On November 4, 2022, it became mandatory to comply with the SEC’s new marketing rule (Marketing Rule) under Rule 206(4)‑1 of the Investment Advisers Act of 1940 (Advisers Act). Most SEC-registered investment advisers that are subject to the rule have implemented necessary internal changes, but the process is probably more challenging for advisers forced to also comply with other jurisdictions’ requirements. As the largest concentration of SEC-registered fund managers outside the U.S. is in the U.K and regulated by the Financial Conduct Authority (FCA), those advisers must create compliance programs that meet those dual regulatory responsibilities. To address some of the issues relevant to managers that are subject to both the U.S. and U.K. rules on marketing investment products, the Alternative Investment Management Association hosted a webinar that was moderated by senior adviser Suzan Rose and featured K&L Gates partners Michelle Moran and Michael W. McGrath, who has since moved to Dechert. This first article in a two-part series reviews the key differences between the U.S. and U.K. marketing regimes, as well as measures advisers can take to reconcile those regimes. The second article
will analyze similarities and differences in the treatment of non-standard investment performance track records (e.g.
, hypothetical performance, predecessor performance, etc.) across the jurisdictions. For more on preparing for the Marketing Rule, see “A Checklist for Advisers to Guide Compliance With the Marketing Rule
” (Sep. 8, 2022); and “Eleven Top of Mind Questions Surrounding the New Marketing Rule
” (May 26, 2022).