Client Alert

Investment Funds & Private Capital Market Insights: SEC Charges Nine Investment Advisers for Advertising Hypothetical Performance to the General Public Without Adopting Policies and Procedures

September 13, 2023

By: John L. BudettiEsther ChiangScott GluckIra KustinRyan Swan, and David Wilson

On September 11, 2023 the SEC announced settlements (available here) with nine registered investment advisers (the “Advisers”) for alleged violations of the Investment Advisers Act’s new marketing rule (Rule 206(4)-1, available here, the “Marketing Rule”) as a result of advertising hypothetical performance information to the general public on their respective websites, without having adopted policies and procedures reasonably designed to ensure that the hypothetical performance is relevant to the likely financial situation and investment objectives of the intended audience. This follows the SEC’s enforcement action from last month that focused on an adviser’s use of misleading hypothetical performance, which was the first enforcement action under the Marketing Rule (see our Client Alert on this topic, available here). Each of the nine Advisers agreed to be censured, cease and desist from violating the charged provisions, comply with undertakings not to advertise hypothetical performance without having adopted policies and procedures, and pay a fine that ranged from $50,000 to $175,000.

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