Key Takeaways and Next Steps for Legal and Compliance

In April 2018, Paul Cellupica, Deputy Director of the SEC’s Division of Investment Management, observed in a panel discussion at the National Compliance Outreach Seminar for Investment Companies and Investment Advisers that the advertising and cash solicitation rules were adopted when social media, among other things, did not exist. Now, however, many people “do not make reservations for things like vacations or restaurants without first going onto social media and researching reviews and seeing what other people had to say,” he remarked. “It’s not surprising that many people would like to do the same when it comes to researching and selecting investment advisers.” Thus, the advertising and cash solicitation rules desperately needed an update, which occurred in the form of the new Marketing Rule. This two-part series examines the Marketing Rule through the eyes of private fund managers. The first article outlines important changes made to the originally proposed amendments and provides key takeaways for private fund managers, including the fact that the Marketing Rule explicitly applies to private funds. The second article spells out the next steps for managers’ legal and compliance departments, such as becoming familiar with the new rule; assessing current marketing activities; considering additional marketing activities; and monitoring for additional guidance. See “Navigating the SEC’s New Marketing Rule” (Jul. 8, 2021). In addition, for a checklist based on the old advertising rule that CCOs can adapt for the Marketing Rule, see “A Checklist for Advisers to Ensure Compliance With the Advertising Rule” (Dec. 12, 2019).

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