FSA Issues Guidance on Reviews of Counterparty Credit Risk Management by CCPs

On January 31. the UK Financial Services Authority (FSA) issued guidance FG12/03 with respect to certain aspects of counterparty credit risk management by central counterparties (CCPs). The guidance focuses on risk models and associated governance, processes and procedures. The FSA notes that other aspects related to counterparty credit risk management, such as participant entry criteria, while viewed by the FSA as equally important, are being discussed in other regulatory fora.

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FSA Fines Compliance Officer And Trader in Connection With Market Abuse Case

Following on from the disciplinary actions against David Einhorn and Greenlight Capital as reported in the January 27, 2012 edition of Corporate and Financial Weekly Digest, the UK Financial Servcies Authority (FSA) published final notices against two more individuals: Alexander Ten-Holter (a trader and former compliance officer at Greenlight Capital (UK) LLP) and Caspar Agnew (a trading desk director at JP Morgan Cazenove).

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David Einhorn and Greenlight Capital Inc. Fined £7.2M for Insider Trading

On January 25, the UK Financial Services Authority (FSA) announced the imposition of penalties totaling £7.3M (approximately $11.5M) on David Einhorn and Greenlight Capital Inc. (Greenlight), for market abuse in June 2009 in relation to trading in equities of Punch Taverns plc (Punch).

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FSA Issues Discussion Paper on Implementing AIFMD

On January 23, the UK Financial Services Authority (FSA) published a discussion paper (DP12/1) on the implementation of the EU Alternative Investment Fund Managers Directive (2011/61/EU) (AIFMD). The UK is required to transpose the AIFMD into UK Law by July 22, 2013.

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AIM Imposes Record Fine on NOMAD

On December 21, 2011, the London Stock Exchange announced that the disciplinary committee of its Alternative Investment Market (AIM) had imposed a fine of £400,000 (approximately $620,000) and a public censure on Seymour Pierce, a nominated advisor (NOMAD) for breaches of the AIM rules applicable to NOMADs.

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FSA Publishes Its Report on the Failure of RBS

On December 12, the UK Financial Services Authority (FSA) published its Report on the failure of the Royal Bank of Scotland (RBS) and the FSA’s conduct in relation to it.

 

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Consultation on Implementation of Amendments to EU Prospectus Directive

On December 13, the UK Financial Services Authority (FSA) and HM Treasury published joint consultation paper (CP11/28) UK implementation of the Directive amending the EU Prospectus Directive and the EU Transparency Directive (2010/73/EU). The Amending Directive came into force on December 31, 2010, and must be implemented by EU member states by July 1, 2012. Two aspects of the Amending Directive (increasing the minimum number of investors and the minimum total consideration for an exemption from the obligation to produce a prospectus) were implemented in the UK in July 2011. The consultation paper sets out how the UK intends to implement the remaining provisions of the Amending Directive.

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FSA Fines Integrated Financial Arrangements Plc $5.5 million for Client Money Breaches

The Financial Services Authority (FSA) announced on December 8, that it fined Integrated Financial Arrangements Plc (Integrated) £3.5 million (approximately $5.5 million) for failings in relation to segregation of client money. Integrated operates Transact, one of the UK's largest wrap platforms. This is the second largest penalty imposed by the FSA for client money rule breaches.

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FSA Fines and Bans Hedge Fund Manager's Compliance Officer

The FSA has published the final notice it has issued to Dr. Sandradee Joseph, the former compliance officer of hedge fund manager Dynamic Decisions Capital Management Ltd (Dynamic) (a hedge fund management company).

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FMLC Publishes Comments on HM Treasury Proposals for New UK Regulatory Structure

On November 22, the Financial Markets Law Committee (FMLC) published its final response comments to HM Treasury's June 2011 consultation on the government’s new UK financial services regulatory structure.

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European Parliament Passes Short Selling Regulation

On November 15, the European Parliament passed a resolution adopting, with amendments, the European Commission's proposal for a regulation on short selling and certain aspects of credit default swaps (CDS).

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ESMA Publishes Final Advice on AIFM Directive Implementing Measures

On November 16, the European Securities and Markets Authority (ESMA) published its final advice to the European Commission on possible implementing measures under the Alternative Investment Fund Managers Directive (2011/61/EU) (AIFMD).

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FSA Fines Private Investor $9.6 million for Market Abuse

On November 9, the UK Financial Services Authority (FSA) announced that it had fined Rameshkumar Goenka (Goenka), a Dubai based private investor, $9,621,240 for manipulating the closing price of Reliance Industries (Reliance) securities on the London Stock Exchange (LSE).

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FSA Imposes £8 Million Market Abuse Fine

On August 31, the UK Financial Services Authority (FSA) announced an £8 million (approximately $12.6 million) fine on Swift Trade Inc. (Swift Trade), a Canadian company that is not FSA authorized or regulated, for market abuse in the form of “layering.” It placed relatively large orders on one side of the London Stock Exchange (LSE) order book, which moved the share price. It then traded on the opposite side of the order book to profit from the share price movement. It then rapidly deleted the large orders that had been entered in order to cause the movement in price and repeated this conduct in reverse on the other side of the order book. None of these large orders were intended to be traded. They were carefully placed close enough to the touch price (i.e., the best bid and offer prevailing in the market at the time) to give a false and misleading impression of supply and demand, but far enough away to minimize the risk that they would be traded. The trading activity caused many individual share prices to be positioned at an artificial level, from which Swift Trade profited directly.

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FSA Obtains High Court Injunction Against Market Manipulation

On September 1, the UK Financial Services Authority (FSA) announced that it had obtained an interim High Court injunction preventing a number of companies and individuals from market manipulating in respect of certain UK-listed shares.

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Independent Commission on Banking Publishes Final Report

Co-authored by Andrew Turner

The Independent Commission on Banking (ICB) published its Final Report on September 12. The Final Report recommends that UK retail banking activities should be ring-fenced into separate subsidiaries and the imposition on both banks and other financial conglomerates of capital requirements that are substantially stricter than those required by Basel III standards.

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Fund Manager CEO and CFO Fined and Banned for Misleading Investors and Market Abuse

The Upper Tribunal (Tax and Chancery Chamber) has published its decision in Michiel Visser and Oluwole Fagbulu v. FSA.

Michiel Visser and Oluwole Fagbulu were fined respectively £2 million (approximately $3.3 million) and £500,000 (approximately $830,000). The fine on Fagbulu was reduced to £100,000 (approximately $166,000) on the grounds of financial hardship. Visser was CEO and Fagbulu CFO of Mercurius Capital Management Ltd (Mercurius), a UK FSA authorized entity that managed Mercurius International Fund Ltd (the Fund), a Cayman Islands hedge fund. During the relevant period from July 2006 to January 2008, the Fund had about 20 investors who had collectively invested approximately EUR 35 million (approximately $50 million). The Fund was placed in voluntary liquidation on January 11, 2008.

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Former Chairman of Wm Morrison Supermarkets Plc Fined for Breach of Share Disclosure Rules

On August 16, the UK Financial Services Authority (FSA) announced that it had published a final notice imposing a penalty of £210,000 (approximately $350,000) on Sir Ken Morrison (KM), the former chairman of Wm Morrison Supermarkets Plc, for breach of its shareholding disclosure rule DTR 5.8.3R.

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Latest FSA Hedge Fund Surveys Published

On July 27, the Financial Services Authority produced its latest biannual report Assessing Possible Sources of Systemic Risk from Hedge Funds. This report sets out the results of the FSA’s two regular hedge fund surveys – the Hedge Funds As Counterparties Survey (HFACS) and the Hedge Funds Survey (HFS). These were conducted in March and April 2011. The FSA conducts these surveys every six months to assist it in understanding potential sources of systemic risk in the hedge fund sector. (See Corporate and Financial Weekly Digests of March 4, 2011, and August 13, 2010, for articles on previous HFS and HFACS.)

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FSA Fines Willis Limited £6.895 Million for Anti-bribery and Corruption Systems and Controls Failings

The UK Financial Services Authority announced on July 21 that it had fined Willis Limited £6.895 million (approximately $11.2 million) for failings in its anti-bribery and corruption systems and controls. This is the biggest fine imposed by the FSA in relation to financial crime systems and controls to date. The FSA said that these failings created an unacceptable risk that payments made by Willis to overseas third parties could be used for corrupt purposes.

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FSA Publishes Paper on FCA's Approach to Regulation

On June 27, the UK Financial Services Authority (FSA) published a paper on the regulatory approach of the new Financial Conduct Authority (FCA), which will be one of two regulatory agencies scheduled to replace the FSA in 2013, the other being the Prudential Regulation Authority (PRA).

The paper sets out the FSA's initial thinking on how the FCA will approach the delivery of its statutory objectives. It covers the FCA's:

  • scope, and the number of firms it is expected to regulate, either solely or jointly with the PRA;
  • objectives and powers, including its approach to its new competition role and how it will coordinate with the PRA and other regulators; 
  • regulatory approach, including details of its attitude to proactive intervention and how it will follow up existing FSA regulatory initiatives; and
  • regulatory activities, and its risk framework and supervisory framework.

It also considers how the FCA will supervise markets, and its approach to wholesale business.

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FSA Publishes Financial Crime Measures

On June 27, the UK Financial Services Authority (FSA) published a financial crime consultation paper (CP11/12 – Financial Crime: A Guide for Firms) which proposes a new FSA guide designed to help firms reduce the risk of their businesses being used to facilitate financial crime, as well as other anti-financial crime measures.

