Letter to the SEC

Re: Request for Interpretive Letter Regarding Reporting under Section 16(a) of the Securities Exchange Act of 1934

April 22, 2008

VIA E-MAIL (cfletters@sec.gov)

Mr. Thomas J. Kim
Chief Counsel and Associate Director
Division of Corporation Finance
Securities and Exchange Commission
Room 3214, Stop 3010
100 F Street, N.E.
Washington, DC 20549-1090

Re: Request for Interpretive Letter Regarding Reporting under Section 16(a) of the Securities Exchange Act of 1934

Dear Mr. Kim:

We are writing to seek interpretive advice that would permit aggregate reporting of same-day, same-way transactions under Section 16(a) of the Securities Exchange Act of 1934.

Instruction 4(a)(ii) to Form 4 provides that "[e]ach transaction must be reported on a separate line." In a recently published interpretation, the staff took the position that, where a filer's purchases or sales on a particular day are executed at different prices, those purchases or sales may not be aggregated on a single line, but instead must be reported individually, on separate lines of the Form 4. See the Section 16 Compliance and Disclosure Interpretations, Q. 133.08 (May 23, 2007). Because many brokers execute trade orders in small increments and report trade prices at prices that are carried out to four decimal places, this interpretive position has the effect of requiring filers to report on multiple lines of Form 4purchases or sales that occur on a single day pursuant to a single market order (e.g., an order to sell 5,000 shares of stock at the market price), solely because the trade is executed at multiple prices that may be as little as a fraction of a penny apart. Often, this means that a filer must report dozens or even hundreds of transactions, involving only 100 or fewer shares each, to report the execution of a single order. Because the electronic filing system limits each Form 4 to 30 lines per table, a filer must prepare and file multiple Forms 4 to report each separately priced trade.

We believe that reporting each separately priced trade on a separate line is confusing to investors. Reporting each trade on a separate line creates a misleading impression that the filer has placed dozens of sell orders rather than effecting what is essentially a single trade resulting from a single investment decision. Further, investors must read multiple lines of multiple Forms 4 to understand the filer's trading activity and gather data regarding the total number of shares involved in the trade.

Separate reporting also is unduly burdensome to the persons who must prepare and file the forms. The Commission's current estimate of the time required to complete a Form 4, disclosed on the face of the form pursuant to the Paperwork Reduction Act, is one-half hour. In fact, completing multiple Forms 4 to report a day's transactions may consume several hours.

Accordingly, we request your concurrence with our view that a filer who effects multiple same-way transactions on the same day and at different prices will be deemed to have complied with the reporting requirements of Section 16(a) if the filer reports on a single line of Form 4 all transactions that occur within a one dollar range, with the price column showing the weighted average purchase or sale price for the transactions reported on that line and a footnote indicating the range of prices paid or received in those transactions. If, for example, a filer sold 1,000 shares in 20 separate trades at prices ranging from $16.50 to $17.49 a share, and another 500 shares in ten separate trades at prices ranging from $17.50 to $17.75 a share, all of the transactions could be reported on two separate lines, each footnoted to indicate the range of prices paid. We believe that this limited aggregate reporting would convey a more accurate sense of the transaction(s) being described (especially where, for example, one large sell order would otherwise appear to involve over a hundred small sell orders).

This manner of reporting would satisfy the two primary purposes of Section 16(a)—to allow investors to assess a filer's views regarding the issuer's business prospects and to allow security holders to identify any short-swing profits for which a filer might be liable under Section 16(b). Investors would be able to determine both the number of securities traded and the range of prices the filer paid or received for the securities. In addition, if a transaction reported on an aggregated basis were potentially matchable with an opposite-way transaction under Section 16(b), the range of prices reported in the footnote would allow security holders to determine whether a short-swing profit was realized. The number of shares purchased or sold at each price, and therefore the total amount of the short-swing profit, would be determinable by a security holder during the demand and private litigation process contemplated by Section 16(b). Any filer who relies on your favorable response to this letter would maintain copies of the detailed breakouts to provide the Staff on request.

We would be happy to discuss the contents of this request at your convenience. If for any reason you believe that the staff will not be able to confirm our interpretation, the members of our committee would appreciate the opportunity to discuss the matter with you. Polly Plimpton may be reached at 617-535-4039 and Alan Dye may be reached at 202-637-5737.

Thank you very much for your consideration.

Respectfully submitted,

Society of Corporate Secretaries and Governance Professionals
521 Fifth Avenue New York NY 10175
212-681-2000 - Fax 212-681-2005

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