Helping Investment Advisers Capitalize On Opportunities
While Complying With The Marketing Rule
Registered Investment Advisers (RIAs) have an immense responsibility to their clients and operate in a highly regulated space. Historically, the strategies RIAs could employ to drive new client growth were subject to strict limitations, including as per the Investment Advisers Act of 1940 (the “Advisers Act”). While there are still limitations, the Securities and Exchange Commission’sCommission’s (SEC) “new” Marketing Rule (amendments to Rule 206(4)-1) changed how RIAs can market their services significantly. Specifically, the Marketing Rule supersedes and combines the previously separate “Advertising Rule” (Rule 206(4)-1) and the “Solicitation Rule” (Rule 206(4)-3). The Marketing Rule now allows RIAs to leverage previously prohibited yet otherwise enormously effective and efficient marketing strategies. One of the most notable changes is that RIAs can now utilize testimonials (a favorable statement by a client) and endorsements (a favorable statement by a non-client) in their advertising activities. The allowance of testimonials and endorsements translates into RIAs being able to use otherwise attractive marketing strategies, particularly various kinds of affiliate marketing.
While the Marketing Rule has made new channels for growth filled with potential possible, RIAs must ensure strict compliance when undertaking such activities.
Subject to limited exceptions, some of the critical components for compliance under the Marketing Rule are as follows:
- Disclosure Required – Advertisements must clearly and prominently disclose whether the person giving the testimonial or endorsement (the “promoter”) is a client, whether the promoter is compensated and the terms of such compensation, and any material conflicts of interest.
- Written Agreement – An RIA that employs testimonials or endorsements must enter into a written agreement with such promoters. The agreement must describe the scope of the agreed-upon advertising activities and the terms of compensation, among other terms.
- Oversight to Ensure Compliance – RIAs must ensure promoters comply with the Marketing Rule and implement a monitoring program.
- Anti-Fraud Provisions – Advertisements are subject to the general Anti-Fraud Provision of the Investment Advisers Act of 1940 and, for example, prohibit untrue statements of a material fact, the omission of material facts, unsubstantiated claims, and otherwise materially misleading claims.
- Disqualification – The Marketing Rule, subject to certain exceptions, disqualifies “bad actors” from acting as promoters.
- Books & Records – RIAs must keep records of all advertisements, including as it relates to required disclosures.
- Amendments to Form ADV – The SEC adopted amendments that add a new subsection to Form ADV. The new subsection requires disclosure about an investment adviser’s advertisements, including but not limited to whether they have paid any cash or non-cash compensation for endorsements or testimonials.
RICHT’s key practice area of marketing law allows us to help clients leverage effective marketing strategies to capitalize on growth potential while maintaining compliance in heavily regulated sectors, such as with investment advisory.
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