A Checklist for Fund Managers to Ensure Their Advertising Materials Comply With the New Marketing Rule

Amidst the barrage of proposed SEC regulations directed at the private funds industry, it is easy to forget that amendments (Marketing Rule) to the advertising and cash solicitation rules in Rule 206(4)‑1 under the Investment Advisers Act of 1940 also go into effect in November 2022. Fund managers need to carefully implement the Marketing Rule given its complexity as a tangled web of existing regulations, guidance in no‑action letters and modernizing revisions. Mistakes along the way can be problematic, particularly with the SEC’s aggressive stance under Chair Gary Gensler and the agency’s history of bringing enforcement actions for performance advertising deficiencies. To support fund managers’ efforts to comply with the Marketing Rule, Eversheds Sutherland (Eversheds) developed a checklist to use when reviewing advertising materials. This article reviews the basics of the Marketing Rule; discusses potential consequences if managers fail to comply with the rule; addresses how advisers can use the checklist to scrutinize advertising materials and develop compliant practices; and highlights several problematic areas fund managers have confronted during the implementation process. Additional insights on the Marketing Rule and the checklist’s value are provided by one of its co‑preparers, Eversheds partner Issa J. Hanna. See our two-part series on the impact of the new Marketing Rule: “What Constitutes an ‘Advertisement’ and How to Adhere to Principles‑Based Standards” (Mar. 23, 2021); and “Disclosures in Non‑Standard Calculations and Requirements When Using Promoters” (Mar. 30, 2021).

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