The next generation of market abuse

Transcription

1 The next generation of market abuse Alix Boberg Richard Sims Emma Sutcliffe Jochen Kindermann Wednesday 05 & Thursday 06 October 2016

2 Market abuse: an outline UK criminal and civil enforcement Perspectives from the United States and Germany Implementation of MAR The FCA s credible deterrence agenda The next generation of market abuse 1 / L_LIVE_EMEA1: v7

3 The criminal record: insider dealing Operation Tabernula 50 Months imprisonment / L_LIVE_EMEA1: v7

4 Operation Tabernula: a timeline 2010 Dawn raids and arrests 2013/14 Milsom, Shelley and Rifat plead guilty 2016 Dodgson and Hind convicted 3 / L_LIVE_EMEA1: v7

5 Civil enforcement: insider trading Three notable cases in 2015 and 2016 Kenneth Carver 35,212 Insider dealing for profit of 18, Reduced penalty: cooperation, settlement and hardship Mark Taylor 36,285 Insider dealing for profit of 3,498 by financial adviser Reduced penalty: cooperation, settlement and hardship Prohibition Order for two years Gavin Breeze 59,557 Insider dealing by shareholder and improper disclosure Loss avoidance of 1,900 (but potentially up to 242,000) Restitution of 1,850 and public censure 4 / L_LIVE_EMEA1: v7

6 Civil enforcement: market manipulation Three cases to date July 2013 January 2014 August ,993 Michael Coscia for layering on ICE 8,000,000 Swift Trade Inc. for layering on LSE from ,570,000 Da Vinci Invest Ltd, Mineworld Ltd, and three individuals for layering on LSE and MTFs? 5 / L_LIVE_EMEA1: v7

7 The US perspective: the conviction of Coscia August October 2011 Michael Coscia trades on futures markets using algorithm, earning US$1.6m in trading profits July 2013 Coscia settles with the FCA, CFTC and exchanges October 2014 Coscia is indicted on six counts of spoofing and six counts of commodities fraud November 2015 Coscia is found guilty of all charges at a seven day trial in US federal court July 2016 Coscia is sentenced to three years imprisonment 6 / L_LIVE_EMEA1: v7

8 The US perspective: the conviction of Coscia Layered orders External evidence of intent Large orders relative to market The case for the prosecution Market movement High cancellation rates Flashing orders 7 / L_LIVE_EMEA1: v7

9 The US perspective: Sarao appealing extradition 8 / L_LIVE_EMEA1: v7

10 Germany: highest overall fines on companies executable order (sec. 4 WpHG) reporting requirements (sec. 9 WpHG) 12,500 24,000 Ad-hoc-publicity (sec. 15 WpHG) 215,000 Directors' Dealings (sec. 15a WpHG) 15,000 market manipulation (sec. 20a WpHG) 160,000 notification requirements (sec. 21, 25 f. WpHG) 3,25 Mio. publication obligations (sec. 26 f. WpHG) information obligations (sec. 30b ff. WpHG) uncovered short sales (sec. 30h WpHG) Code of Conduct WpDU financial reports (sec. 37v ff. WpHG) takeover (WpÜG) prospectus (WpPG) 32,000 50, ,000 10, , ,000 30,000 9 / L_LIVE_EMEA1: v7

11 Germany: highest fines for market manipulation 180, , , , ,000 80,000 60,000 40,000 20, / L_LIVE_EMEA1: v7

12 Eurex: sanction example Time Volume Limit Type 15:06: ,57 Bid Other orders 15:06: Cancellations 15:06: Cancellations 15:06: ,58 Ask Z Bid Volume Bid Price Ask Price Ask Volume Z 88% ,57 130, % 24% ,56 130, % 0% ,55 130, % 11 / L_LIVE_EMEA1: v7

13 The Market Abuse Regulation: what s changed? In force since 3 July 2016 Extended Scope: To financial instruments traded on MTFs, OTFs and certain OTC activities Insider dealing: Offences similar to previously applicable civil regime in UK Issuers can delay disclosing inside information (but must inform the FCA) A new offence of attempted market manipulation 12 / L_LIVE_EMEA1: v7

14 FCA and market abuse: a credible deterrence agenda Ensuring market integrity is one of our key objectives. Addressing market abuse is essential to achieving that objective. Identification of potential market abuse Suspicious Transaction and Order Reports (replaced STRs) MiFID transaction reports Strong pipeline of public outcomes A thematic approach Tough penalties Education and engagement Implementation of MAR Technology 13 / L_LIVE_EMEA1: v7

15 The next generation of market abuse Increased scrutiny of algorithms Areas of ambiguity Technological advances Use of criminal sanctions Mifid II 14 / L_LIVE_EMEA1: v7

16 Contact details Alix Boberg Associate Litigation T E alix.boberg@simmons-simmons.com Richard Sims Partner Financial Markets Litigation T E richard.sims@simmons-simmons.com Emma Sutcliffe Partner Financial Markets Litigation T E emma.sutcliffe@simmons-simmons.com Jochen Kindermann Partner Financial Markets Litigation T E jochen.kindermann@simmons-simmons.com 15 / L_LIVE_EMEA1: v7

17 16 / L_LIVE_EMEA1: v7

18 simmons-simmons.com elexica.com This document is for general guidance only. It does not contain definitive advice. SIMMONS & SIMMONS and S&S are registered trade marks of Simmons & Simmons LLP. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated practices. Accordingly, references to Simmons & Simmons mean Simmons & Simmons LLP and the other partnerships and other entities or practices authorised to use the name Simmons & Simmons or one or more of those practices as the context requires. The word partner refers to a member of Simmons & Simmons LLP or an employee or consultant with equivalent standing and qualifications or to an individual with equivalent status in one of Simmons & Simmons LLP s affiliated practices. For further information on the international entities and practices, refer to simmonssimmons.com/legalresp. Simmons & Simmons LLP is a limited liability partnership registered in England & Wales with number OC and with its registered office at CityPoint, One Ropemaker Street, London EC2Y 9SS. It is authorised and regulated by the Solicitors Regulation Authority. A list of members and other partners together with their professional qualifications is available for inspection at the above address. 17 / L_LIVE_EMEA1: v7