EU Market Abuse Regulation – Insider trading “in the news”
Insider trading has been in the news recently. The conviction and sentencing of a former UBS compliance officer and the family friend and experienced day trader of financial securities to whom she passed information has been widely reported.
In 2013-14, Fabiana Abdel-Malek was employed as a senior compliance officer by the investment bank UBS AG in their London office. She used her position to identify inside information which she passed to her family friend Walid Choucair, an experienced day trader of financial securities, using pay-as-you-go mobile telephones. Choucair made a profit of approximately £1.4 million from the trading that was the subject of the five charges.
Of note is the Financial Times comment that the case is the FCA’s only big insider trading trial to reach a jury in the past three years. In that time, suspicious trades ahead of public takeovers, which can be a red flag of insider trading, have risen to their highest level in the UK since the financial crisis. That has led to worries that a lack of high-profile enforcement against insider trading is partly to blame.
MAR requires market participants to report orders and transactions that could constitute insider dealing, market manipulation, attempted insider dealing or attempted market manipulation. MAR expanded market abuse surveillance obligations on firms. The new regime increases the number of suspicious behaviours that need to be reported to the FCA and requires that for each individual participant a new Suspicious Transaction and Order Report (STOR) must be submitted. The FCA reported that it had received 5,107 STORs relating to insider dealing reported in 2018: https://www.fca.org.uk/markets/suspicious-transaction-and-order-reports/number-stors-received-2018
The FCA have stated that they have increased the level of external engagement with issuer groups to ensure that issuers have a clear understanding of the application of MAR and that they are disclosing and handling inside information appropriately. A new chapter has been included in the Financial Crime Guide (released in June 2019) which sets out useful self-assessment questions on Governance, Risk Assessment, Policies and Procedures and Monitoring alongside examples of good and poor practice:
The FCA has made it clear that it is important for companies to ensure that staff are fully trained to recognise potential inside information and sets out what it expects from companies on identifying inside information. It is clear that there should be an ongoing assessment of whether there is inside information. In particular:
relevant staff should have adequate training in identifying inside information; and
records should be kept as evidence that an on-going assessment has taken place.