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FSA Criticizes Banks' Management of High-Risk Money Laundering Situations

On June 22, the UK Financial Services Authority (FSA) published the results of a thematic review of how banks manage their money laundering risks, particularly with respect to high-risk customers including Politically Exposed Persons (PEPs), correspondent banking relationships and wire transfer payments.

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FSA Publishes Annual Report

The UK Financial Services Authority (FSA) has published its Annual Report for 2010/11, outlining its performance against the priorities set out in its 2010/11 Business Plan and its statutory objectives. The Report highlights, among other matters:

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FSA Issues Feedback Statement on Product Intervention

In FS11/3, a feedback statement on product intervention issued on June 14, the UK Financial Services Authority (FSA) announced that it will follow a new product intervention approach. It will actively regulate all aspects of the product life cycle and focus on the design, development and management of products. The FSA will continue its work on the later parts of the product value chain (including point-of-sale standards such as financial promotions, disclosure and advice).

The FSA acknowledges that further thinking and analysis will be required as it takes forward this approach in specific areas, and does not intend to consult on any specific new rules immediately. However, the FSA confirms its intention to move toward a single set of rules and guidance on product governance, building on what is already in place (including the treating customers fairly guidance on responsibilities of product providers and distributors for the fair treatment of customers).

FS11/3 is part of a wider debate about the future of financial regulation in the UK and the regulatory philosophy to be adopted by the Financial Conduct Authority (FCA). The FSA will publish shortly a document on the FCA's philosophy and hold a conference in late June 2011 to encourage further discussion on the FCA and what stakeholders expect from it.

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FSA Obtains Permanent Injunction and Fines and Bans Trader

On June 14, the UK Financial Services Authority (FSA) published the final notice it had issued to Barnett Alexander, a trader and former private client stockbroker. The FSA fined him £700,000 (approximately $1,128,000) for market abuse and banned him from performing any controlled function in an FSA regulated firm.

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FSA Obtains Boiler Room Fraud Conviction

On June 14, the UK Financial Services Authority (FSA) announced that it had obtained its first criminal conviction for boiler room fraud. David Mason was sentenced to two years' imprisonment, having pleaded guilty at Southwark Crown Court to: counts of carrying on a regulated activity without authorization; making false or misleading statements, promises or forecasts; and money laundering. He was also disqualified for six years from being a director of any UK company.

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Draft UCITS IV Implementation Regulations Published

On June 13, the UK government published in draft the Undertakings for Collective Investment in Transferable Securities Regulations 2011 implementing the UCITS IV Directive (2009/65/EC) into UK legislation and regulation. Assuming that they are approved by Parliament, the Regulations will be made and come into force on July 1. Changes to the FSA rules in relation to UCITS IV will be published in the near future.

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UK Government Publishes Legislative Bill on New UK Regulatory Structure

On June 16, HM Treasury published "A new approach to financial regulation: the blueprint for reform," which includes a "white paper" consultation document on its proposals for reform of the UK financial services regulatory structure and a draft Financial Services Bill, the primary legislation that would bring the reforms into effect.

The draft Bill sets out the provisions that will implement the government's structural financial services reforms. These include the measures necessary to establish the new regulatory bodies: the Financial Policy Committee, the Prudential Regulation Authority and the Financial Conduct Authority. The Bill makes very extensive changes to the Financial Services and Markets Act 2000 (FSMA), as well as to the Bank of England Act 1998 and the Banking Act 2009. The government intends to publish a consolidated version of FSMA, showing the proposed amendments, "as soon as possible."

The government has announced that it aims to introduce the Bill formally into Parliament before the end of 2011.

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FSA Revises Guidance on Reporting of Exchange Platform Derivative Transactions

The UK Financial Services Authority (FSA) recently announced proposed revised guidance on reporting on-exchange derivatives transactions conducted through exchange platforms. Under current FSA guidance, if a transaction conducted through an exchange platform is in a instrument whose characteristics differ from an exchange standardized derivative, the transaction must be reported as an OTC derivative transaction. If the instrument is fungible with an exchange standardized derivative, the reporting firm may report it as an on-exchange or OTC derivative transaction.

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FSA Fines and Bans Former Compliance Officer

The UK Financial Services Authority (FSA) recently announced that is had fined David McGrath, the former compliance officer of ActivTrades Plc, £3,000 (approximately $4,900) and prohibited him from performing the compliance oversight CF10 controlled function for any regulated entity because he lacked competence and capability to perform that function.

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FSA Censures BDO LLP for Failings as a Sponsor

On June 1, the UK Financial Services Authority (FSA) announced that it had censured BDO LLP for failings while acting as a sponsor during the takeover by Shore Capital Group PLC of Puma Brandenburg Limited. This is the FSA's first public censure of a sponsor in relation to the Listing Rules.

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£1.1m Fine and First High Court Injunction Against Market Abuse

On May 24, the UK Financial Services Authority (FSA) announced that it had fined Samuel Kahn £1,094,900 (approximately $1,790,000) and obtained a High Court injunction restraining him from committing market abuse. This was the first time the FSA had secured such a final injunction from the High Court.

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Prudential Regulation Authority's Approach to Banking Supervision Announced

On May 19, the Bank of England and the UK Financial Services Authority (FSA) published a joint paper, "The Bank of England, Prudential Regulation Authority - Our approach to banking supervision," setting out the current thinking on how the future Prudential Regulation Authority (PRA) will approach the supervision of banks, building societies, credit unions and investment firms.

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UK Independent Commission on Banking Consults on Reform of Banking System

Co-authored by Edward Black

On April 11, the Independent Commission on Banking (ICB), established by the UK Government in July 2010, published for consultation its interim report on potential reforms to the UK banking sector. Its proposals have the twin aims of financial stability and competition.

The ICB stresses that it has not yet reached any final conclusions. Its key interim proposals are:

  1. As expected, the ICB has stopped short of realizing the banks' worst fears—recommending a British version of the repealed U.S. Glass-Steagall Act and forcing a separation of ownership between investment and commercial/retail banking. However, it is recommending a form of "Glass-Steagall light"; retail banking operations can be owned by a combined, or "universal", bank, but must be ring-fenced into a separate subsidiary of the investment or combined bank.
  2. Systemically important banks should hold equity capital of at least 10% (up from the 7% recommended by new EU regulations). Investment and wholesale banking operations in the UK will only have to maintain capital reserves in accordance with international norms. The criteria for qualifying as a "systemically" important bank are not yet defined.
  3. Universal banking groups would be able to move capital between their investment and retail banking subsidiaries provided that each subsidiary meets its distinct capital reserve requirements at all times.
  4. The ICB does not at present recommend the adoption of a UK equivalent of the "Volcker Rule."
  5. Banks should issue debt which suffers some of the loss if the bank gets into trouble; the report is sketchy on the detail here but the principle is that the bank's bondholders, as well as its equity, should suffer at least some of the pain if a bank runs into trouble. The report also floats the idea of bank depositors' money ranking ahead of other debt on bankruptcy (as is already the case in a number of countries).
  6. The role of the proposed organizations which will replace the UK Financial Services Authority (FSA) in due course (see the June 18, 2010, and July 30, 2010, editions of Corporate and Financial Weekly Digest) is clarified. The Financial Conduct Authority, which will be responsible for prudential and conduct supervision of banks, investment firms and exchanges, is clarified. The other regulator replacing the FSA will be the Prudential Regulatory Authority, which will have primary responsibility for monitoring banks' balance sheets and financial soundness. 
  7. The UK retail banking market is perceived to suffer from a lack of competition. As it has over 30% of the UK retail market, ICB's preliminary recommendation is that Lloyds will almost certainly be ordered to sell off several hundred more branches. Other large retail banks may also be ordered to divest branches in order to promote competition.
  8. The ICB notes with approval proposals to standardize and clear OTC derivatives.

The consultation stage lasts until July 4. The ICB is due to issue its final report and recommendations to the UK Government in September 2011.

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Ministry of Justice Publishes Bribery Act 2010 Guidance

On March 30, the UK Ministry of Justice published detailed guidance on "adequate procedures" for companies to put in place to prevent infringement of the Bribery Act 2010. It also published a shorter "quick start guide" aimed at smaller businesses.

The Bribery Act, which will come into force on July 1, creates four criminal offenses: (1) bribing another; (2) being bribed; (3) bribing a foreign official; and (4) (for commercial organizations) failing to prevent bribery. If a commercial organization can show that it has adequate procedures in place, this can form the basis of a defense to the offense of failing to prevent bribery.

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UK Government Announces 2011 Budget, Tax Changes

On March 23, the UK Government announced its budget and tax proposals for the UK tax year April 2011–April 2012. Significant changes include:

  • Corporation Tax—Corporation Tax, payable by UK tax resident companies and the UK branches of non-UK resident companies, is to be reduced to 26% from April 2011, and it will then drop by 1% each year to 23% from April 2014.
  • Double Tax Treaties—New measures have been announced to combat the use of the UK's double tax treaties to avoid UK tax. These will target both UK residents (individuals, trustees and companies) who use tax avoidance schemes and overseas residents who claim benefits to which they should not be entitled under the UK double tax treaties. The Government will circulate draft legislation for comment in the fall with a view to passing legislation in 2012.
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FSA and FRC Publish Feedback on the Role of Auditors

On March 10, the UK Financial Services Authority (FSA) and the Financial Reporting Council (FRC) published a joint feedback statement, Enhancing the auditor's contribution to prudential regulation FS11/1, summarizing the responses to their June 2010 joint discussion paper, DP10/3, similarly titled.

