Monday, May 25, 2015

SEBI’s Interim Measure in an Insider Trading Case

[The following guest post is contributed by Supreme Waskar, who is a corporate lawyer]

The securities market regulator, SEBI, has directed Mr. A. Vellayan (Chairman of Coromandel International Limited (“Coromandel”) to surrender unlawful gains along with interest for alleged passing of unpublished price sensitive information (“UPSI”) pertaining to Coramandel’s acquisition of Sabero Organic Gujarat Limited (“Sabero”) to certain persons who traded in the shares of Sabero on the basis of such UPSI.

Background

SEBI conducted a detailed investigation in the matter upon receipt of complaints alleging leak of UPSI pertaining to the acquisition to certain persons, who were acting in concert with the management of Sabero/Coromandel. On May 15, 2011, the representatives of Coromandel (including Mr. A. Vellayan) and Sabero had conducted a meeting to discuss and negotiate the acquisition. Coromandel and Sabero informed the stock exchanges about the acquisition on May 31, 2011 and June 2, 2011 respectively.  Thus, it is SEBI’s case that the UPSI came into existence on May 15, 2011, but it became public only on May 31, 2011. It is the case that certain parties traded in the shares of Sabero in the interim. Further, the share price of Sabero at BSE had increased from Rs. 58 on May 16, 2011 to Rs. 127 on June 9, 2011 after touching Rs. 130.50 on June 6, 2011. The parties share familial relationships in that Mr. A. Vellayan’s grandfather is the brother of Mr. A.R. Murugappan’s mother and Mr. V. Karuppiah is son-in-law of Mr. A.R. Murugappan.

Findings of SEBI’s investigation

- The information relating to the acquisition was a deemed 'price sensitive information' until it was published;

- Tthe trading pattern of certain individuals, Mr. Gopalkrishanan C. and V. Karuppiah (HUF), was unusual compared to their regular pattern. The timings and pattern of the trades of Mr. Gopalakrishnan. C. indicate that he had traded based on the UPSI;

- The prima facie financial links among Mr. Gopalakrishnan. C, Mr. A.R. Murugappan and Mr. A. Vellayan were traced;

- An analysis of the bank statement of Mr. A.R. Murugappan revealed certain transactions with Mr. A. Vellayan.

- Upon a query in this regard by SEBI, Mr. A.R. Murugappan, submitted that the payment to Mr. A. Vellayan was an advance for the purchase of property and as the same did not materialize, the money was returned back to him. Further, the investigation found it was only an arrangement to provide funds to Mr. Gopalakrishnan. C to trade in the scrip of Sabero;

- The trading behaviour of Mr. Gopalkrishanan C. and V. Karuppiah (HUF) in the scrip of Sabero had certain striking similarities, such as both shared personal relationship with Mr. A.R. Murugappan, both had started buying shares of Sabero from May 23, 2011 and both had not traded in the scrip of Sabero earlier;

- The funding to Mr. Gopalkrishnan C. through layered transactions by person connected with Mr. A. Vellayan, prima facie appeared that the trading by Mr. Gopalkrishnan C. and V. Karuppiah (HUF) was based on the knowledge of UPSI and the UPSI had passed on from Mr. A. Vellayan and Mr. A.R. Murugappan.

SEBI’s interim order

As an interim measure, to prevent of Mr. Gopalkrishanan C. and V. Karuppiah (HUF) from diverting the funds and to safeguard the interests of securities market, SEBI vide its interim order dated May 21, 2015, took an urgent preventive step of impounding and retaining the proceeds along with interest at 12% p.a. lying in their bank accounts. SEBI further ordered that, if the funds lying their bank accounts are insufficient to meet the unlawful gains, then the securities lying in the demat account of these persons shall be frozen to the extent of the remaining value.

Conclusion

Mr. Gopalkrishanan C. and V. Karuppiah (HUF) can make their submissions against the order by filing their replies and availing an opportunity of personal hearing before SEBI. Further SEBI’s interim order is without prejudice to take any other actions including adjudication in accordance with law and SEBI is directed to complete the investigation, within 3 months and expedite the process of issuing show cause notice, if any.

