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  • foi060823a[Federal Register: August 23, 2006 (Volume 71, Number 163)]

    [Proposed Rules]

    [Page 49387-49391]

    From the Federal Register Online via GPO Access [wais.access.gpo.gov]

    [DOCID:fr23au06-25]

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    COMMODITY FUTURES TRADING COMMISSION

    17 CFR Part 4

    RIN 3038-AC35

    Advertising by Commodity Pool Operators, Commodity Trading

    Advisors, and the Principals Thereof

    AGENCY: Commodity Futures Trading Commission.

    ACTION: Proposed rules.

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    SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC)

    is proposing to amend Regulation 4.41, which governs advertising by

    commodity pool operators (CPOs), commodity trading advisors (CTAs) and

    the principals thereof, (1) To restrict the use of testimonials, (2) to

    clarify the required placement of the prescribed simulated or

    hypothetical performance disclaimer, and (3) to include within the

    regulation's coverage advertisement through electronic media

    (Proposal). This action is in furtherance of the Commission's

    longstanding position that CPOs, CTAs, and their principals may not

    advertise in a false, deceptive or misleading manner.

    DATES: Comments must be received on or before September 22, 2006.

    ADDRESSES: Comments on the Proposal should be sent to Eileen Donovan,

    Acting Secretary, Commodity Futures Trading Commission, Three Lafayette

    Centre, 1155 21st Street, NW., Washington, DC 20581. Comments may be

    sent by facsimile transmission to (202) 418-5528, or by e-mail to

    [[Page 49388]]

    secretary@cftc.gov. Reference should be made to "Advertising by

    Commodity Pool Operators, Commodity Trading Advisors, and the

    Principals Thereof." Comments may also be submitted by connecting to

    the Federal eRulemaking Portal at http://www.regulations.gov and

    following the comment submission instructions.

    FOR FURTHER INFORMATION CONTACT: Barbara S. Gold, Associate Director,

    or Peter B. Sanchez, Staff Attorney, Division of Clearing and

    Intermediary Oversight, Commodity Futures Trading Commission, Three

    Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581,

    telephone number: (202) 418-5450 or (202) 418-5237, respectively;

    facsimile number: (202) 418-5528; and electronic mail: bgold@cftc.gov

    or psanchez@cftc.gov, respectively.

    SUPPLEMENTARY INFORMATION:

    I. Background

    Part 4 of the Commission's regulations governs the operations and

    activities of CPOs and CTAs.\1\ In particular, Regulation 4.41 pertains

    to advertising by CPOs, CTAs, and the principals \2\ thereof, an issue

    first addressed by the Commission over 25 years ago. The Commission

    originally proposed that CPOs, CTAs, and their principals could not

    advertise their actual past performance results in a format other than

    that which the CPO or CTA was required to use in its Disclosure

    Document,\3\ and that the presentation of simulated or hypothetical

    performance of a CPO, CTA, or the principals thereof would be

    prohibited.\4\ In response to the comments received and its further

    deliberations on these proposals, the Commission adopted less

    restrictive advertising regulations.\5\

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    \1\ 17 CFR Part 4 (2006). The Commodity Exchange Act (Act) and

    the Commission's regulations issued thereunder may be accessed

    through the Commission's Web site, at http://www.cftc.gov/cftc.cftclawreg.htm.

    \2\ The definition of the term "principal" is set forth in

    Regulation 4.10(e)(1), which cross-references the definition of the

    term in Regulation 3.1(a). An example of a principal of a CPO

    organized as a corporation would be the corporation's chief

    executive officer.

    \3\ Regulations 4.21-4.26 and 4.31-4.26 respectively concern the

    Disclosure Document that registered CPOs and CTAs must prepare,

    deliver, and file.

    \4\ 45 FR 51600 (Aug. 4, 1980).

    \5\ 46 FR 26004 (May 8, 1981).