DP10/3 was intended to stimulate debate on the contribution that auditors make to prudential regulation. It examined several key areas: (a) promoting dialogue and information-sharing between auditors and supervisors; (b) the application of professional scepticism by auditors; (c) the nature and extent of disclosures about management's key judgements; (d) FSA and FRC powers; and (e) the scope of auditors' reporting.

Following the discussion paper and wider work in this area, a number of actions have already been taken to enhance the role of auditors including: (a) development of a draft code of practice by the FSA, alongside the Bank of England, designed to enhance the dialogue between auditors and supervisors (see the February 11 edition of Corporate and Financial Weekly Digest); (b) increased dialogue between the FSA and auditors, individually and collectively, to discuss key financial reporting issues; (c) increased and more effective use by the FSA of Section 166 skilled person reporting; and (d) formalization of cooperative arrangements between the FSA and the FRC's Audit Inspection Unit, in a memorandum of understanding.

In addition, on March 10 the FRC also published feedback on its parallel discussion paper: Auditor Scepticism: Raising the Bar. The FRC confirms in this paper that it will continue to monitor the extent to which professional scepticism is being applied by auditors. It also announced measures designed to ensure a consistent understanding of the nature and role of auditor scepticism and appropriate support for, and transparency of, its application.

Click here to read the FSA/FRC joint feedback statement FS11/1.
Click here to read the FRC's feedback paper.

FSA Announces DEPP Changes

On February 25, the UK Financial Services Authority (FSA) announced certain changes to its Decision Procedure and Penalties Guide and its Enforcement Guide and Policy.

With effect from March 6:

  • Firms will be prohibited from paying any financial penalty imposed by the FSA on a present or former employee, director or partner of the firm or any affiliate.
  • The FSA has changed its policy for publishing decision notices (as opposed to final notices). In certain circumstances decisions may now be published even though the defendant has referred the matter to the Upper Tribunal by way of appeal.
  • The FSA will apply its "settlement discount scheme" to suspension periods as well as to financial penalties.

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FSA Hedge Fund Surveys' Conclusions Published

On February 28, the UK Financial Services Authority (FSA) produced its latest biannual report, "Assessing Possible Sources of Systemic Risk from Hedge Funds." This report sets out the FSA's key findings from two hedge fund surveys conducted in September and October 2010—its hedge funds as counterparties survey (HFACS) and its Hedge Funds Survey (HFS). The FSA conducts these surveys every six months to assist it in understanding potential sources of systemic risk in the hedge fund sector. (See the February 26, 2010, and August 13, 2010, editions of Corporate and Financial Weekly Digest for reports on previous HFS and HFACS.)

The February 2011 report's findings include the following:

  • The "footprint" of surveyed hedge funds remains small within most markets and leverage is largely unchanged. Therefore, risks to financial stability through the hedge fund market channel seemed limited at the time of the latest surveys.
  • Counterparties have increased margin requirements and tightened other conditions on their exposures to hedge funds, increasing their resilience to hedge fund defaults.
  • Some risks to hedge funds remain, particularly if they are unable to manage a sudden withdrawal of liabilities during a crisis period.
  • Counterparty credit exposures to hedge funds remain concentrated among a small number of banks.

The FSA stated that it intends to repeat the HFS and HFACS in March 2011. It also intends to work closely with the International Organization of Securities Commissions and other national regulators on a global approach to systemic risk data requirements for hedge funds.

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FSA Bans and Fines Corporate Finance Advisor for Market Abuse

On February 7, the UK Financial Services Authority (FSA) announced that the Upper Tribunal (Tax and Chancery Chamber) had directed the FSA to fine David Massey £150,000 (approximately $240,000) and ban him from performing any role in a regulated financial services firm for engaging in market abuse.

On November 1, 2007, Mr. Massey shorted 2.5 million shares of Eicom at 8p per share, knowing, as an insider, that Eicom intended to issue new shares at 3.5p per share. Mr. Massey immediately acquired 2.6 million shares from Eicom at the lower price, using those to close out his short sale. His profit on the transaction was over £100,000 (approximately $160,000).

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FSA Circulates "Dear CEO" Letter on Transition to New Regulatory Structure

On February 7, the UK Financial Services Authority (FSA) published a "Dear CEO" letter from Hector Sants, FSA Chief Executive, about the transition to the new regulatory structure first announced in June 2010 (see the June 18, 2010, edition of Corporate and Financial Weekly Digest) under which the FSA will, by late 2012, be replaced by two separate regulators (the Prudential Regulation Authority (PRA) and the Consumer Protection and Markets Authority (CPMA).

This week's letter states that the process of implementing the new regime will commence on April 4, when a Prudential Business Unit (PBU) and a Consumer & Markets Business Unit (CMBU) will replace the FSA's current Supervision and Risk business units. Mr. Sants will head the PBU and Martin Wheatley, CEO designate of the CPMA, will head the CMBU.

Regulated firms will be contacted in April 2011 with more information on where their supervision will be allocated within the new regulatory structure. The FSA will publish consultative papers on the transition during the remainder of the first half of 2011.

To read the letter, click here.
To read a statement on banking by the Chancellor of the Exchequer, click here.

Former City Executive Banned for Performing a Significant Influence Function without FSA Approval

On February 9, the UK Financial Services Authority (FSA) announced that it had banned Daniel Hassell, formerly a consultant at Vantage Capital Markets LLP, from working for a regulated financial services firm. The FSA found that Mr. Hassell had performed a significant influence function at Vantage without FSA approval.

Vantage had three capital partners. Mr. Hassell's job title was consultant. The majority of Vantage's brokerage business was previously owned by Mr. Hassell. That business line generated around half of Vantage's revenues. Although Mr. Hassell was not a capital partner at Vantage, he received approximately one third of Vantage's profits, was, on occasion, presented as an owner in correspondence and generally exercised a significant influence over the firm.

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FSA and Bank of England Announce New Draft Code of Practice for Auditors and Supervisors

On February 10, the UK Financial Services Authority (FSA) published for consultation a draft code of practice designed to improve audit effectiveness and ensure that supervisors are better informed about, and able to challenge, the firms they regulate.

The code of practice (the product of a joint FSA/Bank of England project) proposes increased coordination between auditors and supervisors. This should enhance the ability of the FSA to scrutinize specific accounting practices and related judgments and highlight emerging problems.

Principles are set out in the code for auditors and supervisors to follow when they deal with regulated firms. For certain firms, the code specifies a minimum level of formal meetings between the supervisor, the external auditor and the firm.

Andrew Bailey, Executive Director of the Bank of England, said, "With its emphasis on the importance of an open and constructive relationship, we are very pleased to be able to publish this draft code today as an important first step in redefining the nature of the auditor's role in the new regulatory framework."

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Longest Insider Dealing Jail Sentence Imposed

On February 2, the UK Financial Services Authority (FSA) announced the longest custodial sentence so far imposed for insider dealing. Christian Littlewood, a senior investment banker, was sentenced to three years and four months; his wife, Angie Littlewood, to twelve months suspended for two years; and a family friend, Helmy Sa'aid, to two years. The three had pleaded guilty to eight counts of insider dealing alleging that they had made almost £590,000 (approximately $930,000) profit from trades in a number of London Stock Exchange and Alternative Investment Market listed shares between 2000 and 2008 (see the January 14 edition of Corporate and Financial Weekly Digest).

Mr. Sa'aid was also ordered to pay £640,000 (approximately $1.03 million) in confiscation. Confiscation orders in relation to Christian and Angie Littlewood will be dealt with at a later date.

In passing sentence, His Honour Judge Leonard QC noted that sentences need to deter others. "Those rogue traders that let down the honest, discreet majority must be made to pay," he said.

Margaret Cole, the FSA's managing director of enforcement and financial crime said, "This was a case of systematic abuse by an approved person of their privileged position in the market—we are determined to stamp out such abuse. Our tough, coordinated approach to insider dealing and our commitment to taking on difficult criminal prosecutions has really begun to pay off; the guilty pleas and sentencing of the Littlewoods and Sa'aid shows that we can, and will, uncover insider dealing, even across borders, and that the people who commit these market offenses will not go unpunished."

To read the FSA's announcement, click here.

FSA Fines City Index for Transaction Reporting Failures

On January 20, the UK Financial Services Authority (FSA) published a final notice announcing that it had fined City Index Limited £490,000 (approximately $780,000) for failing to provide accurate transaction reports.

Between November 2007 and September 2009, City Index submitted inaccurate reports for about 2 million transactions (nearly 60% of its reportable transactions for that period). It failed to send any reports for around 55,000 reportable transactions and submitted incorrectly completed reports for a further 1.97 million transactions.

In addition, City Index was found to have breached FSA principles. It failed to put in place a mechanism for ensuring the accuracy and validity of its transaction reports, and failed to identify fundamental errors in its transaction reporting process upon the implementation of a new trading platform. These breaches occurred despite the FSA sending repeated reminders to firms of their obligations to provide accurate data and of the importance of compliance with the FSA rules on transaction reporting.

As it had agreed to settle at early stage, City Index qualified for a 30% discount from the original fine of £700,000 (approximately $1.1 million). Further, the penalty took into account the fact that City Index had taken steps to address the concerns raised including the retention of independent consultants to conduct a formal review of its transaction reporting and starting a project to remedy the transaction reporting issues.

