Vanguard’s Novel Want Ad Sought Lawyer To Dig Up Dirt On Rivals

June 07--Who knew that a mutual fund company, like a political campaign, is seeking to hire lawyers to do opposition research, searching for questionable activity by rivals, in hopes of using it against them?

Vanguard Group did just that, posting a help-wanted listing on its website Monday for a marketing lawyer whose responsibilities include reviewing "competitors' campaigns for possible [regulatory] violations" and to "advise the business on whether to raise matters" with the Financial Industry Regulatory Authority, (FINRA) which oversees U.S. investment companies and can fine them or even kick them out of the business.

The ad was taken down Wednesday, the day after I emailed John Woerth, spokesman for the fast-growing, $4 trillion-asset investment giant, and he had indicated he was "working on" a reply. Asked in a follow-up whether the ad was removed by Vanguard in response to my inquiry, Woerth answered, "No." So did Malvern-based Vanguard find someone to fill the job? Woerth replied that the company is still looking for several lawyers "with expertise and experience in advertising, marketing, and brand management" and would seek them using "other means," not just the website.

Although it's not unusual for companies to challenge unfair competition, the practice of looking for competitors' violations and bringing them to regulators' attention is seldom laid out so explicitly, corporate defense lawyers and veteran regulators say.

"I've not seen something like that," said Timothy McTaggart, a partner at law firm Stinson Leonard Street LLP in Washington and a former Delaware state banking commissioner. "There are requirements that entities have to report to FINRA on third parties or vendors' activities; if something is askew, they have responsibilities to report it. But not for their competitors. This is a little different."

More commonly, a trade association will complain that members of another industry are poaching clients on its turf in apparent violation of, say, banking industry rules, McTaggart added. But for individual companies to target competitors before regulators "is unusual."

Companies' checking out and reporting competitors' potential violations "goes on all the time. But I can't say I've ever seen that made explicit in an actual job description," said John Soroko, chairman and CEO of Philadelphia's Duane Morris law firm, which has large corporate clients. "That's a new one on me," especially in the investments business, he added. "Guess you've got to give them a high grade for candor."

FINRA is the government-approved, industry-controlled overseer of U.S. investment companies and stock markets. Its enforcement arm can fine, suspend, bar, and expel licensed investment professionals and firms from the securities industry for breaking rules. FINRA also reviews investment ads, typically before they are published, though firms sometimes ask the nonprofit group to review competitors' published ads "for accuracy," FINRA spokeswoman Nancy Condon told me. She made an exclamation of surprise when I read her Vanguard's ad language, then said she could not comment.

Competitor complaints about ads for mass-market products and services are often lodged with advertising industry's self-regulating body, the Better Business Bureau's National Advertising Division, where Comcast and Verizon have been challenging each others' claims about internet speeds for years. It's also where Campbell Soup and Progresso squared off over Progresso's claim that it used South Jersey produce in its soup before Progresso closed its Vineland plant last year. The division sometimes tells companies to stop making claims that it can't verify. A 1990s ad dispute in which Pizza Hut challenged Papa John's "fresh ingredients" claims ended up in a federal appeals court, which found no harm done.

If opposition research isn't your specialty, but firing people is, another ad for a Vanguard position in Arizona may be of interest. Among other human-relations duties, the company seeks applicants willing to "support the involuntary termination process for crew members," and to "recommend and conduct termination as needed." "Crew members" are what Vanguard calls its 15,000 employees.

That ad was still up, as of Wednesday afternoon.

Here's the text of the Vanguard marketing attorney ad that was posted from June 5-7, with links and codes removed:

Associate Counsel, Marketing

Malvern, PA, US

June 5, 2017

Vanguard is a leading provider of financial products and services to individual and institutional investors worldwide. In addition, Vanguard is an employer of choice that continually invests in the growth, development and success of its employees over the course of their Vanguard careers. Known for its strong ethical business practices and client focus, Vanguard fosters a collaborative, team-oriented environment that rewards and recognizes its attorneys for providing business-focused legal solutions, with a strong emphasis on excellent client service and relationship management skills. Vanguard is seeking an attorney to partner with the business and Compliance to provide legal advice on all aspects of marketing and brand management issues.

Specific Responsibilities:

-Provide thought leadership on all marketing, advertising and brand management issues.

-Advise the business on the creation of a holistic brand management strategy and a marketing rules-based framework.

-Coordinate with PR on brand management issues and assist with positioning of content.

-Serve as a legal resource for our Advertising Compliance Group.

-Create guidelines to differentiate between marketing and servicing communications, and create appropriate processes to evaluate these different materials.

-Provide legal advice on all aspects of Vanguard's use of social media.

-Advise on marketing campaigns at their inception to ensure campaigns are consistent with all relevant laws, including FINRA marketing regulations.

-Provide legal advice with respect to FINRA inquiries on Vanguard marketing materials.

-Review competitors' campaigns for possible FINRA violations; advise the business on whether to raise matters with FINRA.

-Draft regulatory comment letters related to FINRA advertising rules.

Qualifications and Experience:

-Minimum 5-10 years of relevant professional experience; excellent undergraduate and -law school academic credentials

-In-house experience required, preferably in a global organization

-Demonstrated ability to influence business leaders and impact decision-making

-Demonstrated track record of providing business-focused solutions that combine excellent judgment, creativity, risk-taking, and technical expertise

-Demonstrated expertise in the use of data and digital market trends

-Shares Vanguard's values, including unmatched ethical standards, teamwork, client service, work ethic and positive attitude

-Vanguard is not offering visa sponsorship for this position

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