SEC Guidance on Portable Performance
When investment professionals launch new advisory firms or join existing ones, they often want to advertise the performance they achieved at their prior firm. This practice—known as "performance portability" or "predecessor performance"—is heavily regulated under the SEC's Marketing Rule and raises complex questions about attribution, disclosure, and potential investor deception.
For trading strategies, the portability analysis is particularly nuanced. Unlike traditional long-only equity managers where performance may be tied to specific research or stock-picking, trading strategies often involve systematic models, algorithms, proprietary data, team-based execution, and firm-specific infrastructure. Determining what performance can truthfully "travel" with a departing portfolio manager or team requires careful legal and factual analysis.
Predecessor Performance Defined
Predecessor performance is the track record achieved by an investment professional (or team) at a previous firm, which they wish to advertise at their new firm. Under the SEC Marketing Rule (Rule 206(4)-1), an adviser may show predecessor performance only if the person or persons who were primarily responsible for achieving the results now manage client accounts at the new firm using a "substantially similar" investment strategy.
Warning: High Enforcement Risk
The SEC has brought numerous enforcement actions against advisers for improper use of predecessor performance, including cases where advisers falsely claimed credit for results they did not achieve, advertised track records without adequate substantiation, or failed to disclose material differences between old and new strategies. Penalties have included disgorgement, civil fines, and suspensions from the industry.
Legal Framework: Marketing Rule Requirements
The SEC's Marketing Rule, adopted in 2021 and effective November 2021, replaced the old advertising rule and provides specific guidance on predecessor performance. The rule permits predecessor performance advertising if:
- Primary Responsibility: The person or persons primarily responsible for achieving the performance at the prior firm now manage accounts at the new firm
- Substantially Similar Strategy: The new accounts are managed with a substantially similar investment strategy to the one that achieved the prior performance
- Required Disclosures: The advertisement includes all required disclosures about the predecessor performance, including differences between the old and new strategies, personnel, and firms
- Not Misleading: The overall presentation is not misleading and does not omit material facts
SEC Staff Guidance and No-Action Letters
Prior to the Marketing Rule's adoption, the SEC staff issued several no-action letters providing guidance on portable performance, including the influential Horizon Asset Management (1992) and Lincoln Investment Management (2006) letters. While these letters were withdrawn upon adoption of the Marketing Rule, their analytical framework remains instructive:
| No-Action Letter | Key Guidance | Current Relevance |
|---|---|---|
| Horizon Asset Management (1992) | Allowed use of predecessor performance if the portfolio manager was solely responsible for achieving the results and the strategy was substantially similar | Core principles incorporated into Marketing Rule |
| Lincoln Investment Management (2006) | Extended portability to team-managed strategies where the "substantially all" of the team moved together | Team portability concept remains valid under Marketing Rule |
| Renaissance Investment Management (1996) | Addressed use of model vs. actual performance; allowed portability of model-based results with disclosures | Important for algorithmic and systematic strategies |
Marketing Rule Modernization
The Marketing Rule modernized predecessor performance standards by codifying the principles from prior no-action letters while adding new disclosure requirements. The rule explicitly permits predecessor performance (subject to conditions) rather than requiring advisers to rely on no-action relief. However, the factual analysis required—especially the "substantially similar" test—remains highly fact-specific and subjective.
Substantially Similar Strategy Test
The cornerstone of performance portability is demonstrating that the investment strategy used at the new firm is "substantially similar" to the strategy that produced the performance at the old firm. This is an objective, facts-and-circumstances test that requires detailed analysis of investment process, philosophy, restrictions, risk profile, and execution.
Factors in the Substantially Similar Analysis
The SEC evaluates substantial similarity by examining multiple factors, none of which is individually determinative:
Substantially Similar for Trading Strategies
For quantitative and algorithmic trading strategies, additional factors become relevant:
- Signal Generation: Are the alpha signals or trading signals generated using the same methodology, factors, or models?
- Data Sources: Does the new strategy use the same data inputs and information sources?
- Algorithm Logic: For algorithmic strategies, is the core trading logic and decision-making process the same?
- Execution Infrastructure: While infrastructure differences don't necessarily defeat portability, material differences in execution technology, broker relationships, or market access may affect whether results are comparable
- Backtesting Assumptions: If the strategy is based on backtested or simulated results, are the assumptions and parameters consistent?
- Time Horizon: Are the holding periods and trading frequencies comparable?
- Liquidity Profile: Does the new strategy trade securities with similar liquidity characteristics?
Common Portability Failures for Trading Strategies
Substantial similarity often breaks down when: (1) the departing manager lacks the proprietary data or technology used at the prior firm, (2) the new firm has different broker relationships affecting execution quality, (3) compliance restrictions at the new firm prohibit certain trading techniques used previously, (4) the new strategy operates at a different scale (AUM) affecting market impact, or (5) key infrastructure like risk management systems or data feeds differ materially.
