The SEC fined and censured a now-defunct robo-adviser for disseminating misleading marketing information that purported to show outperformance versus competitors. The SEC asserts that the respondent understated the performance of competitor robo-advisers by using only publicly available information and failing to account for actual weightings. The SEC faults the firm for publishing information without the documents or data to support its performance claims. The SEC also maintains that the firm inflated its own performance by cherry-picking certain clients and time periods. The SEC faults the firm for failing to have policies and procedures requiring the review of marketing materials in part because the Chief Compliance Officer was not aware that social media posts constituted marketing materials under the Advisers Act.
We hate (HATE!) the concept of using a competitor’s name and/or information in marketing and advertising. You are inviting your competitor to prove you wrong and thereby call you out on a regulatory violation.
The BDC should be thankful it didn’t get fined. Although the SEC alleged facts suggesting that the firm should have known about the mischaracterization, an allegation that the firm intentionally juiced reported returns would have resulted in much more significant penalties.
The SEC fined a large asset manager $1.9 Million for failing to fully disclose that it used hypothetical back-tested performance data in advertisements. The SEC asserts that the respondent claimed that it could prove back to 1995 that its stock strategy combining fundamental and quantitative research outperformed either approach alone. Although the firm labeled such research as “hypothetical,” the SEC faults the firm for failing to disclose that its research was based on back-tested quantitative ratings for a time period before it generated its own quantitative models or research. Using the longer period helped boost the claimed outperformance. The outperformance data was used in marketing to institutional investors, RFP responses, and a white paper. The SEC also criticizes the compliance program because compliance personnel that reviewed the materials were not informed that the materials included back-tested data.
OUR TAKE: Do not market hypothetical, backtested performance. No amount of disclosure can ever insulate you from the SEC’s retrospective criticisms and analysis that you cherry-picked time periods or data. Also, compli-pros should note that marketing materials delivered solely to institutional investors are subject to the same rules as more widely-distributed marketing materials (with a few exceptions such as allowing presentation of gross performance together with net performance).
OUR TAKE: The lesson here for fund managers is to avoid forward-looking or target performance projections. If the rosy predictions ultimately fall short, the SEC will retrospectively review all internal communications and activities for any information that might have suggested lower numbers. We recommend discussing performance through the lens of the rear-view mirror rather than the windshield.
The SEC has proposed a new rule that would allow third party broker-dealers to publish research reports about registered investment companies without having to comply with current performance presentation requirements. Proposed Rule 139b would allow a broker-dealer that is not affiliated with the fund’s adviser to publish research reports that meet certain presentation requirements even where the broker-dealer participates in the offering. A similar safe harbor already exists for other issuers. The SEC seeks comment about whether performance information should be required to comply with Rule 482’s performance presentation requirements currently applicable to fund advertising.
OUR TAKE: We would go a step further and rewrite Rule 482 to allow more flexibility for all fund materials. Then, the SEC would not have to wrestle with whether to allow different types of fund reports depending on the preparer, which could result in more confusion.
The staff of the Division of Investment Management has granted no action relief to allow a merged subsidiary to continue to use its performance track record. The SEC noted that the internal reorganization described would result in a newly-created division utilizing the same investment personnel and processes. The applicant, which merged the former separate entity into another investment adviser subsidiary, distinguished the reorganization from the Great Lakes no action letter, where the SEC came to a different conclusion because the new investment committee had personnel changes.
OUR TAKE: This letter will help investment adviser roll-ups by private equity firms and other strategic buyers by allowing internal corporate structuring freedom without fear of losing performance track records.
The manager of a large bond ETF agreed to pay nearly $20 Million, including an $18.3 Million penalty, for mis-pricing securities and presenting an incorrect NAV to the Board, investors, and prospects. The SEC charges that the firm inflated reported performance by purchasing odd lot non-agency MBS at a discount but using the higher round lot prices for valuation purposes. The SEC asserts that several people knew about the strategy but failed to ensure that the firm accurately priced the securities. The SEC faults the firm for making misrepresentations to the Board as well as in shareholder reports and marketing materials. In addition to disgorgement and penalties, the respondent agreed to retain an independent compliance consultant. The SEC’s Enforcement Director admonished, “Investment advisers must accurately describe the significant sources of performance and the strategies being used.”
OUR TAKE: When performance looks too good to be true, it probably is. Outperformance in and of itself is a compliance red flag that should draw increased scrutiny.