Disappointing Investigation Report on London Capital & Finance
Earlier this month, the United Kingdom Treasury published the Report of the Independent Investigation into the Financial Conduct Authority’s (FCA’s) Regulation of London Capital & Finance (LCF). I read it with high expectations, but must say I found it deeply disappointing. I take perverse pleasure in reading investigation reports into frauds and disasters around the world (so long as they are in English). Beginning with Enron nearly two decades ago, there have been no dearth of such high quality reports except in my own country where unbiased factual post mortem reports are quite rare. So it was with much anticipation that I read the report on LCF which involved a number of novel issues about the risk posed by unregulated businesses carried out by regulated entities. Unfortunately, the Investigation Report did not meet my expectations: instead of providing an unbiased and dispassionate analysis of what happened, it indulges in indiscriminate and often unwarranted criticism of the Financial Conduct Authority (FCA). In the process, the report very quickly loses all credibility.
The LCF debacle is described well in the report of the Joint Administrators under the Insolvency Act from which this paragraph is drawn. LCF was set up in 2012 as a commercial finance provider to UK companies. From 2013, the Company sold mini-bonds, with trading significantly increasing from 2015 onwards. LCF was granted “ISA Manager” status by the UK taxation authorities (HMRC) in 2017, and LCF started selling its mini bonds under this rubric. (The necessary requirements to qualify for ISA Manager status are fairly limited; it is not a rigorous application process; and ISA Managers are not routinely monitored by HMRC). About 11,500 bond holders invested in excess of £237m in LCF mini bonds. The vast majority of LCF’s assets are the loans made to a number of borrowers a large number of whom do not appear to have sufficient assets with which to repay LCF. At present the Administrators estimate a return to the Bondholders from the assets of the Company of as low as 20% of their investment.
It is evident from the above that the most important issue in the LCF debacle is a failure of regulation rather than supervision. In the UK, mini bonds (illiquid debt securities marketed to retail investors) are subject to very limited regulation unlike in many other countries. (In India, for example, regulations on private placement of securities, collective investment schemes and acceptance of deposits severely restrict marketing of such instruments to retail investors). To compound the problem, the UK allows mini bonds to be held in an Innovative Finance ISA (IFISA). ISAs (Individual Savings Accounts) are popular tax sheltered investment vehicles for retail investors. The UK has taken a conscious decision to allow these high risk products to be sold to retail investors in the belief that the benefits in terms of innovation and financing for small enterprises outweigh the investor protection risks. While cash ISAs and Stock and Share ISAs are eligible for the UK’s deposit insurance and investor compensation scheme (FSCS), IFISAs are not eligible for this cover. Many investors may think that ISAs are regulated from a consumer protection perspective, but the UK tax department thinks of approval of ISAs as purely a taxation issue. To make matters worse, the UK has had extremely low interest rates ever since the Global Financial Crisis, and yield hungry investors have been attracted to highly risky mini bonds especially when they are marketed to retail investors under the veneer of a quasi regulated product - the IFISA. After the LCF debacle, some regulatory steps have been taken to alleviate this problem.
The Investigation Report is concerned about supervision more than regulation, and here the key issue is the regulatory perimeter issue: when an entity carries out a regulated business and an unregulated business, to what extent should the regulators examine the unregulated business. There are some financial businesses like banking where there is intrusive regulation of the unregulated business (the bank holding company). But what should the regulatory stance be on small regulated entities that carry out very limited regulated businesses (for example, confined mainly to financial marketing)? The Investigation Report simply points to the regulatory powers of the FCA to look at the unregulated business, and blithely asserts that the FCA should have been doing this routinely. This is unrealistic and would confer excessive and unacceptable powers to the financial regulators that would make them overlords of the entire society. Imagine that the publisher of the largest circulation newspaper in the country also publishes an investment newsletter that could be construed as financial promotions and is therefore regulated by the financial regulators. Do we want the regulator to have the power to take some regulatory action because it does not like the editorial stance of the newspaper? If you think that I am insane to consider such possibilities, you should examine the criminal prosecution that German financial regulators launched against two Financial Times journalists for its reporting on the Wirecard fraud. The Investigation Report does not reveal any such nuanced understanding and therefore represents a missed opportunity to improve our perspective on such matters.
Since the issuance of mini bonds is itself not a regulated activity, the role of the FCA is mainly in the area of the marketing of the bonds by LCF as a regulated entity authorized to carry on credit broking and some corporate finance activities. I would have expected the Investigation Report to focus on whether the FCA monitored LCF’s marketing (financial promotions) adequately. The Investigation Report documents that FCA received a few complaints on this, and in each instance, the FCA required changes in the website to conform to the FCA requirements. In my understanding, it is quite common for regulators worldwide to require changes in the financial promotions ranging from the font size and placement of a statement to changes in wordings to more substantive issues. The question that is of interest is where did LCF breaches lie on this spectrum (some of them were clearly technical breaches) and how did the frequency of serious breaches compare with that of other entities of similar size that the FCA regulates. Unfortunately, the Investigation Report does not provide an adequate analysis of this matter, other than saying that repeat breaches should have led to severe actions including an outright ban on LCF. That is not how regulation works or is expected to work anywhere in the world.
