
[Federal Register: March 24, 2009 (Volume 74, Number 55)]
[Notices]               
[Page 12407-12408]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr09-131]                         

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28650; 812-13538]

 
ING Investments, LLC, et al.; Notice of Application

March 17, 2008.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (``Act'') for an exemption from rule 12d1-2(a) 
under the Act.

-----------------------------------------------------------------------

Summary of Application: Applicants request an order to permit funds of 
funds relying on rule 12d1-2 under the Act to invest in certain 
financial instruments.
    Applicants: ING Investments, LLC (``IIL''), Directed Services, LLC 
(``DSL''), ING Investment Management Co. (``IIM''), ING Funds 
Distributor, LLC (``IFD'') and ING Investors Trust, ING Partners, Inc., 
ING Mutual Funds, ING Series Funds, Inc., and ING Strategic Allocation 
Portfolios, Inc. (collectively, the ``Trusts'').
    Filing Dates: The application was filed on June 4, 2008, and 
amended on March 13, 2009.
    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 April 13, 2009 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, Securities and Exchange Commission, 100 F Street, 
NE., Washington, DC 20549-1090; Applicants, c/o Huey P. Falgout, Jr., 
ING Investments, LLC, 7337 E. Doubletree Ranch Road, Scottsdale, AZ 
85258.

FOR FURTHER INFORMATION CONTACT: Lewis Reich, Senior Counsel, at (202) 
551-6919, or Janet M. Grossnickle, Assistant Director, 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 
Commission's Public Reference Room, 100 F Street, NE., Washington, DC 
20549-1520 (telephone (202) 551-5850).

Applicants' Representations

    1. ING Investors Trust is organized as a Massachusetts business 
trust. ING Mutual Funds is organized as a Delaware statutory trust. 
Each of the other Trusts is organized as a Maryland corporation. Each 
Trust is registered

[[Page 12408]]

under the Act as an open-end management investment company. Each of 
IIL, DSL and IIM and is registered as an investment adviser under the 
Investment Advisers Act of 1940, as amended, and currently serves as an 
investment adviser or sub-adviser to existing series of the Trust. IFD, 
a Delaware corporation, is registered as a broker-dealer under the 
Securities Exchange Act of 1934, as amended (``Exchange Act''). IFD 
currently serves as the distributor of the existing series of the 
Trust. The Trusts and each existing or future registered open-end 
management investment company or series thereof that is in the same 
group of investment companies, as defined in section 12(d)(1)(G)(ii) of 
the Act, as the Trusts and that is advised by IIL, DSL or IIM or any 
entity controlling, controlled by or under common control with IIL, DSL 
or IIM (the ``Advisers''), together with series of the Trusts are 
referred to as the ``Funds.'' Applicants request the exemption to the 
extent necessary to permit any Fund that may invest in other funds in 
reliance on Section 12(d)(1)(G) of the Act, and which is also eligible 
to invest in securities (as defined in section 2(a)(36) of the Act) in 
reliance on rule 12d1-2 under the Act, to also invest, to the extent 
consistent with its investment objective, policies, strategies and 
limitations, in financial instruments that may not be securities within 
the meaning of section 2(a)(36) of the Act (``Other Investments'').\1\
---------------------------------------------------------------------------

    \1\ Every existing entity that currently intends to rely on the 
requested order is named as an applicant. Any existing or future 
entity that relies on the order in the future will do so only in 
accordance with the terms and condition in the application.
---------------------------------------------------------------------------

    2. Consistent with its fiduciary obligations under the Act, each 
Fund's board of trustees or directors will review the advisory fees 
charged by the Fund's investment adviser to ensure that they are based 
on services provided that are in addition to, rather than duplicative 
of, services provided pursuant to the advisory agreement of any 
investment company in which the Fund may invest.

Applicants' Legal Analysis

    1. Section 12(d)(1)(A) of the Act provides that no registered 
investment company (``acquiring company'') may acquire securities of 
another investment company (``acquired company'') if such securities 
represent more than 3% of the acquired company's outstanding voting 
stock or more than 5% of the acquiring company's total assets, or if 
such securities, together with the securities of other investment 
companies, represent more than 10% of the acquiring company's total 
assets. Section 12(d)(1)(B) of the Act provides that no registered 
open-end investment company may sell its securities to another 
investment company if the sale will cause the acquiring company to own 
more than 3% of the acquired company's voting stock, or cause more than 
10% of the acquired company's voting stock to be owned by investment 
companies.
    2. Section 12(d)(1)(G) of the Act provides that section 12(d)(1) 
will not apply to securities of an acquired company purchased by an 
acquiring company if: (i) the acquiring company and acquired company 
are part of the same group of investment companies; (ii) the acquiring 
company holds only securities of acquired companies that are part of 
the same group of investment companies, government securities, and 
short-term paper; (iii) the aggregate sales loads and distribution-
related fees of the acquiring company and the acquired company are not 
excessive under rules adopted pursuant to section 22(b) or section 
22(c) of the Act by a securities association registered under section 
15A of the Exchange Act or by the Commission; and (iv) the acquired 
company has a policy that prohibits it from acquiring securities of 
registered open-end management investment companies or registered unit 
investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
    3. Rule 12d1-2 under the Act permits a registered open-end 
investment company or a registered unit investment trust that relies on 
section 12(d)(1)(G) of the Act to acquire, in addition to securities 
issued by another registered investment company in the same group of 
investment companies, government securities, and short-term paper: (1) 
Securities issued by an investment company that is not in the same 
group of investment companies, when the acquisition is in reliance on 
section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (2) securities (other 
than securities issued by an investment company); and (3) securities 
issued by a money market fund, when the investment is in reliance on 
rule 12d1-1 under the Act. For the purposes of rule 12d1-2, 
``securities'' means any security as defined in section 2(a)(36) of the 
Act.
    4. Section 6(c) of the Act provides that the Commission may exempt 
any person, security, or transaction from any provision of the Act, or 
from any rule under the Act, if such exemption is necessary or 
appropriate in the public interest and consistent with the protection 
of investors and the purposes fairly intended by the policies and 
provisions of the Act.
    5. Applicants state that the proposed arrangement would comply with 
the provisions of rule 12d1-2 under the Act, but for the fact that the 
Funds may invest a portion of their assets in Other Investments. 
Applicants request an order under section 6(c) of the Act for an 
exemption from rule 12d1-2(a) to allow the Funds to invest in Other 
Investments. Applicants assert that permitting the Funds to invest in 
Other Investments as described in the application would not raise any 
of the concerns that the requirements of section 12(d)(1) were designed 
to address.

Applicants' Condition

    Applicants agree that the order granting the requested relief will 
be subject to the following condition:
    Applicants will comply with all provisions of rule 12d1-2 under the 
Act, except for paragraph (a)(2) to the extent that it restricts any 
Fund from investing in Other Investments as described in the 
application.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-6391 Filed 3-23-09; 8:45 am]

BILLING CODE 8010-01-P
