Investment Adviser Advertisements; Compensation for Solicitations — SEC — US

1Unless otherwise noted, when we refer to the Advisers Act, or any paragraph of the Advisers Act, we are referring to 15 U.S.C. 80b, at which the Advisers Act is codified, and when we refer to rules under the Advisers Act, or any paragraph of those rules, we are referring to title 17, part 275 of the Code of Federal Regulations [17 CFR part 275], in which these rules are published. SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 275 and 279 [Release No. IA–5407; File No. S7–21–19] RIN: 3235–AM08 Investment Adviser Advertisements; Compensation for Solicitations AGENCY: Securities and Exchange Commission. ACTION: Proposed rule. SUMMARY: The Securities and Exchange Commission (the ‘‘Commission’’ or the ‘‘SEC’’) is proposing amendments under the Investment Advisers Act of 1940 (the ‘‘Advisers Act’’ or the ‘‘Act’’) to the rules that prohibit certain investment adviser advertisements and payments to solicitors, respectively. The proposed amendments to the advertising rule reflect market developments since the rule’s adoption in 1961. The proposed amendments to the solicitation rule update its coverage to reflect regulatory changes and the evolution of industry practices since we adopted the rule in
1979. The Commission is also proposing
amendments to Form ADV that are designed to provide the Commission with additional information regarding advisers’ advertising practices. Finally, the Commission is proposing amendments under the Advisers Act to the books and records rule, to correspond to the proposed changes to the advertising and solicitation rules. DATES: Comments should be received on or before February 10, 2020. ADDRESSES: Comments may be submitted by any of the following methods:
Electronic Comments

Use the Commission’s internet
comment form (http://www.sec.gov/ rules/proposed.shtml); or
Send an email to rule-comments@
sec.gov. Please include File Number S7– 21–19 on the subject line. Paper Comments
Send paper comments to Vanessa
A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to File Number S7–21–19. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s website (http://www.sec.gov/rules/ proposed.shtml). Comments also are available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change. Persons submitting comments are cautioned that the Commission does not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make publicly available. Studies, memoranda or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the Commission’s website. To ensure direct electronic receipt of such notifications, sign up through the ‘‘Stay Connected’’ option at www.sec.gov to receive notifications by email. FOR FURTHER INFORMATION CONTACT:
Matthew Cook, Emily Rowland, or James Maclean, Senior Counsels; or Thoreau Bartmann or Melissa Roverts Harke, Senior Special Counsels, at (202) 551–6787 or IArules@sec.gov, Investment Adviser Regulation Office, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–8549. SUPPLEMENTARY INFORMATION: The Commission is proposing for public comment amendments to 17 CFR 275.206(4)–1 (rule 206(4)–1), 17 CFR 275.206(4)–3 (rule 206(4)–3), and 17 CFR 275.204–2 (rule 204–2) under the Investment Advisers Act of 1940 [15 U.S.C. 80b–1 et seq.] (the ‘‘Advisers Act’’),1 and amendments to Form ADV [17 CFR 279.1] under the Advisers Act.
Table of Contents
I. Introduction
A. Advertising Rule Background B. Cash Solicitation Rule Background
II. Discussion
A. Proposed Amendments to the Advertising Rule
1. Structure of the Rule
2. Scope of the Rule: Definition of
‘‘Advertisement’’
3. General Prohibitions
4. Testimonials, Endorsements, and Third
Party Ratings
5. Performance Advertising
6. Portability of Performance, Testimonials,
Third Party Ratings, and Specific Investment Advice
7. Review and Approval of Advertisements
8. Proposed Amendments to Form ADV
B. Proposed Amendments to the Solicitation Rule
1. Scope of the Rule: Who is a solicitor?
2. Expanding the Rule To Address All
Forms of Compensation
3. Compensation for the Solicitation of
Existing and Prospective Investors
4. Solicitor Disclosure
5. Written Agreement
6. Adviser Oversight and Compliance;
Elimination of Additional Provisions
7. Exemptions
8. Disqualification for Persons Who Have
Engaged in Misconduct
C. Recordkeeping
D. Existing Staff No-Action Letters and Other Related Guidance
1. Letters To Be Reviewed Concerning Rule
206(4)–1
2. Letters To Be Reviewed Concerning Rule
206(4)–3
E. Transition Period and Compliance Date
III. Economic Analysis
A. Introduction
B. Broad Economic Considerations
C. Baseline
1. Market for Investment Advisers
2. Market for Solicitors
3. RIA Clients
D. Costs and Benefits of the Proposed Rule and Form Amendments
1. General Costs and Benefits of the
Advertising Rule
2. Specific Costs and Benefits of the
Advertising Rule
3. Costs and Benefits of the Proposed
Amendments to the Solicitation Rule E. Efficiency, Competition, Capital Formation
1. Advertising
2. Solicitation
F. Reasonable Alternatives Considered
1. Reduce Specific Limitations on
Investment Adviser Advertisements
2. Not Have an Advertising Rule and Rely
on Section 206
3. Define Non-Retail Investors as
Accredited Investors or Qualified Clients
4. Further Bifurcate Additional
Requirements
5. No Bifurcation
6. Hypothetical Performance Alternatives
7. Alternatives to Proposed Amendments
to Rule 206(4)–3
IV. Paperwork Reduction Act Analysis
A. Introduction
B. Rule 206(4)–1
1. Testimonials and Endorsements in
Advertisements
2. Third-Party Ratings in Advertisements
3. Performance Advertising
4. Additional Conditions Related to
Performance Results in Retail Advertisements
5. Review and Approval of Advertisements
6. Total Hour Burden Associated With
Proposed Rule 206(4)–1
C. Rule 206(4)–3
D. Rule 204–2
E. Form ADV
F. Request for Comments

2The current rule has been amended once, when the Commission revised the introductory text of paragraph (a) as part of a broader amendment of several rules under the Advisers Act to reflect changes made by the National Securities Market Improvement Act of 1996. Rules Implementing Amendments to the Investment Advisers Act of 1940, Release No. IA–1633 (May 15, 1997) [62 FR 28112, 28135 (May 22, 1997)]. 3As discussed below, we are proposing to define clients and investors that are ‘‘qualified purchasers’’ or ‘‘knowledgeable employees’’ as ‘‘Non-Retail Persons’’ and to define all other clients and investors as ‘‘Retail Persons.’’ Similarly, we are proposing to define advertisements directed at NonRetail Persons as ‘‘Non-Retail Advertisements’’ and all other advertisements as ‘‘Retail Advertisements.’’ 4As discussed below, we are proposing to apply the rule to advertisements disseminated by investment advisers to their clients and prospective clients as well as to investors and prospective investors in pooled investment vehicles that those advisers manage. For purposes of this release, we refer to any of these advertising recipients as ‘‘investors,’’ unless we specify otherwise. 5Advertisements by Investment Advisers, Release No. IA–121 (Nov. 1, 1961) [26 FR 10548 (Nov. 9, 1961)] (‘‘Advertising Rule Adopting Release’’). 6 Investment Advisers Notice of Proposed Rulemaking, Release No. IA–113 (Apr. 4, 1961) [26 FR 3070, 3071 (Apr. 11, 1961)] (‘‘Advertising Rule Proposing Release’’). 7See 17 CFR 230.482 (regulating advertising with respect to securities of RICs and business development companies (‘‘BDCs’’)); 17 CFR 230.156 (regulating investment company sales literature). 8See Section 206(4) of the Advisers Act (authorizing the Commission to define and prescribe ‘‘means reasonably designed to prevent, such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative’’). 9Rule 206(4)–1(a)(1) (prohibiting publication, circulation, or distribution of any advertisement ‘‘which refers, directly or indirectly, to any testimonial of any kind concerning the investment adviser or concerning any advice, analysis, report or other service rendered by such investment adviser’’).
V. Initial Regulatory Flexibility Analysis
A. Reason for and Objectives of the Proposed Action
1. Proposed Rule 206(4)–1
2. Proposed Amendments to Rule 206(4)–
3
3. Proposed Rule 204–2
4. Proposed Amendments to Form ADV
B. Legal Basis
C. Small Entities Subject to the Rule and
Rule Amendments
1. Small Entities Subject to Amendments to
Advertising Rule
2. Small Entities Subject to Amendments to
Solicitation Rule
3. Small Entities Subject to Amendments to
the Books and Records Rule 206(4)–2
4. Small Entities Subject to Amendments to
Form ADV
D. Projected Reporting, Recordkeeping and Other Compliance Requirements
1. Proposed Rule 206(4)–1
2. Proposed Amendments to Rule 206(4)–
3
3. Proposed Amendments to Rule 204–2
4. Proposed Amendments to Form ADV
E. Duplicative, Overlapping, or Conflicting Federal Rules
1. Proposed Rule 206(4)–1
2. Proposed Amendments to Rule 206(4)–
3
3. Proposed Amendments to Form ADV
F. Significant Alternatives
1. Proposed Rule 206(4)–1
2. Proposed Rule 206(4)–3
G. Solicitation of Comments
VI. Consideration of Impact on the Economy
VII. Statutory Authority
IV. Appendix A: Changes to Form ADV
V. Appendix B: Investor Feedback Flyer
VI. Appendix C: Smaller Adviser Feedback
Flyer
I. Introduction
We are proposing reforms of two rules under the Advisers Act relating to how advisers advertise to and solicit clients and investors. First, we are proposing a rule addressing advertisements by investment advisers that would replace the rule that we adopted in 1961, rule 206(4)–1, which we have not changed substantively since adoption.2 The proposed rule would replace the current rule’s broadly drawn limitations with principles-based provisions. The proposed rule contains general prohibitions of certain advertising practices, as well as more tailored restrictions and requirements that are reasonably designed to prevent fraud with respect to certain specific types of advertisements. This approach permits the use of testimonials and endorsements, and third-party ratings, subject to certain conditions. This approach also permits the presentation of performance with tailored requirements based on an advertisement’s intended audience.3 The proposal recognizes developments in technology, changing profiles of investment advisers registered with the Commission, and our experience administering the current rule. Additionally, we are proposing to amend the Advisers Act cash solicitation rule, rule 206(4)–3, to update its coverage to reflect regulatory changes and the evolution of industry practices since we adopted the rule in
1979. We are proposing to expand the
rule to cover solicitation arrangements involving all forms of compensation, rather than only cash compensation, eliminate requirements duplicative of other rules, and tailor the required disclosures solicitors would provide to investors. The proposed rule would also refine the existing provisions regarding disciplinary events that would disqualify a person or entity from acting as a solicitor. Finally, we are proposing related amendments to Form ADV that are designed to provide additional information regarding advisers’ advertising practices, and amendments to the Advisers Act books and records rule, rule 204–2, related to the proposed changes to the advertising and solicitation rules. A. Advertising Rule Background Advertisements are a useful tool for investment advisers seeking to obtain new investors and to retain existing investors.4 Investment advisers disseminate advertisements about their services to inform prospective investors and to persuade them to obtain and pay for those services or to learn more about the advisers. Similarly, advertisements can provide existing investors with information about new or revised services. Accordingly, advertisements can provide existing and prospective investors with useful information as they choose among investment advisers and advisory services. At the same time, advertisements present risks of misleading existing and prospective investors because the investment adviser’s interest in attracting or retaining them may conflict with their interests, and the adviser is in control of the design, content, format, media, timing, and placement of its advertisements with a goal of obtaining or retaining business. This goal may create an incentive for advertisements to mislead existing and prospective investors about the advisory services they would receive, including indirectly through the services provided to pooled investment vehicles. The Commission recognized the potential harm to investors from misleading advertisements when it adopted the current advertising rule in
1961.5 The Commission explained when
it proposed the current rule that investment advisers generally must adhere to a stricter standard of conduct in advertisements than that applicable to ‘‘ordinary merchants’’ because securities ‘‘are intricate merchandise,’’ and investors ‘‘are frequently unskilled and unsophisticated in investment matters.’’ 6 These concerns have motivated the Commission to adopt other rules on advertising investment services and products, including for registered investment companies (‘‘RICs’’).7 In adopting the current rule, the Commission used its authority under
section 206(4) of the Advisers Act to
target advertising practices that it believed were likely to be misleading by imposing four per se prohibitions.8 First, the current rule prohibits testimonials concerning the investment adviser or its services.9 Second, the current rule prohibits direct or indirect references to specific profitable recommendations that the investment adviser has made in the past (‘‘past

10Rule 206(4)–1(a)(2) (prohibiting publication, circulation, or distribution of any advertisement ‘‘which refers, directly or indirectly, to past specific recommendations of such investment adviser which were or would have been profitable to any person’’ but providing that an advertisement may set out or offer to furnish a list of all recommendations within the immediately preceding period of not less than one year under certain conditions). 11Rule 206(4)–1(a)(3) (prohibiting publication, circulation, or distribution of any advertisement ‘‘which represents, directly or indirectly, that any graph, chart, formula or other device being offered can in and of itself be used to determine which securities to buy or sell, or when to buy or sell them; or which represents directly or indirectly, that any graph, chart, formula or other device being offered will assist any person in making his own decisions as to which securities to buy, sell, or when to buy or sell them, without prominently disclosing in such advertisement the limitations thereof and the difficulties with respect to its use’’). 12Rule 206(4)–1(a)(4) (prohibiting publication, circulation, or distribution of any advertisement ‘‘which contains any statement to the effect that any report, analysis, or other service will be furnished free or without charge, unless such report, analysis or other service actually is or will be furnished entirely free and without any condition or obligation, directly or indirectly’’). 13Rule 206(4)–1(a)(5). 14For example, the Financial Industry Regulatory Authority’s (‘‘FINRA’’) rule 2210 governs brokerdealers’ communications with the public, including communications with retail and institutional investors, and provides standards for the content, approval, recordkeeping, and filing of communications with FINRA. See Advertising Regulation, available at http://www.finra.org/ industry/advertising-regulation. The Commodity Futures Trading Commission likewise regulates certain types of advertising by commodity pool operators, commodity trading advisors, and their respective principals. 17 CFR 4.41 Advertising by Commodity Pool Operators, Commodity Trading Advisors, and the Principals Thereof (prohibiting, in part, any advertisements that employ any device, scheme or artifice to defraud any client or prospective client). The Municipal Securities Rulemaking Board regulates advertisements concerning the products or services of certain brokers, dealers, and municipal securities dealers, and, beginning in 2019, will regulate advertisements by municipal advisers. SelfRegulatory Organizations; Municipal Securities Rulemaking Board; Order Granting Approval of a Proposed Rule Change, Consisting to Amendments to Rule G–21, on Advertising, Proposed New Rule G–40, on Advertising by Municipal Advisers, and a Technical Amendment to Rule G–42, on Duties of Non-Solicitor Municipal Advisers, Release No. 34–83177 (May 7, 2018) [83 FR 21794 (May 10, 2018)]. MSRB Rule G–40 became
effective on August 23, 2019. 15See, e.g., Modernization of Regulation S–K Items 101, 103, and 105, Release No. 33–10668 (Aug. 8, 2019) [84 FR 44358 (Aug. 23, 2019)] (discussing the role of ‘‘principles-based’’ disclosure requirements in articulating a disclosure concept rather than a specific line-item requirement). 16 ‘‘Social media’’ is an umbrella term that encompasses various activities that integrate technology, social interaction, and content creation. Social media may use many technologies, including, but not limited to, blogs, microblogs, wikis, photos and video sharing, podcasts, social networking, and virtual worlds. The terms ‘‘social media,’’ ‘‘social media sites,’’ ‘‘sites,’’ and ‘‘social networking sites’’ are used interchangeably in this release. 17See Report on the Review of the Definition of ‘‘Accredited Investor’’ (Dec. 18, 2015) (‘‘Accredited Investor Staff Report’’), available at https:// www.sec.gov/corpfin/reportspubs/special-studies/ review-definition-of-accredited-investor-12-18- 2015.pdf, at 5 (noting ‘‘increased informational availability’’ and ‘‘changes in the way investors communicate’’ since adoption of the ‘‘accredited investor’’ definition in 1982). 18See also Guidance on the Testimonial Rule and Social Media, Division of Investment Management Guidance Update No. 2014–04 (Mar. 2014) (‘‘IM Staff Social Media Guidance’’), in which our staff discussed its views on application of the current rule to various situations involving social media. Any staff guidance or no-action letters discussed in this release represent the views of the staff of the Division of Investment Management. They are not a rule, regulation, or statement of the Commission. Furthermore, the Commission has neither approved nor disapproved their content. Staff guidance has no legal force or effect; it does not alter or amend applicable law, and it creates no new or additional obligations for any person. specific recommendations’’).10 Third, the current rule prohibits representations that any graph or other device being offered can by itself be used to determine which securities to buy and sell or when to buy and sell them.11 Fourth, the current rule prohibits any statement to the effect that any service will be furnished free of charge, unless such service actually is or will be furnished entirely free and without any condition or obligation.12 In addition to the four per se prohibitions, the current rule prohibits any advertisement which contains any untrue statement of a material fact, or which is otherwise false or misleading.13 This prohibition operates more generally than the specific prohibitions to address advertisements that do not violate any per se prohibition but still may be fraudulent, deceptive, or manipulative and, accordingly, be misleading. The concerns that motivated the Commission to adopt the current rule still exist today and are echoed in the rules adopted under other regulatory and self-regulatory regimes governing the use of
communications by financial professionals.14 However, in the nearly 60 years since the current rule’s adoption, issues and questions have arisen about the current rule’s application, particularly the application of the prohibitions of testimonials and past specific recommendations. Additionally, some of the most common questions related to the current rule (and the anti-fraud provisions of the Advisers Act) relate to the appropriate presentation of performance in advertisements, which the current rule does not explicitly address. The breadth of the current rule’s prohibitions, as well as the lack of explicit prescriptions related to the presentation of performance in the rule, can present compliance challenges and potentially have a chilling effect on advisers’ ability to provide useful information in communications that are considered advertisements. Moreover, changes that have occurred since the current rule’s adoption lead us to believe providing a more principlesbased approach would be beneficial. Specifically, in our development of the proposed rule, we have considered changes in the technology used for communications, the expectations of investors shopping for advisory services, and the nature of the investment advisory industry, including the types of investors seeking and receiving investment advisory services. These changes have informed not only how we propose to update the rule to address current technology, expectations, and market practice but also our general approach of proposing principles-based rules in order to accommodate the continual evolution and interplay of technology and advice.15 Advances in Technology. Advances in technology have altered the ways in which service providers, including advisers, interface with consumers generally, including with existing and prospective investors. These advances have also changed the manner in which those consumers evaluate products and services. In the decades since the current rule was adopted, the use of the internet, mobile applications, and social media 16 has become an integral part of business communications. These advances in technology have led to significant growth in the nature and volume of information available to individuals and businesses,17 for example, by allowing them to access and share user reviews. However, websites and social media can create challenges in complying with the current rule’s prohibition on testimonials, particularly for advisers that rely heavily on electronic platforms to communicate with existing and prospective investors.18 Expectations of Consumers Shopping for Services. Consumers today often rely on the internet to obtain information when considering buying goods and services across the world, including advisory services and those of other financial professionals. Many websites allow potential buyers to compare and contrast the goods and services being offered, including through reviews and ratings provided by those who have previously bought the
relevant goods and services. We believe that consumers’ ability to seek out reviews and other information, as well as their interest in doing so, when evaluating

19See, e.g., Robo-Advisers, Division of Investment Management Guidance Update No. 2017–02 (Feb. 2017); see also Concept Release on Harmonization of Securities Offering Exemptions, Release No. IA–5256 (June 18, 2019) [84 FR 30460 (June 26, 2019)] (‘‘2019 Concept Release’’) (describing the use of robo-advisers as part of the broad availability ‘‘in recent years’’ of investment advisory services to retirement investors). 20See the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, 124 Stat. 1376 (2010) (the ‘‘Dodd-Frank Act’’). 21See 15 U.S.C. 80b–2(a)(29) (defining a ‘‘private fund’’ as ‘‘an issuer that would be an investment company, as defined in section 3 of the Investment Company Act of 1940, but for section 3(c)(1) or 3(c)(7) of that Act’’). 22As part of the Dodd-Frank Act, the Private Fund Investment Advisers Registration Act of 2010 (enacted as Title IV of the Dodd-Frank Act) repealed the ‘‘private fund adviser exemption’’ from registration under section 203(b)(3) of the Advisers Act, on which many advisers to private funds had relied to remain outside the purview of the Advisers Act. As a result, the Commission saw an increase in the number of registered investment advisers servicing private funds. Based on a review of Form ADV data between June 2012 and August 2019, the number of investment advisers to private funds registered with the Commission increased from approximately 4,050 to approximately 4,856. The number of private funds advised by registered investment advisers has increased during that same time period, from 24,476 in June 2012 to 37,004 in August 2019. The Dodd-Frank Act created a narrower set of exemptions for advisers that advise exclusively venture capital funds and advisers solely to private funds with less than $150 million in assets under management in the United States. See section 203(l) and section 203(m) of the Advisers Act. 23We have previously indicated the diversity in types of clients that receive investment advisory services. See, e.g., Commission Interpretation Regarding Standard of Conduct for Investment Advisers, Release No. IA–5248 (June 5, 2019) (‘‘Standard of Conduct Release’’) (noting the large variety of clients served by investment advisers ‘‘from retail clients with limited assets and investment knowledge and experience to institutional clients with very large portfolios and substantial knowledge, experience, and analytical resources’’). 24Advertising Rule Adopting Release, supra footnote 5. 25As discussed below, see infra section III.B.1, a substantial percentage of assets under management at investment advisers is held by institutional clients. 26As discussed below, we are proposing to apply the rule to compensation by investment advisers to solicitors to obtain clients and prospective clients as well as investors and prospective investors in private funds that those advisers manage. For purposes of this release, we refer to any of these persons as ‘‘investors,’’ unless
we specify otherwise. 27See Requirements Governing Payments of Cash Referral Fees by Investment Advisers, Release No. 688 (July 12, 1979) [44 FR 42126 (Jul. 18, 1979)] (the ‘‘1979 Adopting Release’’). When we proposed the rule, we noted that referral arrangements in the investment advisory industry are ‘‘fraught with possible abuses’’ and we considered prohibiting investment advisers from making referral payments to persons not directly employed by the firm. See Requirements Governing Payments of Cash Referral Fees by Investment Advisers, Release No. 615 (Feb. 11, 1978) [43 FR 6095 (Feb. 13, 1978)] (the ‘‘1978 Proposing Release’’), at 6096; 1979 Adoption Release, id., at 42126. However, we concluded that investors’ interests could be protected if the conflicts of interest are properly disclosed to advisory clients and certain other regulatory safeguards are met. See 1979 Adopting Release, id., at 42126. products and services has changed since the adoption of the current rule. Profiles of the Investment Advisory Industry. The variety of advisers subject to the advertising rule has changed since the current rule’s adoption. Specifically, the type of advisory services provided by advisers generally has changed over time, from impersonal investment advice distributed to many prospective investors in the form of newsletters and other periodicals to more personalized advisory services. The ways advisers and investors interact and engage has also changed; some investors today rely on digital investment advisory programs, sometimes referred to as ‘‘roboadvisers,’’ for investment advice, which is provided exclusively through electronic platforms using algorithmicbased programs.19 In addition, passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (‘‘DoddFrank Act’’) 20 required many investment advisers to private funds 21 that were previously exempt from registration to register with the Commission and become subject to more provisions of the Advisers Act.22 Additionally, the diversity in types of investors seeking and receiving advisory services has increased since the current rule’s adoption.23 When adopting the current rule, the Commission stated ‘‘clients or prospective clients of investment advisers are frequently unskilled and unsophisticated in investment matters.’’ 24 Changes in the investor population since the current rule’s adoption suggest we should reconsider some specific provisions of the current rule and consider how best to address new issues. For example, assets under management for institutional clients have increased in recent years.25 These types of investors often have their own teams of in-house investment professionals to manage their assets or oversee the retention of outside managers. They therefore often want and have the resources to evaluate information that the current rule may restrict. At the same time, household and individual participation in the capital markets through intermediaries, like investment
advisers, has increased. As a result, more individuals who are not themselves professional investors may be seeking or receiving advertisements for these services. Accordingly, rather than the ‘‘one-sizefits-all’’ approach of the current rule, we believe it is appropriate for the rule to reflect the intended audience of the advertisement, including investors’ access to resources for assessing advertising content for advisory services, such as presentation of hypothetical performance. In light of the Commission’s decades of experience in administering the current rule and the other developments described above, as well as extensive outreach by Commission staff to investor advocacy groups, adviser groups, legal practitioners, and others, we are proposing significant changes to the current rule as discussed below. Specifically, we are proposing a restructured and more tailored rule that:
(i) Modifies the definition of ‘‘advertisement’’ to be more ‘‘evergreen’’ in light of ever-changing technology; (ii) replaces the current four per se prohibitions with a set of principles that are reasonably designed to prevent fraudulent or misleading conduct and practices; (iii) provides certain additional restrictions and conditions on testimonials, endorsements, and third-party ratings; and (iv) includes tailored requirements for the presentation of performance results, based on an advertisement’s intended audience. The proposed rule also would require internal review and approval of most advertisements and require each adviser to report additional information regarding its advertising practices in its Form ADV. B. Cash Solicitation Rule Background Another way that advisers attract clients and investors,26 beyond advertising communications, is through compensating firms or individuals to solicit new investors. Some investment advisers directly employ individuals to solicit new investors on their behalf, and some investment advisers arrange for related entities or third parties, such as broker-dealers, to solicit new investors. The person or entity compensated, commonly called the ‘‘solicitor,’’ has a financial incentive to recommend the adviser to the investor. Without appropriate disclosure, this compensation creates a risk that the investor would mistakenly view the solicitor’s recommendation as being an unbiased opinion about the adviser’s ability to manage the investor’s assets and would rely on that recommendation more than he or she otherwise would if the investor knew of the incentive. We adopted rule 206(4)-3, the cash solicitation rule, in 1979 to help ensure that clients become aware that paid solicitors have a conflict of interest.27 The current rule makes the adviser’s payment of a cash fee for referrals of

28See rule 206(4)-3(a)(2)(iii)(A). When the Commission proposed the solicitation rule, it did not include non-cash compensation in the rule. However, when the Commission adopted the rule, it noted that commenters suggested that a prohibition of cash solicitation fees altogether might lead to use of other, possibly undisclosed, methods of compensation, such as directed brokerage. 1979 Adopting Release, supra footnote 27, at n.6. 29 1978 Proposing Release, supra footnote 27. See rule 206(4)-3(b)(1) through (6). The solicitor disclosure must also include prescribed information about the cost that the client would bear in the advisory relationship as a result of the compensated referral. 30See rule 206(4)–3(a)(2)(iii)(B). Referrals by solicitors for impersonal advisory services and certain solicitors that are affiliated with the adviser are exempt from these requirements. See rule 206(4)–3(a)(2)(i) and (ii). 31See rule 206(4)–3(a)(1)(ii). 32See Section 7.B.(1)(A).28 (Private Fund Reporting) of Schedule D to Form ADV Part 1A (requiring advisers to private funds to list, among other things, the name of their marketer (including any solicitor)). As of September 30, 2019, approximately 33% of registered investment advisers that report that they advise one or more private funds on Form ADV also report that the private fund uses the services of someone other than the adviser or its employees for marketing purposes. 33See rule 206(4)–7; Compliance Programs of Investment Companies and Investment Advisers, Release No. IA–2204 (Dec. 17, 2003) [68 FR 74714 (Dec. 24, 2003)] (‘‘Compliance Program Adopting Release’’). 34The same year we adopted the cash solicitation rule, we adopted for the first time the Form ADV brochure, which we have significantly amended over time. See 1979 Adopting Release, supra footnote 27, at n.14 and accompanying text. See Amendments to Form ADV, Release No. IA–3060 (July 28, 2010) [75 FR 155 (Aug. 12, 2010)] (‘‘2010 Form ADV Amendments Release’’), at section I. The Commission noted in the 1979 adopting release that ‘‘delivery of a brochure by the solicitor will, in most cases, satisfy the investment adviser’s obligation to deliver a brochure to the client under Rule 204–3.’’ See 1979 Adopting Release, supra footnote 27. 35See proposed rule 206(4) 1(a). 36See proposed rule 206(4) 1(b). 37See proposed rule 206(4) 1(c). 38See proposed rule 206(4) 1(d). 39The proposed rule would not apply to advisers that are not required to register as investment advisers with the Commission, such as exempt reporting advisers or state-registered advisers. advisory clients unlawful unless the solicitor and the adviser enter into a written agreement that, among other provisions, requires the solicitor to provide the client with a current copy of the investment adviser’s Form ADV brochure and a separate written solicitor disclosure document.28 The solicitor disclosure must contain information highlighting the solicitor’s financial interest in the client’s
choice of an investment adviser.29 In addition, the rule prescribes certain methods of compliance, such as requiring an adviser to receive a signed and dated client acknowledgment of receipt of the required disclosures.30 The current rule also prohibits advisers from making cash payments to solicitors that have previously been found to have violated the Federal securities laws or have been convicted of a crime.31 The current solicitation rule has not been amended since adoption 40 years ago. In this time, advisory and referral practices have evolved, as has the regulatory framework for investment advisers. For example, advisers use various types of compensation, including non-cash compensation, in referral arrangements. Over time, we have gained a greater understanding of these arrangements, causing us to reevaluate whether the rule should apply to all forms of compensation for referrals. In addition, as discussed above, the passage of the Dodd-Frank Act required many investment advisers to private funds that were previously exempt from registration to register with the Commission and become subject to additional provisions of the Advisers Act and the rules thereunder. Private funds and their advisers often hire solicitors to obtain investors in the funds.32 Additionally, the Commission has adopted other regulatory requirements for advisers since the current rule’s adoption that are more principles-based. For example, the Act’s compliance rule could broadly replace some of the rule’s prescriptive requirements, such as the requirement to obtain written and signed acknowledgments of each solicitor disclosure.33 In addition, the Act’s brochure delivery rule may duplicate the current cash solicitation rule’s requirement that the solicitor also deliver the adviser’s brochure.34 Finally, we believe it is appropriate to consider revising the solicitor disqualification provision to address certain types of conduct. Therefore, we are proposing to expand the rule to cover solicitation arrangements involving all forms of compensation, rather than only cash compensation. We are proposing to expand the rule to apply to the solicitation of current and prospective investors in any private fund, rather than only to ‘‘clients’’ (including prospective clients) of the investment adviser. Our proposal would require solicitor disclosure to investors, which alerts investors to the effect of this compensation on the solicitor’s incentive in making the referral. In addition, we are proposing changes to eliminate: (i) The requirement that solicitors provide the client with the adviser’s Form ADV brochure; and (ii) the explicit reminders of advisers’ requirements under the Act’s special rule for solicitation of government entity clients and their fiduciary and other legal obligations. Our proposal would also eliminate the requirement that an adviser obtain a signed and dated acknowledgment from the client that the client has received the solicitor’s disclosure, and
instead would afford advisers the flexibility in developing their own policies and procedures to ascertain whether the solicitor has complied with the rule’s required written agreement. We are also proposing two new exceptions to the solicitation rule, an exception for de minimis payments (less than $100 in any 12 month period) and one for nonprofit programs designed to provide a list of advisers to interested parties. Finally, we are proposing to refine the rule’s solicitor disqualification provision to expand the types of disciplinary events that would trigger the rule’s disqualification provision, while also providing a conditional carve-out for certain types of Commission actions.
II. Discussion
A. Proposed Amendments to the Advertising Rule

Structure of the Rule
The proposed advertising rule is organized as follows, as a means reasonably designed to prohibit fraudulent, deceptive or manipulative acts: (i) General prohibitions of certain advertising practices applicable to all advertisements; 35 (ii) tailored restrictions or conditions on certain practices (testimonials, endorsements, and third-party ratings) applicable to all advertisements; 36 (iii) tailored requirements for the presentation of performance results, based on the advertisement’s intended audience; 37 and (iv) a compliance requirement that most advertisements be reviewed and approved in writing by a designated employee before dissemination.38 The proposed rule would apply to all investment advisers registered, or required to be registered, with the Commission.39
Scope of the Rule: Definition of
‘‘Advertisement’’ a. Proposed Definition The proposed rule would define ‘‘advertisement’’ as ‘‘any communication, disseminated by any means, by or on behalf of an investment adviser, that offers or promotes the investment adviser’s investment advisory services or that seeks to obtain or retain one or more investment advisory clients or investors in any pooled investment vehicle advised by the investment adviser.’’ The proposed

40The proposed definition of ‘‘advertisement’’ is distinct from a communication that would be considered general solicitation or general advertising of an offering for purposes of Regulation D under the Securities Act. See 17 CFR 230.502(c) (describing limitations on the manner of offering or selling securities under Regulation D). The proposed definition would also be distinct from a communication that would be considered a public offering for purposes of section 4(a)(2) of the Securities Act. See 17 U.S.C. 77d(a)(2). However, in determining whether a communication would constitute a general solicitation, the Commission has historically interpreted the term ‘‘offer’’ broadly, and has explained that ‘‘the publication of information and publicity efforts, made in advance of a proposed financing which have the effect of conditioning the public mind or arousing public interest in the issuer or in its securities constitutes an offer.’’ See Securities Offering Reform, Release No. 33–8591 (July 19, 2005) [70 FR 44722 (Aug. 3, 2005)], at n. 88. Thus an advertisement under the proposed rule would need to be assessed to determine whether it may be a communication that is considered a general solicitation, advertising, or a public offering for purposes of Regulation D or
section 4(a)(2).
41See proposed rule 206(4)-1(e)(1) (defining ‘‘advertisement’’ as, in part, ‘‘any communication, disseminated by any means’’). In contrast, the current rule defines ‘‘advertisement,’’ in part, to include ‘‘any notice, circular, letter or other written communication addressed to more than one person, or any notice or other announcement in any publication or by radio or television.’’ Rule 206(4)– 1(b). 42See proposed rule 206(4)–1(e)(1) (defining ‘‘advertisement’’ as, in part, any communication ‘‘that offers or promotes the investment adviser’s investment advisory services or that seeks to obtain or retain one or more investment advisory clients or investors in any pooled investment vehicle advised by the investment adviser’’). In contrast, the current rule defines ‘‘advertisement,’’ in part, to include ‘‘any notice, circular, letter or other written communication addressed to more than one person.’’ Rule 206(4)–1(b). definition of ‘‘advertisement’’ would not include the following four categories of communications:
(A) Live oral communications that are not broadcast on radio, television, the internet, or any other similar medium; (B) A communication by an investment adviser that does no more than respond to an unsolicited request for specified information about the investment adviser or its services, other than (i) any communication to a Retail Person that includes performance results or (ii) any communication that includes hypothetical performance; (C) An advertisement, other sales material, or sales literature that is about an investment company registered under the Investment Company Act of 1940 (the ‘‘Investment Company Act’’) or about a business development company (‘‘BDC’’) and that is within the scope of rule 482 or rule 156 under the Securities Act of 1933 (the ‘‘Securities Act’’); or (D) Any information required to be contained in a statutory or regulatory notice, filing, or other communication. The proposed rule is intended to define ‘‘advertisement’’ so that it is flexible enough to remain relevant and effective in the face of advances in technology and evolving industry practices.40 This proposed definition reflects several differences from the current rule. One difference is the expansion of the types of communications addressed to reflect evolving methods of communication, rather than the methods that were most common when the current rule was adopted (e.g., newspapers, television, and radio).41 Second, the proposed definition applies explicitly to advertisements disseminated to investors in pooled investment vehicles, with a carve-out for publicly offered investment companies. Third, the proposed definition does not retain the current rule’s ‘‘more than one person’’ element, but, consistent with the effect of that element, does not apply to nonbroadcast live oral communications or responses to certain unsolicited requests.42 Finally, the rule carves out information required by existing statutory or regulatory requirements. These differences are intended to update the current rule to reflect modern methods of communication and to be sufficiently flexible to address future methods of dissemination, as well as clarify investment advisers’ obligations with respect to all communications intended to obtain or retain investors in pooled investment vehicles. We discuss below the specific provisions of and specific exclusions from the proposed rule’s definition. We request comment generally on the proposed rule’s definition of ‘‘advertisement,’’ with more specific requests on particular elements of the proposed definition in the sections that follow.

Generally, does the proposed rule’s
definition of ‘‘advertisement’’ sufficiently describe the types of communications that should be subject to the requirements of the proposed rule? Are there types of communications that should be subject to the requirements of the proposed rule but are excluded from the proposed definition?
Conversely, does the proposed
rule’s definition of ‘‘advertisement’’ include communications that should not be subject to the requirements of the proposed rule? b. Specific Provisions
i. Dissemination by Any Means
The proposed rule would define ‘‘advertisement’’ to include communications ‘‘disseminated by any means.’’ This would replace the current rule’s requirement that it be a ‘‘written’’ communication or a notice or other announcement ‘‘by radio or television.’’ This proposed revision would change the scope of the rule to encompass all promotional communications regardless of how they are disseminated, with the exception of certain communications discussed below. Communications may be disseminated through emails, text messages, instant messages, electronic presentations, videos, films, podcasts, digital audio or video files, blogs, billboards, and all manner of social media, as well as by paper, including in newspapers, magazines and the mail. We recognize that electronic media (including social media and other internet communications) and mobile communications play a significant role in current advertising practices. While we considered including specific references to such media in the proposed definition, we believe that ‘‘by any means’’ incorporates such media while better focusing the proposed rule on the goal of the communication, and not its method of delivery. We also believe this revision will help the proposed definition remain evergreen in the face of evolving technology and methods of communication. We request comment on the proposed definition’s inclusion of a communication disseminated by any means.
Would the proposed definition’s
approach have our intended effect of being evergreen in the face of changing technologies? Is there an alternative approach that would better produce this intended effect?
The proposed rule’s restrictions
would not distinguish between, for example, a print advertisement and a social media post. Is our approach in this respect appropriate or should we treat communications differently depending on the medium? If so, how should we reflect that treatment? Would additional definitions be appropriate or useful? If we adopt a definition that lists specific media, how should we address our goal of having the definition apply to new media in the future?
The proposed definition would
capture advertisements that are nominally directed at one person but in fact widely disseminated (such as robocalls or emails), in order to prevent any evasion of a rule covering communications ‘‘addressed to’’ one person. Would the proposed rule’s approach have this intended antievasion effect? Is there an alternative approach to the proposed definition that would better produce this intended effect?

43Proposed rule 206(4)–1(e)(1).
44See, e.g., Investment Company Institute, SEC Staff No-Action Letter (Sept. 23, 1988) (‘‘ICI Letter’’) (staff stated that it would not recommend enforcement action regarding an investment adviser’s provision of performance information to consultants for advisory clients under certain conditions). 45See infra section II.B for a discussion of the proposed solicitation rule. In many cases, a compensated testimonial or endorsement would be subject to both the proposed advertising rule and the proposed solicitation rule. This could be the case even if the adviser does not give the adviser’s advertising content to the person providing the testimonial or endorsement. See infra section II.B. 46That is, we intend ‘‘by or on behalf of’’ to require affirmative steps by the adviser. 47See, e.g., In re Profitek, Inc., Release No. IA– 1764 (Sept. 29, 1998) (settled order) (the Commission brought an enforcement action against an investment adviser, asserting that it directly or indirectly distributed materially false and misleading advertisements, including by submitting performance information in questionnaires submitted to online databases that were made available to subscribers nationwide and by providing misleading performance information to newspaper that reported the performance in article); see also ICI Letter. 48The Commission has previously indicated an expectation that an adviser’s policies and procedures, at a minimum, should address certain issues to the extent they are relevant to that adviser, which may include marketing advisory services, including the use of solicitors. See Compliance Program Adopting Release, supra footnote 33. 49For many advertisements, paid content also may be considered a paid testimonial or endorsement, which would be subject to specific disclosure requirements (see proposed rule 206(4)– 1(b)(1)). See infra section II.A.4.b. 50We previously stated that an adviser should consider the application of rule 206(4)–1, including the prohibition on testimonials, before including hyperlinks to third-party websites on its website or in its electronic communications. See Interpretive Guidance on the Use of Company websites, Release No. IC–28351 (Aug. 1, 2008) [73 FR 45862 (Aug. 7, 2008)]. The proposed rule would provide an approach that is more flexible than our 2008 interpretive guidance to evaluating the use of hyperlinks to third-party content, as the proposed rule would not prohibit testimonials.

Should we have different
requirements for advertisements depending on how broadly the adviser disseminates them? For example, the FINRA communications rule differentiates between ‘‘retail communications,’’ which are those available to more than 25 investors, and ‘‘correspondence,’’ which are those available to 25 or fewer investors. Would this kind of differentiation be useful or appropriate in rule 206(4)–1?
ii. By or on Behalf of an Investment
Adviser
The proposed rule would define ‘‘advertisement’’ to include all communications ‘‘by or on behalf of an investment adviser.’’ 43 We understand that investment advisers often provide to intermediaries, such as consultants and solicitors, advertisements for dissemination,44 and the proposed rule would treat those as communications ‘‘by or on behalf of’’ the advisers.45 Communications disseminated by an affiliate of the investment adviser would similarly be treated as communications ‘‘by or on behalf of’’ the adviser. For example, a communication prepared by the adviser to an affiliated private fund but disseminated for the adviser by the private fund through its consultants would be a communication ‘‘by or on behalf of’’ the adviser for purposes of the proposed rule. If an advertisement were disseminated without the adviser’s authorization, however, such an unauthorized communication would not be ‘‘by or on behalf’’ of the adviser.46 We believe communications that investment advisers use to offer or promote their services have an equal potential to mislead—and should be subject to the proposed rule—regardless of whether the adviser disseminates such communications directly or through an intermediary. Including communications ‘‘on behalf of’’ an investment adviser also is intended to reflect the application of the current rule to communications provided by investment advisers through intermediaries.47 Accordingly, we believe that investment advisers should be able to comply with this element of the proposed rule through the practices they currently use in communicating with prospective clients through intermediaries.48 Additionally, content created by or attributable to unaffiliated third parties, such as investors, could be considered by or on behalf of an investment adviser, depending on the investment adviser’s involvement. Whether a communication is ‘‘by or on behalf of’’ an investment adviser when the communication involves content from an unaffiliated third party would require a facts and circumstances analysis. We believe that whether thirdparty information is attributable to an adviser under the ‘‘by or on behalf of’’ standard depends upon whether the adviser has involved itself in the preparation of the information or explicitly or implicitly endorsed or approved the information. This issue may commonly arise in the context of an adviser’s use of its website or other social media. For example, an adviser might incorporate third-party content into the adviser’s communication by including a hyperlink to an independent web page on which third-party content sits in the adviser’s communication. Or an adviser might allow third parties to post commentary on the adviser’s website or social media page. In both cases, the third-party content may be a communication ‘‘by or on behalf of’’ the adviser, and therefore an ‘‘advertisement’’ subject to the restrictions in the proposed rule. We believe third-party content is ‘‘by or on behalf of’’ an adviser
when the adviser takes affirmative steps with respect to the third-party content. For example, third-party content could be by or on behalf of the investment adviser if the investment adviser: (i) Drafts, submits, or is otherwise involved substantively in the preparation of the content; (ii) exercises its ability to influence or control the content, including editing, suppressing, organizing, or prioritizing the presentation of the content; or (iii) pays for the content. If an investment adviser helps draft comments that an investor posts on a third-party website or social media page, the comments could be an advertisement under the proposed definition, and the proposed rule’s requirements could apply. For instance, if the adviser edits a third party’s discussion of the adviser on a thirdparty website, then the content could be a communication by or on behalf of the adviser. As noted above, if the adviser pays for the content—including if the adviser provides non-cash compensation such as rewards or other incentives for a third party to provide content—the content could be considered to be by or on behalf of the adviser.49 Such incentives could include, for example, compensated advisory services and cross-referrals (e.g., the adviser refers investors to the third-party site). On the other hand, there are several circumstances in which we generally would not view third-party content as by or on behalf of an adviser, and therefore the content would not be within the proposed rule’s scope. For example, an adviser’s hyperlink to third-party content within the adviser’s press release generally would not, by itself, make the hyperlinked content
part of the advertisement, provided that
the third party, and not the adviser or its affiliate, drafted the hyperlinked content and is free to modify it.50 At the same time, an adviser’s hyperlink to third-party content that the adviser knows or has reason to know contains an untrue statement of material fact or materially misleading information would be fraudulent or deceptive under
section 206 of the Act.
Content regarding the investment adviser on third-party hosted platforms that solicit users to post information, including positive and negative reviews of the adviser, generally would not be

51The provision of investment advisory services would not constitute such affirmative steps. 52Other content on an adviser’s own website or social media page would likely meet the definition of ‘‘advertisement’’ in the proposed rule. 53For example, if the social media platform allows the investment adviser to sort the third-party content in such a way that more favorable content appears more prominently, but the investment adviser does not actually do such sorting, then the ability to sort content would not render such content attributable to the adviser. 54See supra footnote 4. 55For example, our staff has indicated that it would not recommend enforcement action under the current rule with respect to written communications by an adviser to an existing client about the performance of securities in the client’s account because such communications would not be ‘‘offers’’ of advisory services, and instead are ‘‘part of’’ those advisory services (unless the context in which the communication is provided suggests otherwise). See Investment Counsel Association of America, Inc., SEC Staff No-Action Letter (Mar. 1,
2004) (‘‘ICAA Letter’’).
‘‘by or on behalf of’’ the investment adviser unless the adviser took affirmative steps to influence the content of those reviews or posts, such as providing a user with wording to submit as a review or editing the content of a post.51 Determining whether content posted by third parties on an adviser’s own website or social media page is by or on behalf of the investment adviser will thus turn on the extent to which the adviser has involved itself in the presentation of such content.52 For example, the fact that an adviser permits all third parties to post public commentary to the adviser’s website or social media page would not, by itself, render such content attributable to the investment adviser, so long as the adviser does not selectively delete or alter the comments or their presentation. We believe such treatment for third-party content on the adviser’s own website or social media page is appropriate even if the adviser has the ability to influence control over the commentary but does not exercise it.53 Likewise, we would not consider an adviser that merely permits the use of ‘‘like,’’ ‘‘share,’’ or ‘‘endorse’’ features on a third-party website or social media platform to implicate the proposed rule. Conversely, if the investment adviser took affirmative steps to involve itself in the preparation of the comments or to endorse or approve the comments, those comments could be communications ‘‘by or on behalf of’’ the adviser. For example, if an adviser substantively modifies the presentation of comments posted by others by deleting negative comments or prioritizing the display of positive comments, then we believe the adviser is exercising sufficient control over third-party comments with the goal of promoting its advisory business that the content would be ‘‘by or on behalf of’’ the investment adviser and would likely be considered an advertisement under the proposed rule. We request comment on the proposed definition’s inclusion of communications ‘‘on behalf of’’ an investment adviser, including our views above on when third-party content would be considered a communication by or on behalf of an investment adviser.

Is the ‘‘on behalf of’’ element of the
proposed definition sufficiently clear based on our description above? Should we further clarify any specific indicia to determine when a communication is disseminated ‘‘on behalf of’’ an investment adviser, particularly circumstances when an adviser might have exercised sufficient influence over third-party content? Should we use a different standard such as, for example, the prohibition in rule 156 under the Securities Act of ‘‘directly or indirectly’’ using sales literature?
Should the proposed rule explicitly
define or provide examples when thirdparty content would be considered an advertisement for which the investment adviser is responsible and when it is not? How should we incorporate such provisions?
Do investment advisers routinely
use intermediaries or other third parties to disseminate communications to the advisers’ clients and prospective clients? How do investment advisers to private funds and other pooled investment vehicles currently use intermediaries, for example through capital introduction programs, to advertise those vehicles? Do commenters agree that investment advisers would be able to comply with the ‘‘on behalf of’’ element through practices they currently use in communicating through intermediaries?
Should the proposed rule apply
specific criteria to circumstances where investment advisers provide information to third-party news organizations? Are there circumstances under which investment advisers interact with third-party news organizations under the current rule that should be addressed specifically in the proposed rule? Are there specific challenges that investment advisers have encountered under the current rule in providing information to third-party news organizations? To what extent do investors rely on information provided by third-party news organizations in assessing the capabilities and experience of investment advisers that may be hired?
In our view, if an adviser were to
modify the presentation of third-party comments, such an action would likely make the communication by or on behalf of the adviser. Should we consider providing additional guidance to allow an adviser to edit third-party content solely on the basis that it is profane or unlawful without such editing causing the content to be ‘‘by or on behalf’’ of the adviser? If so, how should we define profane or unlawful content? Would it be necessary to give an audience notice that such third-party content had been edited in such a way, and if so, how would such notice best be provided? Would such guidance have the effect of evading the intent of the proposed rule, considering that comments with profane content may indicate negative views of the adviser?
Should we provide that editing the
presentation of third-party comments pursuant to a set of neutral preestablished policies and procedures would not make such content ‘‘by or on behalf of the adviser’’? For example, should we allow an adviser to determine in advance that it will delete all comments that are older than five years, or that include spam, threats, personally identifiable information, or demonstrably factually incorrect information? If so, should we require advisers to publically disclose the preestablished criteria for editing such comments?
iii. Offer or Promote Advisory Services
or Seek To Obtain or Retain Clients or Investors The proposed rule would define ‘‘advertisement’’ to include communications that are disseminated ‘‘to offer or promote’’ the investment adviser’s investment advisory services or that seek to ‘‘obtain or retain’’ investors.54 The ‘‘offer or promote’’ clause is meant to focus the proposed definition on the goal of the communication and on communications that we believe are commonly considered advertisements. The ‘‘offer or promote’’ clause reflects the current rule’s application, which has excluded communications that do not ‘‘offer’’ advisory services from advertisements under rule 206(4)–1.55 Such communications are still subject to the anti-fraud provisions in sections 206(1), (2), and (4) and rule 206(4)–8. Unlike the ‘‘offer’’ clause, the ‘‘promote’’ clause is not included in the text of the current rule. We believe that it is appropriate to include in the proposed definition communications that promote advisory services because we believe that advertisements are generally considered to be promotional materials, even if the communication

56See SEC v. C.R. Richmond & Co., 565 F.2d 1101, 1105 (9th Cir. 1977) (‘‘SEC v Richmond’’) (‘‘Investment advisory material which promotes advisory services for the purpose of inducing potential clients to subscribe to those services is advertising material within [the current rule].’’); see also Denver Investment Advisors, Inc., SEC Staff No-Action Letter (July 30, 1993) (indicating the staff’s view that a communication provided to consultants, but not necessarily to prospective clients, to allow the consultants to evaluate the adviser as part of the consultants’ own services to their own clients is an ‘‘advertisement’’ under the current rule because the communication is provided ‘‘for the ultimate purpose of maintaining existing clients and soliciting new ones’’). See also infra section II.D (regarding the potential withdrawal of this letter). 57See, e.g., FINRA rule 2210(c)(3)(A) (requiring a member to file retail communications that ‘‘promote or recommend’’ certain investment companies); MSRB rule G–21(a) (defining ‘‘advertisement’’ as, in
part, ‘‘any written or electronic promotional
literature’’); see also Amendments to Investment Company Advertising Rules, Release No. IC–26195 (Oct. 3, 2003) [68 FR 57760 (Oct. 6, 2003)] (‘‘Final Investment Company Advertising Release’’) (noting that when an investment company offers its shares to the public, ‘‘its promotional efforts become subject to the advertising restrictions of the Securities Act’’). 58Their exclusion from the proposed definition would not prevent these account statements or transaction reports from being subject to the other provisions of the Federal securities laws, including
section 17(a) of the Securities Act or section 10(b)
of the Securities Exchange Act of 1934 (the ‘‘Exchange Act’’) (and rule 10b–5 thereunder), to the extent those provisions would otherwise apply. 59See also ICAA Letter (stating the staff’s view that, ‘‘[i]n general, written communications by advisers to their existing clients about the performance of the securities in their accounts are not offers of investment advisory services but are
part of the adviser’s advisory services.’’). A
communication to an existing investor in a pooled investment vehicle about the performance of the pooled investment vehicle would not be treated as promoting the adviser’s services or be used to obtain or retain investors for purposes of rule 206(4)–1. 60See ICAA Letter (indicating that where an adviser writes a letter that discussed its past specific recommendations concerning securities not held or not recently held by some of the clients to whom the letter was directed ‘‘would suggest that a purpose of the communication was to promote the advisory services of the adviser’’). 61Our staff has indicated its view that materials designed to maintain existing clients should be considered to be advertisements under the current rule’s definition, see Munder Capital Management, SEC Staff No-Action Letter (May 17, 1996), and we are proposing to incorporate this approach in the proposed rule. See also In re Spear & Staff, Inc., Release No. IA–188 (Mar. 25, 1965) (settled order) (‘‘Spear’’) (the Commission brought an enforcement action against investment adviser, asserting, in part, that the current rule applied to direct mail and newspaper advertising that the adviser conducted ‘‘[t]o induce persons to enter or renew subscriptions’’ for market letters containing the adviser’s securities recommendations) (emphasis added); SEC v. Richmond & Co., 565 F.2d at 1106 (‘‘The court below found that [the adviser] advertised in a manner which led clients and prospective clients to believe that the use of [the adviser’s] services would lead to imminent and sizable profits with minimum risks.’’) (emphasis added). 62See Advertising Rule Adopting Release, supra footnote 5 (‘‘The Commission believes that this rule, foreclosing the use of advertisements which have a tendency to mislead or deceive clients or prospective clients, is necessary to implement the statutory mandate contained in Section 206(4) of the Act, as amended.’’) (emphasis added). does not explicitly ‘‘offer’’ services.56 Other rules governing financial firms similarly regulate ‘‘promotional’’ communications.57 Additionally, we believe that defining an ‘‘advertisement’’ as a communication that ‘‘offers or promotes’’ services would allow investment advisers to continue to deliver to existing investors account statements or transaction reports that are intended to provide only details regarding those accounts and investments without those communications being considered advertisements.58 In the usual course, a communication to an existing investor about the performance of the investor’s account would not be for promoting the adviser’s services or be used to obtain or retain investors.59 Accordingly, we would not view information typically included in an account statement, such as inflows, outflows, and account performance, as qualifying as advertisements under the proposed rule. In addition, we would not view materials that provide general educational information about investing or the markets as offering
or promoting an adviser’s services or seeking to obtain or retain investors. For example, an adviser that disseminates a newspaper
article about the operation of investment
funds or the risks of certain emerging markets would generally be circulating educational materials and not offering or promoting the adviser’s own services. However, investment advisers also may choose to deliver to existing investors communications that include promotional information that is neither account information nor educational material. Such additional promotional information may make the communication an advertisement, if that additional information ‘‘offers or promotes’’ the adviser’s advisory services under the facts and circumstances. For example, a communication to existing investors that includes the adviser’s own market commentary or a discussion of the adviser’s investing thesis may be considered to be ‘‘offering or promoting’’ the adviser’s services depending on the facts and circumstances of the relevant communication.60 The proposed definition of ‘‘advertisement’’ includes communications disseminated ‘‘to obtain or retain’’ investors. We would expressly include communications that are intended to retain existing investors because communications to existing investors may be used to mislead or deceive in the same manner as communications to prospective investors.61 Accordingly, we believe it is appropriate to regulate the use of such communications as a means reasonably designed to prevent fraudulent, deceptive, or misleading acts, practices, or courses of business.62 We request comment on this aspect of the proposed definition:

Are there types of communications
that ‘‘offer or promote’’ investment advisory services or that seek to ‘‘obtain or retain’’ investors that should not be treated as ‘‘advertisements’’?
Should the proposed rule address
communications that ‘‘offer or promote’’ anything besides investment advisory services? Do investment advisers seek to ‘‘offer or promote’’ other goods or services that should be addressed explicitly in the proposed rule as an exclusion from the definition or otherwise? Should the definition be further limited to communications that offer or promote investment advisory services that ‘‘relate to securities’’?
Should we clarify any specific
indicia to determine whether investment advisory services are being ‘‘offered’’ or ‘‘promoted’’? Are there any challenges that investment advisers might face in determining whether a communication is ‘‘offering or promoting’’ advisory services?
The proposed rule would explicitly
include communications meant to ‘‘retain’’ existing clients. Is it appropriate to treat communications as ‘‘advertisements’’ when the persons receiving them already are ‘‘clients’’ of the investment adviser and benefit from the other protections of the Federal securities laws? Similarly, is it appropriate to treat communications as ‘‘advertisements’’ when the persons receiving them already are investors in pooled investment vehicles advised by the investment adviser and benefit from applicable protections of the Federal securities laws?
Should the proposed rule treat
communications to existing investors differently from communications to prospective investors?
Does the definition provide
sufficient clarity to permit advisers to communicate with their existing investors about their accounts or about pooled investment vehicles in which they are invested, in the usual course of business without those communications being considered advertisements?