Documentation Requirements for Substantial Similarity
To support a substantial similarity claim, advisers should maintain detailed documentation including:
- Investment Process Memos: Written descriptions of the investment process used at both firms
- Strategy Guidelines: Investment guidelines, portfolio construction rules, and risk parameters at both firms
- Algorithm Documentation: For systematic strategies, documentation of signal generation, model logic, and execution algorithms
- Comparative Analysis: Written analysis comparing the old and new strategies across all relevant factors
- Performance Attribution: Analysis showing that performance drivers at the old firm are present at the new firm
- Legal Memoranda: Written legal analysis supporting the substantial similarity conclusion
Key Person Attribution Test
Even if a strategy is substantially similar, performance is only portable if the person or persons "primarily responsible" for achieving the results at the prior firm now manage accounts at the new firm. This is the "key person attribution" requirement.
Who Was "Primarily Responsible"?
The SEC does not define "primarily responsible" with precision, but the test focuses on who made the key investment decisions that drove performance. Factors include:
- Who had final discretionary authority over portfolio decisions?
- Who conducted the investment research and analysis?
- Who selected the securities or trading signals?
- Who determined position sizing and risk allocations?
- Who decided when to enter and exit positions?
- Who was responsible for portfolio monitoring and rebalancing?
Solo vs. Team Management
For strategies managed by a single portfolio manager with clear decision-making authority, attribution is straightforward. For team-managed strategies, the analysis is more complex. The SEC's Lincoln Investment Management letter (2006) established that performance can be portable to a team if "substantially all" of the team members move together and continue to work in substantially the same roles.
Team Portability Framework
When multiple professionals contributed to prior performance, portability requires:
| Requirement | Standard | Trading Strategy Considerations |
|---|---|---|
| Team Continuity | Substantially all of the investment team must move to the new firm | For algo strategies, include quants, data scientists, developers who built models |
| Role Continuity | Team members must perform substantially the same roles at the new firm | Portfolio manager who becomes CCO at new firm may not satisfy this test |
| Decision-Making Authority | The team must have similar autonomy and decision-making authority | If new firm's risk committee overrides team decisions, this may defeat portability |
| Collaborative Process | The team must work together using a similar collaborative process | If algo development was collaborative at old firm but solo at new firm, portability may fail |
What "Substantially All" Means
The SEC has not provided a numerical threshold for "substantially all," but generally:
- All or Nearly All: If a 5-person team managed a strategy, at least 4 (ideally all 5) should move together
- Key Decision Makers: The most senior and influential team members must be included; junior analysts alone are insufficient
- Critical Functions: All critical functions (research, trading, risk management, quant modeling) must be represented
- Support Staff: Non-investment personnel (IT, compliance, operations) generally don't count toward the "substantially all" analysis, though their absence may affect whether the strategy is truly substantially similar
Warning: Delayed Departures
If team members depart at different times (e.g., PM leaves in January, analysts join in March), the portability analysis becomes more complicated. The SEC may scrutinize whether the team was truly functioning as a unit, and you may need to exclude performance from periods when the team was not intact. Always disclose timing of team departures.
Attribution in Algorithmic Trading Strategies
For systematic and algorithmic strategies, attribution analysis requires examining:
- Algorithm Development: Who designed and coded the trading algorithms?
- Model Selection: Who decided which models or signals to deploy?
- Parameter Tuning: Who set the key parameters, thresholds, and risk limits?
- Data Strategy: Who identified and integrated the data sources?
- Execution Oversight: Who monitored algorithm performance and made adjustments?
- Infrastructure Decisions: Who made decisions about technology stack, brokers, and execution venues?
Quant Team Departure - Attribution Analysis
Facts: A quantitative equity team of six professionals manages a market-neutral strategy at a large asset manager. The team consists of: (1) Lead PM who oversees strategy and makes final decisions, (2) Senior Quant who develops alpha models, (3) Two junior quants who perform research and backtesting, (4) Execution trader who implements trades, and (5) Data engineer who maintains data pipelines. The Lead PM, Senior Quant, one junior quant, and the execution trader leave to start a new firm.
Analysis: The team likely satisfies the "substantially all" test because: (1) the key decision-makers (Lead PM and Senior Quant) moved, (2) critical functions (model development, execution, research) are represented, and (3) four of six team members (67%) moved. However, the absence of the data engineer may create a substantial similarity problem if the new firm lacks access to the same data sources.
Predecessor Performance Documentation
To advertise predecessor performance, advisers must maintain rigorous documentation substantiating both the performance results and the basis for claiming credit. The SEC will examine this documentation during examinations and enforcement investigations.
