Susan Han, Toronto
The Investment Industry Regulatory Organization of Canada (IIROC) is seeking comment with respect to how firms should deal, if at all, in “non-arm’s length” investment products. The regulator has issued a draft Notice to its Members which would set out staff expectations of Dealers when they and their Approved Persons distribute investment products in which the Dealer has an interest.
Much of the securities industry is primarily regulated by IIROC. Formed in 2008 through the combination of the Investment Dealers Association (IDA) and Market Regulation Services Inc. (RS), IIROC would have had its work cut out for it, even had the financial markets not so dramatically imploded at about the time the newly constituted regulator opened its doors. The events of the past year and a half have served to focus the energies of all financial market regulators and caused them to re-assess their priorities. Judging however by its recent regulatory initiatives, of which the draft Notice is but one, IIROC has redoubled it commitment to advancing investor protection by way of implementing the Client Relationship Model, or CRM.
For some years now, IIROC, together with other senior Canadian securities regulators, has been rethinking the regulatory model under which the distribution of securities to investors, particularly retail investors, takes place. They posited that investor protection could be made more effective by focusing on the relationships between the various parties in the capital markets, rather than on the types of products or the specific activities that market participants were carrying on.
CRM began life as something called the “Fair Dealing Model” and evolved to the present day Client Relationship Model1. The CRM seeks to regulate on the basis of the relationship a client -- think individual investor -- has with the financial services provider, rather than on the basis of the financial services or products that the client buys and sells. To that end, the rules seek to make clear the roles and responsibilities of the client and the financial services provider / advisor without regard to the type of account relationship (i.e., self-managed, advisory, managed-for-you).
The CRM has many facets, and we saw some of these implemented with the coming into force of a bundle of new regulations falling under the rubric of “Registration Reform”. Embodied within both a new National Instrument, NI 31-103 Registration Requirements and Exemptions, as well as a slate of new IIROC Rules and Policies, “Reg Reform” (as it is known to the industry) marks the first major step of the larger project which will eventually complete the CRM program. Reg Reform mandated new or enhanced disclosure requirements, so that clients will eventually be furnished with a comprehensive package called the “relationship disclosure information”. Also under Reg Reform, dealers are required to make an inventory of all of the conflicts of interest which could have a bearing on the client, and develop policies and procedures which address such conflicts.
This is the overall context in which IIROC has issued the draft Notice. IIROC specifically cites concerns regarding “conflicts of interest, product due diligence and suitability.” The Notice draws a comparison between sales of non-arms length products and situations in which a Dealer Member borrows money directly from a client. Dealers are required to make an internal assessment of the conflict, and only if the dealer concludes that the conflict can be “adequately addressed” should the dealer move to the next stage, which is subjecting the product to a thorough due diligence review. One wonders how a dealer can conduct meaningful due diligence on itself or a related party. IIROC notes that in a public distribution, there are any number of parties who can provide a sceptical and objective point of view, including underwriters, selling syndicate members, rating agencies, analysts and prospectus review staff of securities regulators. “In any distribution where such third party involvement is not mandated or otherwise applicable, members should consider arranging for substitute review or enhanced measures to ensure that appropriate due diligence is conducted…and the appropriate level of disclosure and other requirements are satisfied.”
Another concern cited by IIROC is the possibility that the industry protection fund, the Canadian Investor Protection Fund or CIPF, may not be available to cover client losses resulting from the purchase of non arm’s length products in the event of the insolvency or bankruptcy of a Member. IIROC notes that “in the case of non-arm’s length products of issuers related to the Member, the nature of the relationship and the determination of whether or not the loss is a market loss or insolvency loss (insolvency loss being the only loss covered by CIPF) may result in CIPF coverage not being available.”
Clearly, the area of greatest concern is the distribution via the Dealer’s sales channel of related party, less liquid, non-prospectused product. So the Notice proposes a requirement for Dealer members to provide IIROC with written notice 20 business days prior to the execution of a first trade in a distribution of a non arm’s length product which has neither a prospectus nor is eligible for margin under IIROC rules.
The notice requests comment from dealers and other interested parties on: relevant criteria for determining non-arm’s length investment products; best practices for dealers in conducting product due diligence and addressing conflict of interest concerns in the distribution of investment products; and the form that the new IIROC notification requirement should take.