63For this purpose, ‘‘pooled investment vehicle’’ would be defined in the same way as the definition in rule 206(4)–8 under the Investment Advisers Act of 1940. See proposed rule 206(4)–1(e)(9). Rule 206(4)–8 defines ‘‘pooled investment vehicle’’ as ‘‘any investment company as defined in section 3(a) of the Investment Company Act of 1940 or any company that would be an investment company under section 3(a) of that Act but for the exclusion provided from that definition by either section 3(c)(1) or section 3(c)(7) of that Act.’’ Rule 206(4)– 8(b). 64See Prohibition of Fraud by Advisers to Certain Pooled Investment Vehicles, Release No. IA–2628 (Aug. 3, 2007) [72 FR 44756 (Aug. 9, 2007)] (‘‘Rule 206(4)–8 Adopting Release’’) (‘‘The rule clarifies that an adviser’s duty to refrain from fraudulent conduct under the federal securities laws extends to the relationship with ultimate investors and that the Commission may bring enforcement actions under the Advisers Act against investment advisers who defraud investors or prospective investors in those pooled investment vehicles.’’). 65 15 U.S.C. 80b–6(4). 66See Goldstein v. SEC, 451 F.3d 873 (D.C. Cir. 2006). There are circumstances under which an investor in a pooled investment vehicle is also a client of the investment adviser—for example, when the investor has its own investment advisory agreement with the investment adviser. Under those circumstances, communications to that person would also be addressed as ‘‘advertisements’’ under the proposed rule. 67Rule 206(4)–8(a)(1). 68For example, rule 206(4)–8 prohibits investment advisers to pooled investment vehicles from engaging in any act, practice, or course of business that is fraudulent, deceptive, or manipulative with respect to any investor or prospective investor in the pooled investment vehicle. The proposed rule would include more specific provisions in the context of advertisements. See proposed rule 206(4)–1(b) and 206(4)–1(c). To the extent that an advertising practice would violate a specific restriction imposed by the proposed rule, it is possible that such a practice may already be prohibited under rule 206(4)–8. Investment advisers to pooled investment vehicles may benefit from the clarity provided by the proposed rule, to the extent that it prohibits conduct that may otherwise be prohibited under the general principles of rule 206(4)–8. We request comment below on whether rule 206(4)–8 itself should be amended. 69One commenter addressed private fund advertising in connection with the Commission’s recent concept release on exempt offerings. See 2019 Concept Release, supra footnote 19; see also Comment Letter of the Investment Company Institute on the 2019 Concept Release (Sept. 24, 2019), at n.62 (‘‘We recommend that the Commission adopt restrictions for private fund advertising beyond the anti-fraud requirements of
Section 206(4) of the Advisers Act and Rule 206(4)–
8 thereunder. If those regulations alone were enough to dispel investor confusion and prevent misleading solicitation, then the myriad rules and staff guidance applicable to regulated funds that the Commission and staff as well as FINRA have developed over decades would not be necessary.’’). 70See Rule 206(4)–8 Adopting Release, supra footnote 64. 71See infra section II.A.2.c.iii. The proposed rule would exclude from the ‘‘advertisement’’ definition only those communications within the scope of rule 482 or rule 156 under the Securities Act. 72See supra footnote 63. 73 17 CFR 230.482(b)(3) (imposing disclosure requirements on advertisements that include performance data of an open-end management investment company or a trust account); 17 CFR 230.482(d) (imposing requirements on performance information in the case of an open-end management investment company or a trust account); 17 CFR 230.482(e) (imposing requirements on performance data for money market funds); 17 CFR 230.482(g) (establishing standards for the timeliness of performance data in advertisements). 74 17 CFR 230.156. See also 17 CFR 270.34b–1 (imposing requirements on sales literature for investment companies). 75See Rule 206(4)–8 Adopting Release, supra footnote 64 (citing, in part, rule 156 under the Securities Act and section 34 of the Investment Company Act). 76Rule 206(4)–8 Adopting Release, supra footnote 64 (noting that sections 206(1) and 206(2) were ‘‘commonly accepted as imposing similar requirements on communications with investors in a fund’’). 77 Id.
iv. Investors in Pooled Investment
Vehicles
The proposed rule’s definition would expressly include communications that are intended to offer or promote the investment adviser’s investment advisory services provided indirectly to existing and prospective investors in a pooled investment vehicle advised by the investment adviser,63 subject to the exclusion for RICs and BDCs discussed below. This express inclusion of pooled investment vehicles is generally consistent with our approach in rule 206(4)–8 under the Advisers Act.64 In particular, section 206(4) of the Advisers Act authorizes the Commission to adopt rules and regulations that ‘‘define, and prescribe means reasonably designed to prevent, such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative.’’ 65 We believe expressly applying the proposed rule to advertisements concerning pooled investment vehicles when used to obtain or retain investors in those vehicles would help expand protections to such investors, and not just to the adviser’s ‘‘clients,’’ which are the pooled investment vehicles themselves.66 We recognize that advisers to pooled investment vehicles are prohibited from making misstatements or materially misleading statements to investors in those vehicles under rule 206(4)–8,67 and accordingly there may be some overlap between the prohibition in rule 206(4)–8 and the proposed rule. The proposed rule provides more specificity, however, regarding what we believe to be false or misleading statements that advisers to pooled investment vehicles must avoid in their advertisements.68 In particular, the proposed rule contains certain protective requirements, including for Non-Retail Persons that are invested in private funds.69 We believe that these requirements, such as those regarding presentation of performance, would protect private fund investors. We believe that any additional costs to advisers to pooled investment vehicles as a result of potential overlap between the proposed rule and rule 206(4)–8 with respect to advertisements will be minimal, as an advertisement that would raise issues under rule 206(4)–8 might also raise issues under a specific provision of the proposed rule. We are proposing this rule under the same authority of section 206(4) of the Advisers Act on which we relied in adopting rule 206(4)–8.70 The proposed rule would exclude advertisements, other sales materials, or sales literature about RICs and BDCs that are within the scope of rule 482 or rule 156 under the Securities Act, as described below.71 This would result in a departure from rule 206(4)–8, which applies to investment advisers with respect to any ‘‘pooled investment vehicle,’’ including RICs and BDCs.72 We are proposing to exclude certain communications about RICs and BDCs, which are already subject to specific restrictions and requirements for communications to their investors under the Securities Act and the Investment Company Act, including rules that cover the same areas addressed by the proposed rule and
that are designed to protect investors in those funds. For example, rule 482 under the Securities Act and the applicable registration form impose specific requirements on the presentation and computation of performance results for certain registered funds.73 Rule 156 under the Securities Act describes certain practices that may be misleading when used in sales literature in connection with the offer or sale of securities issued by an investment company.74 When we adopted rule 206(4)–8, we noted its similarity to existing anti-fraud laws and rules that ‘‘depending upon the circumstances, may also be applicable to the same investor communications,’’ including those applicable to RICs and BDCs.75 We expressed assurance that investment advisers to pooled investment vehicles would be able to comply with rule 206(4)–8 and those existing laws and rules, in part because rule 206(4)–8 was adopted to impose obligations similar to those imposed under sections 206(1) and 206(2) of the Advisers Act.76 We also noted that ‘‘the nature of the duty to communicate without false statements [was] so well developed in current law’’ that the similar duty imposed by rule 206(4)–8 would neither be unduly broad nor have a ‘‘chilling effect’’ on investor communications.77 Rule 206(4)–8 establishes a broad anti-fraud standard on communications

78See, e.g., rule 206(4)–2(a)(5).
79 In particular, any such communication to a client or prospective client would remain subject to the general anti-fraud prohibitions of section 206 of the Advisers Act. In addition, communications that are excluded from the definition of ‘‘advertisement’’ would remain subject to any other applicable provisions in the Federal securities laws. See, e.g., 15 U.S.C. 77q(a); 15 U.S.C. 78(j)(b); 17 CFR 240.10b–5. 80See, e.g., rule 206(4)–(1)(b). 81Rule 206(4)–1(b) (defining as an advertisement certain notices or other announcements ‘‘by radio or television’’). See ICAA Letter (stating the staff’s view that ‘‘[t]he rule also applies to announcements in publications and to radio and television broadcasts, but does not apply to any other oral communications’’). For the reasons discussed in this release, the Commission is proposing a different approach. As discussed in Section II.D., staff in the Division of Investment Management is reviewing staff no-action and interpretative letters to determine whether any such letters should be withdrawn in connection with any adoption of this proposal. If the rule is adopted, some of the letters may be moot, superseded, or otherwise inconsistent with the rule and, therefore, would be withdrawn. 82See infra section II.A.7 (discussing proposed employee review requirements). Communication need not be made ‘‘face-to-face’’ to qualify for the exclusion so long as it is live and oral. For example, a phone call or FaceTime communication between an adviser and a client could qualify for this exclusion. 83However, a voicemail message would qualify for the proposed exclusion (and thus would not be an advertisement), if the voicemail message was made ‘‘live’’ and the recording is not further disseminated by or on behalf of the adviser. 84This approach would mirror that under FINRA rule 2210(f), which distinguishes between certain public communications, including any ‘‘radio or television interview,’’ and the ‘‘scripts, slides, handouts or other written (including electronic) materials used in connection with’’ such communications. See FINRA Rule 2210(f)(1) and (f)(4); see also supra footnote 57 and accompanying text. with investors in pooled investment vehicles, whether publicly or privately offered, that we believe can exist comfortably alongside the specific prohibitions and restrictions that govern the public offering of funds. The proposed rule, in contrast, applies specific prohibitions and restrictions that address the same areas already governed by specific requirements in rule 482 and rule 156. Accordingly, we believe excluding from the proposed rule certain communications about RICs and BDCs, as described below, is appropriate. We request comment on the proposed definition of ‘‘advertisement’’ expressly including communications that are disseminated to obtain or retain ‘‘investors in pooled investment vehicles.’’

Are there any particular burdens or
difficulties that investment advisers may bear in treating as ‘‘advertisements’’ communications designed for investors in pooled investment vehicles—that is, investors who may not be clients of the investment advisers?
Are there communications that
investment advisers currently disseminate to investors in pooled investment vehicles that otherwise satisfy the proposed definition of ‘‘advertisement’’ but should not be treated as such? What types of communications, and why should they not be treated as advertisements?
Would investment advisers to
pooled investment vehicles prefer that we address our concerns regarding advertisements through an amendment to rule 206(4)–8 instead of through the proposed rule? For example, should we incorporate the proposed rule’s requirements and prohibitions into rule 206(4)–8? Would there be any costs or benefits if we used that approach or a similar approach instead?
Should the proposed rule apply to
communications to investors in pooled investment vehicles other than those that are ‘‘pooled investment vehicles’’ as defined in rule 206(4)–8—e.g., funds that are excluded from the definition of ‘‘investment company’’ by reason of
section 3(c)(5) or 3(c)(11) of the
Investment Company Act? Which other vehicles, and why or why not? Should we consider not defining ‘‘pooled investment vehicle’’ for purposes of the proposed rule? 78 Why or why not?
c. Specific Exclusions
The proposed rule would specifically exclude four types of communications from the definition of ‘‘advertisement’’:
(i) Non-broadcast live oral communications; (ii) responses to certain unsolicited requests; (iii) communications relating to RICs and BDCs; and (iv) information required by statute or regulation. Although these types of communications would not be ‘‘advertisements’’ for purposes of the proposed rule, they would remain subject to all other applicable provisions in the Advisers Act and the rules thereunder and other applicable provisions of the Federal securities laws.79
i. Non-Broadcast Live Oral
Communications
We are proposing to exclude from the definition of ‘‘advertisement’’ live oral communications that are not broadcast on radio, television, the internet, or any other similar medium. If such communications are broadcast, for example by webcast, social media, video blog, or similar media, they would be ‘‘advertisements’’ under the proposed rule’s definition. This proposed exclusion is generally consistent with the approach under the current rule’s definition of ‘‘advertisement,’’ which also excludes oral communications that are not ‘‘on radio or television.’’ 80 However, the proposed definition of ‘‘advertisement’’ is broader than the current rule’s definition because it would capture oral communications that are widely disseminated, or ‘‘broadcast,’’ not just via radio or television (as under the current rule), but also via ‘‘the internet or any other similar medium.’’ 81 We believe this broader definition is appropriate in light of the continuously evolving means of mass communication available to advisers and should allow the proposed rule to remain evergreen in light of changing technologies. Accordingly, the proposed exclusion would not apply to communications that are ‘‘broadcast,’’ or widely disseminated. For example, an adviser that engages in a ‘‘Facebook Live’’ Qand-A session that is available to the general public would be ‘‘broadcasting’’ the communication on the internet and that communication would not qualify for the proposed exclusion. Alternatively, a ‘‘Facebook Live’’ Q-andA session that is available only to one person or a small group of people invited by the adviser would not be ‘‘broadcast’’ and so would qualify for the proposed exclusion. We have also proposed to limit the exclusion to ‘‘live’’ oral communications to ensure that previously recorded oral communications are included in the proposed definition of ‘‘advertisement.’’ The live oral communication exclusion is designed to address situations where advisers are communicating to investors directly and where employee review and the other provisions of the proposed rule cannot be practically applied.82 In cases where an adviser pre-records a message and then disseminates it, such a message would not be ‘‘live’’ and thus should be treated as an advertisement if it otherwise meets the requirements of the proposed definition.83 Similarly, any script or storyboards, or other written materials prepared in advance for use during a live oral communication, as well as any slides or other written materials presented alongside or distributed as part of the live oral communication, would fall within the proposed definition of ‘‘advertisement’’ if those materials otherwise meet the definition of ‘‘advertisement.’’ 84 We believe that prepared written materials intended for use during a live oral communication are eligible for pre-use review and approval and should be subject to the other requirements of the proposed rule.

85See Prohibited Advertisements, Release No. IA–119 (Aug. 8, 1961) [26 FR 7552, 7553 (Nov. 15, 1961)]. 86 Id. 87 In addition, we believe an adviser’s ability to communicate directly with existing clients and investors would be preserved to the extent such communications do not ‘‘offer or promote’’ the adviser’s services. See supra footnote 59 and accompanying text. 88For example, advisers today, like any other marketers, may be able to identify a group of prospective investors who have searched online for specific information about investment advice and then craft communications for those prospective investors that nominally are addressed to individual persons despite being otherwise identical to communications disseminated to the rest of the group. These types of communications, such as bulk emails or algorithm-based messages, are widely disseminated in the aggregate even though individually each is nominally directed at or ‘‘addressed to’’ one person. 89See proposed rule 206(4)–1(d)(1) (excepting ‘‘communications that are disseminated only to a single person or household or to a single investor in a pooled investment vehicle’’); see also infra
section II.A.7. Widely disseminated
communications (even if they appear to be personalized), however, would not qualify for the one-on-one exception to the review requirement. See supra footnote 88 and accompanying text. 90See infra section II.A.7. 91 In addition, although not included within the proposed definition of ‘‘advertisement,’’ statements made during such live broadcasts would continue to be subject to the general anti-fraud prohibitions of section 206 of the Advisers Act and the relevant Federal securities laws. 92FINRA rule 2210(f)(1). 93FINRA rule 2210(d)(1). The proposed rule’s definition of ‘‘advertisement’’ would include any communication that meets the proposed definition’s criteria without regard to the number of people to whom the communication is addressed. This differs from the definition in the current rule, which includes written communications ‘‘addressed to more than one person.’’ The Commission limited the definition of ‘‘advertisement’’ in the current rule because of concerns that a broad definition could encompass even ‘‘face to face conversations between an investment counsel and his prospective client.’’ 85 The Commission stated in proposing the current rule’s definition that it would not include a ‘‘personal conversation’’ with a client or prospective client.86 As discussed above, we believe that by excluding live oral communications that are not broadcast, the proposed rule would retain advisers’ ability to have these face-to-face communications with investors.87 At the same time, we recognize that the proposed rule could affect the ability of advisers to communicate directly with investors in writing, to the extent those writings are promotional. We considered excluding from the definition of ‘‘advertisement’’ any communication disseminated to only one person. However, we are concerned that this approach could allow the types of misleading communications we seek to prevent. For example, changes in technology now permit advisers to create communications that appear to be personalized to single clients and are ‘‘addressed to’’ only one person, but are actually widely disseminated to multiple persons.88 The proposed rule therefore would prevent an adviser from communicating performance advertising solely to one person in writing outside the scope of the rule. To address the potential burdens that would arise from the proposed definition’s inclusion of all one-on-one written communications that meet the proposed definition of advertisement, the proposed rule’s internal review and approval requirements would not apply to these written communications.89 In addition, we recognize that applying the employee review and approval provisions of the proposed rule to live oral communications that are broadcast may not be practical. Accordingly, as discussed below, we are proposing to except live oral communications that are broadcast from the employee review and approval provisions, much as we are proposing to except one-on-one communications.90 However, as
discussed above, any script, storyboards, or other written materials prepared in advance for use during a broadcast live oral communication would fall within the proposed definition of ‘‘advertisement’’ if those materials otherwise meet the definition of ‘‘advertisement,’’ and we are not proposing to except such materials from the review process. We considered including in the proposed definition of ‘‘advertisement’’ oral communications made by an investment adviser in non-broadcast public appearances, for example, an unscripted talk at a luncheon or a conference appearance. We recognize that excluding such public oral communications from the proposed definition of ‘‘advertisement’’ may result in many commonly used forms of promotional communication not being subject to the protections and requirements of the proposed rule. However, we believe that including such public appearances as advertisements could pose compliance difficulties, for example, maintaining records of the speech or applying the other substantive requirements of the proposed rule to such unscripted remarks.91 Accordingly, the proposed rule would exclude these public appearances only to the extent they satisfy the requirements of the nonbroadcast live oral communication exclusion. We request comment on the proposed exclusion for non-broadcast live oral communications.

As proposed, should we exclude
live oral communications that are not broadcast from the definition of ‘‘advertisement’’? Should we extend the exclusion to live oral communications that are broadcast?
As proposed, should we expand the
types of broadcast communication methods included to the internet and other similar methods (along with radio and TV as under the current rule)?
Are we correct that ‘‘broadcast’’
should be interpreted as ‘‘widely disseminated’’? Why or why not? Should we further define what qualifies as a ‘‘broadcast’’ communication? If so, how should we define it?
What issues may result from the
proposed exclusion of live oral communications that are not broadcast? In particular, what issues may result with respect to unscripted public appearances? If we were to include such unscripted public appearances in the definition of ‘‘advertisement,’’ would that create unique compliance difficulties, such as recordkeeping issues? If so, should we address those difficulties through an exception to the recordkeeping requirement for unscripted public appearances? How should we define such an unscripted public appearance?
We believe our approach to oral
communications is conceptually similar to FINRA’s approach to ‘‘public appearances’’ in rule 2210,92 which generally subjects members’ unscripted public appearances to only the rule’s general content standards,93 and requires members to comply with all applicable provisions of the rule for any scripts, slides, handouts, or other written materials used in connection with the public appearance. Do commenters agree? Should the rules apply more similarly in this respect? Would another existing regulation provide an approach to such ‘‘public appearance’’ communications that we should consider for such an exclusion?
Should we subject public
appearance communications to the content provisions of the proposed rule, even if they are not defined as ‘‘advertisements’’? Should we define such public appearance communications as ‘‘advertisements,’’ but subject them only to a more limited set of requirements, such as just the

94Proposed rule 206(4)–1(e)(1)(ii).
95Persons may seek information through, for example, requests for proposal, due diligence questionnaires, and requests for information. Information under this exclusion could also include unsolicited requests for information about an adviser’s services, such as information about funds that it advises or its non-security related planning services. 96Our approach to this proposed exclusion is consistent with our staff’s past approach when considering whether or not to take a no-action position in the context of past specific recommendations and testimonials. See, e.g., ICAA Letter. 97Proposed rule 206(4)–1(e)(1)(ii)(A). 98See infra section II.A.5. 99The unsolicited request exclusion would not oblige the investment adviser to generate the requested information. The exclusion simply would allow investment advisers to provide requested information, if available, in response to unsolicited requests, without such information being considered an ‘‘advertisement.’’ 100 It is not our intent to disqualify from this exclusion every inquiry from an investor who was referred to the adviser by a solicitor because the investor was solicited. The act of soliciting under our proposed solicitation rule is separate and distinct from a client making an unsolicited request for information under the proposed advertising rule. Thus a client who was solicited to be a client may still make requests for specified information so long as that specific request was not solicited by the adviser or solicitor. proposed rule’s general prohibitions but not the review requirement?
ii. Response to Unsolicited Request
The proposed rule would exclude from the definition of ‘‘advertisement’’ any communication by an investment adviser ‘‘that does no more than respond to an unsolicited request’’ for ‘‘information, specified in such request, about the investment adviser or its services’’ other than a communication to a Retail Person that includes performance results or a communication that includes hypothetical performance. Specifically, neither a communication to a Retail Person that includes performance results nor a communication to any person that includes hypothetical performance would qualify for this exclusion.94 We believe this exclusion would appropriately allow persons affirmatively seeking specified information about an investment adviser or services to obtain that information when the investment adviser has not directly or indirectly solicited the request.95 In the case of an unsolicited request, an investor seeks specified information for that requester’s own purposes, rather than responding to a communication disseminated by an adviser for the adviser’s purpose of offering or promoting its services. The proposed exclusion would recognize this difference in the goal of the communication. In addition, the investment adviser’s communication would be limited by the information requested and the fact that the investor has already established the parameters of the information he or she needs.96 The unsolicited request exclusion would not apply to a communication to a Retail Person to the extent it contains performance results.97 As discussed below, the proposed rule would provide additional requirements and restrictions for presenting performance results because performance advertising raises special concerns.98 To help ensure that Retail Persons receive the benefits of those requirements and restrictions, any communication to Retail Persons containing performance results would not qualify for the unsolicited request exclusion with respect to such results.99 Accordingly, any such performance results that also met the definition of ‘‘advertisement’’ would be subject to the requirements of the proposed rule. Similarly, because of the specific concerns raised by hypothetical performance, communications to any person that contain hypothetical performance would not qualify for the unsolicited request exclusion to the extent it contains such results. Instead, communications with hypothetical performance must be presented in accordance with the requirements discussed below. In addition, if the adviser were to include additional information beyond what was specifically requested, that additional information would not qualify for the exclusion if the additional information met the definition of ‘‘advertisement.’’ However, if the only additional information the adviser includes is information necessary to make the requested specified information not misleading, the additional information would not render the communication or that additional information an
advertisement. Finally, the unsolicited request exclusion would not apply to requests for information that are solicited by the investment adviser.100 For example, any affirmative effort by the investment adviser intended or designed to induce an existing or prospective client or investor to request specified information would render the request solicited. In that case, a person requesting the information would be acting out of interest raised by the investment adviser, and the request would not be ‘‘unsolicited.’’ And, if the investment adviser subsequently disseminates a communication that qualifies for this exclusion to one or more other persons who do not make their own unsolicited requests, that same communication would not meet the exclusion’s requirements with respect to those other persons. We request comment on the proposed unsolicited request exclusion.

Would the proposed unsolicited
request exclusion have our intended effect of allowing persons requesting specified information from an investment adviser to receive that information? Is there an alternative approach to this exclusion that would better produce this intended effect? Would an alternative approach be more successful in preventing investment advisers from disseminating misleading or deceiving information?
Are there types of information that
an investment adviser should be prohibited from disseminating even in response to an unsolicited request? For example, should an adviser be prohibited from disseminating any advertisement that would, but for this exclusion, be prohibited by the proposed rule or the current rule? Should an adviser be prohibited from disseminating materials that are subject to any of the per se prohibitions in the current rule?
Should the unsolicited request
exclusion apply to communications presenting performance results to Retail Persons? Should it apply to communications presenting performance results to any person, not just Retail Persons? Why or why not? Would it be appropriate to exclude such communications from certain requirements of the proposed rule? Why or why not?
Should the unsolicited request
exclusion apply to communications that include hypothetical performance? Why or why not? Alternatively, should communications including hypothetical performance qualify for the unsolicited request exclusion if such communications are provided only to Non-Retail Persons or only to Retail Persons? Why or why not? Would it be appropriate to exclude such communications from certain requirements of the proposed rule? Why or why not?
Are there other specific types of
information that should be treated as an ‘‘advertisement’’ even in response to an unsolicited request?
Should we provide in this
exclusion additional flexibility for advisers to provide information in addition to the ‘‘specified information’’ sought by the requester, when the adviser determines that such information would be necessary to prevent the information provided from being false or misleading? Should we

101Proposed rule 206(4)–1(e)(1)(iii). For example, to the extent that a RIC’s statutory and summary prospectus, annual and semi-annual report, and statement of additional information are within the scope of rule 156 under the Securities Act, they would not be advertisements under the proposed definition. 102See Request for Comment on Fund Retail Investor Experience and Disclosure, Release No. 33–10503 (June 5, 2018) [83 FR 26904 (June 11, 2018)]. We recently sought public comment from individual investors and other interested parties on enhancing investment company disclosures to improve the investor experience and to help investor make more informed investment decisions. Id. In that request for comment, we specifically sought comments with respect to rule 482 under the Securities Act. 103See proposed rule 206(4)–1(e)(1)(iv). 104To the extent information is required by regulation to be provided in a non-public filing with a regulatory agency, then this exclusion may not apply. At the same time, such information would not be an ‘‘advertisement’’ under the proposed rule if the information does not offer or promote the adviser’s services or seek to obtain or retain investors—and so the adviser would not need to rely on the exclusion. 105See, e.g., rule 204–3 (requiring registered investment advisers to deliver a brochure and one or more brochure supplements to each client or prospective client). 106However, information that is required to be provided or offered by the proposed advertising rule would not qualify for this proposed exclusion. For example, the schedule of fees and expenses required to be provided under the proposed rule would be part of the advertisement and subject to the proposed rule. See, e.g., proposed rule 206(4)– 1(c)(1)(i) (requiring an advertisement to provide or offer to provide promptly a schedule of certain fees and expenses as a condition of presenting gross performance). 107For example, Item 5.A of Part 2 of Form ADV requires investment advisers to describe how they are compensated for their advisory services. If an investment adviser completes that requirement by describing how its fee structure compares favorably to the fee structure of other investment advisers, then we would view that comparison as information ‘‘offering or promoting’’ the investment adviser’s services. Such a comparison to other investment advisers is not required by the terms of Item 5.A., even though such a comparison is permitted in responding to Item 5.A. See Instructions for Part 2A of Form ADV, Instruction 12 (permitting the inclusion of information not required by an Item as long as the response does not include so much additional information that the required information is obscured). provide additional guidance regarding the term ‘‘specified information’’? If so, what additional guidance should we provide?

Should we clarify any specific
criteria by which an investment adviser can determine whether a request is ‘‘unsolicited’’ for purposes of the unsolicited request exclusion?
Should we take the position that an
existing or prospective client or investor may submit an unsolicited request to an investment adviser through an intermediary—for example, a consultant for the investment adviser or the requester?
iii. Advertisements, Other Sales
Materials, and Sales Literature of RICs and BDCs We are proposing to exclude from the definition of ‘‘advertisement’’ any advertisement, other sales material, or sales literature about a RIC or a BDC that is within the scope of rule 482 or rule 156 under the Securities Act.101 As discussed above, this RIC and BDC exclusion would acknowledge that advertisements, other sales materials, and sales literature about RICs and BDCs are regulated under the Securities Act and Investment Company Act and subject to the specific prescriptions of the rules and forms adopted thereunder.102 Those rules generally are consistent with the principles underlying the proposed rule. The RIC and BDC exclusion would not encompass any communication by an investment adviser of a RIC or a BDC with respect to other advisory services or products offered by that adviser. Thus, a communication that does not satisfy the RIC and BDC exclusion but is otherwise an ‘‘advertisement’’ would still be subject to the proposed rule’s requirements. For example, the exclusion would not extend to a communication by an investment adviser of a RIC or BDC if that communication is not within the scope of rule 482 or rule 156. Similarly, the exclusion would not extend to a communication by an investment adviser of a RIC or BDC to an investor in a pooled investment vehicle advised by the investment adviser when that communication is not within the scope of rule 482 or rule 156. The RIC and BDC exclusion is intended simply to allow advisers to RICs and BDCs, and affiliates of those advisers, to prepare their advertisements, other sales materials, and sales literature in connection with RICs and BDCs in accordance with the relevant rules and forms under the Securities Act and Investment Company Act. We request comment on the proposed RIC and BDC exclusion.
Are there communications with
respect to RICs and BDCs that should be subject to the proposed rule? If so which communications and why?
Is the description of the materials
that are eligible for this RIC and BDC exclusion clear?
Are there any restrictions that apply
to RICs or BDCs under the Securities Act or the Investment Company Act and the rules thereunder that should be incorporated into the proposed rule?
Should the scope of the exclusion
include other fund communications that may not be subject to rule 156 or 482? For example should the annual reports of a closed-end fund that is not offering shares be included as an advertisement or excluded? Should we extend the scope to specifically exclude from the definition of ‘‘advertisement’’ any fund communication that is filed or deemed filed with the Commission for any reason?
iv. Information Required by Statute or
Regulation
We are proposing to exclude from the definition of ‘‘advertisement’’ any information required to be contained in a statutory or regulatory notice, filing, or other communication—for example, information required by Part 2 of Form ADV or Form CRS.103 This exclusion would apply to information that an adviser is required to provide to an investor under any statute or regulation under Federal or state law.104 We do not generally believe that communications that are prepared as a requirement of statutes or regulations 105 should be viewed as advertisements under the proposed rule.106 However, if an adviser includes in such a communication information that is neither required under applicable law nor required by the proposed rule, and such additional information ‘‘offers or promotes’’ the adviser’s services, then that information would be considered an ‘‘advertisement’’ for purposes of the proposed rule.107 We request comment on this proposed exclusion.
Is the description of the information
eligible for this exclusion clear?
Should any information required to
be contained in a statutory or regulatory notice, filing, or other communication be advertisements under the rule? Should any such documents or other communications be considered to ‘‘offer or promote’’ advisory services?
Would this proposed exclusion
create any compliance difficulties for investment advisers? What types of difficulties and how should we address them? Are there specific notices, filings, or other communications that are required of investment advisers by statute or regulation and that would be affected by this proposed exclusion?
Considering that there may be
additional legal duties or liability that attach to documents filed with regulatory bodies, should we exclude from the definition of ‘‘advertisement’’ all legally required filings regardless of content? We also request comment on all aspects of the proposed exclusions from the definition of ‘‘advertisement.’’
Do the proposed exclusions
sufficiently describe the types of communications that should not be

108Proposed rule 206(4)–1(a).
109See SEC v. Steadman, 967 F.2d 636, 647 (D.C. Cir. 1992). As we noted when we adopted rule 206(4)–8, the court in Steadman analogized section 206(4) of the Advisers Act to section 17(a)(3) of the Securities Act, which the Supreme Court had held did not require a finding of scienter (citing Aaron
v. SEC, 446 U.S. 680 (1980)). See also Steadman at
643, n.5. In discussing section 17(a)(3) and its lack of a scienter requirement, the Steadman court observed that, similarly, a violation of section 206(2) of the Advisers Act could rest on a finding of simple negligence. See also Standard of Conduct Release, supra footnote 23, at n.20. 110We believe these practices, which are each discussed in detail below, are associated with a significant risk of being false or misleading. We therefore believe it is in the public interest to prohibit these practices, rather than permit them subject to specified conditions. 111FINRA rule 2210 contains content standards that prohibit misleading claims or statements in certain communications. 112Rule 156 describes statements, representations, illustrations, and other information found in fund sales literature that could be considered false or misleading in violation of the anti-fraud provisions in the securities laws applicable to sales of funds. 17 CFR 230.156. In the proposing and adopting releases for rule 156, the Commission explained that rule 156 is not a ‘‘legislative rule designed to prescribe law or policy.’’ The releases emphasize that the rule’s general prohibition against the use of misleading sales literature ‘‘merely reiterated pertinent statutory provisions of the federal securities laws applicable to sales literature’’ and that the factors found in rule 156 are ‘‘particular factors which could be among those considered’’ when determining whether a statement is false or misleading. Mutual Fund Sales Literature Interpretive Rule, Release Nos. 33–6140 and 34– 16299 (Nov. 6. 1979). 113See proposed rule 206(4)–1(a)(1). 114See, e.g., 17 CFR 240.10b–5; 15 U.S.C. 77q(a)(2); 17 CFR 230.156(a); rule 206(4)–8. 115See current rule 206(4)–1(a)(4); see also Dow Theory Forecasts, Inc., SEC Staff No-Action Letter (May 21, 1986) (‘‘Dow Theory Letter’’) (staff declined to provide no-action recommendation where an offer for ‘‘free’’ subscription was subject to conditions). 116Proposed rule 206(4)–1(a)(2). 117Rule 156(b)(3)(ii). FINRA rule 2210(d)(1)(A) (stating that no member may make any false, exaggerated, unwarranted, promissory, or misleading statement or claim in any communication). 118Rule 156(b)(3)(ii). subject to the requirements of the proposed rule? Are there types of communications that should not be subject to the requirements of the proposed rule but do not satisfy the conditions of any of the proposed exclusions? For example, should we provide an exclusion for all one-on-one communications made by an adviser to its clients, including communications in writing? Conversely, do the listed exclusions exclude communications that should be subject to the requirements of the proposed rule?

Would any of the proposed rule’s
exclusions allow communications that are subject to the current rule’s definition of ‘‘advertisement’’ to be excluded from the proposed rule’s definition of ‘‘advertisement’’? Conversely, are there communications that commenters believe are not subject to the current rule’s definition of ‘‘advertisement’’ that would not satisfy the conditions of any of the proposed exclusions?

General Prohibitions
The proposed rule contains general prohibitions of certain advertising practices as a means reasonably designed to prevent fraudulent, deceptive, or manipulative acts.108 To establish a violation of the proposed rule, the Commission would not need to demonstrate that an investment adviser acted with scienter; negligence is sufficient.109 We discuss below each of these practices, and the reasons we believe they should be prohibited.110 We developed the proposed list of prohibited practices from our experience with the current rule, our review and consideration of investment adviser advertisements, FINRA rule 2210,111 Securities Act rule 156, and our experience with private fund advertising practices. Rule 156 identifies certain pertinent factors that may be relevant to the question of whether a particular statement is, or might be, misleading in investment company sales literature.112 a. Untrue Statements and Omissions The proposed rule prohibits advertisements that include any untrue statements of a material fact, or that omit a material fact necessary in order to make the statement made, in the light of the circumstances under which it was made, not misleading.113 This provision of the proposed rule retains the substance of current rule 206(4)–1(a)(5), which prohibits an advertisement that contains any untrue statement of a material fact and uses similar wording as other anti-fraud provisions in the Federal securities laws.114 As with similar anti-fraud provisions in the securities laws, whether a statement is false or misleading depends on the context in which the statement or omission is made. For example, as under the current rule, advertising that an adviser’s performance was positive during the last fiscal year may be misleading if the adviser omitted that an index or benchmark consisting of a substantively comparable portfolio of securities experienced significantly higher returns during the same time period. To avoid making a misleading statement, the adviser in this example could include the relevant index or benchmark or otherwise disclose that the adviser’s performance, although positive, significantly underperformed the market. The current rule contains an explicit prohibition on advertisements that contain statements to the effect that a report, analysis, or other service will be furnished free of charge, unless the analysis or service is actually free and without condition.115 We believe that this practice would be captured by the proposed rule’s prohibition on untrue statements or omissions. As a result, the proposed rule would not contain a separate explicit prohibition of such statements. We request comment on this proposed prohibition of untrue statements and omissions.

As discussed above, such
provisions appear in other areas of the securities laws, including rule 206(4)–8. Are there any particular aspects specific to its application to the proposed advertising rule that would need clarification?
Do commenters agree that the
proposed rule’s prohibition of untrue statements or omissions captures the current rule’s explicit prohibition of advertisements that contain statements to the effect that a report, analysis, or other service will be furnished free of charge, unless the analysis or service is actually free and without condition, or should such prohibition continue to be explicit? If not, why? b. Unsubstantiated Material Claims and Statements The proposed rule also prohibits advertisements that include any material claim or statement that is unsubstantiated.116 This provision would prohibit as misleading, for example, statements about guaranteed returns and claims about the adviser’s skills or experience that the adviser cannot substantiate. Rule 156 and FINRA rule 2210 both contain a similar provision.117 In particular, rule 156 provides that a statement about the characteristics of an investment company could be misleading because of exaggerated or unsubstantiated claims about management skill or techniques, characteristics of the investment company or an investment in securities issued by such company, service, security of investment or fund, effects of government supervision, or other attributes.118 We believe that prohibiting advisers from making any material claim that is unsubstantiated when promoting their services is appropriate and not overly broad or burdensome. Today an adviser’s use of graphs, charts, or formulas is explicitly

119See current rule 206(4)–1(a)(3) (requiring that the investment adviser also disclose in any such advertisements the limitations and difficulties with regard to such use). 120 Id. 121See proposed rule 206(4)–1(a)(1) and (3). 122Proposed rule 206(4)–1(a)(3). Staff has previously provided its views regarding when an advertisement would be otherwise false or misleading under section (a)(5) of the current rule. See, e.g., Clover Capital Mgmt., Inc., SEC Staff NoAction Letter (Oct. 28, 1986) (stating the use of performance results in an advertisement in the staff’s view would be false or misleading if it implies, or a reader would infer from it, something about the adviser’s competence or about future investment results that would not be true had the advertisement included all material facts) (‘‘Clover Letter’’); Stalker Advisory Services, SEC Staff NoAction Letter (Jan. 18, 1994) (stating that copies of articles printed in independent publications that contain performance information of an adviser would be prohibited if they implied false or misleading information absent additional facts) (‘‘Stalker Letter’’); F. Eberstadt & Co., Inc., SEC Staff No-Action Letter (Jul. 2, 1978) (stating that advertisements could be misleading if they imply positive facts about the adviser when additional facts, if also provided, would cause the implication not to arise) (‘‘Eberstadt Letter’’). 123See Spear, supra footnote 61 (the Commission brought an enforcement action against an investment adviser, asserting, in part, that the adviser’s advertisements, which recounted a number of factually accurate stories highlighting the outstanding investment success of certain selected clients collectively created ‘‘illusory hopes of immediate and substantial profit’’). 124See infra section II.A.4.b. 125The Commission has used a similar ‘‘prominent’’ standard in other rules and forms. For example, Form N–1A requires that open-end management companies disclose certain information on their websites in a ‘‘clear and prominent format.’’ See Form N–1A Item 12(a)(5). 126See proposed rule 206(4)–1(a)(4). 127See rule 156(b)(3)(i); FINRA rule 2210 (d)(1). 128However, it may be consistent with the clear and prominent standard if the adviser has reasonable assurance that the investor will access Continued prohibited in the current rule absent certain disclosures.119 Under the proposed rule’s prohibition against unsubstantiated material claims and statements, it may be false or misleading to imply or state in an advertisement that any graph, chart, or formula can by itself be used to determine which securities to buy or sell, depending on the disclosures provided and the extent to which an adviser in fact does provide investment advice solely based on such materials.120 We request comment on this application of the general prohibition.

Should we take a similar approach
to rule 156 and specify the particular attributes to which the standard would apply (e.g., claims about an investment adviser’s management skills or techniques, services, or other attributes)? If so, why? To which particular characteristics or attributes should the provision apply and how?
Do commenters believe that
statements about the characteristics of an investment adviser are useful in advertisements? How difficult is it to substantiate these types of statements?
Is the prohibition on
unsubstantiated claims necessary?
We believe exaggerated claims or
statements of material fact would be prohibited under the proposed rule.121 However, should we explicitly prohibit exaggerated claims or statements, consistent with rule 156 and FINRA rule 2210?
Should we retain the current rule’s
explicit prohibition on advertisements that represent that any graph, chart, or formula can by itself be used to determine which securities to buy or sell, or when to buy or sell them? If so, should we modify it? Are there practices that are prohibited under the current provision that would not be covered by the proposed prohibition or other prohibitions in the proposed rule?
Should we modify this application
of the general prohibition in any way for advisers with algorithms or other methodologies that may be considered formulas?
c. Untrue or Misleading Implications or
Inferences
We are also proposing to prohibit any advertisement that includes an untrue or misleading implication about, or is reasonably likely to cause an untrue or misleading inference to be drawn concerning, a material fact relating to an investment adviser.122 For example, this provision would prohibit an adviser from making a series of statements in an advertisement that are literally true when read individually, but whose overall effect creates an untrue or misleading implication about the investment adviser.123 Another example of an untrue or misleading inference would be an advertisement that includes a single investor testimonial stating that investor’s account was profitable, which is factually true for that particular investor but nonetheless atypical among all the adviser’s investors. If the communication did not disclose the extent to which most other investor accounts were not profitable, this testimonial would create an untrue or misleading impression about the adviser’s performance history.124 Additionally, an advertisement that states an adviser was rated ‘‘the top investment adviser’’ by a publication would create a misleading inference if the adviser omitted the fact that this was a group rating, and several other investment advisers rated by the publication achieved the same rating. As discussed in further detail in section II.A.3.e. below, we believe this provision (along with other provisions discussed below) would prohibit ‘‘cherry picking’’ of past investments or investment strategies of the adviser— that is, including favorable results while omitting unfavorable ones in a manner that is not fair and balanced. We request comment on this provision.
Do commenters agree with
including this provision? Is this provision necessary, or do the other provisions of section 206(4)–1(a) of the proposed rule effectively prohibit conduct such as cherry picking?
Should we consider limiting this
provision? For example, should the prohibition be limited to untrue statements or misleading inferences concerning the adviser’s competence or skills or the experience of investors?
Do commenters agree that this
proposed prohibition would help limit cherry picking in advertisements? If not, how should the proposed prohibition be modified to limit cherry picking in advertisements? d. Failure To Disclose Material Risks or Other Limitations The proposed rule prohibits advertisements that discuss or imply any potential benefits connected with or resulting from the investment adviser’s services or methods of operation without clearly and prominently 125 discussing associated material risks or other limitations associated with the potential benefits.126 Rule 156 and FINRA rule 2210 contain similar provisions.127 We believe that in advertising their services, advisers might be incentivized to make, and investors might be misled by, statements that highlight financial upside and gain, without discussing the attendant risks or other limitations. Accordingly, we believe it is appropriate to prohibit the practice under the proposed rule. The proposed requirement to ‘‘clearly and prominently’’ disclose material risks would necessitate formatting and tailoring based on the form of the communication. For example, an advertisement intended to be viewed on a mobile device may meet the standard in a different way than one intended to be seen as a print advertisement. For instance, a person viewing a mobile device could be automatically redirected to the required disclosure before viewing the substance of an advertisement. However, it would not be consistent with the clear and prominent standard to merely include a hyperlink to disclosures available elsewhere.128 For example, a post on

or otherwise view the disclosures, such as by providing them before the relevant content and requiring the investor to acknowledge their review before accessing the substance of the advertisement. 129See Federal Trade Commission, ‘‘.com Disclosures: How to Make Effective Disclosures in Digital Advertising,’’ press release (March 2013), available at https://www.ftc.gov/sites/default/files/ attachments/press-releases/ftc-staff-revises-onlineadvertising-disclosure-guidelines/130312dotcom disclosures.pdf. 130See proposed rule 206(4)–1(a)(5). The wording ‘‘fair and balanced ‘‘is also used in FINRA rule 2210, which requires, among other things, that broker-dealer communications ‘‘must be fair and balanced and must provide a sound basis for evaluating the facts in regard to any particular security or type of security, industry, or service.’’ See FINRA rule 2210(d)(1)(A). 131See Advertising Rule Adopting Release, supra footnote 5. 132See id. social media advertising the benefits of an adviser’s investment methods, but which only included relevant disclosures about the material risks in a hyperlinked ‘‘additional information available here’’ or similar web link, would not meet this standard. Such hyperlinked disclosures may not be seen or read by investors, as they may not click through to the additional information necessary to make an informed decision. We request comment on this aspect of the proposed prohibitions.

Should the proposed rule contain
additional specifications regarding the required disclosure (e.g., requiring the disclosure to be of equal prominence in size and location to discussion of potential benefits)?
The proposed rule would require
that investment advisers disclose ‘‘associated material risks or other limitations associated with the potential benefits.’’ Is the proposed approach too narrow? For example, should the provision require advisers to disclose all material risks, and not just those associated with potential benefits?
Should the rule identify specific
risks that any advertisement must address to be considered not misleading? For example, should it require disclosure that provides balanced treatment of risks and potential benefits, consistent with the risks related to fluctuating prices and the uncertainty of dividends, rates of return and yield, as is required by FINRA rule 2210(d)(1)(D)?
Should the rule provide additional
details on how an advertisement could meet the clear and prominent standard?
Should the rule permit hyperlinked
disclosures in cases where the adviser can be assured that the investor has accessed the information? How should an adviser be able to do so?
Should the rule permit hyperlinked
disclosures subject to other conditions? If so, what types of conditions could ensure that the disclosure meets the clear and prominent standard? How do advisers believe they could meet the clear and prominent standard in mobile communications, social media posts, or other space-limited media? The FTC provides guidance on how to make effective disclosures through hyperlinks, which provide that if a hyperlink: (i) Is obvious; (ii) is labeled to appropriately convey the importance, nature, and relevance of the disclosures it leads to; (iii) is placed as close as possible to the relevant information it qualifies; and (iv) takes investors directly to the relevant disclosures on the click-through page, that such hyperlinked disclosures may be effective.129 Should we consider imposing similar requirements on an adviser’s use of hyperlinked disclosures? e. Anti-Cherry Picking Provisions:
References to Specific Investment Advice and Presentation of Performance Results The proposed rule contains two other provisions designed to address concerns about investment advisers’ potentially cherry-picking information that is presented to investors in advertisements.
i. References to Specific Investment
Advice
The proposed rule would prohibit a reference to specific investment advice where such investment advice is not presented in a manner that is fair and balanced.130 The factors relevant to when a presentation of specific investment advice is fair and balanced, as well as certain examples, are discussed below. Consistent with the current rule, this prohibition is intended to address concerns of advisers presenting ‘‘cherrypicked’’ advice that they have provided on specific investments. When the Commission adopted the current rule’s general prohibition of past specific recommendations, it expressed concern about the ‘‘inherently misleading’’ nature of advertisements that include references to past specific profitable recommendations, while omitting other recommendations that were not profitable.131 The Commission believed that cherry picking profitable recommendations implied that the selected recommendations were representative of the experiences of all of the investment adviser’s clients.132 For this reason, the rule prohibited investment advisers from distributing advertisements that refer directly or indirectly to past specific recommendations which were, or would have been, profitable to anyone unless the advertisement sets out or offers to furnish information about all recommendations made by the adviser during the preceding period of not less than one year. Over the years since the advertising rule was adopted, however, our experience has led us to believe that some information about an adviser’s past advice could be presented without misleading investors. For instance, we understand that some investment advisers may produce communications such as ‘‘thought pieces,’’ which are intended to illustrate the investment adviser’s philosophy and process to investors and prospective investors and often contain references to specific investments, such as their largest holdings within a given strategy or recommendations during a certain time period, as well as general views about the market. These advisers may hesitate to share such thought pieces with investors in light of the current rule’s prohibition on past specific recommendations. Out of the same concerns, an adviser may also hesitate to illustrate in an advertisement the investment adviser’s specific investment advice in response to a major market event or crisis, such as a natural disaster in a region where the adviser made or suggested investments for its investors. The proposed rule would replace the current prohibition with a principlesbased restriction on the presentation of specific investment advice. In particular, the proposed rule would require advertisements that include specific investment advice to be presented by the investment adviser in a manner that is fair and balanced. The factors that are relevant to whether a reference to specific investment advice is presented in a fair and balanced manner for purposes of paragraph (a)(5) of the proposed rule will vary based on the facts
and circumstances. The proposed rule would not include specific requirements regarding disclosure about specific recommendations. We believe the proposed approach would allow investment advisers to better tailor the information that they include in advertisements that contain references to specific investment advice in a manner that does not mislead investors. While we are not prescribing any particular presentation or specific disclosure, which we believe would be unduly limiting on advisers, we believe several factors, discussed below, may be relevant to whether an adviser should

133For selecting and presenting performance information, these factors are in addition to the requirements and restrictions on presentation of performance, which are discussed in Section II.A.5. See proposed rule 206(4)–1(c). 134See rule 206(4)–1(a)(2). 135See the TCW Group, SEC Staff No-Action Letter (Nov. 7, 2008) (‘‘TCW Letter’’). 136See Franklin Management, Inc., SEC Staff NoAction Letter (Dec. 10, 1998) (‘‘Franklin Letter’’). 137See current rule 206(4)–1(a)(2). 138 In some instances, however, an investment adviser should consider listing some, or all, of the specific investment advice of the same type, kind, grade, or classification as those specific investments presented in the advertisement in order for a presentation to be fair and balanced. 139Compare proposed rule 206(4)–1(a)(5) with current rule 206(4)–1(a)(2). 140See, e.g., Comment letter of Investment Counsel Association of America (Aug. 2001). We understand that industry participants have raised Continued be considered to have presented specific investment advice in a fair and balanced manner.133 A reference to specific investment advice may also be prohibited under other provisions of the general prohibition of false or misleading advertisements. We believe an advertisement that references favorable or profitable specific investment advice without providing sufficient information and context to evaluate the merits of that advice would not be fair and balanced. The current rule identifies particular information that must be disclosed when furnishing a list of all past specific recommendations made by the adviser within the immediately preceding period of not less than one year: (i) The name of each such security recommended, the date and nature of each such recommendation (e.g., whether to buy, sell or hold), the market price at that time, the price at which the recommendation was to be acted upon, and the market price of each such security as of the most recent practicable date, and (ii) a specific cautionary legend on the first page of the advertisement.134 An adviser may find this list to be helpful guidance; however, the proposed rule would not require these disclosures, and the inclusion of such disclosures would not be the only way of satisfying paragraph (a)(5). We believe that instead of including a requirement for a particular presentation, advisers, when determining how to present this information in a fair and balanced manner, should consider the facts and circumstances of the advertisement, including the nature and sophistication of the audience. For example, our staff has stated that it would not recommend enforcement action under the current rule with respect to charts in an advertisement containing an adviser’s best and worst performers if: (i) The adviser’s calculation takes into account consistently the weighting of every holding in the relevant account that contributed to the account’s performance during the measurement period, and the charts reflect consistently
the results of the calculation; (ii) the charts’ presentation of information and number of holdings is consistent from measurement period to measurement period; and (iii) the charts include the holdings that contributed most positively and negatively to the relevant account’s performance during the measurement period.135 We are not prescribing these factors under the proposed rule. Although we believe that an advertisement that includes this information would likely meet the proposed fair and balanced standard, we do not believe this is the only way to present specific investment advice in a manner that would comply with this provision of the proposed rule. Under the proposed rule, unlike under the current rule, the adviser may be able to describe the specific investment advice it provided to an investor in response to a previous major market event, provided the investment recommendations included in the advertisement were fair and balanced illustrations of the adviser’s ability to respond to major market events and accompanying disclosures provided investors with appropriate contextual information to evaluate those recommendations (e.g., the circumstances of the market event, such as its nature and timing, and any relevant investment constraints, such as liquidity constraints, during that time). However, we believe that an advertisement that contains this specific investment advice without disclosing contextual information would not be consistent with the proposed rule’s fair and balanced standard. We recognize that an investment adviser might provide a list of certain investments it recommended based upon certain selection criteria, such as the top holdings by value in a given strategy at a given point in time. The criteria investment advisers use to determine such lists in an advertisement, as well as how the criteria are applied, should produce fair and balanced results. We believe that consistent application of the same selection criteria across measurement periods limits an investment adviser’s ability to reference specific investment advice in a manner that unfairly reflects only positive or favorable results. Our staff has stated that under current rule 206(4)–1 it would not recommend enforcement action relating to an advertisement that includes performance-based past specific recommendations if: (i) The adviser uses objective, non-performance based criteria to select the specific securities that it lists and discusses in the advertisement; (ii) the adviser uses the same selection criteria for each quarter for each particular investment category; (iii) the advertisements do not discuss, directly or indirectly, the amount of the profits or losses, realized or unrealized, of any of the specific securities; and (iv) the adviser maintains appropriate records, which would be available for inspection by Commission staff.136 An adviser may find these criteria helpful guidance in complying with the proposed rule, but the proposal would not
require them. The current rule prohibits references to past specific recommendations in an advertisement that do not set out or offer to furnish a list of all recommendations made by such investment adviser in the last year.137 We considered, but are not proposing, to maintain this requirement from the current rule. We believe that it may not be practical for many investment advisers to disclose all purchases, sales, or recommendations made during the preceding one-year period (e.g., including in such a list potentially thousands of investments). For example, we understand that the current requirement of offering to provide all investments has a chilling effect on adviser communications with pooled investment vehicle investors because providing such information would reveal proprietary strategies. Therefore, we believe that requiring presentations of references to specific investment advice in an advertisement to be fair and balanced could provide more useful information to investors than the current requirement of a comprehensive list of investments.138 However, if an adviser chooses to provide a list of all specific investment advice made in a period of no shorter than the preceding year, we believe that such a list would meet the proposed rule’s ‘‘fair and balanced’’ standard. Finally, the proposed rule uses the phrase ‘‘reference to specific investment advice’’ rather than the current rule’s reference to ‘‘past specific recommendations . . . which were or would have been profitable . . . .’’ 139 This change substantively broadens the scope of the provision and eliminates confusion that we understand may exist in interpreting the current rule.140 The

concerns regarding what qualifies as a past recommendation versus a current recommendation and whether there is a meaningful distinction. We also understand that industry participants have questioned the meaning of recommendation in the current rule and whether this phrasing includes portfolio holdings more generally. Finally, we do not believe it is necessary to limit the provision to ‘‘profitable’’ recommendations. We believe that there may be instances where an investment adviser seeks to reference investments for reasons other than to demonstrate its ability to generate profits (e.g., ability to select low volatility investments). 141Proposed rule 206(4)–1(a)(6). 142See Advertising Rule Adopting Release, supra footnote 5 (stating that ‘‘material of this nature, which may refer only to recommendations which were or would have been profitable and ignore those which were or would have been unprofitable, is inherently misleading and deceptive’’); see also Clover Letter (stating that, in the staff’s view, an advertisement containing performance results would be false or misleading if it failed to disclose prominently, if applicable, that the results portrayed relate only to a select group of the adviser’s clients, the basis on which the selection was made, and the effect of this practice on the results portrayed, if material). 143See proposed rule 206(4)–1(a)(3). 144However, such information may be presented in response to specific requests from Non-Retail Persons under the proposed exclusion for responses to unsolicited requests. See supra section II.A.2.c.ii. proposed provision applies to any reference to specific investment advice given by the investment adviser, regardless of whether the investment advice remains current or occurred in the past. This provision applies regardless of whether the advice was acted upon, or reflected actual portfolio holdings, or was profitable. Finally, the modified provision includes investments in discretionary portfolios, even if an adviser is not making a nondiscretionary ‘‘recommendation’’ to the investor. We believe that including current or past references to specific investment advice in the scope of the proposed rule is appropriate because it avoids questions about when a current recommendation becomes past. In addition, we believe that selective references to current investment recommendations could mislead investors in the same manner as selective references to past recommendations.
ii. Presentation of Performance Results
The proposed rule would prohibit any investment adviser from including or excluding performance results, or presenting time periods for performance, in a manner that is not fair and balanced.141 This prohibition responds to concerns similar to the Commission’s concerns discussed above regarding ‘‘cherry-picking’’ of investments for inclusion in advertisements.142 Similarly, the potential exists for an adviser to ‘‘cherry-pick’’ the time periods used to generate performance results in advertisements. In addition, an advertisement that includes only favorable performance results or excludes only unfavorable performance results would be ‘‘misleading’’ to the extent that such an advertisement implies something about or is likely to cause an inference to be drawn concerning the investment adviser that would not be implied or inferred were certain additional facts—i.e., any performance results excluded from the advertisement—disclosed.143 As with specific investment advice, the factors that are relevant to whether a reference to performance information is presented in a fair and balanced manner for purposes of the rule’s general prohibition will vary based on the facts and circumstances. For example, presenting performance results over a very short period of time, or over inconsistent periods of time, may result in performance portrayals that are not reflective of the adviser’s general results and thus generally would not be fair and balanced.144 Portrayals of performance results that do not include sufficient information for an investor to assess how the results were determined, or which do not provide sufficient context for the investor to evaluate the utility of the results, would not be consistent with the fair and balanced standard we are proposing here. In section II.A.4 below we discuss further specific requirements and conditions for portrayals of certain types of performance to different audiences that we are also proposing here. In those cases, however, the fair and balanced standard for performance that we are proposing here would also apply. We request comment on the proposed rule’s provision regarding references to specific investment advice and presentation of performance:

Do commenters agree with the
proposed treatment of references to specific investment advice in advertisements? Is fair and balanced an appropriate standard? Can advisers apply this standard? Are there other standards we should use? Are there alternative or additional requirements that would reduce the risk of cherry picking or other misleading or deceitful practices while providing advisers the ability to appropriately include such information?
Should the proposed rule include
specific presentation requirements, such as requiring advertisements with references to specific investment advice to include an equal number of best- and worst-performing holdings, or use an objective, non-performance based criterion, such as the largest dollar amount of purchases or sales? Are there additional presentation requirements we should consider? Should the presentation requirements be the same for advertisements for which an adviser has adopted and implemented policies and procedures reasonably designed to ensure that the advertisements are disseminated solely to ‘‘qualified purchasers’’ and certain ‘‘knowledgeable employees’’ (defined as ‘‘Non-Retail Advertisements’’ in paragraph (e)(7) of the proposed rule) and all other advertisements (defined as ‘‘Retail Advertisements’’ in paragraph (e)(13) of the proposed rule)?
Should advertisements including a
reference to specific investment advice be required to disclose or offer to provide a complete list of specific investments? If so, should the list be limited to investments of the same type, kind, grade, or classification as those specific investments presented in the advertisements? If not, how else should this list be limited?
Should we require investment
advisers that include a reference to specific investment advice to disclose the criteria used to select the specific investment?
While the proposed rule does not
contain a list of prescriptive requirements, to provide additional guidance the proposal discusses several factors that advisers should consider when determining whether a presentation is fair and balanced. Should we include any or all of these factors in the rule text itself? Do any of these factors need further clarification? Are the factors we discussed relevant? Are there any additional or alternative factors we should discuss?
Does using the term ‘‘reference to
specific investment advice’’ instead of ‘‘past specific recommendations’’ clarify the scope of the provision? If not, is there another term that should be used?
Should the rule have separate
requirements for references to specific investment advice in Retail Advertisements and Non-Retail Advertisements?
Should the rule have separate
general provisions for advisers advertising to different types of investors (e.g., separate provisions for advertisements to Retail Persons and Non-Retail Persons)? Why or why not? If so, what different requirements should apply to what types of investors? Should the requirements for Retail Advertisements include additional restrictions and/or prescribed disclosures? If so, what should they be? Would additional restrictions and prescribed disclosures be meaningful to

145Proposed rule 206(4)–1(a)(7).
146Rule 206(4)–1(a)(5).
147Rule 156 under the Securities Act similarly prohibits investment company sales literature which is ‘‘materially misleading.’’ 148For example, rule 206(4)–8 would continue to apply to advertisements directed to investors in private funds under such an approach. Retail Persons but not Non-Retail Persons? Would additional restrictions and prescribed disclosures be meaningful to only a subset of NonRetail Persons? Why or why not?

