Social networking and compliance 05 13-10 final

Social Networking Compliance Challenges for IAs and

BDs

May 13, 2010 Group – Internet Based

1:00 p.m. – 3:00 p.m. (ET)

© 2005-2010 National Regulatory Services

Agenda

Background – the State of Social Media Today Step One – Risk Assessment and Writing a Policy Step Two – Setting up Training and Monitoring Step Three – Resources Assessment and Strategy Step Four –Rollout and Maintenance Additional Resources

May 13, 2010© 2005-2010 National Regulatory

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Polling Question Raise your hand if you are you a member of the

following Social Media sites (for business or personal use):

LinkedIn Facebook Twitter YouTube Digg


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The Current Background

Where we are today and where we are heading


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The Main Players for our Industry

LinkedIn Facebook Twitter YouTube Slideshare Scribd


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An Overview of Top Sites LinkedIn – Primary purpose is for professional networking. Users can share

information about themselves and maintain a database of business contacts. Has “Groups” were users can post questions and comment, exchanging ideas and information.


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LinkedIn – The Latest LinkedIn gives Users the ability to “follow”

Companies (4/30)

LinkedIn Launches Tons of New Link-Sharing Features (4/22)

Addition of Image and Article excerpts Can delete and edit posts Share updates or links only to individuals or groups Re-Sharing – like retweeting, you can pass along in your feed someone

else's’ post


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An Overview of Top SitesFacebook - Users can add “friends” and send them messages, and update their personal profiles to notify friends about themselves and become “fans” of companies or organizations.


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Facebook – The Latest Open Graph technology announced (4/22)

Allows sharing between websites and Facebook New “Like” Button – can be used on external sites, and your friends will see what you “Liked” Custom version of newsfeed –websites can filter reviews to just those within your friend pool


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An Overview of Top Sites Twitter – A micro-blogging service that enables its users and organizations

to send and read messages known as “tweets.” Tweets are text-based posts of up to 140 characters displayed on the author's profile page and delivered to the author's subscribers who are known as “followers.”


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Where is Social Networking Going?

The internet and social networking will be the same in the future – our interactions in the cloud will be personalized and connected

The rate of change is only increasing “Public is the New Private”


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Polling QuestionHow concerned are you about information about

yourself being public on the internet?A. Very concernedB. Somewhat concernedC. A little concernedD. Not concerned at all


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Regulatory Considerations - BDs

FINRA Guidance: Procedures- Have supervisory procedures, ensure

compliance and require annual training Get approval- Posted information regarding the firm’s

business is advertising and sales literature. As such, written principal approval is required prior to use and filing with FINRA

Follow regular communication rules- Among other requirements, information cannot be misleading and material facts must be disclosed

Keep a record- Like other advertising, posting on social networking sites must be maintained for three years from last use.


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Regulatory Considerations - IAsADVERTISING Rule 206(4)-1 describes and details the various advertising

practices which the Commission views as being fraudulent, deceptive and/or manipulative within the meaning of the Advisers Act.

Pursuant to this rule, the following may not be contained in any advertisements by an investment adviser:

Testimonials concerning any advice or service of the adviser; References to past specific recommendations of the adviser which

were or would have been profitable to a person; Representations that any graphs, charts, or formula or device can

be used to determine which securities to buy or sell or when to buy or sell them unless accompanied by explicit disclosure regarding limitations;

Any representation that a service will be provided free of charge unless there is in fact no condition or obligation; or

Any untrue statement of a material fact or which may be false and/or misleading.


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Regulatory Considerations - IAs

ADVERTISING (cont’d) The use of performance data in marketing

materials is a highly complex subject and is carefully scrutinized by the SEC.

Some states require that state registered advisers file marketing materials with the state before or shortly after “publication.”


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Misuse of Inside Information Section 204A of the Advisers Act require investment

advisers to create, maintain, and enforce written supervisory procedures designed to prevent the misuse of non-public information.

Market Manipulation In light of the Berliner case (SEC Release No. 57774,

May 2008), regulators are interested in firm controls to prohibit “rumor mongering” or the dissemination of false information on the market in order to capitalize on the effect of such dissemination for personal or client accounts.


