Susan B. Weiner Investment Writing - Susan B. Weiner Blog

Financial writers and compliance departments are often at odds. But the two sides must learn to get along. Nobody wins if flat writing turns off prospective clients. Or if marketers create unrealistic expectations in the minds of current or prospective clients.

“Weasel words” help writers and compliance officers coexist. Writers can often defuse compliance officers’ anxieties about guarantees by using words and phrases such as “may,” “we believe,” and “seek to.”

Disclosures are another tool. However, long disclosures are daunting. Sometimes I’d rather delete a topic than introduce a scary disclosure. For example, I’d talk about an investment strategy without referring to the mutual fund using the strategy.

Capitulation is the path taken by some. I don’t recommend that writers always cave in to compliance officers. Caving in is easy, but it doesn’t serve your material well. Sometimes compliance officers’ suggestions are based on their editorial preferences rather than a perception of legal or regulatory risk. When you point this out, compliance professionals are often open to negotiation.

Sometimes you can call in back-up. It’s helpful if a senior person in your organization backs you up by saying, “Our business is willing to take the risk of not making changes.” I’ve also achieved good results by presenting examples of similar companies with sterling reputations using the language questioned by my compliance officer.

I’m curious to learn more about how other writers–and compliance professionals–cope. Please answer the poll asking, “What’s your favorite way to make your financial writing acceptable to compliance?” You’ll find the poll in the right-hand column of my blog.

Here are your potential answers:

• Add disclosures
• Cave in to every request by compliance
• Insert “may” in sentences challenged by compliance
• Insert “we believe” at the beginning of sentences challenged by compliance
• Negotiate the most important points, cave in on the rest
• Say your business is willing to accept the risks of publishing without changes
• [Your own answer]

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Do your risk disclosures pass the Levitt test?

In “A Word to Wall Street: ‘Plain English,’ Please,” former SEC chairman Arthur Levitt sets a high standard for your communications about risk.

Levitt says, “For the language of financial disclosure, we need to raise the standard from ‘potentially understandable’ to ‘impossible to be misunderstood.’ ” His article appeared in The Wall Street Journal.

Levitt speaks harshly about the quality of financial communications. “It’s not just that much of this stuff is difficult to understand; it is written not to be understood.”

If you’re used to producing what Levitt calls “an avalanche of impenetrable verbiage,” it will take time for you to learn how to write using plain English.

Improve your disclosures

Step 1. Assess the quality of your communications. Ask if you can realistically expect a non-specialist to understand what you’ve written. Next, test your assumption by asking a representative member of your audience to read and then explain your text in their own words.

Step 2. Download A Plain English Handbook: How to create clear SEC disclosure documents, published by the SEC. It’s one of the best publications for financial writers and it’s FREE.

Step 3. Write, rewrite, and rewrite again. Start your long journey toward improving your financial disclosures. For me, it’s an ongoing challenge. There’s always room for improvement.

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Financial advisors, investment managers, and wealth managers worry about allowing comments on their corporate blogs. The wrong comment could land the blogging firm in trouble with the SEC or FINRA. Russell Investments offers a good example of how to handle this issue.

I imagine that Russell’s solution has three components, although only two are visible on its Helping Advisors blog.

If you allow comments on your financial or investment blog, are you using the three tactics I describe below?

1. Moderate comments.

When you enable comment moderation on your blog, no comments are visible to the general public until someone at your company approves them. This lets you vet problematic comments.

2. Provide “comment guidelines” for readers.

Transparency pays. You set more realistic expectations when you tell people that you won’t publish all comments and you share your guidelines. Russell does this nicely in “Comment Guidelines.” Their main points include the following:

• Russell may not respond.
• Stay on topic.
• Avoid investment advice.
• Be respectful.
• We respect your privacy.

I also like that Russell gives readers the phone number to call with client service issues.

3. Establish internal guidelines and procedures.

I’m guessing that Russell Investments has set up internal guidelines for deciding the kind of comment to squash. The firm can’t anticipate every situation, so it needs to have a process for referring questions to the appropriate decisionmaker.

