Co-authored by Gregory E. Xethalis, Kathleen H. Moriarty and Marybeth Sorady.

On April 22, the Financial Industry Regulatory Authority, Inc. issued to ALPS Distributors, Inc. interpretive guidance with respect to FINRA Rule 2210(d) and the use of hypothetical back tested index performance information, which FINRA refers to as pre-inception index performance (PIP) data. While the FINRA staff emphasized that PIP data cannot be used in communications with retail investors under FINRA Rule 2210(d), distribution to institutional investors of marketing materials including PIP data would not be objectionable to FINRA under specified conditions and so long as the PIP data met certain criteria. The interpretive guidance applies only to rules-based indices used by passively managed exchange traded products, and the conditions of use and criteria for data are set forth in the letter.

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