On October 24, 2016, the staff in the Office of Compliance Inspections and Examinations (the “Staff“) of the U.S. Securities and Exchange Commission (the “SEC“) issued a risk alert announcing that it is examining registered investment advisers (“RIAs”) and registered broker-dealers for compliance with Rule 21F-17 under the Securities Exchange Act of 1934, as amended (the “Whistleblower Rule“). The following briefly summarizes the Staff’s risk alert and offers some practical guidance regarding steps that RIAs can take to help them comply with the Whistleblower Rule.
In short, the Whistleblower Rule prohibits a person from taking any action to impede an individual from communicating directly with the SEC staff about a possible securities law violation, including by enforcing or threatening to enforce a confidentiality agreement.
Compliance with the Whistleblower Rule has been an area of focus recently for the SEC. Indeed, the SEC has brought at least four enforcement actions in 2016 alone for violations of the Whistleblower Rule and touted that total whistleblower awards to date have exceeded $100 million.
According to the risk alert, the Staff is reviewing various documents during its RIA examinations, including compliance manuals, codes of ethics, employment agreements and severance agreements, to determine whether any provisions in those documents may raise concerns under the Whistleblower Rule. In particular, the Staff is concerned with provisions that: (i) purport to limit the types of information that an employee may convey to the SEC or other authorities; and (ii) require departing employees to waive their rights to any individual monetary recovery in connection with reporting information to the government. In addition, the Staff indicated that it would assess whether an RIA’s documents include other language that could, under the circumstances that such language is used, result in a violation of the Whistleblower Rule, such as provisions that:
- require an employee to represent that he has not assisted in any investigation involving the RIA;
- prohibit any and all disclosures of confidential information, without any exception for voluntary communications with the SEC concerning possible securities laws violations;
- require an employee to notify and/or obtain consent from the RIA prior to disclosing confidential information, without any exception for voluntary communications with the SEC concerning possible securities laws violations; and
- purport to permit disclosures of confidential information only as required by law, without any exception for voluntary communications with the SEC concerning possible securities laws violations.
The Staff noted that it is both citing deficiencies and making referrals to the SEC’s Division of Enforcement, as appropriate, when it encounters provisions in an RIA’s documents that it believes run afoul of the Whistleblower Rule.
Practical Tips for RIAs to Comply with the Whistleblower Rule
In light of the concerns raised in the Staff risk alert and the SEC’s recent enforcement trend concerning the Whistleblower Rule, RIAs should take immediate action to ensure that they are in compliance with the Whistleblower Rule. For example, RIAs should notify all current employees without delay that the RIA does not prohibit them from reporting possible violations of federal securities laws or regulations to the SEC, making other disclosures that are protected under the whistleblower provisions of federal law or regulation, or recovering any individual monetary award from the SEC or other government authority in connection therewith. RIAs should also send the notice to former employees with severance agreements to the extent that any language in those agreements could be interpreted as being inconsistent with the Whistleblower Rule. A sample notification for current employees that an RIA may use after modifying as appropriate for its particular circumstances (this notice can also be conformed for former employees with severance agreements) can be accessed here and is included as an exhibit below. 
Subsequently, RIAs should promptly review their compliance manuals, employment manuals, codes of ethics and forms of employment and severance agreements for compliance with the Whistleblower Rule. In addition, because the application of the Whistleblower Rule is not limited to employees, RIAs should also review their vendor agreements and other agreements and documents for compliance with the Whistleblower Rule. If an RIA finds any language that is inconsistent with the Whistleblower Rule, it should consult with counsel to appropriately amend or supplement these documents as soon as possible.
By Eric Wagner and Jamie Nash from Kleinberg Kaplan.