While the intent of the Notice is understandable enough, IIROC members and their related parties would do well to examine the draft language. It is not at all uncommon for IIROC members to sell non arms-length products, and the process for making those distributions may just get a bit more complicated.
Comments are due May 6th, 2010.
1 The CRM itself is the subject of a Request for Comments issued by IIROC April 24, 2009 as Notice 09-0120. This document contains a broad overview of the CRM Program, as well as draft Rules for its implementation. Click here to view document.
The classic definition of “fair market value” - the price a willing buyer would pay a willing seller if neither were under any compulsion to buy or sell - is deceptively simple and hence widely appealing. In securities trading, however, the simplicity and elegance of this definition come at a cost, namely that they don’t take into account a long list of factors that directly affect trading prices in securities. To name just a few, information available to market participants, the interaction of different market places, the regulation of market participants versus markets themselves, the participation of automated trading systems in the market place, market automation and technology and constant increases in order execution speeds all have real impacts on both the actual results experienced by participants in securities trading as well as the perceptions of those participants of market fairness, integrity and other intangibles.
While there has for some time been a consensus in Canada as to the characteristics of an efficient and effective market at a theoretical or macro level, the “devil is in the detail” in that market regulation must constantly adjust to the commercial and technological changes in the markets themselves. As restated recently by the Canadian Securities Administrators (CSA)1, the five basic concepts that underpin market efficiency and effectiveness are:
- visibility and transparency
- price discovery
In recent months, after consultation and extensive analysis for a period of almost five years, some significant changes have been made by the CSA to both National Instrument 21-101 Market Place Operation and National Instrument 23-101, Trading Rules. While many of the changes are highly technical and arcane to all but those involved day to day in market mechanics, two of these changes have been broadly debated and go not only to the root of the five market efficiency and effectiveness principles but also to the philosophy and theory of markets generally.
Billed by the CSA as the “key part of the Amendments”1 is a new Order Protection Rule (the Rule) that will supersede the Investment Industry Regulatory Organization of Canada (IIROC) Best Price Rule. The Rule consists of a framework that requires, as a marketplace obligation, all visible, immediately accessible, better priced limit orders to be filled before other limit orders at inferior prices, regardless of the marketplace where the order is entered. The Rule requires all market participants – whether exchange members or alternative trading systems – to fill these orders and in so doing creates an incentive for investors to contribute to the price discovery process. Without the incentive of assured execution under the Rule, investors may become reluctant to disclose their intentions as they would otherwise not benefit from making disclosure and disclosure in itself operates to assist other investors in making trading decisions. Without the Rule, therefore, the regulators believe that investors may lose confidence that their orders are being fairly treated. This negative perception of the market place will of course in time mean that such market place loses investors and trading volume.
The Rule will take effect in February 2011. Until then the IIROC Best Price Rule continues to apply. Without attempting to fully describe the many technical aspects of the new Rule, it should noted that the existing Best Price Rule does not apply to all participants and that it effectively requires best efforts only in terms of price differentials in different markets: it does not contemplate market participants routing orders simultaneously to more than one marketplace.
The other significant change the CSA has made is to prohibit the intentional locking or crossing of markets. The CSA defines a locked market as two orders on the opposite side of the market, e.g. a bid and an offer in two different markets, at the same price. Locking is resolved either by additional orders in either of the markets involved or the migration of one of the orders to the other market. Crossing is where a bid order on one marketplace is higher than an offer order on another marketplace or vice versa. Crosses are usually resolved quickly by arbitrageurs.
The critical limit on the new prohibition is “intention”. Unintentional creation of a locked or crossed market is not caught by the new prohibition which became effective in January 2010. Some market theorists consider that this rule is too restrictive, i.e. mere intention should not sufficient to create a breach of trading protocol. The CSA decided however that they wanted a rule that was consistent with investor, particularly retail investor, expectations and so opted for intention without qualification.
While the CSA does acknowledge the argument that locking the market “represents the most efficient market by eliminating the bid-ask spread”1, the chief negatives of locking are investor confusion at the failure of displayed orders to be executed and the associated perception of lack of market integrity.
