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How to Navigate the Testimonial Rule in the Age of Social Media: Handling Clients’ Online Reviews

The SEC recently settled five separate proceedings against registered investment advisers, investment adviser representatives and a marketing consultant for violating Rule 206(4)-1(a)(1) (the Testimonial Rule) under the Investment Advisers Act of 1940 through their use of social media and the internet. The Commission has focused on the misuse of testimonials for some time, including through the “touting initiative” in which the SEC’s Office of Compliance Inspections and Examinations (OCIE) conducted focused reviews of advisers’ promotion of industry awards, testimonials, professional certifications and ranking lists. Among the deficiencies that OCIE staff found during that initiative was the use of client statements on social media and websites. See “HFLR Program Parses OCIE’s Recent Advertising Risk Alert: Misleading Claims of GIPS Compliance, Past Specific Investment Recommendations and Results of SEC’s Touting Initiative (Part Two of Two)” (Jan. 11, 2018). These enforcement actions serve as a warning to investment advisers that the SEC continues to scrutinize their advertising practices, including the use of testimonials. This article examines the mistakes made by the respondents in these cases, discusses the key takeaways elucidated by an industry expert and considers the future of the Testimonial Rule. See our three-part advertising compliance series: “Ten Best Practices for a Fund Manager to Streamline Its Compliance Review” (Sep. 14, 2017); “Five High-Risk Areas for a Fund Manager to Focus on When Reviewing Marketing Materials” (Sep. 21, 2017); and “Six Methods for a Fund Manager to Test Its Advertising Review Procedures” (Sep. 28, 2017).

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