Brown Rudnick

This Practice Note considers enforcement actions by regulators and competition authorities, in addition to criminal prosecutions, surrounding the manipulation of benchmarks, including LIBOR, EURIBOR and Forex (FX). It discusses cross-border investigations into benchmark manipulation, and international coordination in relation to enforcement action; it also considers consequential litigation arising from civil and criminal actions. It considers LIBOR reforms that followed and the investigatory and enforcement powers and penalties under Regulation (EU) 2016/1011 (the EU Benchmarks Regulation) and Retained Regulation (EU) 2016/1011 (the UK Benchmarks Regulation). The Practice Note includes tables setting out the regulatory actions taken against both firms and individuals for benchmark manipulation; these include: the names of firms/individuals; links to the FCA/FSA Final Notice and related press release; the breaches/failings; the FCA/FSA financial penalty/enforcement action; and related UK/international civil/criminal penalties.

This Practice Note deals with the disclosure issues that might arise during the course of an FCA or PRA investigation, including the rules on the disclosure of confidential information, privileged and protected items and disclosure to third parties such as overseas regulators and potential litigants. It also covers the general and specific obligations on firms to make notifications about rule breaches or other misconduct to the regulator, and the consequences of a failure to notify.

This Practice Note discusses the Financial Conduct Authority’s powers to obtain information and the restrictions on its disclosure and use of information obtained.

This Practice Note examines the circumstances in which firms and individuals can refuse to produce documents and information to the regulators on the basis that the information sought is a ‘protected item’ (ie privileged) (Financial Services and Markets Act 2000 (FSMA 2000), s 413) or subject to banking confidentiality (FSMA 2000, s 175). The Practice Note considers the practical implications of the ‘protected item’ exemption and how firms and their lawyers should deal with protected, or potentially protected items.

The Financial Services and Markets Act 2000 (FSMA 2000) prohibits any person from carrying on a regulated activity in the UK unless they are an authorised or an exempt person. This is known as the general prohibition. A regulated activity is an activity of a specified kind (that is, one which is specified in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, SI 2001/544, which is carried on by way of business in the UK. A breach of the general prohibition is a criminal offence punishable by a fine or imprisonment. This Practice Note introduces how the Financial Conduct Authority (FCA) enforces against unauthorised business.