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Performance Advertising Guidelines For Investment Advisers Under the SEC’s New Marketing Rule

December 7, 2022 07:04 am 0 Comments CATEGORY: Regulation & Compliance

For investment advisers looking to attract prospective clients, advertising the performance of their investment strategies would be a logical way to market their services (at least if they had strong historical returns!). But for many years, advisers looking for guidance from the Securities and Exchange Commission (SEC) regarding what kind of performance advertising was permissible had to rely on fairly general guidelines and SEC staff statements in the form of “no-action” letters. But now, as part of its recently overhauled Marketing Rule (which also clarifies the rules surrounding investment adviser testimonials and endorsements), the SEC has codified its previous guidance regarding performance advertising into a single, fairly prescriptive rule.

To start, while the Marketing Rule contains seven general prohibitions applicable to all investment adviser advertising activities (including testimonials, endorsements, and third-party ratings, covered in a previous Nerd’s Eye View post), there are seven additional prohibitions applicable specifically to performance advertising. The first rule prohibits advisers from presenting gross performance without also presenting net performance with at least equal prominence, so that investors can assess returns that are actually received, net of fees and expenses paid in connection with the adviser’s services, and helping prospective clients better compare returns across different advisers.

The Marketing Rule also requires performance results to be presented consistently over 1-, 5-, and 10-year time periods (or the time period the portfolio has existed, if shorter than a particular prescribed period) preventing advisers from cherry-picking time periods that would make their returns appear more favorable. Furthermore, investment advisers may generally reference the performance results of related portfolios only if all related portfolios are included in the advertisement. Further, an investment adviser is prohibited from advertising performance results of a subset of investments extracted from a portfolio unless the advertisement provides, or offers to provide promptly, the performance results of the total portfolio from which the performance was extracted.

The SEC has heavily scrutinized the use of hypothetical performance in advertising for many years, and its restrictive stance is codified in the updated Marketing Rule. What actually constitutes hypothetical performance is quite broad and essentially includes any performance result that was not actually achieved by a portfolio of the investment adviser, and its distribution is limited to investors who are considered capable of independently analyzing the information and understanding the associated risks and limitations. Two final prohibitions under the Marketing Rule include restrictions on the use of predecessor performance (e.g., performance by an investment adviser before it was spun out from another adviser or by its personnel while they were employed elsewhere), as well as advertising that explicitly states or implies that that the calculation or presentation of performance results has been approved or reviewed by the SEC.

Ultimately, the key point is that the SEC’s recently overhauled Marketing Rule provides a consolidated set of guidelines for advisers to understand how RIAs are permitted to use advertising. Though, given the potential for future SEC guidance clarifying the new rule, or even possible Risk Alerts summarizing common deficiencies and best practices it observes during the course of its upcoming examinations, advisers looking to use performance advertising will want to pay close attention to how it is enforced in practice!

#FA Success Ep 310: Filtering Down To The Most Impact-Weighted Work To Scale Client Value, With Natalie Taylor

December 6, 2022 07:03 am 0 Comments CATEGORY: Financial Advisor Success Podcast

Natalie Taylor Podcast Featured Image FAS

Welcome back to the 310th episode of the Financial Advisor Success Podcast!

My guest on today's podcast is Natalie Taylor. Natalie is the owner of Natalie Taylor Consulting Services, an independent virtual RIA, and is also the Head of Financial Advice for Monarch Money, a personal financial management tool that helps consumers track their spending and net worth over time.

What's unique about Natalie, though, is how, during her years of working for a FinTech company, she realized that providing valuable financial advice that is more affordable for the masses ultimately requires collecting only the data, and delivering only the advice, that will provide the greatest amount of impact and value to the client… and filtering out the rest that just isn’t cost-effective advice for the end consumer.

In this episode, we talk in-depth about how, while working for LearnVest, Natalie realized that their financial advisors were much more limited by the constraints of data, time, and fees, than the traditional advisor, which inspired her to develop a framework that focuses on providing only the most impactful financial advice to help clients move forward right now, how while also working at LearnVest, Natalie developed a ‘brand voice guide’ to help all of their advisors communicate advice to clients more consistently, that revolved around 5 principles for advisors to implement during the advice delivery process (including “be the Coach”, “be the Expert”, “be the Cheerleader”, “wide lens/narrow lens”, and “listen and direct”), and how the acquisition of LearnVest by a large financial services company, and the repurposing of its technology tools, ultimately led to Natalie leaving and having to dismantle the advice offering she originally helped build and develop.

