M&A Weekly Update: reminder — FCA guidance is not binding on the regulator
Financial Conduct Authority (FCA) guidance (formal or informal) is generally known to be non-binding on the regulator. A recent High Court case highlights the risk in deriving comfort from FCA guidance and the importance of reviewing the underlying legislation.
In Financial Conduct Authority v Capital Alternatives Ltd and others, the FCA brought a claim against the promoters of four investment schemes, which it argued were collective investment schemes within the meaning of section 235 of the Financial Services and Markets Act 2000 (CIS). The FCA’s case was that the schemes were regulated activities, which could not be carried out lawfully by unauthorised persons and that they had been mis-sold.
The defendants argued that the FCA’s formal guidance in its Perimeter Guidance Manual (PERG) and informal guidance received in some individual instances evidenced that the schemes were not CIS. The FCA responded that while there were ‘presumptions that PERG, containing a longstanding interpretation by the body with the greatest practical experience, is correct… there are limits to that presumption since the FCA is not in a better position than the court in construing the law’…
Click on the link below to read the rest of the Macfarlanes briefing.
News from The Lawyer
Briefings from Macfarlanes
M&A Weekly Update: forced sale of shares does not qualify as ‘an offer to the public’ requiring publication of prospectus; and more
Macfarlanes has released its M&A Weekly Update for the period 27 June to 3 July 2014.
Investment Management Update — 4 July 2014: FCA Handbook Notice 13; ESMA updates Q&As on AIFMD; and more
Macfarlanes has released the 4 July 2014 issue of its Investment Management Update.
Analysis from The Lawyer
As the equity capital markets rocketed back into favour and global M&A saw at least a partial return to form, there have been some rich pickings for The Lawyer’s Corporate Team of the Year award shortlisted firms in 2014.
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