Marketing Rule and Non‑Standard Track Records: Using Related, Extracted and Predecessor Performance (Part Two of Two)

Historically, fund managers starting new strategies or emerging managers without significant performance records might have avoided the use of non-standard track records such as extracted or predecessor performance for fear of unwanted scrutiny from the SEC. Those managers – as well as more established managers – can now proceed more confidently with certain non-standard performance calculations based on the clearer framework in the SEC’s amendments to Section 206(4)‑1 under the Investment Advisers Act of 1940, which modernize the rules governing investment adviser advertising and solicitation practices (Marketing Rule). This second article in a two-part series discusses the prevalence of non-standard track records, as well as the Marketing Rule’s guidelines for using past specific recommendations and related, extracted and predecessor performance. The first article analyzed why sponsors use non-standard track records, as well as when sponsors can use various types of hypothetical performance (e.g., projected returns) under the Marketing Rule. See “Impact of the New Marketing Rule: What Constitutes an ‘Advertisement’ and How to Adhere to Principles‑Based Standards (Part One of Two)” (Mar. 23, 2021).

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