In the fifth episode of the master class series on the SEC Marketing Rule, you’ll hear from host Patrick D. Hayes along with Jaqueline Hummel, Anthony Dillingham, and Matt Shepherd with ACA, as they delve into the nuances and traps for the weary when utilizing testimonials, endorsements and third-party ratings. While the new rule is a potential game-changer for firms, actual implementation comes with caveats and compliance burdens.
Season 3, Episode 10 Topics:
Interview with Jacqueline Hummel, Anthony Dillingham, Matt Shepherd
7:11: Review of the industry (social media, adoption and entanglement, live presentation/speeches, inadvertent endorsements).
45:36: Building the right disclosures (disclosure of compensation and conflicts of interest)
1:01:40: Third Party Ratings
1:08:20: How will this area be reviewed by the Division of Examinations?
07:33 - “The prior advertising rule contained an outright prohibition against the inclusion of testimonials and over time that was supplemented by a series of no-action letters where essentially the industry was writing to the SCC and saying, ‘If we do this, is this a testimonial?’ And they would say, ‘Well, maybe but not if you do it this way.’” - Matt
10:04 - “The definition of endorsement and testimonial… They’re not the same but they are very, very similar. So, just for the sake of keeping the conversation simple, I’m going to say that they’re basically the same and what’s different between the two is the identity of the person who makes that statement.” - Matt
18:48 - “You still have to remember that no matter what you put out there you are still subject to the fraud provision of the Advisers Act.” - Jacqui
31.52 – “The degree of adoption and entanglement, whether a third-party communication is even going to be deemed an advertisement of the adviser at all, is going to be dependent on the extent the adviser has adopted or entangled itself.” – Patrick
49:57 – “There is still going to be a dichotomy between state registered investment advisers and federally registered investment advisers. So, while many states will follow the SEC’s lead, there are still exceptions.” – Jacqui
1:03:32 - “It is always best practice to disclose whatever the reader, or listener, or the watcher of that marketing material would want to know. What does this rating mean in context and how did you get it?”– Jacqui
About the Securities Compliance Podcast: Compliance in Context
Introducing the Securities Compliance Podcast: Compliance in Context presented by Calfee, Halter & Griswold and the National Society of Compliance Professionals and hosted by Patrick D. Hayes, Partner and leader of Calfee's Investment Management practice.
Designed as a personal master class for the securities legal and compliance professional, this podcast embodies Patrick’s passion to help you put Compliance In Context™ by combining the technical expertise of industry thought leaders and innovators with the practical experience of doers and key decision makers.
Listeners will find the podcast on Apple Podcast, Google Podcast, Spotify and Stitcher.
The opinions expressed by guest speakers and panelists during Securities Compliance Podcasts may not necessarily reflect the viewpoints of the attorneys and professionals of Calfee, Halter & Griswold LLP or its subsidiaries or affiliates. Calfee’s educational content is intended to inform and educate readers about legal developments and is not intended as legal advice for any specific individual or specific situation. Please consult with your attorney regarding any legal questions you may have. With regard to all content including case studies or descriptions, past outcomes do not predict future results.
Susan M. Kurz
Chief Marketing & Client Development Officer