Tag: Social Media

SEC (Securities and Exchange Commission) Guidance on the Testimonial Rule and Social Media

Godfrey Kahn

In March 2014, through question and answer format, the Division of Investment Management issued an Investment Management Guidance Update on an adviser’s or investment advisory representative’s (IAR) ability to use social media and to promote client reviews of their services that appear on independent, third-party social media sites.

Section 206(4) of the Advisers Act and Rule 206(4)-1(a)(1) (the testimonial rule) prohibit investment advisers or IARs from publishing, circulating, or distributing any advertisement that refers to any testimonial concerning the investment adviser or any advice, analysis, report, or other service rendered by such investment adviser. While the rule does not define “testimonial,” the staff previously has interpreted it to mean a “statement of a client’s experience with, or endorsement of, an investment adviser.”

Third Party Commentary. The guidance clarifies that in certain circumstances, an investment adviser or IAR may publish public commentary from an independent social media site if (i) the social media site’s content is independent of the investment adviser or IAR, (ii) there is no material connection between the social media site and the investment adviser or IAR that would call the site’s or the commentary’s independence into question, and (iii) the investment adviser or IAR publishes all of the unedited comments appearing on the independent social media site. The staff explained that publishing commentary that met these three criteria would not implicate the concerns of the testimonial rule and, therefore, an investment adviser or IAR could include such commentary in an advertisement.

Inclusion of Investment Adviser Advertisements on Independent Sites. The guidance also addresses the existence of an investment adviser’s or IAR’s advertisement on an independent site and notes that such presence would not result in a prohibited testimonial provided that (i) it is readily apparent to the reader that the advertisement is separate from the public commentary and (ii) advertising revenue does not influence, in any way, the determination of which public commentary is included or excluded from the independent site.

Reference by Investment Adviser to Independent Social Media Site Commentary in a Non-Social Media Advertisement (e.g., radio or newspaper). In the guidance, the staff explained that investment advisers or IARs could reference, in a non-social media advertisement, an independent social media site. For example, an adviser could state in its newspaper ad “see us on Facebook or LinkedIn” to signal to clients and prospective clients that they can research public commentary about the investment adviser on an independent social media site. In contrast, however, the investment adviser or IAR may not publish any testimonials from an independent social media site in a newspaper, for example, without implicating the testimonial rule.

Client Lists. The guidance also addressed posting of “contacts” or “friends” on the investment adviser’s or IAR’s social media site. Such use is not prohibited, provided that those contacts or friends are not grouped or listed in a way that identifies them as current or former clients. The staff carefully noted, however, any attempts by an investment adviser or IAR to imply that those contacts or friends have received favorable results from the advisory services would implicate the testimonial rule.

Fan/Community Pages. The guidance stated that a third-party site operating as a fan or community page where the public may comment ordinarily would not implicate the testimonial rule. However, the guidance cautioned investment advisers or IARs to consider the material connection and independence rules discussed above prior to driving user traffic to such a site, including through the publication of a hyperlink.

Sources: Investment Management Guidance Update, No. 2014-4, Guidance on the Testimonial Rule and Social Media (March 2014); Investment Company Institute Memorandum Regarding the Advisers Act Testimonial Rule and Social Media Guidance (April 1, 2014).

Article By:

Christopher M. Cahlamer
Elizabeth J. Chandler
Laura A. Hawkins
Susan Hoaglund
Helge Lee
Of:
Godfrey & Kahn S.C.

How to Write Blog Posts People Actually Want to Read [INFOGRAPHIC]

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The purpose of having a blog is to foster an online dialogue with prospects, clients and referral sources so that when they need someone who does what you do, they will think of your first. Drawing people into your conversation requires you to often step outside your comfort zone, since most attorneys write the way they were trained to do in law school.

But when it comes to writing blog posts that people actually want to read, that just doesn’t cut it.

The most important thing to remember when writing for those who don’t practice law for a living is to be authentic. And the best way to do this is to write the way you talk. As you sit down to craft a new post, imagine you are talking to a friend who needs your guidance on a legal issue. Use the same words you use in your everyday life. Forget the grammar rules and write your draft, then go back over it to correct any glaring grammatical errors.

The infographic below, courtesy of Copyblogger.com, outlines the other essentials for writing blog posts. Print it off and keep a copy by your computer to refer to as you write. Following these simple guidelines will have you authoring a compelling, lead-generating blog in no time.

