Investment Advisers Act of 1940
Section 206(4) and Rule 206(4)-3

J.P. Morgan Securities Inc.

October 31, 2003

We would not recommend enforcement action to the Commission under Section 206(4) of the Investment Advisers Act of 1940 ("Advisers Act") and Rule 206(4)-3 thereunder if any investment adviser that is required to be registered pursuant to Section 203 of the Advisers Act pays to Morgan Stanley & Co. Incorporated ("Morgan Stanley"), a registered broker-dealer and investment adviser, or any of Morgan Stanley's associated persons, as defined in Section 202(a)(17) of the Advisers Act, a cash fee, directly or indirectly, for the solicitation of advisory clients in accordance with Rule 206(4)-3,¹ notwithstanding a judgment of injunction from the United States District Court for the Southern District of New York (the "Final Judgment") that otherwise would preclude such an investment adviser from paying Morgan Stanley a solicitation fee.²

Our position is based on the facts and representations in your incoming letter dated October 31, 2003, particularly Morgan Stanley's representations that:

1. it will conduct any cash solicitation arrangement entered into with any investment adviser required to be registered under Section 203 of the Advisers Act in compliance with the terms of Rule 206(4)-3 except for the investment adviser's payment of cash solicitation fees to Morgan Stanley, which is subject to the Final Judgment;
    
2. the Final Judgment does not bar or suspend Morgan Stanley or any person currently associated with Morgan Stanley from acting in any capacity under the federal securities laws;
    
3. it will comply with the terms of the Final Judgment, including, but not limited to, the payment of disgorgement, pre-judgment interest, civil or administrative penalties and fines; and
    
4. for ten years from the date of the entry of the Final Judgment, Morgan Stanley or any investment adviser with which it has a solicitation arrangement subject to Rule 206(4)-3 will disclose the Final Judgment in a written document that is delivered to each person whom Morgan Stanley solicits (a) not less than 48 hours before the person enters into a written or oral investment advisory contract with the investment adviser or (b) at the time the person enters into such a contract, if the person has the right to terminate such contract without penalty within 5 business days after entering into the contract.

This position applies only to the Final Judgment³ and any State Judgment and not to any other basis for disqualification under Rule 206(4)-3 that may exist or arise with respect to Morgan Stanley or any of its associated persons.

Sara P. Crovitz
Senior Counsel

Endnotes

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¹ Rule 206(4)-3 prohibits any investment adviser that is required to be registered under the Advisers Act from paying a cash fee, directly or indirectly, to any solicitor with respect to solicitation activities if, among other things, the solicitor is subject to an order, judgment or decree that is described in Section 203(e)(4) of the Advisers Act.

² Securities and Exchange Commission v. Morgan Stanley & Co. Incorporated, 03 Civ 2948 (WHP) (S.D.N.Y. October 31, 2003).

³ "State Judgment" means any injunction by decree, order, or judgment of any court of competent jurisdiction in connection with a settlement agreement entered into by Morgan Stanley with a state or territorial agency that generally relates to the same facts and is based on the same conduct as alleged in the Commission complaint underlying the Final Judgment.

Incoming Letter:

The Incoming Letter is in Acrobat format.

http://www.sec.gov/divisions/investment/noaction/jpmorgan103103.htm