Navigating Use of Social Media Under the SEC’s New Marketing Rule

Use of social media by investment advisers has long been a minefield because of the prohibition on the use of “testimonials” by the SEC’s decades-old advertising rule. In December 2020, the SEC adopted a revamped marketing regime – the Marketing Rule (Rule) – that, among other things, eliminates the prohibition on testimonials and addresses how advisers may permissibly use social media. A recent Alternative Investment Management Association (AIMA) program examined how the new Rule applies to social media usage, including when social media activity is covered by the Rule; treatment of third-party content; employee social media use; issues unique to social media; impact on unregistered advisers and dual-registrants; recordkeeping; and preparing for the compliance deadline. Suzan Rose, senior adviser to AIMA, moderated the discussion, which featured Juliet Mun Han, Senior Counsel in the Investment Adviser Regulation Office of the SEC Division of Investment Management; Michael W. McGrath, partner at K&L Gates; and Aaron J. Russ, associate at K&L Gates and former attorney in the SEC Division of Investment Management. Han and Russ were both on the SEC team that worked on the Rule. This article reviews the key takeaways from the presentation. See our two-part series on the impact of the Rule: “What Constitutes an ‘Advertisement’ and How to Adhere to Principles‑Based Standards” (Mar. 23, 2021); and “Disclosures in Non‑Standard Calculations and Requirements When Using Promoters” (Mar. 30, 2021).

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