The firm also needs procedures to ensure that comments are moderated in a timely and consistent manner. This may be a drag on resources. I noticed on the blog’s “Don’t let the scarcity mentality hold you back,” that a reader commented on Feb. 23, but the firm did not reply until March 1, six days later. I can’t tell if the reader’s comment was also held for six days.

What else should advisors consider if they allow blog readers to leave comments?

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Creative rights are complicated, but every writer and marketer needs to understand them. I’m happy that my friend, writer Wendy Cook, is letting me share her blog post on this topic.

The ABCs of Creative Capital Rights

By Wendy J. Cook

First, let me make myself perfectly clear: I’m not a lawyer. Before you act on any of my personal ruminations here, do please consult an attorney. (1)

That said, as a creator of creative capital, I think I can offer some good ideas from the front lines on frequently asked questions about its ownership, such as:

(1) How can I safely “borrow” from other people’s work?

(2) Should I protect my own work?

(3) What if I’ve hired a freelance writer?

Learning the Alphabet

Let’s begin with a brief tour of the creative lingo.

• Creative capital is anything you’ve invented (created), that is of some relatively demonstrable value to you and/or others (capital) — whether it’s written content, artwork, a product offering or a process.
• Copyrights protect your words.
• Moral rights protect your artwork.
• Trademarks protect your corporate identities, including logos, taglines and product names.
• Patents protect your products and processes.(2)

Lawyers the world over are likely cringing at my broad strokes here, akin to using a blow torch to light a candle, but it’s how I think about it all, anyway. Now that we’re in the ballpark, let’s touch on the bases.

Borrowing From Others

No matter how convoluted, laws exist to guide us on what we communally consider fair or foul. So “Do Unto Others” remains a great starting point for drawing on other people’s creative capital. Remember your grade school teacher’s response when asked if you could have a hall pass to escape? “Of course you can,” he or she would smirk. “But may you?”

Same thing with copyrights. Just because you can reproduce an article or a picture does not mean you’re allowed to. Whenever reproducing somebody else’s creative capital (beyond brief, properly cited quotes as described below), it’s your responsibility to proactively seek copyright or moral right permissions from the author or artist — which may justifiably involve paying them for it.

An exception to this rule of thumb is if: (1) you briefly quote and properly cite somebody’s content, and (2) you’re adding substantial value of your own, versus simply repackaging somebody else’s book report. (A while back, I blogged on some of the nuts-and-bolts rules when it comes to proper citing and sourcing. If you missed that blog the first time, you can revisit it now.)

Protecting What’s Yours

In a perfect world, everybody would respect each other’s creative fields, and you’d need never worry about someone unfairly harvesting the fruit of your labors.

Last I checked, it’s not a perfect world. If you’ve got creative capital that you want to protect against theft, here are some ideas.

Copyrights Have You Covered

Copyrights (and I believe moral rights too) are subject to an interesting characteristic. Authors automatically hold copyright to their work … at least until they choose to sell or grant it elsewhere. That’s whether or not you formally register it with the U.S. Copyright Office or display a notice on it, like: “Copyright © 2011, John Doe.”

So why bother with notices or registration? As I understand it, without these, your legal recourse is limited. For example, should someone violate your copyright when notice and/or registration are lacking, you may still be able to achieve a “cease and desist” order to prevent further offense, but you might have trouble collecting on damages done.

Thus, since it’s cheap and easy to do, go ahead and display a copyright notice on most of your work. Formal registration becomes appropriate if we’re talking book-length or for work that you highly value, but it doesn’t seem worth registering every scintillating word you share, unless you’ve got a whole lot of spare time and money you’re looking to get rid of. (If you do, I’ve got some better ideas; call me.)

