Navigating the New Marketing Rule: Updated Testimonial Rule and Differences From the Proposed Advertising Rule (Part One of Two)

The SEC recently adopted long-awaited changes to the advertising and cash solicitation rules applicable to investment advisers. The final rule embodies many of the principles first proposed by the SEC, with some surprising changes that could impose new disclosure duties on private fund managers. A program presented by ACA Compliance Group (ACA) and K&L Gates took a deep dive into the final rule and its implications for investment adviser marketing. The program featured Michael S. Caccese and Michael W. McGrath, chairman and partner, respectively, at K&L Gates; and Kimberly Versace, senior principal consultant at ACA. This first article in a two-part series reviews the differences between the proposed and final rules; the definition of “advertisement”; the seven principles governing advertisements; and testimonials, endorsements and third-party ratings. The second article will address the presentation of performance information, including related, hypothetical and extracted performance; portability; social media; “layering” of disclosures; associated amendments to Form ADV and the books and records rule; and the compliance timeline for the final rule. See “Risk Alert Highlights Six Most Frequent Advertising Rule Compliance Issues” (Oct. 19, 2017); and “Best Practices for Investment Advisers Using Social Media to Mitigate Advertising Rule Violations and Other Risks” (Mar. 23, 2017).

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