April 13, 2007

Lee A. Pickard, Esq.
Pickard and Djinis LLP
1990 M Street, N.W.
Washington, DC 20036

Dear Mr. Pickard:

In your letter dated April 11, 2007, on behalf of Capital Institutional Services, Inc. ("CAPIS"), you request assurances that the staff of the Division of Market Regulation ("Staff") will not recommend enforcement action to the Commission under Section 15(a) of the Securities Exchange Act of 1934 ("Exchange Act") against research vendors participating in CAPIS' client commission arrangements ("Research Vendors") if those Research Vendors receive compensation for products and services that are considered "research services" under the safe harbor set forth in Section 28(e) of the Exchange Act, as recently interpreted by the Commission ("Research Services"),¹ without registering as broker-dealers pursuant to Section 15(b) of the Exchange Act.

Based on the facts and representations set forth in your letter, the Staff will not recommend enforcement action to the Commission under Section 15(a) of the Exchange Act if a Research Vendor receives payment for its Research Services from credits generated from client commissions set apart in a client commission arrangement under Section 28(e) of the Exchange Act without registering as a broker-dealer.² In reaching this position, we note in particular the following:

• The money manager is responsible for independently determining the value of the Research Services in accordance with its good faith determination under Section 28(e) of the Exchange Act, although the money manager's good faith determination may be based on input from the Research Vendor;
   
• CAPIS is not involved in determining the value of the Research Services provided by a Research Vendor to the money manager;
   
• The Research Vendor receives payment for Research Services based upon credits that, by agreement between CAPIS and the money manager, have been set aside for the provision of Research Services;
   
• Payment to the Research Vendor is not conditioned, directly or indirectly, on the execution of any particular transaction or transactions in securities that are described or analyzed in the Research Services; and
   
• The Research Vendor does not perform other functions that are typically characteristic of broker-dealer activity (e.g., the Research Vendor does not solicit brokerage transactions by disseminating quotations, accept or otherwise handle customer orders, introduce or carry customer securities accounts, receive or hold customer funds or securities, execute, clear, or settle securities transactions, or engage in proprietary securities trading).

This position is based on the facts presented and the representations you have made, and any different facts and circumstances may require a different response. Furthermore, this response expresses the Staff's position on enforcement action only and does not purport to express any legal conclusions on the question presented. The Staff expresses no view with respect to any other questions that the proposed activities may raise, including the applicability of any other federal or state laws or self-regulatory organization rules.

Endnotes

---

¹ See Securities Exchange Act Release No. 54165 (July 18, 2006), 71 FR 41978 at Section III.C (July 24, 2006) ("2006 Interpretive Release"); see also Sections 28(e)(3)(A)-(B) of the Exchange Act.

² According to your letter, CAPIS' program ("Program") has been designed to comply with the recent change to the interpretation of the "provided by" element of the Section 28(e) safe harbor set forth in the 2006 Interpretive Release. 71 FR 41,978, 41,994-41,995. Through the Program, a money manager requests CAPIS to credit a negotiated portion of an agency commission for the provision of Research Services. The credits represent CAPIS' commitment to provide Research Services requested by the money manager, and do not represent funds of the money manager or of accounts managed by the money manger. The money manager may periodically request CAPIS to pay a specified dollar amount from these credits for Research Services.

Incoming Letter:

The Incoming Letter is in Acrobat format.

http://www.sec.gov/divisions/marketreg/mr-noaction/2007/
capis041307-15a.htm