On March 15, the Security and Exchange Commission’s Division of Investment Management issued guidance (Guidance) on when investment companies registered under the Investment Company Act of 1940 such as mutual funds and exchange traded funds (collectively, Investment Companies) are required to file with the SEC certain interactive content posted on real-time electronic forums such as chat rooms and other social media (Interactive Content).
Multiple filing requirements apply to the marketing materials used by Investment Companies, including Interactive Content. To the extent that they have not been filed with the Financial Industry Regulatory Authority pursuant to FINRA Rule 2210, an Investment Company’s marketing materials may be subject to filing with the SEC pursuant to either Section 24(b) of the Investment Company Act of 1940 or SEC Rule 497 under the Securities Act of 1933 (SEC Filing Obligations). The Guidance notes that a fact-intensive inquiry is required to determine whether a particular marketing communication must be filed with the SEC.
To provide greater clarity, the Guidance lists (with examples) certain types of Interactive Content that generally are, and are not, subject to SEC Filing Obligations. The detailed examples included in the Guidance, along with additional information, are available here.