On 3 July 2020, the FCA published a Decision Notice against Conor Foley, former WorldSpreads CEO, proposing to fine him £658,900 for market abuse and ban him from performing any roles linked to regulated activity. Mr Foley has referred the case to the Upper Tribunal.
Mr Foley was the CEO of WorldSpreads Limited (WSL), a financial spread-betting company. WSL’s holding company, quoted on AIM, was WorldSpreads Group plc (WSG). Mr Foley was also a majority shareholder in WSG. Mr Foley is the last of WSL’s executives to face FCA enforcement action following the collapse of WSL and WSG in 2012: the FCA previously fined and banned WSL’s CFO, Niall O’Kelly, and its Financial Controller, Lukhvir Thind, in April 2017 for falsifying critical financial information concerning WSL’s client liabilities and its cash position.
Behaviour amounting to market abuse
When WSG floated on AIM in August 2007, Mr Foley was closely involved with drafting and approving the admission documentation. In the FCA’s view, these documents contained misleading information and omitted key information that investors would have needed to make an informed decision about investing in the company. In particular, the admission documentation was materially misleading in that:
- it did not disclose the fact that some WSG executives had made significant loans to WSG and its subsidiaries (the Internal Loans);
- it did not explain that certain of WSG’s subsidiaries “hedged” considerable trading exposures internally with company executives (the Internal Hedging). The Internal Hedging that Mr Foley oversaw also involved the use of fake client trading accounts and the unauthorised use of actual trading accounts.
The FCA argues that Mr Foley was aware of the failure to declare the Internal Loans and the Internal Hedging within WSG’s admission documentation and its annual accounts throughout the relevant period. He also knew that this gave, or was likely to give, a false or misleading impression to the market. On this basis, the FCA believes he committed market abuse and deliberately misled the market.
In addition, between January 2010 and March 2012 large spread-bets on WSG shares were placed on the trading accounts of five WSL clients. The nature of the hedging process meant that these spread-bets caused the purchase of a large number of WSG shares from the market. The spread-bets on the trading accounts of two of the five clients were placed by Mr Foley without the knowledge of these clients; according to the FCA, in relation to those trading accounts Mr Foley effected transactions which gave a false or misleading impression as to the demand for WSG shares, and employed manipulating devices in order to deceive the market. The FCA argues that Mr Foley also sought to circumvent his obligations to disclose these dealings to WSG, thereby also preventing WSG from complying with its notification requirements. Further, in the FCA’s view, the transactions placed on all five of the client trading accounts rendered statements as to WSG’s credit policy contained in and disseminated through its Annual Accounts false and misleading.
Fitness and propriety
The FCA also considers that Mr Foley lacks fitness and propriety to perform any function in relation to any regulated activity. This is because, in addition to the behaviour described above, Mr Foley:
- managed an Internal Hedging strategy which involved the use of fake client trading accounts or real client trading accounts without their knowledge;
- deliberately engaged in market abuse despite having been an Approved Person at the time; and
- was subject to an adverse court finding as a result of unauthorised loans from WSL.
This decision, together with the recent public censure issued to Redcentric plc, highlights the FCA’s continued focus on market abuse cases involving market manipulation. Market manipulation investigations are taking up increasingly more of the FCA’s wholesale investigation caseload, and as the FCA further consolidates its own market manipulation surveillance capabilities, firms should remind themselves of Julia Hoggett’s caution from February 2019 that “there is still more for the industry to do to improve its capacity to surveil for market manipulation”.
These enforcement actions also serve as a reminder that the FCA is determined to continue pursuing complex and difficult cases involving false and misleading statements. Firms should remain vigilant with regard to observing proper market conduct and discipline, especially in the context of the FCA’s temporary relief for listed companies during the COVID-19 crisis.