Should the proposed requirement
for fair and balanced presentation for references to specific investment advice vary based on the type of communications?
Should we specify in some way
what ‘‘favorable’’ or ‘‘unfavorable’’ mean? Why or why not? f. Otherwise Materially Misleading Finally, we are proposing to prohibit any advertisement that is otherwise materially misleading.145 Rule 206(4)–1 currently has a broad catch-all provision prohibiting advertisements that are ‘‘otherwise false or misleading.’’ 146 We are generally proposing to retain a catch-all provision like this aspect of the current rule. We believe this catch-all would ensure that certain materially misleading practices that are not specifically covered by the other prohibitions would be addressed. For example, if an adviser provided accurate disclosures, but presented them in an unreadable font, such an advertisement would be materially misleading and prohibited under this catch-all. However, because we are also prohibiting a variety of specific types of advertisement practices within the general prohibitions, most of which include an element of materiality, as discussed above, we are proposing to focus the catch-all provision on only those advertisements that are otherwise materially misleading. We believe that limiting the catch-all to materially misleading advertisements would be more appropriate within the overall structure of the proposed prohibitions while still achieving our goal of prohibiting misleading conduct that may affect an investor’s decisionmaking process. We also believe that, in light of the proposed rule’s prohibitions on making untrue statements and omissions of material fact, including ‘‘false’’ is unnecessary in the catch-all provision as it is already covered by the previous prohibition.147 We request comment on this provision of the proposed rule.
Should we include this catch-all
provision? If not, why not? Would the other general prohibitions capture all types of conduct that would otherwise result in an advertisement being materially misleading? If not, should we instead seek to specifically identify all potentially misleading conduct that an adviser might seek to engage in within the rule rather than include such a catch-all?
Should the provision prohibit all
false and misleading advertisements as under the current rule, not just materially misleading ones, as proposed? Are there situations where an advertisement would be immaterially false or misleading?
Does the proposed rule’s
prohibitions on making untrue statements and omissions of material fact make the term ‘‘false’’ unnecessary in the catch-all? Should the proposed provision also apply to materially false advertisements? g. General Request for Comment and Alternate Approaches We request comment on the proposed prohibitions discussed above.
The proposed rule prohibits certain
advertising practices as a means reasonably designed to prevent fraud within the meaning of section 206(4) of the Act. Is this approach effective? Would the list of practices in the proposed rule be helpful for investment advisers in evaluating whether their advertisements are or might be misleading?
Are there other practices that we
should include, such as any additional factors listed in rule 156? Or should we extend all of the anti-fraud guidance in rule 156 to investment adviser advertisements?
Should any of the practices that we
are proposing to prohibit instead be reframed as factors to consider similar to the approach in rule 156? Should we modify the rule to incorporate any of these factors to consider in lieu of the prohibitions under the proposed rule?
Should we include any specific
prohibitions related to the presentation of information in advertisements? For example, should we prohibit including disclosures in too small of a font? Should we specifically require that information be presented in Plain English?
Do commenters agree with the
proposed prohibitions? Should we modify the language or scope of any of the prohibitions? Is each of the practices described in this provision sufficiently likely to be misleading that it should be prohibited, or is it possible that any of these provisions could encompass statements or presentations that are not misleading and provide investors with valuable information?
Should these provisions apply to all
advertisements, regardless of whether the advertisement is directed to Retail Persons or Non-Retail Persons? Should any of them apply only to Retail Advertisements or vice versa? We also request comment on other approaches to the regulation of advertising by advisers. For example, we are proposing an approach where, as a means reasonably designed to prevent fraudulent, deceptive, or manipulative acts, practices, and courses of business, we would amend rule 206(4)–1 generally to prohibit certain conduct, as discussed above, and restrict certain specific identified advertising practices, as discussed below. Instead, we could not identify any specific restricted practices and rely on the general prohibitions against fraud or deceit in
section 206 of the Advisers Act and
certain rules thereunder.148 Under such an approach, a rule specifically targeting adviser advertising practices might be unnecessary.
Should we repeal the current rule
206(4)–1 and rely instead solely on
section 206 of the Act and such rules
thereunder to regulate adviser advertising practices?
Alternatively, should we identify
general prohibited conduct, such as discussed above?
Should we only restrict certain
specific practices, or include a narrower set of restricted practices? If so, which practices should still be covered in an advertising rule? For example, should the rule target the presentation of performance or certain other specific practices such as the use of testimonials?
Would such approaches provide
advisers with sufficient clarity and guidance on whether certain advertising practices would likely be fraudulent or deceptive?
Would such approaches provide
sufficient clarity for an adviser of its legal obligations and potential liabilities in crafting advertisements?

Testimonials, Endorsements, and
Third Party Ratings
The proposed rule specifically addresses the use of testimonials, endorsements, and third-party ratings in advertisements. The proposed rule would define ‘‘testimonial,’’ ‘‘endorsement,’’ and ‘‘third-party rating,’’ and would permit advisers to use them in advertisements, subject to the rule’s general prohibitions of certain advertising practices and additional conditions. The current advertising rule outright prohibits the use of

149See rule 206(4)–1(a)(1) for the prohibition on testimonials. 150See Advertising Rule Adopting Release, supra footnote 5. 151Our proposed approach is somewhat informed by the approach taken by FINRA, which permits testimonials about broker-dealers, subject to limitations, though we recognize that advisers and brokers have different business models, and are subject to different regulation. FINRA requires a testimonial about a technical aspect of investing that appears in any communication (regardless of investor sophistication) be offered by a person that has the ‘‘knowledge and experience to form a valid opinion.’’ See FINRA rule 2210(d)(6)(A). FINRA’s rule does not define the term ‘‘testimonial.’’ With regard to any testimonial in retail communications (or correspondence as defined in the FINRA rule), the communication must make certain prominent disclosures, including, for example, if more than $100 in value is paid for the testimonial, the fact that it is a paid testimonial. See FINRA rule 2210(d)(6)(B); see also FINRA’s Regulatory Notice 17–18: Social Media and Digital Communications:
Guidance on Social Networking websites and Business Communications, April 2017 (stating that for broker-dealers, among other things, ‘‘third-party posts on a firm or associated person’s business website may constitute communications with the public by the firm or an associated person under Rule 2210 if the firm or an associated person has (1) paid for or been involved in the preparation of the content (which FINRA would deem to be ‘entanglement’) or (2) explicitly or implicitly endorsed or approved the content (which FINRA would deem to be ‘adoption’).’’). 152See proposed rule 206(4)–1(e)(15). An adviser’s ‘‘advisory affiliate’’ is defined in Form ADV’s Glossary of Terms as ‘‘(1) all of your officers, partners, or directors (or any person performing similar functions); (2) all persons directly or indirectly controlling or controlled by you; and (3) all of your current employees (other than employees performing only clerical, administrative, support or similar functions).’’ Form ADV Glossary of Terms. In addition, if an adviser is a ‘‘separately identifiable department or division’’ (SID) of a bank, the term ‘‘advisory affiliate’’ is defined in Form ADV Glossary of Terms as: ‘‘(1) all of your bank’s employees who perform your investment advisory activities (other than clerical or administrative employees); (2) all persons designated by your bank’s board of directors as responsible for the dayto-day conduct of your investment advisory activities (including supervising the employees who perform investment advisory activities); (3) all persons who directly or indirectly control your bank, and all persons whom you control in connection with your investment advisory activities; and (4) all other persons who directly manage any of your investment advisory activities (including directing, supervising or performing your advisory activities), all persons who directly or indirectly control those management functions, and all persons whom you control in connection with those management functions.’’ Id. The terms ‘‘person,’’ ‘‘employee,’’ and ‘‘control’’ are also defined in Form ADV’s Glossary of Terms, and would be incorporated in the proposed rule to the extent they are used in the rule’s definition of ‘‘testimonial’’ and ‘‘endorsement.’’ Id. 153See proposed rule 206(4)–1(e)(2). Even though the current rule prohibits testimonials, it does not define the term, and it does not address endorsements. 154Similarly, in the context of stating it would not recommend enforcement action when the adviser proposed to use partial client lists that do no more than identify certain clients of the adviser, the Commission staff stated its view that partial client lists would not be testimonials because they do not include statements of a client’s experience with, or endorsement of, an investment adviser. See Cambiar Investors, Inc., SEC Staff No-Action Letter (Aug. 28, 1997). 155Even though the proposed rule treats testimonials and endorsements similarly, we are providing
a distinct definition for each so that we can tailor the disclosure requirements for each and request comment on whether the rule should treat them differently, as discussed below. ‘‘testimonials,’’ and does not expressly address endorsements and third-party ratings.149 When the Commission adopted the advertising rule in 1961, it stated that testimonials ‘‘. . . by their very nature emphasize the comments and activities favorable to the investment adviser and ignore those that are unfavorable. This is true even when the testimonials are unsolicited and printed in full.’’ 150 We are proposing a provision that would address testimonials, endorsements, and thirdparty ratings in a nuanced manner.151 Unlike the current rule’s broad restrictions on the use of testimonials, the proposed provision would permit testimonials, endorsements, and thirdparty ratings, subject to disclosures and other tailored conditions. Our proposal would recognize that while consumers and businesses often look to the experiences and recommendations of others in making informed decisions, there may be times when these tools are less credible or less valuable than they appear to be. Testimonials, endorsements, and third-party ratings are widely used and accepted in today’s marketplace for various consumer goods and services outside of the securities and investment industry. Technological advances, including the development of the internet and social media platforms, have made the use and dissemination of testimonials easier and more widespread, and they continue to be an important resource for consumers and businesses. In addition, those selling goods and services also seek endorsements about their product or service from trade and consumer groups or particular individuals. Like testimonials and endorsements, thirdparty ratings often provide information to consumers to help them evaluate a business relative to its peers or based on certain factors that may be important to the consumer. People continue to seek out and consider the views of others when making a multitude of transactions or decisions—from purchasing a coffee maker to finding the right medical expert to consult. Consumers that make purchases in online marketplaces may be experienced in reading reviews and evaluating any accompanying qualifications, such as reviews marked as ‘‘verified purchaser’’ or ‘‘verified review.’’ We believe that testimonials, endorsements, and third-party ratings can be useful and important for investors when evaluating investment advisers. Yet, we recognize that there are circumstances in which this type of information might mislead investors by, for example, failing to provide important context in which the statement or rating was made. With tailored disclosures and other safeguards discussed below, we believe that advisers could use testimonials, endorsements, and third-party ratings in advertisements to promote their accomplishments with less risk of misleading retail investors. a.
Definition of Testimonial, Endorsement, and Third-Party Rating The proposed rule defines ‘‘testimonial’’ as ‘‘any statement of a client’s or investor’s experience with the investment adviser or its advisory affiliates, as defined in the Form ADV Glossary of Terms.’’ 152 It defines ‘‘endorsement’’ as ‘‘any statement by a person other than a client or investor indicating approval, support, or recommendation of the investment adviser or its advisory affiliates, as defined in the Form ADV Glossary of Terms.’’ 153 The proposed definitions of testimonial and endorsement would broadly cover an investor’s experience with the adviser or its advisory affiliates (testimonial), and a non-investor’s approval, support, or recommendation of the adviser or its advisory affiliates (endorsement). Testimonials and endorsements would both include, for example, opinions or statements by persons about the investment advisory expertise or capabilities of the adviser or its advisory affiliates. To the extent that a statement does not cover an investor’s experience with the adviser or its advisory affiliates, or a non-investor’s approval, support or recommendation of the adviser or its advisory affiliates, it would not be treated as a testimonial or endorsement. For example, complete or partial client lists that do no more than identify certain of the adviser’s investors would not be treated as a testimonial.154 Testimonials and endorsements could include characterbased or other statements that more indirectly implicate the expertise or capabilities of the adviser or its advisory affiliates, such as their trustworthiness, diligence, or judgment.155 We believe that these types of statements typically should be treated as testimonials and endorsements, depending on the specific facts and circumstances, because an investor would likely

156An adviser’s ‘‘related person’’ is defined in Form ADV’s Glossary of Terms as ‘‘[a]ny advisory affiliate and any person that is under common control with your firm.’’ Italicized terms are defined in the Form ADV Glossary. 157As defined in the Investment Company Act, ‘‘[a]ffiliated person’’ of another person means: (A) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof. Section 2(a)(3) of the Investment Company Act. Such term is incorporated into section 202(a)(12) of the Act. 158Proposed rule 206(4)–1(e)(16). See supra footnote 156 for the definition of ‘‘related person.’’ 159 In the third-party rating provision, we are proposing to use the term ‘‘related person,’’ as opposed to ‘‘advisory affiliate,’’ which we are proposing to use in the definition of ‘‘testimonial’’ and ‘‘endorsement.’’ As discussed above, the term ‘‘related person’’ includes persons under common control with the adviser, and we believe that a rating by a person under common control with the adviser could present the same bias towards the adviser as a rating by an adviser’s other advisory affiliates. 160See proposed rule 206(4)–1(a). 161See proposed rule 206(4)–1(e)(1) (defining advertisement, in part, as any communication. . . ‘‘by or on behalf of an investment adviser’’. . .). As discussed in detail supra section II.A.2.b.ii, content created by or attributed to third parties, such as investors, could be considered by or on behalf of an investment adviser, depending on the investment adviser’s involvement. See supra
section II.A.2 (discussing the proposed definition of
‘‘advertisement’’).
162See supra section II.A.2.b.ii.
163 Id. However, merely letting an investor know about the availability of a third party review site without suggesting that the investor leave a positive review or not leave a negative review may not qualify as taking steps to influence the third party content. 164See supra footnotes 50–52 and accompanying text. 165See supra section II.A.2.b. (discussing when a statement is ‘‘by or on behalf of’’ an adviser, and stating that compensation includes any cash or noncash compensation such as rewards or other incentives for a third-party to provide content). In many cases, a person providing a compensated testimonial or endorsement under the proposed advertising rule (a ‘‘promoter’’) will also be a solicitor, and both the proposed advertising and solicitation rules would apply. See infra section II.B.1. perceive them as relevant to the adviser’s investment advisory services. In the infrequent event that such statements are not relevant to an investment adviser or its advisory affiliates’ investment advisory services, however, such statements would not be treated as testimonials or endorsements. We considered, but are not proposing that the definitions of testimonial and endorsement include certain types of statements about an adviser’s related persons, which are an adviser’s advisory affiliates and any person that is under common control with the adviser.156 We believe that applying the testimonial and endorsement provision to persons under common control with the adviser would be overly broad, because statements about such persons would not be relevant to an investor’s assessment of an investment adviser. For similar reasons, we are not proposing to use the term ‘‘affiliated person,’’ as defined in the Investment Company Act and incorporated into the Act, as that term also would apply, among other things, to persons under common control with the adviser.157 Our proposed rule defines ‘‘thirdparty rating’’ as a ‘‘rating or ranking of an investment adviser provided by a person who is not a related person, as defined in the Form ADV Glossary of Terms, and such person provides such ratings or rankings in the ordinary course of its business.’’ 158 The proposed definition is intended to permit advisers to use third-party ratings, subject to conditions, when the ratings are conducted in the ordinary course of business. We believe that the ordinary course of business requirement would largely correspond to persons with the experience to develop and promote ratings based on relevant criteria. It would also distinguish third-party ratings from testimonials and endorsements that may include statements that resemble third-party ratings, but that are not made by persons who are in the business of providing ratings or rankings. The requirement that the provider not be an adviser’s related person would avoid the risk that certain affiliations could result in a biased rating.159 However, we request comment below on whether the proposed definition of ‘‘third-party
rating’’ should include affiliated parties under certain circumstances, such as when the rating is at arm’s length and not designed to favor the affiliate. Under our proposal, we believe that a rating by an affiliated person might otherwise be prohibited under the proposed rule’s general prohibitions of certain advertising practices, depending on the facts and circumstances, such as if it includes an untrue or misleading implication about, or is reasonably likely to cause an untrue or misleading inference to be drawn concerning, a material fact relating to the investment adviser.160 Testimonials, endorsements, and third-party ratings would only be subject to the proposed rule to the extent they themselves are ‘‘advertisements’’ or they appear within an advertisement. Whether they are themselves advertisements requires a facts and circumstances analysis of whether a communication is ‘‘by or on behalf of’’ an investment adviser.161 While some third-party statements or ratings that appear in a third-party hosted platform may meet the proposed rule’s definition of ‘‘advertisement,’’ we generally believe that many of these statements or ratings would fall outside of the scope of the proposed rule.162 For example, as discussed above, statements regarding the investment adviser on a third-party hosted platform, such as a social media site other than the adviser’s site, that solicits users to post information, including positive and negative reviews of the adviser, would not fall within the scope of the proposed rule’s definition of ‘‘advertisement’’ unless the adviser took some steps to influence such reviews or posts, and thus the statement was made by or on the adviser’s behalf. For example, if the adviser paid the third party website to promote certain statements or reviews or to hide or ‘‘downrank’’ others, the adviser would be taking steps to influence the content of the reviews or posts.163 Likewise, a third-party statement or rating may meet the definition of ‘‘testimonial,’’ ‘‘endorsement,’’ or ‘‘third-party rating,’’ but could fall outside of the rule’s scope because it does not fall under the proposed rule’s definition of ‘‘advertisement.’’ For example, as discussed above, the fact that an adviser permits all third parties to post public commentary to the adviser’s website or social media page generally would not, by itself, render such commentary attributable to the investment adviser, unless the adviser took some steps to influence the content of the commentary.164 Compensated testimonials and endorsements would generally be ‘‘by or on behalf of’’ an adviser and would make the statements subject to the rule.165 In these cases, and in all instances where a testimonial, endorsement, or third-party rating would be an advertisement or would be
part of an adviser’s advertisement, the
adviser would be required to comply with both the tailored conditions of the proposed rule with respect to testimonials, endorsements, and thirdparty ratings, and the proposed rule’s general prohibitions on certain advertising practices (e.g., that the advertisement not imply something untrue or misleading about, or that is reasonably likely to cause an untrue or misleading inference to be drawn

166As discussed above, the proposed rule contains general prohibitions of certain advertising practices. See proposed rule 206–4(1)(a). Therefore, an adviser may not use in an advertisement any endorsement or testimonial if it would be a prohibited statement if made directly by the adviser. 167 General disclaimer language (e.g., ‘‘these results may not be typical of all investors’’) would not be sufficient to overcome the proposed rule’s general prohibitions. See generally infra footnote
180. However, disclosure could be sufficient if, for
example, the advertisement states that the performance advertised is representative of a subset of clients who follow the particular strategy (if applicable). 168Proposed rule 206(4)–1(a). 169 Id. 170See proposed rule 206(4)–1(a). concerning, a material fact relating to the investment adviser). Statements made by an adviser that would be prohibited under the proposed rule’s general prohibitions of certain advertising practices would also be prohibited in an adviser’s advertisement if made by a third-party in a covered testimonial, endorsement, or third-party rating.166 An adviser therefore would be prohibited from using any such statement or rating in an advertisement if, for example, the content, presentation or any other aspect of the statement or rating would be materially misleading if the adviser communicated it itself. For example, some advisers may wish to include in their advertisements testimonials about an adviser’s performance results (including performance achieved by a particular investor —e.g., ‘‘XYZ Adviser’s investment strategy has returned over 10% per year for my account in each of the last five years’’ or ‘‘ABC Adviser invested all of my assets in the health care sector and made me a fortune’’). Such statements without additional disclosure would not overcome the proposed rule’s general prohibitions, to the extent that they are not typical of the adviser’s investors’ experiences.167 In such cases, they would give rise to a fraudulent or deceptive implication, or mistaken inference, that the experience of the person giving the testimonial is typical of the experience of the adviser’s clients.168 Such statement may also implicate the provisions related to performance and specific investment advice, respectively, discussed below as they may not meet the requirements to be fair and balanced.169 Under our proposed rule, in all instances where a testimonial, endorsement, or third-party rating would be an advertisement, the adviser would be required to comply with both the tailored conditions of the proposed rule that are discussed below as well as the proposed rule’s general prohibitions on certain advertising practices. Therefore, for example, an adviser could not include an endorsement in an advertisement that makes a material claim or statement that is unsubstantiated or that is likely to create a misleading implication about a material fact.170 Further, we believe that cherry picking testimonials, or otherwise selectively only using the most positive testimonials available about an adviser, would not be consistent with the general prohibition in the proposed rule. For example, if an adviser were to select a single positive testimonial to highlight in an advertisement, while excluding all negative testimonials, it is likely to create a misleading inference that the adviser has only received positive testimonials. Similarly, statements about performance or specific investment advice made in the context of an endorsement or
third-party rating would be subject to the proposed rule’s general prohibitions. In all cases, we believe performance information or specific investment advice stated by persons other than the adviser or its representatives may be particularly compelling to an investor. For this reason, we would generally view an advertisement as unlikely to be presented in a manner that is fair and balanced under the proposed rule if the testimonial, endorsement, or third-party rating references performance information or specific investment advice provided by the investment adviser that was profitable that is not representative of the experience of the adviser’s investors. We request comment on this aspect of the proposed rule:

Are our proposed definitions of
‘‘testimonial,’’ ‘‘endorsement,’’ and ‘‘third-party ratings’’ clear? Are there ways in which the proposed definitions are over- or under-inclusive?
Do commenters agree that the
provision regarding ‘‘testimonials’’ and ‘‘endorsements’’ should apply to statements about an adviser’s advisory affiliates? Why or why not? If not, which persons associated with an adviser, if any, should be included in the provision? Should we instead use the term ‘‘related persons,’’ which would pick up persons under common control with the adviser? Why or why not?
Do commenters agree with the
scope of opinions or statements about the adviser and its advisory affiliates that would be included in the proposed definitions of testimonial and endorsement? Do commenters favor a broader or narrower scope, and why? For example, the scope of the proposed definitions of testimonial and endorsement would include statements about an adviser’s or its advisory affiliates’ trustworthiness, diligence, or judgment to the extent that they are statements of an investor’s experience with the investment adviser, or are statements by others that indicate approval, support, or recommendation of the investment adviser. Should we more narrowly capture only the opinions or statements that are explicitly about the investment advisory expertise or capabilities of the adviser? Why or why not, and if so, how should we narrow the scope? Alternatively, how should we broaden the scope?
A rating provided by a related
person of the investment adviser would be evaluated under the proposed rule’s general prohibitions of certain advertising practices, and might be prohibited thereunder, depending on the facts and circumstances. Do commenters agree with this approach? Should the proposed definition use a term other than ‘‘related person’’ to capture persons who are affiliated with the adviser and would be likely to produce a biased rating? If so, what term should we use, and what universe of persons should the term capture? For example, should the term include or exclude ratings provided by an adviser’s investors, because of the potential for an investor to provide a more favorable rating of the adviser in order to receive preferential treatment by the adviser? Should the proposed definition of ‘‘third-party rating’’ exclude related persons in certain instances, such as when a related person’s rating would be at arm’s length and not designed to favor the adviser? Should it include or exclude any other persons based on the nature of the relationship between the adviser and the person providing the rating or ranking? Why or why not?
Do commenters believe that the
proposed definition of ‘‘third-party rating,’’ including the requirement that the rating be provided by a person who ‘‘does so in the ordinary course of its business,’’ distinguishes adequately between testimonials or endorsements that may include statements that resemble third-party ratings, from the types of ratings or rankings that we intend to capture within the scope of the definition (i.e., they are made by persons who are in the business of providing ratings or rankings)? If not, how should we draw this distinction? Or, do commenters believe that such a distinction is unnecessary? Why?
Do commenters agree or disagree
that investors afford additional weight to statements about performance and

171See proposed rule 206(4)–1(b)(1). 172See proposed rule 206(4)–1(b)(1)(ii) and (b)(2)(iii). specific investment advice when presented in the context of a testimonial, endorsement, or third-party rating? Should the rule specifically address any of these practices, or other practices, in the testimonial, endorsement, and third-party rating provisions? If so, why, and how? Are there disclosures that would cure any misleading inferences about an adviser’s performance or return of an investor’s account or profitable investment advice of the adviser when made in the testimonial, endorsement, or third-party rating context? If so, what are they, and should we incorporate them as a condition for testimonials, endorsements, and third-party ratings? If so, should we incorporate them into conditions for Retail Advertisements or Non-Retail Advertisements (each as defined and discussed below), or both, and why?

Do commenters agree that if an
adviser links to a third-party website that contains a testimonial or endorsement, only the testimonial or endorsement on such third-party website should be viewed as the adviser’s advertisement subject to proposed rule 206(4)–1? For an adviser linking to a third-party website that contains only educational information about investing, or a third-party tool such as an investing calculator, how would advisers signal to investors that, if applicable, the third-party content does not relate to the adviser’s services or otherwise meet the definition of ‘‘testimonial’’ or ‘‘endorsement’’?
As discussed below, testimonials
and endorsements under the proposed rule could also be deemed to be solicitations under the proposed solicitation rule. Should the rule define ‘‘testimonials’’ and ‘‘endorsements’’ to distinguish them from solicitations? b. Conditions on Testimonials, Endorsements, and Third-Party Ratings The proposed rule would require that an investment adviser clearly and prominently disclose, or the investment adviser reasonably believe that the testimonial or endorsement clearly and prominently discloses, that the testimonial was given by a client or investor, and the endorsement was given by a non-client or non-investor, as applicable.171 Disclosure about the status of the person making the testimonial or endorsement (e.g., investor or non-investor) would provide investors with important context for weighing the relevance of the statement. For example, an investor might give more weight to a statement made about an adviser by another investor than a non-investor. An endorsement that is not clearly attributed to a non-investor could mislead investors who may assume the endorsement reflects the endorser’s experience as an investor. The proposed rule would also require that the investment adviser clearly and prominently disclose, or the investment adviser reasonably believe that the testimonial, endorsement, or third-party rating clearly and prominently discloses, that cash or non-cash compensation has been provided by or on behalf of the adviser in connection with the testimonial, endorsement, or third-party rating, if applicable.172 In order to be clear and prominent, the disclosure must be at least as prominent as the testimonial, endorsement or third-party rating. For third-party ratings, this provision would apply to cash or non-cash compensation provided by or on behalf of the adviser to the party providing the rating (e.g., the rating agency). Importantly, it also would apply to cash or non-cash compensation provided by or on behalf of the adviser to any person participating in the rating (e.g., any investor that completes a questionnaire about the adviser in connection with the rating). The disclosure requirements would apply to third-party statements or ratings that appear in a third-party hosted platform that meet the proposed rule’s definition of ‘‘advertisement’’ as well as to advertisements that the adviser publishes on its own platform. In the case of an advertisement on a third-party hosted platform to which investors’ access is only through the adviser, the adviser could provide a pop-up web page including the required clear and prominent disclosures for third-party statements and ratings when the client or investor links to the thirdparty site. In other cases where investors may access through other channels an adviser’s advertisement on a third-party hosted platform, and the adviser itself cannot provide the required disclosures, the adviser must form a reasonable belief that the third-party statement or rating includes the required clear
and prominent disclosures. These proposed requirements to disclose that cash or non-cash compensation has been provided would provide important context for weighing the relevance of the statement. Consumers understand that compensation provided by or on behalf of a company in connection with reviews, testimonials, and ratings can incentivize the reviewer or the party providing the rating to provide a positive statement about, or positive rating of, the adviser. Cash or non-cash compensation provided in connection with a testimonial, endorsement, or third-party rating can include, for example, an adviser paying for the review or rating with cash, or providing the third-party with non-cash benefits or rewards that would incentivize it to make a positive statement about, or provide a positive rating of, the adviser or its advisory affiliates or related persons. Non-cash benefits or rewards could include, for example, reduced-fee or no-fee advisory services and crossreferrals (e.g., the adviser refers its investors to the third-party’s business platform). Without clear and prominent disclosure that cash or non-cash compensation or is provided, the conflict of interest may be hidden. A testimonial, endorsement, or third-party rating that is not clearly labeled as compensated could mislead investors, who may assume that the person making the statement or rating is not receiving compensation. Our proposed disclosure would permit investors to decide, based on relevant information, how much weight to give a compensated testimonial, endorsement, or third-party rating. We considered, but are not proposing, prohibiting in Retail Advertisements compensated testimonials, endorsements, and third-party ratings (i.e., testimonials, endorsements, and third-party ratings in connection with which cash or non-cash compensation has been provided by or on behalf of the adviser). However, we believe that we can more narrowly tailor our approach with disclosures and other conditions (that are discussed below) to reduce the risk that such statements and ratings mislead retail investors. In addition, our proposal would apply certain requirements to testimonials, endorsements, and third-party ratings in both Retail and Non-Retail Advertisements—rather than only Retail Advertisements—because we believe that the proposed provisions would reduce the risk of such advertisements misleading investors regardless of the analytical and other resources or financial sophistication of the investor. With respect to compensated testimonials, endorsements, and thirdparty ratings, we believe that Retail Persons and Non-Retail Persons are similarly positioned to evaluate the proposed disclosures in a way that would make a third-party statement or rating less likely to be misleading. Our proposal is consistent with other regulatory regimes that permit paid testimonials and endorsements if the

173See FINRA rule 2210(d)(6)(B)(iii). The FINRA rule also requires that the person making the testimonial must have the ‘‘knowledge and experience to form a valid opinion’’ if the testimonial in a communication concerns a technical aspect of investing. FINRA rule 2210(d)(6)(A). 174See, e.g., Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR part 255, at n.1 available at https://www.ftc.gov/sites/default/files/ attachments/press-releases/ftc-publishes-finalguides-governing-endorsements-testimonials/ 091005revisedendorsementguides.pdf (‘‘FTC Guides’’) (the FTC Guides, as revised in October,
2009) (discussing circumstances in which
disclosure of compensation should be made). The FTC Guides provide, among other things, that (i) the advertiser must possess and rely upon adequate substantiation including, when appropriate, competent and reliable scientific evidence, to support such claims made through endorsements in the same manner the advertiser would be required to do if it had made the representation directly, i.e., without using endorsements, and (ii) advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Id. 175See proposed rule 206(4)–1(b)(2)(i) and (ii). 176 In addition, an adviser would be required to provide contextual disclosures of subsequent, lessfavorable performance in the rating, if applicable. See proposed rule 206(4)–1(a) (the proposed rule’s general prohibitions). 177The current rule does not specifically address third-party ratings. payment is clearly and prominently disclosed. For example, FINRA permits paid testimonials in the retail context for certain broker-dealer communications, subject to certain conditions, including that the brokerdealer discloses the fact that the testimonial is paid for if the payment is more than $100 in value.173 In addition, the Federal Trade Commission’s guidelines for endorsements promote full disclosure of connections between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, including disclosure of compensation arrangements between sellers and many endorsers.174 Unlike FINRA, we are not proposing a de minimis exception for the proposed disclosure because we believe that investors should be made aware when advisers provide even a small amount of compensation in connection with testimonials, endorsements, and thirdparty ratings in advertisements. We believe that smaller amounts can also influence a third party to make a favorable statement or a positive rating. We are not prohibiting an adviser from indicating the amount of compensation provided if it prefers to make that additional disclosure. We request comment on a de minimis exception below. Our proposal for third-party ratings in advertisements would be subject to two additional disclosure requirements to provide context for evaluating the merits of the third-party rating. Specifically, it would require that the investment adviser clearly and prominently disclose, or the investment adviser must form a reasonable belief, that the third-party rating clearly and prominently discloses: (i) The date on which the rating was given and the period of time upon which the rating was based; and (ii) the identity of the third party that created and tabulated the rating.175 An adviser that uses thirdparty ratings in advertisements should develop policies and procedures to implement this ‘‘reasonable belief’’ provision as part of its compliance program. They could, for
example, require the adviser to maintain records of the third-party rating containing the required disclosures. As with testimonials and endorsements, we believe that the proposed disclosures for third-party ratings would provide context for evaluating the information provided and reduce the risk of it misleading investors. The first proposed disclosure—the date on which the rating was given and the period of time upon which the rating was based—would assist investors in evaluating the relevance of the rating. Ratings from an earlier date, or that are based on information from an earlier time period, may not reflect the current state of an investment adviser’s business. An advertisement that includes an older rating would be misleading without clear and prominent disclosure of the rating’s date.176 The second proposed disclosure—the identity of the third party that created the rating—is important because it would provide investors with the opportunity to assess the qualifications and credibility of the rating provider. Investors can look up a third-party by name and find relevant information, if available, about the third-party’s qualifications and can form their own opinions about credibility. While these disclosures are explicitly required under the proposed rule, they would not cure a rating that could otherwise be false or misleading under the proposed rule’s general prohibitions of certain advertising practices or under the general anti-fraud provisions of the Federal securities laws. For example, where an adviser’s advertisement references a recent rating and discloses the date, but its advisory business has sharply declined shortly thereafter, the advertisement would be misleading. Likewise, an adviser’s advertisement would be misleading if it indicates that the adviser is rated highly without disclosing that the rating is based solely on a criterion, such as assets under management that may not relate to the quality of the investment advice. Finally, we are proposing additional requirements for third-party ratings in advertisements that we believe would increase the integrity of the rating and reduce the risk that it misleads investors. In many cases, third-party ratings are developed by relying significantly on questionnaires or client surveys. Our proposed rule would require that the investment adviser reasonably believe that any questionnaire or survey used in the preparation of the third-party rating is structured to make it equally easy for a participant to provide favorable and unfavorable responses, and is not designed or prepared to produce any predetermined result. Third-party ratings not designed in this manner may be misleading. Our proposed approach would update the current rule by permitting advisers to promote their accomplishments by referencing thirdparty ratings, while prohibiting certain misleading or fraudulent practices.177 For an adviser to satisfy the proposed reasonable belief requirement, it would likely need to
have access to the questionnaire or survey that was used in the preparation of the rating. We request comment on this aspect of the proposed rule:

Would our proposed required
disclosures for testimonials, endorsements, and third-party ratings provide useful information to investors? If not, why? Would our proposed disclosures provide useful information to both Retail Persons and Non-Retail Persons? Are Non-Retail Persons and Retail Persons similarly positioned to use the information that would be provided in the disclosures to obtain important contextual information about the third-party statements? If not, what approach do commenters advocate and why?
Should the current rule’s flat
prohibition on testimonials of any kind be retained in an amended rule? If so, should it apply to testimonials, endorsements, and third-party ratings in Retail Advertisements or Non-Retail Advertisements, or both?
Should testimonials, endorsements,
and third-party ratings be treated differently from each other under the rule? If so, how? For example, should compensation be permitted (with disclosure) for one type of third-party statement but prohibited for another? Should we add different conditions to each type of advertisement depending upon, for example, the person making

178See FINRA rule 2210(b) and (c).
179See generally FINRA rule 2210(d)(6). 180See also FTC Guides, supra footnote 174 and accompanying text (discussing the FTC Guides’ adequate substantiation provision). However, the FTC Guides state that the FTC tested the communication of advertisements containing testimonials that clearly and prominently disclosed either ‘‘Results not typical’’ or ‘‘These testimonials are based on the experiences of a few people and you are not likely to have similar results,’’ and concluded that neither disclosure adequately reduced the communication that the experiences depicted are generally representative. The FTC Guides further noted that based upon this research, the FTC believes that similar disclaimers regarding the limited applicability of an endorser’s experience to what consumers may generally expect to achieve are unlikely to be effective. the statement or the content of the statement?

For testimonials that the adviser
includes in Retail Advertisements, should the rule text expressly prohibit the adviser from selectively including positive testimonials without providing an equal number of negative testimonials (if applicable)? If so, what would be the benefits of such a prohibition, in light of the proposed rule’s general prohibition and tailored conditions that would also apply to testimonials in advertisements (e.g., the prohibition from including any untrue statement of a material fact, or omitting to state a material fact necessary in order to make the statement made, in the light of the circumstances under which it was made, not misleading)? If we included such an express prohibition, should we apply a carveout for testimonials that appear on an adviser’s website, or a third-party site, over which the adviser does not have any influence or control (e.g., the adviser cannot delete, rank or affect the display or presentation of any particular testimonial)? Why or why not? Is there any other method we should specifically prescribe in the rule for testimonials in Retail Advertisements (and/or advertisements, generally) other than the proposed rule’s general prohibitions, to prevent an adviser from selectively presenting certain favorable testimonials in a way that is not misleading? If so, what method should we prescribe, and why?
Should we prohibit testimonials,
endorsements, or third-party ratings for which an adviser pays more than a de minimis amount in value in return for the statement or rating? If so, what should an appropriate value be? Should a prohibition be limited to Retail Advertisements?
Do commenters believe we should
also adopt a ‘‘knowledge and experience’’ requirement for testimonials, endorsements and thirdparty ratings, like FINRA’s requirement for certain testimonials concerning a technical aspect of investing? Should we adopt such requirement instead of, or in addition to, our proposed disclosures and conditions?
FINRA’s filing and regulatory
review process of broker-dealer communications provides an additional assurance that a testimonial in a brokerdealer communication is used in a manner that complies with the rule’s standards.178 Given that we do not have a review process like FINRA’s, and that the adviser is promoting its own services, should we allow advisers to use testimonials, endorsements, and third-party ratings in Retail and NonRetail Advertisements, subject to the rule’s anti-fraud provision and the additional conditions?
FINRA rule 2210 also requires
additional disclosures when testimonials are included in retail communications.179 The additional disclosures include disclosing prominently that the testimonial may not be representative of the experience of other customers and that the testimonial is no guarantee of future performance or success.180 Should we require such disclosures? Do commenters believe that such disclosures provide meaningful information to investors? Would other disclosures or requirements for presentation to investors reduce the risk that a testimonial or endorsement might lead investors to make inferences about an adviser that are inappropriate or inaccurate?
As noted above, statements that
would be prohibited by the adviser under the proposed rule’s general prohibitions of certain advertising practices would also be prohibited if made by a third party in a testimonial, endorsement, or third-party rating that an adviser uses in its advertisement. Should we also explicitly state in the rule text, similar to the FTC’s Guides for endorsements, that (i) advisers are subject to liability for false or unsubstantiated statements made through endorsements, testimonials, and third-party ratings, and (ii) the adviser must possess and rely upon adequate substantiation to support the claims made through endorsements, testimonials and third-party ratings in the same manner the adviser would be required to do if it had made the representation directly? Given that the proposed general anti-fraud principles would apply to testimonials, endorsements, or third-party ratings in advertisements, are such explicit requirements necessary? Why or why not?
Do commenters believe that our
proposed disclosures appropriately reduce the risk that compensated testimonials, endorsements, and thirdparty ratings could mislead investors, and that any remaining risk is justified by the potential benefits of such statements? If not, should we instead prohibit compensated testimonials, endorsements, and third-party ratings in Retail or Non-Retail Advertisements? Why or why not? Alternately, should we require disclosure of the amount of compensation provided by or on behalf of the adviser for a testimonial, endorsement, or third-party rating? Why or why not?
In circumstances where advisers
themselves cannot provide the disclosures required for testimonials, endorsements, and third-party ratings in advertisements, should we require that the advisers form a reasonable belief that the advertisements contain the required clear and prominent disclosures, as proposed? Why or why not? In what types of situations should advisers be required to form such a reasonable belief?
Should we establish a de minimis
exception to disclosing that compensation was paid for a testimonial, endorsement, or third-party rating, if compensation is under a certain amount, similar to the ‘‘more than $100 in value’’ threshold imposed by FINRA? What would be the threshold and why is that threshold appropriate? Should such a de minimis be adjusted for inflation over time? How would firms value any non-cash compensation? Should any such exception be limited to Non-Retail Advertisements? Please explain your answer.
Do commenters believe it would or
would not be difficult for investment advisers to form a reasonable belief of whether a questionnaire or survey used to create a third-party rating is structured in a way that makes it easy for participants to provide favorable and unfavorable responses and is not designed to produce any predetermined result? Why or why not? Would an adviser more easily have access to, and editorial control over, questionnaires or surveys used in a rating when the adviser (or someone on its behalf) solicits a third-party to conduct the rating, as opposed to when an adviser is approached by a third-party to participate in its rating? If so, should our rule address this difference?
Should our rule prescribe how the
adviser should seek to form a reasonable belief that the questionnaire or survey used to create a third-party rating is structured in a way that makes it easy

181See also Proposed Amendments to Investment Company Advertising Rules, Release No. IC–25575 (May 17, 2002) [67 FR 36712 (May 24, 2002)] (‘‘Proposed Investment Company Advertising Release’’) (noting studies finding retail investors in mutual funds rely heavily on performance results in advertisements). 182For example, research has indicated that, with respect to mutual funds, there is ‘‘weak and controversial evidence that past performance has much, if any, predictive ability for future returns.’’ See Alan R. Palmiter & Ahmed E. Taha, Mutual Fund Performance Advertising: Inherently and Materially Misleading?, 46 Ga. L. Rev. 289, 300 (2012) (quoting Ronald T. Wilcox, Bargain Hunting or Star Gazing? Investors’ Preferences for Stock Mutual Funds, 76 J. Bus. 645, 651 (2003)). 183See Shaton, Maya (2017). ‘‘The Display of Information and Household Investment Behavior,’’ Finance and Economics Discussion Series 2017–
043. Washington: Board of Governors of the Federal
Reserve System, available at https:// www.federalreserve.gov/econres/feds/files/ 2017043pap.pdf. This paper examined the effects on Israeli households’ trade volume and riskportfolio allocation following a regulatory change in the presentation of retirement funds’ past performance. Specifically, starting in 2010, Israel’s retirement funds were prohibited from displaying returns for any period shorter than 12 months. The ‘‘default performance measure’’ of retirement funds changed from 1-month returns to 12-month returns, although investors were still able to view 1-month returns. This paper found that fund flow sensitivity to past 1-month returns significantly decreased after the regulatory change, which suggests the ‘‘default performance measure’’ could have been a significant factor in their investment decisions. 184See Proposed Investment Company Advertising Release, supra footnote 181 (proposing amendments to rule 482 and citing concerns that that some funds, when advertising their performance, may resort to techniques that create unrealistic investor expectations or may mislead potential investors); see also Anametrics Investment Management, SEC Staff No-Action Letter (Apr. 5,
1977) (indicating the staff’s view that ‘‘[i]nformation
concerning performance is misleading if it implies something about, or is likely to cause an inference to be drawn concerning, the experience of advisory clients, the possibilities of a prospective client having an investment experience similar to that which the performance data suggests was enjoyed by the adviser’s clients, or the advisor’s [sic] competence when there are additional facts known to the provider of the information, or which he ought to know, which if also provided would cause the implication not to arise or prevent the inference being drawn.’’). 185For example, some investors may hire or otherwise have access to investment personnel that analyze and conduct due diligence of investments and investment opportunities based on extensive information collected from a variety of sources. 186See Advertising by Investment Companies, Release No. IC–16245 (Feb. 2, 1988) [53 FR 3868 (Feb. 10, 1988)] (adopting specific rules regarding the advertising of performance because of Commission concerns that investors could not compare performance claims because no prescribed methods of calculating fund performance existed (except for money market funds), and because funds were being advertised on the basis of different types of performance data). 187See 17 CFR 230.482; see also Final Investment Company Advertising Release, supra footnote 57, at 57760 (‘‘Like most issuers of securities, when an investment company (‘fund’) offers its shares to the for participants to provide favorable and unfavorable responses and is not designed to produce any predetermined result? For example, should an adviser be required to conduct due inquiry (e.g., obtaining a representation from the third-party about the structure of the questionnaire, or obtaining copies of the questionnaires and maintaining them in their books and records)? Why or why not?

Are there additional disclosures
that might provide investors with useful context to evaluate the merits of a thirdparty rating? For example, would it be useful for investors to know the number of survey participants or the percentage of participating advisers who received each designation or rating? Should investment advisers be required to disclose the criteria upon which the rating was based, including, for example: (i) Assets under management; (ii) performance (both realized and unrealized); (iii) number of years in operation; or (iv) size of the adviser based on other metrics such as number of employees or number of offices?
Are the proposed disclosure
requirements for third-party ratings sufficiently broad to capture references to independent third-party ratings, regardless of whether such ratings are based entirely, or in part, on investor surveys or questionnaires, rather than other analysis (e.g., performance)?

Performance Advertising
Advertisements containing performance results (‘‘performance advertising’’) can be a useful source of information for investors when such advertisements are presented in a manner that is neither false nor misleading. An investment adviser advertising performance results typically does so to demonstrate its competence and experience and to provide evidence of how the adviser’s strategies and methods have worked in the past. A prospective investor may reasonably wish to see performance results attributable to an adviser that the prospective investor may consider hiring. Performance advertising would be subject to the proposed rule’s general prohibitions. These prohibitions would address the risk of performance advertising containing any untrue statements of material fact or being otherwise materially misleading. Performance advertising raises special concerns, however, that warrant additional requirements and restrictions under the proposed rule. In particular, the presentation of performance could lead reasonable investors to unwarranted assumptions and thus would result in a misleading advertisement. For example, a prospective investor could reasonably believe that the advertised performance results are similar to those that the investor could achieve under the adviser’s management. We believe that prospective investors may rely particularly heavily on advertised performance results in choosing whether to hire or retain an investment adviser.181 This reliance may be misplaced to the extent that an investor considers past performance achieved by an investment adviser to be predictive of the results that the investment adviser will achieve for the investor.182 Similarly, we believe that investors may be influenced heavily by the manner in which past performance is presented. For example, recent research indicates that a change in the presentation of Israeli retirement funds’ past performance could have significantly affected households’ investment decisions.183 As a result, we believe there is a heightened risk that the presentation of performance results may be made in a manner that may mislead prospective investors, including by creating in those prospective investors unrealistic expectations.184 Further, we believe that certain types of performance advertising raise special concerns because of many prospective investors’ limited ability to analyze and verify the advertised performance due to a lack of access to analytical and other resources.185 In the absence of specific standards for computation and presentation such as those we have promulgated for RICs and BDCs,186 performance advertising allows investment advisers to take advantage of their access to the results and the underlying data and make specific choices over how to select and portray them. Investors without sufficient access to analytical resources may not be in a position to question or challenge how relevant or useful the advertised results are in light of the underlying
assumptions and limitations. Other, and potentially much greater, concerns are raised when advisers present hypothetical performance—that is, performance results that were not actually achieved by any portfolio of any client of the investment adviser— which typically reflects assumptions made by the adviser. The more assumptions the adviser uses in preparing the presentation, the more opportunities the adviser has to select assumptions to improve the result, and the better the investor must understand the assumptions and their effect on the result. Reflecting our concerns about the advertising of performance results, we have separately imposed particular requirements on such advertising by RICs and BDCs.187 Likewise, we are

public, its promotional efforts become subject to the advertising restrictions of the Securities Act. . . . The advertising restrictions of the Securities Act cause special problems for many investment companies. . . . In recognition of these problems, the Commission has adopted special advertising rules for investment companies. The most important of these is rule 482 under the Securities Act . . .’’); Securities Offering Reform for ClosedEnd Investment Companies, Release No. IC–33427 (Mar. 20, 2019) [84 FR 14448 (Apr. 10, 2019)]. 188Proposed rule 206(4)–1(a)(1). 189Proposed rule 206(4)–1(a)(3). 190 In some letters, our staff has stated that a failure to disclose certain information could be considered misleading. That information includes how material market conditions, advisory fee expenses, brokerage commissions, and the reinvestment of dividends affect the advertised performance results. See, e.g., Clover Letter. 191For example, an advertisement presenting performance results of a composite of portfolios targeting growth in international biotechnology companies might disclose whether those results were attributable to strong performance of a few large holdings or strong performance in the industry overall. 192Such disclosure could inform the audience that amounts other than those originally invested contributed (positively or negatively) to the overall performance. The reinvestment of dividends and other earnings may have a powerful compounding effect on investment performance, and the audience might infer something about the adviser’s abilities that is not true without such reinvestment. 193For example, such disclosure could include the effect of an increase in interest rates on the results or the fact that the broader market increased by a certain amount during the same period as used in the results. Advisers might also consider whether the audience has sufficient information to understand that absence of those particular market or economic conditions in the future could cause future performance to differ significantly. 194Such disclosure might alert the audience to the limitations of relying on performance data for investment decisions, as well as the relationship between rewards and risk. See also 17 CFR 230.482(b)(3)(i); Final Investment Company Advertising Release, supra footnote 57 (requiring certain RIC advertisements presenting performance figures to include a legend stating that past performance does not guarantee future results and that current performance may be lower or higher than the performance data quoted). 195Such disclosure might explain that the index has a different level of volatility, represents a fixed group of securities, is not managed, and involves no shorting activity. These material facts could provide a context for the audience to evaluate the significance of the comparison to the index. A favorable comparison to an index would not provide the audience with a clear assessment of the adviser’s value if the
favorable comparison is a result of factors related to the index and having nothing to do with the adviser. Similarly, a favorable comparison to an index may not be useful if the results presented reflect the adviser having taken on more risk of loss than by investing in the index. 196See, e.g., 17 CFR 230.482(b)(3)(i) (requiring legends containing specific disclosures in certain RIC advertisements including performance figures, including a disclosure that ‘‘past performance does not guarantee future results’’); see also 17 CFR 230.482(b)(1) (requiring specific statements about availability of additional information); 17 CFR 230.482(b)(2) (requiring specific legend); 17 CFR 230.482(b)(4) (requiring specific statement in advertisements for certain money market funds). 197See supra section I.A. 198Some research has called into question the utility of these standard disclaimers. See, e.g., Molly Mercer, Alan R. Palmiter, and Ahmed E. Taha, Worthless Warnings? Testing the Effectiveness of Disclaimers in Mutual Fund Advertisements, 7 J. Empirical Legal Stud. 429 (2010) (presenting the results of a controlled experiment that indicated that disclaimers required by rule 482 regarding the importance of advertised performance data did not reduce reliance on advertised past returns by participants in the experiment). 199We believe that investment advisers might include these disclosures in any performance advertising because in their absence the advertisement otherwise might violate the provisions of paragraph (a) of the proposed rule or the general anti-fraud provisions of the Federal securities laws. For example, the absence of disclosures such as those discussed above could result in an untrue or misleading implication about, or could reasonably be likely to cause an untrue or misleading inference to be drawn concerning, a material fact relating to the investment adviser, in violation of the proposed rule. See proposed rule 206(4)–1(a)(3). Similarly, the absence of these disclosures could constitute omissions of material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. See proposed rule 206(4)–1(a)(1); see also supra footnote 79 and accompanying text. 200See Clover Letter. proposing particularized requirements in the proposed rule, as discussed below. a. Application of the General Prohibitions to Performance Advertising Paragraph (a) of the proposed rule contains a list of advertising practices that we believe should be prohibited, rather than permitted subject to specified conditions, and these prohibitions would also apply to performance advertising. In particular, the proposed rule would prohibit an advertisement if it ‘‘omits to state a material fact necessary in order to make the statement made, in the light of the circumstances under which it was made, not misleading.’’ 188 The proposed rule would also prohibit an advertisement if it ‘‘include[s] an untrue or
misleading implication about, or [would] reasonably be likely to cause an untrue or misleading inference to be drawn concerning, a material fact relating to the investment adviser.’’ 189 We believe that investment advisers generally would include in their performance advertising certain disclosures to avoid these types of omissions, implications, and inferences. Such disclosures could provide important information and prompt the audience to seek additional information, resulting in improved investment decisions. We recognize that the Commission staff, in stating it would not recommend enforcement action regarding presentation of performance under the current rule, has discussed a number of disclosures that advisers may consider including in such a presentation.190 Accordingly, many investment advisers may already include such disclosures in their performance advertising or consider such disclosures to be useful in preparing performance advertising that is neither false nor misleading. These include disclosure of: (1) The material conditions, objectives, and investment strategies used to obtain the results portrayed; 191 (2) whether and to what extent the results portrayed reflect the reinvestment of dividends and other earnings; 192 (3) the effect of material market or economic conditions on the results portrayed; 193 (4) the possibility of loss; 194 and (5) the material facts relevant to any comparison made to the results of an index or other benchmark.195 We are not proposing to require these specific disclosures or a legend containing specified disclosures in advertisements presenting performance results.196 Instead, as discussed above, the proposed rule reflects a principles-based approach.197 In addition, we understand that requiring standard disclosures in all performance advertising prepared by investment advisers may be of limited utility to investors, given their diversity and the diversity of the advisory services they seek. That is, a set of standard disclosures, such as those we require in certain advertisements for RICs,198 may be either over-inclusive or under-inclusive for purposes of advertisements disseminated with respect to investment advisory services. In addition, we believe that requiring a list of disclosures that may not be properly tailored to the relevant services being offered or the performance being presented could result in a prospective investor receiving irrelevant information or being unable to determine which information is most relevant. We believe that advisers generally should evaluate the particular facts and circumstances of the advertised performance, including the assumptions, factors, and conditions that contributed to the performance, and include appropriate disclosures or other information such that the advertisement does not violate the prohibitions in paragraph (a) of the proposed rule or other applicable law.199 We request comment on the approach we are taking to disclosures in performance
advertising.