To read the final notice, click here.

Jail Sentence Imposed for Insider Dealing

On January 21, Neil Rollins, a former senior manager of PM Onboard Limited, a waste industry firm, was sentenced to a prison term of 27 months for insider dealing and money laundering. Rollins was also ordered to pay £197,000 (approximately $310,000) in confiscation.

This case is the fifth successful prosecution brought by the UK Financial Services Authority (FSA) as part of its ongoing drive to promote efficient, orderly and fair markets and to tackle market abuse. The sentence follows Rollins's trial which ended in late November 2010 with guilty findings on five counts of insider dealing and four counts of money laundering after he traded on the basis of information he obtained as a result of his senior position and laundered the proceeds.

Margaret Cole, Managing Director of Enforcement and Financial Crime at the FSA, said: "By pursuing a criminal prosecution in this case, the FSA has shown that it will take tough action against those who abuse positions of trust by dealing on the basis of inside information. Rollins' crime was aggravated by the fact that he sought to hide his conduct from the FSA by laundering the proceeds. The guilty verdicts and sentence in this case send a message, loud and clear, that insider dealing and money laundering are serious crimes."

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FSA Issues Discussion Paper on Product Intervention

On January 25, the UK Financial Services Authority (FSA) published DP11/1, a discussion paper on Product Intervention. DP11/1 considers how the FSA and its successor (the planned Consumer Protection and Markets Authority (CPMA)) should pursue consumer protection and sets out initial proposals for comment.

As part of its new consumer protection strategy introduced in 2010, the FSA has adopted a more interventionist approach with the aim of anticipating consumer detriment where possible and thereby preventing it. This approach aims to scrutinize the whole of the product life cycle from start to finish rather than just focusing on issues arising at the point-of-sale.

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FSA Fines JJB Sports PLC for Disclosure Failings

On January 25, the UK Financial Services Authority (FSA) issued a Final Notice to JJB Sports plc that detailed a fine of £455,000 (approximately $725,000). The FSA found that JJB had failed to disclose information to the market about the true cost of two acquisitions. These failings had led to a false market in JJB shares for over nine months.

On December 18, 2007, JJB announced its purchase of Company A for £5 million (approximately $8 million). JJB failed to disclose that in addition to that purchase price it had also paid approximately £10 million (approximately $16 million) for in-store stock.

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FSA Fines and Bans Firm and Its Partners for Improperly Promoting Unregulated Funds

On January 19, the UK Financial Services Authority (FSA) published final disciplinary notices to Clark Rees LLP (CR) and its two partners, Ceri Rees and Paul Clark. Mr. Rees was fined £17,500 (approximately $27,800), and Mr. Clark was fined £10,500 (approximately $16,700). Both partners were banned for two years from performing customer functions in relation to unregulated collective investment schemes (a category of fund products which includes almost all private funds including all hedge funds other than those established within the EU Undertakings for Collective Investment in Transferable Securities framework), and both were permanently banned from carrying out senior management functions in a regulated firm. The FSA revoked CR’s permission to carry on investment business.

The FSA found that both Mr. Clark and Mr. Rees had failed to educate themselves about the statutory and regulatory provisions relating to the marketing of unregulated collective investment schemes and in particular the limited circumstances in which they can be promoted to retail customers. Promotion of such funds is permitted only to retail investors when they met specific qualifying criteria primarily in relation to investment experience. Neither partner of CR was aware of these restrictions, and as a result, promoted and recommended unregulated collective investment schemes to ordinary retail investors.

This specific disciplinary action by the FSA follows from its general announcement on the sale of private investment funds, as reported in the August 13, 2010, edition of Corporate and Financial Weekly Digest.

To read Paul Clark’s final notice, click here.
To read Ceri Rees’s final notice, click here.
To read Clark Rees LLP’s final notice, click here.

FSA Announces Three Plead Guilty to Insider Dealing

On January 10, the UK Financial Services Authority (FSA) announced a guilty plea by three people accused of insider dealing. Christian Littlewood, a senior investment banker, his wife, Angie Littlewood, and a family friend, Helmy Sa’aid, pleaded guilty to the eight counts of insider dealing alleging that they had made almost £590,000 (approximately $930,000) profit from trades in a number of London Stock Exchange and Alternative Investment Market listed shares between 2000 and 2008.

Mr. Littlewood worked at Dresdner Kleinwort until 2007 and at Shore Capital from 2008 to 2009. His wife was a qualified barrister who had also worked as an investment banker. Mr. Sa’aid, a Singaporean national, was returned to the UK in March 2010 after being extradited from Mayotte, one of the Comoros Islands in the Indian Ocean.

Margaret Cole, the FSA’s Managing Director of Enforcement and Financial Crime, said: “It seems that the penny is beginning to drop. These guilty pleas show that our strategy of a tough approach to insider dealing—and, in particular, demonstrating that we are prepared to fight difficult criminal prosecutions to trial—is paying off. Dedicated hard work, bold and innovative use of the tools at our disposal and close seamless cooperation between our markets, enforcement and intelligence functions underpin our successful track record in this complex area.”

The trio’s sentencing and confiscation hearing will take place in early February.

To read more, click here.

FSA Chief Executive Gives Speech on Financial Services Reform

On December 13, Hector Sants, Chief Executive of the UK Financial Services Authority (FSA), gave a speech setting out the progress made toward the bodies that will replace the FSA: the Prudential Regulation Authority (PRA) and the Consumer Protection and Markets Authority (CPMA).

Key points covered by the speech include:

  • The PRA is to design a risk model to assist with financial stability damage control in the event that a firm fails.
  • The CPMA will be given greater powers of intervention than those currently available to the FSA. This will allow the CPMA and the PRA to intervene earlier than the FSA does at present. 
  • A review of FSA rules will take place, with a view to slimming down prudential rules. While CPMA rules will focus on guidance and principles, there will be a shift to prescriptive requirements. 
  • The FSA’s approach to wholesale conduct will be reviewed, and regulation will be developed where market discipline has proved ineffective. 
  • The FSA and Bank of England envisage that a high-level memorandum of understanding, with detailed annexes, will be essential to ensure effective coordination between the CPMA and the PRA. 
  • In April 2011, the FSA will replace its current risk and supervision business units with a prudential business unit and a consumer business unit.

To read the speech in full, click here.

FSA Issues Two Final Notices for Market Abuse

On December 14, the UK Financial Services Authority (FSA) published two final notices imposing fines and prohibition orders on two former employees of Pacific Continental Securities (UK) Limited (PCS). The notices follow a decision by the FSA that William James Coppin and Perry John Bliss contravened Sections 118(3) (improper disclosure) and 123(1)(b) (encouraging another person to engage in behavior which, if engaged in by himself, would amount to market abuse) of the Financial Services and Markets Act 2000.

The two former stockbrokers had used inside information relating to the Alternative Investment Market company Provexis plc to encourage clients to buy its shares. The information, detailing a collaboration agreement made between Provexis and a major food company (which was not named) was emailed to them in the form of an unapproved sales script. Despite the PCS compliance team circulating notices warning against mentioning an agreement made by Provexis during sales calls, Mr. Coppin and Mr. Bliss continued to make such calls to clients. This amounted to market abuse. As a result of these calls, a number of agreements were made for clients of PCS to buy Provexis shares. Three days later, Provexis announced a collaboration with Unilever.

Mr. Coppin and Mr. Bliss were respectively fined £70,000 (approximately $109,300) and £30,000 (approximately $46,800) (reduced from £60,000 due to Mr. Bliss’s financial circumstances).

To read more, click here.

FSA Secures Winding-Up Orders Against Unauthorized Operators of Collective Investment Schemes

On December 9, the UK Financial Services Authority (FSA) announced that it had obtained winding-up orders in the High Court against two UK entities: Bio Partners Ltd and Zambia Alpha One LLP. Each was a firm that was not FSA authorized and was operating a collective investment scheme (CIS) in breach of the “general prohibition” of the UK Financial Services and Markets Act 2000.

The firms operated a CIS which invested in a bio-fuel crop grown in Africa. They had collected almost £1 million (approximately $1.6 million) from the UK. The FSA petitioned the High Court for winding-up orders in the interests of consumer protection.

Margaret Cole, the FSA’s managing director of enforcement and financial crime, said: “Operating a collective investment scheme is a serious business requiring FSA authorization. Without the proper authorization, neither Bio Partners or Zambia Alpha had any business running one of these schemes and put [sic] investors’ money at risk.”

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UK Government to Introduce Bank Levy

On December 9, the UK Government announced its intention to introduce a levy on UK banks and the UK branches and subsidiaries of foreign banks. The bank levy will be implemented for all accounting periods ending on or after January 1, and will be charged at an annual rate of 0.05% for 2011 and 0.075% from 2012 onwards. The levy will be charged on the bank’s equity and liabilities, subject to certain exceptions such as Tier 1 capital, segregated client money and customer deposits protected by a depositor protection or insurance scheme. The first £20 billion (approximately $32 billion) of liabilities will be exempt from the levy.

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FSA Seeks Details of Bankers' Pay

On November 10, the UK Financial Services Authority (FSA) circulated its proposals for increased disclosure requirements for bankers’ remuneration. Under these proposals, British banks will have to provide a more detailed breakdown of the pay of senior managers and employees who have a material impact on each bank’s risk profile in any single year. Banks will be obliged to supply the total amount paid in cash and share bonuses, deferred remuneration (awarded and outstanding) and severance payments made to employees. The proposals will enter into force at the start of 2011, and their requirements will begin to apply with respect to pay awarded for work during 2010.

