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Federal Register / Vol. 86, No. 42 / Friday, March 5, 2021 / Rules and Regulations managed at the advertising investment adviser that the performance results would provide relevant information to clients or investors;
iii All accounts that were managed in a substantially similar manner are advertised unless the exclusion of any such account would not result in materially higher performance and the exclusion of any account does not alter the presentation of any applicable time periods prescribed in paragraph d2 of this section; and iv The advertisement clearly and prominently includes all relevant disclosures, including that the performance results were from accounts managed at another entity.
e Definitions. For purposes of this section:
1 Advertisement means:
i Any direct or indirect communication an investment adviser makes to more than one person, or to one or more persons if the communication includes hypothetical performance, that offers the investment advisers investment advisory services with regard to securities to prospective clients or investors in a private fund advised by the investment adviser or offers new investment advisory services with regard to securities to current clients or investors in a private fund advised by the investment adviser, but does not include:
A Extemporaneous, live, oral communications;
B Information contained in a statutory or regulatory notice, filing, or other required communication, provided that such information is reasonably designed to satisfy the requirements of such notice, filing, or other required communication; or C A communication that includes hypothetical performance that is provided:
1 In response to an unsolicited request for such information from a prospective or current client or investor in a private fund advised by the investment adviser; or 2 To a prospective or current investor in a private fund advised by the investment adviser in a one-on-one communication; and ii Any endorsement or testimonial for which an investment adviser provides compensation, directly or indirectly, but does not include any information contained in a statutory or regulatory notice, filing, or other required communication, provided that such information is reasonably designed to satisfy the requirements of such notice, filing, or other required communication.

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2 De minimis compensation means compensation paid to a person for providing a testimonial or endorsement of a total of $1,000 or less or the equivalent value in non-cash compensation during the preceding 12
months.
3 A disqualifying Commission action means a Commission opinion or order barring, suspending, or prohibiting the person from acting in any capacity under the Federal securities laws.
4 A disqualifying event is any of the following events that occurred within ten years prior to the person disseminating an endorsement or testimonial:
i A conviction by a court of competent jurisdiction within the United States of any felony or misdemeanor involving conduct described in paragraph 2A through D of section 203e of the Act;
ii A conviction by a court of competent jurisdiction within the United States of engaging in, any of the conduct specified in paragraphs 1, 5, or 6 of section 203e of the Act;
iii The entry of any final order by any entity described in paragraph 9 of section 203e of the Act, or by the U.S.
Commodity Futures Trading Commission or a self-regulatory organization as defined in the Form ADV Glossary of Terms, of the type described in paragraph 9 of section 203e of the Act;
iv The entry of an order, judgment or decree described in paragraph 4 of section 203e of the Act, and still in effect, by any court of competent jurisdiction within the United States;
and v A Commission order that a person cease and desist from committing or causing a violation or future violation of:
A Any scienter-based anti-fraud provision of the Federal securities laws, including without limitation section 17a1 of the Securities Act of 1933 15
U.S.C. 77qa1, section 10b of the Securities Exchange Act of 1934 15
U.S.C. 78jb and 240.10b5 of this chapter, section 15c1 of the Securities Exchange Act of 1934 15
U.S.C. 78oc1, and section 2061 of the Investment Advisers Act of 1940 15
U.S.C. 80b61, or any other rule or regulation thereunder; or B Section 5 of the Securities Act of 1933 15 U.S.C. 77e;
vi A disqualifying event does not include an event described in paragraphs e4i through v of this section with respect to a person that is also subject to:
A An order pursuant to section 9c of the Investment Company Act of 1940

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15 U.S.C. 80a9 with respect to such event; or B A Commission opinion or order with respect to such event that is not a disqualifying Commission action;
provided that for each applicable type of order or opinion described in paragraphs e4viA and B of this section:
1 The person is in compliance with the terms of the order or opinion, including, but not limited to, the payment of disgorgement, prejudgment interest, civil or administrative penalties, and fines; and 2 For a period of ten years following the date of each order or opinion, the advertisement containing the testimonial or endorsement must include a statement that the person providing the testimonial or endorsement is subject to a Commission order or opinion regarding one or more disciplinary actions, and include the order or opinion or a link to the order or opinion on the Commissions website.
5 Endorsement means any statement by a person other than a current client or investor in a private fund advised by the investment adviser that:
i Indicates approval, support, or recommendation of the investment adviser or its supervised persons or describes that persons experience with the investment adviser or its supervised persons;
ii Directly or indirectly solicits any current or prospective client or investor to be a client of, or an investor in a private fund advised by, the investment adviser; or iii Refers any current or prospective client or investor to be a client of, or an investor in a private fund advised by, the investment adviser.
6 Extracted performance means the performance results of a subset of investments extracted from a portfolio.
7 Gross performance means the performance results of a portfolio or portions of a portfolio that are included in extracted performance, if applicable before the deduction of all fees and expenses that a client or investor has paid or would have paid in connection with the investment advisers investment advisory services to the relevant portfolio.
8 Hypothetical performance means performance results that were not actually achieved by any portfolio of the investment adviser.
i Hypothetical performance includes, but is not limited to;
A Performance derived from model portfolios;
B Performance that is backtested by the application of a strategy to data from
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