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Recordkeeping Requirements

The Books and Records rule (Rule 204-2(a)(7)) provides that specific written communications must be kept including those relating to a) investment recommendations or advice given or proposed; b) receipt or delivery of funds or securities; and c) placing and execution of orders for the purchase or sale of securities.

All electronic communications are viewed as written communications, and the SEC has publicly indicated its expectation that firms retain all electronic communications for the required record retention periods. If a method of communication lacks a retention method, then it must be prohibited from use by the firm.


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Regulatory Considerations - IAsSupervision

Under Section 203(e)(6), the SEC is authorized to take action against an adviser or any associated person who has failed to supervise reasonably in an effort designed to prevent violations of the securities laws, rules and regulations.

This section also provides that no person will be deemed to have failed to supervise reasonably provided:

there are established procedures and a system which would reasonably be expected to prevent any violations;

and such person has reasonably discharged his duties and obligations under the firm's procedures and system without reasonable cause to believe that the procedures and system were not being complied with.


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Regulatory Considerations

Other Miscellaneous

Hedge funds and other private funds- potential loss of exemption

Compensation paid to solicitors who referred firm through social media and failed to deliver required disclosures


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Regulatory Considerations

Compliance Programs

Rule 206(4)-7, the Compliance Program Rule makes it unlawful for an SEC adviser to provide investment advice to clients unless the adviser, among other things adopts and implements written policies and procedures reasonably designed to prevent violations by the firm and its supervised persons.

The Adopting Release of the Compliance Programs Rule urges each adviser, when designing policies and procedures, to identify conflicts and other compliance factors creating risk exposure for the firm and its clients in light of the firm’s particular operations and then to design policies and procedures that address those risks.


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Risk Assessment and Writing a Policy

What does this mean for your firm?


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Polling questionDoes your firm have a Social Media policy?A. YesB. It is written but not approved yetC. We are in the process of writing itD. We are in the planning stagesE. We haven’t started yet


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Risk Assessment – General Issues

Your current potential liability will be influenced by a number of factors:

Number of employees Size of company and infrastructure Type of clients Current social media use of employees

Is there a risk of you losing market share because your competitors are marketing in these channels?

Are you missing customer feedback or customer complaints because you are not monitoring what is being said? (Reputational Risk)


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Some Specific Risks to Consider

Firm lacks resources to monitor employee’s use for business purpose in adequate manner

Unmonitored “real time” chats – no record Employee’s may post advice or recommend products without

suitability information Employee’s may post inappropriate comments, damaging firm

reputation (liable; legal liability) Employee’s may breach client trusts, confidentiality clauses, Reg

S-P or other privacy regulations Employee’s may leak sensitive or proprietary strategies or “run a

stock away” ahead of a firm trade


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Some Specific Risks to Consider Clients/former clients may post unpleasant experiences –

both real and imagined Complaints policy More than compliance = public relations

Employee’s may use social media to originate and/or disseminate false rumors in effort to manipulate market in security in order to trade on effect – whether for personal or client benefit.

Misleading info – (anti-fraud ad rule) Favorable “endorsement” posts, regarding firm by firm

clients – (prohibition against testimonials) Virus, malware or phishing risks Posting firm investment performance without required

disclosuresMay 13, 2010


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Creating a Policy If you don’t know where to start – look at other firm’s policies

(see additional info pages) Read up and learn from others on what has happened when

they instituted policies (Associated Press, ESPN) Your policy for “right now” probably won’t be your policy a year

from now Try to be flexible in your wording – don’t just name the big

three If you aren’t marketing via Social Media now – you might in

the future Write to cover your current situation – plan to revise as

things grow and change Best Practices – Think about writing a policy that will refer to a

“Best Practices Guideline” – something that will be easier to add to, keep current, and will be easy for employees to refer to and clearly understand what they can and can not do


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Sample Policy “The use of social networks for firm business and professional

communications with clients is strongly discouraged. However, should employees find it necessary to discuss company business or otherwise communicate with clients through social networking, it is ABC Firm's policy that electronic communications or posts on social networks, blogs, posts, wikis, virtual worlds or other electronic platforms are treated as “written communications” for regulatory purposes and that such communications must always be of a professional nature. Employees must understand that business or client related comments or posts made through social media may be considered advertising under applicable regulations and must not be misleading, fraudulent, deceptive or manipulative and will require pre-approval by the CCO prior to posting.