There is a short consultation period of a month for these proposals, which are designed to implement European provisions enacted earlier this year as part of the revised Capital Requirements Directive.

As several other member states (including Germany and France) have not yet produced their equivalent rules, the FSA has been criticized in some quarters for compromising London’s status as a European financial center by providing for its rules to be effective from January 2011.

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FSA Announces New Policy on Mobile Phone Taping

On November 11, the UK Financial Services Authority (FSA) published its Policy Statement 10/17 (feedback on its “taping of mobile phones” consultation and final rules). This follows the FSA’s consultation paper CP10/7 of March 2010, which proposed the removal of the mobile phone exemption from the FSA taping rules. The CP10/7 consultation period ended in June of this year.

The FSA confirmed that the exemption will be removed. As a result, from November 14, 2011, the following will be required of FSA regulated firms:

  • all relevant communications made with, sent from or received on mobile phones and other handheld electronic communication devices that are issued by firms for business purposes must be recorded and stored for six months; and
  • reasonable steps must be taken to ensure that such communications do not take place on personal devices that cannot be recorded for privacy reasons.

To read the policy statement, click here.

Government Announces Workplace Pension Reform

On October 27, the UK Government announced that it will implement pension reforms as suggested in the recently published report of an independent review team commissioned by the previous Labour government. Specifically, the team reviewed the practicalities of automatic enrollment in workplace pension schemes.

A new Pensions Act will introduce three key reforms to workplace pensions:
 

  1. new legal duties requiring employers to automatically enroll eligible employees into a qualifying pension scheme;
  2. a compliance regime enforced by The Pensions Regulator; and
  3. the establishment of a new low-cost pension scheme, the National Employee Savings Trust (NEST). NEST will be available to all employers.

The reforms will apply to all employers, including those in small companies. Automatic enrollment will be phased, starting in October 2012 with the largest companies and continuing through 2016. By the end of this phasing period, all employers must enroll employees earning more than £7,500 (approximately $12,000) in a pension. Employer contributions will also be required for employees earning more than £5,700 (approximately $9,100). During the initial period between 2012 and 2016, employees and employers must contribute a collective minimum of 2% of earnings, with a minimum of 1% coming from the employer. From October 2012, once the reforms have been fully implemented, the minimum contribution will rise to 8% of earnings, with a minimum of 3% coming from the employer.

Employers will have the option of a three-month waiting period before automatic enrollment, to avoid having to enroll temporary workers.

To read more, click here.

Market Abuse Fine Increased by Appeal Tribunal

On October 20, the Financial Services and Markets Tribunal issued its decision in the matter of Andre Jean Scerri and the UK Financial Services Authority (FSA). Mr. Scerri’s fine was increased from £46,062.50 to £66,062.50 (roughly $104,276).

Mr. Scerri was a private investor in Amerisur Resources plc. On May 23, 2007, he was given inside information by another private investor that an order had been placed for the following day at discounted prices (the Placing). Mr. Scerri immediately cancelled his order to increase his position in Amerisur. After Amerisur’s broker formally made him an insider in the Placing, Mr. Scerri sold his remaining positions before the public announcements. He then rebuilt the majority of his position by buying back at discounted prices. The disgorgement represents the difference between the two prices.

The FSA initially decided not to impose the penalty of £20,000 (roughly $31,500) due to Mr. Scerri’s financial hardship. However, the Tribunal found that his evidence had been incomplete and misleading and that his hardship had been self-induced (due to making hundreds of unsuccessful trades after being notified by the FSA of their proposed penalty).

To read more, click here.

FSA Publishes Policy Statement on the Client Assets Sourcebook

On October 20, the UK Financial Services Authority (FSA) published its Policy Statement (10/16) on the Client Assets Sourcebook (Enhancements) Instrument 2010.

The policy statement is relevant to regulated investment firms who hold the relevant client assets and money permissions, as well as their senior management and staff with client money and/or asset responsibility, their trade associations and firms who intend to hold or control client money.

Despite mixed feedback, the FSA broadly intends to proceed with proposals which were contained in CP10/9 Enhancing the Client Assets Sourcebook (CASS) (issued in March 2010). The FSA proposed:

  • disclosure annexes for prime brokerage agreements;
  • daily reports to prime brokerage clients;
  • reduced maximum placements of client money with banks in the same corporate group as the relevant broker;
  • prohibiting general liens in custodial agreements; 
  • establishing a CASS operational oversight controlled function; and
  • bringing back the requirement to produce client money and asset returns.

The rules detailed in the policy statement will come into force in 2011.

The full policy statement can be found here.

HM Treasury Announces Bank Levy Legislation

On October 21, the UK Government published draft legislation on the bank levy. The draft details how the levy will work prior to implementation of final legislation (due to be published by the end of 2010).

The Government’s proposals are based on the International Monetary Fund’s Report to the G20, “A Fair and Substantial Contribution by the Financial Sector,” which suggested a broad balance sheet charge. It is hoped that the bank levy will encourage less risky funding and will aid the wider agenda to improve regulatory standards and enhance financial stability.

For more information on the draft legislation, click here.

FSA Cracks Down on Cash Equities Broker for Paying Kickbacks

On September 27, the UK Financial Services Authority (FSA) published its final notice previously issued to Fabio Massimo De Biase fining him a total of £252,239 (approximately $398,800).

Mr. De Biase’s former employers TFS Derivatives Ltd carried out cash equities trades on an execution-only basis for AKO Capital LLP. Mr. De Biase agreed with hedge fund trader Anjam Ahmad to increase the commission rate and split the income received.

As a result, AKO was overcharged by $739,000. The FSA found Mr. De Biase in breach of Principle 1 of the FSA’s Statements of Principles and Code of Practice for Approved Persons.

The fine consists of the £198,000 (approximately $313,260) increased income earned by Mr. De Biase and a penalty of £54,239 (approximately $85,800). The initial fine was reduced by 30% to reflect the early settlement.

The final notice issued to Mr. De Biase can be found here.
The final notice issued to Mr. Ahmad can be found here.

AIMA Publishes AIFMD Campaign Update

On September 30, the Alternative Investment Management Association (AIMA) released its latest campaign update, detailing further delays to the progress of the Alternative Investment Fund Managers Directive. The plenary sitting of the European Parliament has been postponed from October 6 to October 19.

The Belgian government, which currently holds the rotating Presidency of the European Council, has drafted a new compromise text. For the controversial third country issue, a dual system of EU passports and private placement regimes is proposed.

France has rejected Belgium’s text and produced its own, which rules out passporting. Although the French version is backed by Germany, Italy and Spain, AIMA deemed it “unacceptable.”

Currently, neither texts are available to the public. The Belgian text will be submitted at the meeting of the Member State ambassadors on October 6, but without a qualified majority, it will need to be re-drafted. Given the French opposition, AIMA is of the opinion that Belgium will have to enter into negotiations.

Lord Turner Explains Key to Successful Regulatory Reform

On September 30, the UK Financial Services Authority (FSA) published a speech given by its Chairman, Lord Turner, on essential regulatory reforms.

Lord Turner’s speech outlined three key proposals:

  • Higher capital and liquidity standards, plus more volatility buffers. Lord Turner believes a satisfactory capital requirements directive would be brought under Basel III.
  • EU measures to solve the problem of “too big to fail” systemically important financial institutions 
  • Macroprudential analysis and policy tools to reduce excessive credit growth. Again Lord Turner advised EU-level implementation from the European Systemic Risk Board.

To read the speech in full, click here.

Treasury Issues Final Consultation on Investment Firms Insolvency Arrangements

On September 16, HM Treasury published its third consultation on new insolvency arrangements for investment firms. The consultation sets out the government’s final proposals for a special administration regime (SAR) for investment firms. These proposals are derived from the December 2009 consultation entitled “Establishing resolution arrangement for investment banks” (see the December 18, 2009, edition of Corporate and Financial Weekly Digest).

The SAR is designed to enhance the method by which any investment firm failures occurring in the future will be dealt with. It will take the form of an administration procedure with special administration objectives (SAOs).

The new regime will include new SAOs designed to ensure that administrators focus on:

  • the return of client assets;
  • engagement with market infrastructure bodies and the authorities; and 
  • maximizing returns to creditors.

The government considers that the SAR will give administrators a clear framework within which to conduct investment firm administrations without needing to make frequent applications to the court for directions. In addition, it is hoped that the adjustments made by the SAR will make the UK insolvency regime less expensive and less disruptive.

Read more.

FSA Fines Zurich Insurance for Loss of Customer Details

On August 24, the UK Financial Services Authority (FSA) announced that it had fined the UK branch of Irish company Zurich Insurance Plc (Zurich UK) £2.275 million (approximately $3.5 million) after 46,000 customers’ confidential information was lost. This is the highest fine imposed to date on a single firm for failings in data protection.

In August 2008, Zurich UK outsourced certain data processing to its South African affiliate Zurich SA. The data losses occurred when Zurich SA transferred data stored on an unencrypted back-up tape to a data storage center as part of a routine transfer. A lack of inter-company communication meant that a year passed before Zurich UK was informed of the incident. The data loss left the customers vulnerable to theft and financial loss.

The FSA found that Zurich UK had not taken reasonable care to ensure that its systems and controls were sufficient to cope with the risks involved in the outsourcing arrangement nor to prevent the customer data being used for financial crime. (It appears that the lost data was not misused and no customers were compromised.)