The proposed rule addresses some
disclosures by reference to the prohibitions in paragraph (a) of the proposed rule. As an alternative, should we require in rule text any specific disclosures or other information to be included in performance advertising? 200

201FINRA’s communications rule similarly distinguishes types of communications on the basis of audience, with more prescriptive content requirements applying to ‘‘correspondence’’ and ‘‘retail communications’’ than to ‘‘institutional communications.’’ See, e.g., FINRA rule 2210(d)(2); FINRA rule 2210(d)(3); and FINRA rule 2210(d)(4)(A). 202See infra section II.A.5.c.iv. Why or why not? Should we require any of the disclosures described above? For example, should we require disclosure of the material conditions, objectives, and investment strategies used to obtain the results portrayed; whether and to what extent the results portrayed reflect the reinvestment of dividends and other earnings; the effect of material market or economic conditions on the results portrayed; the possibility of loss; or the material facts relevant to any comparison made to the results of an index or other benchmark? Why or why not? Should our disclosure requirements differ based on the intended audience for the performance advertising?

Are there specific disclosures that
we should require to prevent performance advertising from being misleading—e.g., how material market conditions, advisory fee expenses, brokerage commissions, and the reinvestment of dividends affect the advertised performance results? If so, should we identify those and specifically require their disclosure?
Are there specific disclosures that
we should require to prevent prospective investors from placing too much importance on performance advertising? Should we require disclosures similar to or different from those required in RIC advertisements, such as a disclosure that past performance neither guarantees nor predicts future results, or a disclosure that past performance may not be an accurate indication of the investment adviser’s competence or experience?
If we adopt a rule that requires
specific disclosures, should we specify how those disclosures are presented? For example, should we specify the proximity of the disclosure to the claim it qualifies or other relevant information? Should we specify how prominent such disclosure should be— e.g., with respect to size, color, or use of graphics—in order to increase the likelihood that a prospective investor reviews the disclosure? Would specifying such characteristics impede investment advisers from using nonpaper media for advertising? Are there other elements of presentation that we should consider if we adopt a rule requiring specific disclosures?
Are there specific disclosures that
investment advisers include in their advertisements in order to comply with the current rule that they believe would be unnecessary in order to comply with the proposed rule?
Have investment advisers
experienced any specific compliance challenges in preparing and presenting appropriate disclosures for performance advertising? What types of compliance challenges and how might we address them in the proposed rule?
Are there specific disclosures that
should be required in presenting the performance results of separate accounts but not pooled investment vehicles? Or in presenting the performance results of pooled investment vehicles but not separate accounts? What sorts of issues do investment advisers face in advertising performance results of pooled investment vehicles that they do not face in advertising performance results of separate accounts? Should the proposed rule address those issues? And if so, how? Are there similar or other issues that would apply to presenting the performance results of other investment structures, for example side pockets of illiquid investments? b. Requirements for Gross and Net Performance We recognize that the audiences viewing an advertisement may have differing levels of access to analytical and other resources to analyze information in performance advertising. Based on our experience and outreach, we believe that some advertising practices that are likely to be misleading with respect to retail investors may not be misleading for investors with the resources to consider and analyze the performance information. We are therefore proposing certain requirements that are designed specifically to empower Retail Persons, as defined below, to understand better the presentation of performance results and the limitations inherent in such presentations. In particular, we are proposing to require advisers to include net performance results in any Retail Advertisements, as defined in the proposed rule, that include gross performance results. We are also proposing to require the performance results in Retail Advertisements to cover certain prescribed time periods. We believe these requirements will prevent investment advisers from presenting performance results in a way that is likely to mislead Retail Persons, including by creating unrealistic expectations or undue implications that the advertised performance will likely be achieved or is guaranteed to be achieved.
i. Proposed Definition of ‘‘Retail
Advertisement’’
Rather than establish a new qualification for investment advisers to use in determining whether a person has access to analytical and other resources for independent analysis of performance results, the proposed rule would rely on existing statutory and regulatory definitions. Specifically, the proposed rule distinguishes between advertisements for which an adviser has adopted and implemented policies and procedures reasonably designed to ensure that the advertisements are disseminated solely to qualified purchasers and certain knowledgeable employees (defined as ‘‘Non-Retail Advertisements’’ in the proposed rule) and all other advertisements (defined as ‘‘Retail Advertisements’’ in the proposed rule).201 The proposed rule would treat each investor in a pooled investment vehicle, including in a private fund, as a Retail Person or Non-Retail Person, depending on whether the investor is a qualified purchaser or knowledgeable employee. An investment adviser to a pooled investment vehicle would be required to ‘‘look through’’ the vehicle to its investors in order to comply with the proposed rule. If a pooled investment vehicle has as investors both Non-Retail Persons and Retail Persons, then the investment adviser could choose to disseminate a Retail Advertisement to the Retail Persons and a Non-Retail Advertisement to the Non-Retail Persons in the same pooled investment vehicle. Alternatively, to ensure that all investors receive the same information, the investment adviser could choose to disseminate only a Retail Advertisement to all investors in the pooled investment vehicle. We believe this approach is appropriate to address the difference in access to analytical and other resources among types of investors. That is, we seek to differentiate between types of investors, and not types of advisory services or investment opportunities. The proposed rule would require certain additional disclosures for Retail Advertisements. Specifically, an adviser would be required to include net performance in certain Retail Advertisements and to present performance results using 1-, 5-, and 10- year period presentations. As discussed below, an adviser would also be subject to certain additional conditions when providing hypothetical performance.202
ii. Proposed Definition of ‘‘Non-Retail
Advertisement.’’
The proposed rule would define a ‘‘Non-Retail Advertisement’’ to mean

203Proposed rule 206(4)–1(e)(7).
204See proposed rule 206(4)–1(e)(8)(i). See 15 U.S.C. 80a–2(a)(51). 205See proposed rule 206(4)–1(e)(8)(ii). See rule 3c–5 under the Investment Company Act. For purposes of the proposed rule, a knowledgeable employee would be treated as a Non-Retail Person with respect to a company that would be an investment company but for the exclusion provided by section 3(c)(7) of the Investment Company Act, if the ‘‘knowledgeable employee’’ otherwise satisfied the terms of that definition. See infra footnotes 214–216 and accompanying text. 206See generally 15 U.S.C. 80a–3(c)(7). Section 3(c)(7) excludes from the definition of ‘‘investment company’’ an issuer that is not making a public offering of its securities and is owned exclusively by qualified purchasers. See Privately Offered Investment Companies, Release No. IC–22597 (Apr. 3, 1997) [62 FR 17512 (Apr. 9, 1997)] (‘‘Qualified Purchaser Adopting Release’’) (indicating that qualified purchasers are the types of investors that Congress determined do not need the protections of the Investment Company Act); see also 2019 Concept Release, supra footnote 19. 207See 15 U.S.C. 80a–2(a)(51). ‘‘Investments’’ is defined in rule 2a51–1 under the Investment Company Act and generally includes securities and other assets held for investment purposes. 17 CFR 270.2a51–1. See Qualified Purchaser Adopting Release, supra footnote 206, at 17515 (noting the Commission’s belief that the legislative history of the ‘‘qualified purchaser’’ standard suggested that Congress intended ‘‘investments’’ for these purposes to be assets held for investment purposes and having a nature that ‘‘indicate[s] that [the assets’] holder has the investment experience and sophistication necessary to evaluate the risks of investing in unregulated investment pools,’’ such as 3(c)(7) funds). 208See Private Investment Companies, Release No. IC–22405 (Dec. 18, 1996) [61 FR 68102 (Dec. 26, 1996)] (referring to legislative history indicating that funds relying on the exclusion under section 3(c)(7) of the Investment Company Act ‘‘are to be limited to investors with a high degree of financial sophistication who are in a position to appreciate the risks associated with investment pools that do not have the protections afforded by the Investment Company Act’’). Issuers relying on the exclusion under section 3(c)(7) of the Investment Company Act cannot make or propose to make a public offering of securities, a limitation that the Commission stated ‘‘appears to reflect Congress’s concerns that unsophisticated individuals not be inadvertently drawn into’’ such a vehicle. Qualified Purchaser Adopting Release, supra footnote 206, at n. 5. 209Proposed rule 206(4)–1(c)(2)(i) (prohibiting a Retail Advertisement from presenting gross performance unless it also presents net performance with at least equal prominence and in a format designed to facilitate comparison). 210See Qualified Purchaser Adopting Release, supra footnote 206, at 17514 (‘‘The Commission believes
that it is generally appropriate to treat [QIBs] as qualified purchasers for section 3(c)(7) in light of the high threshold of securities ownership that these institutions must meet under rule 144A, a threshold much higher than the investment ownership threshold required for qualified purchasers under section 2(a)(51)(A) of the [Investment Company Act].’’) A QIB generally includes certain institutions that, in the aggregate, own and invest on a discretionary basis at least $100 million in securities of issuers that are not affiliated with such institutions. See generally 17 CFR 230.144A(a)(1). Banks and other specified financial institutions must also have a net worth of at least $25 million. A QIB is a person to whom persons other than the issuer may sell securities that are not registered under the Securities Act pursuant to a safe harbor exemption contained in rule 144A. 211Although a QIB is generally a qualified purchaser, there are two exceptions. One exception requires a dealer (other than a dealer acting for a QIB in a riskless principal transaction) to own and invest on a discretionary basis a greater amount of securities of unaffiliated issuers to be a qualified purchaser than to be a QIB. 17 CFR 270.2a51– 1(g)(1)(i). The Commission established this greater amount for qualified purchasers in order to coordinate the QIB definition with the statutory definition of ‘‘qualified purchaser.’’ See Qualified Purchaser Adopting Release, supra footnote 206, at
17514. The other exception excludes self-directed
employee benefit plans or trust funds holding the assets of employee benefit plans from the qualified purchaser definition unless the beneficiaries making the investment decisions are themselves qualified purchasers. 17 CFR 270.2a51–1(g)(1)(ii). The Commission established this ‘‘look through’’ requirement citing legislative history indicating that the relevant factor was the amount of investments owned by the person making the investment decision. See Qualified Purchaser Adopting Release, supra footnote 206, at 17519. 212 17 CFR 270.2a51–1(h). In adopting this ‘‘reasonable belief’’ prong of rule 2a51–1, the Commission noted that it was reflecting the approach of other rules establishing ‘‘certain categories of sophisticated investors’’ for engaging in transactions and allowed those categories to focus on whether an issuer ‘‘reasonably believes’’ that a prospective investor satisfies certain criteria. Qualified Purchaser Adopting Release, supra footnote 206, at 17519. any advertisement for which an adviser has adopted and implemented policies and procedures reasonably designed to ensure that the advertisement is disseminated solely to non-retail persons.’’ 203 ‘‘Non-Retail Person’’ would be defined as two types of investors: ‘‘qualified purchasers,’’ 204 and ‘‘knowledgeable employees.’’ 205 Qualified purchasers are investors that are eligible to invest in private funds such as hedge funds and private equity funds that rely on section 3(c)(7) of the Investment Company Act. The statute presumes them to have the financial sophistication to invest in these types of investment vehicles, which, because they are not registered, do not provide the protections of the Investment Company Act.206 The ‘‘qualified purchaser’’ definition generally captures entities with $25 million in ‘‘investments’’ and natural persons with $5 million in ‘‘investments,’’ as defined by rule 2a51– 1 under the Investment Company Act.207 As we have stated previously, the ‘‘qualified purchaser’’ definition articulates the types of investors that ‘‘are likely to be able to evaluate on their own behalf matters such as the level of a fund’s management fees, governance provisions, transactions with affiliates, investment risk, leverage and redemption or withdrawal rights.’’ 208 We believe that treating a qualified purchaser as a Non-Retail Person would provide an appropriate standard for purposes of determining whether the person has sufficient resources to consider and analyze certain types of performance information without additional disclosures and conditions. We understand also that qualified purchasers are regularly in a position to negotiate the terms of their arrangements with investment advisers, whether as separate account clients or as fund investors. Their access to analytical and other resources generally provides them with the opportunity to ask questions of, and receive information from, the appropriate advisory personnel, and enables them to assess that information
before making investment decisions. Accordingly, if an adviser has policies and procedures reasonably designed to ensure that certain advertisements are disseminated solely to qualified purchasers, we believe it would be appropriate to apply fewer requirements regarding the presentation of performance in such advertisements.209 In treating as Non-Retail Persons any qualified purchaser, the proposed rule would take into account the provisions of rule 2a51–1 under the Investment Company Act, which clarifies when certain investors may be deemed ‘‘qualified purchasers.’’ For example, rule 2a51–1(g)(1) clarifies the circumstances under which certain qualified institutional buyers (QIB) under rule 144A under the Securities Act may be deemed ‘‘qualified purchasers.’’ 210 The proposed rule would adopt this approach and treat any such QIB as a Non-Retail Person to which Non-Retail Advertisements could be disseminated.211 Rule 2a51–1(h) also defines ‘‘qualified purchaser’’ to include any person that the issuer or a person acting on its behalf ‘‘reasonably believes’’ meets such definition.212 The proposed rule would adopt this approach as well and allow an investment adviser to provide a NonRetail Advertisement to an investor that the investment adviser reasonably believes is a qualified purchaser. Rule 2a51–1 has existed for twenty years, and we believe that many investment advisers have developed policies and procedures to implement this ‘‘reasonable belief’’ provision. Accordingly, we believe that advisers would utilize or modify those same policies and procedures as necessary to comply with the proposed rule. We recognize, however, that the application of this ‘‘reasonable belief’’ provision might differ for evaluating the audience for advertisements, where often the adviser has not yet had an opportunity

213As long as a person satisfies the definition of ‘‘knowledgeable employee’’ with respect to the relevant Section 3(c)(7) Company, that person could be treated as a Non-Retail Person to whom a NonRetail Advertisement with respect to that Section 3(c)(7) Company could be disseminated under the proposed rule. 214See Qualified Purchaser Adopting Release, supra footnote 206, at 17524. 215The first prong of the ‘‘knowledgeable employee’’ definition applies to any Executive Officer (as defined in 17 CFR 270.3c–5(a)(3)), director, trustee, general partner, advisory board member, or person serving in a similar capacity. 17 CFR 270.3c–5(a)(4)(i). 216The second prong of the ‘‘knowledgeable employee’’ definition applies to employees and Affiliated Management Persons (as defined in 17 CFR 270.3c–5(a)(1)). See 17 CFR 270.3c–5(a)(4)(ii). Employees who do not perform ‘‘solely clerical, secretarial or administrative functions’’ with regard to the Section 3(c)(7) Company or its investments may qualify under this prong of the definition if they have participated in the investment activities of the Section 3(c)(7) Company or its investments and have been performing their functions or duties ‘‘or substantially similar’’ functions or duties for at least 12 months. 17 CFR 270.3c–5(a)(4)(ii). 217 In general, investors who meet the ‘‘accredited investor’’ definition are eligible to invest in private funds, such as hedge funds and private equity funds, that are excluded from the definition of ‘‘investment company’’ in reliance on section 3(c)(1) of the Investment Company Act, and investors who meet the ‘‘qualified client’’ definition are eligible to be charged a performance-based fee by their investment advisers. Section 3(c)(1) excludes from the definition of ‘‘investment company’’ an issuer that is not making (and does not presently propose to make) a public offering of its securities and whose outstanding securities are beneficially owned by not more than one hundred persons. See 2019 Concept Release, supra footnote 19. 218 17 CFR 230.501(a)(5). See also 15 U.S.C. 77b(a)(15(ii) (defining certain institutions as ‘‘accredited investors’’ and directing the Commission to establish additional definitions ‘‘on the basis of such factors as financial sophistication, net worth, knowledge, and experience in financial matters, or amount of assets under management’’). 219 17 CFR 230.501(a)(6). The accredited investor standards are measured ‘‘at the time of the sale of the securities.’’ 17 CFR 230.501(a). Natural persons serving as directors, executive officers, or general partners of an issuer, or of a general partner of an issuer, also qualify as ‘‘accredited investors.’’ 17 CFR 230.501(a)(4). 220Net Worth Standard for Accredited Investors, Release No. IA–3341 (Dec. 21, 2011) [76 FR 81793, 81794 (Dec. 29, 2011)]. When adopting the definition, the Commission agreed that ‘‘accredited investors can fend for themselves without the protections afforded by registration’’ of
securities offerings. Proposed Revision of Certain Exemptions from the Registration Provisions of the Securities Act of 1933 for Transactions Involving Limited Offers and Sales, Release No. 33–6339 (Aug. 7,
1981) [46 FR 41791 (Aug. 18, 1981)], at 41802. See
also 2019 Concept Release, supra footnote 19; Accredited Investor Staff Report, supra footnote 17, at 88 (‘‘The accredited investor concept in Regulation D was designed to identify, with brightline standards, a category of investors whose financial sophistication and ability to sustain the risk of loss of investment or ability to fend for themselves render the protections of registration unnecessary.’’). 221 17 CFR 230.506(b)(2)(ii) (requiring that any purchaser in a rule 506 offering who is not an accredited investor must possess, or be reasonably believed by the issuer to possess, these characteristics, whereas such a verification is not required for any purchaser who is an accredited investor). If securities are sold to any nonaccredited investors, specified information requirements apply; in contrast, accredited investors may purchase such securities without receiving specific information. See 17 CFR 230.502(b). A purchaser may rely on his or her purchaser representative(s) to demonstrate these characteristics. 17 CFR 230.506(b)(ii). to perform the due diligence that might be common for evaluating whether an investor is qualified to invest. Accordingly, we request comment below on any additional procedures or standards we should require in the rule text for evaluating whether such advertisements are directed only to Non-Retail Persons. The proposed rule also would treat as a Non-Retail Person any ‘‘knowledgeable employee,’’ as defined in rule 3c–5 under the Investment Company Act, with respect to a company that would be an investment company but for the exclusion provided by section 3(c)(7) of the Investment Company Act (a ‘‘Section 3(c)(7) Company’’) that is advised by the investment adviser.213 The ‘‘knowledgeable employee’’ standard was adopted in order to allow certain employees of a Section 3(c)(7) Company and certain of its affiliates to acquire securities issued by the fund even though they do not meet the definition of ‘‘qualified purchaser.’’ 214 The ‘‘knowledgeable employee’’ definition requires an employee to have a significant amount of investment experience in order to qualify—whether the employee has oversight or management responsibility with respect to the Section 3(c)(7) Company or its affiliate,215 or participates in the investment activities of the Section 3(c)(7) Company in connection with their regular functions or duties.216 We believe that a ‘‘knowledgeable employee’’ has the relevant investment experience to enable him or her to evaluate a Non-Retail Advertisement with respect to the Section 3(c)(7) Company for which he or she satisfies the definition of ‘‘knowledgeable employee’’. We believe that, as employees actively participating in the investment activities of the Section 3(c)(7) Company or its affiliates, knowledgeable employees will be in a position to bargain for and obtain additional information or ask questions of advisory personnel to help them consider and analyze the type of performance information
available in a Non-Retail Advertisement. In addition, because many Section 3(c)(7) Companies already include knowledgeable employees as investors, and investment advisers to Section 3(c)(7) Companies may seek to provide these investment opportunities to their knowledgeable employees, we believe that it is appropriate to permit those employees to be treated as Non-Retail Persons to whom Non-Retail Advertisements with respect to the relevant Section 3(c)(7) Companies could be disseminated under the proposed rule. We considered treating as Non-Retail Persons other categories of investors meeting other standards existing in the Federal securities laws, but are not proposing to include those categories. Three such standards are: (a) ‘‘Accredited investor,’’ as defined in rule 501(a) of Regulation D under the Securities Act; (b) ‘‘qualified client,’’ as defined in rule 205–3(d)(1) under the Advisers Act; and (c) investors that do not meet the definition of ‘‘retail investor’’ for purposes of the Form CRS relationship summary required by rule 204–5 under the Advisers Act. These definitions were adopted by the Commission for particular purposes and including these categories as Non-Retail Persons may not achieve the goals of the proposed rule.217 The definition of ‘‘accredited investor’’ generally includes entities with at least $5 million in total assets and natural persons with at least $1 million in net worth 218 or income in excess of $200,000 (or $300,000 jointly with a spouse) in each of the two most recent years with a reasonable expectation of reaching the same income level in the current year.219 Accredited investors are ‘‘persons who can bear the economic risk of an investment in unregistered securities, including the ability to hold unregistered (and therefore less liquid) securities for an indefinite period and, if necessary to afford a complete loss of such investment.’’ 220 The accredited investor standard serves as a proxy for being ‘‘capable of evaluating the merits and risks of the prospective investment’’ without the specific protections afforded by the Securities Act with respect to public offerings of securities.221 The ‘‘accredited investor’’ standard therefore seeks to identify which investors are able to make certain types of investments in unregistered offerings and balances the considerations of investor choice in investment opportunities and investor ability to bear risks. In contrast, the standard for Non-Retail Person under the proposed rule seeks to provide a proxy for an investor’s ability to access the kinds of resources and analyze information that would allow the investor to subject the

222The ‘‘accredited investor’’ definition at one time included a proxy for bargaining power—an amount of securities being purchased in an offering—on the premise that ‘‘individuals capable of investing large amounts of capital in an offering should be considered accredited investors because of their bargaining power.’’ Accredited Investor Staff Report, supra footnote17, at 17. We rescinded that provision in part out of a concern that it ‘‘[did] not assure sophistication or access to information.’’ Regulation D Revisions, Release No. 33–6758 (Mar. 3, 1988) [53 FR 7866 (Mar. 10, 1988)] (emphasis added). 223See generally rule 205–3(d)(1). 224A qualified client is also a person who is eligible to invest in a pooled investment vehicle that is managed by a registered investment adviser and that compensates the adviser based on a share of capital gains on, or capital appreciation of, the funds of the pooled investment vehicle. 225 Investment Adviser Performance Compensation, Release No. IA–3372 (Feb. 15, 2012) [77 FR 10361 (Feb. 22, 2012)]. 226 Id. 227Form CRS is a relationship summary that provides succinct information about the relationships and services offered to retail investors (as defined in rule 204–5(d)(2)), fees and costs that retail investors will pay, specified conflicts of interest and standards of conduct, and disciplinary history, among other things. See Form CRS Relationship Summary; Amendments to Form ADV, Release No. IA–5247 (June 5, 2019) [84 FR 33492 (Jul. 12, 2019)] (‘‘Form CRS Release’’). Form CRS must be delivered by registered investment advisers to each retail investor at specified times. See rule 204–5. 228Rule 204–5(d)(2). ‘‘Retail investor’’ for this purpose also includes the ‘‘legal representative’’ of such natural persons. Id. We have established definitions by reference to ‘‘natural persons’’ in other contexts as well. For example, we have defined ‘‘retail money market funds’’ to mean, in
part, funds the beneficial owners of which are only
natural persons. See 17 CFR 270.2a–7(a)(21). 229See Form CRS Release, supra footnote 227 (‘‘We continue to believe that the retail investor definition should not distinguish based on a net worth or other asset threshold test.’’). In addition, the definition of ‘‘retail client’’ in Form CRS reflected the definition used in the statute that authorized adoption of that form. See id. (‘‘[S]ection 913 of the Dodd-Frank Act defines ‘retail customer’ to include natural persons and legal representatives of natural persons without distinction based on assets or net worth.’’). 230See Form CRS Release, supra footnote 227. 231See proposed rule 206(4)–1(e)(7). 232We have defined ‘‘retail money market fund’’ to mean ‘‘a money market fund that has policies and procedures reasonably designed to limit all beneficial owners of the fund to natural persons.’’ See 17 CFR 270.2a–7(a)(21); see also Money Market Fund Reform; Amendments to Form PF, Release No. IA–3879 (Jul. 23, 2014) [79 FR 47736 (Aug. 14, Continued information presented in Non-Retail Advertisements to independent scrutiny without the aid of additional disclosures or conditions.222 We believe that analyzing certain performance information requires access to more specialized and extensive analytical and other resources than would be required to evaluate the merits and risks of an investment in an unregistered offering. In our view, accredited investors are less likely to have the kind of access to these resources and information. We also considered treating as a NonRetail Person any person meeting the definition of ‘‘qualified client.’’ The definition of ‘‘qualified client’’ generally includes entities and natural persons having at least $1 million under the management of an investment adviser or a net worth (jointly with a spouse in the case of a natural person) of more than $2.1 million.223 A qualified client is a person with whom a registered investment adviser may enter into an advisory contract that provides for compensation based on a share of capital gains on, or capital appreciation of, the funds of a client (also known as performance compensation or performance fees).224 Congress generally prohibited these compensation arrangements in 1940 to protect advisory clients from arrangements that Congress believed might encourage advisers to take undue risks with client funds to increase advisory fees.225 However, clients having the ‘‘financial experience and ability to bear the risks of performance fee arrangements,’’ including the ‘‘risks of loss that are inherent’’ in those arrangements,226 may enter into them. In our view, this status does not necessarily mean that qualified clients generally have the kind of access to more specialized and extensive analytical resources necessary to obtain and analyze information sufficient to evaluate the types of performance information that would be permitted only in a Non-Retail Advertisement without additional requirements. While we recognize that some
qualified clients and accredited investors may have the necessary access to resources, we believe that the qualified purchaser and knowledgeable employee standards are the most appropriate standards to distinguish the persons having sufficient access to analytical and other resources to evaluate the complex and nuanced performance information that would be permitted only in Non-Retail Advertisements under the proposed rule without additional requirements. In balancing access to analytical and other resources needed to evaluate this type of information effectively, with its utility to financially sophisticated investors, we have determined, in our judgment, to propose the qualified purchaser and knowledgeable employee standards as our dividing line for Non-Retail Persons. Finally, we also considered treating as a Non-Retail Person any person that falls outside the definition of ‘‘retail investor’’ under Form CRS.227 We believe that this definition of ‘‘retail investor’’ is inappropriate for purposes of the proposed rule as it does not take into account whether an investor has the analytical or other resources to consider and analyze the type of performance information that the proposed rule would permit in NonRetail Advertisements. The definition of ‘‘retail investor’’ for purposes of Form CRS generally includes all natural persons who seek to receive or receive services primarily for personal, family, or household purposes.228 This definition imposes no other requirements and does not distinguish between natural persons other than the purposes for which advisory services are sought.229 Form CRS is designed to provide ‘‘clear and succinct disclosure regarding key aspects of available brokerage and advisory relationships’’ that would benefit ‘‘all individual investors.’’ 230 In contrast, the proposed rule is designed to provide additional disclosures for investors where there is a heightened risk of performance results being misused or misleading if the results are not subject to scrutiny and further analysis. We believe that natural persons who are qualified purchasers or knowledgeable employees are likely to have the analytical or other resources to consider and analyze these presentations of performance. Accordingly, we do not believe that falling outside the Form CRS definition would serve as a proxy for the access to analytical or other resources that we believe are necessary for persons receiving Non-Retail Advertisements.
iii. Reasonably Designed Policies and
Procedures
The proposed rule would define ‘‘Non-Retail Advertisement’’ to mean any advertisement for which an adviser ‘‘has adopted and implemented policies and procedures reasonably designed’’ to ensure that the advertisement is disseminated solely to qualified purchasers or knowledgeable employees.231 Such policies and procedures would be reasonably designed to ensure that Non-Retail Advertisements are disseminated by or on behalf of the investment adviser solely to qualified purchasers and knowledgeable employees. We would not prescribe the ways in which an investment adviser may seek to satisfy the ‘‘Non-Retail Advertisement’’ definition, including how the investment adviser will establish a reasonable belief that persons receiving the advertisement are qualified purchasers or knowledgeable employees. The proposed rule’s use of policies and procedures to establish a defined audience is an approach we have used previously.232 We believe

2014)] (‘‘SEC Money Market Fund Reform Release’’), at nn. 715–716 and accompanying text. 233For example, such policies and procedures might reflect the methods by which the investment adviser, as the adviser to the Section 3(c)(7) Company, identifies all directors and trustees of the
Section 3(c)(7) Company, who would be
‘‘knowledgeable employees’’ by the terms of rule 3c–5 under the Investment Company Act. See 17 CFR 270.3c–5(a)(4)(i). 234See rule 206(4)–7(b); see also Compliance Program Adopting Release, supra footnote 33 (‘‘Annual reviews are integral to detecting and correcting any gaps in the [compliance] program before irrevocable or widespread harm is inflicted upon investors.’’). 235Proposed rule 206(4)–1(c)(2)(i)(A). 236See proposed rule 206(4)–1(e)(6) (defining ‘‘net performance’’). 237Proposed rule 206(4)–1(a)(6). 238 Investment advisers may be particularly willing to spend time and resources in responding to requests for information from prospective investors when those prospective investors have investment portfolios that are large enough to justify the advisers’ efforts or when those prospective investors have investment or finance experience that enables them to analyze information efficiently. Our staff has indicated that it would not recommend enforcement action under the current rule where an investment adviser would present gross performance and not net performance in one-on-one presentations to ‘‘certain prospective clients, e.g., wealthy individuals, pension funds, universities and other institutions, who have sufficient assets to justify the cost of the presentations.’’ ICI Letter. The proposed rule similarly would assume that the access to resources of an advertisement’s audience can play a role in determining the extent to which an advertisement may be misleading. 239For example, investors in new private funds may negotiate with the private fund’s investment adviser regarding which private fund expenses will be borne by the private fund and its investors and which private fund expenses will be borne by the adviser. 240Proposed rule 206(4)–1(c)(1)(i). 241See proposed rule 206(4)–1(c)(2)(i)(B). that this approach would provide investment advisers with the flexibility to develop policies and procedures that best suit its investor base and its operations, including any use of intermediaries to disseminate advertisements. Such policies and procedures might include disseminating Non-Retail Advertisements to persons that the investment adviser knows are qualified purchasers on the basis of the amount of ‘‘investments’’ held by that person in an account managed by the investment adviser. Policies and procedures for purposes of the proposed rule might take into account any policies and procedures that an adviser may have adopted as a result of rule 2a51–1(h) under the Investment Company Act, which defines ‘‘qualified purchaser’’ to include any person that the issuer or a person acting on its behalf reasonably believes meets such definition. Similarly, these policies and procedures might reflect the ability of an investment adviser to a particular
Section 3(c)(7) Company to determine
which employees satisfy the definition of ‘‘knowledgeable employee’’ with respect to that Section 3(c)(7) Company.233 Regardless of the specific policies and procedures followed by an investment adviser in reasonably concluding that persons receiving Non-Retail Advertisements are qualified purchasers and knowledgeable employees, an adviser must periodically review the adequacy of such policies and procedures and the effectiveness of their implementation.234 Accordingly, such periodic reviews would assist investment advisers in detecting and correcting any gaps in their policies and procedures, including an adviser’s ability to reasonably conclude that its Non-Retail Advertisements are being disseminated solely to qualified purchasers and knowledgeable employees.
iv. Presentation of Gross and Net
Performance
The proposed rule would prohibit in any Retail Advertisement any presentation of gross performance unless the advertisement also presents net performance with at least equal prominence and in a format designed to facilitate comparison with gross performance.235 Gross performance does not indicate all fees and expenses that the adviser’s existing investors have borne or that prospective investors would bear, which can be relevant to an evaluation of the investment experience of the adviser’s advisory clients and investors in pooled investment vehicles advised by the investment adviser. We believe the proposed requirement is reasonably designed to prevent Retail Persons from being misled by the presentation of gross performance. Presenting gross performance alone may imply that investors received the full amount of the presented returns, when in fact the fees and expenses paid to the investment adviser and other service providers would reduce the returns to investors. Presenting gross performance alone may be misleading as well to the extent that amounts paid in fees and expenses are not deducted and thus not compounded in calculating the returns. We believe that requiring Retail Advertisements that show performance results to present net performance would help illustrate for Retail Persons the effect of fees and expenses on the advertised performance results.236 In particular, we believe that the burden of demonstrating the compounding effect of fees and expenses belongs properly on the investment advisers, rather than requiring Retail Persons to make that determination on their own. Advertisements presenting both gross performance and net performance would remain subject to the proposed rule’s other requirements as well, including the prohibition on including or excluding performance results, or presenting performance time periods, in a manner that is not fair and balanced.237 We believe that Non-Retail Persons do not need this requirement because they have access to analytical and other resources, and therefore the capacity to evaluate gross performance as advertised. Based on staff outreach, we also believe that Non-Retail Persons often do not find advisers’ presentation of net performance useful and prefer to apply to gross performance their own assumptions and calculations of fees and expenses on performance presentations. Non-Retail Persons have access to analytical and other resources that allow them to calculate a net performance figure that is relevant to them.238 Access to analytical and other resources may enable these persons to scrutinize and to assess independently the information provided in advisers’ advertisements and allow these persons to decide whether to obtain or retain the offered or promoted services. In addition, we believe Non-Retail Persons are regularly in a position to bargain for and obtain additional information when considering performance information in an advertisement and to negotiate the terms of their
agreements with investment advisers, including the amount of fees and expenses that they may reasonably expect to incur.239 To the extent that those negotiated fees and expenses are different from those that the investment adviser would otherwise reflect in its presentation of net performance, we believe that Non-Retail Persons would be able to calculate the effect on performance of those negotiated fees and expenses. As discussed below, however, we are proposing to require advisers to provide or offer to provide promptly a schedule of fees and expenses to ensure that NonRetail Persons receiving gross performance calculations will receive such information and may calculate net performance if they desire it.240 The proposed rule would require advisers to calculate both gross performance and net performance over the same time period and using the same type of return and methodology.241 This proposed

242 In contrast, in Form N–1A, we prescribe the calculation of performance for open-end management investment companies because the performance relates to a single type of investment product. 243See supra footnote 199 and accompanying text. 244For example, if an investment adviser calculates the performance of a portfolio in part by deducting the fees and expenses charged when buying, selling, or exchanging investments (including, if applicable, brokerage commissions and exchange fees), but deducts no other fees or expenses, then such performance would be ‘‘gross performance’’ under the proposed rule. In order to present that gross performance in a Retail Advertisement, the advertisement must also present ‘‘net performance.’’ Because the proposed definition of ‘‘net performance’’ includes the deduction of ‘‘all fees and expenses’’ (subject to the proposed modifications described in the definition), the calculation of net performance would necessarily require the deduction of those types of trading expenses. 245See infra section II.A.5.c.ii (discussing the presentation of net performance with respect to representative performance). 246This proposed definition is identical to the definition used in the Global Investment Performance Standards adopted by the CFA Institute. See Global Investment Performance Standards (GIPS), 2010, available at: https:// www.gipsstandards.org/standards/pages/current edition.aspx. The 2020 GIPS standards will be effective on January 1, 2020. 247Proposed rule 206(4)–1(e)(6)(i). 248That is, the audience would not be misled into believing that investors received better returns than they actually did, because the advertised net performance would be lower than or equal to the net performance calculated using actual fees and expenses. 249Proposed rule 206(4)–1(e)(6)(ii). requirement is designed to help ensure that net performance effectively conveys to the audience information about the effect of fees and expenses on the relevant performance. A calculation of net performance over a different time period or using a different type of return or methodology would not necessarily provide information about the effect of fees and expenses. That is, if differences in calculation were permitted, then any contrast between gross performance and net performance could be attributed simply to those differences and not demonstrate the effect of the deducted fees or expenses. At the same time, the proposed rule does not prescribe any particular calculation of gross performance or net performance. Because of the variation among types of advisers and investments about which they provide advice, we believe prescribing the calculation could unduly limit the ability of advisers to present performance information that they believe would be most relevant and useful to an advertisement’s audience.242 We understand, however, that an absence of prescribed standards may increase the risk of different advisers presenting different performance figures
that are not comparable. Accordingly, we request comment below on any additional guidance we should provide or requirements we should specify in rule text regarding such calculations. Under the prohibitions in paragraph (a) of the proposed rule, it would be misleading to present certain performance information without providing appropriate disclosure or other information about gross performance or net performance, taking into account the particular facts and circumstances of the advertised performance.243 For example, to avoid misleading portrayals of performance, advisers generally should describe the type of performance return being presented. Depending on the facts and circumstances, this disclosure may be necessary to avoid misleading the audience as to the elements comprising the presented performance. For example, an advertisement may present the performance of a portfolio using a return that accounts for the cash flows into and out of the portfolio, or instead a return that does not account for such cash flows. In either case, an adviser generally should disclose what elements are included in the return presented so that the audience can understand, for example, how it reflects cash flow and other relevant factors, including the method of calculation and weighting of portfolios and returns in a composite. The proposed rule would define ‘‘gross performance’’ as ‘‘the performance results of a portfolio before the deduction of all fees and expenses that a client or investor has paid or would have paid in connection with the investment adviser’s investment advisory services to the relevant portfolio.’’ The proposed rule would define ‘‘net performance’’ to mean ‘‘the performance results of a portfolio after the deduction of all fees and expenses, that a client or investor has paid or would have paid in connection with the investment adviser’s investment advisory services to the relevant portfolio’’ and includes a nonexhaustive list of the types of fees and expenses to be considered in preparing net performance. This list includes, if applicable, advisory fees, advisory fees paid to underlying investment vehicles, and payments by the investment adviser for which the client or investor reimburses the adviser, and is meant to illustrate fees and expenses that clients or investors bear in connection with the services they receive. Under the proposed definitions, ‘‘net performance’’ would be calculated after deducting ‘‘all fees and expenses,’’ while ‘‘gross performance’’ might be calculated after deducting some (but not all) fees or expenses.244 The fees and expenses to be deducted in calculating net performance are those that an investor ‘‘has paid or would have paid’’ in connection with the services provided. That is, where hypothetical performance is permissibly advertised under the proposed rule, net performance should reflect the fees and expenses that ‘‘would have been paid’’ if the hypothetical performance had been actually achieved by an
actual portfolio.245 Both ‘‘gross performance’’ and ‘‘net performance’’ would be defined by reference to a ‘‘portfolio,’’ which would be defined as ‘‘an individually managed group of investments’’ and can include ‘‘an account or pooled investment vehicle.’’ 246 Once an adviser establishes the ‘‘portfolio’’ for which performance results are presented, the adviser would determine the fees and expenses borne by the owner of the portfolio and then deduct those to establish the ‘‘net performance.’’ The ‘‘net performance’’ definition allows an adviser to apply three possible modifications when it deducts the relevant fees and expenses. First, ‘‘net performance’’ may reflect the deduction of a model fee when doing so would result in performance figures that are no higher than if the actual fee had been deducted.247 In this case, the adviser may deduct the highest fee charged in respect of the portfolio giving rise to the performance and, accordingly, present performance that is lower than it would be if the actual fees had been deducted. We understand that advisers may choose this modification for the ease of calculating net performance. When an adviser advertises net performance that is no higher than that reflecting the deduction of actual fees, there appears to be little chance of the audience being misled.248 Second, ‘‘net performance’’ may reflect the deduction of a model fee that is equal to the highest fee charged to the relevant audience of the advertisement.249 For example, an adviser presenting performance information in a Retail Advertisement may choose to present net performance using a model fee that is equal to the highest fee charged to a Retail Person. This modification could also allow the adviser to calculate net performance easily, while using a fee that is relevant to the target audience. We believe this presentation of performance results

250For example, an adviser managing several accounts, each using the same investment strategy, could present in a Retail Advertisement the gross performance and net performance of all such accounts. To calculate net performance, the adviser may elect to deduct a model fee that is equal to the highest fee charged to Retail Persons (that is, the audience of the Retail Advertisement), even if that model fee is different from the actual fee charged to any of the accounts. 251Proposed rule 206(4)–1(e)(6)(iii). 252See, e.g., Investment Company Institute, SEC Staff No-Action Letter (Aug. 24, 1987) (indicating the staff’s view that ‘‘the costs charged by custodians, which ordinarily are selected by clients and frequently are paid directly by the clients’’ need not be deducted in calculating net performance). 253The proposed rule would permit the exclusion of only custodian fees that are ‘‘paid to a bank or other third-party organization.’’ 254See, e.g., Global Investment Performance Standards, GIPS Advertising Guidelines, available at (indicating that advertisements may include information beyond what is required under the GIPS Advertising Guidelines, provided the information is shown ‘‘with equal or lesser prominence’’ relative to the required information). 255See, e.g., 17 CFR 230.482(d)(3)(iii); 17 CFR 230.482(d)(4)(v); 17 CFR 230.482(e)(1)(ii); see also Final Investment Company Advertising Release, supra footnote 57 (explaining that prominence requirements in rule 482 advertisements ‘‘are designed to prevent advertisements from marginalizing or minimizing the presentation of [ ] required disclosure’’ and ‘‘to encourage fair and balanced advertisements’’). 256See proposed rule 206(4)–1(c)(1)(i). We would consider any such schedule provided upon request to be a part of the advertisement and therefore subject to the books and records rule. See infra
section II.C. We would not consider such a
schedule to be within the scope of the proposed
rule’s exclusion for information required to be contained in a statutory or regulatory notice, filing, or other communication, see supra section II.2.c.iv, as the schedule would be providing contextual information to understand the substance of the advertisement. See supra footnote 106 and accompanying text. 257See proposed rule 206(4)–1(e)(6). 258 In these circumstances, we would interpret the proposed rule’s phrase ‘‘deducted to calculate net performance’’ to include ‘‘if such calculation were otherwise required.’’ 259Because any such schedule would be a part of the advertisement, see supra footnote 256, the provisions of paragraph (a) of the proposed rule would apply to the schedule. 260See, e.g., Letter of the Institutional Limited Partners Association (ILPA) to Jay Clayton, Chairman, Securities and Exchange Commission (May 24, 2017) (‘‘The ILPA’s members are sophisticated investors and supporters of free market principles. However, there are proven limits to what any investor can achieve through negotiation, particularly without strong oversight by the [Commission] to ensure that the rules of the market are followed and that contractual obligations are being met.’’). 261See Item 3 of Form N–1A; Final Investment Company Advertising Release, supra footnote 57, at 57765 (agreeing with a commenter that ‘‘investors should consider a fund’s objectives and risks, and its charges and expenses, before investing because these factors will directly affect future returns’’) (emphasis added); Enhanced Disclosure and New Prospectus Delivery Option for Registered OpenEnd Management Investment Companies, Release No. 33–8998 (Jan. 13, 2009) [74 FR 4546, 4554 (Jan. 26, 2009)] (noting recent Commission steps to address ‘‘concerns that investors do not understand that they pay costs every year when they invest in mutual funds’’). See also Bradford Hall, SEC Staff No-Action Letter (Jul. 19, 1991) (noting the staff’s view that ‘‘the presentation of performance results on a gross basis may cause the average investor to infer something about the adviser’s competence or about future results that may not be true had the performance results been presented net of advisory fees’’). would not cause investors to mistakenly believe that similar investors received returns higher than those investors actually did. Net performance that reflects a model fee that is not available to the audience—e.g., because the model fee is offered only to persons having a certain amount of assets under management by the adviser—may imply that the audience can expect future performance to be reduced by that same fee and would not be permitted under this modification. We understand that this proposed modification may be useful for advisers who manage a particular strategy for different types of investors.250 Third, ‘‘net performance’’ may exclude custodian fees paid to a bank or other third-party organization for safekeeping funds and securities.251 We understand that custodians are commonly
selected and frequently paid directly by advisory clients, and in such cases advisers may not have knowledge of the amount of such custodian fees to deduct for purposes of establishing net performance.252 To the extent that net performance can demonstrate the kind of investment experience that advisory clients might have experienced with an adviser, the amount of custodian fees paid directly by an advisory client to a custodian that was selected by the advisory client may not be relevant. We believe that this approach is appropriate even where advisers know the amount of custodian fees—e.g., where the adviser recommended the custodian. However, to the extent the adviser provides custodial services with respect to funds or securities for which the performance is presented and charges a separate fee for those services, or when custodial fees are included in a single fee paid to the adviser, such as in wrap programs, then the adviser must deduct the custodial fee in calculating net performance.253 We are not including a definition of ‘‘equal prominence.’’ We believe, however, that this ‘‘equal prominence’’ principle is consistent with investment advisers’ current practice.254 In addition, investment advisers may have experience interpreting ‘‘equal prominence’’ in other rules governing the use of communications by financial professionals.255 Finally, the proposed rule would prohibit in any advertisement any presentation of gross performance, unless the advertisement provides or offers to provide promptly a schedule of the specific fees and expenses deducted to calculate net performance.256 Such a
schedule must itemize the specific fees
and expenses that were incurred in generating the performance of the specific portfolio being advertised.257 Where an adviser presents net performance, whether because net performance is required under the proposed rule or because the adviser otherwise chooses to present it, the
schedule should show the fees and
expenses actually applied in calculating the net performance that is presented. Where an adviser does not otherwise present or calculate net performance, the schedule should show the fees and expenses that the adviser would apply in calculating net performance as though such adviser were presenting net performance.258 The proposed rule would require investment advisers to show each fee and expense ‘‘presented in percentage terms’’—that is, as a percentage of the assets under management. The proposed rule otherwise would impose no specific restrictions on how those fees and expenses are categorized or determined, as different investment advisers may classify the same fee or type of fee differently.259 We believe that Non-Retail Persons routinely request breakdowns of fees and expenses in order to assess advertised performance results, but even with their increased bargaining power, they may struggle at times to negotiate for and receive transparent information.260 This provision would require advisers to provide such information, to the extent that the adviser wants to advertise performance information. We recognize that, as a result, this fee and expense schedule may be utilized primarily by institutional investors because all Retail Advertisements that include gross performance results must also include performance results net of fees and expenses. However, we believe that the
schedule should be available to all
investors if they choose to request it as
part of their analysis of an investment
adviser.
The Commission has emphasized the importance of providing clear and meaningful disclosure to mutual fund investors about fees and expenses.261 We believe advisory clients and investors in private pooled investment vehicles should similarly have access to this type of important information to alert them to the types of fees and expenses that they may reasonably expect to incur in connection with

262Similarly, investors in pooled investment vehicles would have a basis for additional questions if the pooled investment vehicle seeks to charge or agrees to bear additional or different fees and expenses in the future. 263See proposed rule 206(4)–1(c)(2)(ii). This time period requirement would be imposed on all performance results, including gross performance and net performance. Accordingly, a Retail Advertisement presenting gross performance must include performance results of the same portfolio for the prescribed time periods, on both a gross and net basis. 264See id. 265We require average annual total return for 1-, 5-, and 10-year periods for advertisements with respect to securities of certain RICs and BDCs. See 17 CFR 230.482(d)(3). We believe a similar requirement for Retail Advertisements would provide useful reference points for Retail Persons, particularly when comparing two or more sets of performance results. 266See, e.g., proposed rule 206(4)–1(a)(6). 267Proposed rule 206(4)–1(c)(2)(ii). 268See proposed rule 206(4)–1(a)(6). 269See proposed rule 206(4)–1(a)(3); see also Proposed Investment Company Advertising Release, supra footnote 181 (‘‘Outdated fund performance that is relied on by an investor when, for example, the markets have generally entered a period of lower performance, may cause the investor to have an overly optimistic view of the fund’s ability to outperform the markets.’’). receiving the adviser’s services, and provide a basis for additional questions from advisory clients to the extent that the adviser seeks to charge additional or different fees and expenses in the future.262
v. Prescribed Time Periods
The proposed rule would prohibit any performance results in a Retail Advertisement, unless the advertisement includes performance results of the same portfolio for 1-, 5-, and 10-year periods, each presented with equal prominence and ending on the most recent practicable date, with an exception for portfolios not in existence during a particular prescribed period.263 This time period requirement would apply to performance results of any composite aggregation of related portfolios as well.264 Requiring performance results over these periods of time would provide the audience with insight into the experience of the investment adviser over set periods that are likely to reflect how the advertised portfolio(s) performed during different market or economic conditions.265 For portfolios in existence for at least ten years, performance for that period of time could be useful to Retail Persons to provide more complete information than only performance over the most recent year. That performance may prompt Retail Persons to seek additional information from advisers regarding the causes of significant changes in performance over longer periods of time. This time period requirement would prevent investment advisers from including in Retail Advertisements only recent performance results or presenting only results or time periods with strong performance in the market generally, which could lead to Retail Persons being misled. An investment adviser would remain free to include in Retail Advertisements performance results for other periods of time as long as the advertisement presents results for the three prescribed periods (subject to the proposed exception). The advertised performance results for the other periods of time also must meet the other requirements of the proposed rule, including the prohibitions in paragraph (a).266 The proposed rule provides an exception from this time period requirement: If the relevant portfolio did not exist for a particular prescribed period, then the life of the portfolio must be substituted for that particular period. For example, if a portfolio has been in existence for seven years, then any performance results of that portfolio must be shown for 1- and 5-year periods, as well as for the 7-year period—that is, the life of the portfolio. The time period requirement would require that the 1-, 5-, and 10-year periods each end on the most recent practicable date.267 We believe that this requirement will provide insight into an investment adviser’s management of the same portfolio over certain periods of time to reflect how the portfolio performed during different market or economic conditions. Allowing the 1-, 5-, and 10-year periods to end on different dates would undermine that goal, as an adviser could select the periods that show only the most favorable performance—e.g., presenting a 5-year period ending on a particular date because that 5-year period showed growth while presenting a 10-year period ending on a different
date because that 10-year period showed growth. In addition, requiring that each period end on ‘‘the most recent practicable date’’ is designed to help ensure that those receiving Retail Advertisements generally receive performance advertising from different advisers that shows performance over the same periods of time. Together with the other proposed requirements of this time period provision, this requirement would provide investors with a more complete basis for comparison between investment advisers and reduce any investment adviser’s ability to cherrypick performance periods. The time period requirement would also require that the three prescribed time periods are presented with equal prominence. This ‘‘equal prominence’’ principle would help ensure that all three time periods are presented in such a manner that an investor can observe the history of the adviser’s performance on a short-term and long-term basis. If these periods were not required to be presented with equal prominence, an adviser might seek to highlight the single 1-, 5-, or 10-year period that shows the best performance, instead of showing them in relation to each other. The prohibitions in paragraph (a) of the proposed rule, including the prohibition on presenting performance time periods in a manner that is not fair and balanced,268 would apply to presentations of performance across the required time periods. For example, it would be misleading to present certain performance information without appropriate disclosure or other information about the performance presented. That is, an advertisement presenting performance results should disclose whether more recent performance results for the same portfolio are available. Otherwise, the advertisement may reasonably be likely to cause an untrue or misleading inference to be drawn concerning the adviser’s performance.269 We request comment on the proposed performance presentation requirements applicable to Retail Advertisements and Non-Retail Advertisements.

Is our belief accurate that analyzing
certain performance information requires access to more specialized and extensive analytical and other resources than would be required to evaluate the merits and risks of an investment? Are our beliefs correct that accredited investors and qualified clients generally do not have the access to resources for independent analysis in order to consider and analyze performance information without additional information that the proposed rule would require be provided to Retail Persons? Are there certain categories of accredited investors or qualified clients that, by definition, would have such access? Are there disclosures or conditions that we could require in performance advertising that could address our concerns? What are those disclosures or conditions and how would they address our concerns?
Should we require additional
disclosures based on the type of audience to which performance advertising is disseminated as proposed? Would such an approach place Retail Persons at an informational disadvantage? Should we instead impose on all advertisements the same

270See FINRA rule 2210(a)(4)(A) and rule 4512(c)(3). requirements for presenting performance results that the proposed rule would impose only on Retail Advertisements? Would such an approach create difficulties where different audiences may need different amounts and types of disclosures to ensure that the performance information is not false or misleading? For instance, would the amount or type of disclosure necessary to make a Retail Advertisement not misleading overwhelm the disclosure and render it ineffective? Would treating all advertisements presenting performance results the same way make it harder for Non-Retail Persons to obtain information they find valuable?