Employees are reminded to that the use of social media for personal purposes may also have implications for ABC Firm, particularly where the employee is identified as an officer, employee or representative of the firm. No employee may post information pertaining to any security, investment strategy or similar information without pre-approval of a direct supervisor or the CCO.”


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Procedural Considerations

Consider both “private” or select group communications as well as public posts or blogs

Consider requiring CCO notification and possibly pre-approval before starting a blog

Consider requiring a disclaimer that market related posts reflect personal views of poster and may not be those of the firm

Provide guidelines but make employees personally responsible for posted content

Higher standard for executives


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Implementing the Policy

Acknowledgement/Certification affirming policy (renew annually)

Expect questions from employees Prepare an FAQ with real life examples to address the most

common questions Training, Training, Training Make sure you have a plan on how to test it


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Setting up Training and Monitoring

Who is talking about you? What are they saying? And how can you listen in?


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Polling Question Have you ever had a customer complain about

your firm in an online format (social networking site or comment on a blog or article post)?

Yes No


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Training and Education Once your policy is in place, you need to make sure your

employees understand it This is a complex topic so there will be lots of questions Use training as another tool to get more information on

possible usage of social media It is likely that employees may think of usage you didn’t

know was possible They can help you keep on top of changes Make sure you have an “open door” policy so that they

feel comfortable bringing up new questions on an on-going basis

Education should be a continual process as social media is a constantly moving landscape


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Monitoring Conversations are being had about you, whether you

participate in Social Networking or not “Tell 2 Friends Factor” –

In the past, if someone wanted to tell their friends about you (for good or bad) they probably talked to anywhere from 1-10 people on average

The “average” user on Facebook currently has 130 friends(1). And, depending on their privacy settings and the settings of all their friends, the worst case scenario has one comment being viewed by nearly 17,000 people. And that is presuming that no one passes it along.

Going Viral – Because of the number of connections people have and the ease of passing messages along, conversations can reach millions of people in a very short time(1) Source: Facebook - http://www.facebook.com/press/info.php?statistics


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Monitoring Do you have Social Media accounts? Maybe you should!

Having an account on these sites means you will understand how they function

As things change on these sites, with technology and privacy updates, you will know right away

Monitoring software Googling is the minimum you should be doing Softwares are springing up all over with monitoring solutions

(see additional resource section for a short list) Use all the eyes and ears you can get

If your employees are on social media – enlist them to watch Have a process for immediately bringing it to your attention if

they see something


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Additional Testing Verify that all employees have provided signed

acknowledgements of social networking policy Verify that all employees’ attendance at

mandatory training sessions is documented Review publicly-viewable content for compliance Internet searches of employee names for

unreported blogs or networking posts “Google Alerts” Technical solutions and developments


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Resource Assessment and Strategy

What do you need to account for before you make the decision to create a Social

Media Strategy? And where do you implement it?


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Polling QuestionDo you plan to use social media for marketing or

recruiting?A. We already use itB. We are planning on doing so in the next 6

monthsC. We are planning on doing so in the next 12

monthsD. We have no current plans to do so


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Resources Needed FTE hours needed for monitoring FTE hours needed for content creation and response

Remember – Social Media is not just about Marketing – it is also PR, HR and Customer Service

FTE hours needed for “timely” compliance review FTE hours for Principal review (where needed) FTE hours for recordkeeping FTE hours for recordkeeping “manually”

(screenprint PDFs) vs. cost of investment in a software system to handle recordkeeping requirements


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Which Ones to Choose? Linkedin

Owning your Company Profile Do you let Reps conduct business?

Facebook Firm Page

Static posting vs. interactive Do you let Reps conduct business?