Required Performance Records
Under the Marketing Rule and SEC books and records requirements (Rule 204-2), advisers advertising predecessor performance must maintain:
- Account Statements: Actual custodial account statements from the predecessor firm showing the performance being advertised
- Trade Confirmations: Records of all trades executed during the performance period
- Portfolio Holdings: Detailed records of portfolio positions, valuations, and cash flows
- Performance Calculations: Worksheets showing how performance was calculated, including methodology, assumptions, and adjustments
- Composite Documentation: If showing composite performance, documentation of composite construction, inclusion criteria, and all accounts included
- Fee Information: Records showing fees and expenses deducted (or not deducted) from the performance
- Correspondence: Any communications with the predecessor firm regarding use of performance data
Obtaining Records from Prior Firm
A major practical challenge is obtaining adequate records from the predecessor firm. Advisers should:
- Negotiate During Departure: Before leaving, negotiate with the prior firm for the right to use performance data and obtain copies of all relevant records
- Separation Agreement: Include specific provisions in separation agreements addressing: (a) permission to use performance data, (b) access to historical records, (c) right to show firm name or anonymize, and (d) any restrictions or disclaimers required
- Written Consent: Obtain written consent from the prior firm documenting their agreement to your use of the performance data
- Independent Verification: If the prior firm is uncooperative, consider engaging an independent accountant to verify performance directly from custodial records
Risk: Lack of Records
If you cannot obtain adequate records from your prior firm to substantiate the performance, you cannot lawfully advertise it—even if you were genuinely responsible for achieving the results. The SEC requires advisers to be able to substantiate all performance claims with documentary evidence. "I know I achieved these results but don't have the records" is not an acceptable defense.
Composite vs. Single Account Performance
Predecessor performance can be shown as:
| Type | Description | Advantages | Disadvantages |
|---|---|---|---|
| Composite | Aggregated performance of all accounts managed using the strategy | More representative of overall strategy performance; larger sample size reduces cherry-picking concerns | Requires detailed composite construction records; may include accounts not solely managed by departing manager |
| Single Account | Performance of one representative account | Simpler documentation; clearer attribution if manager had sole discretion | Cherry-picking concerns; may not be representative; must disclose that results are for a single account |
| Model Portfolio | Theoretical performance of a model portfolio (not actual trading) | Useful when actual accounts had client-specific restrictions | Hypothetical performance disclosures required; higher scrutiny from SEC |
Best Practice: Use Composites When Possible
If you managed multiple accounts using the same strategy at your prior firm, showing composite performance is generally preferable to showing a single account. Composites reduce concerns about cherry-picking and provide a more complete picture of the strategy's historical performance. However, you must be able to document the composite construction methodology and demonstrate that you were primarily responsible for all accounts in the composite.
Required Disclosures for Portable Performance
The Marketing Rule requires specific disclosures when advertising predecessor performance. These disclosures must be provided with sufficient prominence that investors will actually notice and understand them—burying required disclosures in footnotes or fine print can constitute a violation.
Mandatory Disclosure Elements
When showing predecessor performance, your advertisement must disclose:
Predecessor Performance Disclosure Checklist
- That the performance was achieved at a predecessor firm, not the current firm
- The name of the predecessor firm (unless client confidentiality prohibits disclosure)
- The time period during which the performance was achieved
- The identity of the person or persons primarily responsible for achieving the results
- Whether those persons manage accounts at the new firm with a substantially similar strategy
- The number and types of accounts (or assets under management) that make up the performance
- Whether the performance is based on actual accounts or a model/composite
- Material differences between the predecessor and current strategies, including differences in investment process, restrictions, risk profile, or execution
- Material differences between the predecessor and current firms, including differences in size, resources, infrastructure, compliance constraints, or regulatory status
- Whether any accounts from the predecessor firm transitioned to the new firm (and if so, whether their performance is included)
- The fee structure used to calculate performance and whether it's the same as fees charged by the new firm
- Any other material facts necessary to prevent the advertisement from being misleading
Disclosure of Material Differences
One of the most important—and most challenging—disclosure requirements is identifying and disclosing "material differences" between the predecessor and current situations. Material differences include:
| Category | Examples of Material Differences |
|---|---|
| Strategy Differences | New firm cannot use leverage while old firm did; new firm restricted from certain derivatives; different benchmark or investment objective |
| Scale Differences | Old firm managed $5B while new firm manages $50M (market impact concerns); minimum account size differences |
| Infrastructure Differences | Different broker relationships affecting execution quality; lack of proprietary technology used at old firm; different data sources |
| Personnel Differences | Not all team members moved; team has different roles at new firm; new firm has additional oversight or constraints |
| Regulatory Differences | Old firm was registered with CFTC while new firm is SEC-only; different compliance restrictions; different regulatory examinations |
| Fee Differences | Performance shown net of 1% fee but new firm charges 2%; different fee structures (AUM-based vs. performance-based) |
Disclosure Templates
Template 1: Individual Portfolio Manager - Substantially Similar Strategy
"The performance results shown for the period from [Start Date] to [End Date] were achieved by [Portfolio Manager Name] while employed at [Predecessor Firm Name], a registered investment adviser. During this period, [Portfolio Manager Name] managed the [Strategy Name] strategy on behalf of [Predecessor Firm Name]'s clients. [Portfolio Manager Name] joined [Current Firm Name] on [Date] and manages the [Current Strategy Name] using a substantially similar investment strategy. The performance shown is a composite of [Number] separately managed accounts, representing approximately $[Amount] in assets under management as of [End Date]. The accounts included in this composite were managed with full discretion by [Portfolio Manager Name] using the [Strategy Name] strategy."
