The SEC has focused on investment advisers’ misuse of performance information in marketing materials for quite some time. For example, the SEC previously settled charges with a robo‑adviser that failed to maintain documentation supporting the claimed returns in its marketing materials and included in those materials false or misleading information on its returns. See “SEC Settles First Two Enforcement Actions Against Robo-Advisers
” (Feb. 14, 2019). The SEC, however, is not the only regulator with an interest in deceptive performance advertising. The NFA recently announced a decision by the Hearing Panel (Panel), which found that a registered commodity pool operator (CPO) and its principal and associated person used misleading and deceptive promotional material that included unsubstantiated positive performance information and presented hypothetical information as if it were actual performance. The Panel also found that the CPO failed to prepare and distribute required monthly account statements. This article examines the promotional material-related violations in the enforcement action and highlights the key takeaways from the decision for CPOs according to a former CFTC attorney. For more on advertising, see “How Investment Advisers Can Mitigate Common Advertising Risks
” (Jul. 19, 2018); and our three-part advertising compliance series: “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).