As Zurich UK settled early, the original fine of £3.25 million (approximately $5 million) was reduced by 30%.

Read more.

FSA Signals Fundamental Changes to Trading Activity Regulation

On August 25, the UK Financial Services Authority (FSA) published a discussion paper (The Prudential Regime for Trading Activities - a Fundamental Review DP10/4) proposing fundamental changes to the regulation of the trading activities of banks and investment firms. The FSA considers that its proposed regulations will address key elements of risks currently posed to the financial system.

The proposals cover three key areas:

  1. Valuation—more comprehensive regulation of valuation of trading positions and investigations into valuation uncertainty
  2. Coverage, coherence and the capital framework—a restructuring of the capital framework, improving coherence and reducing structural arbitrage in the banking and finance sector
  3. Risk management and modelling—measures targeting firms’ risk management and modelling standards, aligning both with regulatory objectives

The closing date for responses is November 26. The FSA anticipates that it will issue a feedback statement and final rules in the first half of 2011.

The discussion paper can be found here.

FSA Cracks Down on Sales of Private Funds

The UK Financial Services Authority (FSA) has recently publicized widespread failings in the marketing of “unregulated collective investment schemes”—a category of fund products which includes almost all private funds including all hedge funds other than those established within the Undertakings for Collective Investment in Transferable Securities (UCITS) framework. This does not mean that such funds cannot be sold in or from the UK but it emphasizes the need for great attention to the details of the relevant regulations before, and while, doing so.

The FSA announced that it had just completed a project examining the promotion and sale of unregulated collective investment schemes to retail customers by financial advisors. The FSA stated that it had uncovered widespread failings by financial advisor firms in understanding the regulatory requirements for the promotion of these funds, a lack of understanding of the market within which these schemes operated and of the risks of investment in these funds. This has resulted in firms marketing and selling these funds to customers who were not eligible to purchase them. The FSA is bringing enforcement proceedings against a number of regulated firms.

Read more.

FSA Hedge Fund Surveys Conclusions Published

The UK Financial Services Authority (FSA) recently published a report entitled “Assessing possible sources of systemic risk from hedge funds.” It sets out the FSA’s key findings and conclusions from two surveys it conducted in April 2010—the Hedge Funds as Counterparties Survey (HFACS) and the Hedge Fund Survey (HFS). The FSA intends to continue conducting these surveys every six months to help monitor trends in hedge funds. (The results of the October 2009 surveys, published in February 2010, were reported in the February 26 edition of Corporate and Financial Weekly Digest).

The HFACS has been conducted every six months since 2005. It asks some of the largest FSA-authorized banks with exposures to hedge funds about their credit counterparty risks. The HFS was introduced in October 2009 to complement the HFACS. It surveys the 50 largest FSA-authorized investment managers, on this occasion with a combined total of $345 billion in hedge fund assets under management. The survey asks questions about the assets the firms managed and the larger funds for which they undertake management activities.

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FSA Fines Royal Bank of Scotland Group £5.6m for UK Sanctions Controls Failings

On August 13, the UK Financial Services Authority (FSA) announced that it had fined RBS Plc, NatWest, Ulster Bank and Coutts and Co (RBSG) £5.6 million (approximately $8.9 million) for failing to have in place adequate systems and controls to prevent breaches of UK financial sanctions. This is the biggest fine imposed by the FSA to date in pursuit of its financial crime objective. It is also the first fine imposed by the FSA under the Money Laundering Regulations 2007.

The Regulations require that firms maintain appropriate policies and procedures in order to prevent funds or financial services being made available to those on the HM Treasury Sanctions List. The FSA found that between December 15, 2007, and December 31, 2008, RBSG failed to adequately screen both their customers and the payments they made and received against the List.

The FSA considered that RBSG’s failings in relation to their screening procedures were particularly serious because of the risk posed to the integrity of the UK financial services sector. Specifically, it could have facilitated transactions involving sanctions targets, including terrorist financing.

Margaret Cole, FSA Director of Enforcement and Financial Crime, said: “The scale of the fine shows how seriously the FSA takes this issue and should act as a warning to other firms to ensure that they have adequate screening procedures.”

As RBSG agreed to settle at an early stage of the FSA investigation, it qualified for a 30% reduction in penalty which would otherwise have been £8 million (approximately $12.7 million).

Read more.

Supreme Court Confirms Court of Appeal Ruling on FSA Enforcement Capabilities

On July 28, the UK Supreme Court upheld the English Court of Appeal’s judgment that the power of the UK Financial Services Authority (FSA) to prosecute criminal offenses was not limited to the offenses specified in sections 401 and 402 of the Financial Services and Markets Act 2000 (see the October 23, 2009, edition of Corporate and Financial Weekly Digest). In particular, the Supreme Court confirmed that the FSA has the power to prosecute money laundering and other offenses within the ambit of the FSA’s statutory objectives.

To read the UK Supreme Court judgment, click here.

Court of Appeal Decides LBIE Client Money Application

On August 2, the English Court of Appeal handed down its judgment on the client money directions application made in the Administration of Lehman Brothers International (Europe) (LBIE). The Court of Appeal overturned Mr. Justice Briggs’ High Court decision in part, holding unanimously that:

  1. Clients whose money (as opposed to securities and other assets) should have been segregated by LBIE as client money prior to administration but was not are entitled to share in the client money pool.
  2. Money held by LBIE (at the time of administration) outside its segregated client money accounts which is “identifiable client money” is to be pooled with the client money held in its segregated accounts.
  3. The client money pool will be distributed pro rata to all of LBIE clients entitled to claim against the pool, with the share of each client calculated based on the amount of client money which should have been segregated, as a proportion of the total amount which LBIE should have segregated.

LBIE’s Joint Administrators stated that they were considering the Court of Appeal’s judgment carefully to assess its implications for LBIE’s client money claimants and creditors, including, in particular, on the likely timing and level of any distribution of client money.

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UK Government Consults of Financial Services Reform

On July 26, HM Treasury launched a consultation (A new approach to financial regulation: judgment, focus and stability) on the reform of the UK financial services regulatory regime announced by the Chancellor of the Exchequer in June, as reported in the June 18, 2010 edition of Corporate and Financial Weekly Digest.

The Government considers that reforms must focus on three key areas: (i) macro-prudential regulation; (ii) improved prudential regulation of individual firms; and (iii) improved consumer protection and markets regulation.

The consultation document contains detailed reform proposals and the Government also proposes to establish three new regulatory bodies:

i. the Financial Policy Committee (FPC) designed to give the Bank of England increased power over macro prudential regulation and likely to be established on an interim basis before the end of 2010;

ii. the Prudential Regulation Authority (PRA), under the control of the Bank of England/FPC, to be responsible for supervising banks, other deposit-takers, broker-dealers, investment banks, insurers and certain other financial institutions. The PRA will be headed by a Deputy Governor of the Bank of England, initially the current Financial Services Authority Chief Executive, Hector Sants; and

iii. the Consumer Protection and Markets Authority (CPMA) which will regulate conduct of business.

The introduction of macro-prudential regulation is designed to correct a perceived prior lack of regulatory focus on systemic risk and the financial system as a whole.

The FPC is at the heart of the new system. Six of its eleven members will be from the Bank of England, and the Treasury will have a non-voting representative and a watching brief on behalf of the UK Government. The CPMA Chief Executive will also sit on the FPC. Along with the close cooperation between the FPC and the PRA, this is intended to ensure that potential systemic risks arising from activities monitored by the CPMA or the PRA will be taken into account in FPC decisions.

The consultation will close on October 18.

Read more.

Katten's June 18 edition of the Corporate and Weekly Financial Digest can be found here.
 

FSA Bans Three Stockbroker Directors

On July 28, the UK Financial Services Authority (FSA) banned Stephen Coles, Luke Ryan and Michael Yamoah, the three directors of Simply Trading Group Limited (STG) (a small private client advisory stockbroker) from holding any financial services senior management positions.

Coles, Ryan and Yamoah shared responsibility for the management of STG, which specialized in telephone sales of securities traded on the London Stock Exchange and higher risk securities traded on the AIM and PLUS markets, through two “appointed representatives.”

The FSA investigation found that Coles, Ryan and Yamoah:

i. relied too heavily on an external compliance consultant for advice on how to run the compliance aspects of STG’s business;

ii. failed to make sure that STG met regulatory requirements, including capital resources and systems and controls requirements; and

iii. failed to monitor adequately their two appointed representatives, creating a serious risk that customers would received unsuitable investment advice. This included a failure to ensure that call monitoring equipment was in place at one of the appointed representatives.

As a result of the ban imposed on its three directors, STG no longer met FSA authorization requirements and its FSA permission to conduct investment business was cancelled.

Read more.

FSA Announces Changes to its Remuneration Code

On July 29, the UK Financial Services Authority (FSA) announced plans to update its Remuneration Code to take account of new remuneration rules required under the EU Capital Requirements Directive (CRD3).

The FSA’s current Code requires that firms apply ‘remuneration policies, practices and procedures that are consistent with and promote effective risk management.’ Although it is broadly consistent with CRD3 provisions, the FSA is required to make some changes to ensure full alignment.

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HMRC Anti-Money Laundering Guidance for Money Service Businesses

On July 16, HM Revenue and Customs (HMRC) published a revised version of its anti-money laundering guidance for money services businesses which it supervises. The revised guidance addresses issues arising under the Counter-Terrorism Act 2008. HMRC also stated that guidance for e-money issuers will be incorporated into a further revised version of the guidance which will be issued shortly.

