Marketing Rule Risk Alert Indicates That SEC Guidance Will Occur Via Imminent Examinations

There was a flurry of activity leading up to the November 4, 2022, compliance date for the SEC’s new marketing rule (Marketing Rule or Rule) – Rule 206(4)‑1 under the Investment Advisers Act of 1940 – as fund managers frantically attempted to become compliant with the requirements. Although complying with new SEC rules is difficult in the best of times, the task was even more daunting with the Marketing Rule due to the SEC’s unwillingness to issue an FAQ leading up to the compliance date. Instead, the SEC’s Division of Examinations indicated that guidance will take the form of enforcement efforts via its recent issuance of a risk alert (Risk Alert) highlighting its plans for examining advisers’ compliance with the new Rule. Examinations will focus on policies and procedures; substantiation of claims; books and records; and performance advertising. This article discusses the key takeaways from the Risk Alert – as well as a related investor bulletin on performance claims – with insights from Genna N. Garver, partner at Troutman Pepper, and Krista Zipfel, director at ACA Group. See “A Checklist for Advisers to Guide Compliance With the Marketing Rule” (Oct. 25, 2022); and “A Checklist for Fund Managers to Ensure Their Advertising Materials Comply With the New Marketing Rule” (May 10, 2022).

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