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; 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 outlines the key takeaways from the presentation. See “ACA Compliance Testing Survey: New Marketing Rule Is a Hot Topic (Part Two of Two)” (Oct. 21, 2021); as well as our two-part series on the Rule: “Key Takeaways for Private Fund Managers” (Mar. 18, 2021); and “Next Steps for Legal and Compliance” (Mar. 25, 2021).

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