"Material differences between the predecessor and current strategies include: [describe differences, e.g., 'The current strategy does not utilize leverage, while the predecessor strategy utilized leverage up to 2x. The current strategy has a minimum account size of $500,000, while the predecessor strategy accepted accounts as small as $100,000. The current strategy uses different execution brokers, which may result in different execution quality and transaction costs.']"
"The performance shown is net of a [X]% annual management fee and actual trading expenses. [Current Firm Name]'s current fee schedule is [describe current fees]. Past performance is not indicative of future results. No current or prospective client should assume that future performance will be comparable to the performance shown."
Template 2: Team-Managed Algorithmic Strategy
"The performance results shown for the period from [Start Date] to [End Date] were achieved by a quantitative trading team while employed at [Predecessor Firm Name]. The team consisted of [Number] investment professionals, including [list key team members and titles]. [Number] of these professionals, including [list names], joined [Current Firm Name] on [Date] and manage the [Current Strategy Name] using a substantially similar algorithmic trading strategy. The performance shown represents a composite of [Number] institutional separately managed accounts, totaling approximately $[Amount] in assets under management as of [End Date]."
"Material differences between the predecessor and current strategies include: [describe differences, e.g., 'The current strategy uses different proprietary data sources, which may affect signal generation and performance. The current strategy operates on a different technology platform, which may affect execution speed and efficiency. [Current Firm Name] has [less/more] restrictive compliance policies regarding permissible trading techniques, which may affect strategy implementation. The team does not include [describe missing team members], whose absence may affect research capabilities.']"
"The performance shown is net of a [X]% annual management fee and estimated trading expenses. [Current Firm Name]'s current fee schedule is [describe current fees]. The predecessor performance is based on actual client account results, not backtested or hypothetical performance. Past performance does not guarantee future results, and clients may experience different results."
Template 3: Model Portfolio Performance (Systematic Strategy)
"The performance results shown for the period from [Start Date] to [End Date] represent the model portfolio performance achieved by [Name/Team] while at [Predecessor Firm Name]. This performance is based on a model portfolio that was used to manage actual client accounts at [Predecessor Firm Name], though individual client results varied based on account-specific restrictions, fee structures, and timing of cash flows. [Name/Team] joined [Current Firm Name] on [Date] and manages the [Current Strategy Name] using a substantially similar systematic trading approach."
"IMPORTANT: The performance shown is model performance, not actual account performance. Actual client results at [Predecessor Firm Name] differed from the model due to factors including client-specific investment restrictions, tax considerations, and timing of account funding and withdrawals. Model performance does not reflect actual trading and therefore has not been affected by market liquidity, slippage, or execution costs that would have been experienced in actual trading. The model performance is net of a [X]% assumed management fee and [Y]% assumed trading costs."
"Material differences between the predecessor and current situations include: [describe differences]. Past performance, whether actual or model-based, does not guarantee future results. Current and prospective clients should not assume they will experience returns comparable to those shown."
Team Departures & Performance Attribution
When investment teams split up—with some members joining a new firm and others staying at the predecessor firm—complex questions arise about who can claim the prior performance. Both the departing team members and the remaining team members may argue they are entitled to advertise the track record.
Competing Claims to Performance
In team departure scenarios, three parties may claim credit for the same performance:
- The Predecessor Firm: May continue to advertise the performance as a firm track record, arguing it was achieved using firm resources, infrastructure, and support
- Departing Team Members: May claim portability based on their primary responsibility for investment decisions
- Remaining Team Members: May argue they contributed to the results and should be able to continue using the track record
Risk: Multiple Parties Advertising Same Track Record
It is possible (and lawful) for multiple parties to advertise the same track record, provided each party can demonstrate they were primarily responsible for achieving the results and each provides accurate disclosures. However, this can create investor confusion and raises questions about whether each party's role is being overstated. Full transparency is critical.