- Supreme Waskar

Synchronised Trading: In Sync With the Law? – Part 2

[The following guest post is contributed by Kanwardeep Singh Kapany (5th B.S.L.LL.B) and Mitravinda Chunduru (4th B.S.L.LL.B.), both students of ILS Law College, Pune

This is a continuation of Part 1, which is available here]

DEFENCES

What amounts to commission of Illegal Synchronisation had been a moot point for quite a while. However, with the passage of time and development of jurisprudence having taken place on the said subject, not only have factors that point towards the said contravention crystallised but so have the defenses. If successfully pleaded, these defenses will either act as a mitigating factor as they will be taken into consideration for imposition of reduced penalty or in certain situations, if the facts warrant, vitiate the proceedings in relation to Illegal Synchronisation in toto.[1]

Inordinate Delay In Filing Of Show Cause Notices

Expeditious disposal of proceedings wherein allegations of market manipulation are involved should be the foremost concern as this alone ensures that SEBI is carrying out its duty effectively to protect the interest of investors in securities and to promote the development of and regulating the securities market as mandated by SEBI Act.[2] Inordinate delay in conducting inquiries and in punishing the delinquent not only permits market manipulator to operate in the market, it also has demoralizing effect on the market players who are ultimately not found guilty but ‘Damocles sword’ of inquiry keeps hanging on them for years together from the date of starting investigation by SEBI to the date of completion of inquiry proceedings.[3] Time and again Competent Forums have expressed that SEBI must undertake necessary steps to ensure that inquiry proceedings against market manipulators are completed expeditiously and guilty persons are punished in a time bound manner[4] so as to prevent violation of principles of natural justice[5] which occurs when such proceedings are delayed without any fault on the part of Alleged Contravener.

No Access To Documentary Evidence And Or Witnesses

The materials upon which SEBI may rely in order to prove contravention of the Act & Regulations are inter alia details, records and statements such as order logs and trade logs. An Alleged Contravener necessarily would require access to the said materials for presenting an effective defense. Therefore, an opportunity to peruse and inspect the said materials has to be mandatorily provided to the Alleged Contravener.[6] However, if by not providing certain material, which formed basis of an order, the Alleged Contravener is not at all prejudiced, then such an omission will not be fatal to the continuation of proceedings. Also, on certain occasions if testimony of certain individuals has been relied upon[7] to come to a certain finding, in such cases, an opportunity to cross examine such individuals has to be mandatorily provided to the Alleged Contravener.[8]

Discrimination

Differential treatment presupposes discriminatory conduct. When contraveners are meted out different punishments, some with softer and the other with harsher, this is not at all sufficient to establish existence of discriminatory conduct on the part of the Competent Forum. For pleading discrimination what has to be clearly brought out is the factum that the Competent Forum has gone ahead and provided different punishments where the role played by all the Alleged Contraveners is homogeneous. Also, presence of discernible reasons, for reaching a conclusion is considered to be fair and non arbitrary[9] as reason is the heart beat of fair play. Therefore, absence of reasons in an order passed by a Competent Forum wherein similarly placed Alleged Contraveners are treated differently will squarely fall within the ambit of discriminatory conduct.

Merely Carrying Out Directions Of Client

This is a broker specific defense. The broker is expected to carry out the directions of the client such as executing trades for the client.[10] The trading system in place is designed to maintain complete anonymity. Until it cannot be shown that the broker was aware of the intention of the client being to undertake Illegal Synchronisation or that the client and the broker had colluded to do the same, or that the broker had individually undertaken to do the same, merely Legal Synchronisation will not at all be sufficient to hold the broker in contravention of either the SEBI Act or PFUTP Regulations or Broker Regulations.

CONCLUSION

Illegal Synchronisation is not just an actus reus based contravention, it necessarily requires the presence of mens rea as well. Across the board, Illegal Synchronisation is considered to be a serious offence, “Not all the King's horses and all the King's men' can ever salvage the situation.” The impact of such an adverse finding is wide, more so in the case of a large public company having large number of investors. Therefore, evidence merely raising probabilities and endeavouring to prove the fact on the basis of preponderance of probability is not sufficient to establish such a serious offence. Also, mere conjunctures and surmises are not adequate to hold a person guilty of such a serious offence. What will be required is the presence of reasonably strong evidence.[11]

