 1998

Page 4

Morgan. Lewis

&Bockiusup

name of each such security recommended, the date and nature of each such

recommendation (e.g., whether to buy, sell·or hold), the market price at that

time,'the price at which the reconunendation was to be acted upon, and the

market price of each such security as of the most recent practicable date, and

(B) contain the following cautionary legend on the first page thereof in print or

type as large as the largest print or type used in the body or text thereof: "It

should not be assumed that recommendations made in the future will be

profitable or will equal the performance of the securities in this list."

Paragraph (a)(2) of Rule 206(4)-1 is intended to prohibit advertisements by an investment

adviser which would give prospective advisory clients a misleading impression of the adviser's

investment performance by referring only to past specific reco1l!!TIendations of the adviser

which were or would have been profitable while ignoring those~mmendations which were

unprofitable, a practice also known as "cherry picking." See, e.g., Foster & Marshall Inc.

(avail. Feb. 18, 1977).

As noted above, specific securities discussed in the reports will be selected on the basis of nonperformance based objective criteria that are consistently applied. We believe our proposal is

consistent with prior staff interpretations under Rule 206(4)-1 (a)(I), which prohibits client

testimonials in investment advertisements. Under these interpretations, the staff did not object

to the inclusion of a partial client list in adviser advertisements where the clients included in

the list were selected on the basis of criteria that were not performance-based.

We are aware that the staff has interpreted paragraph (a)(2) of Rule 206(4)-1 to prohibit

references to. selected past recommendations of an investment adviser which were or would

have been prOfitable, unless all recommendations made within the immediately preceding year

also are set forth in the advertisement with all the necessary details and disclosure statement.

See, e.g., Dow Theory Forecasts, Inc. (available Aug. 26, 1983).

We believe, however, that the use of materials that do not "cherry pick" profitable

recommendations, that use objective, non-performance based criteria to identify certain

holdings or transactions, and that do not discuss the amount of profits would not violate

paragraph (a)(2). Further, we believe that the type of reports described in this letter would not

be inherently fraudulent or misleading.

Recent actions suggest that the SEC may be willing to reevaluate its past interpretation of the

past specific recommendation rule. In the Matter ofStellar Management, Inc., Advisers Act

Release No. 1416 (June 6, 1994), the SEC found that an adviser had violated Rule 206(4)-1 by

WA05/36675.4

Morgan, Lewis

Douglas J. Scheidt

December 7, 1998

Page 5

& Bockius lll'

using an advertisement for its investment newsletter "which advertisement referred, directly or

indirectly, to past specific recommendations ... which were or would have been profitable to

any person but did not set out or offer to furnish a list of all recommendations made."

It is clear that clients appreciate and want the type of explanations of actual purchase and sale

decisions that FMI proposes to provide. We believe that, as long as the information is not

provided in a misleading manner, FMI should be permitted to provide factual information

regarding recent portfolio activity. Where, as we propose, objective, non-performance related

criteria are used to select certain securities out of those recommended by FMI over the course

of a year, we believe that the policies and purposes, as well as the literal language of Rule

206(4)-1, -permit FMI to identify and discuss those securities. Use of such criteria will ensure

that FMI is not portraying "selected past recommendations which were or would have been

profitable." In addition, as stated above, there will be no refere~o specific profits made

with respect to any security.

Conclusion

We believe that the plain meaning of Rule 206(4)-1 permits the use of selected past specific

recommendations selected without regard to profitability, in FMI's advertisements, particularly

where the other terms and conditions described herein are met. We ask that the staff concur

with our view. Please contact Kathryn B. McGrath at (202) 467-7149 or Lawrence P. Stadulis

at (202) 467-7405 if you have any questions or comments pertaining to this matter.

Very truly yours,

Kathryn B. McGrath

Lawrence P. Stadulis

WA05/36675.4