Eric Wagner chairs the Corporate Department at Kleinberg Kaplan. Eric focuses his practice on the financial services industry, specializing in advising both start-up and seasoned private investment funds, SEC registered investment advisors, family offices, commodity pool operators and commodity trading advisors on regulatory and strategic issues related to their formation, operation and investments. He has extensive experience in structuring management company ownership agreements and seed capital arrangements, as well as advising clients with respect to marketing agreements, employment matters, and general securities matters.
Jamie Nash is a partner at Kleinberg Kaplan where he focuses his practice on the investment management industry. Jamie advises start-up and mature private investment funds and investment advisors on issues related to their formation, structure and operation. He also advises clients with respect to management company operating agreements, seed capital arrangements, employment and consulting agreements, general securities law matters, commodities issues, third-party marketing agreements, soft-dollar arrangements and blue sky compliance. Jamie also spends a significant portion of his practice advising investment advisors with respect to establishing, implementing and monitoring compliance programs, as well as counseling clients through SEC investment advisor examinations.
 This sample notification is provided for informational purposes only. It does not constitute legal advice. Parties should consult with legal counsel familiar with their particular circumstances before distributing this notification.
Why the future of work hinges on a mutually beneficial employer-employee contract
By Stuart Hearn, CEO and founder of Clear Review, the leader in performance management
It feels like there’s been almost continual talk of the new world of work, and what the future of employment will look like, since the first day of lockdown. It’s true that it was a huge upheaval for many organisations that previously had been resistant to all but the most traditional working environments – nine to five, in a fixed office, with company-issued IT.
That said, the pandemic and its restrictions did not actually introduce a new way of working; they merely accelerated it, on a scale and at a pace no one could have foreseen.
So, in many ways it is less that there has been a change, and more that the change has happened so quickly. Had it continued gradually, then we would have seen more businesses, and managers, adapt slowly to the concept of remote teams as the norm, with all that it entails.
As it is, many leaders have been left with having to recalibrate their approach to feedback and management, while still dealing with the spectre of the pandemic and its threat to business continuity. In the early months, it was perhaps acceptable to allow certain elements of management, such as employee appraisals, to slip. Now, as what was once new becomes normal, this has to be addressed. Why? Because at a time when revenue streams are crumbling, engaged employees are critical in delivering results – one study found that “highly engaged teams show 21% greater profitability”.
Managing changing realities
Employers are therefore having to balance keeping employees engaged with a number of realities which are rapidly changing what we thought the future of work would be.
Firstly, there is remote working. Rolling lockdowns and local restrictions are going to be a short-term constant. Some employees have embraced it; others will feel more removed and under greater stress. It will be up to leaders to identify and address these polar opposites within their own teams.
Secondly, employers need to realise the impact technology, and in particular artificial intelligence, is going to have. Those businesses that were more digitally mature fared better in the early stages of lockdown; as everyone races to complete their own digitisation, employees are going to be faced with a continuous cycle of change. What’s more, while the process of transformation has never been this fast, it will also never be this slow again. That is a bewildering concept, and one that managers need to factor in when handling employees.
It all points to one undeniable – that the employer-employee contract is irrevocably changing.
A new employer-employee contract
What do we mean by the employer-employee contract? This is not the terms of employment; rather it is the mutual understanding that the employee will perform tasks as designated by the employer, at a set place, for a set amount of time, in return for renumeration and adequate support. The support might be the right equipment; it could, and should, include development, whether that’s with formal and informal training, progression plans or ongoing review programmes.
That all worked fine when everyone was in the same office, at the same time, every day. Now that isn’t the case, the old ways of managing, of supporting employees and of helping them develop don’t work. Added to this is the rapid pace of change previously covered and it is quite simple – using what worked in the past will not work in the future.
What employers, and more specifically managers and leaders, need to do is actively change the way they support their teams. The informal chats in the kitchen or between meetings no longer exist, so the monthly one-to-ones are suddenly too far apart to get a true sense of how employees are doing, both in terms of their performance and how they are feeling.
