Category: Social Networking and Web 2.0

Mutual Fund Advertisements and Social Media

If you want to have a good fishing, go where the fish are

Much has been made about FINRA’s Regulatory Notice 10-06 and how that will affect the social media use by registered representatives. Looking beyond the broker/dealers, I thought it would be interesting to see what mutual fund companies are doing with social media. I’ve started seeing some mutual fund companies starting to dip their toes into web 2.0.

Key Regulations Governing Advertising of Mutual Funds

Mutual funds are highly regulated under the Investment Company Act and the Securities Act. The interests in the funds themselves are securities and are governed by the Securities Act. As a security, that means under Section 5.(b)2 of the Securities Act you can only use a prospectus to advertise it.

Under Rule 482, the SEC allows mutual funds some additional flexibility is advertising their products. If an advertisement meets the disclosure requirements of the rule, then the advertisement will be deemed a “prospectus.” (Which means you won’t be illegally selling securities.)

Required Disclosure under Rule 482

There is long list of requirements in the advertisement. Here are just some of them:

  • Point out that investors need to consider the investment objectives, risks, and charges and expenses of the investment company carefully before investing.
  • Explains that the prospectus and, if available, the summary prospectus contain this and other information.
    identifies a source from which an investor may obtain a prospectus and, if available, a summary prospectus;
  • You should read the prospectus carefully before investing.
  • Advertisements that includes performance data have to point out that past performance does not guarantee future results (along with extensive limitations on how you can disclose performance)
  • Money market funds must point that they are not federally insured and you can lose money. (Hello Reserve Fund!)
  • Disclosure statements can’t be in fine print

Filings

Advertisements then need to be filed with the SEC under Rule 497 or with FINRA. (Most do the FINRA filing.) You have to file the advertisement with  FINRA within 10 days of first use or publication [FINRA Rule 2210(c)].

How can you do all of this with web 2.0?

You can’t.

One key aspect of web 2.0 is that it allows anyone to be a publisher. But now you’re a publisher without any training on how to be a publisher. In the case of mutual fund companies, publishing will have to go through a long process of review and approval before content can be published. Failure to comply has serious consequences.

That doesn’t mean that mutual fund companies cannot use social media. It just means they can only use is it certain ways.

Syndicate Content

If you’ve gone through the trouble and expense of creating compliant content, you should make it available in as many ways as possible. You obviously can’t push all of the required disclosures through the 140 characters of Twitter. But you can send links back to your website where you can make all of the disclosures. If you have video, you can publish the video on Facebook and YouTube.

If you want to have a good day fishing, you need to go where the fish are. (See the picture above.) Push your content to potential customers in the places where they are. Some of them (many of them?) may be spending time on Web 2.0 sites.

Examples

Sources:

Photo © Adrian van Leen for openphoto.net CC:PublicDomain

Bentley CS 299

I spent some time this afternoon with Mark Frydenberg‘s class at Bentley University: CS 299 Web 2.0 – Technology, Strategy, and Community.

I talked about my perspective on Web 2.0, trying to show how 2.0 tools can be used to help you organize the information you need to do your job better and develop yourself professionally. My take on web 2.0 tools is that they are great for personal knowledge management.

Web 2.0 has some obvious uses for marketing. But that’s like saying you watch television for the ads.

My slide deck is embedded below.

I used Google Docs to create the presentation. It falls far short of PowerPoint for the way I create my presentations. On the positive side, I could access the slide deck from any computer and make an edit when I had an idea.

Updates:

Implementing Compliance Practices for Social Media

I was in the audience for FINRA’s latest educational Program: Implementing Compliance Practices for Social Media.

This program addressed implementation of new guidance that FINRA recently issued in , concerning social media.

Introduction

Tom Pappas

FINRA does not endorse any particular practice and each firm will have to do things differently. The views in this webinar will not provide a safe harbor.

Summary of FINRA Regulatory Notice 10-06, Guidance on Blogs and Social Networking Web Sites

Joseph Savage

addresses five different areas:

Recording-Keeping. You need to keep copies of the information you publish, regardless of the form. FINRA is aware that it’s not easy to capture this information when using third-party sites like Facebook. (Tough. Deal with it). You can file screenshots with FINRA.

