Investment Adviser Marketing – New Rules for a New World

SEC Amends Rules Applicable to Investment Adviser Marketing
– Niccolo Barber, Rimon Law

On December 22, 2020, the SEC amended the Investment Advisers Act of 1940, with respect to advertisements and payments to solicitors by investment advisers. The amendments create a single rule (“Rule”) that supplants the existing advertising and cash solicitation rules, marking the first time in more than 40 years the SEC has updated its rules governing adviser marketing.

Among the many amendments, the Rule promulgates new requirements relating to an adviser’s use of performance results in advertising materials. Advisers should keep the following points in mind moving forward:
• Gross vs. Net Performance Results. The Rule prohibits any presentation of gross performance in adviser advertisements unless the advertisement equally presents net performance figures. This restriction is predicated on the SEC’s concern that displays advertising of gross performance without any additional context, could create the impression that investors received the full amount of the presented returns shown. Accordingly, advisers should clearly indicate when performance results are portrayed on a gross basis. In addition, to facilitate investors’ understanding of the advertised performance results, net performance must be presented with at least equal prominence to gross performance results in a format designed to facilitate comparison between them.
• Hypothetical Performance. Advisers sometimes include hypothetical performance in their advertisements, such as model performance, back-tested performance, and targeted and projected performance returns. Although the Rule does not prohibit the use of hypothetical performance in advertising materials, it does prescribe significant conditions to its use based on the SEC’s belief that presentations of hypothetical performance pose a high risk of misleading investors. Specifically, an adviser may not utilize hypothetical results unless it: (i) has adopted and implemented policies and procedures reasonably designed to ensure the hypothetical performance is relevant to the likely financial situation and investment objectives of the intended audience; (ii) provides sufficient information to enable the intended audience to understand the criteria used and the assumptions made in calculating the advertised hypothetical performance; and (iii) provides sufficient information to enable the intended audience to understand the risks and limitations of using hypothetical performance in making an investment decisions.
Of course, the above points are a high-level overview of the detailed requirements promulgated under the Rule. To read more about the Rule you can read my article entitled SEC Finalizes Amendments to Investment Adviser Advertising Rules and to read the full text of the Rule itself or download your own copy, check out SEC Final Rule – Investment Adviser Marketing. Should you have any questions about the Rule and its implications act on your advertising materials, contact me, Nicco Barber, or any of the Rimon lawyers with whom you regularly work.

 

New York Post-Mortem Right of Publicity Signed into Law

Following up on our posting about rights of publicity in New York State (New York Moves to Expand the Right of Publicity), on November 30, 2020, Governor Cuomo signed S. 5959 into law and New York has finally joined the growing list of States in the United States to adopt and allow the enforcement of a post-mortem right. The legislation, which takes effect 180 days after it was signed (i.e., it only applies to individuals who die on or after that date), adds a new Section (50-f) to the New York Civil Rights Law entitled “Right of publicity” and deals with two categories of deceased persons: “deceased personalities” and “deceased performers.”

The new law in New York applies to deceased persons domiciled in New York State at the time of their death and creates a right of action for the use of names, voices, signatures, photographs or likenesses of “deceased personalities” for commercial purposes without consent and that right extends for 40 years after their death. The law defines a “deceased personality” as an individual “whose name, voice, signature, photograph or likeness has commercial value at the time of his or her death or because of his or her death”. Anyone claiming to represent these rights must register with the New York Secretary of State before making any claim. There are a number of exceptions to prohibited uses, so it is important to read and understand the statute carefully.

In deference to the world of virtual reality, the new law also provides a damage remedy for using a “deceased performer’s digital replica” in a “scripted audiovisual work as a fictional character” or in the “live performance of a musical work” without consent when the use “is likely to deceive the public into thinking it was authorized.” The law defines: (i) a “deceased performer” as someone who “for gain or livelihood was regularly engaged in acting, singing, dancing, or playing a musical instrument.”; and (ii) a “digital replica” as a computer-generated, electronic performance “that is so realistic that a reasonable observer would believe it is a performance by the individual.”

There are also a number of important exceptions to the prohibited uses enumerated in this portion of the new law, and also allows for “a conspicuous disclaimer” that appears in the credits of a scripted audiovisual work and corresponding advertising making it clear it has not been authorized.

For completeness, I should note there is also a section providing for a private right of action for unlawful “dissemination or publication of a sexually explicit depiction of an individual.” This relates to works that have come to be known as “deepfakes,” distributed without approval and although these might also be considered a “digital replica”, the law distinguishes the two categories and makes it clear consent is required and a disclaimer that otherwise might apply to digital replicas is not sufficient.

As you can appreciate, rights of publicity have often been the subject of controversy beyond the financial implications. For example, how does the law characterize a company’s creation and use of the likeness of an athlete or musician in a video game where the company may argue there is a First Amendment right of free expression – inconsistent with the rights of publicity. Again, the law is not always settled and the jurisdiction applicable to the deceased, the rights and the subject matter may well determine the outcome of any legal action. What about so called “industrials” in the entertainment business (e.g., content such as fitness and workout videos, dance instructional videos, company training content or instructions on product use and repair). Since these may not be characterized as either an advertisement or a product, it may not be clear if and how the law will be applied and certainly the answer will depend on these same jurisdictional factors.

