S5:E14 | SEC Marketing Rule FAQs | Compliance In Context

Welcome back to the Compliance In Context podcast! On today’s show, we will be taking an in-depth look at one of talked compliance items from the first half of the year, the two new recently published FAQs to the SEC Marketing Rule.  To help guide us through the conversation, we welcome in Issa Hanna from Eversheds Sutherland and Ted McKutcheon from Securities Law Counsel.  In our Headlines section, we review a recent denial from the SEC of an attempt by 16 firms to revise settlements they made with the commission regarding their supervision of employees’ off-channel communications, and finally, we close up today with another installment of What’s On My Mind, where we review a quote from a famous chef and author to help provide us in the compliance space with a little bit of satisfaction and peace of mind at this time of year.

Show

Headlines

• SEC denied an attempt by 16 firms to revise settlements they made with the commission regarding their supervision of employees’ off-channel communications

Interview with Issa Hanna and Ted McKutcheon

• Background regarding SEC Marketing Rule FAQs
• Practical challenges related to performance marketing and demonstrating gross versus net
• What problems did firms face with implementation?
• What solutions do the new Marketing Rule FAQs provide?
• Recap of the new Marketing Rule FAQs
• What specific guidance can firms takeaway from the footnotes to the Marketing Rule FAQs?
• What is the broader impact of the new FAQs related to performance marketing?
• What strategic decisions will firms need to make before utilizing the benefits of the new FAQs?

What’s On My Mind

• Reviewing a quote from Anthony Bourdain and the satisfaction of completing another regulatory filing season.

Quotes

13:21 – “Folks will recall that the Marketing Rule was officially adopted at the very tail end of the Clayton-era SEC…There were lots of issues that were debated from an interpretive perspective under the rule that fit there. And you had this new category of performance that the SEC seemed to have just made up out of thin air called (so-called) extracted performance. And folks were, kind of, struggling to, kind of, figure out how existing practices in the industry, particularly the private fund industry, would fit into that category of performance.” – Issa Hanna 

40:53 – “Remember that, sure, we're getting some relief with respect to the net of fees requirement here, and certain circumstances. It doesn't necessarily get you an out from the Marketing Rule altogether. That's a really important thing to remember is that if the extracted performance that you're dealing with is still an offer of your advisory services or an offer of a private fund that you're advising, you know, that's still an advertisement subject to other applicable requirements of the rule, including the general prohibitions of the rule. So, you know, you do have to keep that in mind.” – Issa Hanna 

44:45 – “The part of the approach that's deemed okay with respect to the principle of making fair and balanced presentations is this layered disclosure or layered approach to disclosure which is consistent with, you know, something like putting a note referring the consumer of the advertisement, and in this case, the net gross presentation of the gross presentation to disclosure and net presentation located in another part of the document.” – Ted McCutcheon