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IAA Statement: Confusion About the Marketing Rule and Form ADV

November 11, 2022

We understand that there appears to be some confusion regarding an adviser’s obligations with respect to Form ADV filings after the November 4th compliance date. The confusion likely stems from emails the SEC exam staff sent to advisers in recent months reminding firms of their obligations to comply with the Marketing Rule, including the new recordkeeping requirements and Form ADV amendments.

Advisers will be required to answer new questions in their Form ADV about their marketing practices as part of their next annual update after November 4. The email also notes that firms will have to update any references to the old advertising and cash solicitation rules, a technical correction.  

Unfortunately, the email has been interpreted as imposing a new requirement to file an amendment to Form ADV prior to the next annual update merely to address this technical issue. This is contrary to what the Commission required for the Marketing Rule and to the instructions to Form ADV that require firms to file an “other than annual update” for material changes.

Absent other facts and circumstances, we don’t believe that making a technical correction to a rule reference should be considered a material change by itself.  It would be helpful for the SEC to clear this confusion up and remind firms that nothing has changed with respect to filing amendments for material changes.  

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