Suitability responsibilities (Notice to Members 01-23). You are better off not recommending any specific investments.

Types of interactive electronic forums. Generally, postings will be considered advertisement, but interactive postings are a public appearance (so you do not need principal approval). They felt that Twitter posts and Facebook updates would be interactive electronic forums.

Supervision of social media sites (Regulatory Notice 07-59). This should be a risk-based review.

Third-party posts (“Adoption” and “Entanglement”). Generally, third party content is out of your control. But if you arrange for third party content or endorses it, then you may be deemed to have adopted that content and treat it as if you adopted it directly.

The notice is just guidance, not a rule. FINRA is looking at a new rule. See Regulatory Notice 09-55.

Firms’ Perspectives: Is Social Media Right for Your Firm?

Doug Preston & Joanne Rodgers

Doug pointed out the tremendous growth of social media. Regardless of the form and how it works, you need to use the sites in compliance with rules. (The rules are not going to adapt to social media.)

Joanne is doing a pilot with a vendor to help with compliance. They had lots of requests from recruiting and sales to use the tools.

If you use a social media site for personal purposes, can you still list that you work for the financial services company? You can have a “business card rule.” Just post the information on your business card, with no call to action or specific information.

Is this a growth area or just customer pressure? They have no data. Sales really want to use the tools to generate business. They view it more as a lead generation instead of a sales tool. Recruiting is an avid user of social media sites, especially LinkedIn.

Nobody has much data on the cost/benefit of using social media sites.

Firms’ Perspectives: Developing Social Media Pilot Programs

Doug Preston & Joanne Rodgers

Joanne has just finished a pilot for 25 agents and 25 recruiters. She saw that most of the agents participated in Facebook, more personal than business. The recruiters mostly used LinkedIn. (She did not want to disclose the vendor she used.)

Doug has not opened up the broker side to social media. The bank side does use it. They using some of that learning to build a system for the broker side.

One issue is the level of activity and the additional resources needed to review activity. The tools may be free, but they require people resources and time.

The key is the ability to obtain and retrieve the records and to move the records into your email surveillance program. It’s also important to be able to shut off some of the functionality on social media sites.

Firms’ Perspectives: Compliance Practices Concerning Social Media

Doug Preston & Joanne Rodgers

There are lots of risks. You need to draw a line between sites you control and those run by third parties. You can stuff on a blog you host that you can’t do on a third party blog platform.

You will need new processes and policies. You will need lots of training.

FINRA is ahead of the curve compared to some other regulators in the financial services industry. Insurance regulators have not addressed the use of social media.

One of the big risks is brand/reputation risk. Each of the registered representatives becomes a brand ambassador. If they say some thing bad or embarrassing it affects the company as well as themselves.

What is FINRA looking for? If you are using social media, they will want to see: written procedures, actual supervision, records and procedures.

They did not like LinkedIn recommendations. Registered representatives should not accept the recommendations.

The static versus interactive categories is the toughest one to deal with.

Third-Party Postings

Joseph Savage, Doug Preston, Joanne Rodgers, & Joseph Savage

Questions 8, 9 & 10 in address the issue of third party posts. You probably should put in a disclaimer if you let third party posts on your site. You should monitor them to make sure there is no inappropriate material (porn, copyright). You also need to monitor complaints.

A reg. rep. “favoriting” something or “liking” something could be considered adopting that third party statement.

Program Summary

The session should be available online in a few weeks.

FACULTY

Tom Pappas (Moderator) is Vice President and Director of FINRA’s Advertising Regulation Department. The department regulates the advertisements, sales literature and correspondence used by FINRA firms. His responsibilities include rule development, management of the filing and surveillance programs and related enforcement activities. He served in the same role at NASD before its 2007 consolidation with NYSE Member Regulation, which resulted in the formation of FINRA. He joined NASD in 1984 and was previously with Davenport & Company LLC. He received a bachelor’s degree from The University of Richmond and an M.B.A. from Virginia Commonwealth University.

