VanEck admits violation, agrees to SEC fine in ETF marketing

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VanEck Associates Corporation will pay a $1.75 million fine to resolve Securities and Exchange Commission (SEC) charges linked to its 2021 launch of a social media-focused exchange-traded fund (ETF).

The United States SEC imposed a civil penalty on the investment adviser. On Feb. 16, the SEC revealed in a statement that during the VanEck Social Sentiment ETF launch in March 2021, VanEck did not fully disclose the participation of a prominent social media personality in marketing the product.

The ETF aimed to follow an index using “positive insights” from social media and other data sources. However, the SEC discovered that seeking to boost the fund’s success via social media, VanEck collaborated with an influential and divisive online personality to enhance the fund’s appeal.

Screenshot of the SEC administrative and cease-and-desist order.    Source: SEC

Although the financial watchdog didn’t explicitly name the influencer, reports from 2021 have previously connected David Portnoy, Barstool Sports founder, to the promotion of the VanEck ETF. The regulator noticed an undisclosed detail, which was that the influencer’s fee was tied to the fund’s growth, guaranteeing higher compensation as the fund expanded.

The SEC criticized the hidden deal, focusing on VanEck’s failure to inform the ETF’s board about the influencer’s intended involvement. This undisclosed arrangement had significant implications for the management contract and fund operations, violating the board’s duty to oversee financial aspects during advisory contract discussions.

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Andrew Dean, co-chief of the SEC Enforcement Division’s Asset Management Unit, stressed the need for transparency from advisers. He noted that the failure to provide accurate disclosures hinders the board’s ability to properly assess the advisory contract and understand the economic impact of licensing agreements.

VanEck’s agreement to the SEC’s order admitted to its violation of the Investment Company Act and Investment Advisers Act. The company accepted a cease-and-desist order, censure, and the required financial penalty without acknowledging or denying the findings.

The announcement follows the company’s decision to terminate one of its ETF products, the Bitcoin Strategy ETF, a month ago after a thorough performance evaluation. In an apparent attempt to boost the popularity of its dedicated Bitcoin ETF carrying the ticker HODL, Van Eck signaled on Feb. 15 that it was lowering its fees from 0.25% to 0.20% as of Feb. 21.

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