In exactly three months, on November 4, 2022, compliance with the amendments to the advertising and cash solicitation rules in Rule 206(4)‑1 under the Investment Advisers Act of 1940 (Marketing Rule) will become mandatory. Fund managers need to carefully implement the Marketing Rule given its complexity as a tangled web of existing regulations, guidance in no‑action letters and modernizing revisions. Mistakes along the way can be problematic, particularly with the SEC’s aggressive stance under Chair Gary Gensler and the regulator’s history of bringing enforcement actions for performance advertising deficiencies. To support fund managers’ efforts to comply with the Marketing Rule, Eversheds Sutherland (Eversheds) developed a checklist to use when reviewing advertising materials. This article reviews the basics of the Marketing Rule; discusses potential consequences if managers fail to comply with the rule; addresses how managers can use the checklist to scrutinize advertising materials and develop compliant practices; and highlights several problematic areas managers have confronted during the implementation process. Additional insights on the Marketing Rule and the checklist’s value are provided by one of its co‑preparers, Eversheds partner Issa J. Hanna. See our two-part series on the Marketing Rule: “Key Takeaways for Private Fund Managers
” (Mar. 18, 2021); and “Next Steps for Legal and Compliance
” (Mar. 25, 2021).