Corporate Fraud. A presentation by the Commercial Litigation Practice Group

Transcription

1 Corporate Fraud A presentation by the Commercial Litigation Practice Group

2 Outline I. The current position under the Securities Industries Act 1986 II. III. The changes effected by the Securities and Futures Act 2001 Some general points of concern Can issuer claim for loss? Common law remedies Effect of extra-territorial reach of the law

3 I. The current position under the Securities Industries Act 1986 Main offences Penalties Statutory Civil Penalties/ Remedies

4 Main offences under the 1986 Securities Industries Act S103 Insider Trading S98 False Trading and Market Rigging S99 False or Misleading Statements S100 Fraudulently inducing persons to deal in securities S 102 Employment of manipulative and deceptive devices

5 Penalties S 104 : penalties applicable to all the offences Fine not exceeding $250,000 and/or Imprisonment for a term not exceeding 7 years

6 1. Insider Trading s prohibitions: Prohibits insiders from trading in the securities of their own firm (direct) s Prohibits a person with access to price-sensitive information regarding dealings between his corporation and another corporation, from dealing with that other corporation s securities (indirect)- s Prohibits dealings by a person who receives pricesensitive insider information from an insider ( tippee ) s It is an also an offence to be a tipper. s 10.5

7 Direct Insider Trading Elements: A person who has,in the preceding 6 months, been connected with that body corporate, Is in possession of Information that is: Price sensitive and not generally available to the public Obtained by reason of his connection to the body corporate And deals with the securities

8 Indirect Insider Trading Elements: Same elements as direct insider trading; and information relates to transactions between that body corporate and another corporation; and he deals in securities of that other corporation

9 Dealings by tippees Tippees are persons who acquire price-sensitive information from an insider. Elements: Obtained price-sensitive information directly or indirectly from another person Was aware or ought reasonably to be aware of circumstances which would disqualify that other person from dealing in the securities. Was associated or had an arrangement for the communication of information, with the insider; and Dealt in the securities of the corporation to which the information related.

10 Mens Rea for Insider Trading Chief Justice in PP v Ng Chee Keong [1999] 4 SLR 56, held that it must be shown that: He intended to use the information, knowing that it was price-sensitive and generally unavailable to the public. The test is an objective one.

11 2. False Trading and Market Rigging s 97 s 97 in the relevant part provides (1) A person shall not create, or cause to be created, or do anything that is calculated to create, a false or misleading appearance of active trading in any securities on a securities exchange in Singapore or a false or misleading appearance with respect to the market for, the price of, any such securities. (2) A person shall not, by means of purchases or sales of any securities that do not involve a change in the beneficial ownership of those securities, or by any fictitious transactions or devices, maintain, inflate, depress, or cause fluctuations, in the market price of the securities.

12 Broadly speaking, s 97 prohibits the following activities: Churning involves creating a false impression of activity in a counter Creating an illusory market or market price wash sales where there is no change in beneficial ownership Sham Transactions intended to give third parties the appearance of creating legal rights and obligations different from the actual legal rights and obligations.

13 3. Employment of Manipulative and deceptive devices s 102 S 102 provides It shall be unlawful for any person in connection with the purchase or sale of any securities (a) to employ any device, scheme or artifice to defraud; (b)to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person; or (c) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statement not misleading. Basically a fall-back provision to prohibit any other fraudulent or dishonest devices not caught by the other sections.

14 Statutory Civil Penalties and Remedies A. Only for insider trading (amendments made in March 2000) i. s 104A As an alternative to criminal liability, MAS can with consent of the Public Prosecutor bring an action. Need only prove contravention of insider trading provisions on a balance of probabilities. In the case of indirect and direct insider trading, court can order penalty maximum of 3 times amount of profit made or loss avoided by insider, or $50,000 whichever is greater. In the case of tipper and tippee situation, penalty between $50,000 and $250,000. Enforceable as a debt.

15 Special provision for civil penalties/remedies for insider trading ii. s 104C Even if no criminal or statutory civil proceedings have been commenced, insider is liable to pay compensation to any person who dealt with the securities contemporaneously with the contravention; and had suffered loss because of difference in price at which he dealt in the securities and the price at which the securities would have been likely to have been so dealt in at the time of the contemporaneous dealing if the the contravention had not occurred. There is a ceiling on recovery only up to the amount of profit made or avoided by the insider. Lacuna exists where insider has not made a profit or avoided a loss it appears no claim can be brought

16 B. Liability for compensation for offences other than Insider Trading S 105 provides for compensation to persons who have suffered loss by reason of the contravention Elements: Must show that the offender has been convicted There is a 2-year limitation period Have to overcome twin hurdles of privity and causation Criticised by writers as a dead letter

17 II. The Changes effected by the Securities Futures Act Review of Insider Trading Provisions 2. Extension of Civil Fines/Civil Remedies to other forms of Market Misconduct 3. Extra-territorial effect of provisions

18 1. Review of Insider Trading Provisions 2 Changes: Revision of the mens rea requirement Connection with a body corporate is not necessary

19 Revision of Mens Rea Requirement for all types of Insider Trading Under s 220 SFA, prosecution need not prove insider s intention to use the information. Need only show that insider objectively knew the information was not generally available and was price-sensitive information.

20 Abolishment of need for connection with body corporate For direct and indirect insider trading, need not show that insider obtained the information by reason of his being connected to the corporation. For tippee situation, prosecution need not show he obtained it by reason of his arrangement or association with an insider

21 Other Changes to Insider Trading Provisions Very broad definition of information at s 214 SFA includes matters of supposition and other indefinite information that need not be made public. Attribution of knowledge within partnerships s 227 SFA A partner of a partnership is taken to possess information possessed by another partner or employee of the partnership. Penalties remain the same

22 2. Extension of Civil Penalties/Remedies to other offences Under Part XII, Div 4, SFA, civil penalty regime extended to other forms of market misconduct (e.g. market rigging and market manipulation) S 105 of 1986 Act has been abolished. S 104 A G of the old act is replicated in the new act for all offences. For imposition of civil penalty, s 232 SFA provides that if insider did not make profit, or avoid loss, penalty should be between $50,000 and $2 M. However, lacuna in equivalent of s 104C of old act persists, i.e. it appears no claim can be brought against insider if no profit or made or loss was avoided by insider. Twin hurdles of privity and causation persists.

23 3. Extra-territoriality of SFA S 339 provides for extra-territorial acts done: Partly in Singapore and partly outside, which if done wholly in Singapore, would constitute an offence Outside Singapore, which have substantial and reasonably foreseeable effects in Singapore

24 III. Some Points of Concern Can issuer claim for loss? Common law remedies Effect of extra-territorial reach of the law

25 Can issuer claim for loss? Very rarely invoked as difficult to show that issuer has suffered loss. May be possible where insider trading occurs during a subscription of securities. Fact that insiders may have management or shareholding control of the company is a further impediment. Most likely a liquidator will seek recourse.

26 Common Law Remedies Company can rely on s 157(2) of the Companies Act which provides that an officer or agent of a company shall not make improper use of the information acquired by virtue of his position to gain an advantage for himself or for any other person or to cause detriment to the company. S 157 (3) (a) provides any officer or agent who breaches the said provision is liable to the company for any profit made by him or for any damage suffered by the company as a result of the breach. This section is useful as company need not show loss. Common law causes of action in breach of fiduciary duty or breach of confidence may also be open to issuer.

27 Extra-territorial reach of the law To what extent these provisions will be utilised in respect of acts occurring in Singapore with respect to securities listed or traded elsewhere is unclear. Ambit and availability of civil penalties and remedies in such situations is also unclear.