But these two inadequacies of analysis are not the main grounds for my disappointment with the Investigation Report. What troubled me is the repeated instances of what struck me as prima facie evidence of bias. At first, I brushed these aside and kept reading the report with an open mind, but slowly, the indicia of bias kept piling up and I began to question the objectivity and credibility of the report. At every twist and turn, wherever there was a grey area, the Investigation Report unfailingly ended up resolving this against the FCA. In the process, the credibility of the report was eroded bit by bit. By the time, I reached the end, the credibility of the report had been completely destroyed.
One of the most glaring examples of apparent bias is the discussion about a letter purported to have been sent by one Liversidge to the FCA. The only evidence for this is the statement by Liversidge that he did post the letter. Detailed search of all records at the FCA failed to find any evidence that the letter was in fact received by the FCA. One of the first things that is taught in all basic courses on logic is that it is impossible to prove a negative statement (like the statement that the letter was not received) and that is essentially what the FCA quite honestly told the Investigation Team. The Investigation Report first states that whether this letter was received or not is not relevant to the Investigation. That should have been the end of the matter. But then it goes on to make the statement that “if it had been incumbent on the Investigation to have reached a decision on this point, it would have concluded on the balance of probabilities that the Liversidge Letter was received by the FCA”. This is unreasonable in the extreme: there is no evidence other than the sender’s testimony that the letter was sent at all (let alone received), while there is some evidence that it was not received. The balance of probabilities clearly points the other way.
The Report goes to great lengths to criticize the FCA for the extended timelines of the DES programme which attempted a very significant transformation in the structure, the governance, the systems, the processes, the risk frameworks of supervision at the FCA. This was initiated around end of 2016 or early 2017 with a target completion date of March 2018, but was concluded only by December 2018. Having been involved in exercises of this kind in many organizations, I think spending a couple of years to accomplish something like this is quite reasonable (In fact it strikes me as a rather aggressive timeline). The original timeline of March 2018 appears to me to have been utterly unrealistic. The Investigation Report suggests that the FCA should instead have resorted to some “quick wins, reviews or easy fixes”. I think this suggestion is utterly misguided. “Easy fixes” is precisely the kind of thing that an organization should not do under such conditions. I think it is to the credit of the FCA Board that it did not undertake such a stupid course of action.
Actually, the FCA discovered the fraud on its own from two different angles. First, LCF filed a prospectus with the FCA and the Listing Team had a number of serious concerns on this. Second, during the course of a review of an external database (only accessible to a limited group within the FCA and on strict conditions of use) concerned with another firm, the Intelligence Team found some information on LCF and immediately escalated the matter. While the Investigation Report commends these actions, it states that if other employees at the FCA had similar levels of expertise in understanding financial statements, they would have uncovered the fraud earlier. I was aghast on reading this. Expertise in financial statements is a highly sought skill that is in short supply in the market. That the FCA manages to hire people with that skill in some critical departments is great. To expect that people in the call centre or those running authorizations would have this skill is absurd. If people with such skills thought that they may be transferred to such postings, they would probably not join the FCA in the first place.
The Investigation Report finds fault with the FCA for giving LCF permissions to carry out regulated businesses that it did not in fact use. I do not find this unusual at all. To give an analogy, the objects clause in the corporate charter (Memorandum of Association) typically contains a lot of things that the company has no intention of undertaking; it includes these things because of the severe consequences of finding that the company does not have the power under its charter to do something that has suddenly become desirable. Similarly, a regulated business would often want to have a range of regulatory authorizations that it does not expect to use. All the more so because regulators often take an restrictive view of things and take companies to task for all kinds of technical violations. For example, a stock broker who provides only execution services might want to have an advisory licence to guard against the risk that some incidental service that it provides could be regarded as advisory. Similarly, an advisory firm might worry that a minor service like collecting a document from the customer and delivering it to a stock broker might be interpreted as going beyond purely advisory services. That LCF obtained a licence but did not carry out the regulated activity is not in my view a red flag at all. The Investigation Report makes a song and dance about this despite having observed one fact that demonstrates its triviality. The FCA created a system that produced an automated alert whenever a firm did not generate income from regulated activities. Because of the high volume of automated alerts that were created as a result of this, the FCA had to allow these alerts to be closed without review!
It is indeed distressing that this deeply flawed report is all that we will ever get on this episode which raises so many interesting regulatory issues of interest across the world.
Posted at 9:38 pm IST on Tue, 29 Dec 2020 permanent link
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