Time to change focus
As part of this, there needs to be a change in the focus, away from what employees are doing and towards what they are producing – so from inputs (such as being ‘in work’ at a certain time and for a set number of hours) to outputs. It is a shift towards a more continuous cycle of review and feedback, and it is two way – rather than having a set meeting, both employer and employee are sharing outputs, progress and feedback constantly. In doing so, employees can start to be measured on how they are contributing to the performance of the business, and their training and development tailored accordingly.
As the way we work has changed, so our relationship with work, in the form of the employer-employee contract, is changing too. As businesses set themselves up for an uncertain future, they need to reassess and realign how their employees are working, and tailor the way workforces are managed and supported accordingly. It is the only way employers will be able to retain and develop their teams to handle whatever comes next.
What is the Job Support Scheme, and how does it work?
By Kate Palmer, HR Advice and Consultancy Director at Peninsula
On 24 September 2020, the Chancellor, Rishi Sunak, announced that after the Job Retention Scheme (JRS) ends on 31 October, employers will be able to benefit from the new Job Support Scheme (JSS). The new scheme will be available for employers from 1 November 2020 regardless of whether they have made use of the Job Retention Scheme or not and will be in place until 30 April 2021.
Under the Job Support Scheme, with further clarification having been released on 22 October 2020, the Government will be able to help employers who are suffering from business downturn as a result of coronavirus restrictions or who have been told to close completely. It is separated into two provisions: JSS (Open) and JSS (Closed).
To access the JSS (Open), employees must work for at least 20% of their regular working hours – in ‘viable’ jobs – with employers covering the wages for those worked hours. For hours not worked, employers will be asked to contribute 5% of employees’ wages while the Government will contribute 61.67% of wages (for hours employees do not work), to a monetary cap of £1,541.75 per month per employee. The scheme will be open to small and medium-sized firms across the UK. However, for large businesses to qualify for the JSS (Open), they will have to meet a financial assessment test to show that their turnover is lower due to experiencing difficulties from coronavirus.
On 9 October 2020, the Chancellor first announced the expansion to the original JSS which is now being referred to as JSS (Closed). From 1 November 2020, all businesses across the UK who are required to close as part of local/national lockdown will receive wage assistance through JSS (Closed) for employees who do not work for a minimum of seven calendar days. A financial assessment for large businesses will, however, not apply. The expansion is being rolled out to run until 30 April 2021 with the Government paying two-thirds of each employee’s salary, up to a maximum of £2,083.33 a month per employee. Employers will not be required to contribute towards staff wages but will have to cover National Insurance Contributions and pension contributions.
For an employee to be entered into either of the two versions of the JSS, they must have been on the employer’s PAYE payroll between 6 April 2019 and 23:59 on 23 September 2020. Which means that a Real Time Information (RTI) submission notifying payment to the employee to HMRC must have been made at some point from 6 April 2019 up to 23:59 on 23 September 2020. The guidance confirms that JSS grants will be paid in arrears to reimburse the employer for the Government’s contribution. Claims can only be submitted in respect of a wage cost actually incurred in any given pay period after payment to the employee has been made, and that payment has been reported to HMRC via an RTI submission.
Claims can be made online from 8 December 2020, and reimbursement will be made every month.
B2B plays a big role in our economy, but how can it contribute to our recovery?
By Richard Parsons from True, creative B2B marketing agency, discusses the current state of marketing and looks ahead to what the future might bring.
The average consumer will likely be unaware that more than half of the companies listed on the FTSE 350 operate purely in B2B transactions. Not only that, but 50% of our economy is generated by B2B transactions and 82% of companies derive some or all of their income from B2B. There is also a global B2B trade surplus, unlike in B2C. The significant conAltribution of B2B is routinely missed but could hold the key to economic recovery.