Another pertinent aspect which is a continuation of the burden of proof aspect is whether merely establishing Illegal Synchronisation is enough or whether it has to be shown that investors were actually influenced by such contravention of the Act & Regulations. When an Alleged Contravener takes part in or enters into transactions relating to securities with the intention to artificially raise or depress the price, innocent investors in the market are thereby automatically induced to buy / sell their stocks. The buyer or the seller is invariably influenced by the price of the stocks and if that is being manipulated, the Alleged Contravener doing so necessarily influences the decision of the buyer / seller thereby inducing them to buy or sell depending upon how the market has been manipulated. Therefore, inducement to any person to buy or sell securities is the necessary consequence of manipulation and flows therefrom.[12] Therefore, SEBI is just burdened with establishing Illegal Synchronisation. Once that is established, it will necessarily follow that the investors in the market had been induced to buy or sell and that no further proof in this regard is required.

The market, as already observed, is so wide spread that it may not be humanly possible for SEBI to track the persons who were actually induced to buy or sell securities as a result of manipulation and law can never impose a burden which is impossible to be discharged.[13] While SEBI is drawn to the task of establishing that the Alleged Contravener has indulged in Illegal Synchronisation, by presenting evidence that meets the aforementioned standard, it need not wait for the final outcome of the said lis. SEBI is very well empowered, for the purpose of protecting the interest of investors[14] in securities market, to issue directions[15] as is appropriate in the interests of investors in securities and the securities market and SEBI has made judicious use of the said power on previous occasions.[16]

[Concluded]

- Kanwardeep Singh Kapany & Mitravinda Chunduru



[1] In Re: Genus Commu-Trade Limited; In Re: The shares of Birmingham Thermotech Limited, MANU/SB/0105/2009.
[2] Shri Ashok K. Chaudhary v. SEBI, MANU/SB/0126/2008.
[3] Subhkam Securities Private Limited v. SEBI, MANU/SB/0156/2012.
[4] M/s. Prashant J. Patel v. SEBI, MANU/SB/0194/2012.
[5] Libord Finance Limited v. SEBI, [2008] 86 SCL 72 (SAT).
[6] Purshottam Budhwani v. SEBI, MANU/SB/0001/2015.
[7] Ketan Parekh v. SEBI, MANU/SB/0229/2006.
[8] Triveni Managaement Consultancy Services Limited v. SEBI, MANU/SB/0071/2013.
[9] The Constitution of India, 1949, art 14.
[10] Ajmera Associates Limited v. SEBI, MANU/SB/0044/2010.
[11] Sterlite Industries (India) Limited v. SEBI, MANU/SB/0040/2001.
[12] Sebi v. A Nitin Capital Services Limited, MANU/SB/0101/2007.
[13] Iridium v. Motorola Case, AIR 2011 SC 20.
[14] Securities and Exchange Board of India Act, 1992, section 11.
[15] Securities and Exchange Board of India Act, 1992, section 11B.
[16] In the matter of Blessing Agro Farm India Limited and its Directors WTM/SR/CIS-SRO/114/12/2014; Order against M/S Lee Capital Services Private Limited, WTM/RKA/MIRSD/53/2013.

Sunday, May 24, 2015

Synchronised Trading: In Sync With the Law? – Part 1

[The following guest post is contributed by Kanwardeep Singh Kapany (5th B.S.L.LL.B) and Mitravinda Chunduru (4th B.S.L.LL.B.), both students of ILS Law College, Pune]

INTRODUCTION

The on-line trading system on the stock exchange is a blind trading system, which maintains complete anonymity of the persons trading on it. It does not permit the buyers and sellers to have any interaction between them except through the trading system. Stock brokers execute the trades, buy or sell, for their clients. A buy order placed on the system matches with a sell order and a trade comes to be executed and this matching is done by the system on a price time priority basis.[1] Despite the anonymity of the system, it has been alleged before the Securities & Exchange Board of India (“SEBI”), the Securities Appellate Tribunal (“SAT”) and other competent original and appellate jurisdiction bearing forums (collectively called “Competent Forums”) that market players and intermediaries, either individuals or corporate entities, have thwarted the checks and balances innate in the system by executing manipulative trades (“Alleged Contravener”) which in turn aids market rigging.

