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 second in a two-part series, discusses 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 an adviser’s inadequate policies and procedures; and potential amendments to the Rule. The first article
explored 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. See our two-part series “HFLR Program Parses OCIE’s Recent Advertising Risk Alert”: Identifying Advertisements and Common Deficiencies in Performance Advertising
(Jan. 4, 2018); and Misleading Claims of GIPS Compliance, Past Specific Investment Recommendations and Results of SEC’s Touting Initiative
(Jan. 11, 2018).