The Securities and Exchange Commission brought actions five investment advisory firms for violations of the Marketing Rule. The firms posted advertisements that included hypothetical performance on their websites.
The SEC points out that websites are available to the general public and not “presenting hypothetical performance relevant to the likely financial situation and investment objectives of the intended audience.” Of course, a firm’s website and the materials posted to it are going to be considered advertisements for advisory services.
As a reminder, Advisers Act Rule 206(4)-1(e)(1) defines hypothetical performance as performance results that were not actually achieved by any portfolio of the investment adviser and includes, but is not limited to:
- Performance derived from model portfolios;
- Performance that is backtested by the application of a strategy to data from prior time periods when the strategy was not actually used during those time periods; and
- Targeted or projected performance returns with respect to any portfolio or to the investment advisory services with regard to securities offered in the advertisement.
One thing I found curious about four of the five actions is that those four removed the advertisements containing hypothetical performance on June 8, 2023 before being contacted by SEC staff. What happened on that date to these four?
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