Twitter Leveraging it to promote your web content Leveraging it to promote other Social Media postings Customer Conversations? Listening vs. Responding

You Tube Another channel besides your website for your video content

Slideshare and Scribd Another channel for your presentations and white papers


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Rollout and Maintenance

Best practices to implement a strategy – and what you need to think about after

launch


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Option One - Start Small

Whether you are choosing the Static or the Interactive route – test it out

Proof of Concept – create a pilot group to test it See if you are getting the results you are

anticipating Review the resources impact – are the resources

you anticipated to handle this sufficient? And how will this scale up?


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Option Two – Launch Big

If you have more resources, consider a multi-channel launch

Example – Putnam and the Absolute Return Funds More platforms doesn’t necessarily mean more

work Virtually the same content can be reused The audience isn’t necessarily the same – i.e. Facebook

users aren’t necessarily Twitter users Leverage and reuse content to widen the audience, such

as YouTube for Manager video commentary or Scribd for white papers


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Keep an Eye Out Look at what your direct competitors are doing in the social

media space Also review firms larger than you to see what standards

they are setting Don’t look only within your industry – if you have a favorite

company that you think does customer service really well – track them on your favorite Social Media sites and follow there Blog.

Be aware of changes in the space – is there a great new platform you should be on? Is one of the spaces you are investing time in showing little traffic and should you drop it?

One size does not fit allMay 13, 2010


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Additional Information

Helpful links to more resources on the topic


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Regulatory Resources FINRA’s Guide to the Internet for Registered Representatives

http://www.finra.org/Industry/Issues/Advertising/p006118 SEC Interpretation: Use of Electronic Media, Release Nos. 33-7856,

34-42728, IC-24426 (May 1, 2000) Use of Electronic Media by Broker-Dealers, Transfer Agents, and

Investment Advisers for Delivery of Information, Release Nos. 33-7288; 34-37182;IC-21945; IA-1562 (May 9, 1996)

Reporting Requirements for Brokers or Dealers under the Securities Exchange Act of 1934, Release No. 34-38245 (Feb. 5, 1997)

FINRA Regulatory Notice 10-06 - http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/notices/p120779.pdf

FINRA webinar on Social Networking – available on demand - http://www.finra.org/Industry/Education/OnlineLearning/Webinars/P120758


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Policy LinksExamples of Social Media Policies – What to do – and Not to do IBM - http://www.ibm.com/blogs/zz/en/guidelines.html\ WSJ -

http://www.laobserved.com/archive/2009/05/wsj_staffers_told_to_be_n.php ESPN -

http://profootballtalk.nbcsports.com/2009/08/04/espns-guidelines-for-social-networking/ Associated Press -

http://www.wired.com/threatlevel/2009/06/facebookfollow/ US Military -

http://arstechnica.com/tech-policy/news/2010/03/us-militarys-social-media-policy-gets-a-makeover.ars More On Policies

NY Labor & Employment Law Report – “A Few Tips for Drafting Social Networking Policies” -http://www.nylaborandemploymentlawreport.com/

Copy of Social Media Policy for the United Space Alliance – http://nasawatch.com/archives/2010/02/social-media-do.html

New Social Media Policy Database –examples of LOTS of policies http://www.compliancebuilding.com/2010/01/14/social-media-policies-database/

123 Social Media – List of over 30 companies social policies - http://123socialmedia.com/2009/01/23/social-media-policy-examples/


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http://www.ibm.com/blogs/zz/en/guidelines.html/

http://www.laobserved.com/archive/2009/05/wsj_staffers_told_to_be_n.php

http://profootballtalk.nbcsports.com/2009/08/04/espns-guidelines-for-social-networking/

http://profootballtalk.nbcsports.com/2009/08/04/espns-guidelines-for-social-networking/

http://www.wired.com/threatlevel/2009/06/facebookfollow/

http://arstechnica.com/tech-policy/news/2010/03/us-militarys-social-media-policy-gets-a-makeover.ars

http://arstechnica.com/tech-policy/news/2010/03/us-militarys-social-media-policy-gets-a-makeover.ars

http://www.nylaborandemploymentlawreport.com/

http://nasawatch.com/archives/2010/02/social-media-do.html

Useful LinksSocial Networking – staying on top of what is going on out there: Mashable.com – The Social Media Guide - http://mashable.com/ Kasina –Financial industry consultants on Web and Web 2.0 -

http://kasina.com/blog/ Wired Magazine/Wired.com - http://www.wired.com/ Reddit.com – For what is going on Right Now - http://www.reddit.com/