Instead of our approach to
performance presentations, should we simply rely on an overarching prohibition against misleading advertisements? Would such an overarching prohibition achieve our objective in a less burdensome and more effective way than the approach we are proposing? Why or why not?
If we do not include additional
disclosure requirements for Retail Advertisements, should we require that advertisements directed to general audiences include more comprehensive disclosure than those directed to more financially sophisticated audiences? If so, should we consider providing guidance or promulgating disclosure requirements for how an adviser’s disclosure may differ based on the investor’s financial sophistication or scope of mandate? What guidance should we provide or disclosure should we require? Would there be any types of performance presentations whose risks or limits could not be disclosed effectively to some audiences?
Do commenters agree that defining
‘‘Non-Retail Person’’ as ‘‘qualified purchasers’’ and certain ‘‘knowledgeable employees’’ is appropriate? Why or why not?
Are there investors other than
qualified purchasers and knowledgeable employees that should be treated as Non-Retail Persons? If so, who and why? Are there criteria that we should consider instead of those underlying the ‘‘qualified purchaser’’ or ‘‘knowledgeable employee’’ definitions? Would the accredited investor or qualified client standard be more appropriate than the qualified purchaser standard? Why or why not?
If we treated as Non-Retail Persons
either accredited investors or qualified clients, should we consider imposing restrictions or requirements on NonRetail Advertisements that under the proposed rule apply only to Retail Advertisements? Why or why not and, if so, which restrictions or requirements?
Should we treat as Non-Retail
Persons all investors other than natural persons? If so, should we change the treatment of Non-Retail Persons with respect to institutional investors—e.g., treat as a Non-Retail Person any institutional investor that is also an accredited investor or qualified client? Why or why not? If so, should we consider adding requirements to NonRetail Advertisements that under the proposed rule apply only to Retail Advertisements? Why or why not and, if so, which requirements?
FINRA’s communications rule
treats as ‘‘institutional investors’’ any natural person with total assets of at least $50 million.270 Should we consider a similar approach for defining ‘‘Non-Retail Person’’? Why or why not? If we were to consider a similar approach, should we index the prescribed amount to inflation? Why or why not?
In defining ‘‘Non-Retail
Advertisement,’’ should we consider an approach other than requiring the adoption and implementation of policies and procedures? What other approach should we consider and why? Is there an alternative approach we should consider to address the dissemination of Non-Retail Advertisements to an investor that an investment adviser may not know with certainty to be a qualified purchaser or knowledgeable employee? If we retain the proposed rule’s approach, should the proposed rule specify any policies and procedures that investment advisers should adopt and implement in order to disseminate Non-Retail Advertisements? If so, what should be included in such policies and procedures and why?
Would the ‘‘reasonable belief’’
prong of rule 2a51–1(h) be useful for purposes of determining whether an investor is a Non-Retail Person under the proposed rule? Do commenters agree that investment advisers to Section 3(c)(7) Companies already have policies and procedures necessary to implement the ‘‘reasonable belief’’ prong? Are there compliance or other challenges that investment advisers or others have faced in applying this ‘‘reasonable belief’’ prong under rule 2a51–1(h)? What steps do advisers and others associated with
Section 3(c)(7) Companies take to obtain
a ‘‘reasonable belief’’ for purposes of rule 2a51–1(h), and would such steps be feasible in the context of ensuring that Non-Retail Advertisements are disseminated only to qualified purchasers and knowledgeable employees?
Should the proposed rule account
for the risk of Non-Retail Advertisements disseminated only to Non-Retail Persons by or on behalf of the adviser also becoming available to Retail Persons? If so, how?
How would requiring investment
advisers to pooled investment vehicles to ‘‘look through’’ the vehicles to their investors in order to comply with the proposed rule affect investment advisers’ ability to present advertisements to those investors in comparison to their approach under the current rule? Would such an approach place certain investors in the pooled investment vehicle at an informational disadvantage to others? How would this approach affect the ability of existing and prospective investors in pooled investment vehicles to receive information and make informed investment decisions? Is there an alternative approach we should consider? Should the proposed rule use different criteria for prospective advisory clients than for prospective investors in pooled investment vehicles? Should the proposed rule treat any person who is eligible to invest in a private fund as a Non-Retail Person for purposes of advertisements relating to that private fund? Why or why not?
Should we change our approach
with respect to knowledgeable employees so that an investor who is a knowledgeable employee with respect to a particular Section 3(c)(7) Company would be treated as a Non-Retail Person for advertisements for investment vehicles or services other than with respect to the particular Section 3(c)(7) Company?
Are our beliefs correct that qualified
purchasers generally do have the access to resources in order to consider and analyze performance information? If a qualified purchaser’s access to resources fluctuates due to particular facts and circumstances, should we take that into account in treating qualified purchasers, or other categories of investors, as NonRetail Persons? If so, how?
Are there compliance or other
challenges that investment advisers believe they would face if the proposed rule defines a ‘‘Retail Advertisement’’ and its audience in a way that is different from the definition of ‘‘retail investor’’ for purposes of Form CRS? Should we take those challenges into account and, if so, how?
Do investment advisers to pooled
investment vehicles other than Section 3(c)(7) Companies, including private funds that rely on section 3(c)(1) of the Investment Company Act, or investment

advisers to separate accounts currently provide the kinds of performance information in advertisements that we propose to require in Retail Advertisements? Would the proposed rule create unique compliance difficulties for investment advisers to pooled investment vehicles other than
Section 3(c)(7) Companies? What types
of difficulties and how should we address them?

Will requiring Retail
Advertisements that present gross performance also to present net performance be effective in demonstrating the effect that fees and expenses had on past performance and may have on future performance? Is there an alternative approach that would better demonstrate this effect?
Are there any instances when
presenting net performance in accordance with the proposed rule would not be feasible or appropriate in a Retail Advertisement? Are there any exceptions to this requirement that we should consider?
Is there additional information that
we should require advisers to disclose when presenting gross performance?
Should we clarify any specific
criteria for ‘‘equal prominence’’? Should we clarify any criteria for determining if net performance is presented ‘‘in a format designed to facilitate comparison’’?
Should we provide further guidance
or specify requirements in the proposed rule on how to calculate gross performance or net performance? If so, what guidance or requirements should we provide? Should we look to the Global Investment Performance Standards adopted by the CFA Institute (‘‘GIPS’’) or other standards? Should we require investment advisers to adopt policies and procedures prescribing specific methodologies for calculating gross performance and net performance? Why or why not?
Are the proposed definitions of
‘‘gross performance,’’ ‘‘net performance,’’ and ‘‘portfolio’’ clear? Should we modify any of those proposed definitions? Do we need to define any other terms?
For the proposed definition of
‘‘portfolio,’’ should we modify the term ‘‘managed by the investment adviser’’— e.g., to specify how this term addresses sub-advisory relationships or other relationships? If so, how should we modify the term?
For the proposed definition of ‘‘net
performance,’’ should we add or remove any item from the non-exhaustive list of fees and expenses to be considered? If so, which item and why? Are there particular items that might not be considered a ‘‘fee’’ or an ‘‘expense’’ that should nonetheless be deducted in calculating net performance? If so, which item and why?
Are the proposed modifications to
‘‘net performance’’ appropriate? Are there particular changes to the proposed modifications that we should make? Should we include any other permitted deductions?
Are there instances in which we
should expressly require that ‘‘net performance’’ be calculated to reflect the deduction of a custodial fee—for example, in all circumstances other than where an advisory client selects its own custodian and directly negotiates the custodial fee? Are we correct in our understanding that if advisory clients select and pay directly their custodians, investment advisers may not know the amount of custodial fees? Are there other types of fees or expenses that investment advisers would be unable to deduct in calculating net performance and that the proposed rule should treat similarly to custodial fees?
Are there circumstances under
which investment advisers might seek to calculate gross performance and net performance using different types of returns or methodologies or to use different types of returns or methodologies for different portions of a presented period? What are those circumstances? Should we take those circumstances into account? If so, why and how?
Should the proposed rule include
different or additional criteria for Retail Advertisements in order to enable Retail Persons to compare performance between investment advisers? If so, what criteria and why?
Instead of requiring Retail
Advertisements presenting gross performance to provide or offer to provide promptly a schedule of fees and expenses, should we require that Retail Advertisements include disclosure about fees and expenses (i.e., without an itemized schedule)? What information about fees should the proposed rule require to be included in Retail Advertisements?
Should the proposed requirement to
provide or offer a schedule of fees and expenses apply differently to different types of fees and expenses (e.g., custodial fees or other administrative fees as opposed to advisory fees)?
Should the proposed requirement to
provide or offer a schedule of fees and expenses apply differently to advertisements presenting the performance of pooled investment vehicles and advertisements presenting the performance of separate accounts? If so, why and how?
Should we take the position that an
investment adviser would ‘‘provide’’ the
schedule of fees and expenses if the
advertisement includes a hyperlink that enables the audience to obtain and review the schedule?
As proposed, the schedule of fees
and expenses would need to be presented in percentage terms and on the basis of assets under management in calculating net performance. Should we allow it to be presented in other formats as well? Alternatively, should we require the schedule to be presented in another format? For example, should advisers be required to present the
schedule in terms of the actual dollar
amount paid or borne on a portfolio of a specific size, or the actual dollar amount paid or borne on the actual portfolio being managed and advertised? Are there other formats that would work better than dollar or percentage terms? Would allowing an alternative presentation format, in addition to a format using percentage terms, be confusing or misleading? Is it clear how an adviser would calculate net performance if it does not charge assetbased fees?
Are there any compliance
challenges that investment advisers might face in preparing a schedule such as the type proposed? Under current law, have investment advisers included in their advertisements similar offers to provide schedules or other breakdowns of fees and expenses, or have investment advisers provided the fee and expense information? Have investors accepted those offers and requested those schedules or breakdowns? Are there types of fees and expenses for which providing a
schedule would be particularly
difficult? Do advisers expect that they would need to account for estimated, rather than actual, fees and expenses in certain cases?
Have investors found there to be
any difficulties in receiving such schedules or breakdowns, once requested? Have those schedules or breakdowns provided investors with useful information that has enabled them to make informed investment decisions? Why or why not?
Would there be circumstances in
which investment advisers might have to provide proprietary or sensitive information to comply with this proposed requirement? Should we take those circumstances into account? If so, how?
Should we prescribe specific time
periods as proposed? Are one, five, and ten years the right periods to be used? Instead, for example, should we require

271See 17 CFR 230.482(g).
272Proposed rule 206(4)–1(c)(1)(ii). 273See supra section I.A. 274See supra footnote 184. 275See, e.g., Fake Seals and Phony Numbers: How Fraudsters Try to Look Legit (Dec. 2, 2009), available at https://www.sec.gov/reportspubs/ investor-publications/investorpubs fakesealshtm.html (advising the investing public to ‘‘be skeptical of government ‘approval’ ’’ in communications regarding securities offerings and noting that the Commission ‘‘does not evaluate the merits of any securities offering’’ or ‘‘determine whether a particular security is a ‘good’ investment’’). 276Proposed rule 206(4)–1(c)(1)(iii)(A). 277Proposed rule 206(4)–1(e)(11). 278Proposed rule 206(4)–1(e)(12). 279The ‘‘substantially similar’’ standard has been used by our staff previously in describing its views as to whether the presentation of prior performance results of accounts managed by a predecessor entity would not, in and of itself, be misleading under the current rule. See Horizon Asset Management, LLC, SEC Staff No-Action Letter (Sept. 13, 1996) (‘‘Horizon Letter’’) (describing, in relevant part, the presentation of prior performance results of that performance always be presented since inception of a portfolio?

Are there other time periods for
which we should require the presentation of performance results? Are there any specific compliance issues that an investment adviser would face in generating and presenting performance results for the required time periods?
Should we require an adviser
without any performance results available for a particular period required in Retail Advertisements to disclose specifically that the adviser does not have those results? For example, should an adviser having a track record of only eight years for a portfolio be required to disclose that it does not have performance results for the required 10- year period?
Should we impose any additional
requirements for presentation of the time periods proposed? For example, beyond the proposed rule’s requirement that the specified time periods end ‘‘on the most recent practicable date,’’ should we require that performance results be current as of a particular date? For example, should we require that the specified time periods end on a date no greater than 90 days prior to dissemination of the advertisement? Would some period other than 90 days be appropriate? Should we provide guidance about the term ‘‘most recent practicable date’’? If so, what guidance should we provide?
Are there any modifications to the
proposed time period requirement that commenters believe would be appropriate or useful? If so, what modifications and why? 271
c. Additional Requirements for
Presentations of Performance in All Advertisements The proposed rule includes several additional requirements for advertisements containing performance results. The other requirements address:
(i) Statements about Commission review or approval of performance results; (ii) the presentation of performance results of portfolios with substantially similar investment policies, objectives, and strategies; (iii) the presentation of performance results of an extracted subset of portfolio investments; and (iv) the presentation of performance results that were not actually achieved by a portfolio managed by an adviser.
i. Statements About Commission
Approval
The proposed rule would prohibit ‘‘any statement, express or implied, that the calculation or presentation of performance results in the advertisement has been approved or reviewed by the Commission’’ (the ‘‘approval prohibition’’).272 As described above, the proposed rule would address certain elements of the appropriate presentation of performance in advertisements, which the current rule does not explicitly address.273 This approval prohibition is intended to prevent advisers from representing that the Commission has approved or reviewed the performance results, even when the adviser is presenting performance results in accordance with the proposed rule. Such a statement might imply that the Commission has determined that the advertised performance results neither are false or misleading, nor otherwise violate the proposed rule. Such a statement would itself be misleading because the Commission does not review or approve investment advisers’ advertisements. Such a statement might also be misleading to the extent it suggests that an adviser is presenting performance results in accordance with particular methodologies or calculations, which the proposed rule would not prescribe. We believe in particular that performance results may lead to a heightened risk of creating unrealistic expectations in an advertisement’s audience.274 An express or implied statement that the Commission has approved the performance results could advance such unrealistic expectations.275 Such a statement would also be misleading to the extent it suggests that the Commission has reviewed or approved more generally of the investment adviser, its services, its personnel, its competence or experience, or its investment strategies and methods. We request comment on this proposed approval prohibition.
Are there types of statements that
would be prohibited under the proposed approval prohibition, but that commenters believe should be allowed in performance advertising? What types of statements and why should they be allowed?
Instead of including a specific
approval prohibition, should we take the view that a statement that would otherwise violate this prohibition is addressed through paragraph (a) of the proposed rule?
ii. Related Performance
The proposed rule would condition the presentation in any advertisement of ‘‘related performance’’ on the inclusion of all related portfolios. However, the proposed rule would generally allow related performance to exclude related portfolios as long as the advertised performance results are no higher than if all related portfolios had been included.276 ‘‘Related performance’’ is defined as ‘‘the performance results of one or more related portfolios, either on a portfolio-by-portfolio basis or as one or more composite aggregations of all portfolios falling within stated criteria.’’ 277 ‘‘Related portfolio’’ in turn is defined as ‘‘a portfolio, managed by the investment adviser, with substantially similar investment policies, objectives, and strategies as those of the services being offered or promoted in the advertisement.’’ 278 We understand that related performance may be a useful source of information for investors. For example, a prospective investor considering whether to hire or retain an investment adviser to manage a portfolio having a particular investment strategy may reasonably wish to see performance results of portfolios previously managed by the investment adviser that have substantially similar investment strategies. The proposed requirement would allow advertisements to include related performance, as long as such performance includes all related portfolios. This requirement is intended to prevent investment advisers from including only related portfolios having favorable performance results or otherwise ‘‘cherry-picking.’’ The proposed rule otherwise does not identify or prescribe particular requirements for determining whether portfolios are ‘‘related’’ beyond whether there are ‘‘substantially similar’’ investment policies, objectives, and strategies as those of the services being offered in the advertisement.279 The

accounts managed by a predecessor entity where ‘‘all accounts that were managed in a substantially similar manner are advertised unless the exclusion of any such account would not result in materially higher performance’’) (emphasis added). 280For GIPS purposes, a composite is an aggregation of portfolios managed according to a similar investment mandate, objective, or strategy. Global Investment Performance Standards, GIPS Glossary (defining a ‘‘composite’’ as ‘‘an aggregation of one or more portfolios that are managed according to a similar investment mandate, objective, or strategy’’). 281See supra section II.A.5.c.v. 282Proposed rule 206(4)–1(c)(1)(iii)(B). See proposed rule 206(4)–1(c)(2)(ii) (requiring any performance results of any portfolio or any composite aggregation of related portfolios to include performance results of the same portfolio or composite aggregation for 1-, 5-, and 10-year periods). 283For example, advisers to some types of private funds may find a portfolio-by-portfolio presentation to be the most efficient approach in satisfying this requirement. 284Proposed rule 206(4)–1(a)(1). See also supra footnote199 and accompanying text. 285See proposed rule 206(4)–1(a)(6); see also supra footnote199 and accompanying text. 286See, e.g., In the Matter of Valicenti Advisory Services, Inc., Release No. IA–1774 (Nov. 18, 1998) (Commission opinion) (finding that, under the circumstances, when an adviser’s sales literature states that the rates of return it is advertising are based on the combined performance of certain specified accounts, then ‘‘the plain meaning of that statement is that the rates reflect the performance of all accounts falling within the stated criteria, not merely a few chosen by the adviser’’); aff’d Valicenti Advisory Services, Inc. v. Securities and Exchange Commission, 198 F. 3d 62 (2d Cir. 1999). 287See proposed rule 206(4)–1(a)(1). 288See letter from Joseph P. Savage, FINRA, to Clair Pagnano, K&L Gates LLP, dated June 9, 2017 (discussing FINRA’s ‘‘longstanding position’’ that a registered fund’s presentation of related performance information, other than certain performance of predecessor private accounts or funds, in communications used with retail investors does not comply with FINRA rule 2210(d)). FINRA staff has provided interpretive guidance that the use of ‘‘related performance information’’ in institutional communications concerning certain registered funds is consistent with the applicable standards of FINRA rule 2210. Id.; see also letter from Thomas M. Selman, Senior Vice President, NASD, to Yukako Kawata, Davis Polk & Wardwell, dated Dec. 30, 2003 (stating that NASD staff would not object to inclusion of related performance information in sales material for an unregistered private fund, provided that, among other conditions, all recipients are qualified purchasers). requirement that advisers include portfolios having ‘‘substantially similar’’ policies, objectives, and strategies may result in an
investment adviser including an account that is otherwise subject to client-specific constraints. We request comment below on this approach. We understand that many investment advisers already have criteria governing their creation and presentation of composites and that in particular many advisers take into account GIPS. We believe that the same criteria used by investment advisers to construct any composites for GIPS purposes could be used for purposes of satisfying the ‘‘substantially similar’’ requirement of the proposed rule.280 To the extent that an investment adviser excludes portfolios from a composite that is constructed for GIPS purposes, the proposed rule would allow those portfolios to be included in a separate composite. That is, ‘‘related performance’’ could be presented through more than one composite aggregation of all portfolios falling within the stated criteria. The proposed rule would allow investment advisers to exclude from ‘‘related performance’’ one or more related portfolios so long as the advertised performance results are no higher than if all related portfolios had been included. This exclusion would generally provide advisers some flexibility in selecting the related portfolios to advertise, without permitting exclusion on the basis of poor performance. However, this exclusion would also be subject to the proposed time period requirement for Retail Advertisements, as discussed above.281 Related performance in a Retail Advertisement could not exclude any related portfolio if doing so would alter the presentation of the proposed rule’s prescribed time periods.282 The proposed rule would allow the investment adviser to present the performance of all related portfolios either on a portfolio-by-portfolio basis or as one or more composites of all such portfolios. This provision is intended in
part to allow an adviser to illustrate for
the audience the differences in performance achieved by the investment adviser in managing portfolios having substantially similar investment policies, objectives, and strategies. We believe that advisers may find it useful to present this information on a portfolio-by-portfolio basis if they believe that such presentation will make clear the range of performance results that the relevant portfolios experienced. Advisers that manage a small number of such portfolios particularly may find a portfolio-by-portfolio presentation to be the clearest way of demonstrating related performance.283 Presenting related performance on a portfolio-byportfolio basis would be subject to paragraph (a) of the proposed rule, including the prohibition on omitting material facts necessary to make the presentation, in light of the circumstances under which it was made, not misleading.284 For example, an advertisement presenting related performance on a portfolio-by-portfolio basis could be potentially misleading if it does not disclose the size of the portfolios and the basis on which the portfolios were selected. Presenting related performance in a composite can allow the relevant information—the investment adviser’s experience in managing portfolios having specified criteria—to be presented in a streamlined fashion and without requiring every portfolio to be presented individually in the same advertisement, which may be unwieldy and difficult to comprehend. Advisers may find it useful to present related performance information in a composite particularly if presenting the information on a portfolio-by-portfolio basis could implicate privacy concerns by, for example, identifying implicitly particular clients even if the portfolios themselves are anonymized. The proposed rule would not prescribe specific criteria to define the relevant portfolios but would require that once the criteria are established, all related portfolios meeting the criteria are included in one or more composites. The presentation of composite performance would be subject to paragraph (a) of the proposed rule, including the prohibition on the inclusion of favorable performance results or the exclusion of unfavorable performance results that provides a portrayal of the adviser’s performance that is not fair and balanced.285 For example, an advertisement presenting related performance in a composite would be false or misleading where the composite is represented as including all portfolios in the strategy being advertised but excludes some portfolios falling within the stated criteria or is otherwise manipulated by the adviser.286 Presenting related performance in a composite would also be subject to the prohibition on omitting material facts necessary to make the presentation, in light of the circumstances in which it was made, not misleading.287 We believe that omitting the criteria the adviser used in defining the related portfolios and crafting the composite could result in an advertisement
presenting related performance that is misleading. We understand that FINRA staff has not viewed rule 2210 as allowing inclusion of certain related performance information in communications used by FINRA members with retail investors in registered funds.288 We believe that the utility of related performance in demonstrating the adviser’s experience in managing portfolios having specified criteria, together with the provisions designed to prevent cherry-picking and the provisions of paragraph (a), support

289Proposed rule 206(4)–1(c)(1)(iv). 290Proposed rule 206(4)–1(e)(3). not prohibiting related performance in advisers’ Retail Advertisements. The definition of ‘‘related portfolio’’ also would include a portfolio managed by the investment adviser for its own account or for its advisory affiliate. This proposed definition is designed to apply so that all portfolios having substantially similar investment policies, objectives, and strategies are incorporated into the advertised performance. However, reporting the performance of accounts of the investment adviser or its advisory affiliates may present issues regarding fees and expenses in the event certain fees and expenses are waived or charged at a lower rate than those that would be applied to an unaffiliated client of the adviser. In such case, the amount of fees and expenses charged to such a portfolio would not reflect the amount actually available to the advertisement’s audience of unaffiliated investors. Presenting net performance that is higher than it would be if calculated using the fees and expenses charged to unaffiliated investors would reasonably be likely to cause an untrue or misleading inference to be drawn about the adviser’s competence and experience managing the portfolio generating the performance. Accordingly, to satisfy the ‘‘net performance’’ requirement in this circumstance, an adviser generally should apply the fees and expenses that an unaffiliated client would have paid in connection with the relevant portfolio whose performance is being advertised. We request comment on the proposed requirements for presentation of related performance.

Are the proposed definitions of
‘‘related performance’’ and ‘‘related portfolio’’ clear? Should we modify these proposed definitions? Should we provide further guidance as to what constitutes a ‘‘related portfolio’’?
Should we modify the proposed
definition of ‘‘related portfolio’’ by changing the ‘‘substantially similar’’ criterion? If so, how and why? Should we modify the proposed definition by specifying how an adviser should account for portfolios that are nondiscretionary accounts?
Should we modify the proposed
definition of ‘‘related portfolio’’ to take into account how client-specific constraints may have affected the performance of portfolios that otherwise have ‘‘substantially similar’’ policies, objectives, and strategies? Would investment advisers consider portfolios having such client-specific constraints to be portfolios that have policies, objectives, and strategies that are not ‘‘substantially similar’’?
Would the proposed rule’s
approach of allowing related performance to be presented on a portfolio-by-portfolio basis or as one or more composites have the intended effect of illustrating the differences in performance achieved in managing related portfolios? Are there other better approaches, including approaches that investment advisers use currently that we should consider? What approaches and why?
Would the proposed rule’s
approach of allowing related performance to be presented in ‘‘one or more composite aggregations’’ be appropriate or should we require that related performance be presented in only one such composite? Why or why not?
Rather than allowing related
performance to exclude related portfolios as long as the advertised performance results are no higher than if all related portfolios had been included, should we require inclusion of all related portfolios? Why or why not? Alternatively, should we permit exclusion of related portfolios as long as the advertised results are not ‘‘materially’’ higher than if all related portfolios had been included? Why or why not? As an alternative to any of those approaches, should we allow related performance without limitation and instead rely on the prohibitions in the rest of the proposed rule to ensure that performance of related portfolios is presented in a fair and balanced manner?
Rather than requiring that the
exclusion of any related portfolio does not alter the presentation of time periods prescribed for Retail Advertisements, should we allow the exclusion to alter such presentation? Why or why not? Should we provide additional guidance regarding this requirement? If so, what additional guidance should we provide?
Are there particular disclosures we
should require when an advertisement presents related performance? Should we require that an advertisement offer to provide additional information about the related performance? For example, if the investment adviser presents related performance as a composite, should the adviser be required to offer to provide the performance of the individual portfolios used to calculate that composite?
Should we consider adopting
FINRA’s approach and prohibit the presentation of related performance in Retail Advertisements? Why or why not? If we do not adopt FINRA’s approach, would it cause confusion for advisers or investors?
Would investment advisers that
seek to comply with GIPS face any compliance challenges in complying with the proposed rule’s related performance provision? If so, what challenges and how would such advisers seek to address them? Should we take those challenges into account and, if so, how? Are there particular provisions of GIPS that we should consider in addressing the presentation of related performance?
Should we retain the proposed
rule’s inclusion in the definition of ‘‘related portfolio’’ of a portfolio managed by the investment adviser for its own account or for its advisory affiliate? Why or why not? We have indicated that to satisfy the ‘‘net performance’’ requirement when presenting performance of a portfolio that belongs to the adviser or its affiliate, the adviser generally should apply the fees and expenses that an unaffiliated client would have paid in connection with the relevant portfolio whose performance is being advertised. Do commenters agree with this approach? Do commenters believe this would be sufficient to make related performance not misleading if it includes the adviser’s or its affiliate’s portfolio? Why or why not?
iii. Extracted Performance
Under the proposed rule, an adviser may include extracted performance in an advertisement only if the advertisement provides or offers to provide promptly the performance results of all investments in the portfolio from which the performance was extracted.289 ‘‘Extracted performance’’ would be defined as ‘‘the performance results of a subset of investments extracted from a portfolio.’’ 290 Similar to the proposed requirement for the presentation of related performance, the proposed rule would require that the advertisement provide (or offer to provide promptly) the performance results of the entire portfolio in these circumstances to prevent investment advisers from cherry-picking certain performance results. We understand that investment advisers commonly use extracted performance when they have experience managing several strategies and want to advertise performance only with respect to one strategy. For example, an investment adviser seeking to manage a new portfolio of only fixed-income

291Similarly, an investment adviser’s investment decisions with respect to managing a subset of an entire portfolio could be different from those with respect to managing a pooled investment vehicle with the same objective as the subset. 292We would consider the performance results of the entire portfolio provided upon request to be a
part of the advertisement and therefore subject to
the books and records rule. See infra section II.C. If an investment adviser offered to provide the performance of the entire portfolio, rather than provide the performance in the advertisement, then such performance would not qualify for the unsolicited request exclusion from the definition of ‘‘advertisement.’’ See also supra footnote 106 and accompanying text. 293See supra footnote 199 and accompanying text. 294The absence of such disclosures could result in an untrue or misleading implication about, or could reasonably be likely to cause an untrue or misleading inference to be drawn concerning, a material fact relating to the investment adviser. See proposed rule 206(4)–1(a)(3). In this case, it would be material that the presented performance reflected only a single strategy of the portfolio’s multiple strategies and that an investor could have invested in the single strategy only by investing through the entire portfolio. 295 In addition, an advertisement presenting extracted performance would likely be false or misleading where the extracted performance excludes investments that fall within the criteria the adviser represents it used to select the extract. 296 Decisions about cash allocation are common in presenting performance extracted from a subset of portfolio investments. An investment adviser’s decisions with respect to the overall portfolio would necessarily consider how much of the portfolio to allocate to cash at any given time. That consideration would not necessarily be present with respect to the investments reflected in the extracted performance if those investments were managed as a standalone portfolio. At the same time, it is possible that presenting extracted performance without accounting for the allocation of cash, and in effect implying that the allocation of cash had no effect on the extracted performance, would be misleading. Similarly, it could be misleading to an audience if the presentation of extracted performance excludes an allocation to cash and implies that the adviser would not be making decisions with respect to cash allocations in managing a future portfolio focused on the strategy of the extracted performance. The proposed rule does not prescribe any particular treatment for cash allocation with respect to extracted performance; instead, such treatment would be subject to the provisions of paragraph (a). investments may wish to advertise its performance results from managing fixed-income investments within a multi-strategy portfolio. An investment adviser seeking to advise a new client about future investments in European companies may wish to advertise its performance results from managing past investments in all non-U.S. companies. This information could likewise be useful to prospective investors. For example, a prospective investor seeking a fixed income investment might be interested in seeing only the relevant performance (i.e., the performance of fixed income assets) of an adviser that has
experience in managing multistrategy portfolios. If that prospective investor already has investments in fixed income assets, it may want to use the extracted performance to consider the effect of an additional fixed-income investment on the prospective investor’s overall portfolio. That prospective investor may also use the presentation of extracted performance from several investment advisers as a means of comparing investment advisers’ management capabilities in that specific strategy as well. At the same time, extracted performance presents a risk of being misleading to investors. An adviser presenting extracted performance would necessarily have to select the relevant investments to extract and decide both the criteria defining the extracted investments and whether particular investments meet those criteria. The adviser could adjust those decisions in critical ways affecting the performance of the extract and imply something materially untrue about the adviser’s experience managing those investments. An investment adviser’s experience managing a subset of an entire portfolio may reasonably be expected to be different from managing the entire portfolio: The investment adviser made investment decisions with respect to that subset taking into account the entire portfolio’s investments and strategy.291 Extracted performance therefore presents the opportunity for an investment adviser to claim credit for investment decisions that have been optimized through hindsight, and the selection of the extracted investments can be made with the knowledge of factors that may have positively affected their performance. The proposed requirement to make available the results of the entire portfolio is intended to allow investors to evaluate the investment adviser’s experience within a context broader than that of the extract. This context would include any particular differences in performance results between the entire portfolio and the extract, the data and assumptions underlying the extracted performance, and the investment adviser’s process for generating the extracted performance. Requiring the performance results of the entire portfolio is intended to provide investors with the information necessary to evaluate this broader context.292 Any differences between the performance of the entire portfolio and the extracted performance might be a basis for additional discussions between the investor and the adviser, which would themselves add to the information available for the investor in making its decision about whether to hire or retain the adviser. The provisions of paragraph (a) of the proposed rule would apply to any presentation of extracted performance, and thus advisers would be prohibited from presenting extracted performance in a misleading way.293 For example, we would view it as misleading to present extracted performance of only one particular strategy when the entire portfolio from which such performance was extracted had multiple strategies,
if the advertisement did not disclose that fact.294 Similarly, we would view it as misleading to include or exclude performance results, or present performance time periods, in a manner that is not fair and balanced.295 In addition, under paragraph (a) of the proposed rule, we would view it as misleading to present extracted performance without disclosing whether the extracted performance reflects an allocation of the cash held by the entire portfolio from which the performance is extracted and the effect of such cash allocation, or of the absence of such an allocation, on the results portrayed.296 Finally, an adviser should consider whether disclosure of the criteria defining the extracted investments is necessary to prevent the performance results from being misleading. We request comment on the proposed rule’s approach to extracted performance in all advertisements.

Are there circumstances under
which extracted performance should be prohibited in Retail Advertisements? What types of circumstances?
Are there specific disclosures that
we should require to decrease the likelihood that extracted performance would be misleading in Retail Advertisements (e.g., describing the fact that the performance does not represent the entire performance of any actual portfolio of an actual client of the investment adviser)? If so, should we identify those and specifically require their disclosure?
Is the proposed definition of
‘‘extracted performance’’ sufficiently clear based on our description above? Should we modify any of the elements of the proposed definition? If so, which element and why?
Under the current rule, have
investment advisers taken the same approach that we take in the proposed rule with respect to extracted performance—i.e., providing or offering to provide the performance results of the entire portfolio from which the performance is extracted? Have investors accepted any such offers and requested any such additional performance results? To what extent and under what circumstances have any such investors been misled by the

297See, e.g., Global Investment Performance Standards (GIPS) for Firms (2020), 3.A.15 (requiring any carve-out included in a composite to include cash and any related income, and indicating that cash may be accounted for separately or allocated synthetically to the carve-out on a timely and consistent basis), available at https:// www.cfainstitute.org/en/ethics/codes/gipsstandards. 298See proposed rule 206(4)–1(e)(5)(ii). This generally would not include educational presentations of performance that reflect an allocation of assets by type or class, which we understand investment advisers may use to inform clients and to educate them about historical trends regarding asset classes. For example, a presentation of performance that illustrates how a portfolio composed of 60% allocated to equities and 40% allocated to bonds would have performed over the past 50 years as compared to a portfolio comprised of 40% allocated to equities and 60% to bonds would not be prohibited under the proposed rule. Our approach regarding educational presentations of performance would apply even if the investment adviser used one of the allocations in managing a strategy being advertised or illustrated such allocations by reference to relevant indices or other benchmarks. presentation of extracted performance? Have investors who have requested additional performance results included persons other than qualified purchasers and knowledgeable employees?

With respect to extracted
performance, should we require the disclosure or offer of additional information, other than the performance results of the entire portfolio from which the performance is extracted? What additional information would be appropriate to enable an audience to analyze extracted performance more fully? For example, should we require that an advertisement presenting extracted performance disclose the selection criteria and assumptions used by the adviser in selecting the relevant performance to be extracted? Should we require disclosure of the percentage of the overall portfolio represented by the investments included in the extracted performance? Should we require disclosure of investments included in the extracted performance and a list of all investments in the portfolio from which the extracted performance was selected, to enable the audience to evaluate how the adviser made its determination? Should we require any extracted performance to include an allocation to cash? 297
Should we include any other
requirements for Non-Retail Advertisements presenting extracted performance? What other requirements and why should we require them?
Instead of prescribing specific rules
for the presentation of extracted performance, should we instead rely on the provisions of paragraph (a) of the proposed rule as we propose to do for cash allocations?
iv. Hypothetical Performance
The proposed rule would allow an adviser to provide hypothetical performance in an advertisement, provided that the adviser takes certain steps to address the misleading nature of hypothetical performance if its underlying assumptions are not subjected to further analysis. An investment adviser may seek to advertise hypothetical performance results as a way to reflect the adviser’s strategies or methods when such strategies or methods have not been implemented on actual portfolios of actual clients. There are various types of hypothetical performance that an adviser may seek to advertise. For example, an adviser may apply strategies to fictitious portfolios that it tracks and manages over time but without investing actual money. Or, an adviser employing a quantitative investment strategy using automated systems to make investment decisions may wish to present backtested performance showing simulated performance results of that strategy. An adviser also may wish to show the returns that it is seeking to achieve over a particular time period or that it projects based on certain estimates. Hypothetical performance presentations pose a high risk of misleading investors because, in many cases, this type of performance may be readily optimized through hindsight. Moreover, the absence of an actual client or actual money underlying hypothetical performance raises the risk of misleading investors, because there are no actual losses or other real-world consequences if an adviser makes a bad investment or takes on excessive risk. However, hypothetical performance may be useful to prospective investors that have the resources to analyze the underlying assumptions and qualifications of the presentation, as well as other information that may demonstrate the adviser’s investment process. When subjected to this analysis, the information may allow an investor to evaluate an adviser’s investment process over a wide range of time periods and market environments or form reasonable expectations about how the investment process might perform under different conditions. The proposed rule therefore would condition the presentation of hypothetical performance on the adviser adopting policies and procedures reasonably designed to ensure that it is disseminated only to persons for which it is relevant to their financial situation and investment objectives, and would further require the adviser to provide additional information about the hypothetical performance that is tailored to the audience receiving it, such that the recipient has sufficient information to understand the criteria, assumptions, risks, and limitations. We believe these conditions will result in the dissemination of hypothetical performance only to those investors who have access to the resources necessary to independently analyze this information, including by modifying the assumptions to test their effect on results, and who have the financial expertise to understand the risks and limitations of these
types of presentations. A. Types of Hypothetical Performance The proposed rule would define ‘‘hypothetical performance’’ as ‘‘performance results that were not actually achieved by any portfolio of any client of the investment adviser’’ and would explicitly include, but not be limited to, backtested performance, representative performance, and targeted or projected performance returns. We discuss each type of hypothetical performance under the proposed rule in the following sections. Backtested Performance. Backtested performance is achieved by application of an investment adviser’s investment strategy to market data from prior periods when the strategy was not actually used during those periods.298 Backtesting is intended to demonstrate how an investment strategy may have performed in the past if the strategy had existed or had been applied at that time. An investor conducting diligence on a newly launched quantitative investment strategy, for instance, may request backtested performance to further analyze the adviser’s quantitative model as well as the assumptions, inputs, and quantitative parameters used by the adviser. The investor may request backtested performance to determine how the adviser adjusted its model to reflect new or changed data sources. An investor with the resources to assess the backtested performance may also gain an understanding of other aspects of the investment strategy, including exposures and risk tolerances in certain market conditions, and develop reasonable expectations of how the strategy might perform in the future under different market conditions. Because backtested performance is calculated after the end of the relevant period, however, it presents the opportunity for an investment adviser to claim credit for investment decisions that may have been optimized through

299See, e.g., David H. Bailey, Jonathan M. Borwein, Marcos Lo´pez de Prado, and Qiji Jim Zhu, Pseudo-Mathematics and Financial Charlatanism:
The Effects of Backtest Overfitting on Out-ofSample Performance, 61(5) Notices of the Am. Mathematical Society, 458, 466 (May 2014), available at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2308659 (describing the potential to overfit an investment strategy so that it performs well in-sample (the simulation over the sample used in the design of the strategy) but performs poorly out-of-sample (the simulation over a sample not used in the design of the strategy)). 300See proposed rule 206(4)–1(e)(5)(i). Representative performance would include, among other things, the type of ‘‘model performance’’ described in the Clover Letter: Performance results generated by a ‘‘model’’ portfolio managed with the same investment philosophy used by the adviser for actual client accounts and ‘‘consist[ing] of the same securities’’ recommended by the adviser to its clients during the same time period, ‘‘with variances in specific client objectives being addressed via the asset allocation process (i.e., the relative weighting of stocks, bonds, and cash equivalents in each account)’’. See Clover Letter. The proposed rule would treat this as hypothetical performance because although the ‘‘model’’ consists of the same securities held by several portfolios, the asset allocation process would result in performance results that were not ‘‘actually achieved’’ by a portfolio of ‘‘any client.’’ 301Proposed rule 206(4)–1(e)(5)(iii). 302FINRA permits ‘‘investment analysis tools’’ as a limited exception from FINRA’s general prohibition of projections of performance, subject to certain conditions and disclosures. FINRA rule 2214(b) defines ‘‘investment analysis tool’’ as ‘‘an interactive technological tool that produces simulations and statistical analyses that present the likelihood of various investment outcomes if certain investments are made or certain investment strategies or styles are undertaken, thereby serving as an additional resource to investors in the evaluation of the potential risks and returns of investment choices.’’ hindsight, rather than on a forwardlooking application of stated investment methods or criteria and with investment decisions made in real time and with actual financial risk. For example, an investment adviser is able to modify its investment strategy or choice of parameters and assumptions until it can generate attractive results and then present those as evidence of how its strategy would have performed in the past.299 In addition, backtested performance can be generated with the knowledge of factors that may have positively affected its performance. Also, an adviser can fail to take into account how one or more investments would have performed if the adviser had bought or sold those investments at a different time during the performance period. Backtested performance presents a greater risk of misleading investors when an adviser uses proprietary trading models updated in light of past experiences to make investment allocation
decisions. If the adviser updates the models to incorporate new market data, it could be misleading. The presentation of the performance could then suggest that the adviser’s clients could have actually experienced the performance achieved through a model using updated market information, when in fact the model was changed on the basis of actual market experience that would not have been available at the time. These risks highlight the potential for backtested performance to be misleading if additional analysis and due diligence is not performed by the target audience. We believe that investors who may consider this type of hypothetical performance to be a useful tool would need to conduct this additional analysis and due diligence. We also understand the potential value of such data to investors. Representative Performance. Representative performance, including performance derived from representative ‘‘model’’ portfolios managed contemporaneously alongside portfolios managed by the adviser for actual clients does not reflect decisions made by the investment adviser in managing actual accounts.300 Model performance can help an investor gain an understanding of an adviser’s investment process and management style if the investor has the resources to scrutinize that performance and the underlying assumptions. For instance, model performance may present a nuanced view of how an adviser would construct a portfolio without the impact of certain factors, such as the timing of cash flows or client-specific restrictions, that may not be relevant to the particular investor. Model performance also can help an investor assess the adviser’s investment style for new strategies that have not yet been widely adopted by the adviser’s clients. Advances in computer technologies have enabled an adviser to generate hundreds or thousands of potential model portfolios alongside the ones it actually offers or manages. To the extent that an adviser thus generates a large number of potential model portfolios, the use of such a representative model portfolio poses a risk of survivorship bias where an adviser is incentivized to advertise only the results of the highest performing models and ignore others. The adviser could run numerous variations of its investment strategy, select the most attractive results, and then present those results as evidence of how well the strategy would have performed under prior market conditions. In addition, even in cases where an adviser generates only a single model portfolio, the fact that there is neither client nor adviser assets at risk may allow the adviser to manage that portfolio in a significantly different manner than if such risk existed. Targets and Projections. Targeted returns reflect an investment adviser’s performance target—i.e., the returns that the investment adviser is seeking to achieve over a particular period of time. Projected returns reflect an investment adviser’s performance estimate—i.e., the returns that the
investment adviser believes can be achieved using the advertised investment services. Projected returns are commonly established through the use of mathematical modeling. The proposed rule does not define ‘‘targeted return’’ or ‘‘projected return.’’ We believe that these terms are best defined by their commonly understood meanings, and do not intend to narrow or expand inadvertently the wide variety of returns that may be considered targets or projections. We generally would consider a target or projection to be any type of performance that an advertisement presents as results that could be achieved, are likely to be achieved, or may be achieved in the future by the investment adviser with respect to an investor. The proposed rule would apply to targeted or projected performance returns ‘‘with respect to any portfolio or to the investment services offered or promoted in the advertisement.’’ 301 Accordingly, projections for general market performance or economic conditions in an advertisement would not be considered targeted or projected performance returns. Similarly, an interactive financial analysis tool that offers historical return information or investment analysis of a portfolio based on past market data but does not project such returns forward would not be deemed to be targeted or projected performance returns under the proposed rule. Interactive tools that allow an investor to select its own targeted or assumed rate of return and to project forward a portfolio using that investor’s selected rate of return also would not be considered to be targeted or projected performance returns, provided that the tool does not suggest or imply a return rate. On the other hand, if the interactive tool provides anticipated returns for the investment strategy being presented, the tool would be considered to provide targeted or projected performance results and would be subject to the proposed rule’s conditions regarding hypothetical performance.302 Targeted and projected performance returns can potentially mislead investors, particularly if they are based on assumptions that are not reasonably

303 In a reflection of the risks posed by projected returns, FINRA’s communications rule prohibits the prediction or projection of performance in most cases. See FINRA rule 2210(d)(1)(F). FINRA’s prohibition does not apply to (i) a hypothetical illustration of mathematical principles, (ii) certain investment analysis tools, and (iii) a price target contained in a research report, under certain conditions. See id. 304For example, knowing whether one type of private fund projects or targets a particular return over a particular time period may assist a pension plan in determining whether to invest in that type of private fund or to consider another type of private fund projecting a different return. See, e.g., National Association of State Retirement Administrators (NASRA) Issue Brief: Public Pension Plan Investment Return Assumptions (Feb. 2019), available at https://www.nasra.org/files/Issue %20Briefs/NASRAInvReturnAssumptBrief.pdf (‘‘Funding a pension benefit requires the use of projections, known as actuarial assumptions, about future events. Actuarial assumptions fall into one of two broad categories: demographics and economic.’’). achievable. For example, an advertisement may present unwarranted claims based on assumptions that are virtually impossible to occur in reality, such as an assumption that three or four specific industries will experience decades of uninterrupted growth. Targets and projections can easily be presented in such a manner to raise unrealistic expectations of an advertisement’s audience.303 Suitable reliance on targets or projections requires an analysis and diligence of such assumptions in order for an investor to not be misled into thinking that such targets or projections are guaranteed. We recognize that some investors want to consider targeted returns and projected returns (along with these underlying assumptions) when evaluating investment products, strategies, and services. For example, based on our staff’s outreach and experience, we understand that NonRetail Persons in particular may have specific return targets that they seek to achieve, and their planning processes may necessarily include reviewing and analyzing the targets advertised by investment advisers and the information underlying those targets.304 Specifically, an analysis of these targets or projections can inform an investor about an adviser’s risk tolerances when managing a particular strategy. Information about an adviser’s targets or projections also can be useful to an investor when assessing how the adviser’s strategy fits within the investor’s overall portfolio. We request comment on the proposed definition of ‘‘hypothetical performance’’ and the specific types of hypothetical performance addressed in the proposed definition.

Is the proposed definition of
‘‘hypothetical performance’’ clear? If not, how should we modify this definition? For example, should we clarify the treatment of indexes (including indexes sponsored by or created by the adviser or its affiliate) and benchmarks under the definition of hypothetical performance?
Are there types of performance that
investment advisers currently present in advertising that would meet the proposed rule’s definition of ‘‘representative model performance’’ but should not be treated as hypothetical performance under the proposed rule? What types of performance and why should they not be treated as hypothetical performance?
Do commenters agree with the
proposed rule’s treatment of targeted and projected returns as hypothetical performance? Should we treat targeted and projected returns differently from hypothetical performance? If so, why and how?
Should we define ‘‘targeted
returns’’ or ‘‘projected returns’’? If so, how should we define them? Do commenters agree with our discussion above about what should be considered a target or projection? Should we provide in the rule exclusions for specific kinds of presentations that would not be considered target or projected returns? Why or why not?
Should we prohibit hypothetical
performance in advertisements? Should performance results of portfolios that are managed by an investment adviser, but without investing actual money, be treated differently than other types of performance results under the proposed rule?
Are our beliefs correct about the
risks of backtested and representative performance and of targeted and projected returns? Are there circumstances under which these types of hypothetical performance do not present the risks we identified? Are there other risks that we should consider?
Are there types of performance that
would meet the proposed rule’s definition of ‘‘backtested performance’’ but should not be treated as such? What types and how should we modify the definition?
Are there types of performance that
would meet the proposed rule’s definition of ‘‘representative performance’’ but should not be treated as such? What types and how should we modify the definition?
How do investment advisers
currently present targeted or projected returns in advertisements? Do investment advisers ever disclose to investors when targeted or projected returns are met or are not met, and the reasons why such returns are met or not met? Should we require such disclosure? Why or why not?
FINRA’s communications rule
prohibits the projection of performance in most cases. Have broker-dealers had experience in interpreting FINRA’s rule with respect to the projection of performance? Is there anything that we should consider in our treatment of projected returns?
Should we provide a specific
exception for interactive financial analysis tools from the proposed rule’s approach to performance of projected returns? If so, should we consider FINRA’s approach or another approach? What approach and why?
In complying with the current rule,
have investment advisers addressed any of the risks of hypothetical performance we describe above, or other risks of hypothetical performance? If so, how?
Are there any specific disclosures
that we should require to prevent any type of hypothetical performance from misleading the audience? If so, which disclosures should we require and why?
Are there additional uses for
hypothetical performance generally, or any type of hypothetical performance specifically, that benefit investors? B. Conditions on Presentation of Hypothetical Performance Taking into account the risks and the potential utility of hypothetical performance when investors have a need for such performance and are able to subject it to sufficient independent analysis and due diligence, the proposed rule would permit the presentation of hypothetical performance in advertisements under certain conditions. Together, these conditions are intended to address the potential for hypothetical performance to be misleading. First, the adviser must adopt and implement policies and procedures reasonably designed to ensure that the hypothetical performance is relevant to the financial situation and investment objectives of the person to whom the advertisement is disseminated (the ‘‘recipient’’). Second, the adviser must provide sufficient information to enable the recipient to understand the criteria used and assumptions made in calculating such hypothetical performance (the ‘‘calculation information’’). Third, the adviser must provide (or, when the recipient is a Non-Retail Person, offer to provide promptly) sufficient information to enable the recipient to understand the risks and limitations of using hypothetical performance in making investment decisions (the ‘‘risk

305Proposed rule 206(4)–1(c)(1)(v)(C). 306Proposed rule 206(4)–1(c)(1)(v)(A). 307 In this respect, this condition would mirror in
part the proposed definition of ‘‘Non-Retail
Advertisement,’’ which would require an adviser to adopt and implement policies and procedures reasonably designed to ensure that Non-Retail Advertisements are disseminated solely to NonRetail Persons, as discussed above. See supra footnotes 231–232 and accompanying text. 308See Comment Letter of ILPA on the 2019 Concept Release (Sept. 24, 2019) (stating that, in considering investments in private funds, ‘‘[l]arge institutional investors spend hours of due diligence in undergoing their own manager selection processes. Evaluating and considering the potential success of management and teams is critical.’’). 309See, e.g., proposed rule 206(4)–1(c)(1)(v)(B) (requiring an investment adviser to provide certain information as a condition of presenting hypothetical performance in an advertisement). The provisions of paragraph (a) of the proposed rule, including the prohibition of material claims or statements that are unsubstantiated, would apply to targets and projections, as would the general antifraud provisions of the Federal securities laws. information’’).305 For purposes of this discussion, we refer to the calculation information and the risk information collectively as ‘‘underlying information.’’ Policies and Procedures. The first condition for the presentation of hypothetical performance would require the adviser to adopt and implement policies and procedures ‘‘reasonably designed to ensure that the hypothetical performance is relevant to the financial situation and investment objectives’’ of the recipient.306 This proposed condition is intended to ensure that the adviser provides hypothetical performance only where the recipient has the financial and analytical resources to assess the hypothetical performance and that the hypothetical performance would be relevant to the recipient’s investment objective. This condition would provide investment advisers with flexibility to develop policies and procedures that best suit their investor bases and operations and that target the types of hypothetical performance the adviser intends to use in its advertisements as well as the intended recipients of the hypothetical performance.307 For example, an investment adviser that plans to advise a new private fund might develop policies and procedures that take into account its experience advising a prior fund for which it raised money from investors. That experience might indicate that the prior fund’s investors valued a particular type of hypothetical performance because, for example, the investors used it to assess the adviser’s strategy and investment process and had the resources to make that assessment. The adviser’s policies and procedures could then reflect its determination that this type of hypothetical performance is relevant to the financial situation and investment objectives of those investors or investors of a similar type. Reasonably designed policies and procedures need not require an adviser to inquire into the specific financial situation
and investment objectives of each potential recipient. Instead, such policies and procedures could identify the characteristics of investors for which the adviser has determined that a particular type or particular presentation of hypothetical performance is relevant and a description of that determination. In many cases, that determination could be made on the basis of the adviser’s past experience with investors belonging to that group. For example, an adviser could determine that certain hypothetical performance presentations are relevant to the financial situation and investment objectives of certain types of investors, based on routine requests from those types of investors in the past. An adviser’s experience could similarly provide it with an understanding of the analytical resources available to investors of a particular type. The adviser could then incorporate its understanding into its policies and procedures. We understand that Non-Retail Persons in particular routinely evaluate the types of performance that the proposed rule would treat as hypothetical performance as part of their due diligence in hiring investment advisers and that Non-Retail Persons believe that such performance is relevant to their financial situation and investment objectives.308 With appropriate analytical and other resources, these investors may assess and conduct diligence on hypothetical performance and the underlying assumptions and methodologies in light of market conditions, investment policies, objectives and strategies, leverage, and other factors that they believe to be important. For example, these investors may routinely analyze backtested performance to assess how a quantitative strategy would have performed under market conditions that such investors expect might occur in the near future. Non-Retail Persons also generally have the resources to obtain information that can inform their assessment, and would be provided additional information from the adviser under the conditions of the proposed rule.309 Accordingly, an adviser could consider this experience when designing policies and procedures to provide hypothetical performance where it is relevant to the investor’s financial situation and investment objectives. On the other hand, hypothetical performance may be less relevant to the financial situation and investment objectives of investors that do not have access to analytical and other resources to enable them to analyze the hypothetical performance and underlying information. For example, analysis of hypothetical performance may require tools and/or other data to assess the impact of assumptions in driving hypothetical performance, such as factor or other performance attribution, fee compounding, or the probability of various outcomes. Without being able to subject hypothetical performance to additional analysis, this information would tell an investor little about an investment adviser’s process or other information relevant to a decision to
hire the adviser. Instead, viewing the hypothetical performance (without analyzing and performing the necessary due diligence on the underlying information) could mislead an investor to believe something about the adviser’s experience or ability that is unwarranted. We believe that advisers should give closer scrutiny as to whether hypothetical performance is relevant to those investors’ financial situation and investment objectives. An adviser could determine, based on its experience, that hypothetical performance is not relevant to the financial situation and investment objectives of Retail Persons and reflect such determination in its policies and procedures. However, we believe that in some cases an adviser may reasonably determine that hypothetical performance is relevant to a particular Retail Person. To determine whether hypothetical performance is relevant with respect to a Retail Person, reasonably designed policies and procedures should include parameters that address whether the Retail Person has the resources to analyze the underlying assumptions and qualifications of the hypothetical performance to assess the adviser’s investment strategy or processes, as well as the investment objectives for which such performance would be applicable. In light of that, we believe that advisers generally would not be able to include hypothetical performance in advertisements that are directed to a mass audience or intended for general circulation because such an advertisement would be available to all investors, regardless of their financial situation or investment objectives. Calculation Information. The second condition for the presentation of

310Proposed rule 206(4)–1(c)(1)(v)(B). 311We believe that an ability to replicate the hypothetical performance would be another indication of the adviser’s operations and methods, assuming that the recipient of the information also has sufficient information about the risks and limitations of the performance. That is, the recipient could determine that applying the adviser’s methodologies and assumptions can produce the same results reflected in the hypothetical performance, which could indicate the utility of those methodologies and assumptions and how the adviser applies them. 312The proposed rule does not prescribe any particular methodology or calculation for the different categories of hypothetical performance, just as it does not prescribe methodologies or calculations for actual performance. Instead, the proposed rule would require investment advisers including hypothetical performance in an advertisement to provide the calculation information so that the recipient can understand how the hypothetical performance was calculated. 313 In addition, we would consider any calculation information provided alongside the hypothetical performance to be a part of the advertisement and therefore subject to the books and records rule. See infra section II.C.7; see also supra footnote 106 and accompanying text. 314This obligation would be similar to an adviser’s obligation to provide full and fair disclosure to its clients of all material facts relating to the advisory relationship and of conflicts of interest. See Standard of Conduct Release, supra footnote 23, at n. 70 (stating that institutional clients ‘‘generally have a greater capacity and more resources then retail clients to analyze and understand complex conflicts and their ramifications’’). 315Proposed rule 206(4)–1(c)(1)(v)(C). 316With respect to backtested performance, one such general risk and limitation would be the fact that backtested performance represents the application of a strategy that was created after the performance period shown in the results and, accordingly, was created with the benefit of hindsight. 317 In addition, we would consider any risk information provided in connection with the hypothetical performance to be a part of the advertisement and therefore subject to the books and records rule. See infra section II.C.7; see also supra footnote 106 and accompanying text. 318See supra footnote 314. 319Proposed rule 206(4)–1(c)(1)(v)(C) (permitting an adviser to ‘‘offer to provide promptly’’ such information if the recipient is a Non-Retail Person). However, this advertisement would continue to be subject to the prohibitions in proposed rule 206(4)– 1(a). hypothetical performance would require the adviser to provide sufficient information to enable the recipient to understand the criteria used and assumptions made in calculating the hypothetical performance.310 With respect to criteria, investment advisers should provide information that includes the methodology used in
calculating and generating the hypothetical performance. With respect to assumptions, investment advisers should provide information that includes any assumptions on which the hypothetical performance rests—e.g., the likelihood of a given event occurring. We propose to require advisers to provide this calculation information so that the recipient is able to determine, in part, how much value to attribute to the hypothetical performance. This calculation information also would provide the recipient with insight into the adviser’s operations. For example, this information could allow the recipient to understand how the adviser identifies the criteria and assumptions supporting the hypothetical performance and accounts for them in generating that performance. In addition, any disclosed calculation information might be a basis for additional discussions between the recipient and the investment adviser, which would add to the information available to the recipient. Finally, this calculation information might enable the recipient to attempt to replicate the hypothetical performance using its own analytical tools or other resources, which might allow the recipient to evaluate further the utility of the hypothetical performance.311 The proposed rule would require that calculation information be provided to all investors receiving hypothetical performance, even to Non-Retail Persons. We believe Non-Retail Persons should receive this information and understand that, even with their access to resources, Non-Retail Persons may struggle at times to receive sufficient information from investment advisers explaining the methodology by which hypothetical performance was calculated and generated.312 Without calculation information, we believe that such performance would be misleading even to an audience with the analytical or other resources necessary to evaluate it. Accordingly, the proposed rule would require an adviser presenting hypothetical performance to provide this calculation information to NonRetail Persons.313 Calculation information should be tailored to the person receiving it, though such tailoring could apply to general categories of persons, such as Retail Persons or Non-Retail Persons. The amount of calculation information and level of detail provided to a Retail Person may differ significantly from the amount and level that would be sufficient to enable a Non-Retail Person to understand it. For example, a Retail Person may require additional explanations of certain key terms that may be familiar to a Non-Retail Person. To determine what calculation information to provide, an adviser would need to determine the type and amount of calculation information that could be understood by the recipient.314 Risk Information. Finally, the proposed rule would require the adviser to provide—or, if the recipient is a NonRetail Person, to provide or offer to provide promptly—information to understand the risks and limitations of using the hypothetical
performance in making investment decisions.315 With respect to risks and limitations, investment advisers should provide information that would apply to both hypothetical performance generally— e.g., the fact that hypothetical performance does not reflect actual investments 316—and to the specific hypothetical performance presented— e.g., if applicable, the fact that the hypothetical performance represents the application of certain assumptions but that the adviser generated dozens of other, lower performance results representing the application of different assumptions. Risk information should also include any known reasons why the hypothetical performance would have differed from actual performance of a portfolio—e.g., the fact that the hypothetical performance does not reflect cash flows in to or out of the portfolio. This risk information would, in part, enable the recipient to understand how much value to attribute to the hypothetical performance in deciding whether to hire or retain the investment adviser.317 Just as with calculation information, risk information should be tailored to the person receiving it, although it may be tailored to general categories of persons.318 For example, sufficient information for a Retail Person to understand the risks and limitations of the advertised hypothetical performance may require charts, graphs, or other pictorial representations, which may be unnecessary for a Non-Retail Person. In addition, the investment adviser must provide risk information to Retail Persons in all cases, but for Non-Retail Persons an adviser could either provide it or offer to provide it promptly. We believe risk information is essential in mitigating the risk that hypothetical performance may be misleading to Retail Persons. We believe that NonRetail Persons are more likely aware of the risks and limitations of hypothetical performance, particularly when they are provided with the calculation information that the proposed rule would require and could analyze the hypothetical performance using their own assumptions. Accordingly, the proposed rule would only require an adviser to provide this risk information to a Non-Retail Person if the Non-Retail Person accepts the offer for it.319 A NonRetail Person may determine that it has

320See, e.g., supra footnotes 188–199 and accompanying text. 321Proposed rule 206(4)–1(a)(4). For example, if a presentation of hypothetical performance implies that an adviser’s operations are structured so that the adviser can update its investment models quickly, then the advertisement must discuss any associated material risks from that implied benefit—e.g., that quickly updating the investment model may result in the adviser over-interpreting recent data and missing subsequent growth that the adviser would have achieved if the model had not been updated. 322Proposed rule 206(4)–1(c)(1)(v)(C). no use for the risk information and may decline to accept the offer. However, once the Non-Retail Person requests the risk information, the proposed rule would require that the adviser provide it. In addition, any advertisement including hypothetical performance would be required to comply with the provisions in proposed rule 206(4)–1(a). As a result, the proposed rule would prohibit advisers from presenting hypothetical performance in a materially misleading way.320 For example, we would view an advertisement as including an untrue statement of material fact if the advertised hypothetical performance reflected the application of methodologies, rules, criteria, or assumptions that were materially different from those stated or applied in the underlying information of such hypothetical performance. In addition, we would view it as materially misleading for an advertisement to present hypothetical performance that implies any potential benefits resulting from the adviser’s methods of operation without clearly and prominently discussing any associated material risks or other limitations associated with the potential benefits.321 Similarly, an advertisement presenting hypothetical performance that includes an offer to provide promptly risk information to a Non-Retail Person, pursuant to proposed rule 206(4)–1(c)(1)(v)(C), would be materially false and misleading if the adviser subsequently failed to make efforts to provide such information upon the Non-Retail Person’s request.322 We request comment on the proposed conditions to presenting hypothetical performance in advertisements.