Douglas Preston is a Senior Vice President and Compliance Executive at Bank of America Merrill Lynch (BAML), as well as Chief Compliance Officer for Merrill Lynch Professional Clearing Corporation, the firm’s prime brokerage arm. He is also responsible for a number of other compliance areas at the firm, including serving as the Chairman of the firm’s Enterprise Electronic Communications & Media Governance Committee, and leading BAML’s Global Banking & Markets Electronic Communications & Media Compliance team, among other responsibilities. Prior to BAML, Mr. Preston was Senior Special Counsel at NYSE Regulation. In his role at the NYSER, Mr. Preston helped develop and interpret various NYSE rules. He has worked on several major regulatory initiatives, including Regulation SHO, gifts and entertainment and electronic communications (NYSE 07-59), among others. Before joining NYSE, Mr. Preston was the General Counsel and Chief Compliance Officer (CCO) for Santander Investment, SA’s New York investment bank. He was also the CCO of the investment banking arm of the Bank of Nova Scotia, and Associate General Counsel for the Securities Industry Association (now SIFMA). Prior to SIFMA, he worked in private practice, representing financial services entities. Mr. Preston received his J.D. from Fordham University School of Law. He is a member of the Bar of New York, New Jersey, Washington, DC and the U.S. Supreme Court.

Joanne Rodgers is a Vice President of Compliance at New York Life Insurance Company (NYL).  She is responsible for managing the sales material review unit, field review unit and market surveillance. Ms. Rodgers has worked at NYL in various roles of compliance for the past 15 years. Prior to joining NYL, she worked as an examiner at NASD. She is a graduate of Franklin & Marshall College with a B.A. in Business Administration.

Joseph P. Savage is a Vice President in FINRA’s Investment Companies Regulation Department. Mr. Savage specializes in a broad range of securities regulatory matters, including investment management, investment company, advertising and broker-dealer issues, and regularly appears at conferences regarding these issues. Prior to joining FINRA, he was an Associate Counsel with the Investment Company Institute and an attorney with the law firms of Morrison & Foerster LLP and Hunton & Williams. Mr. Savage also served as a judicial law clerk for United States District Judge John P. Vukasin of the Northern District of California. Mr. Savage holds a bachelor’s degree from the University of Virginia, a master’s degree from the University of California, Berkeley, and a J.D. from the University of California, Hastings College of the Law, where he served as Note Editor of the Hastings Law Journal.

MoFo2Go

Do I care if my law firm has an iPhone App? As client, I care about my law firms delivering useful information to me.

Kevin O’Keefe says your law firm should forget about building an iPhone App. Morrison & Foerster didn’t heed his advice and created MoFo2Go, an iPhone app.

iPhone App versus Mobile View

Kevin’s post was in response to a iPhone app built around a law firm’s blog. I looked at Arnold & Porter’s iPhone app for their Consumer Advertising Law Blog. It required a separate application and was very clunky. All it had was blog content. They would have been better off just having their site enabled for mobile viewing. Kevin was right.

(By the way, Compliance Building uses MobilePress to make a really nice looking mobile view of the site on the iPhone. It looks mediocre on the Blackberry.)

Rather than reading on the commute home, I decided to download MoFo2Go to my iPhone and see if Kevin was right.

Disclaimer

MoFo2Go is the first app I’ve seen that has a disclaimer wrapper that I had to “accept” before installing. Clearly this app had some lawyer input on the design.

Splash Screen

The four functional buttons take up 20% of the screen space, with the new firm motto taking up the majority of the space. Is this an ad or a tool? I think they got that wrong.

Lawyer Directory

This is a nice feature. I can look up lawyers. With one step I can call the lawyer. It also allows me to add the lawyer to my contacts, send an email to the person and view their full bio. I wish the phone number and email were clickable to take these actions instead of menu items at the bottom.

Locations

So assuming I’m trying to get to a MoFo office, I could use this to get directions. It kicks you over to the Google Maps feature in the iPhone.

News

It’s nice enough of MoFo to publish all of these updates. But MoFo is an international law firm with dozens of practice area. Only a small fraction of their publications are of any use to me.

They have four filters: Alerts, Releases, Newsletters and MoFoTech. Please explain why dividing the publications into Alerts and Newsletters helps me to find information. It’s a useless distinction from a client’s perspective.

The Releases are MoFo press releases, so I can just ignore those.