Blogs Social Media

Article by: 

Stephen Fairley

Of:

The Rainmaker Institute

Facebook Post Breaches Confidentiality Provision of Settlement Agreement

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A Florida appellate court has ruled that a teenaged daughter’s post on Facebookmentioning her father’s confidential settlement of an age discrimination claim breached a confidentiality provision in the settlement agreement, barring the father from collecting an $80,000 settlement. Gulliver Schools, Inc. v. Snay, No. 3D13-1952 (Fla 3d DCA Feb. 26, 2014).

The plaintiff, Patrick Snay, was a headmaster of Gulliver, a private school in the Miami area. After his contract was not renewed, he sued for age discrimination. The parties reached a settlement pursuant to a written agreement, which included a detailed confidentiality provision. The provision stated in part:

13. Confidentiality . . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement. . . A breach . . . will result in disgorgement of the Plaintiff’s portion of the Settlement Payments.

A couple of days after the agreement was signed, Snay’s daughter, who had recently been a student at Gulliver, posted the following on her Facebook page:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

Snay’s daughter had about 1,200 Facebook friends, many of whom were current or former Gulliver students. Gulliver notified Snay of the breach and refused to tender the $80,000 to Snay under the terms of the settlement. (Snay’s attorneys received their portion). Snay moved to enforce the agreement. Limited discovery revealed that Snay and his wife notified their daughter “that the case was settled and they were happy with the result.” Snay denied ever discussing a trip to Europe. The district court held that Snay’s actions did not violate the terms of the agreement, but the appellate court reversed, noting that Snay was prohibited from “directly or indirectly” disclosing even the “existence” of the settlement.

The decision offers lessons for counsel, litigants, and parents. Counsel and litigants need to remember that these types of confidentiality provisions with disgorgement penalties are taken seriously by the courts and can be enforced. Parents need to remind their children to be mindful of what they post on social media, because it might have adult consequences.

Article by:

V. John Ella

Of:

Jackson Lewis P.C.

Bad Precedent: Lawyer Censured for Buying Google Keywords for Other Lawyers and Law Firms

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I thoroughly disagree with this anti-competitive, anti-consumer censure. It’s bad precedent.

Google Keywords

I was the defense’s law firm marketing/social media expert witness in Habush vs. Cannon & Dunphy on this very issue (although the lawsuit was filed under a Wisconsin state “invasion of privacy” statute).

This is common practice online.  When you Google “Avis,” a sponsored link for Hertz shows up in the margin.  The user isn’t deceived and everyone gets more information and more choices, which is good for consumers.  It’s a strategy that helps smaller firms with smaller marketing budgets compete against big-name, big-budget firms.

This keyword-bidding strategy is certainly aggressive, but it shouldn’t be considered unethical or unprofessional; it’s simply an issue of taste, which is subjective.  We shouldn’t legislate taste.

 

Article by:

Ross Fishman

Of:

Fishman Marketing, Inc.

New Social Network for Attorneys Now Online

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A new social network for attorneys – Foxwordy – has now launched and is offering any lawyer who is “an innovator and influencer in the legal industry” a free three-month membership to what its founder is calling an “invitation-only private social-networking platform brings together relevant top-tier legal colleagues to efficiently collaborate in real-time.”

Lawyer Attorney Social Media

It appears that this new site is aimed at creating a new attorney-to-attorney referral platform.  Foxwordy founder Monica Zent said that the site provides a way for attorneys to gain a peer validated reputation and encourages collaborations that would normally happen via the phone, in person or by email.

Some of the site’s features include:

  • Real-time collaboration with other lawyers working on common issues
  • Ability for attorneys to share best practices and language for legal documents
  • Listing of job opportunities similar to LinkedIn

Zent says there are currently 1,000 members on the website that is now out of beta.  The network will not be available to the public; it is designed solely as a website for attorneys to share information and collaborate, and membership is by invitation only.  You provide your name and email address on the home page to request an invitation.

It was unclear on the site how you are vetted for membership; since the site’s revenue model is based on subscriptions alone ($10 per month), I was guessing that the bar isn’t set too high.  And I was proven right after I had one of my non-attorney staff members enter her name and Gmail address, and she received a congratulatory email minutes later on her acceptance.

I’d be interested to hear from attorneys who sign up and participate on this new social network for lawyers – what are you finding of most value for your practice from this new social media tool?