In making their choices on these two significant amendments was well as the many more minor ones, the CSA has been guided not only by what they believe is required to assure fairness but also perceptions of fairness by market participants of all kinds. The changes support both and thus avoid damage to Canadian markets that could have arisen from loss of confidence in market fairness and the other necessary qualities of an efficient and effective market.
1 Ontario Securities Commission, “History of 21-101 – Marketplace Operation, Companion Policy, Forms 21-101F1, 21-101F2, 21-101F3 and 21-101F4 (Click here to view.) Ontario Securities Commission, “History of 23-101 – Trading Rules and Companion Policy 23-101CP” (Click here to view.)
Britt Redenbach, Vancouver
On April 30, 2010, new insider reporting rules are scheduled to take effect, as the Canadian Securities Administrators (the “CSA”) will be adopting a new reporting regime for insiders of reporting issuers in Canada (the “New Regime”)1. The New Regime will be set out in National Instrument 55-104 Insider Reporting Requirements and Exemptions (“NI55-104”), Companion Policy 55-104CP and related amendments to other instruments. The changes introduced in the New Regime include a significant change to the persons to whom insider reporting requirements apply, as well as the reporting requirements applicable to such persons.
The New Regime introduces a principled approach to determining which insiders will be subject to reporting requirements. It will reduce the number of persons required to file insider reports by focusing the reporting requirement on “reporting insiders”.
Under the New Regime, “significant shareholders” are included in the definition of reporting insiders. A person or company is a significant shareholder if that person has beneficial ownership of, or control or direction over, whether direct or indirect, or a combination of beneficial ownership of, and control or direction over, whether direct or indirect, securities of an issuer carrying more than 10 percent of the voting rights attached to all the issuer’s outstanding voting securities.
The Concept of “Post-Conversion Beneficial Ownership”
The New Regime also provides for the concept of a shareholder being recognized as a significant shareholder on a post conversion beneficial ownership basis, and therefore being caught in the definition of a “reporting insider”. A “significant shareholder based on post-conversion beneficial ownership” is a person or company that is not a significant shareholder but that has beneficial ownership of, post-conversion beneficial ownership of, control or direction over, or any combination of beneficial ownership of, post-conversion beneficial ownership of, or control or direction over, whether direct or indirect, securities of an issuer carrying more than 10 percent of the voting rights attached to all the issuer’s outstanding voting securities, including securities in respect of which a person or company has post-conversion beneficial ownership. A person or company is considered to have, as of a given date, post-conversion beneficial ownership of a security, including an unissued security, if the person or company is the beneficial owner of a security convertible into the security within 60 days following that date or has right or obligation permitting or requiring the person or company, whether or not on conditions, to acquire beneficial ownership of the security within 60 days, by a single transaction or a series of linked transactions.
Directors and Certain Officers of the Reporting Issuer, of its Significant Shareholders and of its Major Subsidiaries
The chief executive officer, the chief operating officer, the chief financial officer and directors of the reporting issuer, of a significant shareholder (including a significant shareholder based on post-conversion beneficial ownership) of the reporting issuer or of a “major subsidiary” of the reporting issuer are reporting insiders under the New Regime. The definition of a reporting insider also catches a person or company responsible for a principal business unit, division or function of the reporting issuer or of a major subsidiary2 of the reporting issuer, as well as any individual performing functions similar to the functions performed by any of the positions described in this paragraph.
Also caught in the definition of reporting insider is a management company that provides significant management or administrative services to the reporting issuer or to a major subsidiary of the reporting issuer; every director, officer and significant shareholder (including a significant shareholder based on post-conversion beneficial ownership) of the management company; and any individual performing functions similar to the functions performed by any of the positions described in this paragraph.
The Issuer Itself
The reporting issuer itself will be a reporting insider if it has purchased, redeemed or otherwise acquired a security of its own issue, for so long as it continues to hold that security.
In the case of an issuer that is an income trust, every director, officer and significant shareholder (including a significant shareholder based on post-conversion beneficial ownership) of a principal operating entity will be a reporting insider under the New Regime.
