On December 22nd, 2020, the SEC finalized the Modernized Marketing Rule, culminating a monumental shift in the way they will view advertisements and solicitations by investment advisers going forward. This landmark update – referred to simply as the “Marketing Rule” aims to create a more evergreen, consolidated set of guidelines for anyone subject to the SEC’s jurisdiction.  

The Marketing Rule combines the Advertising Rule and the Solicitation Rule, which have been in existence since 1961 and 1979, respectively.  Since then, most of the updates to the interpretation of these rules have been made through “No-Action” letters. In finalizing the Marketing Rule, the SEC has set up a framework by which it will mostly supersede preceding guidelines to create a more comprehensive rule that includes updates to many of the interpretations to align with more modern, digital practices.

The new rule – aimed at simplifying and harmonizing guidelines – provides a unified solicitation and advertisement rule under a single regulatory framework. The finalized Marketing rule is expansive, but we’ve distilled it down to four of the most salient updates for programs and the potential implications for client engagement going forward

• The SEC aims to offer a clearer, and wider, definition of what constitutes an “advertisement,” thus allowing for a better understanding of what the rule covers.  The rule also includes exceptions for certain types of communications, which provides some relief for compliance professionals. This means more communications will fall under the definition of “advertisement”, and firms will need to adjust the way they supervise to accommodate a more nimble, yet broader approach.
• Testimonials and endorsements will be allowed subject to certain conditions and disclosure requirements. While this is a step in the right direction, the restrictions placed around how testimonials and endorsements are presented will present challenges in implementation. For many firms, this is a long awaited development, but ensuring clear/prominent placement of the disclosures will probably be problematic.
• The revised rule provides guidance on performance presentations, specifically updates around the use of gross/net of fees performance and “non-standard” performance (related, extracted, hypothetical, and predecessor performance). Most firms have historically stayed away from posting this type of performance in a public-facing setting, but the new rule provides a path forward for those that stay within the (considerable) boundaries.  
• Lastly, the rule updates and modernizes record keeping mandates and Form ADV requirements to provide clients with better access to an advisor’s data. This will mean an Adviser will be subject to more intelligent broad-reaching scrutiny during SEC audits, further underscoring the need to prioritize their adherence to the applicable rules and regulations.

This is an important and much-needed step forward that will modernize how the financial industry approaches its marketing activities. While the SEC has provided firms ample runway to conform, it’s critical that firms start to assess the implications now to stay ahead of the curve. We can help – Hearsay’s Compliance Advisory Practice helps firms deliver against regulatory changes like the Marketing Rule. Our experienced team of compliance practitioners can help evaluate the rule, consult on the path forward and develop plans to optimize an approach.

Learn more about our Hearsay Compliance Advisory Services and stay tuned for more insights as we dig deeper into the SEC’s new Marketing Rule.