We also talk about how, in the early stages of Natalie’s career, she felt that as a young advisor she was not prepared to give advice at the level of an expert and instead switched firms to work with a mentor who recognized her talents and gave her more opportunities to work with higher caliber clients (and really build her confidence with them), how, after leaving LearnVest, Natalie focused on speaking engagements and consulting but reached a crossroads as she recognized she missed the type of direct impact she had for clients in her previous roles that doesn’t come from consulting alone, and how Natalie realized that she did not have to choose between her desire to provide a breadth of impact through a FinTech or a depth of impact with personal financial planning and instead chose to do both, by splitting her time between the launch of her own independent RIA while simultaneously joining a personal financial management tool company, Monarch Money, as the head of financial advice where she could help them systematize advice for the masses.

And be certain to listen to the end, where Natalie shares how working in FinTech and at an RIA helped her understand how important it is to balance between advice that is exact and solutions that may not be as ideal but helps the client actually move forward and take the next positive step, why Natalie believes it is important for newer, younger advisors to not get discouraged by the uncertainty of career paths and instead concentrate on getting clear on what values are important to them and using those values as a filter to find the next steps on their paths, and why Natalie believes the key to her success stems from developing her own personal list of 6 core values that she and her husband use to filter their major family and career decisions… and review each year to ensure the ongoing decisions they are making are still in alignment with what is really most important to them, and can keep propelling them forward in their careers and their lives.

So, whether you’re interested in learning about how Natalie dealt with having to dismantle the FinTech she helped develop, why Natalie ultimately decided to work simultaneously for a FinTech company and her own RIA, or why Natalie focuses her work on the meaningful impact she can provide in her clients’ lives, then we hope you enjoy this episode of the Financial Advisor Success podcast, with Natalie Taylor.

The Latest In Financial #AdvisorTech (December 2022)

December 5, 2022 07:06 am 1 Comment CATEGORY: Technology & Advisor FinTech

Welcome to the December 2022 issue of the Latest News in Financial #AdvisorTech – where we look at the big news, announcements, and underlying trends and developments that are emerging in the world of technology solutions for financial advisors!

This month's edition kicks off with the news that Savvy Wealth has raised an $11M Series A round to compete in the new category of ‘tech-enabled RIA’ – where the firm will use the bulk of its capital to develop its own in-house fully-integrated advisor tech stack, in the hopes that a better technology experience will both attract advisors to work for the firm, attract consumers to want to be clients of the firm, and enable their advisors to service more clients (and be more productive) with the firm.

Notably, though, the reality is that while few would argue that today’s ‘best-of-breed’ approach of cobbling together independent advisor technology solutions is perfect, advisory firms on average have continued to run remarkably healthy 25% - 30% profit margins, suggesting that while the technology may not be perfect, it’s not that broken, either. With a select number of ‘all-in-one’ solutions that form a consistent hub (around which the rest of the advisor tech stack is at least reasonably integrated), and a subset of tasks that can be solved with just a little extra administrative support, it’s not clear whether firms like Savvy can build technology that really materially alters the productivity and profit margins of a tech-enabled RIA. Not to mention that for most firms, the biggest inhibitor to expanding reach and growing faster is not its back-office technology efficiencies, but the cost of attracting new clients in the first place… which raises the question of whether Savvy is bringing (or raising capital to fund) an operational solution to what is still first and foremost a marketing problem?