Trademarks Are a Different Breed

Trademarks have very different rules from copyrights. My understanding is that you must not only formally establish registered trademarks for your logos, taglines and similar corporate identities, but you must also carefully maintain your ownership, lest it be lost through attrition. Protecting your trademarks requires at least these two important steps:

1. Including the “®” symbol in almost all appearances of your trademarked content
2. Regularly monitoring for and aggressively acting on any violations that occur

If you can’t demonstrate that you’ve been diligent on both of these steps, my understanding is that you can lose the ability to protect your trademark — even if you’ve gone through the bother and expense of establishing it to begin with. Ugh.

Bottom line, if it would be a serious blow to your business to lose the rights to your company name and/or particular product names, taglines or similar marks, it may be worth establishing and maintaining trademarks to protect them.

Freelance Writers and Designers

What if you’re working with a service provider to assist you with your corporate communications? As you might expect, the legal transfer of rights can be handled — or mishandled — in all sorts of ways. There are surely enough variations to provide an army of intellectual property lawyers with job security well into the next century. Since there is no universal standard that I’m aware of, whenever you work with creative alliances, it behooves you to ask how they personally handle it and to ensure that their processes work for you.

Personally, I’m fond of the KISS strategy. My practical goal is to transfer the copyrights and moral rights for client-specific projects to the client … once I get paid for doing the work. Brilliant, huh? I contracted a lawyer to help me form a legal agreement that describes this simple goal in copious legal language. Just as good fences make good neighbors, I believe that good formal agreements make for good working relationships. So far, I’m pleased to report my beliefs on that count have held true.

Even though this is one of my longer blog postings, clearly there’s plenty of remaining learning opportunities on the subject of protecting your creative capital and respecting that of others. So I’ll part with a couple of resources I’ve found handy in my own schooling:

• The Law (in Plain English) for Writers, by Leonard Duboff and Bert Krages II. A good book on copyrights and similar issues, from actual lawyers.
• The U.S. Patent and Trademark Office TESS database. A free resource to check on whether a trademark already is owned. But note, TESS is just a rough guide, not replacing formal trademark searches when warranted.

Wendy J. Cook Communications offers writing, editing and presentation services expressly for the fee-only, passive/DFA, Registered Investment Advisor community. By focusing on this niche, Wendy helps these firms effectively communicate with their clients, prospects, media and the general public in print, social media/Web and e-newsletter forums.

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(1) Lawyers who specialize in these sorts of things are often referred to as intellectual property (IP) attorneys.

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I’m thankful for the knowledgeable and talented professionals who have contributed guest posts to my blog this year.

Here’s a list of guest posts sorted by topic, including client communications, marketing, social media, and writing.

Client communications

Five Tips for Delivering Bad News to Clients by Kathleen Burns Kingsbury
Talking to clients about social investing by Annie Logue

Marketing

Adding Video into the Communications Mix by Samantha Allen
The Lost Art of the Thank You Card by Suzanne Muusers
My Six Best Marketing Tips for Independent Advisors by Steve Lyons
What’s a tomato got to do with getting your fund discovered? by Dan Sondhelm
Would you like to know how financial advisors are choosing products and making investment decisions in this market? by Lisa Cohen

Social media

Be Compliant When Using LinkedIn Messages by Bill Winterberg
Financial Advisors and Twitter by Roger Wohlner
Generate Quality, Low Cost Leads with Facebook Ads by Kristin Harad
How Seeking Alpha Can Build Your Professional Reputation by Geoff Considine
Investment analysts and social media by Pat Allen

Writing

Correct Grammar Errors in Your Writing Quickly and Easily by Linda Aragoni
Making Research Readable by Joe Polidoro

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Portfolio managers want to outperform their benchmarks. There’s no question in my mind about this. But how much of an advantage do you need before you can claim outperformance?

Outperformance for stocks

To keep things simple, let’s focus on portfolios investing in stocks.

Is it okay to claim outperformance if your return exceeds the benchmark’s by more than 1 basis point (0.01%), 25 bps, 50 bps, or 100 bps?

Or should the margin be calculated relative to the benchmark’s return? After all, exceeding the benchmark’s return by 26 basis points (0.26%) looks better when the benchmark returns 0.01% than when it returns 45%.

Please answer the poll in the right-hand column of this blog. I’ll report on the results in my February e-newsletter.