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    With respect to the presentation of actual past performance, the

    Commission explained that it had adopted in Regulation 4.41(a) "a rule

    that leaves to the discretion of the [CPO, CTA, or principal]

    advertising performance results--whether actual, simulated or

    hypothetical--the format of that presentation, so long as that format

    is not false, misleading or deceptive." \6\ As for the presentation of

    simulated or hypothetical performance results, the Commission explained

    that it had adopted in Regulation 4.41(b) "a rule that allows the

    presentation of those results, provided that the presentation is

    accompanied by the statement prescribed in the rule (emphasis

    supplied)," whose purpose was "to alert prospective customers to the

    limitations inherent in simulated and hypothetical past performance

    results." \7\ The Commission also noted the scope of new Regulation

    4.41--that it applied to both oral and written communications and

    regardless of whether a CPO or a CTA was exempt from registration under

    the Act.\8\

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    \6\ While acknowledging that it was not possible to identify

    every advertisement that was prohibited by new Regulation 4.41, the

    Commission nonetheless gave notice in the Federal Register release

    announcing the adoption of the rule that it would consider the

    following, non-exclusive list of advertisements, to be prohibited:

    (1) References only to successful trades, if during the same

    time period, trades which were unsuccessful were also recommended or

    executed; (2) references to the results during a specific time

    period, if the results claimed were not fairly representative of

    results achieved for comparable periods; (3) suggestions, assurances

    or claims of profit potential that do not also fairly present the

    possibility of loss; (4) statements of opinions or predictions which

    are not clearly labeled as such or which have no reasonable basis in

    fact; and (5) failure to disclose whether, and to what extent, fees,

    commissions and other expenses are reflected in the past performance

    results. Id. at 26012.

    \7\ Id.

    \8\ Section 4m(1) of the Act, 7 U.S.C. 6m(1) (2000), generally

    requires the registration of CPOs and CTAs. Regulation 4.13 provides

    an exemption from CPO registration for certain persons, and Sections

    4m(1) and 4m(3) and Regulation 4.14 provide an exemption from CTA

    registration for certain other persons.

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    Based on its experience with the operation of Regulation 4.41 over

    the course of the past 25 years, the Commission today is proposing

    certain amendments as described below.

    II. The Proposal

    A. Presentation of Actual Past Performance: Proposed Addition of

    Regulation 4.41(a)(3)

    The Commission is proposing to add a new paragraph (a)(3) to

    Regulation 4.41, which would address the use of testimonials by a CPO,

    CTA, or a principal thereof. Proposed Regulation 4.41(a)(3) would

    require advertisements that refer to a testimonial to prominently

    disclose that the testimonial may not be representative of the

    experience of other clients; that the testimonial is no guarantee of

    future performance or success; and, if more than a nominal sum is paid,

    the fact that it is a paid testimonial.\9\ The

    [[Page 49389]]

    Commission believes that advertisements that do not contain this

    information may provide potential CPO and CTA customers with a

    misleading assessment about the quality of services being offered or

    the motivation of the person providing the testimonial--and, thus,

    violate the Commission's intent that these advertisements not be

    "false, misleading or deceptive."

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    \9\ The Commission has modeled this proposal upon NASD Rule

    2210(d)(2), which sets similar limits on the use of testimonials in

    advertisements and other marketing materials applicable to NASD

    members, as follows:

    (2) Standards Applicable to Advertisements and Sales Literature

    (A) Advertisements or sales literature providing any testimonial

    concerning the investment advice or investment performance of a

    member or its products must prominently disclose the following:

    (i) The fact that the testimonial may not be representative of

    the experience of other clients.

    (ii) The fact that the testimonial is no guarantee of future

    performance or success.

    (iii) If more than a nominal sum is paid, the fact that it is a

    paid testimonial.

    The potential of testimonials to mislead customers has been

    recognized by other Federal regulatory agencies. The Securities and

    Exchange Commission (SEC) has promulgated a rule that declares any

    use of testimonials in advertising by investment advisers to be "a

    fraudulent, deceptive or manipulative act, practice or course of

    business within the meaning of the [Investment Advisers] Act [of

    1940] (15 U.S.C. 80b-6(4))". 17 CFR 275.206(4)-1(a)(1). In its

    release promulgating the rule, the SEC found that "such

    advertisements are misleading; by their very nature they emphasize

    the comments and activities favorable to the investment adviser and

    ignore those which are unfavorable." 26 FR 10548, 10549 (November

    9, 1961).