Article by:

Stephen Fairley

Of:

The Rainmaker Institute

How a Lawyer can Start a Successful LinkedIn Group for Business Development (Part 2 of 3)

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In my previous post, we looked at some preliminary steps attorneys can take to plan a LinkedIn Group. Once you’ve laid this foundation, it’s time ask yourself three questions:

LinkedIn

  • Has the niche you seek to fill with your group been addressed by existing, active groups?
  • Is the focus of your group going to be broad enough to attract a reasonable amount of participants, while being narrow enough to attract your target audience?
  • Are you able to commit to starting meaningful discussions on a daily or weekly basis, encouraging group members to participate in the conversation and removing posts that are spammy or overtly sales-oriented? (This is your last chance to back out!)

Now that you are ready to take the plunge, you’ve got some housekeeping items to attend to:

1. Develop a Strategy

Draft a brief outline of your group’s focus, target audience and goals (both for the group and for yourself). State some objectives for the group, such as, “Inform members of timely news and events” or “Enhance the interaction among professionals in this industry.” Your outline should include a content plan that identifies, for example, the types of timely issues and events your group will track. Identify how you will track this information. Put as much detail into your group plan as you can prior to launching it, to ensure that you have a clear roadmap to guide your efforts.

2. Name Your Group

LinkedIn Groups are used to attract and coalesce like-minded people, so the group name should reflect the interest area. The name is also important as a search term – what words will your target audience type to find your group? Spend some time searching LinkedIn Groups to see what is already being used and what would work best for your group. Also, keep it under 54 characters – if it’s any longer, the title will get cut-off in a search.

3. Get a Logo

A logo is a key element in presenting your group as a professional entity. If you have an in-house designer, talk with him about your group and share your strategy so he can design something appropriate. If you don’t have an in-house designer, ask around for a freelancer. This process shouldn’t take long, but it will go a long way toward giving your group an identity.

4. Create Your Group

When you create your group on LinkedIn, you’ll not only want to have your logo ready to upload, but you’ll also want to post a group summary and a list of group rules for members to refer to.

5. Finally – Invite Contacts to Join!

  • Use your existing network to build an initial membership base. Invite coworkers, past colleagues, and clients (who fit the group’s profile) to join the group. LinkedIn will allow you to send out up to 50 announcements per day to your connections.
  • As manager of the group, regularly support group members who start, and contribute to, discussions. Do this by commenting, liking and sharing their posts.
  • It is permissible to visit similar groups of which you’re a member and mention your group. Politely compliment the group and then mention that you’ve got another group that members in your group’s niche may want to consider joining.

This is the second post in a three-part series detailing how lawyers can start successful LinkedIn Groups to foster their business development efforts. For Part one, click here.

Article by:

Aileen M. Hinsch

Of:

Knapp Marketing

How a Lawyer can Start a Successful LinkedIn Group (Part 1 of 3)

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Enter LinkedIn Groups.

I recently worked with an attorney who had identified a missing opportunity in his market. He was a member of real estate-related LinkedIn Groups, and he actively participated in these groups, but the groups weren’t focused on his local market. Knowing that his hometown had a thriving real estate community and its own specific issues (it’s a well-known tourist destination), he started planning his own group for local real estate professionals. With careful planning and maintenance, he saw his group grow to over 150 professionals in just 30 days, and he even picked up a new matter from a group member during this time. Cha-ching – SUCCESS!

So what did this attorney do to lay the foundation for a thriving group?

1. Research

This attorney researched the current LinkedIn groups for real estate as well as professionals of all industries within his local market. He made sure that his group would fill a void in the market, and he also reviewed the membership of other groups to confirm that his target audience was participating in these other LinkedIn groups – hoping to eventually lure them to his by providing a valuable network.

2. Planning

He understood that he would need to invite his own contacts to get the group up and running. Months before launching the group, he began building and categorizing his LinkedIn contacts by region and industry. He set aside time to do this every day for several months so he would have the quantity of contacts needed to start the group as well as having earmarked the appropriate contacts to invite. Put simply, he identified his target audience.

3. Participation

You know the saying, you need to walk before you can run? It’s true for starting a LinkedIn Group, too. Our attorney set aside an hour each Friday to post articles to groups he had already joined, as well as to his entire network. He also participated in discussions within these groups. This helped him to get used to the ongoing commitment required of managing a LinkedIn group, and it also educated him as to what works best in terms of providing quality content that spurs group conversations.