Should we prohibit the presentation
of hypothetical performance in any advertisement? Why or why not? Instead of a complete prohibition, should we prohibit the presentation of hypothetical performance, or specific types of hypothetical performance, under specific circumstances? If so, what circumstances? Should we prohibit the presentation of hypothetical performance in Retail Advertisements but not in Non-Retail Advertisements (or vice versa)?
Should we permit the presentation
of hypothetical performance in any advertisement without condition? Why or why not?
Should we require, as proposed,
that advisers adopt and implement policies and procedures designed to ensure that hypothetical performance is relevant to a recipient’s financial situation and investment objectives? Would such policies and procedures ensure that hypothetical performance is only provided to those for whom it is relevant? Would providing hypothetical performance only to those for whom it is relevant help prevent such performance from being misleading? Would advisers be able to make the determination that hypothetical performance is relevant?
Should we consider another
standard other than ‘‘relevant’’ to a recipient’s ‘‘financial situation and investment objectives’’ to help protect against hypothetical performance being provided to persons who would be misled by it? For example, should we instead require that such performance be provided only to persons whom the adviser reasonably believes may use such performance in considering whether to hire or retain an adviser and that have sufficient access to analytical and other resources to evaluate or test the assumptions underlying the hypothetical performance so as to make the hypothetical performance not misleading? Alternatively, should we limit the distribution of this performance to persons whom the adviser reasonably believes would use it in evaluating whether to hire or retain the adviser? Alternatively, should we avoid limiting at all the distribution of hypothetical performance, which some investors may find useful?
Should we instead consider
categorical approaches—e.g., should we instead allow hypothetical performance to be provided to Non-Retail Persons in all cases without requiring the adviser to adopt policies and procedures? Should we allow its presentation to Non-Retail Persons but prohibit its presentation to Retail Persons entirely?
Are there specific disclosures that
we should require to decrease the likelihood that hypothetical performance, or specific types of hypothetical performance, would be misleading—e.g., describing the fact that the performance was not generated by actual portfolios of actual clients of the investment adviser and describing the limitations of hypothetical performance? If so, should we identify those and specifically require their disclosure?
Are there specific disclosures that
we should require to decrease the likelihood that hypothetical performance would be misleading to Retail Persons? If so, should we identify those and specifically require those disclosures? Should we require different disclosures for Retail Persons and NonRetail Persons, or is the tailoring implicitly permitted under the proposed rule’s ‘‘sufficient information’’ standard enough?
Should we include any other
requirements or conditions for advertisements presenting hypothetical performance, or any specific type of hypothetical performance? What other requirements or conditions and why should we require them?
Is there another approach that we
should consider for hypothetical performance being provided to Retail Persons? Are there any types of hypothetical performance that are sufficiently similar to actual results of a portfolio of an actual client that we should permit their presentation in a Retail Advertisement or their dissemination to Retail Persons without conditions?
Are the proposed ‘‘calculation
information’’ and ‘‘risk information’’ provisions sufficiently clear based on our description above? Should we require specifically that such information be designed to allow the audience to replicate the hypothetical performance presented? Why or why not?
Would investment advisers face any
compliance challenges in complying with the proposed ‘‘calculation information’’ or ‘‘risk information’’ provisions? Would there be circumstances in which investment advisers might have to provide proprietary or sensitive information? Should we take those challenges or circumstances into account? If so, how?
Should we require that the risk
information be provided (not just offered to be provided) to Non-Retail Persons as well as to Retail Persons? Conversely, should we allow the calculation information to be only offered to Non-Retail Persons (instead of requiring it to be provided)?
Under the current rule, have
investment advisers taken the same approach that we are proposing with respect to hypothetical performance— i.e., providing or offering to provide specific information? Have investors accepted any such offers or requested any additional information? To what extent and under what circumstances have any such investors been misled by

323For purposes of this discussion, ‘‘predecessor performance results’’ refers to all situations where an advertisement of an investment adviser presents investment performance achieved by a portfolio that was not advised at all times during the period shown by the investment adviser. 324See current rule 206(4)–1(a)(5) (prohibiting the publication, circulation, or distribution of any advertisement ‘‘which contains any untrue statement of a material fact, or which is otherwise false or misleading’’). We have addressed this concern in the presentation of performance results by RICs. See Instruction 4 to Item 4(b)(2) of Form N–1A; Instruction 11 to Item 27(b)(7) of Form N– 1A. 325See, e.g., Fiduciary Mgmt. Assocs., Inc., SEC Staff No-Action Letter (Feb. 2, 1984). 326See Rule 204–2(a)(16). 327See, e.g., Horizon Letter; see also Great Lakes Advisers, Inc., SEC Staff No-Action Letter (Apr. 3,
1992) (stating the staff’s views that it may not be
misleading for a successor adviser, composed of less than 100 percent of the predecessor’s committee, to use the predecessor performance results so long as there is a ‘‘substantial identity’’ of personnel) (‘‘Great Lakes Letter’’). the presentation of hypothetical performance? Have investors who have requested additional performance results included persons other than qualified purchasers and knowledgeable employees? d. General Request for Comment on Performance Advertising We believe that the proposed rule’s requirements with respect to performance advertising are generally consistent with widely used, internationally recognized standards of performance reporting, such as GIPS. Accordingly, we believe that investment advisers will be able to comply with both the provisions of the proposed rule and the requirements of such standards, without undue burdens. We request comment below on this issue.

Are our beliefs correct that the
proposed rule’s requirements are consistent with widely-used, internationally-recognized standards of performance presentation, such as GIPS? Would investment advisers find it difficult or impossible comply with both the provisions of the proposed rule and the requirements of any such standards in order to comply with the proposed rule’s requirements? If so, which requirements would create such difficulty or impossibility and how? Should we address any such difficulty or impossibility? If so, how? Should we adopt a more principles-based approach to afford flexibility in the event that such private standards change? We request general comment on the proposed rule’s requirements for performance advertising.
Are there specific concerns about
performance advertising that the proposed rule does not take into account that we should consider? What specific concerns, and how should we take them into account? Conversely, are there provisions of the proposed rule’s performance advertising provisions that address concerns you believe to be unfounded?
Should we consider removing some
of the proposed rule’s requirements for performance advertising and instead rely on paragraph (a) of the proposed rule and the general anti-fraud provisions of the Federal securities laws to prevent the use of performance advertising that is false or misleading? Why or why not? Are there additional requirements that we should consider including in the proposed rule with respect to performance advertising in order to supplement paragraph (a)? What additional requirements and how would they supplement paragraph (a)?
Taken as a whole, are the
disclosures required by the proposed rule for performance advertising sufficient or insufficient? Are there changes to these disclosures that we should consider in order to make them more useful or meaningful for investors, whether natural persons or institutions? What changes and how would they improve the utility of the disclosures?
Should we impose on Non-Retail
Advertisements presenting performance results the same or similar requirements that the proposed rule imposes on Retail Advertisements? For example, should we require Non-Retail Advertisements to present net performance or to present performance results for certain specified periods of time? Why or why not?
Should we specify any types of
information that advisers may refrain from disclosing when responding to prospective investors seeking the information that must be offered in advertisements? Are advisers concerned that their competitors may seek to acquire such information through requests responding to those offers? Do advisers have any other concerns regarding competition that the proposed rule may cause or should address?

Portability of Performance,
Testimonials, Third Party Ratings, and Specific Investment Advice Among the performance results that an investment adviser may seek to advertise are those of portfolios or accounts for which the adviser, its personnel, or its predecessor investment adviser firms have provided investment advice in the past as or at a different entity. In some cases, an investment adviser may seek to advertise the performance results of portfolios managed by the investment adviser before it was spun out from another adviser. Or an adviser may seek to advertise performance achieved by its investment personnel when they were employed by another investment adviser. This may occur, for example, when a portfolio manager or team of portfolio managers leaves one advisory firm and joins another advisory firm or begins a new advisory firm. These predecessor performance results may be directly relevant to an audience when the advertisement offers services to be provided by the personnel responsible for the predecessor performance, even when the personnel did not work during the period for which performance is being advertised for the adviser disseminating the advertisement (the ‘‘advertising adviser’’).323 However, predecessor performance results achieved by another investment adviser, or by personnel of another investment adviser, may be presented in a false or misleading manner by the advertising adviser.324 For example, predecessor performance may be misleading to the extent that the team that was primarily responsible for the predecessor performance is different from the team whose advisory services are being offered or promoted in the advertisement, including when an individual who played a significant part in achieving the predecessor performance is not a member of the advertising adviser’s investment team.325 Similarly, predecessor performance may be misleading if the advertisement does not disclose that the predecessor performance was achieved by different personnel, or by a different advisory entity, than the personnel or entity whose services are being offered or promoted. In some cases, the ability of an advertising adviser to present predecessor performance that is not misleading may be limited to the extent that that the advertising adviser lacks access to the books and records underlying the predecessor performance.326 Where an adviser selects portfolio securities by consensus or committee decision making, it may be difficult to attach relative significance to the role played by each group member, and so an advertising adviser may face difficulties in deciding how to portray performance results achieved by an adviser’s committee in a manner that is not misleading. Predecessor performance results may be misleading where they were achieved by an investment committee at the predecessor adviser, and the investment committee at the advertising adviser does not have a substantial identity of personnel with the old committee.327

328See proposed rule 206(4)–1(a)(6). 329See South State Bank, SEC Staff No-Action Letter (May 8, 2018) (conditioning the staff’s statement that it would not recommend enforcement action on representations including, for example, that the successor adviser would operate in the same manner and under the same brand name as the predecessor adviser). For purposes of the discussion in this section II.A.6., we do not consider a change of brand name, without more, by an investment adviser to render its past performance as ‘‘predecessor performance.’’ Likewise, a mere change in form of legal organization (e.g., from corporation to limited liability company) or a change in ownership of the adviser would likely not raise the concerns described in this section. 330Proposed rule 206(4)–1(a)(3). 331Proposed rule 206(4)–1(c). See also supra footnote 199 and accompanying text. 332See Horizon Letter; see also Great Lakes Letter, at n.3 (stating that rule 204–2(a)(16) ‘‘applies also to a successor’s use of a predecessor’s performance data’’). 333Rule 204–2(a)(16). 334See, e.g., Horizon Letter. Some circumstances under which predecessor performance results are misleading may be addressed through specific provisions we have included in the proposed rule. For example, depending on the facts and circumstances, predecessor performance results may be misleading where they exclude any accounts that were managed in a substantially similar manner, or where they include any accounts that were not managed in a substantially similar manner, at the predecessor firm. These presentations may result in the inclusion or exclusion of performance results in a manner that is neither accurate nor fair and balanced.328 Predecessor performance results may be misleading where the advertisement omits relevant disclosures, including that the performance results were from accounts managed at another entity. Predecessor performance results also may be misleading where, following an internal restructuring of another adviser, an advertising adviser does not operate in the same manner and under the same brand name that existed before the restructuring.329 These predecessor performance results may include an untrue or misleading implication about a material fact relating to the advertising adviser.330 Accordingly, advertisements presenting predecessor performance would be subject to the requirements imposed by the proposed rule on all advertisements, including paragraph (a), and the more specific performance advertising restrictions.331 We are requesting comment on whether it would be appropriate to include in the proposed rule additional provisions to address specifically the presentation of predecessor performance results. Our staff has stated that it would not recommend that the Commission take any enforcement action under section 206 of the Advisers Act or the current rule if an advertising adviser presents performance results achieved at another firm under certain conditions, including on
the basis of the adviser’s representation that the advertising adviser will keep the books and records of the predecessor firm that are necessary to substantiate the performance results in accordance with rule 204–2.332 We already require investment advisers to keep copies of all advertisements containing performance data and all documents necessary to form the basis of those calculations.333 We are considering how the books and records requirements should apply to portability of performance and whether the revised rule should explicitly require advertising advisers to have and keep the books and records of a predecessor firm or consider instead other requirements with respect to the records of performance of a predecessor firm presented in an advertisement. For example, if books and records of a predecessor firm are unavailable to an advertising adviser, it may be possible for the advertising adviser to substantiate the performance of the predecessor firm using information that was publicly available contemporaneously with such performance and verified or audited by or on behalf of the advertising adviser. We request comment on this aspect of the proposed rule. In particular, we request comment on:

Do commenters believe that we
should include specific provisions in the proposed rule to address the presentation of predecessor performance results? Or do commenters believe that the proposed rule, including the provisions of paragraph (a), will sufficiently prevent the presentation of predecessor performance results that are false or misleading? If we include specific provisions to address the presentation of predecessor performance results, what specific provisions should we include? How would those specific provisions prevent the presentation of predecessor performance results that is false or misleading?
Should we impose conditions on an
advertising adviser seeking to present predecessor performance results achieved at a prior advisory firm? Should we require that the individual or individuals who currently manage accounts at the advertising adviser to have been ‘‘primarily responsible’’ for achieving the predecessor performance results at the prior firm? If so, should we specify how ‘‘primary responsibility’’ is determined?
Should we address circumstances
in which predecessor performance results were achieved by portfolios managed by a committee (as opposed to an individual) at the prior firm? Should we require that if the portfolios at the predecessor firm were managed by a committee, the accounts at the advertising adviser must be managed by a committee comprising a substantial identity of the membership? Should we define or provide additional guidance regarding the ‘‘substantial identity’’ required, or require that the committee comprises a specific percentage or subset of members? Should we establish any specific requirements for how much of a role an individual has to play on the committee at the predecessor firm and on the committee at the advertising adviser?
Is there any circumstance under
which the membership of a committee at a predecessor firm is so different from the membership of a committee at the advertising adviser that any presentation of performance results from the predecessor firm should be prohibited? What are those circumstances?
Should the proposed rule
distinguish between predecessor performance results on the basis of strategy—for example, between fundamental and quantitative strategies? Are presentations of predecessor performance results less likely to be misleading to the extent that those results were generated by use of a proprietary, algorithmic strategy that the advertising adviser ‘‘owns’’ and expects to use going forward? Why or why not? Should the proposed rule distinguish between predecessor performance results on the basis of something other than strategy? What basis and why?
Should we require any similarity
between the accounts managed at the predecessor firm and the accounts presented by the advertising adviser— for example, having similar investment policies, objectives, and strategies? A presentation of predecessor performance results could be false or misleading if the accounts managed at the predecessor firm are not sufficiently similar to the accounts that the adviser currently manages such that the prior results would not provide relevant information to the advertising adviser’s prospective clients.334 Should the Commission take this approach and include such provision in the rule? If the Commission were to adopt this approach, should we specify how that

335Proposed rule 206(4)–1(d). 336See proposed rule 206(4)–1(c)(1)(v). similarity should be determined? Should we allow advertising advisers to present any performance results from predecessor firms without requiring that the advertising adviser determine whether the accounts are similar or the results are relevant, and let investors evaluate the relevance themselves? Would this approach be appropriate in Non-Retail Advertisements and not Retail Advertisements? Why or why not?

Should an investment adviser
seeking to present predecessor performance results be required to make any specific representations or disclosures in the advertisement? Or elsewhere?
Do commenters believe we should
consider amendments to the books and records rule to address the substantiation of performance results from a predecessor firm? Do investment advisers encounter any difficulties in accessing and retaining the books and records substantiating the performance results of a predecessor firm? Are there alternative books and records or other information that we could allow advertising advisers to rely on or retain in order to satisfy their obligations under the books and records rule with respect to predecessor performance results? Are there other sources of records that advisers currently rely on to substantiate performance results of a predecessor firm?
Do investment advisers encounter
difficulties in determining who ‘‘owns’’ the relevant performance results? That is, are investment advisers able to agree who should be able to advertise the prior performance results from the predecessor firm? How do investment advisers make this determination? Should we adopt requirements to clarify under what circumstances an advertising adviser may present predecessor performance results?
Should we clarify that an
advertising adviser may continue to advertise predecessor performance even if the personnel who achieved the predecessor performance, and who are employed by the advertising adviser, subsequently leave the advertising adviser? Why or why not? Our proposed rule would permit the use of testimonials and references to specific investment advice given by an investment adviser, unlike the blanket ban on their use under the current rule. As a consequence, similar questions to that of performance portability may arise about the use of testimonials and endorsements referring to a predecessor entity, past third-party ratings, or specific investment advice given at a previous firm. We believe that generally the same framework that advisers apply to whether predecessor performance can be carried forward, could also be applied when analyzing whether testimonials, endorsements, third-party ratings, or specific investment advice applicable to a predecessor entity could be used by an adviser in advertisements. We request comment on issues related to the use of testimonials, endorsements, third-party ratings, and specific investment advice associated with predecessor entities.
Should the same framework be used
for these purposes as that applicable when analyzing use of predecessor performance? Why or why not? If advisers were not to use the existing performance portability framework, how should we regulate the use of testimonials, endorsements, third-party ratings, and specific investment advice from a predecessor entity?
Would maintaining books and
records to substantiate the applicability and relevance of testimonials, endorsements, third-party ratings, and specific investment advice from a predecessor entity be feasible for advisers?
Should an adviser that seeks to use
testimonials, endorsements, third-party ratings, or specific investment advice from a predecessor entity be required to make any specific disclosures or representations in the advertisement explaining their source, limitations, or relevance?
Should we include specific
requirements in the advertising (or books and records) rule regarding the use of such predecessor information? If so, what should we require?

Review and Approval of
Advertisements
The proposed rule would require an adviser to have an advertisement reviewed and approved for consistency with the requirements of the proposed rule by a designated employee before, directly or indirectly, disseminating the advertisement, except for advertisements that are: (i) Communications that are disseminated only to a single person or household or to a single investor in a pooled investment vehicle; or (ii) live oral communications that are broadcast on radio, television, the internet, or any other similar medium.335 We are proposing this requirement because we believe it may reduce the likelihood of advisers violating the proposed rule. We are not proposing to require that investment adviser advertisements be filed with or approved by the Commission staff or a self-regulatory organization. Nonetheless, we believe it is important that investment advisers have a process in place designed to promote compliance with the proposed rule’s requirements. Requiring a written record of the review and approval of the advertisement will allow our examination staff to better review adviser compliance with the rule. The proposed rule would exclude communications that are disseminated only to a single person or household or to a single investor in a pooled investment vehicle from the review and approval requirement. The proposed rule would exclude these one-on-one communications, which may fall within the proposed definition of ‘‘advertisement,’’ from the scope of the review and approval requirement to avoid placing a significant burden on an adviser’s individual communications with its current or potential investors. For example, an employee of the adviser might otherwise submit each email to a single investor for review before dissemination, to determine whether it is an advertisement, and if so, whether it complies with the proposed rule. We believe this could have an adverse effect on the adviser’s business due to the delay in communicating with investors. In addition, we believe that requiring review and approval of each communication could impose significant costs on an adviser because of the staffing requirements such a requirement would entail. However, the other provisions of the proposed rule would continue to apply. For example, an adviser could not provide hypothetical performance to a client in a one-on-one communication unless it complies with the requirements of the proposed rule.336 Customizing a template presentation or mass mailing by filling in the name of an individual investor or including other basic information about the investor would not fall within the scope of this exception. In such a case the communication is not sent only to a single person because it is effectively a customized mass mailing. The proposed rule also would except live oral communications that are broadcast on radio, television, the internet, or any other similar medium from the review and approval requirement. We are excepting live oral communications that are
broadcast from the requirement because they are extemporaneous, and therefore they cannot effectively be reviewed and approved in advance. Nonetheless, to the extent live oral communications that

337Compare FINRA rule 2210 which requires, in
part, members to establish written procedures
designed to ensure that communications comply with applicable standards; retail communications (distributed or made available to 25 or fewer retail investors within any 30 calendar-day period) be approved internally, and certain communications must be filed with FINRA at least 10 days prior to their first use. Rule 2210 does not require the review and approval of correspondence. See rule 2210(b)–(c). 338Rule 206(4)–7 makes it unlawful for an investment adviser to provide investment advice unless the adviser has adopted and implemented written policies and procedures reasonably designed to prevent violation[s] of the Advisers Act and rules that the Commission has adopted under the Act, which would include revised rule 206(4)– 1 and its specific requirements. See rule 206(4)– 7(a). Rule 206(4)–7 also requires investment advisers to review, no less than annually, the adequacy of the policies and procedures and the effectiveness of their implementation, and to designate who is responsible for administering the policies and procedures adopted under the rule. See rule 206(4)–7(b)–(c). 339See Compliance Program Adopting Release, supra footnote 33, at 74716. 340This section discusses the Commission’s proposed rule and form amendments that would affect advisers registered with the Commission. We understand that the state securities authorities intend to consider similar changes that affect advisers registered with the states, who are also required to complete Form ADV Part 1B as part of their state registrations. We will accept any comments and forward them to the North American Securities Administrators Association (‘‘NASAA’’) for consideration by the state securities authorities. We request that you clearly indicate in your comment letter which of your comments relate to these items. are broadcast are also written or scripted, the scripts would be subject to the review and approval requirement. If a live oral communication that is broadcast is also recorded, and then later disseminated by or on behalf of the adviser, then the broadcast would qualify for the exception, but the recorded communication would not qualify. In addition, any prepared materials, such as slides, used in the live broadcast would not be subject to the exception and must be reviewed. The proposed rule would allow any designated employee to conduct the review and provide approval. This provision of the proposed rule is intended to provide advisers with the flexibility to assign the responsibilities of advertising reviews to any qualified employee. The reviewer should be competent and knowledgeable regarding the proposed rule’s requirements. Advisers may designate one or more employees to provide the required review and approval. We believe that designated employees generally should include legal or compliance personnel of the adviser. In general, we do not believe it would be appropriate for the person who creates the advertisement to be the same person who reviews and approves its
use, as such overlap of personnel is likely to reduce the utility and effectiveness of the review requirement. Nonetheless, we recognize that certain small or single-person advisers may not have separate personnel to create an advertisement and review it. We request comment below on potential approaches to the review requirement for such cases. Under the proposal, similar to new advertisements, updates to existing advertisements would also require review and approval. It is our understanding that the internal policies and procedures of most advisers currently require such reviews for broadly disseminated communications. In complying with the review requirement, advisers may need to expand the scope of existing reviews to account for the additional communications that may be included within the definition of ‘‘advertisement’’ under the proposed rule as discussed above. The proposed rule does not contain separate policy and procedure requirements other than this review and approval requirement.337 Nonetheless, existing compliance policies and procedures requirements in Advisers Act rule 206(4)–7 would apply to investment adviser advertisements made pursuant to the proposed advertising rule.338 In adopting rule 206(4)–7, the Commission stated that investment advisers should adopt policies and procedures that address ‘‘. . . the accuracy of disclosures made to investors, clients, and regulators, including account statements and advertisements.’’ 339 Investment advisers would continue to be required to include policies and procedures designed to prevent violations of the advertising rule in their compliance programs if the proposed rule were adopted. In considering their compliance policies and procedures, advisers should consider methods of preventing the dissemination of advertisements that might violate the rule. Advisers could document in their policies and procedures the process by which they determine that an advertisement complies with the proposed rule, as well as any significant changes to that process over time. For example, an adviser may wish to document the process by which it determines that advertisements that contain investment recommendations are fair and balanced and consistent with the rule (such as by using objective non-performance based standards) and if it changes that process, may wish to consider documenting the reasons for such changes. We request comment on our approach to the proposed review and approval requirement.

As proposed, should we require a
designated employee of an investment adviser to review and approve advertisements? Should we require that this review be conducted by only legal or compliance personnel of the adviser? Should we require that only employees of an adviser that are senior management be eligible to be designated as reviewers? Should we permit outside third parties, such as law firms or compliance consultants, to conduct these reviews?
Should the rule prohibit the same
individual who created the advertisement from reviewing and approving it? If so, how would small advisers, which may only have one individual qualified to create and review advertisements, comply with this requirement? Should the rule except them from the approval requirement, similar to the exception under rule 204A–1(d) of the Advisers Act for small advisers with only one access person from having that person approve his or her own personal security investments, provided they keep sufficient records?
Should we include the proposed
one-on-one communications exception to the requirement to review and approve advertisements? Is this necessary for advisers to communicate freely with investors? Is there another way to reduce the burden of reviewing individual communications before dissemination while reducing the likelihood that advisers may violate the proposed rule? Should the exception apply to communications with more than one investor? If so, how many?
Should we except live oral
communications that are broadcast from the review and approval requirement as proposed? Are there any other types of advertisements that we should except from the requirement?
Should we require any specific
compliance procedures in the advertising rule itself in addition to review and approval?
Should we require that the review
and approval process differ or be more or less comprehensive based on the audience that the advertisement is directed towards? If so, how?

Proposed Amendments to Form ADV
We are also proposing to amend Item 5 of Part 1A of Form ADV to improve information available to us and to the general public about advisers’ advertising practices.340 Item 5 currently requires an adviser to provide

341Exempt reporting advisers (that are not also registering with any state securities authority) are not required to complete Item 5 of Part 1A. Accordingly, our proposed subsection L of Item 5 of Part 1A would not be required for such advisers. See, e.g., Instruction 3 to Form ADV: General Instructions (‘‘How is Form ADV organized’’). 342Proposed Form ADV, Part 1A, Item 5.L(1). The term ‘‘related person’’ would have the meaning currently ascribed to it in the Form ADV Glossary (‘‘Any advisory affiliate and any person that is under common control with your firm.’’) Italicized terms are defined in the Form ADV Glossary. 343Proposed Form ADV, Part 1A, Item 5.L(2) and (3). The Glossary to proposed Form ADV would define ‘‘testimonial’’ as ‘‘any statement of a client or investor’s experience with the investment adviser;’’ ‘‘endorsement’’ as ‘‘any statement by a person other than a client or investor indicating approval, support, or recommendation of the investment adviser;’’ and ‘‘third-party rating’’ as ‘‘a rating or ranking of an investment adviser provided by a person who is not an affiliated person of the adviser and provides such ratings or rankings in the ordinary course of its business.’’ These definitions would be consistent with our proposed amendments to rule 206(4)–1. 344Proposed Form ADV, Part 1A, Item 5.L(4). 345See Section 7.B.(1) (Private Fund Reporting) of
Schedule D to Form ADV Part 1A (requiring
advisers to private funds to list, among other things, information about its advisory business.341 We propose to add a subsection L (‘‘Advertising Activities’’) to require information about an adviser’s use in its advertisements of performance results, testimonials, endorsements, third-party ratings, and its previous investment advice. Specifically, we would require an adviser to state whether any of its advertisements contain performance results, and if so, whether all of the performance results were verified or reviewed by a person who is not a related person.342 We would also require an adviser to state whether any of its advertisements includes testimonials or endorsements, or includes a third-party rating, and if so, whether the adviser pays or otherwise provides compensation or anything of value, directly or indirectly, in connection with their use.343 Compensation or anything of value is not limited solely to cash, but could also include non-cash compensation. Finally, we would require an adviser to state whether any of its advertisements includes a reference to specific investment advice provided by the adviser.344 Our staff would use this information to help prepare for examinations of investment advisers. This information would be particularly useful for staff in reviewing an adviser’s compliance with the proposed amendments to the advertising rule, including the proposed restrictions and conditions on advisers’ use in advertisements of performance presentations and third-party statements. We request comment on the proposed amendments to Part 1A of Form ADV.

Should we require more or less
detailed information about advisers’ advertising practices? If so, what additional information should we require, or what should we remove from the disclosure requirement, and why?
Should we require more
information about advisers’ use of performance results in advertisements? For example, for advisers that use performance results in advertisements that are verified or reviewed by someone other than a related person, should we require the advisers to provide the name and contact information of such reviewer on a corresponding schedule? Why or why not?
For advisers that have their
performance results verified or reviewed by a person who is not a related person, does such verification or review apply to all of the advisers’ performance results, or only to some of the performance results? Please explain. Should we require that advisers state if they have any of their results verified by such a third party?
Should we require advisers to state
the particular types of performance results they use in advertisements, such as related performance, hypothetical performance, or another type of performance (and if so, what type of performance)? Should we require them to state to whom they direct specific types of advertisements (for example, Retail Persons or Non-Retail Persons)? Why or why not?
Should we require advisers to
disclose that they provide hypothetical performance to investors? If so, should we require advisers to provide descriptions of such hypothetical performance or any information about how they calculate hypothetical performance?
Should we require advisers to state
whether their use of performance, testimonials, endorsements, third-party ratings, or specific investment advice includes information from predecessor or other firms? If so, should we require any additional information about the predecessor or other firm, such as a name and contact, and an affirmation that such firm permits the adviser’s use of the performance results (if applicable) and affirms its accuracy?
Should we require advisers to state
how they advertise performance results (e.g., on social media, through testimonials, endorsements or thirdparty ratings, seminars, television advertisements, private placement materials, or through periodic client updates)? Why or why not, and if so, should we require advisers to provide more detail about the methods they use to advertise performance results, such as the name of the website or social media platform, or the name of the endorser? Why or why not?
Should we require an adviser to
state any other information about the compensation it provides in connection with the adviser’s use of testimonials, endorsements, and third-party ratings in advertisements, such as the amount or range of compensation? If so, what type of information about the compensation should we require, and why? Would such additional information be helpful to investors? Why or why not?
Should we require advisers to state
the approximate percentage of their testimonials, endorsements, or thirdparty statements in advertisements that are current (within a specific time frame) versus not current (within a specific time frame)? Why or why not, and if so, what should those time frames be?
Should we require advisers to state
how they advertise testimonials, endorsements, third-party ratings, or specific investment advice (e.g., on social media, through seminars, television advertisements, or through periodic client updates)? Why or why not, and if so, should we require advisers to provide more detail about the methods they use to advertise testimonials, endorsements, third-party ratings, or specific investment advice such as the name of the website or social media platform? Why or why not? Should we require any other information, and if so, what types of information should we require?
Is it clear what ‘‘specific investment
advice’’ means in the context of the proposed amendment to Form ADV?
Even though Part 1A of Form ADV
currently requires advisers to report information about client referrals, including the existence of cash and noncash compensation that the adviser or a related person gives to or receives from any person in exchange for a client referral, should we also require additional information about client referrals and solicitation, as discussed infra Section II.B? If so, what additional information should we require, and why? For example, should we require all registered investment advisers to include the names of, and other specified information about, their current solicitors on a separate
schedule, similar to our requirements
for advisers to private funds to provide information about their marketers (including solicitors)? 345 Should we

the name of their marketer (including any solicitor), whether the marketer is a related person of the advisers, whether the marketer is registered with the Commission, the location of the marketer’s office used principally by the private fund, whether or not the marketer markets the private fund through one or more websites, and if so, the website address(es)). 346Rule 206(4)–3(d)(1); proposed rule 206(4)– 3(c)(4). Depending on the facts and circumstances, a person providing advice as to the selection or retention of an investment adviser may be an ‘‘investment adviser’’ within the meaning of section 202(a)(11) of the Act and may also have an obligation to register under the Act. Accordingly, we are proposing to no longer take the position, as in 1979 when the Commission adopted the rule, that ‘‘a solicitor who engages in solicitation activities in accordance with paragraph (a)(2)(iii) of the rule . . . will be, at least with respect to those activities, an associated person of an investment adviser and therefore will not be required to register individually under the Advisers Act solely as a result of those activities.’’ 1979 Adopting Release, supra footnote 27. We also stated in the 1979 Adopting Release that ‘‘[t]he staff of the Commission is prepared to consider no action inquiries regarding the registration of solicitors.’’ Id. Subsequently, our staff has indicated in staff noaction letters that it would not recommend enforcement action if a solicitor performing solicitation activities pursuant to the solicitation rule did not register as an ‘‘investment adviser’’ under the Act. See, e.g., Cunningham Advisory Services, Inc., SEC Staff No-Action Letter (Apr. 27,
1987) and Koyen, Clarke and Assoc. Inc., SEC Staff
No-Action Letter (Nov. 10, 1986) (in both of these staff no-action letters, the staff cited the Commission’s statement quoted in the text accompanying this footnote as support for the staff’s position that would not recommend enforcement action to the Commission if each solicitor proceeded as outlined in its letter without registering as an investment adviser). See also Charles Schwab & Co., SEC Staff No-Action Letter (Dec. 17, 1980) (solicitor’s incoming letter to the staff referenced the Commission’s statement quoted to in the text accompanying this footnote to support the solicitor’s argument that it was not required to register as an adviser, and the Commission staff stated that it would not recommend enforcement action to the Commission if the solicitor proceeded as outlined in its letter without registering as an investment adviser). As discussed in section II.D., staff in the Division of Investment Management is reviewing staff no-action and interpretative letters to determine whether any such letters should be withdrawn in connection with any adoption of this proposal. If the rule is adopted, some of the letters may be moot, superseded, or otherwise inconsistent with the rule and, therefore, would be withdrawn. 347See infra section II.B.3. 348See Standard of Conduct Release, supra footnote 23 (stating that ‘‘[a]n adviser’s fiduciary duty applies to all investment advice the investment adviser provides to clients, including advice about investment strategy, engaging a subadviser, and account type.’’). 349See section 203A of the Act. These advisers may be required to register, instead, with one or more states, or they may be exempt from the prohibition, such as advisers who would be required to register in 15 or more States. See rule 203A–2(d). 350See sections 203(b) and (l) under the Act, as well as rules 203(l)–1 and rule 203(m)–1. require advisers to report the amount of compensation paid for referrals (on an aggregate basis, per referral, or based on another metric)? If a firm employs several solicitors, should we only require information about the firm’s top 5 (or 10, or another number) solicitors, measured by number of client referrals made in the past year or some other measure, such as assets under management the referrals generate for the adviser? Please explain. Should we require advisers to private funds to provide additional information in
Section 7.B of Schedule D of Form ADV
about their private fund marketing arrangements? If yes, what additional information should we require, and why?

Should we require advisers to
describe their advertising practices in their Form ADV brochure in addition to, or instead of, the proposed Part 1A subsection L (‘‘Advertising Activities’’)? Why or why not, and if so, what information should we require advisers to describe in their brochure about their advertising activities? B. Proposed Amendments to the Solicitation Rule We are proposing to amend the solicitation rule, rule 206(4)–3, in part to reflect regulatory changes and the evolution of industry practices since we adopted the rule in 1979. Among other changes we discuss below, we are proposing to expand the rule to cover solicitation arrangements involving all forms of compensation, rather than only cash compensation. It would also apply to the solicitation of existing and prospective clients and investors rather than only to ‘‘clients.’’ Our proposal would also eliminate certain existing requirements where the purpose of the requirements can be achieved under other rules under the Act. Specifically, it would eliminate the requirements that the solicitor deliver the adviser’s brochure and that the adviser obtain client acknowledgments of the solicitor disclosure. Our proposal would revise the rule’s written agreement requirement and solicitor disclosure requirement, the partial exemptions for impersonal investment advice and affiliated solicitors, and the solicitor disqualification provision. It also would provide a conditional carve-out from the provision for certain disciplinary events, and it would add two additional exemptions to the rule for de minimis compensation and nonprofit programs. Accordingly, we propose to revise the title of rule 206(4)–3 from ‘‘Cash payments for client solicitations’’ to ‘‘Compensation for solicitations.’’

Scope of the Rule: Who is a Solicitor?
We propose to retain, with certain revisions, the current rule’s definition of ‘‘solicitor,’’ which is ‘‘any person who, directly or indirectly, solicits any client for, or refers any client to, an investment adviser.’’ 346 In a change from the current definition, the proposed definition would also include persons who solicit investors in private funds.347 As with the current rule, a solicitor might be a firm (such as a broker-dealer or a bank), an individual at a firm who engages in solicitation activities for an adviser (such as a bank representative or an individual registered representative of a brokerdealer), or both. A solicitor may, in some circumstances, because of its solicitation activities, be acting as an investment adviser within the meaning of section 202(a)(11) of the Act, or as a broker or dealer within the meaning of
section 202(a)(11) of the Act or section
3(a)(4) or 3(a)(5) of the Exchange Act, respectively. Such person may be subject to statutory or regulatory requirements under Federal law, including the requirement to register as an investment adviser or as a brokerdealer pursuant to the Act or section 15(a) of the Exchange Act, respectively, and/or state law and certain FINRA rules.348 This is a facts and circumstances determination. Some solicitors may not be acting as investment advisers under the Act as a result of their solicitation activities. Others may be prohibited from registering with the Commission as an investment adviser, such as if they have insufficient assets under management,349 or they may be able to rely on an exception from registration, such as for certain advisers to private funds.350 Similarly, a solicitor also may be able to rely on an exception or exemption from broker-dealer registration, including that provided by rule 3a4–1 under the Exchange Act. Depending on the facts and circumstances, a person providing a compensated testimonial or endorsement in a registered investment adviser’s advertisement (a ‘‘promoter’’) may also be a solicitor, and both the proposed advertising rule and solicitation rule may apply to a person’s promotional activities. In our view, relevant considerations might include compensation (e.g., incentive-based compensation such as payment per referral would likely mean the promoter is also a solicitor); communication control (e.g., the less control an adviser has over the content or dissemination of an promoter’s communication, the more likely the promoter is also a solicitor); and the extent to which the referral to the adviser is directed to a particular client or private fund investor. For

351See supra section II.A.4 for a discussion of how an adviser may satisfy the disclosure requirements applicable to third-party statements and ratings in the context of a third-party promoters. 352The proposed solicitation would generally require that either the adviser or solicitor deliver the solicitor disclosure. See infra section II.B.4. If the solicitor (and not the adviser) delivers the solicitor disclosure, the adviser itself would still be required to make the disclosures required under the proposed advertising rule for testimonials and endorsements to the extent that the solicitor’s referral also constitutes a testimonial or endorsement. 353But see section II.B.7.c (discussing the proposed exemption for de minimis compensation). 354Rule 206(4)–3(a). 355Proposed rule 206(4)–3(a) (‘‘As a means reasonably designed to prevent fraudulent, deceptive, or manipulative acts, practices, or courses of business within the meaning of section 206(4), it is unlawful for an investment adviser that is registered or required to be registered under
section 203 of the Act to compensate a solicitor,
directly or indirectly, for any solicitation activities, unless the investment adviser complies with paragraphs (1) through (3) of [paragraph (a)].’’). 356We now require advisers to report to the Commission, and to disclose to clients, the existence of any cash or non-cash compensation they provide for client referrals, including sales awards or other prizes. See Item 8.H of Form ADV,
Part lA; Item 14 of Form ADV, Part 2A. In addition,
registered investment advisers that report to the Commission on Form ADV information about their private funds, are required to report information about marketers used for such private funds (e.g., placement agents, consultants, finders, introducers, municipal advisers, other solicitors, or similar persons), but this information does not include the compensation paid to such marketers. See Item A.28 of Section 7.B.(1) of Schedule D to Form ADV
Part 1A.
357 In 1979 when we adopted the rule, we limited the rule to cash payments, expressly reserving judgment about then-emerging arrangements under which broker-dealers might offer investment advisers certain services, including client referrals, in exchange for the adviser directing client trades to the broker-dealer. See 1978 Proposing Release, supra footnote 27, at text accompanying n.3; 1979 Adopting Release, supra footnote 27, at n.6 and accompanying text. Advisers are currently required to disclose to clients in the Form ADV brochure if they consider, in selecting or recommending brokerdealers, whether they or a related person receives client referrals from a broker-dealer or third party. See Item 12.A.2 of Form ADV Part 2A. 358 In refer-a-friend programs, advisers often provide soliciting investors cash and non-cash compensation such as free or lower-fee investment advisory services, investment adviser subscription services, and gift cards. However, we are proposing a de minimis exemption, as discussed below, which would exempt qualifying refer-a-friend arrangements from the rule. 359Concerns underlying non-cash compensation in the context of sales activity are also reflected in other Commission rules. See, e.g., Regulation Best Interest, Release No. 34–86031 (June 5, 2019) party promoter per referral to engage in a largely unscripted social media campaign to promote the adviser’s services, or pays such a person to review and provide its view of the adviser’s services on a blog, website, or social media page (e.g., a social media ‘‘influencer’’), we would consider the promoter to be providing an endorsement and acting as a solicitor and would apply both rules, including the proposed advertising rule’s general prohibitions of certain advertising practices and its additional tailored requirements for testimonials and endorsements.351 We believe that, as a practical matter, an adviser subject to both rules in such a situation would substantially satisfy its advertising rule disclosure obligation for testimonials and endorsements by adhering to the solicitation rule disclosure requirement (e.g., the requirement to disclose the solicitor’s compensation).352 The overall effect, therefore, would be to apply a heightened set of safeguards where someone providing an endorsement crosses the line into solicitation. We believe heightened safeguards would generally be appropriate for a solicitation because a solicitor’s incentives to defraud an investor would be greater than a promoter’s.353 This is because a solicitor typically will receive compensation based on the referrals made, while the compensation to a promoter for an advertisement containing an endorsement or testimonial may be less likely based on such incentive compensation. We request comment on the above, particularly:

Should the rule generally retain the
current definition of ‘‘solicitor,’’ as proposed, with some modifications to apply to persons who solicit investors in certain types of pooled investment vehicles, as discussed below? Why or why not? If not, how should the rule define ‘‘solicitor’’? Have any interpretive issues arisen regarding the current rule’s definition that we could clarify? If so, what are they and how should we address them?
What factors or considerations
should apply when evaluating a promoter’s (such as a social media influencer’s) status as either an endorser or solicitor or both, and why? Do commenters agree that relevant considerations should include compensation and communication control? Should we also consider the extent to which a communication is targeted to a particular investor? Why or why not?
Should we modify the definition of
‘‘solicitor’’ so that it is limited to persons whose solicitation activities are directed at specific investors (e.g., through one-on-one meetings and personalized communications)? Why or why not? Should we modify the definition of ‘‘solicitor’’ so that is limited to persons to whom the adviser provides incentive-based compensation, directly or indirectly, as compensation for solicitation activities? Why or why not? Should we add both of these modifications to the rule? Do these types of solicitations present greater conflicts of interest for the solicitor than other solicitation arrangements, necessitating greater disclosure to the investor? Should we distinguish testimonials and endorsements under the proposed advertising rule from solicitations under this proposed rule? If so, how?
For compensated solicitation
arrangements that would also be subject to the proposed advertising rule, would the application of both rules together result in any conflicting obligations or otherwise create practical difficulties in compliance with the rules? Or would advisers be able to leverage their compliance with one rule to satisfy the other rule’s requirements?

Expanding the Rule To Address All
Forms of Compensation
Rule 206(4)–3 currently prohibits an adviser from paying a cash fee, directly or indirectly, to a solicitor with respect to solicitation activities unless the adviser complies with the terms of the rule.354 The proposed rule would continue to apply to cash payments to a solicitor, including a percentage of assets under management, flat fees, retainers, hourly fees and other methods of cash compensation. The proposed rule would also apply to non-cash compensation provided to solicitors—an adviser would be prohibited from paying a solicitor any form of compensation, directly or indirectly, for any solicitation activities unless the adviser complies with the terms of the rule.355 Since the adoption of the current rule, we have gained a broader understanding of the different types of compensation that advisers use in referral arrangements, including compensation for referring investors to private fund advisers.356 For example, advisers may direct client brokerage to reward brokers that refer them investors.357 In addition, other solicitation arrangements, such as refera-friend programs in which advisers compensate current investors to solicit other investors, can involve both cash and non-cash compensation.358 The provision of non-cash compensation for referrals creates the same conflicts of interest as cash compensation for referrals—the solicitor has an economic interest in steering the investor to the adviser and may be biased by this interest. We believe that investors should be made aware of the solicitor’s conflict of interest regardless of the form of compensation.359

(‘‘Regulation Best Interest Release’’) (adopting rule 15l–1 under the Exchange Act, requiring brokerdealers to establish written policies and procedures reasonably designed to identify and eliminate any sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sale of specific securities or the sale of specific types of securities within a limited period of time, noting that these compensation practices create high-pressure situations for associated persons to increase the sales of specific securities or specific types of securities within a limited period of time and thus compromise the best interests of their retail customers). 360We would not consider attendance at training and education meetings, including companysponsored meetings such as annual conferences, to be non-cash compensation, provided that free attendance at these meetings or trainings is not provided in exchange for solicitation activities. For example, if free attendance at a conference is conditioned upon a solicitor referring a certain number of investors to an investment adviser, such attendance would be non-cash compensation. Advisers already are required to identify non-cash referral arrangements pursuant to rule 206(4)–7, the compliance rule, and advisers’ disclosure obligations. See, e.g. Item 8.H (1) of Form ADV, Part 1A (requiring advisers to disclose whether they or any related person, directly or indirectly, compensates any person that is not an employee for client referrals, and instructing advisers to consider all cash and non-cash compensation that the adviser or a related person gave to or received from any person in exchange for client referrals, including any bonus that is based, at least in part, on the number or amount of client referrals). 361See proposed rule 206(4)–3(c)(2)–(4). 362See supra footnote 66 (citing Goldstein v. SEC, 451 F.3d 873 (D.C. Cir. 2006)); see also Mayer Brown LLP, SEC Staff No-Action Letter (Jul. 28,
2008) (Commission staff stated, in the context of
stating it would not recommend enforcement action under rule 206(4)–3, the staff’s view that the cash solicitation rule generally does not apply to a registered investment adviser’s cash payment to a person solely to compensate that person for soliciting investors or prospective investors for, or referring investors or prospective investors to, an investment pool managed by the adviser because such an investor is not a ‘‘client’’). 363See supra footnote 63 and accompanying text. The advertising rule’s proposed RIC and BDC exclusion would not apply to communications that are not subject to rule 156 or 482. See supra section II.A.2.c.iii. 364See Item 8 of Form N–1A; see also FINRA Rule 2341(l)(4) (generally prohibiting member firms from accepting any cash compensation from an Continued The rule would, therefore, be applicable to non-cash compensation, including, but not limited to, directed brokerage, sales awards or other prizes, training or education meetings, outings, tours, or other forms of entertainment, and free or discounted advisory services.360 Compensation could also include the adviser providing investment advice that directly or indirectly benefits the solicitor. For example, if the solicitor is a brokerdealer or affiliated with a broker-dealer, an adviser’s payment for solicitation could be the adviser’s recommendation that its investors purchase the solicitor’s proprietary investment products or products that the adviser knows have revenue sharing or other pecuniary arrangements with the solicitor or its affiliate, if the adviser directly or indirectly makes these recommendations in exchange for the solicitor’s solicitation activities. Brokerdealers or dual registrants that receive brokerage for solicitation of client accounts in wrap fee programs that they do not sponsor would be subject to the proposed solicitation rule if they solicit those clients to participate in the wrap fee program. Compensation provided by the adviser may occur before or after the solicitor engages in its referral activities, but regardless of when the compensation for solicitation is provided, such compensation would be within the scope of the proposed rule. We request comment on our proposed treatment of compensation under the solicitation rule.

Should the rule be extended to
cover all forms of compensation (including non-cash), as proposed? Should some forms of non-cash compensation be excepted from the proposed rule? If so, which ones and why?
Are there any forms of non-cash
compensation paid for investor solicitations that should be specifically prohibited under the rule, or subject to additional conditions (in lieu of or in addition to the proposed rule’s requirements)? If so, which forms of non-cash compensation should be prohibited under the rule, and/or what conditions should apply to their use in solicitations for investors?
Should the rule define
‘‘compensation,’’ or include examples of direct and indirect compensation for solicitation activities? If so, what should the definition include, and what examples should we include?
How should the rule apply to an
adviser that directs client brokerage in exchange for client referrals? Should the proposed rule apply any additional conditions in these circumstances?
Does the proposed rule clearly
distinguish compensation that is for solicitation from ordinary compensation an adviser pays to a broker-dealer for bona fide execution services for an adviser’s clients and is unrelated to a solicitation arrangement between the adviser and the broker-dealer? If not, how should the rule clarify this distinction?
Should the rule include any cap on
the amount of compensation (cash or non-cash) paid to solicitors, and if so, what should that cap be? Why or why not? If so, should such a cap vary depending on the type of investor solicited (such as a Retail Person or a Non-Retail Person), or the type of compensation arrangement? For example, should there be a cap on the percentage of assets under management an adviser may pay a solicitor for solicitation, or an absolute cap per solicitation arrangement in terms of dollar amount, or both, and if so, what should they be? Should there be a cap on the amount of compensation for the solicitation of investors in private funds that is different from a cap on the amount of compensation for advisory clients, and if so what should they be? Should the rule include a cap on, or any other parameters regarding, the length of time over which they are paid (such that, for example, solicitors do not continue to receive fees even after they are no longer in business as a solicitor, or after they become subject to disciplinary action that would result in their disqualification as a solicitor under the rule)?