    Testimonials also are subject to the Federal Trade Commission's

    (FTC) Guides Concerning Use of Endorsements and Testimonials in

    Advertising, which are not limited to a specific industry. 16 CFR

    255, http://www.ftc.gov/bcp/guides.endorse.htm. The FTC Guides

    provide, for example, that:

    An advertisement employing an endorsement reflecting the

    experience of an individual or a group of consumers on a central or

    key attribute of the product or service will be interpreted as

    representing that the endorser's experience is representative of

    what consumers will generally achieve with the advertised product in

    actual, albeit variable, conditions of use. Therefore, unless the

    advertiser possesses and relies upon adequate substantiation for

    this representation, the advertisement should either clearly and

    conspicuously disclose what the generally expected performance would

    be in the depicted circumstances or clearly and conspicuously

    disclose the limited applicability of the endorser's experience to

    what consumers may generally expect to achieve. See 16 CFR 255.2(a).

    The FTC Guides are an administrative interpretation of section 5

    of the Federal Trade Commission Act, 15 U.S.C. 45(a), which

    prohibits "unfair or deceptive acts or practices in or affecting

    commerce." See Porter & Dietsch, Inc. v. Federal Trade Comm'n, 605

    F.2d 294, 303 (7th Cir. 1979) (sustaining FTC's finding that

    advertisements were deceptive where the typical experiences of

    consumers did not parallel the experiences reported in

    testimonials); Federal Trade Comm'n v. Ken Roberts Company, 276 F.3d

    583 (DC Cir. 2001)(FTC's authority to investigate deceptive

    advertising extended to, among other things, testimonials used by

    seller of courses in commodities and securities investing and was

    not clearly preempted by overlapping authority of CFTC or SEC).

    Standards for establishing unlawful deception under the Federal

    Trade Commission Act are broadly similar to those for establishing

    unlawful deception by commodity trading advisors and commodity pool

    operators under the Commodity Exchange Act. Compare Federal Trade

    Comm'n v. Tashman, 318 F.3d 1273, 1275-77 (11th Cir. 2003)

    (unsupported earnings claims by business opportunity firm were

    material misleading representations that violated Federal Trade

    Commission Act) with CFTC v. Heffernan, 245 F. Supp. 2d 1276, 1290-

    91, 1294-96 (S.D.Ga. 2003)(unsupported earnings claims by commodity

    trading advisor were material misleading representations that

    violated Commodity Exchange Act if they were made with scienter or

    had an impact on prospective customers).

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    B. Simulated or Hypothetical Performance Presentation: Proposed

    Amendments to Regulation 4.41(b)

    Regulation 4.41(b)(1) requires that simulated or hypothetical

    performance results "be accompanied by" a prescribed statement,\10\

    and Regulation 4.41(b)(2) requires that this statement be "prominently

    disclosed" if that performance is presented other than orally.

    Nonetheless, the Commission has encountered numerous instances where

    persons were not adequately identifying their trading results as

    simulated or hypothetical,\11\ or were not appropriately locating the

    disclaimer,\12\ and thus were not providing those results as the

    Commission had contemplated--i.e., in a manner intended "to alert

    prospective customers to the limitations inherent in simulated and

    hypothetical past performance results." The Commission therefore is

    proposing to amend Regulation 4.41(b)(1) to clarify the meaning of the

    term "accompanied by," especially in light of the popularity of

    electronic means of communication that were not in existence 25 years

    ago when the Commission adopted Regulation 4.41.

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    \10\ This statement may be the text contained in Regulation

    4.41(b)(1)(i) or it may be a statement prescribed by a registered

    futures association pursuant to Section 17(j) of the Act, 7 U.S.C.

    21(j). In this regard, the National Futures Association (NFA) has

    adopted a Risk Disclosure Statement, the text of which is contained

    in NFA Compliance Rule 2-29(c) and may be accessed at

    http://www.nfa.futures.org/nfaManual/manualCompliance.asp#2-29.

