SEC Enforcement Sweep Targets Hypothetical Performance Under the Marketing Rule

The SEC issued a risk alert in September 2022 outlining its plans for examining advisers’ compliance with the marketing rule pursuant to Rule 206(4)‑1 (Marketing Rule) under the Investment Advisers Act of 1940. The SEC was expected to focus on policies and procedures; substantiation of claims; books and records; and performance advertising. Those examination efforts are underway and giving rise to enforcement actions that provide insights into how the SEC is approaching compliance with the Marketing Rule. As part of its ongoing sweep targeting compliance with the Marketing Rule, the SEC recently issued enforcement actions against nine registered investment advisers (RIAs) for advertising hypothetical performance on their websites without necessary policies and procedures. The firms all settled the charges against them and agreed to pay a combined total of $850,000 in penalties. This article summarizes the settlement orders with the RIAs and key takeaways for PE sponsors based on commentary from multiple experts interviewed by the Private Equity Law Report. See “Challenges and Lessons From the First Six Months of Complying With the Marketing Rule” (Jun. 1, 2023); and “Eleven ‘Top of Mind’ Questions and Misconceptions Surrounding the Marketing Rule” (Mar. 22, 2022).

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