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FSA Fines Father and Son for Market Abuse

On July 19, the UK Financial Services Authority (FSA) announced that it had fined Jeremy Burley £144,200 (approx. US$219,700) and his father, Jeffery Burley, £35,000 (approx. US$53,300) for market abuse in relation to the shares of Tower Resources plc (Tower), an oil and gas exploration company, in June 2009.

Jeremy Burley, a British citizen resident in Uganda, was at the relevant time the Managing Director of BMS Minerals, a Ugandan company which provided vehicles and equipment to oil and gas exploration companies in Uganda, including Tower Resources. Jeffery Burley opened a share trading account in the UK, which he used to trade shares on behalf of his son.

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FSA Secures £3.7 Million Compensation for Victims of Upton & Co. Unauthorized Collective Investment Scheme

On July 20, the UK Financial Services Authority (FSA) announced that it had secured £3,717,000 (approx. US$5,660,000) in compensation for investors in an unauthorized collective investment scheme operated by Upton & Co. Accountants Limited (Upton), owned and controlled by Darren Upton, a member of the Association of Chartered Certified Accountants.

The Wakefield-based firm, which was not authorized by the FSA to do so, operated a collective investment scheme known as the “Currency Plan” promising investors high rates of return allegedly derived from foreign exchange investments. However, limited foreign exchange trading occurred and very little was ever returned in cash.

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UK Takeover Panel Bans Three

On July 14, the UK Takeover Panel announced the decision of the Takeover Appeal Board to uphold the decision of the Hearing Committee of the Takeover Panel to ban Daniel Posen, Brian Myerson and Brian Padgett for three years from all dealings with any person registered with the Financial Services Authority.

The Appeal Board upheld the finding that in March 2009, 6.7 million shares of Principle Capital Investment Trust Plc (PCIT) were acquired by Messrs. Posen, Myerson and Padgett acting jointly as a “concert party.” In a deliberate attempt to circumvent the requirement under Rule 9 of the City Code on Takeovers and Mergers to make an offer to shareholders of PCIT generally, they purported to be acting separately rather than as a concert party. When the Takeover Panel investigated the transaction, in breach of their obligations to assist the Panel, Messrs. Posen, Myerson and Padgett attempted to conceal the circumstances relating to their acquisition of PCIT shares and to present a false picture.

This type of ban, known as “cold shouldering,” is the first imposed by the Takeover Panel since 1992. It is effectively a three-year ban on any UK financial services or mergers and acquisition activity for the three men concerned.

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FSA Fines Former CEO for Market Abuse

On July 6, the UK Financial Services Authority (FSA) announced that it had fined Henry Cameron, CEO of Sibir, a former Alternative Investment Market (AIM)-quoted energy company, £350,000 (approximately $530,000) for making misleading announcements to the market regarding payments from Sibir to its major shareholder Chalva Tchigirinski. The penalty reflected a Stage 1 (30%) discount under the FSA’s settlement discount scheme.

Mr. Cameron was responsible for Sibir making two separate market announcements in December 2008 and February 2009, stating that Sibir had paid a total of $115.4 million to Mr. Tchigirinski. The correct amount was more than $300 million. This created a false market in Sibir’s shares by giving a misleading impression as to the nature and value of Sibir’s assets and the risks the company faced. When the true position became clear, Sibir’s shares were suspended from trading on AIM and its quotation was subsequently cancelled. Cameron was suspended from Sibir in February 2009 and dismissed in April 2009.

Margaret Cole, Director of Enforcement and Financial Crime at the FSA, said, “As the most senior executive director at Sibir, Cameron should have known these announcements were misleading and the serious impact they were likely to have on the market. The consequences of his market abuse were so serious that it led to the suspension of trading in Sibir’s shares on AIM. Our fine reflects the gravity of his irresponsible actions and shows that we are serious about taking action against directors of publicly traded companies who commit market abuse. It is not acceptable for directors to take action which is in the interests of some shareholders while keeping others in the dark.”

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UK Regulators Focus on Role of Auditors

The UK Financial Services Authority (FSA) and the UK Financial Reporting Council (FRC) issued a discussion paper on June 24 which considers ways of enhancing auditors’ contribution to regulation.

The paper FSA DP 10/3 is entitled “Enhancing the auditor’s contribution to prudential regulation” and covers the following areas:

  • questions aspects of the quality of audit work relevant to prudential regulation—in particular, whether the auditor has always been sufficiently skeptical and has paid sufficient attention to indicators of management bias when examining key areas of financial accounting and disclosure that depend critically on management judgement;
  • outlines the FSA’s concerns about auditors’ work on client assets and how auditors fulfill their legal obligation to report to the FSA;
  • explores a variety of ways in which changes are being made and further changes could be made by the FSA, FRC and auditors to increase the effectiveness with which auditors undertake their work; and 
  • examines the regulatory environment in which auditors operate more widely and suggests measures to enhance how auditors contribute to prudential supervision.

Paul Sharma, the FSA’s Director of Prudential Policy, said, “Our experience has indicated that, at times, auditors have focused too much on gathering and accepting evidence to support firms’ assertions rather than exercising sufficient professional skepticism in their approach—this falls far short of what the FSA—and society at large—expects from auditors.”

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FSA Fines and Bans Oil Broker for Market Abuse

On June 28, the UK Financial Services Authority (FSA) announced that it had fined Steven Perkins, a former oil broker, £72,000 (approximately $109,000) for market abuse and had banned him from working in the UK financial services industry for a minimum of five years on the grounds that he was not a fit and proper person.

Mr. Perkins was an oil futures broker with PVM Oil Futures Ltd. His job involved trading Brent Crude Futures contracts on an execution-only basis in the ICE Futures Europe Exchange for PVM’s clients. PVM did no proprietary trading.

In the early hours of the morning of Tuesday, June 30, 2009, Mr. Perkins traded in the ICE August 2009 Brent contract without any client authorization, and in doing so accumulated a long outright position in Brent in excess of 7,000 lots (representing over 7 million barrels of oil).

As a direct result of Mr. Perkins’ trading, the price of Brent increased significantly. His trading manipulated the market in Brent by giving a false and misleading impression as to the supply, demand and price of Brent and caused the price of Brent to increase to an abnormal and artificial level.

The FSA findings state that Mr. Perkins initially lied repeatedly to PVM in order to try and cover up his unauthorized trading. They also stated that Mr. Perkins’ relevant trading seems to have been a consequence of extremely heavy drinking resulting from alcoholism, which he now acknowledges. He drank excessively over the weekend prior to and throughout Monday, June 29.

Alexander Justham, the FSA’s Director of Markets, said, “The FSA views market manipulation extremely seriously. Perkins’ trading caused disruption to the market and has been met with both a fine and prohibition. This reinforces the fact that a severe sanction will apply in cases of market manipulation, even where no profit is made.”

The FSA stated that Mr. Perkins’ behavior merited a penalty of £150,000 (approximately $228,000). Because such a fine would cause him serious financial hardship, this was reduced to £90,000 (approximately $136,000). Since Mr. Perkins agreed to settle the case, he qualified for a 20% discount on the fine under the FSA’s executive settlement procedures, bringing the fine down to £72,000. The ban imposed on Mr. Perkins was limited to a minimum term of five years since Perkins had joined an alcoholics rehabilitation program. Accordingly, the FSA considered that Mr. Perkins may be a fit and proper person for regulatory purposes at some future date.

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UK Government Announces 2009-10 Budget Tax Changes

The newly-elected UK Government announced its first Budget on June 22. Key provisions include:

  1. Capital Gains Tax is increased to a top rate of 28%, from a flat rate of 18%, with effect from midnight on June 22.
  2. The introduction of a UK levy on banks (including the UK branches and subsidiaries of foreign banks). The levy will take effect on January 1, 2011, and will initially be charged at a rate of 0.04% on the total liabilities of the bank or branch (subject to certain exclusions). The rate will be increased to 0.07% on January 1, 2012. In order to encourage longer-term borrowings (perceived as less risky), liabilities with longer than a year to maturity will be taxed at half the standard rate. There will be the following exceptions to the levy: (i) Tier 1 capital (i.e. equity); (ii) insured retail deposits; (iii) repos secured on sovereign debt; and (iv) policyholder liabilities of retail insurance businesses within banking groups. Banks or branches with relevant liabilities below £20 billion (approximately $30 billion) will also be exempt from the levy.
  3. In relation to asset management, the UK Government intends to: (i) implement the UCITS IV rules; (ii) establish tax transparent contractual funds along the lines of those currently offered by Ireland and Luxembourg; and (iii) consult on rules designed to reform the taxation of UK authorized investment trust companies and UK authorized funds investing in offshore funds (the budget gave no details of these reforms).

