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The Office of Compliance Inspections and Examinations (OCIE) of the SEC issued a Risk Alert yesterday providing a list of the most frequently identified compliance issues relating to the Advertising Rule (Rule 206(4)-1) under the Investment Advisers Act of 1940.  These compliance issues were identified as part of the OCIE examination of investment advisers:  misleading performance results, misleading one-on-one presentations, misleading claim of compliance with voluntary performance standards, “cherry-picked” profitable stock selections, misleading selection of recommendations and insufficient/inaccurate compliance policies and procedures.

Compliance with the Advertising Rule has long been, and remains, a favorite focus of the SEC.  In an age of fundraising challenges, investment advisers must balance the pressing need of appealing to prospective clients with adherence to precise regulatory standards.  Each marketing piece should go through rigorous internal review and sign-off procedures and, as necessary, outside counsel evaluation.  Investment advisers are urged to pay special attention to any form of performance or track record marketing.

Click here for the full Risk Alert. Contact your Pillsbury attorney for additional assistance.

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T+2 Settlement becomes mandatory for most broker-dealer transactions on September 5.   While Rule 15c6-1(d) allows, in connection with firm commitment underwritings, the issuer and underwriters to agree to different settlement cycles, as noted in the SIFMA guidance, SIFMA expects equity offerings, including IPOs, to transition to T+2 settlement cycles.   SIFMA expects debt offerings to continue with current market practice (i.e., either conform to T+2 or to continue with extended settlement cycles as with many high yield issuances).  It may well be that offerings of convertible debt and other equity-linked securities retain, at least in the near term, adherence to the current T+3/T+4 cycle given the documentation process involved with shorter settlement cycles (i.e., typically, drafting of indentures does not start until the deal is launched or priced).

It is recommended that, at the beginning of any underwritten offering process, the parties should agree upon the settlement cycle to be used as that will, of course, affect documentation and process timing.  SIFMA provides some guidance in that regard.

For general T+2 questions, the securities industry has set up a T+2 implementation website.