Compensation for the Solicitation of
Existing and Prospective Investors Our proposal would expand the scope of the rule to the solicitation of existing and prospective private fund investors.361 We believe this would increase protections to such investors primarily by making them aware of a solicitor’s financial interest in the investor’s investment in a private fund and prohibiting the use of disqualified solicitors under the proposed rule. While investors in private funds may often be financially sophisticated, they may not be aware that the person engaging in the solicitation activity may be compensated by the adviser, and we believe investors in such funds should be informed of that fact and the related conflicts. Our proposal to apply the solicitation rule to investors in private funds, and not just to the adviser’s clients, which are generally the private funds themselves, would be consistent with the proposed advertising rule.362 Similar to the scope of our proposed advertising rule, the proposed amendments would not apply the solicitation rule to solicitations of existing and prospective investors in RICs and BDCs.363 Unlike for private funds, the primary policy goal of the proposed solicitation rule is already satisfied by other regulatory requirements applicable to RICs and BDCs: Prospective investors in RICs and BDCs sold through a broker-dealer or other financial intermediary already receive disclosure about the conflicts of interest that may be created as a result of the fund or its related companies paying the intermediary for the sale of its shares and related services.364

investment company, an adviser to an investment company, a fund administrator, an underwriter or any affiliated person (as defined in section 2(a)(3) of the Investment Company Act) of such entities unless such compensation is described in a current prospectus of the investment company). For RICs and BDCs not sold through an intermediary, such as funds purchased directly by investors, the purchasing investors would not be ‘‘referred’’ or ‘‘solicited’’ and thus the solicitation rule would be inapplicable. 365See supra footnote 7 (discussing rules 156 and 482); see also Standard of Conduct Release, supra footnote 23. 366See supra footnote 67and accompanying text (discussing rule 206(4)–8, which prohibits advisers from (i) making false or misleading statements to investors or prospective investors in hedge funds and other pooled investment vehicles they advise, or (ii) otherwise defrauding these investors or prospective investors). 367 15 U.S.C. 80a–3(c)(5)(C). Section 3(c)(5)(C) of the Investment Company Act generally excludes from the definition of ‘‘investment company’’ any person who is primarily engaged in, among other things, ‘‘purchasing or otherwise acquiring mortgages and other liens on and interests in real estate.’’ The exclusion provided by section 3(c)(5)(C) sometimes is used by issuers of mortgagebacked securities. See generally Companies Engaged in the Business of Acquiring Mortgages and Mortgage-Related Instruments, Release No. IC– 29778 (Aug. 31, 2011) [76 FR 55300 (Sept. 7, 2011)] (concept release and request for comment on interpretive issues under the Investment Company Act), at nn.4 and 5. Rule 3a–7 provides that certain issuers of asset-backed securities are not investment companies for purposes of the Investment Company Act. 368Proposed rule 206(4)–3(a)(1)(iii). This section discusses the disclosure component of the proposed rule’s written agreement requirement (other than disclosure of applicable disciplinary events). See infra sections II.B.5 (discussing the other components of the proposed rule’s written agreement requirement); and II.B.8 (discussing the proposed rule’s disqualification provisions). 369Proposed rule 206(4)–3(a)(1)(iii). 370Proposed rule 206(4)–3(a)(1)(iii)(F). 371Rule 206(4)–3(a)(2)(iii)(A)(3) and (b). 372 1979 Adopting Release, supra footnote 27, at n.14. 373See, e.g., Item 14 of Form ADV Part 2A (requiring advisers to disclose to advisory clients information about their referral arrangements, including a description of the arrangement and the compensation); Item 12 (requiring advisers to disclose to advisory clients their conflicts of interest regarding brokerage for client referrals); see also Item 10.C Form ADV Part 2A (requiring advisers to disclose to advisory clients their conflicts of interest regarding certain relationships with related persons). Advisers are not required to deliver Form ADV to private fund investors that are not otherwise advisory clients. Therefore, private fund investors may not
receive the information required in these items of Form ADV. However, to satisfy advisers’ obligations as fiduciaries or address potential liabilities under the antifraud provisions of the securities laws, advisers may also need to disclose to clients and private fund investors information not specifically required by Part 2 of Form ADV or in more detail than the brochure items might otherwise require. 374See Form CRS Release, supra footnote 227, at n.144 and accompanying text. Moreover, we believe RIC and BDC investors are typically sought through advertisements or investment advice, each of which is already subject to other regulatory requirements.365 Finally, we believe that harmonizing the scope of the solicitation rule with the advertising rule to the extent possible should ease compliance burdens. We request comment below on whether the proposed rule should apply to the solicitation of some or all investors in pooled investment vehicles:

Should the proposed rule apply to
solicitation of investors in private funds? Why or why not? If we do not apply the solicitation rule to solicitations for investments in private funds, would section 206(4) of the Act and rule 206(4)–8, together with section 17(a) of the Securities Act and section 10(b) of the Exchange Act and rule 10b– 5 thereunder, sufficiently protect investors that are solicited to invest in private funds to the extent that section 206(4) and rule 206(4)–8 may not apply to the solicitation? 366 Why or why not?
If we include solicitation of
investors in private funds in the proposed solicitation rule, in order to comply with the proposed rule, either the solicitor or the adviser would deliver the solicitor disclosure directly to current and prospective investors in private funds and the solicitation arrangement would be subject to the proposed rule’s disqualification provisions. Are there other conditions that we should impose on such solicitations?
Should we further extend the
requirements of the proposed rule to apply to solicitation activities with respect to RICs and BDCs? Why or why not?
Should the proposed rule apply to
other types of pooled investment vehicles, such as funds that are excluded from the definition of ‘‘investment company’’ by reason of
section 3(c)(5) of the Investment
Company Act or rule 3a–7 thereunder? 367 Why or why not?

Solicitor Disclosure
Proposed rule 206(4)–3 would prohibit an adviser from compensating solicitors unless the adviser and solicitor have, in the written agreement, designated the solicitor or the adviser to provide to investors at the time of any solicitation activities (or in the case of a mass communication, as soon as reasonably practicable thereafter), a separate disclosure containing specified information (the ‘‘solicitor disclosure’’).368 The proposal would require that the solicitor disclosure state: (A) The name of the investment adviser; (B) the name of the solicitor; (C) a description of the investment adviser’s relationship with the solicitor; (D) the terms of any compensation arrangement, including a description of the compensation provided or to be provided to the solicitor; and (E) any potential material conflicts of interest on the part of the solicitor resulting from the investment adviser’s relationship with the solicitor and/or the compensation arrangement.369 It would also require disclosure of the amount of any additional cost to the investor as a result of solicitation.370 This proposed disclosure is derived from the current rule’s required disclosure.371 However, it would include a new requirement to disclose any potential material conflicts of interest on the part of the solicitor resulting from the investment adviser’s relationship with the solicitor and/or the compensation arrangement. In addition, unlike the current rule, the proposed rule would permit either the solicitor or the adviser to deliver the solicitor disclosure, rather than requiring that the solicitor deliver it, provided the written agreement designates the party responsible for delivering the disclosure. We are also proposing to remove the current rule’s requirement that the solicitor disclosure be ‘‘written.’’ These proposed changes are discussed below. When we adopted the cash solicitation rule, we noted our belief that separate solicitor disclosure was necessary to ensure that the investor’s attention would be directed to the fact that the adviser pays the solicitor a cash referral fee and the incentives it may create.372 We continue to believe that separate, targeted disclosure of the salient terms of the compensated arrangement provided at the time of the solicitation, would draw the investor’s attention to the solicitor’s bias in recommending an adviser directly or indirectly compensating it for the referral. While advisers themselves are required to disclose to clients their compensation arrangements, including compensation for client referrals and the related conflicts of interest, we believe that the separate solicitor disclosure to investors would put investors on notice of the solicitor’s conflict of interest in the compensated solicitation arrangement.373 We support firms wishing to use electronic and recorded media in preparing disclosure for investors, including electronic formatting and graphical, text, audio, video, and online features.374 Under our proposal,
if the solicitor disclosure states the information required by the proposed rule, it could be presented in a written format or any other electronic or

375 If the disclosure is made in writing, we have stated that an ‘‘in writing’’ requirement could be satisfied either through paper or electronic means consistent with existing Commission guidance on electronic delivery of documents. See Regulation Best Interest Release, supra footnote 359, at text accompanying footnotes 499–500. If delivery of the solicitor disclosure is made electronically, it should be done in accordance with the Commission’s guidance regarding electronic delivery. See Use of Electronic Media by Broker-Dealers, Transfer Agents, and Investment Advisers for Delivery of Information; Additional Examples Under the Securities Act of 1933, Securities Exchange Act of 1934, and Investment Company Act of 1940, Release No. 34–37182 (May 9, 1996) [61 FR 24644 (May 15, 1996)]; see also Use of Electronic Media, Release No. 34–42728 (Apr. 28, 2000) [65 FR 25843 (May 4, 2000)]; and Use of Electronic Media for Delivery Purposes, Release No. 34–36345 (Oct. 6,
1995) [60 FR 53458 (Oct. 13, 1995)]. See also Form
CRS Release, supra footnote 227, at nn.678 and 153 and accompanying text. 376Proposed rule 206(4)–3(a)(1)(iii)(A)–(C). 377The current rule requires disclosure of the name of the solicitor; the name of the investment adviser; and the nature of the relationship, including any affiliation, between the solicitor and the investment adviser. Rule 206(4)–3(b)(1)–(3). 378Proposed rule 206(4)–3(a)(1)(iii)(D). The appropriateness of the compensation should be determined by the adviser, in light of the fiduciary duties an adviser owes its clients, based upon a general standard of reasonableness under the circumstances. See, e.g., Mid-States Capital Planning, Inc. SEC Staff No-Action Letter (pub. avail. Apr. 11, 1983); Shareholder Service Corporation SEC Staff No-Action Letter (pub. avail. Feb. 3, 1989). 379The current rule requires that the solicitor disclosure contain a statement that the solicitor will be compensated for his solicitation services by the investment adviser, and the terms of such compensation arrangement, including a description of the compensation paid or to be paid to the solicitor. Rule 206(4)–3(b)(4) and (5). 380 1979 Adopting Release, supra footnote 27, at text accompanying nn.15 and 16. 381 Id. 382 Id. recorded media format.375 Irrespective of the format, however, the adviser would be required, under the Act’s books and records rule, to make and keep true, accurate and current copies of the solicitor disclosure delivered to investors under the solicitation rule. Accordingly, under the proposed rule the solicitor disclosure could not be delivered orally unless the oral disclosure is recorded and retained. Our proposal would continue to require that the disclosure be separate. Because solicitors may prefer to deliver multiple communications to investors at once, we believe that this requirement would preserve the salience and impact of the disclosure to investors. Under our proposed rule, therefore, a solicitor could deliver the required solicitor disclosure with other communications, provided that the content and presentation of the solicitor disclosure is not combined with other content, such as any legal disclaimers and marketing messages. For example, a firm could deliver a solicitor disclosure to an investor via an email that contains other information by attaching the solicitor disclosure as a separate attachment. However, it would not be effective disclosure to merely include a hyperlink to disclosures available elsewhere. We are proposing to permit either the adviser or the solicitor to deliver the solicitor disclosure, rather than requiring the solicitor to deliver the disclosure, provided that the written agreement designates the party responsible for its delivery. We believe that this provision would continue to promote investor protection, while providing firms with greater flexibility in meeting the rule’s requirements. It would place the fact of the solicitor’s interest in front of the investor at the time the investor is
solicited so that the investor is provided the necessary tools to evaluate any potential bias on the
part of the solicitor.
The proposed rule would require the solicitor disclosure to include the investment adviser’s name, the solicitor’s name, and a description of the investment adviser’s relationship with the solicitor.376 The current rule requires similar disclosures.377 We are proposing these requirements because they provide important information and context to investors. The name of the adviser is a key part of any solicitation:
Without disclosing the adviser’s name, investors would not know to whom they are being referred. The name of the solicitor is important so the investor can seek to assess the reputation or other qualifications of the solicitor. Disclosure of the relationship between the adviser and the solicitor is important to give the investor context—that—when combined with the other proposed disclosures about the compensated nature of the solicitation—would inform investors about the solicitor’s bias in referring the adviser. For example, this disclosure would inform an investor that the solicitor is an employee of the adviser, or an employee or person associated with the adviser’s affiliate, or is an unaffiliated third party, as applicable in each case. If the solicitor is a current client, as for example in refer-a-friend solicitation arrangements that would exceed the proposed de minimis exemption, the solicitor disclosure would need to state this fact. The proposed rule would also require disclosure of the terms of any compensation arrangement, including a description of the compensation provided or to be provided to the solicitor.378 The current rule requires similar disclosure.379 As required under the current rule, if a specific amount of cash compensation were being paid, that amount would be required to be disclosed.380 As we stated when we adopted the rule and as we would continue to require for cash compensation: ‘‘if, instead of a specific amount, the solicitor’s compensation was to take the form of a percentage of the total advisory fee over a period of time, that percentage and the time period would have to be disclosed.’’ 381 Furthermore: ‘‘[i]f all, or part, of the solicitor’s compensation is deferred or is contingent upon some future event, such as the client’s continuation or renewal of the advisory relationship or agreement, such terms would also have to be disclosed.’’ 382 For compensation that is non-cash, the solicitor disclosure should describe the terms of any compensation arrangement, including a description of the compensation provided or to be provided to the solicitor. If the value of the non-cash compensation is readily ascertainable, the solicitor disclosure generally should include that amount. We discuss examples below. We believe that disclosure of the terms of the compensation, including a description of the compensation provided or to be provided to the solicitor, would be important to convey to the investor the solicitor’s incentive to refer it to the adviser, whether the compensation is cash or non-cash. The incentive to solicit investors is often more or less material to an investor’s evaluation of the referral depending on the type and magnitude of the compensation. Solicitors that receive little compensation may have less incentive to make referrals than a solicitor that receives higher compensation for the referrals. The incentive might also vary based on the structure of the compensation arrangement. A solicitor that
receives a flat or fixed fee from an adviser for a set number of referrals might have a different incentive in referring to the adviser than a solicitor that receives a fee, such as a percentage of the investor’s assets under management, for each investor that becomes a client of, or an investor with, the adviser. Furthermore, trailing fees (i.e., fees that are continuing) that are contingent on the investor’s relationship with the adviser continuing for a specified period of time present additional considerations in evaluating the solicitor’s incentives. The proposed rule’s requirement to disclose ‘‘the terms of any compensation arrangement, including a description of the

383See proposed rule 206(4)–3(a), stating that ‘‘As a means reasonably designed to prevent fraudulent, deceptive, or manipulative acts, practices, or courses of business within the meaning of section 206(4), it is unlawful for an investment adviser that is registered or required to be registered under
section 203 of the Act to compensate a solicitor,
directly or indirectly, for any solicitation activities, unless the investment adviser complies with paragraphs (1) through (3) [of paragraph (a)].’’ (emphasis added). 384See also Standard of Conduct Release, supra footnote 23, at 23 (‘‘an adviser must eliminate or at least expose through full and fair disclosure all conflicts of interest which might incline an investment adviser—consciously or unconsciously—to render advice which was not disinterested.’’). 385 Information about an adviser’s conflict of interest is required to be disclosed in the adviser’s brochure, which is provided to the client prior to entering into an investment advisory relationship with the adviser. See supra footnote 373 (referencing the Form ADV brochure required disclosures about compensated referral arrangements, including with respect to conflicts of interests). We believe it is important to state the solicitor’s conflict of interest in the solicitor disclosure. 386The Commission adopted changes to an adviser’s brochure in 2010 to require additional disclosure about the practice of using directed brokerage, including disclosure about the conflicts of interest it creates. See 2010 Form ADV Amendments Release, supra footnote 34, at n.143 and accompanying text (new required disclosure included that the adviser may have an incentive to select or recommend a broker-dealer based on its interest in receiving client referrals, rather than on its clients’ interest in receiving most favorable execution). 387See also Regulation Best Interest Release, supra footnote 359, at text accompanying nn.193– 194 (discussing the Commission’s view that ‘‘Regulation Best Interest should apply broadly to recommendations of securities transactions and investment strategies involving securities.’’). 388See proposed rule 206(4)–3(a)(1)(iii)(F). compensation provided or to be provided to the solicitor’’ should include, for trailing fee arrangements, disclosure of not only the fact that the solicitor continues to be compensated after the investor becomes a client of, or investor with, the adviser, but also the period of time over which the solicitor continues to receive compensation for such solicitation. A longer trailing period can present a greater incentive to solicit the investor, as a solicitor may be more inclined to refer an investor that will continue to pay the solicitor for a longer period of time. In some directed brokerage arrangements, the solicitor and the adviser have arranged for the adviser to direct brokerage to the solicitor as compensation for solicitation of investors for, or referral of investors to, the adviser. In these cases, the solicitor disclosure should state the terms of this arrangement, including a description of the compensation provided or to be provided to the solicitor. As part of the disclosure of the terms of the compensation, the solicitor disclosure should state the range of commissions that the solicitor charges for investors directed to it by the adviser.
Furthermore, if the solicitation is contingent upon the solicitor receiving a particular threshold of directed brokerage (and other services, if applicable) from the adviser, the disclosure should say so. Additional disclosure would be required, for example, if the solicitor and the adviser agree that as compensation for the solicitor’s solicitation activities on behalf of the adviser, the adviser’s directed brokerage activities would extend to other investors such as the solicited investor’s friends and family. In refer-a-friend solicitation arrangements that would be subject to the proposed rule, the compensation component of the solicitor disclosure would include the amount the solicitor receives per solicitation (e.g., $10 or an equivalent gift card). The proposed rule’s requirement to disclose ‘‘the terms of any compensation arrangement, including a description of the compensation provided or to be provided to the solicitor’’ should include, for refer-a-friend and other solicitation arrangements, disclosure of the time at which the solicitor would receive compensation for solicitation activities (e.g., upon solicitation of the investor or upon the solicited investor becoming a client of, or an investor with, the adviser). The solicitor disclosure would be required to include compensation that the adviser provides directly or indirectly to the solicitor for any solicitation activities.383 For example, if an individual solicits an investor, and the adviser compensates another person for such solicitation (such as an employer or another entity that is associated with the individual), the solicitor disclosure would need to include this compensation. If a solicitor, such as a broker-dealer, refers investors to advisers that recommend the solicitor’s or its affiliate’s proprietary investment products or recommend products that have revenue sharing or other pecuniary arrangements with the solicitor or its affiliate, the solicitor disclosure should say so.384 Regardless of whether the adviser enters into a solicitation agreement with an individual or the individual’s firm, compensation to the firm for solicitation would constitute compensation for solicitation under the rule, as it would be likely to affect the solicitor’s salary, bonus, commission or continued association with the firm. Our proposal would newly require that the solicitor disclosure specifically include any potential material conflicts of interest of the solicitor resulting from the investment adviser’s relationship with the solicitor and/or the compensation arrangement. Therefore, in addition to stating the facts that give the solicitor an incentive to solicit the adviser (e.g., that the solicitor is compensated, the terms and description of the compensation, and the relationship between the solicitor and the adviser), the solicitor disclosure would also state that such incentives present a conflict of interest for the solicitor. We believe that this addition would enhance the
solicitor disclosure by directly stating that there is a conflict of interest. It would alert the investor of the relevant conflict of interest in the solicitation arrangement at the time of solicitation or, in the case of a mass communication, as soon as practicable thereafter.385 For example, when advisers direct brokerage as compensation for solicitation, it presents a conflict of interest for the solicitor.386 The solicitor’s conflict is present to varying degrees in many types of directed brokerage referral arrangements, such as when the solicitation is contingent upon a specified amount (e.g., certain thresholds) of directed brokerage, and when the broker-dealer more generally considers the receipt of directed brokerage as the primary factor or one of many factors that motivate it to refer investors to an adviser. Similarly, a solicitor associated with a commercial bank may refer investors in exchange for the adviser’s referral of other investors to the firm’s banking services, which is also a conflict of interest for the solicitor. Other types of solicitation relationships between solicitors and advisers can also create conflicts of interest for the solicitor that would need to be disclosed under the proposed solicitor disclosure. For example, a broker-dealer that is a solicitor may refer investors to advisers that compensate it for the referrals by recommending the solicitor’s proprietary investment products or products that have revenue sharing or other pecuniary arrangements with the solicitor.387 This solicitation arrangement would be a conflict of interest for the solicitor that would be required to be disclosed in the solicitor disclosure. Our proposal would also require disclosure of the amount of any additional cost to the investor as a result of solicitation.388 This provision would revise the current rule’s requirement that the solicitor state whether the client will pay a specific fee to the adviser in addition to the advisory fee, and

389Rule 206(4)–3(b)(6) (requiring disclosure of ‘‘[t]he amount, if any, for the cost of obtaining his account the client will be charged in addition to the advisory fee, and the differential, if any, among clients with respect to the amount or level of advisory fees charged by the investment adviser if such differential is attributable to the existence of any arrangement pursuant to which the investment adviser has agreed to compensate the solicitor for soliciting clients for, or referring clients to, the investment adviser’’). 390See supra footnote 88, and accompanying text (discussing template presentations and mass mailings). 391From time to time, solicitors that make their initial contact with prospective clients through mass mailings have asked whether they can forgo delivery of the solicitor’s disclosure statement and the adviser’s brochure until recipients of the mass mailings indicate preliminary interest by returning a reply card or telephoning the solicitor’s call center. See, e.g., E.F. Hutton & Company, Inc., SEC Staff No-Action Letter (Sept. 21, 1987) (‘‘Hutton Letter’’); AMA Investment Advisers, Inc., SEC Staff No-Action Letter (Oct. 28, 1993) (‘‘AMA Letter’’); and Moneta Group Investment Advisers, Inc., SEC Staff No-Action Letter (Oct. 12, 1993) (‘‘Moneta Letter’’). 392Commission staff has stated that it would not recommend enforcement action to the Commission under rule 206(4)–3 if a registered investment adviser, rather than its solicitor, delivers the solicitor disclosure, provided the adviser meets several other conditions. See, e.g., Hutton Letter; AMA Letter; Moneta Letter, id. whether the client will pay higher advisory fees than other clients (and the difference in such fees) because the client was referred by the solicitor.389 We believe that it is important for investors to understand whether they will bear any additional costs as a result of the solicitation. For investors that are advisory clients, the additional cost could be that they will pay a higher investment advisory fee. In such case, the solicitor disclosure would need to say so and state the amount of such additional fee. For investors that are private fund investors, we request comment below on whether investors would indirectly incur any additional costs as a result of the adviser’s use of a solicitor, such as through the adviser charging the private fund a higher fee than another private fund it manages without using a solicitor and whether the solicitor disclosure should state such additional amounts, if applicable. In some contexts, there may not be any differences in fees to the investor. In directed brokerage arrangements, for example, the adviser’s duty to seek best execution should mitigate against the risk that the directed brokerage arrangement would result in higher execution costs for the investor, but the rule would still require disclosure of the magnitude of any increased costs such as increased commissions (or higher custodian fees) as a
result of the solicitation. In addition, we are proposing a modification to the timing of the delivery of the solicitor disclosure for solicitations that are conducted through mass communications. Mass communications include communications that appear to be personalized to a single investor (and nominally addressed to only one person), but are actually widely disseminated to multiple investors, as well as impersonal outreach to large numbers of persons.390 In these cases, we are proposing to permit the solicitor disclosure to be delivered at the time of solicitation or as soon as reasonably practicable thereafter, because it may not be practicable to deliver the solicitor disclosure at the time of initial solicitation.391 Under the proposed rule, we would view delivery of the solicitor disclosure to be made be as soon as reasonably practicable after the time of a mass solicitation if it is provided promptly after the investor expresses an initial interest in the adviser’s services.392 If the adviser, rather than the solicitor, has agreed to deliver the disclosure, we would view ‘‘as soon as reasonably practicable thereafter’’ as being at the time the investor first reaches out in any manner to the adviser in response to the solicitation. We believe that this modification for mass communications would continue to promote investor protection, while providing firms with greater flexibility in meeting the rule’s requirements. We request comment on our proposal to revise the rule’s solicitor disclosure requirement.

Should we require a solicitor
disclosure be delivered to investors at the time of any solicitation activities (or in the case of a mass communication, as soon as reasonably practicable thereafter)? If not, when should the solicitor disclosure be delivered to investors?
Should we remove the current
requirement that the solicitor disclosure be ‘‘written’’? Why or why not?
Do commenters agree with the
proposal to require the solicitor disclosure be separate disclosure? If not, what requirement(s) would make the presentation of solicitor disclosure salient and impactful? Should we include a specific requirement that if the solicitor delivers multiple communications to the investor, the solicitor disclosure must be presented first so that it is clearly and prominently disclosed? Are there any practical issues that arise with the requirement to deliver the solicitor disclosure separately in the context of delivery through electronic media or other forms of delivery? If so, what are they and how should we treat them?
Do solicitors employ mass
communications to solicit investors, and if so, what types of mass communications? For example, do solicitors send mass mailing via the postal service or electronic mail delivery? Do they provide mass communications in the form of compensated blog posts referring investors to an adviser?
Do commenters agree that for
solicitors that make their initial contact to investors by mass communications, delivery of the solicitor disclosure should be permitted to occur at, or as soon as reasonably practicable after, the time of the solicitation? Why or why not? Do commenters believe that solicitor disclosure provided promptly after the investor expresses an initial interest in the adviser’s services would be effectively timed disclosure for investors solicited by mass communications? Would it provide such investor the necessary tools at an appropriate time to evaluate any potential bias on the part of the solicitor? Why or why not? In order for an adviser to deliver the solicitor disclosure at the time the investor first reaches out to the adviser in response to a solicitation made by mass communication, would it be clear to the adviser when the investor makes such contact?
If delivery of the solicitor disclosure
is made as soon as reasonably practicable after the time of solicitation, should we require that the mass communication include a statement alerting the investor of the solicitor disclosure to come? Why or why not? What disclosure, if any, would be sufficient to alert the investor of the disclosure to come?
Are there specific types of mass
communications that require similar, or different, treatment under the rule? For example, some solicitors may provide a mass communication in the form of a compensated blog post referring investors to an adviser. Should these solicitors be required to provide the solicitor disclosures at the time of solicitation (i.e., as part of their blog posts)? Or, should we permit such a solicitor or the adviser engaging the solicitor to provide the solicitor disclosure when an investor clicks through the solicitor’s blog post to learn more information about the adviser? By what other methods could disclosure be provided, for mass communications, to ensure that the disclosure is provided at the time of solicitation or as soon as reasonably practicable thereafter?
Should the solicitor disclosure
include more, or fewer, disclosures? If so, which disclosures should be

393Proposed rule 206(4)–3(a)(1); rule 206(4)– 3(a)(iii)(A). Under our proposal, the written agreement requirement would not apply with respect to solicitation activities by the adviser’s inhouse personnel and certain affiliated persons or for the solicitation of impersonal investment advice. See infra section II.B.7. 394See supra section II.B.4. 395See rule 206(4)–3(a)(2)(iii)(A)(3) (requiring that the written agreement ‘‘requires that the solicitor, at the time of any solicitation activities for which compensation is paid or to be paid by the investment adviser, provide the client with a current copy of the investment adviser’s written disclosure statement required by [§ 275.204–3] of this chapter (‘brochure rule’). . .’’); rule 206(4)– 3(a)(2)(iii)(A)(2) (requiring that the written agreement ‘‘contains an undertaking by the solicitor to perform his duties under the agreement in a manner consistent with the instructions of the investment adviser and the provisions of the Act and the rules thereunder’’). 396See supra footnote 393 (referencing the proposed exemption from the written agreement requirement for certain solicitation arrangements). omitted, or what disclosures should we add, and why? For example, should the solicitor disclosure require additional information about the nature of the relationship between the adviser and the solicitor, or about compensation?

Do commenters agree that we
should include the proposed additional disclosure requiring a statement of any potential material conflicts of interest resulting from the investment adviser’s relationship with the solicitor and/or the compensation arrangement? Why or why not? Or should it be sufficient for the disclosure to state the relationship between the solicitor and the adviser (including any affiliation), and the terms of such compensation arrangement, including a description of the compensation paid or to be paid to the solicitor? Would the proposed additional disclosure requirement result in disclosure that is too lengthy? If so, how should we ensure that the conflict of interest in the solicitation relationship is effectively conveyed to the investor?
Should we include an exception to
the proposed disclosure requirement when the solicitor itself is registered with the Commission as an investment adviser and discloses the relevant conflicts of interest concerning the compensation for solicitation in its brochure and/or brochure supplements? In such a case would it be sufficient for the solicitor disclosure to briefly disclose that there is cash or non-cash compensation for the solicitation, and to state that the details of that compensation and any conflicts it creates are described in the brochure and/or brochure supplement?
Should we include an exception to
the proposed disclosure requirement when the solicitor itself is registered with the Commission as a broker-dealer and discloses the relevant conflicts of interest concerning the compensation for solicitation under the Commission’s regulations, such as under Regulation Best Interest or Form CRS Relationship Summary? In such a case would it be sufficient for the solicitor disclosure to briefly disclose that there is a cash or non-cash compensation for the solicitation, and to state that the details of that compensation and any conflicts it creates are described in Form CRS or where applicable pursuant to Regulation Best Interest?
In addition to the solicitor
disclosure, should we require the solicitor or the adviser to deliver to the investor, at the time of solicitation, the adviser’s Form CRS relationship summary, which would inform the investor about, among other things, the types of customer relationships and services provided? Why or why not?
Should we continue to require that
the solicitor disclosure describe the terms of the compensation arrangement, including a description of the compensation paid or to be paid to the solicitor? Why or why not? Should we require a different disclosure for cash or for non-cash compensation? Why or why not, and if so, what disclosure requirement should apply for cash or for non-cash compensation?
Should we explicitly require that
the solicitor disclose any compensation it receives indirectly? Why or why not?
Should we, as proposed, replace the
current rule’s requirements that the solicitor disclosure include whether the client will pay a specific fee to the adviser and whether the client will pay higher advisory fees because the client was referred by the solicitor, with the requirement that the solicitor disclosure include the amount of any additional cost to the investor as a result of solicitation? Would such a proposed requirement result in disclosure that would effectively inform the investor of any increased costs to it as a result of the solicitation? What direct or indirect additional costs to investors that are private fund investors would be included in this disclosure?
Would private fund investors
indirectly incur any additional costs as a result of the adviser’s use of a solicitor, such as through the adviser charging the private fund a higher fee than another private fund it manages without using a solicitor? Why or why not? If so, should the solicitor disclosure state such additional amounts, if applicable?
Do commenters agree with the
proposal that either the solicitor or the adviser could deliver the solicitor disclosure (as long as the contract designates the responsible party) at the time of the solicitation or, in the case of a mass communication, as soon as reasonably practical thereafter? Alternatively, should we continue to require the solicitor to deliver the disclosure? Why or why not, and if so, should we require that the adviser deliver a disclosure template to the solicitor, as a means reasonably designed to ensure that the solicitor has all of the information required to be disclosed (e.g., the solicitor may be unaware of the amount of additional costs to the investor as a result of solicitation)? Why or why not?

Written Agreement
The proposed rule would require that the investment adviser’s compensation to the solicitor be made pursuant to a written agreement with the solicitor, as is required under the current rule.393 The written agreement would be required to: (i) Describe with specificity the solicitation activities of the solicitor and the terms of the compensation for the solicitation activities; (ii) require that the solicitor perform its solicitation activities in accordance with sections 206(1), (2), and (4) of the Act; and (iii) as discussed above, require and designate the solicitor or the adviser to provide the investor, at the time of any solicitation activities or, in the case of a mass communication, as soon as reasonably practicable thereafter, with a separate disclosure meeting the conditions of the rule.394 While these requirements are similar to the requirements of the current rule, we are proposing to eliminate some of the current written agreement requirements, i.e., the requirement that the solicitor deliver the adviser’s brochure, and the requirement that the solicitor undertake to perform its duties consistent with the instructions of the adviser.395 Our proposal would also modify the current requirement that the written agreement contain an undertaking by the solicitor to perform his duties under the agreement in a manner consistent with the provisions of the Act and the rules thereunder, replacing it with the requirement that the solicitor agree to perform its solicitation activities in accordance with sections 206(1), (2), and (4) of the Act. We continue to believe the written agreement requirement is appropriate for unaffiliated solicitors.396 Although an investment adviser may not be able to exercise control over a third party in the same manner as it could control its own employee, having the contours of the solicitation relationship spelled out in the written agreement between the

397Rule 206(4)–3(a)(2)(iii)(A).
398Rule 204–3. The rule does not require advisers to deliver brochures to certain advisory clients receiving only impersonal investment advice for which the adviser charges less than $500 per year, or to clients that are RICs or BDCs provided that the advisory contract with such a company meets the requirements of section 15(c) of the Investment Company Act. 399See 1979 Adopting Release, supra footnote 27, at n.14 and accompanying text. 400See id. We stated that the solicitor’s delivery of the brochure ‘‘will be useful to clients and will not impose an undue burden upon solicitors or investment advisers’’ and that ‘‘[f]urthermore, delivery of a brochure by the solicitor will, in most cases, satisfy the investment adviser’s obligation to deliver a brochure to the client under Rule 204–3.’’ Id. 401See 2010 Form ADV Amendments Release, supra footnote 34, at section I. In the past, Form ADV Part 2 had required advisers to respond to a series of multiple-choice and fill-in-the-blank questions organized in a ‘‘check-the-box’’ format, supplemented in some cases with brief narrative responses. Advisers had the option of providing information required by Part 2 in an entirely narrative format, but few had done so. Form ADV
Part 2 currently requires the ‘‘brochure,’’ which
contains 18 narrative disclosure items about the advisory firm, and the ‘‘brochure supplement,’’ which contains information about certain advisory personnel on whom clients rely for investment advice. 402Refer-a-friend solicitation arrangements can often involve small amount of compensation, such as the adviser paying $10.00 to a current client for each client the current client solicits to enter into an investment advisory relationship with the adviser (some such solicitation arrangements are contingent upon the solicited client successfully entering into an investment advisory relationship with the adviser; others are not). Such compensation can also be, for example, free or lower-fee investment advisory services for a defined period of time, investment adviser subscription services, and gift cards. 403An individual associated with a registered broker-dealer who enters into a solicitation agreement in her individual capacity may, under some circumstances, be an investment adviser or a broker or dealer within the meaning of section 202(a)(11) of the Act or section 3(a)(4)(A) or 3(a)(5) of the Exchange Act, respectively, and may be subject to statutory or regulatory requirements under Federal law, including the requirement to register as an investment adviser or as a brokerdealer pursuant to section 15(a) of the Exchange Act, and/or state law and certain FINRA rules. 404Proposed rule 206(4)–3(a)(2). 405See rule 206(4)–3(a)(2)(iii)(B). adviser and solicitor would establish some degree of control over aspects of the arrangement. The current rule achieves this by requiring that the solicitor agree to perform its duties consistent with the instructions of the adviser.397 We believe this requirement could be difficult or impractical to implement in a number of contexts, however, such as when advisers enter into solicitation agreements with many different solicitors or the solicitor is a much larger institution than the adviser. Instead, under our proposal, the solicitor would be required to meet the specific requirements of the written agreement, including the solicitor’s agreement to perform its solicitation activities in a manner consistent with sections 206(1), (2), and (4) of the Act. Our proposed rule would eliminate the current rule’s written agreement requirement that the solicitor deliver to clients a copy of the adviser’s Form ADV brochure. We are proposing this change because the current requirement is duplicative of an adviser’s delivery requirement under rule 204–3, the Act’s brochure rule. Under the brochure rule, an adviser must provide its prospective clients with a current firm brochure before or at the time it enters into an advisory contract with them.398 The same year we adopted the cash solicitation rule, we adopted for the first time the Form ADV brochure and rule 204–3.399 We stated that the solicitor’s delivery of the adviser’s brochure could satisfy the investment adviser’s obligation to deliver it under rule 204–
3.400 However, to the extent both the
adviser and the solicitor deliver the adviser’s brochure, clients may find this disclosure confusing or overwhelming, and it also could undermine disclosure effectiveness by taking away the spotlight from the conflict of interest disclosure. In addition, since 1979, we have significantly amended the form and content of the brochure to better correspond to advisers’ businesses and to be more accessible to investors.401 Many advisers with multiple types of advisory services have developed different versions of their brochures for each type of service. The adviser is in the best position to ensure that the correct version of the brochure is delivered to the client. We believe that our proposed solicitor disclosure and written agreement requirements would be adaptable to different types of solicitation arrangements, including refer-a-friend programs and other solicitation arrangements that may involve smaller amounts of compensation, to the extent advisers could not take advantage of the proposed de minimis exemption. Under refer-a-friend arrangements, current investors may solicit multiple investors for their adviser through social media or other electronic communications.402 The adviser and solicitor could employ electronic media and communications to satisfy the rule’s written agreement and disclosure requirements (e.g., by entering into the required written agreement electronically). Solicitors could also provide the required concise disclosure in a format appropriate for the nature of the relationship, such as electronically via pop-ups or other electronic means. We request comment on the proposed written agreement requirement.

Should the adviser be required to
enter into written agreements with solicitors who are engaged in solicitation activities (subject to certain exemptions such as for in-house solicitors, discussed infra section II.B.7)?
Should the written agreement
include more, or fewer, specific requirements? If so, what requirements should be added and/or what requirements should be removed, and why?
Should we retain the current rule’s
written agreement requirement that the solicitor undertake to perform its duties consistent with the instructions of the adviser? Why or why not? Should the written agreement require that the solicitor perform its solicitation activities in accordance with sections 206(1), (2), and (4) of the Act, rather than more generally in accordance with the provisions of the Act and the rules thereunder? Why or why not? Or, are there other provisions of the Act and the rules thereunder that we should add to the solicitor’s required undertakings? If so, what are they, and why?
Should we require that the
agreement include a provision under which the solicitor agrees to provide relevant books and records to the Commission or the adviser upon request?
Should we retain the current rule’s
written agreement requirement for solicitors to deliver the adviser’s brochure, in light of the adviser’s brochure delivery requirement? Why or why not?
Are there instances where an
adviser would enter into a written solicitation agreement with an individual rather than the individual’s associated firm or employer? 403 Should we specify that in such instances, an adviser must enter into a written agreement with a firm (as opposed to any individual solicitor at the firm)? Why or why not?

Adviser Oversight and Compliance;
Elimination of Additional Provisions Our proposal would require that the investment adviser must have a reasonable basis for believing that the solicitor has complied with the agreement.404 In addition, the proposed rule would eliminate the current rule’s requirement for the adviser to obtain a signed and dated acknowledgment from the client that the client has received the solicitor’s disclosure.405 Our proposal would also eliminate the current rule’s explicit reminders of

406Rule 206(4)–3(a)(2)(iii)(C).
407 1979 Adopting Release, supra footnote 27, at text accompanying nn.14 and 15. 408See rule 206(4)–3(a)(iii)(B) (the investment adviser must receive from the client, prior to, or at the time of, entering into any written or oral investment advisory contract with such client, a signed and dated acknowledgment of receipt of the investment adviser’s written disclosure statement and the solicitor’s written disclosure document). Under the current rule, certain solicitors (e.g., inhouse solicitors, certain affiliates of the adviser, and solicitors for impersonal investment advice) are exempt from such requirement. 409Rule 206(4)–7. See Compliance Program Adopting Release, supra footnote 33. 410Under the compliance rule, each adviser that is registered or required to be registered under the Act is required to adopt and implement written policies and procedures reasonably designed to prevent the adviser and its personnel from violating the Advisers Act. Id. 411For example, rule 2a–7 under the Investment Company Act leverages rule 38a–1, the compliance rule under that statute, rather than prescribing requirements for how a retail money market fund determines that its beneficial owners are natural persons. See SEC Money Market Fund Reform Release, supra footnote 232 at text accompanying nn.715–716; see also Compliance Rule Adopting Release, supra footnote 33, at nn.24–28 and accompanying text. The Investment Company Act compliance rule also requires that the fund’s procedures provide for the oversight of compliance by specified service providers. 412Rule 206(4)–3(c) and (e). 413Rule 206(4)–3(e). 414See Political Contributions by Certain Investment Advisers, Release No. IA–3043 (July 1,
2010) [75 FR 41018 (July 14, 2010)], at nn.429 and
430 and accompanying text.
415Rule 206(4)–3(c).
416See 1979 Adopting Release, supra footnote 27, at n.16 and accompanying text. With respect to the possible relevance of other laws, the Commission noted that, ‘‘where the solicited client is a pension plan or other employee benefit plan, payment of a fee to the solicitor might, depending upon the circumstances, result in a prohibited transaction under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1954 (Code). The rule being adopted of course provides no relief from ERISA or the Code.’’ Id. 417 Id. (‘‘The rule is not intended to suggest the scope and nature of any obligations an adviser or solicitor might have under the securities laws or under other laws. For this reason, and in response to a comment, the rule as adopted omits the proposed rule’s reference to a solicitor’s obligation to recommend an adviser ‘best suited’ to a client.’’). It would continue to be the case that an adviser that is subject to the solicitation rule would be subject to any other applicable provisions in the Federal securities laws. advisers’ requirements under the Act’s special rule for solicitation of government entity clients and their fiduciary and other legal obligations, which we believe are covered by other provisions of the Act and the rules thereunder. a. Adviser Oversight and Compliance Our proposed requirement that the investment adviser must have a reasonable basis for believing that the solicitor has complied with the rule’s written agreement would replace the current requirement that ‘‘the investment adviser makes a bona fide effort to ascertain whether the solicitor has complied with the agreement, and has a reasonable basis for believing that the solicitor has so complied.’’ 406 We believe that this provision would protect investors’ interests by requiring advisers to monitor their compensated solicitors for compliance with the rule’s written agreement requirements. The question of what would constitute a reasonable basis would depend upon the circumstances. However, we believe that a reasonable basis generally should involve periodically making inquiries of a sample of investors referred by the solicitor in order to ascertain whether the solicitor has made improper representations or has otherwise violated the agreement with the investment adviser.407 For example, depending on the facts and circumstances, an adviser could satisfy the proposed rule’s compliance requirement by making the inquiries described above and being copied on any emails the solicitor sends to investors with the solicitor disclosure. Under our proposal, the rule’s compliance requirement would replace the current rule’s requirement that an adviser obtain a signed and dated acknowledgment from the client that the client has received the solicitor’s disclosure.408 The proposed rule would allow advisers to tailor their compliance with the solicitation rule as appropriate for each adviser and the risks and operations in their particular
solicitation relationships. We believe that advisers are better situated than most solicitors to determine appropriate policies and procedures to ensure that their solicitors comply with their written agreement (including, if applicable, the agreement that the solicitor deliver the solicitor disclosure to investors at the time of solicitation or as soon as reasonably practical thereafter). Some advisers may find that written acknowledgements from all solicited investors are most appropriate, but others may rely on other methods to satisfy themselves of the solicitor’s compliance, such as making inquiries of investors referred by the solicitor in order to ascertain whether the solicitor disclosure has been delivered or whether the solicitor has made improper representations or has otherwise violated the agreement with the investment adviser. Our principles-based proposal relating to compliance is consistent with the Act’s compliance rule, adopted in 2003,409 which contains requirements for advisers to adopt compliance policies and procedures.410 When an adviser utilizes a solicitor as part of its business, the adviser must have in place compliance policies and procedures that address this relationship and are reasonably designed to ensure that the adviser is in compliance with rule 206(4)–3. Our proposed approach is also similar to recently adopted rules under the Investment Company Act.411 b. Elimination of Additional Provisions We are also proposing to eliminate the current rule’s explicit reminders of advisers’ requirements under the Act’s special rule for solicitation of government entity clients and their fiduciary and other legal obligations.412 We believe these cross references to advisers’ other obligations are not necessary under the solicitation rule because they are addressed by other provisions under the Act. The current rule’s paragraph (e) states that ‘‘[s]olicitation activities involving a government entity, as defined in [the pay-to-play rule], shall be subject to the additional limitations set forth in that
section.’’ 413 The Commission added
this provision when it adopted the payto-play rule in 2010, and explained that the provision ‘‘alerts advisers and others that special prohibitions apply to solicitation activities involving government entity clients under rule 206(4)–5.’’ 414 We believe that this provision is no longer necessary in light of the fact that advisers should now be well aware of their obligations under the pay-to-play rule. We are also proposing to remove the current rule’s provision that ‘‘[n]othing in this section relieves any person of any fiduciary or other legal obligation.’’ 415 When we adopted the solicitation rule, we included this provision as a reminder to investment advisers and solicitors.416 We noted that it was not intended to suggest the scope and nature of any obligations an adviser or solicitor might have under the securities laws or under other laws.417 We request comment on our proposed adviser oversight and compliance provisions. We also request comment on the proposed elimination of the current rule’s provisions that cross-reference other provisions under the Act.

Do commenters believe that
advisers should be required to have a reasonable basis for believing that the solicitor has complied with the written agreement required by the proposed rule? Why or why not? Should we maintain the current requirement that an adviser make a bona fide effort to ascertain whether the solicitor is in compliance with the terms of the

418Proposed rule 206(4)–3(b)(1).
419 Id. The proposed rule incorporates the Form ADV definition of ‘‘impersonal investment advice,’’ which reads: ‘‘investment advisory services that do not purport to meet the objectives or needs of specific individuals or accounts.’’ Form ADV:
Glossary of Terms.
420The Form ADV definition of ‘‘impersonal investment advice’’ would replace the current rule’s definition of ‘‘impersonal advisory services,’’ which is ‘‘investment advisory services provided solely by means of (i) written materials or oral statements which do not purport to meet the objectives or needs of the specific client, (ii) statistical information containing no expressions of opinions as to the investment merits of particular securities, or (iii) any combination of the foregoing services.’’ Rule 206(4)–(3)(d)(3). 421See generally Division of Investment Management, SEC, Staff Guidance on RoboAdvisers (February 2017), available at https:// www.sec.gov/investment/im-guidance-2017–02.pdf. 422See id. (‘‘A client that wishes to utilize a roboadviser enters personal information and other data into an interactive, digital platform (e.g., a website and/or mobile application). Based on such information, the robo-adviser generates a portfolio for the client and subsequently manages the client’s account.’’) 423See Exemption for Certain Investment Advisers Operating Through the internet, Release No. IA–2091 (December 12, 2002) [67 FR 77619 (Dec. 18, 2002)]. In order to be eligible for registration with the Commission pursuant to rule 203A–2, an internet adviser must provide investment advice to its clients through an interactive website, which the rule defines as ‘‘a website in which computer software-based models or applications provide investment advice to clients based on personal information each client supplies through the website.’’ Id. Unlike typical roboadvisers, internet advisers do not manage the assets of their internet clients. See id. 424See 1979 Adopting Release, supra footnote 27, at text accompanying nn.12–13. 425Rule 206(4)–3(a)(2)(i) and (iii). 426 Id. 427Proposed rule 206(4)–3(b)(1). Under the current rule, an adviser and a solicitor of impersonal investment advice are required to enter into a written agreement, although the rule does not specify any required provisions. 428 Id. agreement and has a reasonable basis for believing that the solicitor is in compliance? Why or why not?

Should the rule include a specific
method or methods of demonstrating a solicitor’s compliance with the rule’s written agreement requirements, such as the current rule’s requirement for an adviser to obtain a signed and dated acknowledgment of the solicitor disclosure statement? Why or why not? If not, what methods should advisers use to satisfy their compliance and oversight provision to form a reasonable basis for believing that the solicitor is in compliance? Would methods such as inquiring with some or all of its solicited investors reasonably ensure that an adviser’s solicitor is in compliance with the rule’s written agreement requirements? Are there other methods that would be more effective at assessing whether a solicitor is in compliance with its obligations under the required written agreement?
Should the rule include a
requirement for advisers to adopt and implement policies and procedures governing their use of solicitors, even though advisers are also required to do so under the Act’s separate compliance rule? Why or why not?
Should the rule continue to include
a provision reminding advisers that solicitation activities involving a government entity, as defined in rule 206(4)–5 are subject to additional limitations in that rule? Why or why not?
Should the rule continue to include
a provision reminding advisers and solicitors that nothing in the rule is to be deemed to relieve any investment adviser or solicitor of any fiduciary or other obligation which he may have under any law? Why or why not?

Exemptions
a. Impersonal Investment Advice The proposed rule would partially exempt from the rule solicitors that refer investors for the provision of impersonal investment advice.418 This exemption would cover solicitation activities for investment advisory services that do not purport to meet the objectives or needs of specific individuals or accounts.419 We propose to incorporate into the rule the Form ADV definition of ‘‘impersonal investment advice,’’ which would replace the current rule’s definition of ‘‘impersonal advisory services,’’ to achieve consistency with Form ADV.420 We do not believe, however, that modifying the definition for consistency would change the types of persons to whom the exemption would apply. For example, the proposed exemption would generally continue to apply to solicitations of subscribers to publishers of market newsletters and subscription services containing investment advice, when the adviser’s services do not purport to meet the objectives or needs of specific individuals or accounts. The proposed exemption would be inapplicable to automated advisers (often colloquially referred to as ‘‘roboadvisers’’), which are registered investment advisers that use technologies to provide discretionary asset management services to their clients through online algorithmic-based programs.421 This is because roboadvisers generate client portfolios for clients based on personal information and other data that clients enter into interactive platforms.422 internet advisers—another type of automated adviser—would also fall outside of the exemption for impersonal investment advice. Internet advisers provide investment advice to their clients through interactive websites based on personal information that clients enter into the website.423 When we adopted the cash solicitation rule, we added a partial exemption from the rule with respect to solicitation activities for the provision of impersonal advisory services only, because we understood that ‘‘prospective clients normally would be aware that a person selling such services was a salesman who was paid to do so.’’ 424 We continue to hold this belief. However, even though we are proposing to continue the partial exemption for such solicitors, advisers could not, under the proposed rule, compensate a solicitor for the solicitation of impersonal investment advice if the solicitor is disqualified under the rule. Under the current rule, advisers making cash payments for solicitation for impersonal advisory services must have a written agreement with the solicitor and comply with the rule’s disqualification provision.425 However, they are exempt from the rule’s disclosure requirements, the specific requirements of the written agreement, and the supervision provisions.426 The proposed rule would maintain the current rule’s partial exemption for compensated solicitors of impersonal investment advice, with one modification: Such solicitors would not be required to enter into a written agreement
with the investment adviser.427 We believe that applying the written agreement provision to such solicitors could result in an expense without a sufficient corresponding benefit. This is because the exemption would exempt the solicitor and the adviser from the substantive requirements of the written agreement, and the agreement itself without the requirements would not add any meaningful investor protections. The partial exemption would continue to be available only to solicitation that is solely for impersonal investment advice.428 A registered investment adviser that offers a full line of advisory services, including personal and impersonal investment advice, may only rely on the partial exemption when the solicitation activities relate exclusively to the investment adviser’s impersonal investment advice. It would not be permitted to rely on the partial exemption under the proposed rule when an investor is solicited for both impersonal and personal investment

429Rule 206(4)–3(a)(2)(ii). 430See id.; Rule 206(4)–3(a)(2)(iii). Our proposed rule would cover ‘‘[a] solicitor [that] is a person which controls, is controlled by, or is under common control with the investment adviser, or is a partner, officer, director or employee of such a person . . .’’ subject to the provisions therein. Proposed rule 206(4)–3(b)(2). The current rule’s exemption only covers solicitors who are principals or employees of certain related firms, but our staff has previously stated it would not recommend enforcement if, a solicitor which is a person (rather than an officer, director or employee of such person) which controls, is controlled by, or is under common control with, the investment adviser that is paying a cash referral fee to the solicitor pursuant to the cash solicitation rule comes within, and is subject to, the terms of clause (ii) of paragraph (a)(2) of such rule. See, e.g., Allen Isaacson, SEC Staff NoAction Letter (pub. avail. Dec. 17, 1979); Stein, Roe and Farnham Inc., SEC Staff No-Action Letter (pub. avail. May 26, 1987). 431 Id. The current rule requires solicitation payments to in-house and affiliated solicitors to be paid pursuant to a written agreement (although the rule does not specify the terms of that agreement). 432Rule 206(4)–3(a)(2)(ii). 433Proposed rule 206(4)–3(b)(2). 434Such solicitors could be employees, but are likely to more often be independent contractors. We request comment below on whether the rule should specifically address independent contractors. advice, even if that investor receives only impersonal investment advice. We request comment on our proposal to revise the rule’s partial exemption for solicitors for the provision of impersonal investment advice.

