The expression, “the truth will out,” appears to have originated with Shakespeare and is being used more frequently by commentators on news programs. The expression has come to mean that the facts of a situation will inevitably become known or discovered. If Registered Investment Advisers (“RIAs”) use false or misleading content in their advertisements, the truth will out when examiners conduct examinations of their firms.
Because when it comes to RIAs, Rule 206(4)-1 under the Investment Advisers Act of 1940, better known as the Advertising Rule, prohibits advertisements for SEC-registered Investment Advisers that are false or misleading in any way. Advertising regulations governing state-registered Investment Advisers are often modeled after Rule 206(4)-1 as well. As the very essence of a fiduciary duty for investment advisers starts with the principle to say (only) what you’ll really do… and then be prepared and capable of actually doing (and proving that you can do) what you said.
In this guest post, Les Abromovitz, an attorney with deep expertise and experience with the RIA Advertising Rule, discusses what RIAs should be doing and thinking about when it comes to marketing compliance. As a starting point, RIAs should avoid promissory language, guarantees, and statements that cannot be proven (i.e., only statements that can be supported with objective evidence should be used). In addition, RIAs should avoid marketing hype, which may be tempting to differentiate in an increasingly competitive environment… even though “hype” is inherently misleading. RIAs must also satisfy strict compliance requirements if they refer to past specific investment recommendations in an advertisement, and especially when they advertise their performance returns.
Unfortunately, though, even with good faith attempts to do things right, many Investment Advisers inadvertently use advertisements that are false or misleading as they attempt to woo clients. In many instances, advisers may have no idea that the content (or particular key words) they are using would be deemed “misleading” by regulators. And although securities regulators are unlikely to bring a full-scale enforcement action against an RIA because of these innocent mistakes, they can give examiners a bad impression of the firm’s compliance program and suggest to examiners that they should dig deeper in reviewing the firm (to ensure that the misleading advertising smoke isn’t a sign of a bigger compliance fire to address). In addition, after completion of an examination, examiners take note of these errors, as well as other compliance mistakes, in a deficiency letter sent to the firm. The RIA must then respond to the letter and correct (or dispute) the examiners’ findings. If an RIA fails to address those deficiencies, the SEC might then bring an enforcement action against the firm.
To further address areas of potential examiner concern when reviewing RIAs, the SEC periodically publishes Risk Alerts to highlight compliance problems identified by its Office of Compliance Inspections and Examinations (“OCIE”). On September 14, 2017, OCIE released a Risk Alert, which identified the most frequent Advertising Rule compliance issues uncovered by examiners during their examinations. Advisers would be wise to familiarize themselves with the deficiencies identified by examiners and should make sure their compliance manuals and processes are designed to prevent the same mistakes.