Since the new marketing rule (Marketing Rule or Rule) – Rule 206(4)‑1 under the Investment Advisers Act of 1940 – took effect, the SEC has been very stingy in providing guidance on complying with the Rule. In September 2022, the SEC’s Division of Examinations (Division) issued a risk alert on Rule-related areas the Division planned to focus on in upcoming exams. In January 2023, the SEC updated its Marketing Compliance Frequently Asked Questions (FAQ) to address a narrow issue on the presentation of gross and net performance in marketing. Lastly, on June 8, 2023, the Division issued a second risk alert (Risk Alert) that discusses three additional Rule-related areas of emphasis in advisers’ exams: testimonials and endorsements; third-party ratings; and Form ADV. This article summarizes the Risk Alert, with commentary from Benjamin Kozinn
, partner at Schulte Roth. “We are seeing a focus in exams on Marketing Rule compliance. This SEC has been aggressive on just about everything with respect to private fund managers,” observed Kozinn. “The advertising rules were always low‑hanging fruit for exam staff, and now with the Marketing Rule, there are just more things they can criticize.” For more on the FAQ, see “Parsing the Significance of the SEC’s FAQ on the Presentation of Gross and Net Performance
” (Mar. 2, 2023).