Impact of the New Marketing Rule: What Constitutes an “Advertisement” and How to Adhere to Principles‑Based Standards (Part One of Two)

The SEC recently adopted its first substantive amendments (Marketing Rule) to the advertising and cash solicitation rules in Rule 206(4)‑1 under the Investment Advisers Act of 1940 since their adoption in 1961 and 1979, respectively. The new rule will have a material impact on the business practices of PE and private credit fund sponsors; the marketing of services and products to investors; and all fundraising communications related to the offering of private funds. In a two-part guest series, K&L Gates partners Kasey L. Lekander, Pablo J. Man and Michael W. McGrath, CFA discuss particularly notable features of the Marketing Rule and identify certain key challenges fund sponsors will face under the new rule. This first article summarizes the revised definition of “advertisement” under the Marketing Rule, as well as the principles-based standards it prescribes. The second article will explain restrictions in disclosures of non-standard performance calculations to investors, as well as requirements when using placement agents and consultants for promotional purposes. See our three-part series on operational deficiencies in non‑standard performance calculations: “Common Process Issues” (Feb. 9, 2021); “Common Recordkeeping and Disclosure Issues” (Feb. 16, 2021); and “Nuts and Bolts of Upgrading Controls” (Feb. 23, 2021).

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