Partial Team Departures
When only some team members depart, the portability analysis becomes fact-specific:
| Scenario | Can Departing Members Use Performance? | Can Remaining Members Use Performance? |
|---|---|---|
| Lead PM Departs, Analysts Stay | Likely yes, if the PM had final discretion and the strategy is substantially similar at the new firm | Possibly, if analysts continue managing the strategy in substantially the same manner; must disclose PM departure |
| Analysts Depart, Lead PM Stays | Questionable; if analysts only provided recommendations but PM made final decisions, portability may fail | Likely yes, assuming PM continues the strategy with new analysts or solo |
| Team Splits Evenly (3 of 6 Depart) | Questionable; may not satisfy "substantially all" test; each side may need to exclude the performance | Questionable; same analysis—neither side may have sufficient continuity to claim portability |
| Substantially All Team Departs (5 of 6) | Likely yes, if they manage substantially similar strategy at new firm | No; remaining member was not "primarily responsible" for results achieved by full team |
Mandatory Disclosures for Split Teams
When teams split, enhanced disclosures are critical:
- Team Composition: Identify all team members who contributed to the prior performance and specify which moved and which stayed
- Role Changes: Disclose any changes in roles or responsibilities of team members at the new firm
- Timing: Disclose when team members departed and whether they departed together or at different times
- Infrastructure: Disclose which firm retained key infrastructure, systems, or intellectual property
- Competing Claims: If the predecessor firm or remaining team members also advertise the same track record, consider disclosing this fact
Algorithmic Trading Team Split - Who Gets the Track Record?
Facts: A 4-person algorithmic trading team at a hedge fund achieves a 10-year track record of 18% annualized returns. The team consists of: (1) Chief Investment Officer who oversees all strategies, (2) Lead Quant who developed the core algorithm, (3) Execution PM who implements trades, and (4) Junior Quant who performs research. The Lead Quant and Execution PM leave to start a new fund, while the CIO and Junior Quant remain. Both parties claim they can use the 10-year track record.
Departing Team Analysis: The departing members argue they were primarily responsible because the Lead Quant developed the algorithm and the Execution PM implemented it. However, only 2 of 4 team members left (50%), which may not satisfy "substantially all." Additionally, the CIO's oversight role and decision-making authority may have been material to performance.
Remaining Team Analysis: The remaining members argue they can continue using the track record because the CIO retains ultimate decision-making authority and the Junior Quant can continue research. However, loss of the algorithm developer and execution specialist may constitute a material change to the team.
Model Portability vs. Discretionary Performance
The portability analysis differs for model-driven (systematic/algorithmic) strategies versus discretionary strategies. Model-driven performance may be more portable in some respects but faces unique challenges related to infrastructure and data.
Model-Driven Strategy Portability
For systematic trading strategies, performance is often generated by quantitative models or algorithms. Portability depends on whether the departing team can replicate the model at the new firm.
| Factor | Portability Considerations |
|---|---|
| Model Ownership | If the model is proprietary to the predecessor firm (e.g., patented or trade secret), the departing team may lack legal right to replicate it. If the team developed the model and owns IP rights, portability is more supportable. |
| Code Access | Does the departing team have access to the algorithm source code, or must they rebuild from scratch? Rebuilding may introduce differences that affect substantial similarity. |
| Data Dependencies | If the model relies on proprietary data available only at the predecessor firm, the new firm may be unable to replicate the strategy. Alternative data sources must be substantially similar. |
| Backtesting vs. Live Trading | If the performance being advertised is based on backtesting, the departing team must have access to the same historical data and backtesting methodology to substantiate the results. |
| Execution Infrastructure | Model output is only part of the equation—execution quality matters. Different brokers, execution algorithms, or technology may create material differences in realized performance. |
| Parameter Settings | Even if the core model logic is the same, different parameter settings, risk limits, or position sizing rules can create material performance differences. |
Discretionary Strategy Portability
For discretionary strategies (where human judgment drives investment decisions), portability is often more straightforward but requires careful analysis of the decision-making process:
- Individual Stock Selection: If a PM's track record is based on individual security selection skill, portability depends on whether the PM has the same research resources, information access, and decision-making authority at the new firm
- Research Infrastructure: Loss of sell-side research access, proprietary databases, or internal research teams may affect the PM's ability to replicate prior results
- Sector/Industry Expertise: If the PM's success was based on deep sector knowledge, that knowledge travels with the PM (making portability more supportable)
- Collaborative Process: If the discretionary process involved significant input from analysts, traders, or risk managers, their absence at the new firm may affect substantial similarity
Hybrid Strategies: Model + Discretion
Many modern trading strategies combine systematic models with discretionary overlays (e.g., algorithm generates signals but PM decides position sizing, or model screens securities but PM makes final selections). For hybrid strategies, portability requires demonstrating that both the model component and the discretionary component are substantially similar at the new firm. This often requires detailed documentation of the respective roles of models and human judgment.
Renaissance Investment Management Precedent
The SEC's 1996 no-action letter to Renaissance Investment Management addressed portability of model-based performance. The SEC staff permitted Renaissance to use model performance achieved at a predecessor firm where:
- The individual primarily responsible for developing and implementing the model joined Renaissance
- Renaissance used substantially the same model and investment process
- Renaissance disclosed that the performance was model-based and achieved at a predecessor firm
- Renaissance disclosed material differences in infrastructure and resources between the firms
While this letter was withdrawn with the adoption of the Marketing Rule, its principles remain instructive: model-based performance can be portable if the model developer moves to the new firm and implements a substantially similar model, with appropriate disclosures.