From there, the latest highlights also feature a number of other interesting advisor technology announcements, including:

DPL Partners launches a new advisor-matching solution to solve for the inbound demand of consumers increasingly seeking out a new crop of no-commission annuity products
InvestCloud launches a new Advisor Connect solution that will allow larger advisor enterprises to embed an advisor-matching system into their own websites (presuming that the enterprise has a steady supply of prospects to go through the matching process!?)
IncomeLab’s LifeHub wins the ‘Best-In-Show’ award from the XYPN AdvisorTech Expo with an interface that consolidates the client’s entire financial life down to a single screen (that clients can then engage with to drill deeper)

Read the analysis about these announcements in this month's column, and a discussion of more trends in advisor technology, including:

eMoney Advisor launches a new Explore feature that helps clients move past just planning for their goals and instead have the opportunity to see what other goals might even be possible in the first place
BlackCloak offers a new ‘concierge cybersecurity’ solution for the most affluent clients of financial advisors who may want to spend a little more to protect themselves as potential ‘high-value’ highly-visible targets for hackers.

In the meantime, we’re excited to announce several new updates to our new Kitces AdvisorTech Directory, including Advisor Satisfaction scores from our Kitces AdvisorTech Research, and the inclusion of WealthTech Integration scores from the Ezra Group!

And be certain to read to the end, where we have provided an update to our popular “Financial AdvisorTech Solutions Map” as well!

*And for #AdvisorTech companies who want to submit their tech announcements for consideration in future issues, please submit to [email protected]!

Weekend Reading For Financial Planners (Dec 3-4)

December 2, 2022 02:08 pm 0 Comments CATEGORY: Weekend Reading

Enjoy the current installment of “Weekend Reading For Financial Planners” - this week’s edition kicks off with a research study suggesting that the market volatility experienced in 2022 could increase demand for financial planning services. This increased demand could be particularly acute among younger investors (who might be experiencing an inflationary environment and sustained market downturn for the first time) and those nearing retirement (who might seek professional guidance to ensure their retirement plan is secure).

Also in industry news this week:

Why a former SEC official expects the regulator to come out swinging when it comes to enforcing its new marketing rule
Why wrap fee programs appear to be in the crosshairs as the SEC begins to enforce Reg BI

From there, we have several articles on practice management:

The three essential skills firm owners need to build the right team, including why it is important to always be on the lookout for potential employees
Why it is important to identify the specific skill sets of firm employees and ensure that they are in sync with the requirements of their position
Why an incentive compensation program can be superior to a broad-based cost-of-living adjustment for both firms and their employees during the current inflationary period

We also have a number of articles on investments:

How launching an ETF can create efficiencies for advisors and their clients alike
A breakdown of the potential costs and benefits for advisors considering launching their own ETF
Why some RIAs are converting their SMA strategies into ETFs

We wrap up with three final articles, all about time management:

How to say ‘no’ to taking on extra work without burning any bridges
Why outsourcing or automating certain tasks can allow you to focus on what’s most important
How to set appropriate boundaries during the holiday season and beyond

Enjoy the ‘light’ reading!

Kitces & Carl Ep 100: Is Advisor Technology Really About Making Planning Faster… Or Better?

December 1, 2022 07:04 am 0 Comments CATEGORY: Kitces & Carl Podcast

Kitces Carl Ep Is Advisor Technology Really About Making Planning Faster Or Better

As financial planning has evolved over the years, better tools have become available to help advisors maximize their impact with more clients by increasing their efficiency. Financial planning technology, in particular, has allowed advisors to automate time-intensive back-office tasks and delegate routine analyses to support staff, freeing up their time to engage more personally with clients. However, as advisor technology continues to evolve, many tools have focused on helping advisors scale their financial advice to accommodate growing businesses. And while these tools are marketed as helping advisors become more efficient, advisors often wonder if technology helps them offer better financial planning or if it simply serves to systematize outreach to more clients with depersonalized and less insightful advice.

In our 100th episode of Kitces & Carl, Michael Kitces and client communication expert Carl Richards discuss the evolution of advisor technology, how advisor technology has shifted the focus for many firms toward offering advice at scale by leveraging speed and efficiency, and whether advisor technology is truly helping make advisors better… or just faster.

