S4:E11 | Marketing and Advertising in SEC Exams – Lessons From The Front Lines | Compliance In Context

Welcome back to the Compliance in Context Podcast! On today’s show, we feature a Lessons From The Front Lines episode we welcome back to the show a very special guest, namely SEC Division of Examinations Senior Counsel Christopher Mulligan to review how the Division of Exams is approaching the SEC Marketing Rule one year after the compliance date, best practices the SEC has seen firms implement, and some of the challenges or issues examiners have seen firms dealing with as it relates to the Marketing Rule.

Show

Interview with Christopher Mulligan

• How is the Division of Examinations approaching the new SEC Marketing Rule one year after the compliance date?
• What are some of the best practices you’ve seen successful firms implement into their compliance programs?
• How can firms best substantiate the statements and claims they make in their marketing?
• What are some of the challenges you’ve seen firms struggle with during examinations of the new Marketing Rule?
• What are some of the issues you’re seeing with regard to testimonials and endorsements?
• What are some of the issues you’re seeing with regard to performance marketing?
• How can firms avoid the traps associated with marketing templates and stale information?
• How do you see SEC examinations continuing to evolve in the marketing and advertising space?

Quotes

09:11 – “So in exams, what we have tried to do is train our staff and be as prepared as possible. We know registrants are doing that, right? So we want to work as hard as they are in terms of understanding the new rule and being able to analyze the compliance with it. But we also want to communicate as clearly as possible what we're looking for and what we're analyzing to help registrants who are trying their best to comply with the new rule to understand how, what we're going to be looking for so they can spend the time to be prepared.” – Christopher Mulligan

21:17 – “We've also seen examples of policies that just weren't tailored. And this is where off the shelf can be very dangerous. So policies and procedures that either reference activities that they don't do and have no intention of doing or worse, they don't address testimonials or endorsements even in their engaged in those activities. Or they share on top in the policy procedure, they're still talking about the Cash Solicitation Rule, and they haven't been replaced with the endorsement and testimonial section.” – Christopher Mulligan

31:03 – “I don't want to be scary, but we have seen deficiencies across most of the elements of the new marketing rule, while also seeing great work. So I hope that this is balanced and that this is motivation to make sure you don't have any of these issues, but also for those advisors that are, that have done a great job, to keep up.” – Christopher Mulligan

32:15 – “People will put together templates or have a stable of pre-approved materials and stuff like that. That's great. That's a good thing that you can have pre-approved materials, but the one thing you've got to be conscious of and one of the things you talked about is don't just let it sit there and get stale and grow moss on it over time. You've got to go back and look at that because sometimes some of the services that are provided in that pre-approved template or those other types of offerings, those persons may no longer be at the firm.” – Patrick Hayes