This post deals with one such modus operandi called as a ‘synchronised trade’, which can transpire only in the secondary market and not at all in the primary market. Synchronised trading, in certain situations, is found to violate and therefore is punishable under the Securities & Exchange Board of India Act, 1992[2] (“SEBI Act”), the Securities & Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices) Regulations, 2005[3] (“PFUTP Regulations”), as well as the Securities and Exchange Board of India (Stock Brokers and Sub - Brokers) Regulations, 1992[4] (“Broker Regulations”) (collectively called the “Act & Regulations”). This treatment being meted out to synchronised trading is in line with the single pointed objective of the SEBI Act, which is to protect the interests of investors in securities and to promote the development of securities market by regulating it. The said objective is imbibed by both PFUTP Regulations as well as Broker Regulations as the former prohibits manipulative, fraudulent and unfair trade practices and the latter mandates brokers to maintain high standards of integrity, promptitude, fairness and to exercise due skill, care and diligence in the conduct of its business.[5]

MEANING OF A SYNCHRONISED TRADE

A synchronised trade is one wherein buy and sell orders are placed simultaneously for the same amount and at the same price[6] (“Legal Synchronisation”). Synchronised trades per se are not illegal and they have been sanctified by SEBI subject to certain conditions.[7] However, synchronised trades can be executed with a view to manipulate the price or the volumes of the traded scrip or both or with some ulterior purpose (“Illegal Synchronisation”), therefore violating provisions of the aforementioned Act & Regulations. Whether an Illegal Synchronisation has been undertaken will have to be gathered from the intention of the parties[8] for which there would seldom be any direct or foolproof evidence. The reason for this is that the intention of the parties concerned would be within their special knowledge.

FACTORS DEMONSTRATING ILLEGAL SYNCHRONISATION

The intention of the parties to indulge in Illegal Synchronisation manifests in the form of certain overt acts. One has to appreciate that these factors, as enlisted hereinafter, in the very nature of things cannot be exhaustive, as any one factor may or may not be decisive and it is from the cumulative effect of these that an inference will have to be drawn.

Connection Inter se Clients / Connection Inte rse Brokers / Connection Inter se Clients And Brokers

The fact that certain clients are connected to each other (“Connected Clients”) can be established by pointing out the presence of certain circumstances. Such circumstances include:

(a) the existence of a personal relationship, either by blood or otherwise, between or amongst clients;

(b) one person arranging flow of funds[9] in favour of another person without there being any legal obligation to do the same;

(c) various companies operating from a common address;[10]

(d) relationship shared between or amongst companies, such as the kind shared between or amongst associate companies;[11] and

(e) when various corporate or non corporate bodies have the same individual holding such a position which empowers the position holder to have an authoritative say on matters which can aid in the execution of Illegal Synchronisation.[12]

One such position is that of a director which is held by an individual.[13] An individual can be a director on the board of various companies (“Common Director”).[14] However, merely being a Common Director is not sufficient to draw the conclusion that certain companies are Connected Clients.[15] Therefore, necessarily aid of other attending circumstances is required. These attending circumstances include inability of such companies to present their case in the absence of such Common Director when called upon to do so by a Competent Forum and or testimony of witnesses which goes to show that the Common Director was the one who would give instructions to brokers, on behalf of companies, for execution of trades which are subsequently being alleged to have contravened the Act & Regulations.

The connection between or amongst brokers (“Connected Brokers”) can be established by applying the same principles with which Connected Clients are identified. Additionally, Connected Brokers can be identified, when brokers constituting Connected Brokers, either individually or in concert, are the only common thread running through various trades which have taken place between or amongst clients constituting Connected Clients,[16] such as being the major counter party broker with respect to orders placed by a broker or brokers belonging to the same group of Connected Brokers.[17]

The connection between Connected Brokers and Connected Clients can be established by demonstrating that trades on behalf of Connected Clients were executed by Connected Brokers and both the party and counter party with respect to the trades in question happen to be those clients and brokers who / which are constituents of the Connected Clients and Connected Brokers. Further, there could also be a connection / relation between brokers and clients belonging to the opposite sides of a trade. The principles with respect to identifying Connected Clients / Connected Brokers, as provided for hereinabove, can be applied similarly.