Should solicitors of investors for
the provision of impersonal investment advice be subject to any or all of the requirements of the rule? If so, which requirements, and why? For example, should we continue to require that these solicitors enter into written agreements with the advisers? As another example, should we exempt these solicitors from the solicitor disqualification provisions? Why or why not?
Should the rule include additional
requirements specifically for such solicitors? If so, what should these requirements be?
Should we replace the current
definition of ‘‘impersonal advisory services’’ with the Form ADV definition of ‘‘impersonal investment advice,’’ as proposed? Would this definitional change have any practical effects in terms of the applicability of proposed rule 206(4)–3? If so, what would they be?
Can commenters provide examples
of investment advisory services that are offered today that would be ‘‘impersonal investment advice’’ (i.e., the activities do not purport to meet the objectives or needs of specific individuals or accounts), other than, or in addition to, market newsletters or other periodicals and recommended lists? Do advisers that offer such impersonal investment advice typically provide it directly to investors? Do they typically provide it in addition to personalized investment advice? If so, do they provide impersonal investment advice as an add-on service to investors to whom they provide personalized investment advice, or do they provide it to a different set of investors, or do some (but not all) investors receive both types of investment advice?
Do commenters agree that roboadvisers and internet advisers should
not be eligible for the exemption for impersonal investment advice, because they typically provide personalized investment advice? b. Advisers’ In-House Solicitors and Other Affiliated Solicitors The current rule provides a partial exemption for an adviser’s solicitation relationship with any person that is an adviser’s partner, officer, director and employee (sometimes referred to as inhouse solicitors), and any partner, officer, director, or employee of a person which controls, is controlled by, or is under common control with the adviser (sometimes referred to as affiliated solicitors), provided that the affiliation is disclosed to the client at the time of the solicitation or referral.429 Under the current rule, an adviser is exempt from the following requirements with respect to such solicitors: (i) The detailed provisions of the written agreement requirement (e.g., to provide the solicitor disclosure and perform solicitation activities in accordance with the adviser’s instructions and the Act), and (ii) the rule’s other compliance and oversight provisions (e.g., the client acknowledgement requirement and the adviser’s supervisory requirement).430 However, under the current rule, an adviser is subject to the following requirements with respect to such solicitors: (i) The rule’s statutory disqualification provision; and (ii) the rule’s requirement to enter into a written agreement with the adviser (although not the written agreement’s detailed requirements).431 Under the current rule, in order to rely on the partial exemption, any affiliation between the investment adviser and such other person must be disclosed to the client at the time of the solicitation or referral.432 We propose to generally maintain the central elements of the current rule’s partial exemption for affiliated solicitors: That the solicitor disclosure, adviser oversight and the detailed provisions of the written agreement are not required with respect to affiliated solicitors under certain conditions. We would generally continue the partial exemption, with some modifications, provided that the status of such solicitor as in-house or affiliated is disclosed to the investor at the time of the solicitation unless such relationship is readily apparent, and the adviser documents such solicitor’s status at the time of entering into the solicitation arrangement.433 We believe that when an investor is aware that a solicitor is an adviser’s inhouse solicitor or its affiliate, the solicitor disclosure is not necessary to inform the investor of the solicitor’s bias in recommending such adviser. In these instances with respect to in-house solicitors, an investor is on notice that the solicitor has a stake in soliciting the investor for its own firm. Similarly, investors solicited by persons they know to be affiliated with the adviser would also be likely to be aware that the solicitor has a business interest in seeing its affiliate gain additional investors, and that the
recommendation is not coming from a neutral party. We are proposing to modify the current rule’s requirement, however, to permit an adviser to rely on the rule’s partial exemption for in-house and affiliated solicitors not only when the status of such solicitor as in-house or an affiliate is disclosed to the investor at the time of the solicitation or referral, but also when such relationship is readily apparent to the investor at the time of solicitation. In some cases, the relationship between the in-house or affiliated solicitor and the adviser may be readily apparent to the investor, such as when the in-house solicitor shares the same name as the advisory firm, or clearly identifies itself as related to the adviser in its communications with the investor. For example, in the latter case, even if the solicitor does not share the same name as the adviser, its affiliation would be readily apparent if a business card distributed to investors at the time of the solicitation clearly and prominently states that the solicitor is a representative of the adviser. In these cases, we believe that an additional requirement under the proposed rule to disclose the solicitor’s status as an inhouse or affiliated solicitor would not result in a benefit to the investor, and would create additional compliance burdens for the adviser and solicitor. In other situations, the relationship with an in-house solicitor is not readily apparent, such as when the solicitor is a representative of the adviser but operates its solicitation activities through its own DBA name or brand, and the legal name of the adviser is omitted or less prominent.434 In these cases when the relationship is not readily apparent the adviser or solicitor

435See supra footnote 430 (describing the specific proposed change in the rule text). 436Under the current rule, advisers and their inhouse and affiliated solicitors are required to enter into written agreements, but they are not required to comply with the current rule’s detailed requirements for the written agreements. From time to time, advisers have asked whether they can forego the written agreement requirement for employees of the adviser to refer business to the adviser for cash compensation. See, e.g., Merchants Capital Management, Incorporated, SEC Staff NoAction Letter (Oct. 4, 1991) (stating that the staff cannot assure the requestor that it would not recommend any enforcement action to the Commission under rule 206(4)–3 if the requestor proceeds as described in the letter). 437See supra footnotes 393–395 and accompanying text regarding the written agreement requirement under the proposed rule. 438Proposed rule 206(4)–3(b)(2)(ii). 439See infra section II.B.7.c. would be required under the proposed rule to disclose the solicitor’s status with respect to such investment adviser as its in-house solicitor or affiliated solicitor in order to avail itself of the rule’s partial exemption. Similarly, for affiliated solicitors, when the affiliation is not disclosed or otherwise readily apparent to the investor, the adviser would not be permitted to rely on the proposed partial exemption. This could be the case, for example, when the soliciting affiliate does not share a company name with the adviser, and neither the adviser nor the solicitor discloses such affiliation at the time of solicitation. It could also be the case when the affiliation between two different company names is not commonly known, and neither the adviser nor the solicitor discloses such affiliation at the time of solicitation. Another modification we are proposing to the current rule is to expand the partial exemption to cover any solicitor which is a person which controls, is controlled by, or is under common control with, the investment adviser that is compensating the solicitor pursuant to the solicitation rule.435 This is because we believe that a person that controls, is controlled by, or is under common control with, the investment adviser, should be treated similarly under the proposed rule to any officers, directors or employees of such affiliated person. We are not proposing to continue the current rule’s requirement that advisers and their inhouse and affiliated solicitors enter into a written agreement.436 Unlike the current rule’s detailed requirements for the written agreement with unaffiliated solicitors (i.e., that the solicitor perform its activities in a manner consistent with the adviser’s instructions and the provisions of the Act and the rules thereunder), the current rule does not specify what a written agreement between an adviser and in-house solicitor must include.437 We continue to believe that the detailed provisions of the written agreement are
not necessary for in-house solicitors because this kind of oversight and authority over the solicitor already applies in the context of in-house solicitors and is addressed by the adviser’s power to oversee its own personnel. Likewise, we do not believe we should continue to require advisers to enter into written agreements with their own affiliates in order to avail themselves of the proposed rule’s partial exemption. Advisers and their affiliated solicitors may wish to enter into agreements, or they may find it more convenient and effective to delineate their responsibilities to one another in other ways. Such methods might include, for example, policies and procedures regarding such affiliated personnel. We are also proposing that the rule no longer require any written agreement between an adviser and its in-house personnel under the solicitation rule because we believe this requirement creates additional compliance obligations for the adviser and its inhouse and affiliated solicitor that are not justified by any corresponding benefit. We are proposing to continue to apply, with respect to in-house and affiliated solicitors, the exemption from the rule’s separate compliance requirement, which would require that investment adviser have a reasonable basis for believing that the solicitor has complied with the agreement. As with the written agreement requirement, we believe that this kind of oversight over the solicitor already applies in the context of in-house solicitors, and is addressed by the adviser’s power to oversee and supervise its own personnel. We also believe advisers and their affiliates are well positioned to determine how best to achieve an affiliated solicitor’s compliance with the Act, and do not need the protections of the rule’s compliance and oversight provision. Finally, we are proposing to continue the application of the rule’s disqualification provisions to in-house and affiliated solicitors. Some in-house solicitors with disciplinary events under the proposed rule would be disqualified from association with an investment adviser independent of the solicitation rule, if the Commission has barred or suspended that person from association with an investment adviser under
section 203(f) of the Act. Other in-house
or affiliated solicitors with such disciplinary events may not be subject to such Commission action and, absent the application of the rule’s disqualification provision, would be permitted to solicit for the adviser inhouse, notwithstanding their disqualifying event. Without the disqualification provision applicable to such solicitors, the adviser would risk that the Commission may bar or suspend that person from association with an investment adviser after the solicitation activities have commenced. We continue to believe that investors should be protected from solicitation by persons with certain disciplinary events, regardless of whether the solicitation is conducted in-house, by an affiliate or by a person unaffiliated with the adviser. We are proposing a new requirement that in order to avail itself of the proposed partial exemption, each adviser must document such person’s status as an in-house or affiliated solicitor contemporaneously with the solicitation arrangement.438 We are proposing to add this requirement to the rule so that advisers do not make afterthe-fact determinations as to whether or not a solicitor qualifies for the partial exemption. We request comment on our proposal to revise the rule’s requirements governing solicitation arrangements by in-house and affiliated solicitors.

Should the proposed rule partially
exempt the adviser’s partners, officers, directors, and employees who are engaged in solicitation activities, or any solicitor that controls, is controlled by or that is under common control with the adviser or is a partner, officer, director, or employee of such person, from certain of the provisions of the solicitation rule? Why or why not? If so, which provisions of the rule should we exempt such solicitors from, and why? For example, should the proposed rule continue to exempt advisers and their in-house and affiliated solicitors from the detailed requirements of the written agreement (but not the requirement to enter into a written agreement) and the rule’s oversight and compliance requirements? Alternatively, should we fully exempt such solicitations from the rule (including, for example, the rule’s disqualification provisions)? Why or why not?
Should the proposed rule exempt
in-house and affiliated solicitors from the rule’s solicitor disqualification provision, as discussed in detail below? 439 Without the application of the disciplinary provision, would investors be made aware in all cases of an in-house or affiliated solicitor’s

440An adviser is required to disclose to clients in its Form ADV brochure disciplinary information about the firm and its management persons, which likely do not include a solicitor that controls, is controlled by or that is under common control with the adviser or is a partner, officer, director, or employee of such person. See Form ADV Part 2A, Item 9 and Form ADV General Instructions. Some advisers are also required to deliver to clients brochure supplements containing disciplinary information about certain of their supervised persons. See Form ADV Part 2B. However, solicitors likely would not be considered to be providing advice that would trigger delivery at the time of solicitation. An adviser to a private fund, however, is not required to deliver the Form ADV brochure or brochure supplement to investors in the fund. 441C.f. Form ADV Glossary (defining ‘‘employee,’’ to include an adviser’s independent contractors who perform advisory functions on the adviser’s behalf). 442See proposed rule 206(4)–3(b)(3). disqualifying events? 440 If we were to exempt affiliated solicitors from the rule’s disqualification provision, should we nevertheless require some affiliated solicitors (such as affiliated solicitors that solicit investors in private funds) to be subject to the rule’s disqualification provision (because private fund investors may not otherwise be aware of in-house solicitors’ disciplinary events since advisers are not required to deliver Form ADV to them)? Do inhouse and affiliated solicitors with disciplinary histories present less risk of misleading investors or otherwise conducting solicitations in a fraudulent manner than solicitors without disciplinary histories?

Do commenters agree with the types
of persons that would be covered by the partial exemption (i.e., the adviser’s partners, officers, directors, and employees, and any solicitor that controls, is controlled by or that is under common control with the adviser or is a partner, officer, director, or employee of such person)? If not, how should we adjust the rule’s description of affiliated solicitors?
Should the proposed rule’s partial
exemption for in-house and affiliated solicitors be conditioned on any factors or requirements (e.g., as proposed, that the relationship is disclosed to the investor at the time of solicitation or is readily apparent to the investor at the time of solicitation)? What other conditions or factors, if any, should apply?
Would advisers and solicitors have
difficulty in interpreting or applying the ‘‘readily apparent’’ standard? Should we instead require in house solicitors to disclose to investors, as applicable, their relationship at the time of the solicitation or as soon as reasonably practicable thereafter in all cases?
Do commenters agree that the
proposed rule should apply the written agreement and compliance requirements to every in-house and affiliated solicitor relationship, where the conditions of the proposed rule are not met? If so, why? If not, which of these in-house and affiliated solicitor relationships should be exempt from the proposed rule’s written agreement and compliance requirements, and why?
Should advisers’ relationships with
certain affiliated solicitors be subject to different provisions under the proposed rule from its solicitation relationships with other affiliated solicitors? For example, should an adviser, with respect to an affiliated solicitor that is itself a Commission-registered investment adviser, be exempt from some or all of the rule’s provisions for such solicitor? Conversely, for advisers that do not use SEC-registered affiliated solicitors, should we require an oversight provision, such as, for example, that the registered adviser take reasonable steps to ensure that its affiliated solicitor complies with provisions of the Act and the rules thereunder with respect to its solicitation activities? Is appropriate oversight otherwise achieved by an adviser’s relationship with its affiliate?
If the rule, as proposed, does not
require in-house and affiliated solicitors that meet the rule’s conditions to deliver to investors the solicitor disclosure, should we require in-house or affiliated solicitors (or the adviser) to deliver to investors another form of disclosure? For example, should we require a Form ADV brochure supplement for in-house and affiliated solicitors, even if the firm is not otherwise required to deliver one for such person? If so, why, and what additional information, if any, should we require the brochure supplement to include? Should we require the adviser to give investors, at the time of solicitation or as soon as reasonably practicable thereafter, its Form ADV disclosure, pursuant to which advisers are required to disclose any compensation to in-house and affiliated solicitors and any fee differential and the conflict of interest? If so, what disclosure should we require advisers to provide to investors (given that the relevant Form ADV provision does not require specific information about compensation by advisers to private funds)?
Should we include a definition of
‘‘employee’’ for the purpose of the proposed partial exemption? If so, how should we define the term? Should we define it to include an adviser’s independent contractors that are subject to the adviser’s supervision and control? Why or why not? We believe that the Form ADV definition of ‘‘employee’’ would not work for the solicitation rule because many soliciting employees and independent contractors do not provide investment advisory services.441 Do commenters agree? Do advisers use independent contractors to solicit investors on their behalf? If so, are those independent contractors subject to the adviser’s supervision and control, or are those contractors subject to the supervision and control of another regulated entity such as a registered broker-dealer or a commercial bank? Should we provide that the partial exemption for in-house personnel does or does not apply to an adviser’s independent contractors? Why or why not? Should we use another term instead of ‘‘employee,’’ such as ‘‘supervised person’’?
Do commenters agree with the
proposed requirement for an adviser to document the status of its solicitors as partners, officers, directors, or employees, or affiliated solicitors, as applicable? Do commenters agree that such documentation should be made at the time the adviser enters into the solicitation arrangement, to ensure that advisers do not make a determination as to the solicitor’s status after-the-fact? Will such timing be feasible for advisers? Why or why not? Do commenters recommend another point in time, and if so, when, and why?
Do commenters agree that in-house
solicitors should be subject to the proposed rule’s disqualification provisions? Why or why not?
c. De Minimis Compensation
The proposed rule contains an exemption for de minimis compensation. Specifically, the rule would not apply if the solicitor has performed solicitation activities for the investment adviser during the preceding twelve months and the investment adviser’s compensation payable to the solicitor for those solicitation activities is $100 or less (or the equivalent value in non-cash compensation).442 An adviser must come into compliance with the solicitation rule if it makes any compensation to a solicitor that, together with all compensation provided to that solicitor in the preceding 12 month period, exceeds the de minimis amount. Accordingly, if an adviser expects to make payments to a solicitor in excess of the de minimis amount, even though it has not yet done so, an adviser may wish to carefully consider whether it wishes to avail itself of the exemption. Although, as discussed above, we believe heightened safeguards would generally be

443See infra section II.B.8 (discussing current and proposed solicitor disqualification provisions). 444FINRA’s ‘‘gifts rule’’ prohibits any member or person associated with a member, directly or indirectly, from giving anything of value in excess of $100 per year to any person where such payment is in relation to the business of the recipient’s employer. FINRA Rule 3220 (Influencing or Rewarding Employees of Others) (‘‘FINRA’s Gifts Rule’’). FINRA’s Gifts Rule also requires members to keep separate records regarding gifts and gratuities. Id. 445See supra section II.A.4. 446See supra text accompanying footnotes 351– 353. 447See Notice to Members, Guidance: Gifts and Gratuities: NASD Issues Additional Guidance on Rule 3060 (Influencing or Rewarding Employees of Others), December 2006, available at http:// www.finra.org/sites/default/files/NoticeDocument/ p018024.pdf (providing staff guidance that gifts of de minimis value (e.g., pens, notepads or modest desk ornaments) or promotional items of nominal value that display the firm’s logo (e.g., umbrellas, tote bags or shirts) would not be subject to the restrictions of the Gifts Rule or its recordkeeping requirements). In 2008, the Commission approved the transfer of NASD Rule 3060 into the Consolidated FINRA Rulebook without material change and renumbered the rule as FINRA Rule 3220 (i.e., FINRA’s Gifts Rule). FINRA staff did not specify in its 2006 staff guidance at what value it would consider a gift to be of de minimis value. Id. See FINRA’s Gifts Rule, which also requires members to keep separate records regarding gifts and gratuities. 448See letter from R. Clark Hooper, Executive Vice President, NASD, to Henry H. Hopkins, Director, and Sarah McCafferty, Vice President, T. Rowe Price Investment Services, Inc., dated June 10, 1999 (NASD staff interpretive letter taking this approach). appropriate for an investor solicitation because a solicitor’s incentives to defraud an investor likely would be greater than a promoter’s, the solicitor’s incentives are significantly reduced when receiving de minimis compensation. We believe the need for heightened safeguards is likewise reduced. There is no de minimis exemption in current rule 206(4)–3; payment of de minimis cash referral fees to a solicitor is subject to the provisions of the current rule. We are proposing a de minimis exemption because we believe it could be overly burdensome for advisers and solicitors that engage in solicitation for de minimis compensation to comply with the rule, in light of the benefits. We have observed that changes in technology, such as the advent of social media, since the current rule was adopted have resulted in an increasing trend toward the use of solicitation and referral programs that involve de minimis compensation, such as refer-a-friend programs. Our proposed solicitor disclosure and written agreement requirements are designed to be adaptable to a variety of solicitation arrangements, including refer-a-friend
programs and other solicitation arrangements that may involve small amounts of compensation; however, we acknowledge that the proposed solicitor disqualification provisions might present greater compliance challenges for advisers that compensate multiple solicitors for de minimis compensation than for other advisers. These advisers may be smaller advisers without the resources to make the necessary inquiry into each person’s disciplinary history, as required by the proposed rule.443 Accordingly, we believe a de minimis exemption is now appropriate to ease the burden for these solicitation arrangements. Moreover, to the extent a solicitation is also a testimonial or endorsement of the proposed advertising rule, one of the primary policy goals of the proposed solicitation rule—disclosure of the compensation to the solicitor—would be satisfied by applying the testimonials and endorsements provision of the proposed advertising rule. Drawing from other rules applicable to certain dual registrants and brokerdealers, we chose a $100 threshold (or the equivalent value in non-cash compensation) payable to the solicitor for its solicitation activities for the investment adviser during the preceding twelve months.444 We believe that proposing an aggregate de minimis amount over a trailing year period is more consistent with our goal of providing an exception for small or nominal payments than an exception of a certain amount per referral. A very engaged solicitor who is paid even a small amount per referral could potentially receive a significant amount of compensation from an adviser over time, and in such a case we believe that investors should be informed of the conflict of interest and gain the benefit of the other provisions of the rule. The proposed advertising rule’s requirements for testimonials and endorsements would often apply even when an adviser provides de minimis compensation to a person for solicitation activity.445 We request comment on our proposed treatment of de minimis compensation under the solicitation rule.

Is our belief correct that the fact of
compensation would still be disclosed when a solicitor receives $100 or less because such referrals would often be testimonials or endorsements? Are there situations that might qualify for the proposed exemption that would not be subject to the proposed testimonials and endorsements provision of the proposed advertising rule? For example, because an oral statement by a person would not be an advertisement under the rule, would investors who are solicited through oral conversations not be informed of the payment made by the adviser for the referral? Should a de minimis exception be available only to the extent the referral is subject to the proposed advertising rule’s provisions regarding testimonials and endorsements (notably, disclosure of the fact of compensation)? Should we require the fact of compensation to be disclosed by an adviser availing itself of the de minimis exception?
Should the proposed rule include
an exemption for de minimis compensation for solicitation? If so, what should the de minimis amount be, and how should it be calculated (e.g., per referral, or per aggregated referrals over a certain time period)? Should it be higher or lower than $100? For example should it be $20, $50, $200, or $500? How should a de minimis exemption be applied to non-cash compensation?
Should some of the rule’s
provisions continue to apply to a solicitation arrangement that qualifies for the de minimis exemption? If so, which ones?
When a promotional
communication triggers the application of both the proposed advertising and solicitation rules, as discussed above,446 should a de minimis exemption apply? For example, if an adviser provides $50 per successful referral to its investors for writing a positive review about the adviser on the adviser’s social media
page, should the advertising rule, but
not the solicitation rule, apply? Would an exemption in such a case meaningfully reduce an adviser’s compliance burden? Would it reduce a solicitor’s burden? Would potential investor harm weigh in favor of applying the additional safeguards under the proposed solicitation rule? What kinds of investor harm would that be?
Basing the exemption on a specified
dollar value means that over time inflation may cause such a value to become outdated or lose its utility. Should we consider a more principlesbased de minimis exception rather than one based on a dollar value? For example, an exemption could alternatively or additionally be made for promotional items of nominal value and commemorative items,447 or for an occasional meal, a ticket to a sporting event or the theater or comparable entertainment which is neither so frequent nor so extensive as to raise any question of propriety.448 Should we

449Proposed rule 206(4)–3(b)(4). Some solicitors have, from time to time, requested no action relief from the cash solicitation rule from the Commission staff for referral programs with some, or all, of these features. See National Football League Players Association, SEC Staff No-Action Letter (Jan. 25,
2002) (‘‘NFLPA Letter’’); Excellence in Advertising,
Limited, SEC Staff No-Action Letter (Nov. 13, 1986; pub. avail. Dec. 15, 1985) (‘‘EIA Letter’’); International Association for Financial Planning, SEC Staff No-Action Letter (Jun. 1, 1998) (‘‘IAFP Letter’’). As discussed in section II.D., staff in the Division of Investment Management is reviewing staff no-action and interpretative letters to determine whether any such letters should be withdrawn in connection with any adoption of this proposal. incorporate such an exemption? If so, should we provide guidance on when such items raise a question of propriety? If so, should we include a recordkeeping requirement in the rule to highlight that advisers must track their use of de minimis compensation? d. Nonprofit Programs Under our proposed rule, certain types of nonprofit programs would be exempt from the substantive requirements of the rule because we believe the potential for the solicitor to demonstrate bias towards one adviser or another is sufficiently minimal to make the protections of the rule unnecessary. Specifically, the rule would not apply to an adviser’s participation in a program, (i) when the adviser has a reasonable basis for believing that (A) the solicitor is a nonprofit program, (B) participating advisers compensate the solicitor only for the costs reasonably incurred in operating the program; and (C) the solicitor provides clients a list of at least two advisers the inclusion of which is based on non-qualitative criteria such as, but not limited to, type of advisory services provided, geographic proximity, and lack of disciplinary history; and (ii) the solicitor or the investment adviser prominently discloses to the client at the time of any solicitation activities:
(A) The criteria for inclusion on the list of investment advisers, and (B) that investment advisers reimburse the solicitor for the costs reasonably incurred in operating the program.449 The first and second elements of the proposed exemption, taken together, are intended to mitigate the conflict of interest associated with the nonprofit solicitor’s receipt of compensation. We believe that the absence of compensation that is related to the program’s generation of referrals lessens the need for the protections of the rule. This is because a solicitor would be unlikely to demonstrate bias in referring one adviser over another when neither adviser compensates the solicitor based on the number of referrals made or any other indicator of the potential to earn the adviser profit. The third element of the proposed exemption (requiring the solicitor to provide a list of at least two advisers based on non-qualitative criteria) is intended to mitigate the risk that clients would view the nonprofit program as referring any one adviser. Requiring that the list be based on nonqualitative criteria would also reduce the likelihood of the solicitor appearing to favor or endorse the advisers in the program over other advisers that are not in its program, or any particular advisers in the program over other advisers in the program. Examples of non-qualitative criteria are the type of advisory services provided, geographic proximity, and lack of disciplinary history. Another example that would likely be a non-qualitative criterion is the presence of certain certifications for the firm or its personnel. If the list were to be sorted based on a qualitative assessment, such as adhering to a particular investment philosophy, that would not fall within the scope of the proposed exemption. Once the solicitor has selected a pool of advisers based on non-qualitative criteria, the program could permit a client to then screen for specific types of advisers within the pool based on the client’s own selection criteria. Similar to other proposed solicitation rule requirements, we are proposing to require that, in order to rely on the nonprofit exemption, the adviser must have a reasonable belief that the program meets these requirements. Finally, we are proposing to require, as a condition of the nonprofit exemption, disclosures to be made by the solicitor to the client at the time of any solicitation activities: The criteria for inclusion on the list of investment advisers, and that investment advisers reimburse the solicitor for the costs reasonably incurred in operating the program. We believe that these disclosures would inform clients of the basis for advisers’ participation in the program. Depending on the context and content of the required disclosures, however, there could be circumstances where a solicitor’s disclosures do not effectively convey to clients the scope and limitations of the program with respect to the selection of advisers in the program. For example,
if it is not clear from the disclosures that the program does not assess the quality of any adviser or its appropriateness for any client, and that that the program does not present a client with all of the investment advisers that may be available to the client, an adviser should consider making such disclosures or requiring them of the solicitor. We request comment on this aspect of the proposal.

Should we provide the proposed
nonprofit exemption? Should we define what types of programs qualify as ‘‘nonprofit,’’ perhaps through reference to IRS guidance? If so what entities should we include and why? Would such a list become outdated? Should there be any limit on the kind of compensation paid to the solicitor to ensure that the nonprofit status of the program does not serve merely as a conduit for circumventing the solicitation rule?
Should some of the rule’s
provisions apply to a solicitation arrangement that qualifies for the proposed nonprofit exemption? If so, which ones?
Should we limit the use of the fees
paid to covering ‘‘costs reasonably incurred in operating the program,’’ as proposed? If not, what other types of costs should we permit, any why? How would an adviser seeking to rely on the exemption demonstrate that the fees paid to the solicitor only cover such costs? Should we include a recordkeeping requirement that the adviser maintain records of the fees paid to the solicitor, as we do in our proposed corresponding amendments to the books and records rule?
Should we provide further guidance
on what we mean by ‘‘non-qualitative’’ criteria? For example, should we provide a list of such criteria that a person could use in accepting advisers for the nonprofit program and/or sorting the list? What should that list include?
Should we require the adviser or
the solicitor to disclose to the client, at the time of any solicitation activities or as soon as reasonably practicable thereafter, the criteria for inclusion on the list of investment advisers, and that the advisers reimburse the program for the costs reasonably incurred in operating the program? Why or why not? Should we require disclosure of the amount of reimbursement? Should we also require that the program state that it does not assess or opine on the quality of any adviser or its appropriateness for any client, and/or that the program does not include all investment advisers that may be available to clients? Why or why not?
As proposed, should we require
that a list that includes more than a single adviser be provided clients to qualify for the exemption? Should a solicitor be allowed to provide the name

450See, e.g., NFLPA Letter; EIA Letter; IAFP Letter, id. 451See rule 206(4)–3(a)(1)(ii). 452Section 203(f) of the Act authorizes the Commission to bar persons from association with an investment adviser, or to suspend them from association with an investment adviser. Under
section 203(f), we may issue a bar or suspension
order if the Commission, a court, or another regulatory authority has found the person to have engaged in categories of misconduct specified in
section 203(e) of the Act, discussed below. Section
203(f) also authorizes us to censure or place limitations on the activities of a person associated with an investment adviser instead of barring or suspending them. 453Section 203(e) of the Act [15 U.S.C. 80b–3(e)] authorizes the Commission to, by order, censure, place limitations on the activities, functions, or operations of, suspend for a period not exceeding twelve months, or revoke the registration of any investment adviser, under certain circumstances described therein. Under section 203(e), we may take these disciplinary actions in connection with our finding that a firm, or a person associated with the firm, has engaged in categories of misconduct specified in section 203(e), such as violating the Federal securities laws or willfully filing a false registration form. Section 203(e) also authorizes us to commence disciplinary action if a court or certain other regulatory authority find an adviser or an associated person has engaged in categories of misconduct specified in section 203(e), such as committing a crime in connection with the conduct of a securities business or a violating a foreign regulation regarding transactions in securities. 454See 1978 Proposing Release, supra footnote 27, at n.1 and accompanying text. 455Proposed rule 206(4)–3(a)(3)(i). The proposed rule would, however, provide exemptions for referrals for the provision of de minimis compensation and for certain nonprofit programs. See supra section II.B.7.c. 456Proposed rule 206(4)–3(a)(3)(ii). See proposed rule 206(4)–3(a)(3)(iii) for the defined terms ‘‘disqualifying Commission action’’ and ‘‘disqualifying event.’’ 457Cf., Disqualification of Felons and Other ‘‘Bad Actors’’ from Rule 506 Offerings, Release No. 33– 9414 (Jul. 10, 2013) [78 FR 44729 (Jul. 24, 2013)] (‘‘Bad Actor Disqualification Adopting Release’’). As with the ‘‘bad actor’’ disqualification provisions adopted therein, our proposed reasonable care standard would address the potential difficulty for advisers in establishing whether any solicitors are the subject of disqualifying events, particularly given that there is no central repository that aggregates information from all the Federal and state courts and regulatory authorities that would be relevant in determining whether solicitors have a disqualifying event in their past. Id., at text accompanying nn.190–191. 458 Id. See Rule 506(d)(2)(iii) and instruction thereto (providing an exception to the rule’s disqualification provision: ‘‘If the issuer establishes that it did not know and, in the exercise of reasonable care, could not have known that a disqualification existed under paragraph (d)(1) of this section’’). 459Bad Actor Disqualification Adopting Release, supra footnote 457, at nn. 201–202 and accompanying text. 460Advisers should address such methods in their policies and procedures under the compliance rule. See rule 206(4)–7. of only a single adviser if such an adviser is the only participating adviser that meets the non-qualitative criteria
established?

Our staff has previously stated that
it would not recommend enforcement action against certain persons that operate programs similar to what we are proposing today under the non-profit exemption.450 Would such existing programs be able to meet the proposed exemption? If not, should we consider making any other changes to the proposed exemption to allow existing similar programs to continue to operate? What changes and why?

Disqualification for Persons Who
Have Engaged in Misconduct We are proposing to revise the current rule’s disqualification provision, which prohibits persons who have engaged in certain misconduct from acting as solicitors.451 The current rule generally disqualifies a person from acting as a solicitor if: (i) The person is subject to a Commission order issued under
section 203(f) of the Act (i.e., the
Commission has barred or suspended that person from association with an investment adviser, or has censured or placed limitations on the activities of a person associated with an investment adviser, under section 203(f) of the Advisers Act); 452 or (ii) the Commission or a court has found that person to have engaged in enumerated misconduct that could subject them to sanctions under
section 203(f), or that could subject the
firm with which they are associated to disciplinary action by the Commission under section 203(e) of the Act.453 These provisions reflect the Commission’s concern that persons with a history of misconduct that might affect their prospects for direct employment with an adviser not seek to avoid our scrutiny by working as solicitors instead.454 Drawing from statutory changes and Commission rules regarding limitations on activities since the rule was promulgated, including the Dodd-Frank Act and the rules disqualifying felons and other ‘‘bad actors’’ from certain securities offerings, our proposal would add to the types of disciplinary events that would disqualify a person from acting as a solicitor, including by adding certain disciplinary actions by other regulators and self-regulatory organizations. It would also provide a conditional carveout for certain types of Commission actions. a. Disqualification Under our proposal, an investment adviser could not compensate, directly or indirectly, a person for any solicitation activities that it knows, or that it, in the exercise of reasonable care, should have known, is an ineligible solicitor.455 An ‘‘ineligible solicitor’’ would be defined to mean a person who, at the time of the solicitation, is either subject to a disqualifying Commission action or is subject to any disqualifying event.456 The proposal’s inclusion of a reasonable care standard would be a change from the current rule, which contains an absolute bar on paying cash for solicitation activities to a person with any disciplinary history enumerated in the rule. We believe that adding a proposed reasonable care standard would preserve the rule’s benefits while reducing the risk that advisers would violate the rule as a result of disqualifying event or actions that they should not have known, in the exercise of reasonable care, existed.457 Such a standard necessarily includes inquiry by the adviser into the relevant facts; however, we are not proposing to specify what method or level of due diligence or other inquiry would be sufficient to exercise reasonable care. We are also not proposing to prescribe the frequency of such inquiry, but whether the adviser satisfied the reasonable care standard would be determined in light of the circumstances of the solicitor and the solicitation arrangement. For example, as we have stated in other contexts implementing rules for the treatment of ‘‘bad actors’’, where we have included a reasonable care standard and have not prescribed or delineated what steps an issuer would be required to take to show reasonable care 458: The steps an issuer should take to exercise reasonable care will vary according to the particular facts and circumstances. For example, we anticipate that issuers will have an in-depth knowledge of their own executive officers and other officers participating in securities offerings gained through the hiring process and in the course of the employment relationship, and in such
circumstances, further steps may not be required in connection with a particular offering. Factual inquiry by means of questionnaires or certifications, perhaps accompanied by contractual representations, covenants and undertakings, may be sufficient in some circumstances, particularly if there is no information or other indicators suggesting bad actor involvement.459 The frequency of inquiry could vary depending upon, for example, the risk of using an ineligible solicitor, the impact of other screening and compliance mechanisms already in place, and the cost and burden of the inquiry.460 For example, if the adviser has an ongoing relationship with a solicitor that solicits investors over

461The proposed disqualification provision would apply to an ‘‘ineligible solicitor’’, which would mean a person who at the time of the solicitation is either subject to a disqualifying Commission action or has any disqualifying event. Proposed rule 206(4)–3(a)(3)(ii) (emphasis added). 462The time of solicitation (or, in the case of mass communications, as soon as reasonably practicable thereafter) is also when the solicitor or the adviser, as applicable, is required under the required written agreement to deliver the solicitor disclosure. Proposed rule 206(4)–3(a)(1)(iii). 463Proposed rule 206(4)–3(a)(3)(ii). 464 Id. time, the adviser should consider inquiring into the solicitor’s status on a periodic basis during the relationship as appropriate based on the applicable facts and circumstances. In this circumstance, an annual inquiry could be sufficient if there is no information or other indicators suggesting changes in circumstance that would be disqualifying under the rule. Conversely, if an adviser compensates a solicitor on a one-time basis at the time of solicitation, an inquiry into the solicitor only once no later than the time of solicitation generally should be sufficient. Additionally, our proposal would prohibit adviser compensation of a solicitor if the solicitor is subject to a disqualifying Commission action or is subject to any disqualifying event at the time of the solicitation.461 We believe the time of solicitation—rather than the time the adviser compensates, or engages, the solicitor for solicitation—is the appropriate point in time to tie the disqualifying event or action to the solicitor’s status as an ineligible solicitor.462 The time of solicitation is when investors are most vulnerable to fraud or deceit regarding the solicitation. However, even though our proposed provision is tied to the time of solicitation, as a practical matter advisers generally should conduct due inquiry into the solicitor’s eligibility at the time of engagement, because an adviser that engages a solicitor that is ineligible at the time of engagement runs the risk that the solicitor will remain ineligible and conduct solicitations before the adviser becomes aware of such status. Under our proposed rule, if a solicitor was eligible at the time of solicitation but subsequently became ineligible, an adviser would be permitted to compensate the solicitor for the solicitation activity that occurred prior to the ineligibility. Our proposed rule would also apply the rule’s definition of ineligible solicitor to certain persons associated with a firm that is an ineligible solicitor.463 For each ineligible solicitor, the following persons would also be ineligible solicitors: (i) Any employee, officer or director of an ineligible solicitor and any other individuals with similar status or functions; (ii) if the ineligible solicitor is a partnership, all general partners; (iii) if the ineligible solicitor is a limited liability company managed by elected
managers, all elected managers; (iv) any person directly or indirectly controlling or controlled by the ineligible solicitor as well as any person listed in (i)–(iii) with respect to such person.464 These persons would therefore be ineligible solicitors even if they do not themselves have any of the rule’s disqualifying events. However, under our proposal, a firm would not necessarily be an ineligible solicitor if one or more of such listed persons are ineligible solicitors under the proposed rule, provided that such persons do not conduct solicitation activities. Because a solicitor that is a firm engages in solicitation activities through its associated individuals, we believe that an individual’s conduct should be subject to the rule’s disqualification when the firm is disqualified. A firm sets the compliance tone for its personnel, and many types of regulated entities are responsible under their regulatory regimes for the supervision and control of their personnel. We request comment on the proposed disqualification provision; particularly the ‘‘reasonable care’’ standard, the point of time referenced in the ineligible solicitor definition, and the application of the rule’s ineligible solicitor definition to certain individuals associated with a firm that is disqualified.

Should the rule per se prohibit
advisers from compensating for solicitation activities persons that have certain disqualifying events that meet the rule’s definition of ineligible solicitor? Or, should the rule include the reasonable care standard we have proposed? Should we further specify in the rule or in guidance what would constitute reasonable care for knowing that the solicitor is an ineligible solicitor? For example, should we specify a method or level of due diligence that would be sufficient to establish reasonable care? Should we prescribe the frequency of such inquiry? Why or why not? Should we specifically require that the adviser conduct due inquiry as part of exercising reasonable care? Why or why not?
Should the definition of ineligible
solicitor refer to a person’s disqualifying events or orders at the time of solicitation, as proposed? Or, should it refer to a different point in time, such as the adviser’s engagement of the solicitor or when the adviser compensates the solicitor? Why or why not? For example, under our proposed rule, if a solicitor was eligible at the time of solicitation but subsequently became ineligible, an adviser would be permitted to compensate such person for the solicitation activity that occurred prior to the solicitor becoming ineligible. Do commenters agree with this result? Why or why not?
Should we apply the rule’s
definition of ineligible solicitor to any individual associated with a firm that is an ineligible solicitor, even if the individual would not otherwise be an ineligible solicitor absent the particular association with the ineligible solicitor firm? Do commenters agree with the categories of persons as proposed? Why or why not? Should we list in the rule different categories of persons we would presume to be associated with a firm? For example, should the proposed rule specify whether or not an independent contractor would be included as ‘‘any employee, officer or director of such ineligible solicitor and any other individuals with similar status or functions’’? The Form ADV definition of ‘‘employee’’ includes an adviser’s independent contractors who perform advisory functions on the adviser’s behalf. Should these persons be included in the rule as associated with a firm? Why or why not?
Should we specify in the rule that
a firm would be an Ineligible Solicitor if an individual who is an ineligible solicitor controls the firm, even if the firm is not otherwise an ineligible solicitor and the individual who is an ineligible solicitor does not engage in solicitation activities on behalf of the adviser? Why or why not? If so, should we define the term ‘‘control’’, and if so, how? For example, should we use the Act’s definition of ‘‘control,’’ which means ‘‘the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official position with such company’’? Should we use the definition of ‘‘control’’ in Form ADV, which includes, but is not limited to, each of the firm’s officers, partners, or directors exercising executive responsibility (or persons having similar status or functions)? Should we use another definition, and if so, what should that definition be, and why?
If the rule permits an adviser to
compensate for solicitation a firm that employs one or more individuals who are ineligible solicitors, should we specify the level of diligence an adviser should conduct in order to establish that

465 In addition, as discussed below, a person who at the time of solicitation has any disqualifying event is also an ineligible solicitor. See infra footnote 468 and accompanying text. 466Proposed rule 206(4)–3(iii)(A). The imposition of a bar, suspension, or prohibition may appear in an opinion of the Commission or in an administrative law judge initial decision that has become final pursuant to a Commission order. In both cases, such a bar, suspension, or prohibition would be a disqualifying Commission action. These would include, for example, officer and director bars imposed in Commission cease and desist orders, limitations on activities imposed under
section 203(e) or 203(f) of the Advisers Act that
prevent persons from acting in certain capacities, penny stock bars imposed under section 15(b) of the Exchange Act, and investment company prohibitions imposed under section 9(b) of the Investment Company Act. 467The reference to a scienter-based anti-fraud provision of the Federal securities laws is based on the bad actor disqualification provisions under Rule 506 of Regulation D. See Rule 506(d)(1)(v) (including, in a non-exhaustive list of scienterbased anti-fraud provisions of the Federal securities laws, section 17(a)(1) of the Securities Act, section 10(b) of the Exchange Act and rule 10b–5, section 15(c)(1) of the Exchange Act, section 206(1) of the Advisers Act). 468Proposed rule 206(4)–3(a)(3)(iii)(B). 469Section 203(e)(2) and (3) (containing a ten-year look-back period for convictions for certain felonies and misdemeanors). See supra footnotes 453 and 452 (describing sections 203(e) and 203(f), respectively). 470See, e.g., paragraph (d)(1)(iii)(B) of Rule 506 of Regulation D (disqualifying a covered person subject to a final order of the U.S. Commodity Futures Trading Commission or another regulatory entity described therein, based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct entered within ten years before the sale described in the rule). 471See rule 206(4)–3(a)(1)(ii)(D) (applying the disqualification provision to a solicitor that ‘‘is subject to an order, judgment or decree described in section 203(e)(4) of the Act); see also paragraphs (d)(1)(ii), (d)(1)(iii)(A) and (d)(1)(iv) of rule 506 of Regulation D (requiring that the applicable order, judgment or decree be in effect at the time of the sale, and also in some cases that the order, judgment or decree have been entered within a look-back period of five or ten years). 472See, e.g., the ‘‘bad actor’’ letters listed below in Section II.D. While these staff letters generally only apply to the solicitor or adviser to which the letter is addressed, the staff has issued one letter which it stated would apply with respect to any cash solicitation arrangement under which an investment adviser proposes to pay cash solicitation fees to a solicitor subject to a specific type of disqualification event under the circumstances described in the letter. See Dougherty & Co., LLC, SEC Staff No-Action Letter (Jul. 3, 2003) (‘‘Dougherty Letter’’), discussed infra footnote 495. none of the firm’s ineligible solicitors conducts solicitation activities on the adviser’s behalf? b. Disqualifying Commission Action Under our proposal, a person who at the time of solicitation is subject to a disqualifying Commission action would be an ineligible solicitor.465 A disqualifying Commission action would be a Commission opinion or order barring, suspending, or prohibiting a person from acting in any capacity under the Federal securities laws, or ordering the person to cease and desist from committing or causing a violation or future violation of (1) any
scienterbased antifraud provision of the Federal securities laws, including a nonexhaustive list of such laws and the rules and regulations thereunder; or (2)
Section 5 of the Securities Act of
1933.466 Under our proposal, if the
Commission prohibits an individual from acting in a specific capacity under the Federal securities laws (e.g., supervisor, compliance officer), the individual would be disqualified as a solicitor under the proposed rule, even if the Commission has not barred or suspended the individual from association with an investment adviser, broker-dealer or other registrant. In addition, if the Commission has ordered a person to cease and desist from committing or causing a violation or future violation of a scienter-based antifraud provision of the Federal securities laws, but has not barred or suspended that person, that person would be disqualified under the proposed rule.467 We believe that this provision would cover a wide scope of Commission orders concerning misconduct that could call into question the person’s trustworthiness or ability to act as a solicitor. We believe that the Commission’s cease and desist orders we propose to include as a disqualifying Commission action would call into question that person’s trustworthiness or ability to act as a solicitor even if the Commission did not bar, suspend, or prohibit that person from acting in any capacity under the Federal securities laws.
c. Disqualifying Event
Under our proposal, a person that at the time of the solicitation is subject to any disqualifying event would also be an ineligible solicitor.468 A disqualifying event would generally include a finding, order or conviction by a United States court or certain regulatory agencies (other than the Commission) that a person has engaged in any act or omission referenced in one or more of the provision’s four prongs, as discussed below. Any such finding, order or conviction would generally be a disqualifying event if it occurred within the previous ten years or if the bar or injunction is in effect at the time of solicitation. We are proposing a ten-year time limit (or ‘‘look-back period’’) on certain of the disqualifying events, as described below, because this look-back period is used in section 203(e), which is a basis for Commission action to censure, place limitations on the activities, or revoke the registration of any investment adviser or its associated persons.469 It is also used for certain disciplinary events in the rules disqualifying felons and other ‘‘bad actors’’ from certain securities offerings.470 For regulatory and court-ordered bars and injunctions, we are proposing that such bar or injunction be in effect at the time of solicitation in order to be disqualifying. This is consistent with the current rule as well as the bad actor disqualification requirements under rule 506.471 Under our proposal, certain solicitors that are not currently disqualified under the rule would be disqualified under the amended rule as ‘‘ineligible solicitors’’ solely as a result of the proposed changes to the rule’s disqualification provisions. To the extent that the proposed amendments would expand disqualifying events under the proposed rule (i.e., any disqualifying Commission action or disqualifying event) beyond the scope of disqualifying events listed in the current rule’s disqualification provision, the proposed disqualification provision would apply only to any disqualifying Commission action or disqualifying event occurring after the effective date (or the compliance date, as applicable) of the proposed rule amendments. Any disqualifying Commission action or disqualifying event that occurs prior to the effectiveness of the proposed rule (or the compliance date, as applicable) would be subject to the current rule’s disqualification provision. We recognize that some advisers and solicitors rely on letters issued by the Commission staff stating that the staff would not recommend enforcement action to the Commission under section 206(4) and rule 206(4)–3 if an investment adviser paid cash solicitation fees to a solicitor that was subject to particular disciplinary events that fall within the current rule’s disqualification provision.472 We request comment, below, on whether we should ‘‘grandfather’’ such persons into compliance with the proposed rule by permitting advisers to continue to compensate such solicitors after the effective date of the
proposed rule, if the solicitors continue to comply with the conditions specified in the letters and, except for the disciplinary events described in the applicable letter, would not otherwise be ineligible solicitors under the proposed rule. The first prong of the proposed disqualifying event definition describes a conviction by a court of competent jurisdiction within the United States, within the previous ten years, of any

473Proposed rule 206(4)–3(a)(3)(iii)(B)(1). Paragraphs (2)(A) through (D) of section 203(e) of the Act include, for example, felonies or misdemeanors involving dishonesty or misappropriation of funds or securities, and any felony or misdemeanor arising out of the conduct of the business of certain types of entities such as a broker, dealer, investment adviser, bank, and insurance company. Section 203(e)(A)–(D). 474Rule 206(4)–3(a)(1)(ii)(B). 475Compare Item 11 of Part 1A of Form ADV (requiring advisers to report certain foreign court actions about themselves and their affiliates). We believe that requiring an adviser to gather such information about foreign court actions affecting the solicitors they use (who may or may not be affiliated) may be significantly more difficult than gathering and reporting such data about the adviser itself or its affiliates as required under Form ADV. 476Section 203(e)(2)(A)–(D). Cf section 9(b) of the Investment Company Act, pursuant to which foreign court convictions are not automatically disqualifying. 477See section 203(f). Any Commission order issued under this section would be a disqualifying Commission action under the proposed rule. 478Proposed rule 206(4)–3(a)(3)(iii)(B)(2). Paragraphs (1), (5), or (6) of section 203(e) of the Act generally include, but are not limited to, a person who: (i) Has willfully made or caused to be made certain false reports with the Commission; (ii) has willfully violated any provision of the Act or other Federal securities laws; and (iii) has willfully aided, abetted, counseled, commanded, induced, or procured the violation by any other person of any provision of the of the Act or other Federal securities laws. 479Rule 206(4)–3(a)(1)(ii)(C). 480Since 1979, section 203 has been amended to expand the types of misconduct for which the Commission has the authority to bar or suspend a person from being associated with an adviser, including by the addition of paragraphs (3) and (8) of section 203(e) of the Act. See Securities and Exchange Commission Authorization Act of 1987, Public Law 100–181 (amending section 203(e) and 203(f) of the Act); Securities Act Amendments of 1990, Public Law 101–550 (amending section 203(e) and 203(f) of the Act); National Securities Markets Improvement Act of 1996, Public Law 104–290 (amending section 203(e) and 203(f) of the Act); Securities Litigation Uniform Standards Act of 1998, Public Law 105–353 (amending section 203(e) of the Act); and Sarbanes-Oxley Act of 2002, Public Law 107–204 (amending section 203(e) of the Act). 481Section 203(e)(8). 482Proposed rule 206(4)–3(a)(3)(iii)(B)(3). 483The current rule’s statutory disqualification provision includes findings of certain misconduct by another regulatory authority only insofar as such findings form a basis of a finding by the Commission (including a Commission order issued under section 203(f) of the Act) or certain convictions by a court of competent jurisdiction, including a foreign court of
competent jurisdiction. See rule 206(4)–3(a)(1)(ii). 484See sections 203(e)(9) and 203(f). felony or misdemeanor involving conduct described in paragraphs (2)(A) through (D) of section 203(e) of the Act.473 This prong generally follows the provision of the current rule that disqualifies persons convicted within the previous ten years of any felony or misdemeanor involving conduct described in section 203(e)(2)(A) through (D) of the Act, which are bases for Commission action to censure, place limitations on the activities, or revoke the registration of any investment adviser or its associated persons.474 We are proposing, however, not to include as a disqualifying event a conviction by a foreign court of competent jurisdiction with respect to the misconduct described in section 203(e)(2)(A) through (D) of the Act because we do not believe advisers should be required to incur the cost and burden, with respect to their solicitors,475 of inquiry into foreign proceedings or to make a determination of what is a ‘‘substantially equivalent crime’’ to a felony or misdemeanor, as is part of the conditions of section 203(e)(2).476 A person subject to any such foreign conviction might still be an ineligible solicitor, however, to the extent that the Commission uses its authority to bar, suspend or place limits on that person’s association with an investment adviser, or otherwise issues a disqualifying Commission action based on such conduct.477 The second prong of the proposed disqualifying event definition describes a conviction by a court of competent jurisdiction within the United States, within the previous ten years, of engaging in any of the conduct specified in paragraphs (1), (5), or (6) of section 203(e) of the Act.478 This prong is derived from the third prong of the current rule’s disqualification provision, which describes persons the Commission finds to have engaged, or that have been convicted of engaging, in any of the conduct specified in paragraphs (1), (5) or (6) of section 203(e) of the Act.479 We believe that these felony and misdemeanor convictions should continue to be disqualifying under the rule, subject to the rule’s carve-out as described below. In many cases, conduct underlying a felony or misdemeanor would be picked up by our proposed rule as a disqualifying Commission action (i.e., to the extent the Commission has issued an opinion or order barring, suspending, or prohibiting the person from acting in any capacity under the Federal securities laws or issued certain types of cease and desist orders described in the proposed rule). We are not proposing to add to the provision’s second prong any references to conduct specified in paragraphs (3) and (8) of section 203(e) of the Act (e.g., certain felony convictions not described in paragraph (2) of section 203(e) and certain findings by foreign financial regulatory authorities).480 Similar to our rationale for not proposing to include in the first prong any ‘‘substantially equivalent
crime by a foreign court of competent jurisdiction,’’ we do not believe advisers should be required to incur the cost and burden of inquiry into findings by foreign financial regulatory authorities, as is required in
section 203(e)(8).481 In addition, we are
not convinced that the rule should prohibit the compensation of solicitors subject to certain felony convictions not described in paragraph 203(e)(2) or substantially equivalent crimes by a foreign court of competent jurisdiction. We believe that including such felony convictions could overly broaden the scope of the disqualifying provision because such types of convictions are less likely to call into question the credibility of such solicitor’s referral. However, a person subject to such felony convictions might still be an ineligible solicitor under our proposed rule, if the Commission has used its authority to bar, suspend or place limits on that person’s association with an investment adviser, or otherwise issue a disqualifying Commission action based on such conduct. The third prong of the proposed disqualifying event definition generally describes the entry of a bar or final order based broadly on the person’s fraudulent conduct, by certain regulators and self-regulatory organizations. In particular, this section refers to: The Commodity Futures Trading Commission (‘‘CFTC’’), any self-regulatory organization, a State securities commission (or any agency or officer performing like functions), a State authority that supervises or examines banks, savings associations, or credit unions, a State insurance commission (or any agency or office performing like functions), an appropriate Federal banking agency (as defined in section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813(q))), or the National Credit Union Administration. The proposed provision refers to any final order of any such body that (i) bars a person from association with an entity regulated by such body, or from engaging in the business of securities, insurance, banking, savings association activities, or credit union activities; or (ii) constitutes a final order, entered within the previous ten years, based on violations of any laws, regulations, or rules that prohibit fraudulent, manipulative, or deceptive conduct.482 This proposed third prong is not part of the current rule’s statutory disqualification provision.483 It is derived from section 203(e)(9) of the Act, which is a basis for Commission action to censure, place limitations on the activities, or revoke the registration of any investment adviser or its associated persons.484 However, our

485See, e.g., paragraph (d)(iii) of rule 506 of Regulation D; paragraph (d)(vi) of rule 506 of Regulation D (disqualifying a person who is suspended or expelled from membership in, or suspended or barred from association with a member of, a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade). To the extent that a person is subject to both the disqualification provision of rule 506 and the proposed amendments to the disqualification provision under the solicitation rule, there would be some overlapping categories of disqualifying events (i.e., certain bad acts would disqualify a person under both provisions). For instance, certain types of final orders of certain state and Federal regulators would be disqualifying events under both provisions. 486Proposed rule 206(4)–3(a)(3)(iii)(B)(3). 487For example, both registered broker-dealers and investment advisers may be subject to Commission disciplinary action based on their conduct that gave rise to violations of the Commodity Exchange Act. See, e.g., section 15(b)(4)(D) of the Exchange Act (15 U.S.C. 80(b)(4)(C)) and section 203(e)(5) of the Advisers Act (15 U.S.C. 80b–3(e)(5)). 488Proposed rule 206(4)–3(a)(3)(iii)(B)(4). 489See sections 203(e)(4) and 203(f) of the Act. 490Rule 206(4)–3(a)(1)(ii)(D). 491Section 203(e)(2)(A)–(D). Cf. section 9(b) of the Investment Company Act, pursuant to which foreign court convictions are not automatically disqualifying (in such instances, in order for its action to be disqualifying, the Commission would have to use its authority to bar, suspend or place limits on that person’s activity). 492See section 203(f). Any Commission order issued under this section would be a disqualifying Commission action under the proposed rule. 493Proposed rule 206(4)–3(a)(3)(iii)(C). 494 Id. proposal would add self-regulatory organizations and the CFTC to the list of regulators incorporated from section 203(e)(9). Adding these entities would be consistent with the rules disqualifying felons and other ‘‘bad actors’’ from certain securities offerings.485 Our reference to the definition of self-regulatory organization in section 3 of the Exchange Act in the proposed provision would also be consistent with such rules: It would mean any registered national securities exchange or a registered national or affiliated securities association.486 As we determined when adopting such rules, the conduct that would typically give rise to CFTC sanctions is similar to the type of conduct that would result in disqualification if it were the subject of sanctions by another financial services industry regulator.487 In addition, we believe that the type of conduct that would typically give rise to a selfregulatory organization’s bar or final order based on violations of any laws or regulations that prohibit fraudulent, manipulative, or deceptive
conduct is similar to the type of conduct that would result in disqualification if it were the subject of sanctions by another financial services industry regulator. We believe that including applicable bars and orders of such regulators will also make the disqualification provisions more internally consistent with other bad actor disqualification provisions in the Federal securities laws, treating similar types of sanctions similarly for disqualification purposes. The fourth prong of the proposed disqualifying event definition describes the entry of an order, judgment, or decree described in paragraph (4) of
section 203(e) of the Act, of any court
of competent jurisdiction within the United States.488 Paragraph (4) of
section 203(e) describes certain orders,
judgments or decrees that permanently or temporarily enjoin persons from acting in multiple capacities within the securities industry, and they are bases for Commission action to censure, place limitations on the activities, or revoke the registration of any investment adviser or its associated persons.489 This prong would generally follow the corresponding provision of the current rule’s disqualification provision, except that we are proposing not to include orders, judgments, or decrees by a foreign court, as we discuss below.490 As when we adopted the cash solicitation rule, we continue to believe that these events should be disqualifying under the rule, subject to our proposed carve-out, because such events call into question the credibility of a solicitor’s referral or solicitation. Similar to our rationale for not proposing to include in our first prong convictions by foreign courts, we do not believe advisers should be required to incur the cost and burden of inquiry into foreign proceedings or to make a determination of what is a ‘‘foreign person performing a function substantially equivalent to’’ the functions described in the section, or what is a ‘‘foreign entity substantially equivalent’’ to the entities described in the section, as is required under section 203(e)(4).491 A person subject to any such order, judgment, or decree by a foreign court might still be an ineligible solicitor, however, to the extent that the Commission uses its authority to bar, suspend, or place limits on that person’s association with an investment adviser or otherwise issue a disqualifying Commission action based on such conduct.492 d. Conditional Carve-Out From Definition of ‘‘Ineligible Solicitor’’ We are proposing a conditional carveout from the determination of whether a person is an ineligible solicitor due to a person’s act or omission that is the subject of a disqualifying event and that is also the subject of a ‘‘nondisqualifying Commission action’’ with respect to that person.493 The term ‘‘non-disqualifying Commission action’’ would mean (i) an order pursuant to
section 9(c) of the Investment Company
Act (commonly referred to as a ‘‘waiver’’), or (ii) a Commission opinion or order that is not a disqualifying Commission action.494 For either such opinion or order to be disregarded in determining whether the person is an ineligible solicitor, (i) the person must have complied with the terms of the opinion or order, including, but not limited to, the payment of disgorgement, prejudgment interest, civil or administrative penalties and fine; and (ii) for a period of ten years following the date of each opinion or order, the person must include in its solicitor disclosure a description of the acts or omissions that are the subject of, and the terms of, the opinion or order. Our proposed conditional carve-out would permit advisers to compensate for solicitation activities, in certain circumstances, persons with disciplinary events that would otherwise be disqualifying events. Our proposed approach would carve out of the definition of ineligible solicitor a person whose only disqualifying events are those for which the Commission has issued a waiver under the Investment Company Act or the Commission has issued an opinion or order that is not disqualifying Commission action (e.g., an order that does not bar or suspend the person from association with a Commission-registered entity or prohibit the person from acting in any capacity under the Federal securities laws). We are proposing this carve-out because, in those instances where the Commission has acted on the conduct yet not barred or suspended the person or prohibited the person from acting in any such capacity, and has not made a finding of a violation of a scienter-based anti-fraud provision of the Federal securities laws, it would be appropriate to likewise permit such person to engage in solicitation activities. This approach will obviate the need for the Commission to consider how to treat under the solicitation rule a person with disciplinary events for which the Commission has issued one or more opinions or orders but did not bar or suspend the person or prohibit the person from acting in any capacity under the Federal securities laws, and did not order the person to cease and desist from committing or causing a violation or future violation of certain