Other Blogs on the Topic The Osterman Research Blog - A blog focused on messaging, Web and

collaboration issues - http://www.ostermanresearch.com/blog/ Socialware Blog - http://blog.socialware.com

Technology Solutions targeted at Social Networking: Facetime.com – Unified Security Gateway - http://www.facetime.com/ Socialware – The Social Middleware Company –http://www.socialware.com/


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http://mashable.com/

http://kasina.com/blog/

http://www.wired.com/

http://www.reddit.com/

http://www.ostermanresearch.com/blog/

http://www.facetime.com/

http://www.socialware.com/

Monitoring Softwares http://infegy.com/socialradar.php www.Brandprotect.com www.Nielsen-online.com (buzzMetrics) www.Cymfony.com www.Jdpowerwebintelligence.com www.Radian6.com www.Scoutlabs.com www.Sociafyq.com www.sysomos.com/heartbeat www.visibletechnologies.com http://www.socialtalk.com/ http://spredfast.com/ http://www.visibletechnologies.com/trupulse.html http://www.viralheat.com/


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http://infegy.com/socialradar.php

http://www.brandprotect.com/

http://www.nielsen-online.com/

http://www.cymfony.com/

http://www.jdpowerwebintelligence.com/

http://www.radian6.com/

http://www.scoutlabs.com/

http://www.sociafyq.com/

http://www.visibletechnologies.com/

http://www.socialtalk.com/

http://spredfast.com/

http://www.visibletechnologies.com/trupulse.html

http://www.viralheat.com/home?title=Home

Interesting Presentations/Articles Social Media is Dead – Long Live Common Sense

http://www.slideshare.net/darmano/test-3505949?from=ss_embed

Why Banning Social Media Often Backfires – http://mashable.com/2010/04/13/social-media-ban-backfire/

10 Essential Social Media Tools for B2B Marketers - http://mashable.com/2010/04/08/b2b-marketing-tools/

Nobody can Stop Facebook Because Nobody Understands Facebook http://mashable.com/2010/04/27/nobody-can-stop-facebook/

Facebook Privacy Settings still Ignored by Many - http://mashable.com/2010/05/04/facebook-privacy-report/

What Facebook Open Graph Means for your Business - http://mashable.com/2010/05/05/facebook-open-graph-business/


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http://mashable.com/2010/04/13/social-media-ban-backfire/

http://mashable.com/2010/04/13/social-media-ban-backfire/

Examples of Conversations going Viral

Kevin Smith and SouthWest Airlines What does Kevin Smith mean for the Future of PR?

http://news.cnet.com/8301-13577_3-10454328-36.html United and David Carroll (and his Guitar)

‘United Breaks Guitars’ – Did it Really Cost the Airline $180 Million? http://www.huffingtonpost.com/2009/07/24/united-breaks-guitars-did_n_244357.html

United Airlines Complaint Song Breaks 1M Views in 4 Days http://www.huffingtonpost.com/andrew-cherwenka/united-airlines-complaint_b_229240.html

Bank of America and Ann Minch Bank of America learns that ignoring customer complaints has its

price - http://psstmarketing.wordpress.com/2009/09/23/bank-of-america-learns-that-ignoring-customer-complaints-has-its-price/


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Questions ?