Access to Material Undisclosed Information and Exercise of Significant Influence
The definition of reporting insider also contains a basket clause that catches any other insider who (a) in the ordinary course receives or has access to information as to material facts or material changes concerning the reporting issuer or a major subsidiary of the reporting issuer before the material facts or material changes are generally disclosed; and (b) directly or indirectly, exercises, or has the ability to exercise, significant power or influence over the business, operations, capital or development of the reporting issuer or of a major subsidiary of the reporting issuer.
Under the New Regime, when an issuer becomes an insider of another issuer, every director and officer of both issuers will be deemed to have been insiders of the other for the past six months and will have to file insider reports in respect of securities transactions relating to the other issuer that occurred during such time (or such shorter period during which he or she acted as a director or officer of the first issuer), provided, however, that insider reports will only be required in respect of securities of reporting issuers.
Starting on October 31, 2010, the deadline for insiders to report changes in their interests will be accelerated to five calendar days from ten calendar days. The New Regime will maintain the current ten calendar days deadline for insiders’ initial reports, the retroactive reports discussed above and for reports disclosing the material terms of any agreement, arrangement or understanding that was entered into before the date on which such insider most recently became a reporting insider and that remains in effect on or after the date the insider most recently became a reporting insider.
Reporting Automatic Securities Purchase Plans
The New Regime provides for an exemption that will simplify the reporting requirements for the acquisition or disposition or transfer of securities3 acquired under an automatic securities purchase plan in limited circumstances. This exemption is meant to cover situations in which the insider is not making discrete investment decisions. A director or officer of a reporting issuer4 will be exempt from insider reporting requirements provided that he or she files an alternative report with respect to such transactions. Alternative reports with respect to securities acquired that have not been disposed of or transferred (other than specified dispositions) are due by March 31, in each year with respect to prior calendar year transactions. Alternative reports with respect to securities acquired that have been disposed of or transferred (other than specified dispositions) will be due within five days of the disposition or transfer.
Reporting Stock-Based Compensation Arrangements
The New Regime provides for an exemption that will simplify the reporting requirements for certain reporting issuer grants made under stock-based compensation arrangements of a reporting issuer or a subsidiary of the reporting issuer. A director or officer of a reporting issuer5 will be exempt from filing an individual report provided that (a) the reporting issuer has previously disclosed the existence and material terms of the arrangement in a public filing on SEDAR; (b) the reporting issuer has previously filed an “issuer grant report” on SEDAR; and (c) the director or officer files an alternative report with respect to such transactions. Alternative reports with respect to securities6 acquired are due by March 31, in each year with respect to prior calendar year transactions. Alternative reports with respect to securities acquired under the compensation arrangement that have been disposed of or transferred will be due within five days of the disposition or transfer.
NI55-104 contains a variety of other exemptions, including for normal course issuer bids, for any other transactions involving the issuer’s own securities that has otherwise been generally disclosed in a public filing on SEDAR, for changes that result from “issuer events”7, as well as a number of general exemptions.
1 In Ontario, the insider reporting rules will remain in the Securities Act (Ontario), however the substance of the requirements will be the same across the CSA jurisdictions.
2 A subsidiary will be considered a “major subsidiary” if the assets or revenues of the subsidiary, as included in the issuer’s most recent annual or interim balance sheet, are 30% or more of the consolidated assets or consolidated revenues of the issuer on that balance sheet.
3 References to securities in this paragraph include a related financial instrument involving a security of the reporting issuer.
4 References to directors or officers in this paragraph include a director or officer of a reporting insider in respect of the reporting issuer and a director or officer of a subsidiary of a reporting issuer and a reporting insider of the reporting issuer.
5 See note 3.
6 See note 4.
7 An “issuer event” means a stock dividend, stock split, consolidation, amalgamation, reorganization, merger or other similar event that affects all holdings of a class of securities of an issuer in the same manner, on a per share basis.
Yves Robillard, Montréal
Investment advisors cannot escape disciplinary sanctions by resigning, Court of Appeal says. But the new ruling may lead the way to further contesting of large fines.
All-Star Basketball player Kevin Garrett is right. Quitting is not an option.
