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Individual Fined £45K for Failing to Notify of Personal Trades
Individual Fined £45,000 for Failing to Notify of Personal Trading
6th January 2020
At the tail-end of December, the FCA took the first enforcement action against an individual for a breach of Article (19) under the Market Abuse Regulation (MAR).
Mr Kevin Gorman, a former Managing Director of Braemar Shipping Services Plc (Braemar) was fined £45,000 for failing to notify of personal trades. Had he not been co-operative with the regulator during the investigation, the fine would have been £64,300.
Under the Market Abuse Regulation, a person discharging managerial responsibilities (PDMR), such as Mr Gorman, is required to notify the company and seek clearance in order to deal, in accordance with the company’s share dealing code. However, in spite of the fact that Mr Gorman had been sent the relevant notifications relating to his obligations as a PDMR under MAR and in respect of the requirements under the share dealing code, he failed to notify of personal share trades in the listed company as required. (Note that he was not a director of the listed company, but a managing director sitting on the company’s executive committee).
When asked why he had not notified the company as required, he claimed not to be aware of his obligations to do so under MAR or the share dealing code.
It should also be noted that the requirements of PDMRs under the Market Abuse Regulation to notify the FCA ad the issuer of every transaction conducted on their own account above a certain threshold within 3 business days also extends to those closely associated with them.
This includes notification about transactions in the issuer’s shares, debt instruments, derivatives or other linked financial instruments.
The Executive Director of Enforcement and Market Oversight at the Financial Conduct Authority, Mr Mark Steward, said “Transparency of trading by directors and other responsible officers is a key element of market integrity and helps to police the market against illegal insider trading.”
Furthermore, Mr Steward reminded directors of listed companies that like Mr Gorman they must also ensure they report their trading on time or risk undermining market integrity.
Whist Mr Gorman had not traded whilst in possession of any confidential inside information, the FCA informs that he had been found to have sold shares, on 3 occasions, worth a combined total of £71,235.28 between August 2016 and January 2017 – and on each of these occasions, he had done so without informing the FCA or the company (Braemar) within the required 3 business days.
In cases such as this, whilst the FCA primarily looks to set the fine based on any profits made by an individual, in this case, because Mr Gorman had not profited through the undisclosed trades, the FCA set the fine based upon his salary, at a rate of 10%.
Other individuals in similar positions, such as Directors and other PDMRs, would be well reminded to ensure they know their reporting obligations under MAR since this enforcement action demonstrates that the FCA takes such obligations extremely seriously and will not hesitate to enforce them.
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“Transparency of trading by directors and other responsible officers is a key element of market integrity and helps to police the market against illegal insider trading.”
Mr Mark Steward, FCA Executive Director of Enforcement & Market Oversight, Dec 2019