How much information can we make public?
Like other regulators in New Zealand and around the world, we generally do not comment on the progress of our investigations. This is because of the risk of causing unjustified damage to the reputation of the businesses and individuals we are investigating before we are sure that the grounds for our concern were justified by the evidence.
We must also take care that we don't prejudice the fair and effective trial of a person who is eventually charged by releasing too much information.
On the other hand, we want to keep the public - and particularly investors - informed about our finance company work. From time to time we release additional information when we believe it is in the public interest to do so.
What powers do we have?
Our powers under the Securities Act 1978 relate to the offer documents (prospectus and investments statement) all issuers of securities to the public - including finance companies - must prepare, and to advertisements for those securities.
These must disclose a product's features and risks so investors can weigh the risk they are willing to take against the offered return.
It is one of the Financial Markets Authority's roles to take action where offer documents do not accurately disclose everything they should, or where offers to the public are not made in accordance with the Securities Act and its regulations.
Our powers under the Act are separate from the powers we have under other legislation, such as the power to recommend to the Minister that a corporation at risk is placed in statutory management under the Corporations (Investigation and Management) Act 1989.
Statutory management can only be used as a last resort when there is no other way of adequately protecting the interests of the members, creditors, beneficiaries or the public interest. It has not been available in the case of the finance companies because other legal procedures, such as the appointment of receivers, were available.
The Serious Fraud Office detects, investigates and prosecutes serious and complex fraud. FMA works closely with the SFO to ensure law-breakers are brought to justice.
Every investigation is different because each company and its circumstances are different.
Each step in an investigation must comply with the rules that apply to evidence that can be used in court, in case the investigation results in a prosecution. It is important for both the prosecution and the defence that procedural rules are followed and are not short cut.
FMA staff assess the finance company's offer documents to see if there appear to have been any untrue statements or material omissions, or whether the finance company otherwise breached the Securities Act. This might require finding out more about the company and its business.
Sometimes the company, its receiver or liquidator will volunteer the information. Sometimes we get it by using our statutory power to summons or inspect information.
If it looks like the Act may have been breached, staff may recommend that a formal investigation is opened and an inspector is appointed.
Our inspector compares the information to hand with what the company said in its offer documents. This allows them to assess if any statements were untrue or left out information an investor would have needed to make an informed investment decision.
If necessary, FMA's investigation team gets help from an external forensic accountant or investigator.
Inspections are complex. They cover a very large part (sometimes all) of a finance company's business. They can take a long time for investigators and forensic accountants to complete.
If all the electronic data managed by our inspector in a 2010 case had been printed and stacked, it would have stood as high as the Auckland Sky Tower.
It took two experienced forensic accountants, a financial analyst and a data/electronic discovery manager more than 900 hours (or 21 weeks) complete their investigation.
As well as reviewing documents, transactions and electronic data, our inspectors talk to potential witnesses.
An inspector's report comprises factual analysis and opinion. It is often peer-reviewed by another professional to ensure its conclusions are robust.
What happens after an inspector reports?
Three outcomes are possible:
What happens after a case assessment?
If the inspector's report says there were material misstatements, FMA looks at the circumstances of the case and decides how to proceed. Actions might include:
What happens when a case goes to Court?
Cases go to Court when we believe finance company directors have committed a crime by misleading investors in offer documents. Most criminal charges are laid on indictment under section 58 of the Securities Act.
An indictable (or serious) offence means the prosecution must file evidence establishing there is a case to answer before the case can go ahead. Indictable charges are heard by a jury, unless they qualify for a judge-alone hearing. Indictable offences carry a maximum penalty of five years imprisonment or fines of up to $300,000, plus $10,000 for every day the offence is continued.
Sometimes charges are laid summarily under sections 58 or 59 of the Securities Act. Summary charges are heard by a judge alone and carry a maximum penalty of three months imprisonment or fines of up to $300,000, plus $10,000 for every day the offence is continued. A person found guilty of an offence under section 58 is automatically banned from being a director or promoter, or being concerned or taking part in the management of a company or body corporate for 5 years.
We issue these under section 55c and other sections of the Securities Act. Doing so allows investors to seek compensation from the company's directors and others involved in a misleading offer, without investors themselves having to prove that a breach of the Act or regulations occurred.
We have completed our investigations of 26 failed finance companies by:
Any decision to take no further action is made on the basis of information we currently have. Our decision can and will be reviewed, and our investigation be reopened, if new information comes to light.
Investigations into the other 25 failed finance companies continue.
Civil and criminal charges laid against directors or officers of 11 companies are currently before the Court. These charges have been laid either by us or by the National Enforcement Unit of the Companies Office following referral by us. For details, see Cases before the Court.
Why don't we always take Court action?
We apply the public-interest test set out in the Solicitor-General's Prosecution Guidelines [333 kB pdf]. Reasons for not taking court action may include:
What other ways can FMA get an effective result?
Enforceable undertakings are legally binding promises made by directors to do things, and are sometimes more publicly beneficial than prosecution.
For example, Finance & Investments' partners offered securities to the public without an investment statement or registered prospectus. We accepted an enforceable undertaking that the partners wouldn't in the future be involved with an offer of securities to the public in New Zealand.
If the directors don't comply with the undertaking, FMA can apply to the Court for compensation and other orders.
Sometimes our investigations suggest a case would be better pursued by another agency e.g. the Commerce Commission, the Police or the Serious Fraud Office. Sometimes we pass on information to another agency for them to consider while we continue our own investigations.
Sometimes we decide that a case warrants no further action because:
What happens when FMA decides to take criminal and/or civil proceedings?
Charges or proceedings are prepared, then laid or issued and served on the defendants.
With a criminal proceeding, we make a public announcement about it only after the first court appearance. This gives the defendant time to get advice and seek name-suppression, as they have a right to do.
Announcements must follow the Solicitor-General's Media Protocol.