There are two propositions of law common to all the aforementioned connections. Firstly, Competent Forums, for the purpose of concluding presence or absence of the aforementioned connections, lift the corporate veil,[18] if circumstances so merit.[19] Secondly, once any or all of the aforementioned connections are established, then on noticing matching of such trades day after day and trade after trade, one can safely infer that the matching is happening not by the trading system but by manipulation.[20]          

Price, Quantity And Time Test

Price, Quantity and Time test (“PQT Test”) is used to identify wash trades,[21] which lead to Illegal Synchronisation. These are trades between connected or related parties wherein sale and purchase of securities are matched with each other in terms of price, quantity and time. The said test becomes reliable if the time difference between buy and sell orders is either negligible or of a few seconds only.[22] This is especially so when the shares of the company are highly liquid at the time of trades, then PQT matching will exceptionally take place in the absence of any specific understanding / arrangement between the parties. Similarly, in a situation of high volatility, wherein prices of the shares can change dramatically over a short period in either direction, it is extremely improbable that the client could be in a position to give a price range which would match only with a particular counter party broker at a particular quantity.[23] Higher the rate of recurrence of such matching of trades amongst same set of Connected Clients through Connected Brokers on either side of the trade, lesser the chances of it being a mere coincidence and greater the inevitability of a pre planned device.[24]

No Change In Beneficial Ownership

A beneficial owner is a natural person or persons who ultimately owns, controls or influences a client and or persons on whose behalf a transaction is being conducted. It also incorporates those persons who exercise ultimate effective control over a legal person or arrangement.[25] When on the execution of a trade there is no change in the beneficial ownership, it is called a self-trade. A self-trade occurs when one person buys and sells shares from himself. Such trades are frowned upon as they are fictitious, and meant to operate as a device to inflate, depress, or cause fluctuations in the market price of securities.[26]

Large Trading Concentration In A Scrip

The expression ‘concentration’ in the realm of the Act & Regulations means one’s share in the execution of trades with respect to a particular scrip or various scrips. For Illegal Synchronisation to be successfully carried out, the Alleged Contravener has to be in a position which enables one to drive up, deflate or cause sudden rise and fall in the market price of the scrips listed on the stock exchange.[27] The said position of influence cannot be reached by market players and or intermediaries by executing miniscule trades when compared to the total trades executed with respect to the said scrip.

Substantial Unwinding Of Long Positions, Short Sale Positions

Taking a long position in a scrip means the buying of a security to hold onto the same as the owner of scrip has the expectation that the said asset will rise in value.[28] Short Selling means selling of a stock that the seller does not own at the time of trade[29] by complying with the conditions laid down by SEBI in this regard.[30] Unwinding refers to undo or to go back on a previous action or conduct. Unwinding of long positions refers to the owner of scrips deciding not to hold onto the scrip or to hold for a time period which is lesser than the one initially thought. The said action of unwinding long positions and or short selling is not per se illegal until and unless it can be demonstrated that the aforesaid transactions, were carried out with the intention to carry out Illegal Synchronisation[31] such as artificially putting sale pressure on the scrip to cause a downfall in the price of the scrip.

Lack Of Business Prudence

The expression ‘business’ refers to a commercial enterprise carried on for profit.[32] The expression prudence refers to ‘being circumspect or judicious in one’s dealings.[33]  Therefore business and prudence read together means such behavior that will exhibit caution while conducting business. Therefore, intention to undertake Illegal Synchronisation can be ascribed to Alleged Contraveners when they are found indulging in acts such as heavily buying a scrip which has weak fundamentals[34] or is otherwise an illiquid scrip[35] or placing of buy orders at incremental prices i.e. at prices higher than previous day’s closing prices[36]. In order to establish lack of business prudence with respect to trades being undertaken, comparison can be drawn with the price movement of certain scrips of certain companies. The said companies being used as comparables should be similarly placed inter alia in terms of size.[37]

Violation Of Code Of Conduct For Stock Brokers

A stock broker is expected to carry out execution of trades as per the instructions of the client. While implementing the said instructions, the broker has to conduct his business in compliance with the Broker Regulations. The said regulations require the broker to maintain integrity, exercise due skill and care, not indulge in manipulative, fraudulent or deceptive transactions, not undertake malpractices such as creating false market or contravening statutory requirements as specified in Broker Regulations. The said checks on the conduct of a broker are put in place to prevent a situation from arising wherein a market intermediary itself gets embroiled in contravening the Act & Regulations by becoming a party to the mischief of Illegal Synchronisation.