For those of you who want context to the right of publicity, one of the first cases to deal with a post mortem right of publicity is the case involving Elvis Presley, whose brand even today is valued in the hundreds of millions of dollars. In this case (Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)) the court held that the right of publicity evolved from the common law of privacy and the corresponding tort “of the appropriation, for the defendant’s benefit or advantages, of the plaintiff’s name or likeness.” The term “right of publicity” has since come to signify the right of an individual to control the commercial value and exploitation of his name and picture or likeness and to prevent others from appropriating this value for their commercial benefit without their consent. This marks an interesting shift from the right of publicity being viewed as a personal right into a property right that can be exploited after a person’s death.

You can download and read a copy of the final bill here: New York State Rights of Publicity Bill S5959D Final. Of course, if you need more information about this post or have any questions, feel free to contact me Joe Rosenbaum or contact any of the Rimon Law professionals with whom you regularly work.

California CPRA – CCPA 2.0

On Election Day in California, voters will not only be determining choices among candidates standing for election, but they will also be deciding the fate of Proposition 24, referred to as the California Privacy Rights Act (CPRA).  Proposition 24 is intended to build upon the California Consumer Privacy Act (CCPA) that came into force at the beginning of 2020. Among other things, the CPRA would create a California Privacy Protection Agency, a new regulatory agency that would ultimately take over privacy enforcement responsibility from the Office of the California Attorney General.

Among the areas that would be affected by the CPRA would be a clear ban on discrimination against anyone choosing to ask a company to delete their information and opt-out of marketing communications, stronger rights to prevent data sharing by companies (e.g., cross-context behavioral advertising), clearer mechanisms to enable consumers to correct information that is not accurate and a requirement that companies tell consumers how long they plan to retain the information.

Proposition 24 would also legitimize marketing and promotional schemes that offer consumers a discount or access to benefits in exchange for voluntarily disclosing personally identifiable information (e.g., in the context of rewards or loyalty programs).  Privacy and data protection proponents and opponents have long debated whether consumers should have an option to pay for privacy – viewed as a logical consequence of offering benefits in exchange for information that can be used for marketing and promotional purposes.

Since the CCPA came into force, companies have already been scrambling to comply.  If Proposition 24 passes and CCPA 2.0 comes into force, companies will again have to review and likely revamp their policies and practices to deal with the added new compliance obligations. Just as significantly, a separate California Consumer Privacy Agency would likely end up brining many more enforcement actions since protecting the privacy rights of California consumers will be its only mission.  Proponents of Proposition 24 say that may well be a good thing for California consumers, but they also argue that an agency solely focused on data protection will also mean more clarity, consistency and guidance surrounding some of the nuances of the California requirements.

Stay tuned. Election day is only a week away.

New York Moves To Expand the Right of Publicity

As New York law currently stands basically the only right of publicity that is recognized in New York is the right to prevent appropriation of a living person’s name or likeness (e.g., portrait, picture, image) for commercial purposes.  A violation of the law can have both criminal and civil consequences, although only civil actions currently include the misappropriation of ones’ “voice,” in addition to names and photographs. New York courts have also allowed claims based on the use of look-alike models (Onassis v. Christian Dior-New York, Inc., 472 N.Y.S2d 254 (N.Y. Sup. Ct. 1984)).

New York does not recognize any common law right of publicity (Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)). Consequently all New York rights of publicity are purely creatures of statutory law.  Of interest in recent years is the fact that unlike over 20 other States in the United States and many jurisdictions internationally,* New York has never recognized any post-mortem rights of publicity. In other words, only living New York persons have any right of publicity and those are governed exclusively by statute!

Well that may change if and when New York State Governor Andrew Cuomo signs a bill recently passed by both houses of the the NYS legislature and although the bill differentiates between “deceased personalities” and “deceased performers,” if signed into law it would broaden the current law and create a new transferable (and inheritable) right that would protect those rights of publicity after death – rights that would last for 40 years after the death of the individual.

This new legislation is likely to have implications to performers, celebrities and others who are domiciled in New York, as well as to advertisers, advertising agencies and sponsors, among others.  Once the bill is signed into law, watch for updates on Legal Bytes for more detail. In the meantime, if you have questions or want more information, feel free to contact me, Joe Rosenbaum or any of the Rimon lawyers with whom you regularly work.

* Note: In some jurisdictions, rights of publicity are referred to as “personality rights” and one should never assume these rights are identical in scope or effect.

 

Warning Against COVID-19 Claims and more . . .

On April 24, 2020, the Federal Trade Commission (FTC) announced it had sent warning letters to 10 multi-level marketing companies regarding claims they or their participants (distributors) were making in social media posts and online related to COVID-19.
The claims included supposed health benefits, as well as pitching business opportunities related to the pandemic. You can read the announcement and obtain more detailed information at FTC Sends Warning Letters to Multi-Level Marketers Regarding Health and Earnings Claims They or Their Participants are Making Related to Coronavirus. These new letters come on the heels of letters previously sent to companies about unsupported claims concerning products that can treat or prevent coronavirus (FTC, FDA Send Warning Letters to Seven Companies about Unsupported Claims that Products Can Treat or Prevent Coronavirus).