    \11\ See, e.g., CFTC v. R&W Technical Servs. Ltd., 205 F.3d 165

    (5th Cir. 2000) (hypothetical trading results presented as real

    trading results); CFTC v. Skorupskas, 605 F. Supp. 923, 933 (E.D.

    Mich. 1985) (performance tables not based on real or actual

    trading).

    \12\ See, e.g., CFTC v. Vartuli, 228 F.3d 94 (2d Cir. 2000)

    (disclaimer appears on a separate page from the hypothetical trading

    results); Heffernan at 1286, 1296-1297, 1299 (disclaimer on a

    webpage, but not included in the original advertisement containing

    the hypothetical performance); In re Martin, [1999--2000 Transfer

    Binder] Comm. Fut. L. Rep. (CCH) ] 28,239 (CFTC Sept. 6, 2000)

    (hypothetical performance results on a Web page, but disclaimer on a

    separate page accessible by hyperlink).

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    Specifically, the Commission is proposing to amend Regulation

    4.41(b)(1)(i) by including in the prescribed disclaimer references to

    "these results" when discussing the simulated or hypothetical

    performance results being presented.\13\ Additionally, the Commission

    is proposing to amend Regulation 4.41(b)(2) by adding to the existing

    requirement that the prescribed disclaimer must be prominently

    disclosed, the requirement that the prescribed disclaimer also must be

    "in immediate proximity to the simulated or hypothetical performance

    being presented." \14\

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    \13\ The Commission also is proposing a few non-substantive

    changes to the prescribed disclaimer. The text of Regulation

    4.41(b)(1)(i) would thus read as follows:

    "These results are based on hypothetical or simulated

    performance results that have certain inherent limitations. Unlike

    the results shown in an actual performance record, these results do

    not represent actual trading. Also, because these trades have not

    actually been executed, these results may have under- or over-

    compensated for the impact, if any, of certain market factors, such

    as lack of liquidity. Hypothetical or simulated trading programs in

    general are also subject to the fact that they are designed with the

    benefit of hindsight. No representation is being made that any

    account will or is likely to achieve profits or losses similar to

    these being shown."

    \14\ See, e.g. supra note 12 for situations in which the

    required disclaimer was not in immediate proximity to the

    hypothetical performance.

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    C. The Scope of Regulation 4.41: Proposed Amendment to Regulation

    4.41(c)(1)

    As originally adopted by Congress in 1974, the term "commodity

    trading advisor" included any person who provided commodity interest

    trading advice "either directly or through publications or writings."

    \15\ With the subsequent advent of electronic media and the increasing

    use of such media by CTAs, in 1982 Congress amended the CTA definition

    to include any person providing commodity interest trading advice

    "either directly or through publications, writings or electronic

    media" (emphasis supplied).\16\ In turn, the Commission amended the

    definition of the term "commodity trading advisor" in Regulation

    1.3(bb) to conform to the statutory amendment.\17\ CPOs, like CTAs,

    typically solicit customers based on their performance results. The

    Commission accordingly is proposing to amend Regulation 4.41(c)(1) in

    order to clarify that advertisements by "electronic media, or

    otherwise, including information provided via internet or e-mail" are

    within the scope of Regulation 4.41.

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    \15\ Pub. L. 93-463, 88 Stat. 1389, Sec. 202 (Oct. 23, 1974).

    \16\ Pub. L. 947-444, 96 Stat. 2294, Sec. 201 (Jan. 11, 1983).

    \17\ 48 FR 35248 (Aug. 3, 1983).

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    In this regard, the Commission emphasizes that it interprets

    Regulation 4.41 in its current form as applying to the presentation of

    past performance results by CPOs, CTAs, and their principals made

    through electronic media. The Proposal is intended to make this

    interpretation explicit.

    The Commission believes that the Proposal is fully consistent with

    the First Amendment. False, deceptive or misleading commercial speech--

    even of, for example, those CTAs that provide advice on a non-

    personalized basis--is not protected by the First Amendment.\18\

    Moreover, even where commercial speech is only potentially misleading,

    the government can use disclosure requirements to make sure that the

    public is not, in fact, misled.\19\

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    \18\ Indeed, the Commission may constitutionally prohibit the

    dissemination of commercial speech that is "false, deceptive, or

    misleading." Zauderer v. Office of Disciplinary Counsel, 471 U.S.

