Reconsidering Key Marketing Rule Terminology and Performance Presentation Criteria (Part One of Two)

Approximately one year after the compliance date for the SEC’s revised Advertising Rule (Marketing Rule) – Rule 206(4)‑1 under the Investment Advisers Act of 1940 – the regulator’s interpretation of its provisions, and approach toward examinations and enforcement efforts, are becoming clearer. Conversely, certain ambiguities remain as the practical realities of daily compliance clash with the theoretical parameters of the Marketing Rule’s requirements. K&L Gates and the CFA Institute hosted a webinar discussing SEC examinations and recent enforcement actions, potential pitfalls and tips for complying with the Marketing Rule, and held a Q&A session to address some of the specific issues raised by advisers. The program was moderated by Krista Harvey (director) and Karyn D. Vincent (senior head) from CFA Institute, and featured K&L Gates partners Lance C. Dial and Pamela A. Grossetti. This first article in a two-part series evaluates the fundamental definitions of advertisement and performance under the Marketing Rule, along with some of the gray areas fund managers confront when attempting to comply. The second article will detail the hypothetical performance standard and confusion that continues to surround the topic. See “Challenges and Lessons From the First Six Months of Complying With the New Marketing Rule” (Jun. 1, 2023).

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