Investment Company Institute v. Clarke

789 F.2d 175 54 USLW 2582, Fed. Sec. L. Rep. P 92,715, 7 Employee Benefits Ca 1565 INVESTMENT COMPANY INSTITUTE, Plaintiff-Appellant, v. Robert L. CLARKE, Office of the Comptroller of the Currency, United States of America, The Connecticut Bank & Trust Company, N.A. and The Connecticut Bank and Trust Company IRA Collective Investment Fund, Defendants-Appellees. No. 1198, Docket 86-6033. United States Court of Appeals, Second Circuit. Argued April 21, 1986. Decided May 2, 1986. Harvey L. Pitt, Washington, D.C. (Henry A. Hubschman, David M. Miles, Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C., John F. Scully, Jr., Cooney, Scully & Dowling, Hartford, Conn., Matthew P. Fink, Sr. Vice President and Gen. Counsel, Sarah O'Neil, Asst. Gen. Counsel, Investment Co. Institute, Washington, D.C., of counsel), for plaintiff-appellant. L. Robert Griffin, Office of the Comptroller of Currency, Washington, D.C. (Richard V. Fitzgerald, Chief Counsel, Comptroller of the Currency, Richard K. Willard, Asst. Atty. Gen., Barbara Biddle, U.S. Dept. of Justice, Washington, D.C., of counsel), for defendant-appellee Robert L. Clarke. Scott P. Moser, Hartford, Conn. (J. Bruce Boisture, Day, Berry & Howard, Joan K. Willin, The Connecticut Bank & Trust Co., Hartford, Conn., Howard N. Cayne, Arnold & Porter, Washington, D.C., of counsel), for defendants-appellees The Connecticut Bank & Trust Co., N.A. and The Connecticut Bank & Trust Co. IRA Collective Inv. Fund. Before TIMBERS, MESKILL and ALTIMARI, Circuit Judges. PER CURIAM: [1] This is an appeal by Investment Company Institute from a January 22, 1986 judgment of the United States District Court for the District of Connecticut, Cabranes, J., granting the motion for summary judgment of defendants Connecticut Bank & Trust Company, N.A. (CBT) and the Connecticut Bank & Trust Company IRA Collective Investment Fund and entering judgment in defendants' favor. Judge Cabranes' decision is reported at 630 F.Supp. 593 (D.Conn.1986). Plaintiff in its complaint challenged the legality of an administrative ruling of the Office of the Comptroller of the Currency which declared that the Glass-Steagall Act does not prohibit, and that 12 U.S.C. Sec. 92a (1982) and the Employee Retirement Income Security Act of 1974 permit, CBT to create a mutual fund for Individual Retirement Accounts and to market and promote the fund's shares to the public. [2] The key issue in this appeal is whether CBT's offering of shares of its IRA Collective Investment Fund constitutes the sale of securities, barred by the Glass-Steagall Act, 12 U.S.C. Sec. 24 (Seventh), or a sale of fiduciary services permissible under the Act as construed by Investment Company Institute v. Camp, 401 U.S. 617, 638, 91 S.Ct. 1091, 1102, 28 L.Ed.2d 367 (1971). [3] We believe that it is the latter and affirm the district court judgment for substantially the reasons contained in Judge Cabranes' Ruling on Cross-Motions For Summary Judgment dated January 21, 1986 and reported at 630 F.Supp. 593 (D.Conn.1986).