MoFo Tech is a publication focused on tech-based companies. It has all all 7 articles from the single edition of the publication. MoFo Tech Fall/Winter 2009. That seems to be a lot of screen devoted to a small publication.

Play

Yes, MoFo2Go has a game. It’s a classic marble maze. You tilt the iPhone to move a marble through a maze. When you succeed, in addition to a score, you get a MoFo Factoid (“In 2009, Chambers & Partners ranked MoFo Band 1 in Intellectual Property.” I guess I didn’t do very well if that is reward I got at the end of the maze).

So What?

The only useful feature in MoFo2Go is the lawyer directory. The rest is useless or a waste of time.

They should have just made MoFo.com mobile-friendly for the iPhone.  MoFo.com is unusable on the iPhone.

Surprisingly, there is a mobile version of MoFo.com for the blackberry. It’s stripped to the lawyer directory and the office locations. Unfortunately, they stripped the email from the directory. But you can just click on the phone number to call the lawyer. Nice.

Should Law Firms Have iPhone Apps?

From my perspective as a client, No. Don’t bother with an iPhone app.

Make your law firm website mobile-friendly so that your clients can easily to get to the information they need. That means make it easy to get to the lawyer directory and office locations. Just like MoFo did with the blackberry version of their website.

Sources:

Wikis, Learning, Teaching and Compliance

wikipedia

I am a believer that the use of 2.0 tools can help compliance professionals. (Hopefully, this blog is a part of that proof.)

Moving to the inherently open communication of 2.0 tools from the inherently private channel communication of email can expose sunlight on behavior and expose information. Incorrect information and behavior can be corrected. Bad information and bad behavior can be seen and stopped before it snowballs into something larger.

I often hear people take the position that the digital youngsters coming out of college can use these Web 2.0 tools as easily as dialing a phone or that they are demanding them in the workplace. I don’t think that’s not true.

Law Schools and Wikis

Eric Goldman and Luis Villa shared their experiences in using wikis as part of their classrooms. It certainly sounds like their students struggled with using these tools, both behind the firewall and in the public Wikipedia.

In Mr. Goldman’s case he offered his law students the opportunity to publish an article in Wikipedia for 20% of their grade. About a quarter of the students in his cyberlaw class at Santa Clara University School of Law took him up on his offer.

In reaction to that article, Mr. Villa recounted his experience using a school-hosted wiki as part of his classes at Columbia Law School.

Other wiki concepts, like extensive linking, or publishing drafts to the world in wiki-style, were apparently even more strange to most of my classmates. None of the four class wikis were deeply interlinked or cross-referenced, outside of what was necessary to create a table of contents and occasional outlinks to wikipedia. Similarly, few students were willing to post works-in-progress to the wiki and refine them there- most students preferred to work privately and then put a final text into the wiki.

Collaboration Between Generations

I found the same to be true at my old law firm. In particular, the younger attorneys did not want interim drafts to be seen and were reluctant to contribute content. The more seasoned attorneys were more willing to edit and add information. The vast majority of article creation was limited to a small group.

In my view, younger team members are reluctant to produce content because they do not want to expose their lack of knowledge, they do not want to expose themselves for criticism and they have little grasp of the technology.

The lack of knowledge is true regardless of how you teach collaboration. It would seem silly to put the youngest members of the team in charge of the team’s knowledge and content production. They have the least understanding of the subject matter.

Dealing with Criticism

The criticism issue has two parts. On one side, I don’t think students are taught to collaborate. They go through school being graded on their individual performance. The few classes that grade as a team are outliers.

The second issue is the internal culture of  your company. Collaboration requires trust. You need to work as a team and avoid individual blame. It also requires sharing the credit for good work among the team. That is just how your company or group at the company operates. Technology does not change culture.

The Technology

As both Goldman and Villa point out, the technology is still a barrier. There are many inherent limitation in a wiki that you don’t have with Microsoft Word. I think the wiki markup language is a mistake. I think platforms should just use html based code.

Regardless of the underlying code, web-based documents do not have the rich formatting of Word. Arguably, you don’t need the vast majority of that formatting. It’s still very frustrating when something easy to do in Word is hard to do in a wiki.