After many years of back and forth, the debate around the impact of a resignation on self-regulatory organization disciplinary proceedings seems to be resolved by a recent judgment from the Ontario Court of Appeal in Taub v. Investment Dealers Association of Canada.1
Taub was an investment advisor. He resigned from his position with a brokerage firm and from the IDA.2
Taub’s resignation occurred before disciplinary proceedings could be instituted by the IDA against him for alleged market manipulation and use of confidential information.
Once accused, Taub argued that the IDA had no jurisdiction over him as he had resigned before the institution of the disciplinary proceedings and was no longer a member.
The IDA panel dismissed that argument and concluded that it retained jurisdiction.
On appeal, the Ontario Securities Commission upheld that decision.
On further appeal, the Divisional Court overturned the decision and determined that the IDA had no jurisdiction over Taub.
Ultimately the Ontario Court of Appeal had to decide who was right: the Court or the two disciplinary boards.
At the time, the IDA was a private voluntary association recognized by the Canadian authorities to regulate the activities of its members. Like all other members, Taub had originally agreed to be bound by the rules of the association.
One of those rules provided that the IDA had continued jurisdiction over a former member for five years after a resignation.
In 1989, the Ontario Court of Appeal had decided that the Toronto Stock Exchange had no power to extend its disciplinary jurisdiction to former members in the Chalmers case.3
In 2008, the British Columbia Court of Appeal determined that the IDA could discipline former members in the Dass case.4
Taub had to convince the Ontario Court of Appeal that the BC Court was wrong and that the Chalmers case should be followed.
His main argument was that having resigned, he had pre-empted the ultimate penalty -- expulsion -- and made the discipline proceedings effectively moot.
This argument had been accepted by the Court of Appeal ten years earlier in the Chalmers case.5 Taub was expecting the judges would be consistent.
But ten years is a long time.
The appeal judges felt that Chalmers had to be reversed.
Their new reasoning was simple: Expulsion is no longer the ultimate penalty. It is now outweighed by the large fines provided by the IDA by-laws.
According to the Court of Appeal, “If the IDA is able to impose the same significant fines when disciplining former members as it can when disciplining members and if those fines are legally collectable, then expulsion or removal of a person from membership (…) would not be the ultimate or necessarily the only significant disciplinary penalty that could be imposed on former members.”6
On that basis, the appeal judges dismissed Taub’s argument and concluded that the IDA retained disciplinary jurisdiction over him notwithstanding his resignation.
With that decision and the BC judgment in Dass, one may believe that the debate is over.
But the very basis of the Taub decision depends on whether the large fines are collectible. This is not obvious.
Indeed both common and civil law make the collection of contractual fines or penalties questionable in some circumstances when considered to be abusive or out of proportion.7 Further, in common law, the term “penalty” can itself raise enforcement issues.
So if large fines are now the ultimate penalty but they are not collectible under the law, they are not effective.
If large fines are not upheld as effective sanctions expulsion may be restored as the “ultimate” sanction and thus the Taub argument is successful. Based on the clear and consistent decisions in Dass and now Taub, however, in the end, Garrett is right. Quitting is not an option.
12009 ONCA 628 (C.A.)
2At the time, the IDA was the self-regulating organization recognized by the Canadian regulators. It has been replaced by IROCC in 2008.
3Chalmers v. Toronto Stock Exchange, (1989), 70 O.R. (2d) 532 (C.A.)
4Dass v. Investment Dealers Assn. of Canada (2008), 85 B.C.L.R. (4th) 53 (C.A.)
5Chalmers v. Toronto Stock Exchange (1989), 70 O.R. (2d) 532 (C.A.)
6p. 26, par. 60
7See Birch v. Union of Taxation Employees (2008), 93 O.R. (3d) 1 (C.A.), leave to appeal dismissed,  S.C.C.A. No. 29; Article 1623 of the Civil Code of Québec.
Emily Cole, Toronto
Canada’s first criminal conviction for illegal insider trading occurred on November 6, 2009, when Justice Robert Bigelow of the Ontario Court of Justice accepted a guilty plea from Stan Grmovsek. Sentencing was delayed until January 7, 2010 to facilitate the conclusion of regulatory proceedings and a civil action brought against Grmovsek and his co-accused, Gil Cornblum. Tragically, Cornblum committed suicide on October 27, 2009, a day before he was scheduled to plead guilty.