The famous essay “I, Pencil” by Leonard E. Read, founder of the Foundation for Economic Education, lays out the different skills, materials and jobs utilised in the production of a pencil. An inexhaustive list includes cedarwood from Oregon, logs from California, graphite from Ceylon and clay from Mississippi. The list was so comprehensive that Read even named the lighthouse keeper signalling the ship in and the factory worker sweeping the floor as part of the employment dependant on the pencil.
B2C might dominate brand awareness for obvious reasons, but what is less obvious is it’s inescapable foundations in B2B. These companies play a vital role in our ongoing economic recovery and – drawing on lessons learned during previous economic challenges – here are some of the trends that we expect to play out over the coming months and into 2021.
Below the Line to Above the Line
Even in normal times, businesses tend to place a skewed emphasis on lead generation and brand conversion when they should be focusing on the top of the funnel. Typically, 90% of marketing spend is allocated to short-term lead generation, which translates as telemarketing and mailshots. This balance should be much closer to 50%, with the remaining 50% spent on building brand equity. A shift from Below the Line to Above the Line is essential if brands want to recover well.
Lead-generation tactics do have a role to play. Still, the B2B industry can be guilty of neglecting emotional marketing in favour of rational campaigns, and here they lose their power to attract new interest. The B2B Brand Index Study – the most extensive global study of its kind – established that creative campaigns are 12 times more efficient at delivering business success.
While there are clear differences, B2B and B2C also share certain similarities. For instance, brand awareness among a target audience will always be a fundamental part of securing revenue. A B2B decision-maker will not be as impulsive as a consumer, for example, choosing Coke or Pepsi, but it is still vital that your brand is well known.
This brings us to the Rule of Three – a well-documented concept of brand market share and consumer decision making in a developed market. When looking for the answer to a problem, a prospective customer will have around three known brands that could solve the issue immediately spring to mind as a result of exposure to memorable campaigns and sustained awareness building. Further research will often expand this pool of options to around ten brands, but when it comes to the crunch, one of the original three will win the purchase between 70-90% of the time.
Value for Money
Marketing budgets have been understandably pared back this year. In an April 2020 survey, 90% of respondents said their budgets were delayed or under review. The full economic impact of the COVID-19 is not yet clear, but we are a long way from normal market confidence, and many businesses are increasingly cautious when it comes to allocating marketing spend.
We know that this approach is wrong. According to System1, advertising ability to connect with people remains as strong as before, and media consumption has risen during lockdown. The CPM of Facebook advertising has gone from $1.88 in November 2019 to $0.81 in March 2020. In short, the ROI for marketing spend is better now than before and so those who can spend, should.
The events industry has clearly been badly hit, with months of planning, investment and time redundant. But seminars can become webinars and conferences can become virtual, and while this is small consolation for a devasted industry, virtual versions are generally cheaper than in-person events. This will leave a surplus of budget previously earmarked for events which means a reallocation of money to other facets of marketing to stimulate new revenues and a better recovery.
Think Long Term. Hold Your Nerve.
Institute of Practitioners in Advertising case studies show that brands that maintain marketing investment in recessions grow 4.5 times faster than brands that cut spend. Those that cut spend also struggle for longer and take five years to recover revenue. A marketing black-out might alleviate damage to bottom lines in the short term, but it will breed serious problems and long-term profit loss.
Of course, many brands will pursue the short-term fix and cut marketing costs, and this presents an opportunity for those willing to be bold. It might not feel like a wise investment as profits tumble alongside the rest of the sector but maintaining or increasing spend will allow brands to outflank competitors and for smaller brands to increase their share of voice and gain ground on more cautious industry leaders.
It remains to be seen how short-term marketing cuts will pan out in the mid to long term, but changes are indeed afoot. Crises are catalysts for change and, like any crisis, the current one will have winners and losers. Brands that hold their nerve, innovate and invest in their recovery are likely to see the benefit in the long term. The current economic uncertainty is accompanied by changes in other aspects of the way we live, work and travel. Rather than a threat, it presents an opportunity.
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