HFLR Program Parses OCIE’s Recent Advertising Risk Alert: Identifying Advertisements and Common Deficiencies in Performance Advertising (Part One of Two)

On September 14, 2017, the SEC’s Office of Compliance Inspections and Examinations (OCIE) issued a National Exam Program Risk Alert that highlighted six common deficiencies under Rule 206(4)-1 of the Investment Advisers Act of 1940 – the so-called “Advertising Rule” – identified by OCIE during examinations of SEC-registered investment advisers. A recent webinar presented by the Hedge Fund Law Report discussed in detail each of the deficiencies, along with other compliance issues that frequently arise with respect to an adviser’s advertising practices. Kara Bingham, Associate Editor of the Hedge Fund Law Report, moderated the discussion, which featured Todd Kaplan, founder and principal of Cloudbreak Compliance Group; Christine M. Lombardo, partner at Morgan Lewis; and Richard F. Kerr, partner at K&L Gates. This article, the first in a two-part series, discusses the broad view the SEC takes when deciding which communications fall within the definition of an advertisement, as well as four examples of deficiencies frequently found in performance advertising. The second article will explore the disclosures required when presenting gross performance in one-on-one presentations to prospective investors, circumstances under which claims of compliance with voluntary performance disclosure standards may be deemed misleading, ways to avoid deficiencies when discussing past specific recommendations in advertisements and the results of the touting initiative conducted by OCIE. See our three-part series on advertising compliance: “Ten Best Practices for a Fund Manager to Streamline Its Compliance Review” (Sep. 14, 2017); “Five High-Risk Areas for a Fund Manager to Focus on When Reviewing Marketing Materials” (Sep. 21, 2017); and “Six Methods for a Fund Manager to Test Its Advertising Review Procedures” (Sep. 28, 2017).

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