Documentation Requirements for Portability Claims
The SEC expects advisers claiming performance portability to maintain comprehensive documentation supporting the claim. Inadequate documentation is a frequent basis for SEC enforcement actions.
Core Documentation Package
At a minimum, maintain the following records for any predecessor performance you advertise:
Portability Documentation Checklist
- Written agreement or consent from predecessor firm permitting use of performance data
- Separation agreement addressing performance data rights and any restrictions
- Account statements from predecessor firm substantiating the performance results
- Composite construction documentation (if showing composite performance)
- Trade confirmations and portfolio holdings for the performance period
- Performance calculation worksheets showing methodology and assumptions
- Written description of the investment strategy used at the predecessor firm
- Written description of the investment strategy used at the new firm
- Comparative analysis documenting substantial similarity of strategies
- Organizational charts showing team composition at both firms
- Job descriptions or role definitions for key personnel at both firms
- Legal memorandum analyzing primary responsibility and substantial similarity
- All marketing materials containing the predecessor performance
- Written disclosures provided to clients and prospects regarding predecessor performance
- Documentation of differences between predecessor and current strategies/firms
- Correspondence with legal counsel regarding portability analysis
Substantiation for Primary Responsibility
To document that specific individuals were "primarily responsible" for prior performance, maintain:
- Employment Records: Offer letters, employment agreements, job descriptions showing roles and responsibilities
- Organizational Charts: Charts showing reporting relationships and decision-making authority
- Trade Authorization: Documents showing who had discretionary trading authority over accounts
- Investment Committee Minutes: If applicable, minutes showing who made investment recommendations and decisions
- Research Reports: Evidence of research and analysis conducted by the individuals claiming credit
- Communications: Emails, memos, or other communications demonstrating decision-making role
- Performance Attribution Analysis: Quantitative analysis attributing performance to specific decisions or individuals
Substantiation for Substantially Similar Strategy
To document substantial similarity, create a detailed comparison:
- Investment Guidelines: Side-by-side comparison of investment guidelines, restrictions, and objectives
- Portfolio Construction: Comparison of portfolio construction methodology, position sizing, diversification
- Risk Parameters: Comparison of risk limits, leverage constraints, volatility targets
- Execution Methodology: Comparison of trading practices, broker relationships, execution algorithms
- Data Sources: Comparison of data inputs, research sources, and information used
- Performance Drivers: Analysis showing that the key drivers of prior performance are present in the new strategy
- Differences Disclosure: Written identification and analysis of any material differences
Warning: Insufficient Documentation
Claiming "I was the portfolio manager so it's my track record" without supporting documentation is insufficient. The SEC requires objective evidence demonstrating your role, responsibilities, and the substantial similarity of strategies. Failure to maintain adequate documentation can result in enforcement even if your portability claim is factually accurate.
Retention Requirements
Under SEC Rule 204-2, records supporting performance claims must be maintained for at least five years after the advertisement is last used, with the first two years in an easily accessible place. For predecessor performance, this means:
- Maintain all records for at least 5 years after you stop using the predecessor performance in marketing
- Keep records in readily accessible format (electronic storage is acceptable if searchable and retrievable)
- Be prepared to produce records within 24-48 hours in response to SEC examination requests
- Maintain redundant copies in case of data loss or system failures
When Portability Fails: What You Cannot Do
Understanding the boundaries of permissible predecessor performance advertising is critical. The SEC has brought numerous enforcement actions against advisers who crossed the line.
Impermissible Uses of Prior Performance
You cannot advertise predecessor performance if:
| Prohibited Practice | Why It's Impermissible | SEC Enforcement Risk |
|---|---|---|
| Non-Investment Role | You were a salesperson, COO, or research analyst without discretionary authority | High - false claim of responsibility |
| Materially Different Strategy | Prior strategy was long/short equity, new strategy is long-only (different risk/return profile) | High - misleading comparison |
| Insufficient Team Continuity | Only 1 of 5 team members moved to new firm | High - team not "substantially all" |
| Lack of Substantiation | Cannot obtain records from prior firm to verify performance | High - unsubstantiated claim |
| Firm-Level Track Record | Advertising entire firm's track record from prior firm when you only managed part of it | Very high - clear overstatement |
| Undisclosed Material Differences | Failing to disclose that new firm lacks data access or technology used at prior firm | High - material omission |
| False Attribution | Claiming credit for performance achieved by someone else | Very high - fraud |
| Cherry-Picked Accounts | Showing only best-performing accounts while excluding losses | Very high - cherry-picking |
Red Flags That Portability May Fail
If any of the following apply, carefully reconsider whether you can lawfully use predecessor performance:
- You were not the final decision-maker with respect to portfolio investments
- The prior performance was achieved by a large team and you were only one contributor
- You lack access to critical infrastructure, data, or technology used at the prior firm
- Your new firm has material compliance restrictions that prohibit techniques used in the prior strategy
- The prior firm's brand, reputation, or relationships were material to the strategy's success
- You cannot obtain adequate records to substantiate the performance
- The prior firm objects to your use of the performance data
- Significant time has passed since you left the prior firm (strategy may have evolved)
- The new strategy operates at a materially different scale (AUM) than the prior strategy
Criminal Risk: Fraudulent Performance Claims
In egregious cases involving fabricated performance or knowingly false attribution, performance advertising violations can result in criminal prosecution (wire fraud, securities fraud) in addition to SEC civil enforcement. Never advertise performance you did not achieve or cannot substantiate with documentation. The reputational and legal consequences are severe.