    626, 638 (1985).

    \19\ See, e.g. Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999)

    (disclosure can be required to cure possibility of misleading public

    that would not just justify prohibition).

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    III. Related Matters

    A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) \20\ requires that agencies,

    in proposing rules, consider the impact of those rules on small

    businesses. The Commission has previously established certain

    definitions of "small entities" to be used by the Commission in

    evaluating the impact of its rules on such entities in accordance with

    the RFA.\21\

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    \20\ 5 U.S.C. 601 et seq.

    \21\ 47 FR 18618 (April 30, 1982).

    ---------------------------------------------------------------------------

    With respect to CTAs, the Commission has previously stated that it

    would evaluate within the context of a particular rule proposal whether

    all or some affected CTAs would be considered to be small entities and,

    if so, the economic impact on them of the proposal.\22\ Moreover, the

    Commission stated that CPOs would be considered small entities if they

    are exempt from registration by virtue of Regulation 4.13(a).\23\ The

    Commission does not believe that the proposed amendments to Regulation

    4.41 would have a significant impact on affected CTAs, CPOs, and their

    principals. This is because the only burden that would be imposed by

    the Proposal would be the obligation to comply with the antifraud

    provisions of Section 4o of the Act

    [[Page 49390]]

    when presenting the past performance of CTAs, CPOs, and their

    principal--whether by way of actual or hypothetical performance or

    through the use of testimonials. Assuming arguendo, however, that

    compliance with Section 4o would constitute a significant burden, the

    burden is neither new nor additional, because the proposed revisions to

    Regulation 4.41 are consistent with the Commission's longstanding

    interpretation of Section 4o as applicable to all advertisements by

    CTAs, CPOs, and their principals, including advertisements that are

    viewed electronically, and that such advertisements must not be false

    or misleading.

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    \22\ Id. at 18620.

    \23\ Id.

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    Accordingly, the Chairman, on behalf of the Commission, certifies

    pursuant to Section 605(b) of the RFA \24\ that the Proposal will not

    have a significant economic impact on a substantial number of small

    entities. However, the Commission invites the public to comment on this

    finding.

    ---------------------------------------------------------------------------

    \24\ 5 U.S.C. 605(b).

    ---------------------------------------------------------------------------

    B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) imposes certain

    requirements on Federal agencies (including the Commission) in

    connection with their conducting or sponsoring any collection of

    information as defined by the PRA. The Proposal does not require a new

    collection of information on the part of any entities. Accordingly, for

    purposes of the PRA, the Commission certifies that the proposed rule

    amendments, if promulgated in final form, would not impose any new

    reporting or recordkeeping requirements.

    C. Cost-Benefit Analysis

    Section 15(a) of the Act \25\ requires the Commission to consider

    the costs and benefits of its action before issuing a new regulation

    under the Act. By its terms, Section 15(a) does not require the

    Commission to quantify the costs and benefits of a new regulation or to

    determine whether the benefits of the proposed regulation outweigh its

    costs. Rather, Section 15(a) simply requires the Commission to

    "consider the costs and benefits" of its action.

    ---------------------------------------------------------------------------

    \25\ 7 U.S.C. 19(a).

    ---------------------------------------------------------------------------

    Section 15(a) further specifies that costs and benefits must be

    evaluated in light of five broad areas of market and public concern:

    protection of market participants and the public; efficiency,

    competitiveness, and financial integrity of futures markets; price

    discovery; sound risk management practices; and other public interest

    considerations. Accordingly, the Commission could in its discretion

    give greater weight to any one of the five enumerated areas and could

    in its discretion determine that, notwithstanding its costs, a

    particular rule was necessary or appropriate to protect the public

    interest or to effectuate any of the provisions or to accomplish any of

    the purposes of the Act.