The FTC and the FDA (Food and Drug Administration) have sent scores of warning letters to companies that may be violating federal law by making deceptive or scientifically unsupported claims about the ability of these products to treat or cure coronavirus. Warning letters have also been sent to voice over Internet protocol (VoIP) service providers and other companies warning against “assisting and facilitating” illegal coronavirus-related telemarketing calls.

You can visit the FTC Coronavirus Warning Letters to Companies web page to see a list of warning letters related to the COVID-19 pandemic.  The FTC also keeps track of consumer complaints related the pandemic and updates the data regularly.  As of yesterday, there were almost 30,000 COVID-19 related consumer complaints, and although less than 50% of all these complaints report a loss, the estimated fraud losses based on those that do is now well over $20,000,000.  For the latest statistics, visit Coronavirus (COVID-19) Consumer Complaint Data, which the FTC updates regularly.

The FTC and the Department of Justice have also issued a joint statement expressing their views on unfair competition and antitrust laws and regulations to make it clear, especially in these extraordinary times of crisis, how firms (including competitors) are permitted to engage in pro-competitive collaboration that does not violate the antitrust laws.  You can read the statement at Joint Antitrust Statement Regarding COVID-19.

Rimon lawyers continue to follow these and related developments applicable to the Paycheck Protection Program and other government initiatives available through the SBA and related to the COVID-19 pandemic. For more information or assistance you can contact me, Joe Rosenbaum or any of the Rimon lawyers with whom you regularly work.  Stay safe!!

 

 

 

25th Anniversary Edition: Best of the Best USA Expert Guide

I am honored at having been notified I will be listed in the 2019 Best of the Best USA Expert Guide, as one of the Top 30 Media Practitioners in the USA.

Over the course of a quarter of a century, Euromoney’s Legal Media Group has researched the world’s legal markets. Based on extensive review, with legal peers and in-house counsel, they identify the world’s leading lawyers, advisers and legal practitioners.

Over these past 25 years, the Expert Guides have become a valuable reference tool and trusted resource for international buyers of legal services.

This is their 25th Anniversary Edition and although I have been listed in previous editions of the Guide to the World’s Leading Technology, Media and Telecommunications Lawyers, each time I receive such a notice, it reminds me of the professional relationships I have enjoyed over the last 40 years and the great privilege I have been afforded of serving and working with clients and colleagues, not only in the USA, but around the world.   Thank you!

Joe Rosenbaum

 

Rimon’s Complimentary 2019 CLE Webinar Series: Coming in January

Enrollment for the 2019 Rimon Law CLE Webinar Series being held in January is now open, so don’t wait too long to register!

Don’t miss the chance to register, to learn and to earn CLE credits.

This January (2019) we will be offering the following programs:

  • State and Local Taxation: Headline News and Trends, conducted by David Fruchtman;
  • Corporate Governance Issues Related to Mergers and Acquisitions of Delaware Corporations, conducted by Frank Vargas and Michael Vargas;
  • It All Ads Up: Advertising, Promotions & Celebrity Endorsements in a Digital, Mobile, Social & Augmented World, conducted by Joseph I. Rosenbaum;
  • Copyright and Trademark Law: The Uncomfortable Interface, conducted by Mark S. Lee; and
  •  Law and Behavior: Ethics in Deception before the PTO, AIA Proceedings and Enforcement Presentations, conducted by Maxim Waldbaum.

To get dates, times and more information and to register for any or all of them go to 2019 Rimon Law CLE Webinar Series.

Practical Law: Sweepstakes in New York

I had the privilege of working as a contributor and contributing editor to a recently published Practice Note from Practical Law, a Thomson Reuters company, entitled Complying with New York Sweepstakes Law.  Although focused on New York law, there are references to Federal law and regulation that apply throughout the United States.

If you are not already a subscriber to Practical Law, you can read the Practice Note and download a copy for your personal use and reference here: Complying with New York Sweepstakes Law.  As always, if you need further information about the publication or you have questions relating to sweepstakes, contests, promotions, advertising or marketing anywhere in the world, feel free to reach out to me, Joe Rosenbaum, Partner or to any of the lawyers with whom you regularly work at Rimon Law.  If you wish, you can also review my biography JIR Bio.

Thank you for being a loyal Legal Bytes reader.

Fake News, Troubled Celebrity Endorsements & Social Media

On Tuesday, July 24, 2018, I had the privilege of presenting a live, interactive, video-conference program and course entitled “A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media,” sponsored by Lawline.
The course was broadcast live and also recorded at Lawline’s Studio in lower Manhattan and is now available for on-demand viewing at Lawline.com. With permission, I have also posted a PDF of the PowerPoint visuals used during the presentation (although you will not be able to see the embedded videos) and you can view or download a copy for your personal use right here: A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media

As always, if you need more information, you can contact me directly (Joe Rosenbaum) or any of the Rimon attorneys with whom you regularly work.