Diverse opinions on “outperform”

I’m literal-minded. To me, a fund “outperforms” when it beats its index by the tiniest margin, though I doubt that I’d crow about that. However, asset management companies often report such returns as “in line with” or “closely tracking” the benchmark. The concerns of their legal or compliance departments probably influence this decision.

Here’s one example:

…the Wasatch Heritage Fund posted a return of 6.22% for the quarter. These results closely tracked those of the Fund’s benchmark, the Russell 1000 Value Index, which returned 6.78% over the same period.

Meanwhile, some managers–including the manager of the Wasatch Global Science & Technology Fund–question whether their returns should be compared to benchmarks.

Typically, the first paragraph of our quarterly letter to shareholders includes a statement regarding the Fund’s performance relative to its benchmark. We intend to move away from this approach beginning with this letter, as
we think the industry norm of tracking performance versus a broad index on a quarter-by-quarter basis distracts from the Fund’s long-term investment strategy. Our new mantra, forged by the pressure of the 2008–2009 credit crunch, is that we must invest “away from the market” as we attempt to deliver exceptional long-term returns.

I’m looking forward to learning what YOU think.

Dec. 27. Oops. I made a miscalculation in discussing the Heritage example, so I’m deleting the offending sentence thanks to David Lufkin.

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Social media compliance is a big worry for financial advisors, so I was delighted when Bill Winterberg offered to write a guest post on three easy steps to be compliant using LinkedIn messages. I’ve quoted Bill in numerous blog posts and tweets on technology, social media, and tweets because he’s a great resource.

Be Compliant When Using LinkedIn Messages

By Bill Winterberg, CFP^®

An earlier post on InvestmentWriting.com highlighted a “whopping flaw” in LinkedIn’s messaging system that poses compliance issues for financial advisors. The concern is that no viable solution exists to archive and retain messages using settings on LinkedIn.

I believe that advisors can use LinkedIn messages without violating regulatory requirements, provided they follow the three steps below. The key in all three steps is to leverage an existing e-mail archiving service to capture and retain messages sent via LinkedIn.

Here are three steps advisors can follow to demonstrate proactive compliance when using LinkedIn messages.

1.      Use an e-mail archiving service and use the e-mail address being archived with all LinkedIn messages. If you’re not archiving e-mails today, you’re going to have a challenging time responding to audit requests by examiners. They almost always ask for e-mail communication in one form or another.

2.      Configure your LinkedIn E-mail Notification settings to control how you receive e-mails and notifications. All of your General options should be set to deliver Individual E-mail, as shown below. This will feed all LinkedIn messages sent to you into your e-mail system, so they will subsequently get archived by the service you established in Step 1.

3.      Here is the only part that requires you to do something manually. When you compose new LinkedIn messages−or reply to messages received−you must click the “Send me a copy” check box under your message window. Again, the copy of the message will be sent to your e-mail address that is subject to archiving through your archiving provider.

These three steps will leverage an e-mail archiving service to capture and retain message sent through the LinkedIn messaging system. Upon examination by a regulator, advisors will be able to quickly produce all messages sent using LinkedIn.

Bill Winterberg, CFP^®, is a technology consultant to financial advisors in Dallas, Texas. His comments on technology and financial planning can be viewed on his blog at www.fppad.com.

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CFA charterholders have strong feelings about fiduciary duty. This showed up in responses to my blog post on ” ‘CFA credential implies a standard of care not always upheld,’ says Forbes opinion piece,” which discussed brokers and fiduciary duty. So I’m happy to see that the CFA Institute has addressed this topic in “What’s a Broker to Do? Fiduciary duty and obligations under the CFA Code and Standards (registration required)” by Jonathan Stokes, head of Standards of Practice at the CFA Institute.

