MAY 2015

Chad Hartwick, Director of Post-Registration Compliance, Lexington Compliance

Mike Pagani, Sr. Director of Product Marketing, Smarsh

Regulatory Landscape:Recordkeeping, Advertising, and Social Media

www.smarsh.com www.riainabox.com

Disclosures

• Lexington Compliance and RIA in a Box are not law firms, CPA firms, or registered investment advisory firms.

• None of the information presented, advice given, or services rendered should be considered legal, tax, accounting, or investment advice.

• If you require the services of an attorney, we recommend that you seek out an independent attorney and verify their securities law experience.

What is an Advertisement?

SEC Rule 206(4)-1(b) defines an advertisement as any notice, circular, letter or other written communication addressed to more than one person, or any notice or other announcement in any publication or by radio or

television, which offers (1) any analysis, report, or publication concerning securities, or which is to be used in making any determination as to when to buy or sell any security, or which security to buy or sell or (2) any

graph chart or other device to be used in making any determination as to when to buy or sell any security, or which security to buy or sell, or (3) any other investment advisory services with regard to securities.

This includes Social Media!!!

Advertising Examples• Television / Radio• Form letter• Yellow page ad• Billboard sign• Seminar• Newsletters• Brochures / pamphlets• Newspaper ad• Electronic forms / social media

• Websites• Facebook• LinkedIn• Twitter• Etc…….

** Not an all inclusive list **

Advertising Requirements• Record keeping

• SEC Rule 204-2• 5 years• Electronic storage permitted (204-2(g))

• Content standards – 5 tenets• Policies and procedures

• Procedures to keep records• Procedures to review and approve content• Procedures specifically addressing the use of Social Media

5 Tenets of AdvertisingIt shall constitute a fraudulent, deceptive, or manipulative act, practice, or course of business within the meaning of section 206(4) of the Act for any investment adviser registered or required to be registered, directly or indirectly, to publish, circulate, or distribute any advertisement:• Which refers directly or indirectly, to any testimonial• Which refers directly or indirectly, to past specific recommendations of such investment

adviser which were or would have been profitable to any person. Provided, however…….• Which represents, directly or indirectly, that any graph, chart, formula or other device can be

used in making investment decisions without specific disclosures.• Which contains any statement to the effect that certain adviser services are free, unless true.• Which contains any untrue statements of material fact or which are otherwise false or

misleading.

Regulator Guidance on Social Media

• SEC National Examination Risk Alert – OCIE – Investment Adviser Use of Social Media – Volume II, Issues 1 – January 4, 2012

• SEC Division of Investment Management – IM Guidance Update – Guidance on the Testimonial Rule and Social Media – March 2014

• Commonwealth of Massachusetts – Securities Division – Guidance on the Use of Social Media by Investment Advisers. – January 18, 2012

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• Use of Social Media communications is increasing rapidly and growing in diversity too

• Archiving technology vendors have to keep pace with Social Media expansion and constant innovation

• What to look for when selecting a solution – in the technology itself and from the company standing behind it

Where do we go from here?

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Trends in Social Media CommsYOY Comparisons:

• Overall volume is up

• Diversity is expanding, notice Vine is new

• Email volume % is down

• Twitter, WordPress and Snapchat are way up

• Can you imagine the 2015 version of this?

2013

2014

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Impact on Archiving Technology

• Architecture is STILL typically e-mail centric• Social Media communications content is different

and requires specialized treatment• The only standard is there isn’t one – each type has

its own unique attributes and nuances

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Key Archiving Solution Components

• Silos are bad – use ONE integrated PLATFORM for archiving all your digital communications and not just social media; API for integration as well

• Retention of original message format to preserve proper context for search/review and to maintain proper forensic handling of electronic evidence

• Should offer BOTH policy-driven supervision AND e-Discovery workflows• Intuitive and efficient user and administration interfaces and processes• An experienced, knowledgeable and reliable vendor for guidance who also offers added

value professional services when needed

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Case Study• Heron Financial Group is a New

York-based RIA effectively using social media (LinkedIn, Facebook, Twitter, YouTube) to enhance marketing efforts

• SEC mandates RIAs must retain and review business records – including social media.

• Heron relies on Smarsh technology for efficient compliance workflows

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Summary/Final Thoughts

• Social Media is playing an increasingly important role in advertising for today’s RIA

• Balancing act: get the benefits of Social Media while staying compliant in the process

• Archiving technology solutions exist and are successfully being used in the real world

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Thank you… Questions???