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SEC’s Marketing Rule Updates May Provide Relief for Investment Managers

By Richard M. Cutshall, Patrick Kassen & Rachel Edwards on March 31, 2025
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SEC

The SEC adopted the Marketing Rule in 2021 and in January 2023 adopted an FAQ requiring that gross performance of a private fund or subset of its investments be accompanied by the corresponding net-of-fees performance. Private fund managers in particular found it challenging to present a net-of-fees performance on individual investments because fees are typically charged at the fund level.

Link to Click here to read the full GT Alert. Click here to read the full GT Alert.

Photo of Richard M. Cutshall Richard M. Cutshall

Richard M. Cutshall is Co-Chair of the firm’s Financial, Regulatory and Compliance Practice, Co-Chair of the firm’s Private Funds Group, and Co-Chair of the firm’s Investment Management Group. Rich has experience representing clients in a variety of investment management, general securities, and corporate

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Richard M. Cutshall is Co-Chair of the firm’s Financial, Regulatory and Compliance Practice, Co-Chair of the firm’s Private Funds Group, and Co-Chair of the firm’s Investment Management Group. Rich has experience representing clients in a variety of investment management, general securities, and corporate matters, including the representation of mutual funds, ETFs, and other funds registered under the Investment Company Act of 1940; fund and ETF independent directors; unregistered investment funds; federally registered, state registered, and federally and state exempt investment advisers; broker-dealers; and an array of public and private companies.

Rich represents investment adviser clients at all stages of their life cycle, from concept and formation through registration, daily operation through wind-down and exiting the business, including representing investment adviser clients on both the buy-side and sell-side in M&A transactions. He also represents clients in all aspects of investment company practice, including organizing and forming new funds and ETFs, registering mutual funds and ETFs with the SEC, and the acquisition and merger of public funds.

In the course of representing investment advisers and public and private funds, Rich advises Greenberg Traurig’s clients on all aspects of securities regulatory compliance, particularly including new and existing SEC rules; SEC examination, regulatory, and investigative initiatives and sweeps; the SEC’s proposal, adoption, and implementation of new regulations, such as the recently rewritten investment adviser marketing rule; and finding compliance solutions related to the regulatory scheme applicable to investment advisers and investment funds, including implementing both novel and long-standing SEC regulatory guidance and interpretations. He also advises clients on the day-to-day aspects of corporate governance, board and adviser fiduciary responsibility, and SEC compliance, as well as assisting clients in all aspects of SEC and other regulatory examinations.

Rich has given presentations on and assists a variety of investment management clients with their compliance with anti-money laundering laws, and has performed annual independent third party audits of several clients’ anti-money laundering policies, programs and controls.

Rich also has experience representing clients in many industries in the sale or acquisition of businesses, formation of corporate entities, sophisticated contract negotiations, and in obtaining, renewing and renegotiating the terms of financing business operations. He routinely works with clients’ chief executive officers, chief financial officers, directors, and in-house general and assistant general counsels, including occasionally working from clients’ corporate headquarters upon request. Rich works with corporate and finance clients of all sizes, from startup family-run businesses and entrepreneurial endeavors to Fortune 500 clients. He also has experience representing clients across many industries, including health care, data management, retail product display and advertising design and manufacturing, industrial manufacturing, and real estate management and brokerage industries.

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Photo of Patrick Kassen Patrick Kassen

Patrick Kassen assists clients with the formation of private equity and real estate funds, purchases and sales of businesses and real estate assets, joint ventures, minority investments, financings and leasing. Patrick also has deep experience in investment management regulation, including the Investment Advisers…

Patrick Kassen assists clients with the formation of private equity and real estate funds, purchases and sales of businesses and real estate assets, joint ventures, minority investments, financings and leasing. Patrick also has deep experience in investment management regulation, including the Investment Advisers Act and Investment Company Act, and advises clients on the design and operation of compliance programs and interactions with regulators.

Patrick brings to bear experience as a former general counsel and chief compliance officer at Blackstone, Link Logistics (a Blackstone portfolio company) and the private equity group of late investor Sam Zell, which gives him insight into the challenges faced by his clients. Patrick has advised on numerous cross-border transactions and designed multi-jurisdictional compliance programs. Finally, Patrick has served on the boards of directors of several companies, which informs his pragmatic approach to helping clients.

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Photo of Rachel Edwards Rachel Edwards

Rachel C. Edwards is a member of the Corporate Practice in Greenberg’s San Diego office and represents private clients in a variety of corporate and securities matters with a focus on ongoing securities compliance and reporting obligations under the Investment Company Act of…

Rachel C. Edwards is a member of the Corporate Practice in Greenberg’s San Diego office and represents private clients in a variety of corporate and securities matters with a focus on ongoing securities compliance and reporting obligations under the Investment Company Act of 1940, corporate governance, and general transactional matters. Rachel has experience representing federally and state registered investment advisers, exempt reporting advisers, broker-dealers and private funds, providing guidance on formation and registration, corporate securities matters, and ongoing SEC and state-based compliance.

Rachel’s corporate practice also extends to counseling startup and private companies throughout their life cycle, including guiding clients through the formation process, managing their capitalization tables, assisting with seed and preferred stock financings, preparing and filing state securities filings, and advising clients with day-to-day corporate governance. Rachel has also helped clients navigate complex financings, including Regulation A, Regulation “CF” crowdfunding, and Regulation D offerings.

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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    Financial Services Observer
  • Organization:
    Greenberg Traurig, LLP
  • Article: View Original Source

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