CFA charterholders who are brokers aren’t always fiduciaries

Stokes sums up the obligations of CFA charterholders who work as brokers as follows:

Although members and candidates must comply with any legally imposed fiduciary duty, the Code and Standards neither imposes such a legal responsibility nor requires all members to act as fiduciaries. In particular, the conduct of CFA charterholders who are broker/dealers may or may not rise to the level of being a fiduciary, depending on the type of client, whether the broker is giving investment advice, and the many facts and circumstances of a particular transaction or client relationship. (Bold added by Susan Weiner.)

Obligations vary by broker type

Charterholders challenges and obligations vary by broker type, according to Stokes’ article.

Execution-only brokers are not subject to fiduciary duty, but conflicts of interest should be disclosed. “Among the conflicts brokers should disclose are whether they offer different levels of services to all clients and whether they pay referral fees to outside organizations,” writes Stokes.

Retail brokers‘ clients should understand they’re in a relationship with conflicts of interest. I wonder how many grasp this. Clients often don’t absorb the significance of what’s written in a hastily skimmed client agreement.

Stokes says

For those who work in a sales capacity rather than a true advisory role, the client relationship is often based on the understanding that the range of investment advice is limited to that firm’s proprietary products or to other firms with distribution agreements with the brokerage firm…. Where the client agreement clearly states the nature of these conflicts, the client is deemed to understand that he will receive selective and potentially conflicted investment advice.

Institutional brokers “pose a particularly challenging area for application of the Code and Standards,” says Stokes. He notes that “disclosure of all relevant transaction details, including costs and commissions, is essential.” Moreover, “With multiple clients’ interests and objectives at stake, the institutional broker must remain impartial and reconcile (to the best of his or her ability) any conflicting client directions.”

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SEC-registered advisors must rewrite Part 2 of their Form ADV using plain language. The requirement takes effect in 2011.

You won’t be surprised to learn that I favor plain language, but I’m curious to know what you think of the new requirement.

Please answer the poll in the right-hand column of my blog, asking  “What do you think of the plain language requirement for Form ADV Part 2?”

• Bad idea
• Okay, but will cost too much time and money
• Good idea, but I’m not sure if it’ll be implemented effectively
• Great idea, I’m looking forward to it
• None of the above (please leave a comment)

By the way, the SEC’s plain English handbook is a great resource for your Form ADV rewrite, as Deborah Bosley and Libby Dubick point out in “Lemonade from legislative lemons: New ‘plain language’ rules for Form ADV give advisors a chance to stand out.” Investment News (Oct. 4, 2010, registration required).

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LinkedIn has a whopping flaw for advisors who’d like to keep their compliance officers 100% happy, and there’s no solution in sight. At least, not to my knowledge.

The problem is records retention, which is at the heart of conservative management of compliance risks from advisor communications. Much of what you post to LinkedIn can be automatically saved and archived using solutions provided by third-party vendors. But there’s no way to do this for messages sent via LinkedIn.

How to cope with LinkedIn’s weakness

If you’re a solo financial advisor who’s not subject to rigorous compliance controls, you may use one of the following approaches:

1. Taking the risk of neither automatically nor manually archiving messages
2. Manually copying your LinkedIn messages to your corporate email account, which I assume is automatically archived, by clicking on “Include others on this message” and then checking the “Send me a copy” box below the message.
3. Avoiding the use of LinkedIn messages, although the LinkedIn message function cannot be disabled–at least not to my knowledge

If you work for a large, conservative organization, your compliance department may ban you from using LinkedIn. I know this happens.

What’s the problem?

The barrier to solving this LinkedIn message problem may lie with LinkedIn, according to a communication from the @Backupify Twitter account. But I’m not sure if this is a challenge specific to Backupify or to all vendors.Meanwhile, I must thank @BillWinterberg of FPPad for connecting me with Backupify.

To back up what you can on LinkedIn

In the meantime, if you’re looking for a partial solution, Arkovi backs up most of LinkedIn. I believe that some of the firms listed in my blog post on “FINRA/SEC compliance for bloggers,” such as Smarsh and Socialware, also tackle this problem.

Please tell me if I’ve overlooked a solution. I’d like to share it with my readers. Meanwhile, check with your compliance professional about how to keep them satisfied as you use LinkedIn. You CAN do it.

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