Alternatives When Portability Fails
If you cannot satisfy the requirements for predecessor performance, consider these alternatives:
- Resume-Style Bio: Describe your prior experience and role (e.g., "managed $2B equity strategy at XYZ Capital") without citing specific performance numbers
- Qualitative Description: Describe your investment philosophy, process, and experience without quantitative performance claims
- Model Performance: Develop a backtested model using the new firm's resources and show hypothetical performance (with required disclosures)
- Live Track Record: Build a new track record at the new firm before marketing (consider running live accounts or a fund)
- Incubated Performance: Some firms incubate strategies with seed capital to build a track record before client marketing (beware of cherry-picking rules)
SEC Enforcement Examples & Lessons
The SEC has brought numerous enforcement actions against advisers for improper use of predecessor or portable performance. These cases provide important lessons about what not to do.
In re Guggenheim Partners Investment Management, LLC (2015)
Facts: Guggenheim marketed a fixed-income strategy using track records from two predecessor firms. The SEC found that Guggenheim failed to adequately disclose that the performance was achieved at other firms and that the performance shown was for different investment strategies managed by different teams. Marketing materials created the misleading impression that Guggenheim itself had achieved the results.
Violations: The SEC charged Guggenheim with violations of the Advisers Act's advertising rule (now the Marketing Rule) for: (1) failing to disclose that performance was from predecessor firms, (2) failing to disclose material differences between the predecessor strategies and Guggenheim's strategy, and (3) creating misleading implications about Guggenheim's track record.
In re Artisan Partners Limited Partnership (2013)
Facts: Artisan advertised performance for its Small Cap Value strategy that included performance from a predecessor firm where the portfolio manager had previously worked. The SEC found that Artisan's advertising suggested that Artisan itself had achieved the entire track record, when in fact only the more recent portion was achieved at Artisan.
Violations: The SEC found that Artisan's marketing materials were misleading because they did not sufficiently distinguish between performance achieved at the predecessor firm and performance achieved at Artisan. The disclosures provided were deemed inadequate because they were not prominent and did not clearly convey the limited nature of Artisan's involvement in the earlier performance.
In re Park Financial Group, Inc. (2014)
Facts: Park Financial advertised performance results from a prior firm where the founder had worked. The SEC investigation revealed that the founder was not primarily responsible for achieving the results being advertised—the results were actually achieved by a team of portfolio managers, most of whom did not join Park Financial.
Violations: The SEC charged Park Financial with: (1) falsely attributing performance to the founder when he was not primarily responsible, (2) failing to disclose that the prior results were team-managed and the team did not move to Park, and (3) failing to substantiate the performance with adequate records.
In re Lincolnshire Management, Inc. (2017)
Facts: Lincolnshire marketed a mutual fund using hypothetical performance based on a model portfolio. The SEC found that the hypothetical performance was not properly substantiated, the assumptions used were unrealistic, and the disclosures about the hypothetical nature of the performance were inadequate.
Violations: While this case involved hypothetical (not predecessor) performance, it illustrates the SEC's strict substantiation requirements. The SEC found that Lincolnshire could not adequately document the assumptions used in the hypothetical performance calculations and that the performance was misleading because it did not reflect real-world constraints.
