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Five Ways to Avoid Common Violations of the Cash Solicitation Rule Identified in OCIE’s Recent Risk Alert

Rule 206(4)‑3 (the Cash Solicitation Rule) of the Investment Advisers Act of 1940 (Advisers Act) bars investment advisers that are required to be registered under the Advisers Act from paying a cash fee – directly or indirectly – to any person who solicits clients for the adviser unless the arrangement complies with certain conditions. The SEC Office of Compliance Inspections and Examinations (OCIE) recently issued a National Exam Program Risk Alert that discusses the most frequent compliance issues related to the Cash Solicitation Rule identified in deficiency letters from adviser examinations completed in the past three years. Although prior SEC guidance has stated that the Cash Solicitation Rule does not apply to the solicitation of investors for a private fund, the rule does apply to the solicitation of separately managed account clients. Thus, fund managers that use solicitors for referrals of clients for separate accounts should understand the Risk Alert and review their policies and procedures accordingly. This article analyzes OCIE’s findings and provides guidance from a former SEC lawyer on how investment advisers can avoid the identified violations. For coverage of other OCIE Risk Alerts, see “How to Avoid the Eight Best Execution Compliance Issues in OCIE’s Latest Risk Alert” (Aug. 30, 2018); “OCIE Risk Alert Warns of Six Most Frequent Fee and Expense Compliance Issues” (May 3, 2018); and “Risk Alert Highlights Six Most Frequent Advertising Rule Compliance Issues” (Oct. 19, 2017).

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