At a recent forum hosted by Paul Hastings, in-house and outside counsel examined the fundamentals and underpinnings of Rule 206(4)‑1 (Rule) under the Investment Advisers Act of 1940, which governs advertising by advisers. Hosted by Kevin Broughel, vice chair of Paul Hastings’ global securities litigation practice, the discussion was moderated by Paul Hastings partner John P. Nowak and featured Ken C. Joseph
, managing director and head of disputes consulting at Duff & Phelps; Michael A. Kitson, senior compliance officer and counsel at Bridgewater Associates; Ira P. Kustin
, partner at Paul Hastings; Meredith Smith, general counsel of Stash; and Alastair Wood, general counsel of Kindur. This article, the first in a two-part series, explores the fundamentals of the Rule, how the Rule applies to newer forms of media and additional guidance that the SEC has provided on compliance with the Rule. The second article
will discuss ways the SEC’s approach to regulating the advertising of investment advisers differs from other regulators; best practices for complying with the cherry picking provision of the Rule; ways violations of the Rule are often a result of inadequate policies and procedures on the part of the adviser; and potential amendments to the Rule. See 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).