As a starting point, it’s important to recognize that while conversations in the financial services industry over the last decade have entertained the idea that technology (e.g., robo-advisors) might someday replace human advisors, there are still many elements of financial planning that benefit from engagement with a human advisor. As while advisors certainly can leverage technology to create faster and more efficient back-office processes that help scale a growing practice, the key point is that new technology tools can also help advisors engage in better conversations through innovative presentation tools (e.g., interactive scenario modeling, data management, and visualization), helping them create more meaningful client relationships. And by aiming to scale the delivery of advice to make the process faster will not necessarily be better for clients, because the reality is that clients are humans with complicated histories and relationships with money; even though it may be more efficient to provide them with easy-to-use do-it-yourself financial technology to help them budget and track their own progress, many will still need extra time with their advisor to help them work through more complex issues preventing them from reaching their financial goals. And maintaining positive, supportive relationships with clients who are struggling to overcome emotional and behavioral challenges around money takes time.

Ultimately, advisor technology can help advisory firms scale their businesses by improving back-office efficiencies, but it does not necessarily serve to help financial advisors scale the work of actually giving financial advice… at least not yet. While the challenge of delivering advice at scale is perhaps better addressed through serving more clients by adjusting the firm’s business models instead of their chosen technology tools, there are technology tools available that can help advisors provide better advice by facilitating deeper discussions of the client’s unique situation, which can result in longer-lasting and more meaningful client relationships!

Tax Advice Restrictions For Financial Advisors: How To Offer Tax Planning And Remain In Compliance

November 30, 2022 07:05 am 1 Comment CATEGORY: Regulation & Compliance

Taxes are a central component of financial planning. Almost every financial planning issue – whether it is retirement, investments, cash flow, insurance, or estate planning – has tax considerations, and advisors provide a great deal of value in helping clients minimize their overall tax burden. And yet, despite the prominent role of taxes in financial planning, advisors are often prohibited by their compliance departments from making recommendations for a specific course of action on a certain tax strategy. Which means that advisors are often left to figure out on their own how to guide their clients on tax-related matters without crossing the line into ‘Tax Advice’, which can potentially create certain liability issues for the advisor and their firm.

This is not because of any blanket regulation against financial advisors making tax recommendations. Although the IRS states that only designated tax professionals like attorneys, CPAs, and EAs can give advice on certain strategies (e.g., those that are designed to avoid taxation, such as tax shelters, that have a high potential for abusing tax laws), many of the tax strategies that financial advisors recommend are not meant to shelter income to avoid taxation altogether, but are instead designed to ensure that income is simply taxed more efficiently, such as by optimizing the timing or nature of income when it is taxed (e.g., Roth conversion strategies involve recognizing taxable income via the conversion to ensure funds are taxed at the lowest possible rate). From the IRS’s perspective, there is no requirement to be a designated tax professional in order to give advice on such strategies that optimize taxation.

For many advisors, engaging in tax advice is often prohibited because of the potential legal and financial liabilities that are opened up for advisors and their firms. Unlike investment advice, advisory firms are usually not required to create policies and procedures around properly given tax advice (unless they specifically employ designated tax practitioners), so there is often no clear-cut way to ensure tax advice is given correctly. And the consequences for incorrect tax advice can include legal and financial penalties if a client were to be harmed by the wrong advice – which is often not covered by the firm’s E&O insurance –creating an expensive liability when tax advice goes wrong.

For advisors who are prohibited from giving tax advice, tax planning can be an alternative approach for discussing tax matters with clients. Tax planning can range from giving general, nonspecific information on tax laws and regulations to creating detailed projections for clients and comparing the outcomes of potential tax strategies – so long as the planning does not also include a recommendation of a specific course of action that would constitute tax advice. Generally, the more detailed the analysis, the likelier it could be construed by the client as a recommendation – which is what ultimately matters, since a presentation that the client understands to be tax advice is as good as actually giving tax advice. In these circumstances, safeguards such as upfront disclosures and collaboration with the client’s tax professional may be necessary to ensure that the tax professional – and not the advisor – is the one making the actual recommendation.

The key point is that understanding what constitutes tax advice versus tax planning that doesn’t go so far as to make a recommendation can help advisors more confidently engage with their clients on tax matters without violating the unique rules set in place by their compliance departments. Having a framework for the types of advice to give and for the language to use when communicating strategies to clients can reduce the confusion of being obliged to provide guidance on taxes while being prohibited from giving actual tax advice. Because ultimately, the question around tax planning (if not outright advice) isn’t whether it should be offered, but how it can be delivered to provide the most value to clients while protecting the client, advisor, and firm!