4. Enthusiasm

As I worked with the attorney on these initial steps, he reminded me of something that we all need to remember. Active, ongoing participation in anything – whether for business or pleasure – requires that you enjoy it. If you dread logging in to LinkedIn, then starting a group isn’t for you. But if you think this may start to “get a little bit fun,” as he did, then you know you are on the right path.

Article by:

Aileen M. Hinsch

Of:

Knapp Marketing

Google Sticks a Fork in Guest Blogging for SEO (Search Engine Optimization)

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Last month, Google’s Matt Cutts, who heads up the search engine giant’s webspam team, wrote this on the Google Webmaster blog:

So stick a fork in it: guest blogging is done; it’s just gotten too spammy. In general I wouldn’t recommend accepting a guest blog post unless you are willing to vouch for someone personally or know them well. Likewise, I wouldn’t recommend relying on guest posting, guest blogging sites, or guest blogging SEO as a link building strategy.

So should you halt your guest blogging efforts?  Well, in a word, no.  Because SEO is not the only reason you guest blog – either on other blogs, or hosting guests on your own blog.  Which is why Cutts later updated his original post to say this:

Google SEO Search Engine Optimization

It seems like most people are getting the spirit of what I was trying to say, but I’ll add a bit more context. I’m not trying to throw the baby out with the bath water. There are still many good reasons to do some guest blogging (exposure, branding, increased reach, community, etc.). Those reasons existed way before Google and they’ll continue into the future.

Guest blogging used to be ONE way to develop quality links back to your own website or blog. Unfortunately, those trying to game the system with low quality content have made it – as Cutts says – a spammy practice.  Those that use guest blogging as their sole source of link building will now be out of luck and may even be penalized.

But I would still recommend guest blogging as a way for attorneys to spread their authority to other audiences that may not have otherwise been engaged by your own blog or website.  It can also still be a great way for you to improve the visibility of your firm and, when shared on social media, can help your SEO efforts from that standpoint.

As this blog post and other recent developments at Google demonstrate, you can’t go wrong when it comes to SEO if you pay attention to these 3 things:

1.  Designing a website that provides users with a superb experience – from the way they navigate the site to the information they find there.

2.  Developing high quality, relevant content for your area of practice that people want to read to help them solve the problems they would hire you for, populated with relevant keywords.

3.  Being an active participant on social media networks that your prospects and clients frequent, sharing all that great content you’ve developed for your website and your blog and engaging online with your target market.

Article by:

Stephen Fairley

Of:

The Rainmaker Institute

What's Ahead for Legal Marketing in 2014?

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WebDAM, a web-based digital asset management company, took the time to gather data from industry experts and leading sources on digital marketing to create the infographic below, which illustrates the trends and statistics they believe will drive marketing in 2014.

Of primary interest to attorneys looking to strengthen their marketing program next year:

  • 78% of marketing executives think custom content is the future of marketing(Google agrees!)
  • B2B companies say blogs generate 67% more leads than those that don’t blog
  • Marketers are finding actual, money-paying clients on LinkedIn and Facebook
  • Customer testimonials have the highest effectiveness rating for content marketing (89%)
  • Inbound marketing delivers 54% more leads than traditional outbound marketing

Captivating marketing strategies

 

Article by:

Stephen Fairley

Of:

The Rainmaker Institute

National Labor Relations Board (NLRB) Judge Gives a “Like” to Facebook-Related Termination

Barnes & Thornburg

National Labor Relations Board (NLRB) Administrative Law Judge Jay R. Pollack recommended the dismissal of a complaint involving the termination of two former employees of the Richmond District Neighborhood Center, a non-profit organization in the San Francisco Bay Area that runs community programs including after-school and summer programs for youth.

facebook social media NLRB

The decision is all the more surprising because Judge Pollack agreed with the General Counsel that the employees at issue were engaged in protected concerted activity in complaining about their employer on Facebook; yet he found that some of the actions described by the employees (including having “crazy events [without] permission,” “do[ing] cool [expletive] and let[ting] [the employer] figure it out,” “playing loud music and get[ting] graffiti artists to place graffiti on the walls,” and hav[ing] clubs and tak[ing] the kids”) in their Facebook conversations were not protected. Accordingly, the Judge found that the employer could lawfully find that the employees conduct was not protected and that they were unfit for further service.

While this decision shows that not all social-media misconduct must be tolerated by employers, it is important for employers dealing with these types of issues to contact competent labor and employment counsel prior to making any termination decisions involving social media, as defending against an action of this nature before the NLRB can be costly.

Article by:

Of:

Barnes & Thornburg LLP