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UK Government Announces Transfer of FSA Powers to Bank of England and New Regulators

In a speech delivered on June 16, the Chancellor of the Exchequer announced that the UK Government intended to transfer the regulatory functions of the UK Financial Services Authority (FSA) to the Bank of England and certain proposed new regulatory bodies. The FSA will cease to exist in its current form. In its place, the government intends to establish the following new entities between now and the end of 2012:

  • Prudential Regulation Authority (PRA)—The PRA, which will be a subsidiary of the Bank of England, will be responsible for the prudential regulation of financial firms, including banks, investment banks, building societies and insurance companies. Hector Sants, the current FSA Chief Executive, will become the PRA chief executive and also a deputy governor of the Bank of England.
  • Consumer Protection and Markets Authority (CPMA)—The CPMA will regulate firms providing financial services to consumers. It will also be responsible for retail and wholesale financial services conduct of business. 
  • Financial Policy Committee (FPC)—The FPC will be a committee of the Bank of England. It will have responsibility for macro issues potentially affecting economic and financial stability. An interim FPC will be established during the course of 2010. The Governor of the Bank of England will chair the FPC, and its members will include the PRA chief executive and the CPMA chair.
  • Economic Crime Agency (ECA)—The ECA will be created to prosecute economic and financial crimes. This is currently in the hands of a number of agencies, including the FSA, the Serious Fraud Office, the Office of Fair Trading and the Serious Organised Crime Agency.

A consultation document providing details of the Government’s proposals will be issued shortly.

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FSA Annual Report Published

On June 10, the UK Financial Services Authority (FSA) issued its annual report covering the year ended March 31, 2010. The FSA emphasized its priorities and targets including:

  • a radically changed approach to prudential supervision, particularly of high impact firms, including stress testing, accounting reviews, challenges to business models, detailed liquidity assessments and reviews of remuneration policy;
  • a fundamental change in its enforcement approach, aiming for “credible deterrence” and pursuing market abuse and management responsibility far more aggressively;
  • the launch of a new approach to “conduct” risk, improving customer protection in retail markets by earlier intervention to reduce the scale and frequency of problems potentially leading to customer detriment; and
  • the need for increased involvement in international and European regulatory initiatives.

Among many specific issues addressed in the 127-page report was market confidence. While highlighting action taken and planned against insider dealing and market abuse, the market confidence section of the report highlighted the result of FSA’s latest Market Cleanliness Study, which showed a further increase (from 29.3% to 30.6%) in the number of takeovers preceded by abnormal pre-announcement price movements.

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FSA Continues to Focus on Client Money

The UK Financial Services Authority (FSA) has recently written to the chief executive officers of all firms handling client money and assets seeking a response before June 30:

  • confirming that their controls over the handling of client money and assets have been reviewed by management;
  • stating whether or not the firm is in compliance with its obligations respecting client money and assets; and 
  • identifying the person at the firm with overall responsibility for compliance with FSA’s client money and assets rules.

The letter follows up an FSA communication earlier this year that pointed out significant weaknesses and failings discovered during visits to firms carried out in late 2009. It also comes at the same time as several highly publicized disciplinary actions and fines imposed by the FSA on regulated firms for client money failings.

In addition, the FSA focused on this area in its Annual Report (see “FSA Annual Report Published,” above), in which it stated its concern that firms “were not always achieving an adequate level of client money protection, thereby potentially threatening market confidence in the UK financial services industry.” The FSA added that it had taken and would continue to take “various actions to address risk in this area. We have increased dedicated visits to firms, and have expanded, and continue to expand, the level of resource within the FSA dedicated to client money and assets supervision.”

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FSA Fines and Bans Commodity Broker

On June 2, the UK Financial Services Authority (FSA) announced the imposition of a prohibition order on Andrew Charles Kerr together with a fine of £100,000 (approximately $145,000) for market abuse. At the time of his offense, Mr. Kerr was a broker with Sucden Limited. The FSA said that the company had cooperated fully with the FSA and there was no criticism of its supervision of Mr. Kerr nor of its internal procedures.

In August 2007, Client X, one of Mr. Kerr’s clients, held a 2000 contract put options position on an exchange-traded coffee futures contract. Implementing a strategy planned with Client X, Mr. Kerr executed a series of trades designed to artificially increase the price of the coffee future during the trading period when the options reference price was determined. The intent was that the resulting price change would lead to the reference price moving above the strike price so that Client X would avoid incurring a loss on its put options position. By so doing Mr. Kerr committed market abuse by creating a false or misleading impression as to the price of the coffee futures contract and the options reference price.

The FSA determined that while the strategy was instigated by Client X, Mr. Kerr actively encouraged and participated in the market manipulation. It was a serious case of market abuse. In addition, Mr. Kerr provided false and misleading information during the FSA’s investigation. This further demonstrated to the FSA that he lacked the integrity required of a fit and proper person and that he posed a risk to the FSA’s statutory objective of maintaining confidence in the financial system. Accordingly, a prohibition order and substantial fine was the appropriate penalty.

Alexander Justham, the FSA’s Director of Markets, said: “Market manipulation is a serious offence. Kerr breached the standards expected of approved persons and has paid the price. Participants in the futures and options markets should be in no doubt about how seriously the FSA views manipulation which disrupts proper pricing mechanisms and risks a false market in the underlying commodity.”

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FSA Insider Dealing Prosecution Fails

On June 2, the UK Financial Services Authority (FSA) announced that, after a jury trial at Southwark Crown Court, not guilty verdicts had been entered against a finance director and two lawyers (present or past partners in City of London firms). The charges arose from profits alleged to have been made by the lawyers as a result of their trading in the shares of the finance director’s technology company based on inside information provided by him when the company was taken over in 2006.

This case follows several successful recent criminal prosecutions by the FSA in insider trading cases. Margaret Cole, FSA Director of Enforcement and Financial Crime, stated that the FSA will continue with insider dealing prosecutions. She said that the FSA remains “100 per cent committed to the strategy of achieving credible deterrence. Bringing criminal prosecutions sends a message, loud and clear, that insider dealing is a serious crime and we are not afraid to pursue cases through the criminal courts.”

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FSA Imposes Ban and Highest-Ever Fine on Individual

On May 20, the UK Financial Services Authority (FSA) announced that it had fined Simon Eagle £2.8 million (approximately $4 million) and prohibited him from working in financial services as a result of the deliberate market abuse scheme he had carried out in 2003-2004. The fine, made up of a penalty of £1.5 million (approximately $2.2 million) and disgorgement of profits of £1.8 million (approximately $2.6 million), is the largest fine ever imposed by the FSA on an individual.

Mr. Eagle acquired SP Bell Ltd (SPB), an agency stockbroker, in May 2003 and became its chief executive. Between July 2003 and May 2004 he carried out a complex and prolonged scheme that ramped up the share price of Fundamental-E Investments (FEI) for his own benefit at the expense of other FEI investors and misusing accounts of SPB clients.

This case is linked to the fines totalling £4.25 million (approximately $6.2 million) imposed on Winterflood Securities Limited and two of its traders (as reported in the April 3, 2009, edition of Corporate and Financial Weekly Digest and confirmed on April 22, 2010, after an appeal to the Court of Appeal) for their role in misuse of rollovers and delayed rollovers that created a false market for FEI shares and misleading the market.

FSA Director of Enforcement and Financial Crime Margaret Cole said: “This scheme was rotten throughout and at the core was Simon Eagle. He showed a breathtaking disregard for his clients, for his duty as an approved person and chief executive and for the effect of his scheme on markets. He has played procedural games in an attempt to avoid being held accountable for his actions and this tough action shows that we are determined to keep dishonest cheats, like Simon Eagle, out of financial services.”

To read more about Simon Eagle, click here.
To read more about Winterflood, click here.

FSA Bans Former Broker Employee for Fraud

On May 25, the UK Financial Services Authority (FSA) announced that it had prohibited John White, a former employee of Seymour Pierce Limited, from working in financial services for committing fraud.

As reported in the October 16, 2009, edition of Corporate and Financial Weekly Digest, the FSA fined Seymour Pierce £154,000 (approximately $222,000) for failing to establish effective controls to prevent an employee committing fraud; Mr. White was that employee.

FSA Director of Enforcement and Financial Crime Margaret Cole said: “We expect people who work in the financial services industry to behave with honesty and integrity, yet White’s conduct was anything but. As this case demonstrates, we are committed to deterring behaviour of this kind by punishing anyone found to have committed such misconduct.”

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Offshore Funds Practice Manual Issued

The UK tax authority, Her Majesty’s Revenue and Customs (HMRC) has issued its new Offshore Funds Practice Manual. This sets out official guidance as to which funds will be treated as “offshore funds” for UK tax purposes and details of HMRC’s approach as to how offshore funds will be treated. The redemption or sale of an interest in an offshore fund by a UK investor is treated as income, rather than as a capital disposal. This means that, for example, UK personal investors would be charged income tax (at rates of up to 50%) rather than capital gains tax (at a flat rate of 18%) on a redemption or sale of their interest in the fund.

The most significant changes are that:

  1. A fund will be able to avoid being treated as an offshore fund for tax purposes if it becomes a “reporting fund”. A “reporting fund” will be obliged to report all of its income to HMRC, and any UK investors will be taxed on their share of that income, regardless of whether or not they have actually received this income. Previously, a fund needed to actually distribute at least 85% of its income to investors in order to avoid offshore fund treatment.
  2. There are significant changes to the definition of an offshore fund. A fund need no longer be a “collective investment scheme” within the UK Financial Services and Markets Act. Instead, subject to certain exceptions, it will be treated as an offshore fund if it has certain characteristics. These are that (i) the fund is not a UK tax resident; (ii) the fund enables investors to take part in any benefit arising from the acquisition, holding, management or disposal of assets; (iii) the investors do not have day-to-day control of the management of the assets; and (iv) a reasonable investor would expect to be able to realize his investment based entirely or almost entirely by reference to the net asset value of the assets under management or to any index.

The new Offshore Funds Practice Manual sets out in some detail how HMRC intends to apply these new rules.

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