Common Enforcement Themes
Analyzing SEC enforcement actions reveals recurring themes:
- Inadequate Disclosures: Most cases involve disclosures that were technically present but not prominent, clear, or comprehensive enough
- False Attribution: Claiming credit for performance achieved by others or by a team that didn't move together
- Cherry-Picking: Showing selected favorable results while excluding other accounts or periods
- Lack of Substantiation: Inability to produce records supporting the performance claims
- Misleading Implications: Even if specific statements are technically true, creating an overall misleading impression violates the rule
- Material Omissions: Failing to disclose differences between predecessor and current situations that would affect investor decision-making
Practical Guidance & Best Practices
Based on the legal framework and enforcement precedents, here are practical recommendations for advisers considering predecessor performance advertising:
Pre-Departure Planning
If you anticipate leaving your current firm and want to preserve the ability to use your track record, plan ahead:
- Review Employment Agreement: Check for restrictions on using performance data or soliciting clients
- Identify Key Records: Determine what records you'll need (account statements, trade confirmations, composite documentation)
- Negotiate Separation Terms: Include provisions in separation agreement addressing: (a) right to use performance data, (b) access to historical records, (c) whether you can identify the prior firm by name, (d) any required disclaimers
- Obtain Written Consent: Get written permission from prior firm to use performance data (ideally before departure)
- Preserve Records: Obtain copies of all relevant records before losing access to firm systems
- Document Your Role: Gather evidence of your primary responsibility (employment contracts, org charts, trade authorization)
- Team Coordination: If it's a team move, coordinate timing and ensure substantially all of the team is departing together
Legal Analysis Before Marketing
Before using predecessor performance in any marketing, conduct thorough legal analysis:
- Engage Securities Counsel: Retain an attorney with expertise in the Marketing Rule to advise on portability
- Document Substantial Similarity: Create written analysis comparing old and new strategies across all relevant factors
- Identify Differences: Catalog all material differences between predecessor and current situations
- Draft Disclosures: Prepare comprehensive disclosures addressing all required elements
- Obtain Legal Opinion: Consider obtaining a written legal opinion supporting portability (useful in SEC examination)
- Review Marketing Materials: Have counsel review all marketing materials containing predecessor performance
Disclosure Best Practices
When disclosing predecessor performance, follow these best practices:
Disclosure Best Practices Checklist
- Place disclosures prominently—not buried in footnotes or on separate pages
- Use clear, plain-English language that investors will understand
- Use visual cues (different colors, shading, labels) to distinguish predecessor vs. current firm performance
- Provide disclosures in the same font size as performance claims (not fine print)
- Include disclosures in all media (pitch books, website, one-pagers, presentations)
- Update disclosures as circumstances change (team changes, strategy evolution, etc.)
- Be conservative—if unsure whether to disclose something, disclose it
- Avoid creating misleading implications through charts, formatting, or emphasis
- Test disclosures with non-experts to ensure clarity and comprehensibility
- Maintain documentation showing that disclosures were provided to all prospects
Ongoing Compliance Monitoring
After you begin advertising predecessor performance, maintain ongoing compliance:
- Annual Review: Review portability analysis annually as part of compliance review—strategies evolve over time
- Track Changes: Monitor any changes to your team, strategy, or infrastructure that might affect substantial similarity
- Update Disclosures: Revise disclosures as circumstances change
- Maintain Records: Continue maintaining all supporting documentation for 5+ years
- Train Personnel: Ensure sales and marketing staff understand portability limitations and required disclosures
- Monitor Competitor Claims: Be aware if the predecessor firm or other departing team members are also using the track record
When to Sunset Predecessor Performance
Consider phasing out predecessor performance advertising as your new firm's track record develops:
- After 3 Years: Once you have 3 years of live performance at the new firm, consider de-emphasizing predecessor performance
- After 5 Years: After 5 years, strongly consider retiring predecessor performance—it becomes increasingly stale and less relevant
- After Material Changes: If your strategy or team changes materially, reconsider whether predecessor performance remains relevant
- Progressive Approach: Use a hybrid presentation showing predecessor performance for earlier periods and new firm performance for recent periods, with clear labeling
Conservative Approach Recommended
When in doubt about whether you can use predecessor performance or what disclosures are required, err on the side of conservatism. The cost of over-disclosure is minimal compared to the cost of an SEC enforcement action. If legal counsel advises against using certain performance or recommends additional disclosures, follow that advice even if competitors are taking more aggressive approaches.
Master Portability Checklist
Use this comprehensive checklist to evaluate whether you can lawfully advertise predecessor performance:
Predecessor Performance Portability Checklist
- Primary Responsibility: You (or your team) were primarily responsible for achieving the prior performance
- Discretionary Authority: You had final discretionary authority over investment decisions
- Team Continuity (if applicable): Substantially all of the investment team moved to the new firm together
- Role Continuity: You perform substantially the same role at the new firm
- Substantially Similar Strategy: The new strategy is substantially similar across all key dimensions (objective, process, risk, assets, philosophy)
- Data Access: You have access to substantially similar data sources and information
- Infrastructure Capability: You have infrastructure adequate to implement the strategy (technology, brokers, execution)
- No Prohibitive Restrictions: The new firm does not have compliance restrictions that prevent replicating the prior strategy
- Records Available: You have access to account statements and records substantiating the performance
- Predecessor Consent: You have written consent from the predecessor firm to use the performance data
- Composite Documentation: You can document composite construction if showing composite performance
- Performance Calculation: You can document how performance was calculated and verify accuracy
- Material Differences Identified: You have identified and documented all material differences between predecessor and current situations
- Disclosures Prepared: You have prepared comprehensive, prominent disclosures for all marketing materials
- Legal Review Completed: Securities counsel has reviewed and approved your portability claim and disclosures
- Books and Records Compliance: You have procedures to maintain all required records for 5+ years
Passing Score: 100%
This checklist requires a perfect score. If you cannot check every box, you should not advertise the predecessor performance (or should address the deficiency before advertising). Each element is critical to compliance with the Marketing Rule and avoiding SEC enforcement risk.