The U.S. Securities and Exchange Commission’s Marketing Rule 206(4)-1 under the Investment Advisers Act of 1940 as amended has now been in effect for several years, yet performance advertising continues to be one of the most frequently cited areas of concern during regulatory examinations. SEC Risk Alerts, enforcement actions, and examination observations demonstrate that many investment advisers continue to struggle with Rule 206(4)-1 compliance including presenting performance information in a manner that fully complies with SEC requirements and expectations.
Category Archives: Advertising
SEC Brings Enforcement Action Against Investment Adviser For Paying Online Content Creators to Solicit Clients
August 27, 2023
Regulatory Alert
Summary
The United States Securities and Exchange Commission (“SEC”) recently announced an enforcement action against and settlement with an investment adviser firm related to solicitation arrangements with online content providers. The investment adviser firm allegedly paid over $8 million to more than 200 social media influencers and online newsletter providers for prospective client referrals without adhering to the required disclosure and documentation under the former Rule 206(4)-3 of the Investment Advisers Act of 1940. The investment adviser firm has agreed to a cease-and-desist order, censure, and a $250,000 civil penalty to settle the charges by the SEC.
New Sample Endorsement Disclosure & Authorization Forms
November 17, 2022
To help registered investment advisers comply with the SEC’s new marketing rule, RIA Compliance Consultants has released two new sample forms: Advertising – Endorser (Unaffiliated) – Disclosure Form & Advertising – Testimonial/Endorsement (No Compensation) Authorization.
Nebraska Proposes Rule Changes that Allow Investment Advisers to Utilize Client Testimonials & IARs to Dual License
October 09, 2021
The Nebraska Department of Banking & Finance recently published proposed revisions to its rules for investment advisers under the Securities Act of Nebraska.
RIA Compliance Consultants recently created a new Sample Form, Advertising – Accessibility – Best Practices Checklist.
On December 22, 2020, the U.S. Securities and Exchange Commission (“SEC”) announced it has adopted amendments (also known as the “marketing rule”) to its rules under the Investment Advisers Act of 1940 (“Advisers Act”) that govern advertising and cash solicitation activities by investment advisers registered with the SEC. Unlike the proposed amendments, the SEC’s finalized marketing rule addresses both advertising and soliciting under a single rule. Click here to read the SEC’s final rule release for this new marketing rule for investment advisers.
The U.S. Securities and Exchange Commission (SEC) recently fined thirteen investment adviser firms for promoting performance information for a third party investment product that the SEC alleges the investment adviser firms knew, or should have known, was false. At the heart of the enforcement actions were claims made by a third party money manager who purported to have a time tested investment program that consistently and greatly exceeded standard market returns. The SEC alleged that in fact, the mathematical algorithm underlying the investment program had only been in existence a short period of time and the third party money manager was using selective, back-tested (“hypothetical”) data to promote its new program. Compounding the problem, the investment performance calculations contained an error that further inflated the product’s artificial performance statistics. Despite being notified of the calculation error and knowing the algorithm’s investment performance data was not from actual accounts, the SEC alleged that third party money manager claimed in marketing materials given to investment adviser firms and investment adviser firm clients that the data was genuine. Click here to read the SEC enforcement action on the third party money manager.
Websites a Common Place for Advertising Deficiencies
June 02, 2015
Nearly all investment adviser firms have at least one if not more websites and their prevalence continues to grow, but have you reviewed your investment adviser firm’s website recently? Websites are a great way to advertise your firm’s business and attract new clients, but they can also be a treasure trove for securities regulators.
Under Rule 206(4)-1(a)(1) of the Investment Advisers Act of 1940 (Advisers Act), an investment adviser is prohibited from publishing, circulating, or distributing any advertisement that refers, directly or indirectly, to any testimonial of any kind concerning the investment adviser or concerning any advice, analysis, report or other service rendered by the investment adviser. With today’s wide spread use of social media, there has been a lot of concern among investment advisers regarding what would constitute a testimonial when using social media. In March 2014, the U.S. Securities and Exchange Commission (SEC), Division of Investment Management, issued a Guidance Update to provide some guidance on the testimonial rule and social media. Through this guidance, the SEC Division of Investment Management is seeking “to clarify application of the testimonial rule as it relates to the dissemination of genuine third-party commentary that could be useful to consumers.”
