On July 1, 2010, the Securities and Exchange Commission (the “SEC”) adopted Rule 206(4)-5 under the Investment Advisers Act of 1940, as amended, which prohibited an investment adviser from providing advisory services for compensation to a government client for two years after the advisers or certain of its executives or employees make a contribution to certain elected officials or candidates. Rule 206(4)-5, also known as the Pay to Play Rule, also included a third-party solicitor ban that prohibited an adviser or its covered associates from providing or agreeing to provide, directly or indirectly, payment to any third-party for a solicitation of advisory business from any government entity on behalf of such adviser, unless such third-party was an SEC-registered investment adviser or a registered broker or dealer subject to pay to play restrictions.
As originally adopted, the third-party solicitor ban’s compliance date was September 13, 2011. However, not long after the Pay to Play Rule was adopted, Congress created a new category of SEC registrants called “municipal advisors” in the Dodd-Frank Wall Street Reform and Consumer Protection Act. Municipal advisors include persons that undertake a solicitation of a municipal entity. The SEC then amended the Pay to Play Rule on June 22, 2011 in order to add municipal advisors to the category of registered entities excepted from the third-party solicitor ban and extended the original compliance date of the third-party solicitor ban.
On June 8, 2012, the SEC released a final rule that extends (for a second time) the compliance date for the third-party solicitor ban. The SEC explained that it was necessary to ensure an orderly transition for advisers and third-party solicitors as well as to provide additional time for them to adjust compliance policies and procedures after the transition. The new compliance date for the third-party solicitor ban will now be nine months after the required registration date for municipal advisers with the SEC under the Securities Exchange Act of 1934, as amended. This compliance date has yet to be finalized as the SEC has not yet adopted the applicable rule.