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UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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We are a inbound marketing agency who have a licence to deliver

Customer Question

We are a inbound marketing agency who have a licence to deliver marketing to firms by HubSpot (our partner). We received a letter from the FCA regarding their concerns that we are in breach of sections 19 and 21 of FSMA. They have issued a public warning against our company on their website. They state in their letter that the company we delivered the marketing campaign for were not approved for financial promotions although their literature clearly states that they are! The company that approved their financial promotions is an accountancy established in the UK over 60 years. The FCA state in their letter that the accountants do not have the appropriate permission to approve financial promotions as an exempt professional firm and the Financial promotions are unauthorised.
As an agency we do not collect client funds, give financial advice, or arrange deals of any kind. If a subscriber requests information on a particular company we simply forward the information and its left to the subscriber to do as they please with the information.
As far as we can tell the client we delivered the campaign on behalf of followed all correct procedures. Although it has been brought to our attention that their promotional literature sign off is invalid, we struggle to understand why the FCA has issued a public warning against our firm instead of investigating the authorised company that approved the financial promotion in the first place.
I want to know if we will need to employ a solicitor to reply to the FCA or whether a letter from the company director explaining our position will be enough to satisfy them. The irony here is we specialise in marketing for the asset management sector and understand regulation very well. As far as i understand we are not in breach of sections 19 or 21. Help?
Submitted: 2 years ago.
Category: Law
Customer: replied 2 years ago.
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Expert:  UKSolicitorJA replied 2 years ago.
S. 19 provides as follows
(1)No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is—
(a)an authorised person; or
(b)an exempt person.
Regulated activities include carrying on business relating to an investment of a specified kind or relating to property of any kind.
S. 21 provides as follows
(1)A person (“A”) must not, in the course of business, communicate an invitation or inducement to engage in investment activity.
(2)But subsection (1) does not apply if—
(a)A is an authorised person; or
(b)the content of the communication is approved for the purposes of this section by an authorised person.
Although you could argue that you are not in breach of S. 19 as you do not carry out regulated activities, you appear to be in breach of S.21 as you are communicating an invitation or inducement to engage in investment activity which has not been approved by an authorised person.
The accountancy firm is exempt, not authorised, and therefore does not meet the exemption in subsection 2(b) above.
A letter from the company director may suffice for now but if the FCA do not accept the argument, then it may be advisable to engage a solicitor.
Hope this helps