Printing is another issue. In the end you may want to print hard copies. I have experienced widely different quality in what happens when a wiki page goes to the printer.

Wiki for One

I have to admit that I have not been preaching the benefits of 2.0 tools within my company. I use them purely as a knowledge tool for me. I use this blog and an internal wiki to store information for me to find as part of the compliance program. Most of the company is numbers driven, something for which web 2.0 tools are poorly suited.

I did collaborate with a summer intern on a compliance project using the wiki. I had the same experience as Goldman and Villa. Using a wiki did not come naturally to her. It took time for me to develop the trust for her to use it effectively.

In the end we worked together to create a tremendous amount of content for the compliance program that is well-organized and easy to find.

Other Examples

Over the last year I have seen an increase in the public use of Web 2.0 tools by compliance professionals. There has been a dramatic increase in the use of blogs. You can look at my blogroll for other examples.

One to take a close look at is Kathleen Edmond’s Blog. She publishes disciplinary examples from Best Buy. As you might expect, the examples do not include specific people or products. She is able to get the ethics story from Best Buy out into the public. She can get comments on her reasoning and the results.

Sources:

Boston Bar Association Presentation on Web 2.0

Martha Sperry of Advocate’s Studio asked me to join her in a presentation to the Boston Bar Association’s Computer & Internet Law Committee titled: Beyond LinkedIn: Advanced Social Media for Lawyers.

Martha Sperry, OneBeacon Insurance Group Ltd., and Doug Cornelius will lead a brown-bag lunch discussion for lawyers who are familiar with the various forms of social media but want to take their use to the next level. Would you like to make better use of social media in your practice? Are you interested in starting a blog or Twittering about legal issues but concerned about ethical restrictions or other pitfalls? Martha will discuss the latest technologies and how to use them most effectively and efficiently in marketing and online brand development. Doug will discuss security and ethical issues and online best practices.

Presentation Slides:

You can also find the slides on Slideshare: Beyond Linked In Advanced Social Media For Lawyers.

We also provided a handout full of information on useful sites and tools:
http://docs.google.com/View?id=dcnnt5b4_28jhgwr9gk

Futures Trading and Social Networking

With this week’s release of FINRA’s guidance on social media sites for securities traders, I thought it would be interesting to look at how the futures trading regulatory body is dealing with the issues. It turns out that the National Futures Association recently amended its rules to address social media and released new interpretive notices (.pdf).

As with FINRA, the NFA took a platform neutral position. On-line communications are subject to the same standards as other types of communications.

All audio or video advertisement, regardless of whether its on the radio, television, the internet or any media accessible by the public is subject to the rule. That means it must be reviewed by the NFA before it is published if it contains a specific trading recommendation or claims of past profits.

Any electronic content that can be viewed by the general public, or even by a more closed community that includes current and potential customers, can be promotional material. That makes it subject to the requirements of NFA Compliance Rules 2-29, 2-36, or 2-39.

Members should have policies regarding employee conduct. These policies could require employees to notify the employer if they participate in any on-line trading or financial communities and provide screen names so that the employer can monitor employees’ posts periodically. Alternatively, the policy could simply prohibit participation in such communities. The Member must, of course, take reasonable steps to enforce whatever policies it adopts.

The notice also points out that you need to be careful about your hyperlinks. You could be held accountable for linking to third party content that is misleading.

Sources:

Weekend Book Review: Sonic Boom by Gregg Easterbrook

You may know Gregg Easterbrook from his previous book The Progress Paradox (one of his six books) or his articles in The Atlantic. I know him mostly from his hobby: writing the Tuesday Morning Quarterback column on ESPN.com.

Sonic Boom tries to look beyond the current recession. Easterbrook looks ahead to what to expect after we make our way out. He sees the continued growth of globalization, interconnectedness and technology improvements. That should lead to greater prosperity, knowledge growth, instability and financial distress.

Easterbrook starts off Sonic Boom by using the Chinese city of Shenzhen, with its population of 9 million. But thirty years ago, the city did not exist. In 2007, it sent out 21 million containers, making it the fourth largest port in the world.