[To be continued in Part 2, which will deal with Defences and then conclude]

- Kanwardeep Singh Kapany & Mitravinda Chunduru





[1] Trading System in NSE, available at: http://www.nseindia.com/products/content/debt/wdm/trading_system.htm (visited on February 18, 2015); Trading and Settlement in BSE, available at: http://www.bseindia.com/markets/debt/tradingandsettlement.aspx?expandable=2 (visited on February 18, 2015).
[2] Section 15-HA.
[3] Regulations 3 & 4.
[4] Schedule II clause A.
[5] Broker Regulations, schedule II.
[6] Ajmera Associates Limited v. SEBI, MANU/SB/0044/2010.
[7] SEBI Circular on Negotiated Deals, SMDRP/POLICY/CIR-32/99, (September 14, 1999).
[8] Grishma Securities Private Limited and Others v. SEBI, MANU/SB/0060/2013.
[9] SEBI v. Dresdner Kleinwort Benson Securities (India) Ltd., MANU/SB/0087/2004.
[10] Ketan Parekh v. SEBI, MANU/SB/0229/2006.
[11] SEBI v. Accord Capital Markets Limited, MANU/SB/0136/2007.
[12] SEBI v. Krishvi Securities Private Limited, WTM/RKA/IVD/ID-4/ 26/2013.
[13] The Companies Act, 2013, section 149(1).
[14] The Companies Act, 2013, section 165.
[15] Ketan Parekh v. SEBI, MANU/SB/0229/2006.
[16] SEBI v. Krishvi Securities Private Limited, WTM/RKA/IVD/ID-4/ 26/2013.
[17] SEBI v. Krishvi Securities Private Limited, WTM/RKA/IVD/ID-4/ 26/2013.
[18] Ketan Parekh v. SEBI, MANU/SB/0229/2006.
[19] Delhi Development Authority v. Skipper Construction Company Private Limited, AIR 1996 SC 2005.
[20] Sebi v. A Nitin Capital Services Limited, MANU/SB/0101/2007.
[21] Nirmal Bang Securities Private Limited v. SEBI, MANU/SB/0206/2003.
[22] SEBI v. Biyani Securities Private Limited and Shri Harish Biyani, MANU/SB/0023/2005.
[23] SEBI v. Accord Capital Markets Limited, MANU/SB/0136/2007.
[24] Angel Broking Private Limited v. SEBI, MANU/SB/0058/2013.
[25] SEBI Master Circular on Anti Money Laundering Standards / Combating the Financing of Terrorism / Obligations of Securities Market Intermediaries under the Prevention of Money Laundering Act, 2002 and Rules framed thereunder, available at: http://www.sebi.gov.in/circulars/2010/cirisdaml2010.pdf (visited on February 19, 2015).
[26] SEBI v. Pravin V Shah Stock Broking Private Limited, MANU/SB/0140/2007.
[27] In Re: GHCL Ltd., MANU/SB/0090/2007.
[28] SEBI v. First Global Stock Broking Private Limited and Vrudhi Confinvest (I) Private Limited, MANU/SB/0122/2002.
[29] FAQ’s on Secondary Market, available at: http://www.sebi.gov.in/faq/smdfaq.html (Last Modified February 28, 2009), FAQ no. 37.
[30] Securities Lending Scheme, 1997.
[31] SEBI v. First Global Stock Broking Private Limited and Vrudhi Confinvest (I) Private Limited, MANU/SB/0122/2002.
[32] Bryan A garner (ed.), Black’s Law Dictionary, p.no. 211 (8th edition).
[33] Bryan A garner (ed.), Black’s Law Dictionary, p.no. 211 (8th edition), page 1236.
[34] In Re: Sawaca Business Machines Limited; SEBI v. Rajesh N. Jhaveri, MANU/SB/0302/2004.  
[35] In Re: Orient Trade Link Limited; In Re: M/s MLD Securities Private Limited, MANU/SB/0082/2012.
[36] JHP Securities Private Limited v. SEBI, MANU/SB/0069/2014.
[37] Ketan Parekh v. SEBI, MANU/SB/0229/2006.