On March 19, 2025, the SEC updated its Marketing Rule FAQ with new guidance on extracted performance and information on how to navigate the performance versus investment characteristic question.
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On September 9, 2024, the SEC announced settled charges against nine registered investment advisers (“RIAs”) for violating the Marketing Rule by disseminating advertisements that included untrue or unsubstantiated statements of material fact or testimonials, endorsements, or third-party ratings that lacked required disclosures. Combined, these nine RIAs agreed to pay $1,240,000 in civil penalties.
On April 17th, 2024, the Division of Examinations (“EXAMS”) published a risk alert to inform investment advisers, investors, and other market participants about the examiner’s observations on the Marketing Rule. This risk alert highlights the Division’s focus on advisers’ compliance with the marketing rule and their completion of the marketing rule items contained in Form ADV as well as Advisers Act Rule 206(4)-7 (the “Compliance Rule”), Advisers Act Rule 204-2 (the “Books and Records Rule), and the Marketing Rule’s “General Prohibitions”.
This year, Securities and Exchange Commission (SEC) Exams will remain focused on the new Marketing Rule, as well as AI, according to Natasha Vij Greiner, deputy director of the SEC’s Division of Examinations, who recently spoke at the Investment Advisers Association (IAA) Compliance Conference in Washington, D.C.
On February 6, 2024, the SEC updated its Frequently Asked Questions page for the new Marketing Rule. The page now has four questions and four answers, which provide clarity on items such as the compliance date of November 4, 2022, and an adviser’s ability to comply early; the prescribed time period requirement and conditions on the use of interim performance information; presenting performance of one investment or group of investments in a private fund; and calculation of gross and net performance.
On September 11, 2023, the SEC announced charges against nine registered investment advisers for advertising hypothetical performance to a mass audience on their websites without meeting the requirements of the Marketing Rule. All nine firms have agreed to settle and will pay penalties ranging from $50,000 to $175,000.