Cornblum and Grmovsek collaborated in a deliberate and prolonged illegal insider trading scheme. Cornblum and Grmovsek started the illegal insider trading scheme after their graduation from law school in 1994. Cornblum sought and obtained material, non-public information about pending corporate transactions that he passed on to Grmovsek, who then executed trades in the securities of the corporations involved in the corporate transactions for a profit that they split between them.
During the time of the illegal insider trading, Cornblum worked at a number of law firms in New York and Toronto. He received some of the material non-public information in his role as counsel to certain issuers on pending corporate transactions. In addition, he gained material non-public information through conversations with colleagues or other counsel. However, Cornblum also resorted to more clandestine-like activity to obtain material non-public information. For example, he used the night secretarial staff’s temporary passwords to search for confidential information in the computer databases.
The illegal insider trading scheme spanned a 14 year period from 1994 – 2008. Grmovsek traded while in possession of material, non-public information in about 46 corporate transactions involving securities that were publicly listed in Canada and the US, after being tipped by Cornblum.
In Canada, Grmovsek was charged with three offences: (i) fraud (for trades executed before the new Criminal Code insider trading provisions), (ii) illegal insider trading contrary to the Criminal Code and, (iii) money laundering contrary to the Criminal Code.
Section 382.1 of the Criminal Code creates the offences of insider trading and tipping, punishable by a maximum prison term of 10 years. The distinction between the Criminal Code and the Ontario Securities Act offence of illegal insider trading is that the criminal offence imports a mens rea requirement that the individual “knowingly used inside information,” whereas in the regulatory context the Crown is only required to prove that the individual was in possession of knowledge that was not generally disclosed.
On January 7, 2010, Bigelow J. sentenced Grmovsek to 39 months imprisonment.
The US Securities and Exchange Commission (SEC) alleged that Grmovsek violated the anti-fraud provisions. On January 13, 2010, Grmovsek pleaded guilty and was convicted of one count of conspiracy to defraud the US. He was sentenced to a term of imprisonment of time served and fined one hundred dollars.
Grmovsek agreed to disgorgement orders to the SEC a total of $8.5 million dollars with a waiver of all but nearly $1.5 million and to the Ontario Securities Commission (OSC) at total of $1.03 million dollars. Grmovsek also agreed to pay $250,000.00 costs of the OSC investigation. The disgorgement orders reflect the proportion of profits made by Grmovsek in the US and Canadian capital markets.
Justice Bigelow described the sentence against Grmovsek as “entirely appropriate and justified”. Bigelow J. also noted that “it has a strong denunciatory and general deterrent effect.” The Grmovsek jail sentence exceeds the longest sentence to date in an illegal insider trading prosecution brought by the OSC under section 122 of the Ontario Securities Act.
The OSC’s settlement agreement with Grmovsek stated that Cornblum and Grmovsek provided extensive cooperation in assisting all regulatory authorities and law enforcement agencies involved in identifying the depth and breadth of the conduct at issue. Although the Commission has not yet released its reasons, Grmovsek’s cooperation was undoubtedly taken into consideration in meting out the sentence.
What's Happening at Miller Thomson
Dwight Dee has been appointed to the British Columbia Securities Commission Securities Law Advisory Committee.
David Judson will be a moderator and speaker for the 2010 Annual Canadian Corporate Counsel Association Securities Workshop in Montréal on April 11 - 13.
Susan Han will be the Chairman and a speaker at The Strategy Institute Mutual Fund Point of Sale Strategies conference in Toronto on April 14 & 15.
Emily Cole will be a panelist at The Advocates Society conference, "The Real Battleground in Securities Litigation: Advocacy Outside the Hearing Room" in Toronto on April 22.
Barbara Doherty will be a moderator at the Corporate Counsel Exchange conference, "Going Beyond Regulation in Championing an Executive Compensation Policy that Strengthens Transparency and Spurs Performance" in Ponte Vedra Beach, FLA on April 26.
David Rounthwaite will moderate the panel on Credit Cards and Personal Lines of Credit at Insight's 13th Annual ABS 2010 at Niagara-on-the-Lake, Ontario on June 7.
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