    The Commission is considering the costs and benefits of this rule

    in light of the specific provisions of Section 15(a) of the Act as

    follows:

    1. Protection of Market Participants and the Public

    Because the Proposal discusses the use of testimonials and the

    placement of the prescribed hypothetical disclaimer, and specifically

    includes advertisement via electronic media by CPOs, CTAs, and their

    principals, the Proposal should enhance the Commission's ability to

    protect market participants and the public.

    2. Efficiency and Competition

    The Proposal should have no effect, from the standpoint of imposing

    costs or creating benefits, on efficiency or competition.

    3. Financial Integrity of Futures Markets and Price Discovery

    The Proposal should have no effect, from the standpoint of imposing

    costs or creating benefits, on the financial integrity or price

    discovery function of the commodity futures and option markets.

    4. Sound Risk Management Practices

    The Proposal should have no effect, from the standpoint of imposing

    costs or creating benefits, on the available range of sound risk

    management alternatives.

    5. Other Public Interest Considerations

    The Proposal should have no effect, from the standpoint of imposing

    costs on, and may create public interest benefits to, consumers as a

    result of their having more honest information.

    After considering these factors, the Commission has determined to

    propose the amendments to Regulation 4.41 discussed above. The

    Commission invites public comment on its application of the cost-

    benefit provision. Commenters also are invited to submit any data that

    they may have quantifying the costs and benefits of the Proposal with

    their comment letters.

    List of Subjects in 17 CFR Part 1

    Advertising, Brokers, Commodity futures, Commodity pool operators,

    Commodity trading advisors, Consumer protection, Reporting and

    recordkeeping requirements.

    For the reasons presented above, the Commission proposes to amend

    17 CFR part 1 as follows:

    PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

    1. The authority citation for part 1 continues to read as follows:

    Authority: 7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h,

    6i, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, 13a,

    13a-1, 16, 16a, 19, 21, 23 and 24, as amended by the Commodity

    Futures Modernization Act of 2000, Appendix E of Pub. L. 106-554,

    114 Stat. 2763 (2000).

    2. Section 4.41 is amended by removing "or" at the end of

    paragraph (a)(1), removing the period and adding a semi-colon and

    "or" at the end of paragraph (a)(2), adding new paragraph (a)(3), and

    revising paragraphs (b)(1)(i), (b)(2) and (c)(1) to read as follows:

    Sec. 4.41 Advertising by commodity pool operators, commodity trading

    advisors, and the principals thereof.

    (a) * * *

    (3) Refers to any testimonial, unless the advertisement or sales

    literature providing the testimonial prominently discloses:

    (i) That the testimonial may not be representative of the

    experience of other clients;

    (ii) That the testimonial is no guarantee of future performance or

    success; and

    (iii) If, more than a nominal sum is paid, the fact that it is a

    paid testimonial.

    (b) * * *

    (1) * * *

    (i) The following statement: "These results are based on

    hypothetical or simulated performance results that have certain

    inherent limitations. Unlike the results shown in an actual performance

    record, these results do not represent actual trading. Also, because

    these trades have not actually been executed, these results may have

    under-or over-compensated for the impact, if any, of certain market

    factors, such as lack of liquidity. Hypothetical or simulated trading

    programs in general are also subject to the fact that they are designed

    with the benefit of hindsight. No representation is being made that any

    account will or is likely to achieve profits or losses similar to these

    being shown"; or

    * * * * *

    (2) If the presentation of such simulated or hypothetical

    performance is other than oral, the prescribed statement must be

    prominently disclosed and in immediate proximity

    [[Page 49391]]

    to the simulated or hypothetical performance being presented.

    (c) * * *

    (1) To any publication, distribution or broadcast of any report,

    letter, circular, memorandum, publication, writing, advertisement or

    other literature or advice, whether by electronic media or otherwise,

    including information provided via internet or e-mail, the texts of

    standardized oral presentations and of radio, television, seminar or

    similar mass media presentations, and

    * * * * *

    Issued in Washington, DC, on August 17, 2006, by the Commission.

    Eileen Donovan.

    Acting Secretary of the Commission.

    [FR Doc. E6-13946 Filed 8-22-06; 8:45 am]

    BILLING CODE 6351-01-P

    Updated August 23, 2006

    Last Updated: June 26, 2007



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