His next example grabbed me because it revolves around Waltham, Massachusetts, which is just down the street from me. He even calls my alma mater, Brandeis University “an outstanding institution”. Waltham is an example because it was the home of the first modern factory in the US. (I wrote about this is an article for Wired: GeekDad Visits the Charles River Museum of Industry & Innovation.) Waltham went through some tough times as it went from being a center of manufacturing to center for high tech and venture capital.

The book continues by focusing on a city and the how globalization has affected each. There is disruption, innovation, loss, growth, distress, and gain. Easterbrook then uses the example to launch into further discussion.

All of the turmoil in the job markets makes employer-sponsored health-care a bad fit. “It’s ridiculous that our cell phones work wherever we go but our health-care coverage does not.”

Yes, globalization is displacing manufacturing jobs from the United States. But you also need to look at the advances in efficiency and technology that reduce manufacturing jobs. The US made 106 million tons of steel in 2007 with 159,000 workers. That is more than the 91 million tons of steel made in 1977 with 531,000 workers.

Globalization is also bringing peace. A few decades ago the world’s two most important countries had horns locked trying to destroy each other. The US and USSR had nuclear missiles aimed and fingers on the button. We would not even send athletes to the other’s hosting of the Olympic Games. Now the two most important countries are the US and China. We are locked “cooperative competition” of trade and finance.

Sure, China has a long way to go towards democracy and human rights. But the country is much better than it was 30 years ago.

If you have read Tuesday Morning Quarterback, you will encounter some familiar stories. You will also find the writing familiar as he has weaved some of these tales of economics into his football column.

Is Easterbrook right? Do I agree with everything he writes? Well, even Kurt Warner throws a few incomplete passes.

If you like football, then you should also read his Tuesday Morning Quaterback column on ESPN.com. I enjoyed reading Sonic Boom and recommend that you read it. With only one meaningful football game left this season, you’ll need something to read in the off-season.

Disclosure: Most of the links above are Amazon affiliate links.

Governing Social Media: How to Monitor, Manage and Make the Most of Employee Use of Social Media

Join me, Kathleen Edmond, Chief Ethics Officer, Best Buy, and Janice Innis-Thompson, SVP & Chief Compliance Officer, TIAA-CREF, as we discuss compliance and governance issues of web 2.0 and social networking.

“Corporate Communication takes on a whole new meaning in a world of social media, where employees can freely post their views and spread documents, photographs and even videos across the globe with a click of a mouse. Companies that are ahead of the curve not only have established policies regarding use of social media sites by their executives and employees, but also are finding ways to use social media to their competitive advantage. Join our panel to hear about the risks and rewards that a well managed approach to social media can bring.”

Our Session: Governing Social Media: How to Monitor, Manage and Make the Most of Employee Use of Social Media

The Economist Special Report on Social Networking.

“An astonishing amount of time is being wasted on investigating the amount of time being wasted on social networks.”

I love reading The Economist because of lines like that. The January 28 issue has a special report on social networking. (The cover image is Steve Jobs dressed like Moses with his new tablet)

“Another [report], by Nucleus Research, an American firm, concluded that if companies banned employees from using Facebook while at work, their productivity would improve by 1.5%. This assumes that people would actually work rather than find some other way to pass the time they have to spare. In the same vein, perhaps companies should also ban water coolers and prohibit people sending e-mails to their friends. The assumption that firms can block access to the networks altogether is also rather heroic. Some employees now have web-enabled smart phones, so trying to stop them from surfing their favourite sites will be another waste of time.”

What is different about Web 2.0?

“All this shows just how far online communities have come. Until the mid-1990s they were largely ghettos for geeks who hid behind online aliases. Thanks to easy-to-use interfaces and fine-grained privacy controls, social networks have been transformed into vast public spaces where millions of people now feel comfortable using their real identities online.”

As is typical with The Economist, the report is straight forward and full of facts. There is none of the hyperbole of the social media snake oil salesman.

This special report will examine these issues in detail. It will argue that social networks are more robust than their critics think, though not every site will prosper, and that social-networking technologies are creating considerable benefits for the businesses that embrace them, whatever their size. Lastly, it will contend that this is just the beginning of an exciting new era of global interconnectedness that will spread ideas and innovations around the world faster than ever before.

The stories in the special report: