Transparency Task Force Attacks FCA and Sophisticated Investor/HNWI Status

Following on from the BBC Panorama programme on the Blackmore Bond scandal the Transparency Task Force have launched an attack on the incompetence of the Financial Conduct Authority – see https://www.transparencytaskforce.org/letters-to-mps-about-blackmore-bond/ . It includes a letter you can send to your Member of Parliament asking for some reform.

I agree with most of their recommendations on how matters can be improved.

One issue I would also raise is that the Panorama programme made it clear that risky and unregulated investments were sold to individuals who would not normally have qualified as “sophisticated investors” or as high net worth individuals, as is required.

It is possible to ‘self-certify’ yourself as a HNWI or a sophisticated investor. To self-certify as a HNWI you have to earn at least £100,000 per year or have net assets (excluding your property, pension rights and so on) of at least £250,000.

To self-certify as a sophisticated investor you must: have been a member of a business angels network for at least six months; or have made at least one investment in an unlisted security in the previous two years; or have worked in a professional capacity in the provision of finance to small- or medium-sized businesses in the last two years or in the provision of private equity; or be or have been within the last two years a director of a company with a turnover of at least £1m.

These are quite low hurdles and as the investor is only making the declaration with no checks necessary or evidence provided it is wide open to abuse. The company accepting the certification only has to have a reasonable belief that it is correct.

I suggest the HNWI limits should be raised and that those who claim to be sophisticated investors actually pass a simple examination on financial matters or have a recognised business/accounting qualification to prove what they are claiming.

There are simply too many cases of dubious investments being sold to widows and retired folks who have no way to judge the prudence of the matter.

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

Panorama Attacks FCA over Mini-Bond Failures

The BBC’s Panorama programme last night did a good job of pointing out the failure of the Financial Conduct Authority (FCA) to prevent fraud on investors in “mini-bonds”. In this case the focus was on the collapse of Blackmore Bond where 2,000 people lost £46m when the company collapsed. But there have been several other similar cases.

Mini-bonds are unregulated investments so should only be sold to “sophisticated” investors who might understand the risks. In this case people who clearly were not were persuaded to invest in property developments with “guaranteed” returns of up to 10%. Who was providing the guarantees? A company based in Costa Rica. A lot of the investors’ money was wasted on marketing costs and management fees paid to the directors. The investors were lured into putting money in via boiler rooms and internet advertising.

The FCA were told about the abuses but apparently did very little to stop it. Andrew Bailey who headed the FCA at the time failed to act. He subsequently has been made Governor of the Bank of England – a reward for failure it seems.

For more details see:  https://www.bbc.co.uk/news/business-62504445

Comment: It is surely wrong for the FCA not to have taken action on this matter when it was first brought to their attention. Many investors put money in after that and when it was obviously a dubious investment scheme.

The FCA simply says it was outside their remit to step in as it was not a regulated business registered with the FCA but that is not good enough. In fact the promotion of mini-bonds is a regulated activity. But any action taken by the FCA was too little and too late. See https://commonslibrary.parliament.uk/research-briefings/cbp-9272/ for more background.

This is in essence another example of the managerial incompetence of the FCA in the same way that it has failed to prevent a number of frauds on stock market investors, or tackle them when they have become apparent. Likewise the promoters of the Blackmore Bonds do not appear to be facing any legal penalties.

SNP MP Peter Grant said this in Parliament: “in 50 years from now or 100 years from now, our successors will be in the successor to this Parliament bemoaning the fact that billions of pounds have been taken out of the pockets of hard-working people and used to fund a luxury lifestyle for charlatans, crooks and conmen”. That’s a fair summary of the reality.

How to ensure you don’t fall victim to such promotions? I suggest the following:

  1. Don’t put all your life savings into unregulated investments and diversification is the key.
  2. Don’t fall for promises that are unlikely to be achieved – such as promising a “safe” return of near 10% when big financial institutions are offering much less. This tells you that they are high risk investments.
  3. Make sure you have widespread investment experience before you dabble in unregulated investments such as in mini-bonds and EIS companies.
  4. Don’t trust anyone, however glib they are. Make sure they have a track record of managing money responsibly.
  5. Flashy web sites and glossy literature are warning signs, not positive endorsements.

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

Gore Street Energy Fund Dividend Waiver and Directors’ Jobs

At the forthcoming Annual General Meeting of Gore Street Energy Storage Fund (GSF) in addition to the usual resolutions shareholders are asked to approve a “whitewash” of the illegal past payments of dividends (`resolution 15). This regularly happens when a company fails to file a statement of distributable reserves at Companies House showing it has sufficient reserves to cover the dividend. It seems to happen about once per year to my holdings for example. In fact it happens so often that one would have thought the company directors and auditors would be careful to check that issue before the dividend is approved.

It is interesting to note the number of jobs or roles that the directors have in this company. The Chairman Patrick Cox seems to have a multitude of appointments – too many to be detailed in fact. Likewise Caroline Banksy, who chairs the Audit Committee has 5 directorships and the other directors are not short of positions either.

Personally I think the work involved in being a director or a public company means that it is difficult to do the job properly if someone has more than 3 or 4 such commitments. Maybe that is why the issue of the dividend payment was overlooked.

There is no reason to vote against resolution 15 but I think shareholders should consider whether they should vote “FOR” all the directors.

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

Austin Review of Capital Raising and Dematerialisation

It’s the mid-summer doldrums in the stock market and with investors having more time on their hands, what better time to issue a 265 page document entitled “UK Secondary Capital Raising Review” (see link below). This document covers a number of very important issues to investors after a review by Mark Austin as Chair of a committee that has looked at the way the UK stock market operates in certain areas. I will only cover some of the key points below because it is a long and complex technical document but Mr Austin has done a fine job in bringing out the key issues in his report to the Chancellor:

  • He spells it out early on in these sentences: “…….we as a market need to be bold and brave in our thinking. We need to look at our existing rules and practices with a fresh set of eyes and a blank sheet of paper, and ask ourselves with a bottom-up rather than top-down approach – what is the right regime for us as a market for the next decade and beyond? …….That requires bold thinking and potentially addressing vested interests that have organically (and understandably) grown up in the past couple of decades due to how the system currently operates – and that may have made our capital markets fit for purpose in the past couple of decades but will not necessarily make it fit for purpose in the coming two decades”.
  • Secondary capital raising is one area he looks at in detail. He says: “There are many – sometimes competing and overlapping – structures, views and guidelines that create a complex architecture. Practice has built up over many years. It is, for want of a better phrase, an area that is very ‘whack-a-mole’ in nature, in that when one issue is addressed, it often causes another that needs to be addressed to pop out elsewhere – usually for a different set of stakeholders”. Retail investors are ill-served by existing practices and have been missing out on placings for example. Mr Ausin says, and quite rightly, that “As much of a company’s existing shareholder register as possible – including, importantly, retail investors – should be able to participate in any capital raising in a timely way, whatever its structure. Again, technology and digitisation have a key role to play here”.
  • Pre-emption rights are important to shareholders to avoid dilution but the rules on what is allowable are not defined in law but are promoted by a “Pre-emption Group” – in essence a club of city grandees. The Austin Review suggests it should be put on a more formal basis which is surely sound policy. The Review also covers the use of “Cash Box” transactions to get around the current legal limits on share issuance which should surely be outlawed and is one option suggested in the Review.
  • One matter discussed is the complexity and delays that occur when a rights issue or open offer is chosen as the fund-raising method. This discourages their use and the reliance instead on placings to expedite matters and reduce costs which prejudice private shareholders and smaller institutions. The key problem is the lack of a complete digital register of shareholders (including beneficial owners who hold shares in nominee accounts). That frustrates rapid communication with investors. Where a general meeting to vote on a proposal is required this currently requires 14 or 21 days notice to shareholders but the proposal is to reduce that to 7 days – an impractical objective unless electronic communication is possible. That will certainly assist rapid fund raisings which are sometimes required but it might also obstruct the ability of shareholders to communicate their concerns to other shareholders in time to oppose a vote. I suggest this requires more consideration.
  • The Review spells out the key priority in this sentence: “Raise the priority of an ambitious ‘drive to digitisation’ to facilitate innovation, stewardship and improved market infrastructure, which is actioned by a Digitisation Task Force with an independent chair and a clear set of principles to be followed”.
  • That will include “the eradication of paper share certificates and that “– it should seek to ensure that rights attaching to shares flow to end investors quickly and clearly and that investors are able to exercise those rights efficiently”. That is currently obstructed by the prevalent nominee system and the obstruction of some nominee operators (stockbrokers and platforms).
  • I have of course written extensively on the issue of dematerialisation and the use of nominees extensively in the past – in fact for more than 15 years with little action on the issue being decided. It is well overdue! ShareSoc has run a campaign on this issue where you can see the issues explained – see https://www.sharesoc.org/campaigns/shareholder-rights-campaign/ . There needs to be a “bottom-up” reform of the ways share are held and transactions recorded as the Review suggests. The current system is way too complicated and needs reform to improve shareholder democracy and market efficiency. Dematerialisation of all shares in public companies is a given requirement and all shareholders should be on the share register so that issuers (public companies) know who their investors are and can communicate with them quickly and easily. That is also a requirement for improved shareholder democracy.  

In conclusion, the Austin Review is a well-researched report and is essential reading to anyone who invests in the stock market. It includes detail reviews of how other international markets such as Australia operate. Let us hope that its recommendations are followed through with some urgency.  For retail investors the proposals should be welcomed not feared.

Austin Review: https://www.gov.uk/government/publications/uk-secondary-capital-raising-review

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

Prospectus Publishers off the Hook

The Government has published how it proposes to reform the Prospectus Regime. Among the welcome changes are the ability to omit a prospectus when shares are being issued to those who already hold equity securities in the offering company, subject to certain conditions, including that the offer is made pro-rata to a person’s existing holding.

The need for a prospectus introduced a costly barrier to the issue of shares via a rights issue and prejudiced private investors. It was always rather daft that those who already held the shares were assumed to know nothing about the company in which they held shares and required to be informed in detail about it. In general the proposed new prospectus rules are a welcome simplification. See link below for the details.

However the liability to investors for a false or misleading prospectus will remain but the following paragraph gives cause for concern.

“Para 14. While retaining the existing statutory remedy for false, misleading or omitted information, the government intends to raise the threshold for liability that applies to certain categories of forward-looking information in prospectuses. This will ensure that a person responsible for the preparation of a prospectus is liable to pay compensation only if: a) that person knew the statement to be untrue or misleading; b) was reckless as to whether it was untrue or misleading; or c) in the case of an omission, if that person knew the omission to be a dishonest concealment of a material fact.”

It has proved to be legally difficult to make liability for omissions from a prospectus stick – for example in the Lloyds/HBOS case. The above paragraph will require litigators to penetrate the minds of the directors and publishers of a prospectus and prove they knew that they were misleading investors – an impossible task.

This is not a helpful change at all.

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

Gamma Communications AGM and FCA News

I have received the Annual Report and Notice of the Annual General Meeting for Gamma Communications (GAMA). Despite the fact that this company specialises in electronic communications and actually say in their Annual Report that “This year we have adopted a digital first approach reflecting how we operate as a business”, they expect me to physically attend the AGM in central London at 10.00 am on the 19th May. There is no electronic attendance via web cast or hybrid meeting supported. This is a waste of my time for what is likely to be a routine event. I have written to the Chairman to complain.

Their registrar Link Group also failed to include a proxy voting form with the AGM Notice so I had to use my own. This is a repeated failing recently by Link Group which undermines shareholder democracy. They seem to be trying to force everyone to register for their electronic voting system. I don’t mind voting electronically but that should be provided by a simpler system such as that used by Computershare.

The Financial Conduct Authority (FCA) have published a press release that says “The FCA has finalised rules requiring listed companies to report information and disclose against targets on the representation of women and ethnic minorities on their boards and executive management, making it easier for investors to see the diversity of their senior leadership teams”. They have simply gone ahead and implemented new rules that were the focus of a public consultation which I severely criticised – see https://roliscon.blog/2021/08/06/diversity-but-at-what-cost/ . What feedback did they get to the public consultation? They have not said and no report has been published on it. I have asked for more information to see what support they got for these proposals which I consider to be political gestures which will have no benefit but add a lot of costs to listed companies.

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

Reform of Defamation Act to Stop SLAPPS

Today the Government has announced that it intends to reform the Defamation Act and take other steps to stop abusive legal practices. In particular the use of expensive lawsuits to inhibit free speech – so-called Strategic Lawsuits Against Public Participation (SLAPPS).

This is particularly relevant at the moment as it is alleged wealthy Russian oligarchs have used the high cost of litigation to stifle public criticism of their actions and past careers. Just by commencing a legal action on claimed defamations they can force the defending party to run up costs of thousands of pounds and the threat of pursuing it through the courts at even higher costs effectively bullies the defendants to concede defeat and withdraw. The current English legal system effectively allows the wealthy to defeat justice.

It is suggested that the “public interest” defence could be strengthened and a need to prove “actual malice” be introduced, although to my mind that would not solve the problem as it would just lead to more lengthy debate by lawyers. This would not be a simplification in essence.  

SLAPPS are not new of course but may have become a growing industry for lawyers to feed on. For example, it was well known that fraudster Robert Maxwell used lawyers to intimidate reporters and suppress negative stories on his activities.

But the real problem is that such cases are always tried in the High Court. That means there is a complex pre-action protocol and discovery phase and when it gets into court, potentially several days of multiple QCs acting for both parties at enormous cost.

It not only makes defending against allegations of defamation exceedingly costly, particularly if the pursuing party uses delays, complications or repeated claims to increase the costs, but it also makes it prohibitive for someone to make a claim for defamation unless they are quite wealthy. The risk of losing a case when the other side have run up enormous legal costs puts off most people from pursuing such cases.

In summary libel cases are too expensive and can only be pursued or defended by the very wealthy even when the complaints might be quite trivial in nature. The whole system needs reform with minor cases being considered by more junior courts and a cap on costs being imposed early on.

Government announcement:  https://www.gov.uk/government/news/government-clampdown-on-the-abuse-of-british-courts-to-protect-free-speech

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

Should Evraz Have Been Suspended?

The listing of shares in Evraz (EVR) have been suspended so all trading is barred. They were not suspended at the request of the company which is the more common circumstance but at the behest of the Financial Conduct Authority. The suggestion is that this was to protect investors pending clarification of the impact of the UK sanctions.

But the suspension of shares should in my view be an action of last resort. The suspension of shares is enormously damaging to investors because they are then locked in, and such suspensions can last a very long time. Investors may have borrowed cash to purchase the shares and then can’t get out.

Similar problems are affecting other Russia-linked firms such as Polymetal, Petropavlovsk and Raven Property as they are deleted from FTSE indexes and it is reported that brokers are refusing to trade their shares.

EVRAZ is a vertically integrated steel, mining and vanadium business with operations in Russia, the United States, Canada, the Czech Republic and Kazakhstan. EVRAZ is one of the top steel producers in the world based on crude steel production of 13.6 million tonnes in 2020. Picture above is of one of their steel mills from their annual report.

It is a UK registered company but Roman Abramovich owns 29% of the shares and allegedly has close links with Vladimir Putin, although he denies that. The BBC recently ran a programme which did a hatchet job on his reputation and alleged he acquired his wealth by fraud. Without going into the accuracy of those reports, it does seem to me that sanctions are being imposed on political grounds in an extra judicial process.

I think few people might question the imposition of sanctions on individuals who are linked to the Russian regime. But the problem is Evraz has a wide shareholder base. That includes many private shareholders. According to an Investors Chronicle article, they said AJ Bell had revealed that shares in Evraz and Polymetal were its two most bought shares over the past week. With both stocks plunging more than 80% year to date, this has led some to buy in as an opportunity to reap dividend payments potentially higher than the cost of the shares. However dividends have been suspended at Evraz.

The suspension of shares in Evraz might harm Abramovitch and his Russian friends but it will also damage the interests of other innocent people. This is not reasonable.

Evraz is clearly in a difficult financial position as the company will suffer from sanctions and all the non-executive directors have now resigned. Is that justification for halting trading in the shares? I am not convinced it is.

Companies can rightly, in my view, request suspension of their shares when past accounts are shown to be dubious – for example because of discovered frauds. This is to give time for the company to report what it knows and ensure all shareholders are aware of the issue before the listing is reinstated.

But simple doubts about the future prospects of the company should not be a sufficient justification for suspending a listing. I recall the example of Northern Rock where it got into financial difficulties and there was a run on the bank. It was running out of cash and there was a threat of nationalisation, but the shares were not suspended. It was only delisted when nationalisation took place.

It does seem to me that ShareSoc, which represents private shareholders, should take up this issue and request that the listing be reinstated as soon as possible. And the FCA should establish clear rules about when a listing should be suspended.

A suspended share listing can create enormous problems for investors. For example, if they have borrowed to buy the shares, or are trying to act as executor for an investor. Valuing the shares for probate is very difficult and there is no way to realise the value to pay IHT.

Mixing politics (the attack on all things Russian) with finance is a very bad idea.

For the avoidance of doubt, please note I have no interest in the shares of Evraz or any other Russian linked companies.

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

Abrdn Vote Delayed by Paper Shortage

It has been reported by Sky News and the FT that the vote on the acquisition of Interactive Investor by Abrdn (ABDN) has had to be delayed. The reason is simply that there is a shortage of paper it is suggested. Abrdn have about 1.1 million shareholders and the offer document is 120 pages long. Company law requires the document to be sent to everyone on the share register, and quite rightly you may so for such an important transaction.

Does this not highlight the absurdity though that email addresses are not held on share registers, only postal addresses. Some shareholders may prefer a paper document but most might prefer an option to receive it electronically, particularly as they are unlikely to read the whole 120 pages.

It is surely time to update the Companies Act to ensure all shareholders (including beneficial owners currently in nominee accounts) are on the share register with an email address. This would save companies a large amount of money and improve communication between companies and their investors. The absence of an email address also thwarts the ability of shareholders to communicate with other shareholders at reasonable cost which was a basic principle of Company Law since Victorian times.

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.

A New Consumer Duty from the FCA

Just before Christmas I wrote a critical blog post on the proposals by the Financial Conduct Authority (FCA) to reform the Financial Services Compensation Scheme. It generated a lot of supportive comments. At the same time the FCA published a consultation paper (CP21/36) on a “New Consumer Duty”. This seems to have similar objectives in that it is an attempt to stop consumers from being provided with misleading information, being provided with unsatisfactory support or buying products that are inappropriate or harmful.

For “consumers” read “individual investors” in the investment sector.

The FCA therefore is proposing a whole new set of rules to enforce a new Consumer Duty and the consultation paper alone consists of 190 pages of convoluted text, even though it is supposed to be principle based. It is also clear that there was considerable opposition from the financial services industry particularly as they will incur substantial costs in adapting to the new rules and maintaining them. There is also doubt as to whether it will result in any benefit as there is already an obligation to treat customers fairly and a multiplicity of other rules are already in place.

It might even increase costs to consumers as firms pass on their additional costs, and increase the risk of litigation. One aspect of the proposal is however not to provide a Private Right of Action (PROA) for a breach of the new rules or principles so consumers would have to rely on the Financial Ombudsman for any redress. This is very unsatisfactory as that organisation is hardly very effective at present and takes way too long to deal with complaints.

An example of the sophistry in this consultation paper is the discussion of two possible Consumer Principles to underpin the conduct of firms: Option 1 – A firm must act to deliver good outcomes for retail clients; or 2 – A firm must act in the best interests of retail clients. Can you divine any difference?

What are the likely costs of the adoption of this new Consumer Duty and associated rules? The paper says total one-off direct costs to comply will be in the range of £688m to £2.4bn. Annual on-going costs will be in the range £74m to £176m. The paper is remarkably unclear on the likely cost benefits to consumers.

I don’t know how much labour was put into writing this paper but it must clearly have been very considerable. I consider it a waste of effort. I doubt that consumers will be much better protected by adoption of the new Consumer Duty. The problem with the FCA is not lack of adequate rules, but an inability to enforce them vigorously. Firms devise new products that are too complex, badly understood by consumers and yet the FCA does not stop them being sold. They also approve firms and their management who should not be and fail to step in when matters are clearly going wrong.

It’s a management problem in essence and inventing new rules will not help.

My detailed comments in response to the consultation are present here: https://www.roliscon.com/Consumer-Duty-Consultation-Response.pdf

Roger Lawson (Twitter: https://twitter.com/RogerWLawson  )

You can “follow” this blog by entering your email address below. You will then receive an email alerting you to new posts as they are added.