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PresenterMederic Daigneault

Director of Hedge Fund ServicesNational Regulatory Services

323A Main Street, POB 71Lakeville, CT 06039

Mederic Daigneault joined National Regulatory Services (NRS) in May 2004 and is Director of Hedge Fund Services. Mederic works closely with officers to identify their advisory firm’s regulatory obligations, conflicts of interest and other risks to assist in the development, implementation and testing of comprehensive compliance programs. Mederic conducts on-site mock SEC examinations of advisers of various sizes from large and dually registered firms with offices around the globe and intricate hedge fund complexes to one-person financial planning firms. Areas reviewed include, as applicable, the latest developments and “hot topics” in compliance regulation: annual reviews, code of ethics, soft dollars, disaster recovery, best execution, side-by-side management issues and other areas. During his time at NRS, Mederic has drafted or revised Forms ADV for over 100 investment adviser firms at both the state and federal level. Mederic is a frequent speaker at NRS Conferences as well as topical live and desktop seminars. He is also an expert lecturer in the Investment Adviser Certified Compliance Program (IACCP) co-sponsored by NRS and the Investment Adviser Association and a contributor to various industry publications on various compliance topics.

Before joining NRS, Mederic practiced law as a corporate and securities attorney with a securities law firm. As an attorney, Mederic provided guidance and legal counsel to regional, national and international business entities and financial institutions, including insurers, broker-dealers and investment advisers, concerning compliance with the laws and regulations that govern these businesses. Before entering law school, Mederic worked as an Annuity Account Manager at the Travelers Life & Annuity Co. where he maintained a Series 6 license with the NASD. May 13, 2010


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PresenterDeborah Well

Director of E-BusinessHarbor Capital Advisors, Inc.

33 Arch Street, 20th floorBoston, MA 02110

DEBORAH WELL joined Harbor Capital Advisors, Inc. in 2002. Her current primary responsibilities include overseeing electronic marketing and marketing material production as well as business reporting and administration of the sales CRM. She has also been working closely with Harbor’s VP of Interactive Marketing and Senior Graphic Designer on Harbor’s Branding and Retail Website Update projects.

Prior to joining Harbor, Deb was the Director of MIS at CDC IXIS Asset Management Intermediary Services, where she spent five years working with the sales CRM for the advisor, broker/dealer wrap, and retirement channels. She was also responsible for all internal sales reporting, and developed and ran the group’s Institutional Web site.

Most recently, Deb has been a speaker on a panel on the Regulatory Challenges of Social Networking (for NEBDIAA) and co-hosted a webinar on Productivity in the Age of Information and Email Overload (for PAICR).

Prior to entering the world of finance, Deb worked as a Consultant, dealing with third-party recovery in accident cases on behalf of agencies in over seven states.

Deb is a native Californian who graduated with a B.A. in English from Sonoma State University. She also has a Certificate in Network Administration from Boston University.


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Continuing Education NRS Education events are designed to meet criteria for

continuing education credits for accountants/CPAs, attorneys, certified financial planners, IACCPs, and other professionals.

Continuing education credits can only be awarded to participants who have registered for and are logged in to the seminar as themselves, participated during the seminar, and submitted the evaluation form upon seminar completion.

Please see the Continuing Education Guide for more information.

Submit completed course evaluation form to: E-mail: [email protected] Fax: 860-435-0162 Mail: NRS

323 A Main St.PO Box 71Lakeville, CT 06039


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Upcoming NRS Education

Trading – Best Execution, Soft Dollars and Directed BrokerageMay 18, 2010 1:00 p.m. – 3:00 pm. (ET)

Anti-Money Laundering Risk ManagementMay 20, 2010 1:00 p.m. – 3:00 pm. (ET)

Disclosure: Form ADV Part 1 and Regulatory ReportingJune 8, 2010 1:00 p.m. – 3:00 pm. (ET)

Disclosure: Form ADV Part II and Identifying and Disclosing Conflicts of Interest

June 10, 2010 1:00 p.m. – 3:00 pm. (ET)

Investment Adviser Regulatory UpdateJune 15, 2010 1:00 p.m. – 3:00 pm. (ET)

Disclosure: Investment Adviser Performance and AdvertisingJune 17, 2010 1:00 p.m. – 3:00 pm. (ET)

Visit the NRS Education Web site to view the 2010 Education Calendarsand learn more about NRS education options

Social networking and compliance 05 13-10 final

Technology

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