In the second episode of the new master class series on the SEC Marketing Rule, host Patrick D. Hayes talks with Carlo di Florio of ACA Group along with industry panelists Issa Hanna, Partner with Eversheds Sutherland, Amber Allen, VP and General Counsel with Fairview Investment Services, and Chas Spiros, Principal Consultant with the ACA Group. Together, they will provide additional insights on the new rule, including misconceptions, key definitions, timelines, ADV changes, and key features. They also cover tricky legal aspects like promoter vs. solicitor and the withdrawal of no-action letters.
Season 3, Episode 7 Topics:
Interview with Issa Hanna, Amber Allen, and Chas Spiros
2:30: Overview of the rule and additional insights
8:30: Practical application of the rule: What is and isn’t an advertisement?
14:17: Prohibitions: What will be prohibited under the new rule?
20:30: Solicitors and Promoters: How does solicitation fit within the framework?
35:25: Performance: What the requirements that apply to performance?
53:45: Form ADV and Books and Records: Are there changes to other rules?
5:30 – “They made the rule more evergreen so it could withstand the test of time; and to the extent that mediums of communication change overtime … the rule is equipped to handle that.” - Issa
10:00 – “What I think firms will have to get used to and what is new are the compensated testimonials, and endorsements, and third-party ratings. Firms are going to have to have a mechanism for reviewing this material and memorializing it from a books and records perspective which will be really critical.” – Chas
15:28 – “Instead, firms should use a layered disclosure approach. If you’re going to highlight a benefit of your advisory services, for example, you should also be talking about the material risks that are associated with that benefit. And the risks should be discussed within the “four corners” of the ad.”- Amber
17:09 – “If you’re trying to rely on something being an opinion, you want to make sure that your advertising piece is couching that statement like “in our BU” or “we believe.”” – Amber
25: 33 – “When it comes to testimonials and endorsements, just because something falls within the definition of a testimonial or endorsement doesn’t necessarily make it a prong 1 or prong 2 endorsement under the rule. It has to be compensated, adopted, or entangled by the advisor. There has to be one of those things going on before the endorsement or testimonial becomes an advertisement under the rule and the requirements of the rule kick in.” – Issa
48:53 – “One important component of the application of the new rule is going to be the training component. So with all of these changes with how firms are presenting performance it’s really important to make sure your marketing team is trained well in advance of that November 4 deadline.” - Amber
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.
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