New FSA disclosure regime for short selling during rights issues

Abstract

Purpose

The purpose of this paper is to explain the FSA's new disclosure regime for short selling during rights issues, which it introduced by amending the Code of Market Conduct (MAR 1) under the Financial Services and Markets Act 2000 (FSMA).

Design/methodology/approach

The paper outlines the new provisions; explains the legal basis for the new regime; details the specific additions to the Code of Market Conduct; discusses the use of the UK super‐equivalent positions; explains the lack of FSA consultation based on urgent need for action; discusses practical issues for market participants, including compliance systems and controls; provides answers to frequently asked questions (FAQs) relating to the scope of the regime in terms of issuers and transactions covered, the applicability of the disclosure requirement to pre‐existing positions, the timing of intra‐day positions, netting of short and long positions for the purpose of calculating whether a short position reaches the threshold, including short positions in a rights issue in the calculation of the overall net short position, the exclusion of positions an entity holds in its capacity as a market maker, the requirement for the legal entity that holds the short position to make the required disclosures but not to aggregate positions held by its affiliates, the means of disclosure, disclosure deadlines, the content of disclosures, and disclosure of changes in position; and indicates likely further FSA action.

Findings

The new measures require market disclosure of short positions of 0.25 per cent or more in companies undertaking rights issues. The deadline for required disclosures is 3.30 pm on the business day following the day the short position threshold is reached. The new rules apply to shares in UK‐listed companies from 20 June 2008. The measures have been implemented as changes to the Code of Market Conduct rather than FSA rules as such. Rather than carrying out a consultation and cost‐benefit analysis as normally required by the FSMA, the FSA apparently relied on the FSMA's provisions that allow immediate amendments in cases of urgent need. The FSA is undertaking a wider review of the capital‐raising process and considering other measures, such as restrictions on stock lending.

Practical implications

On an ongoing basis firms need to have in place systems and controls that identify announcements by companies that they are undertaking rights issues subject to the regime and provide the means to calculate the level of positions held by the firm that might require disclosure.

Originality/value

The paper offers practical guidance by experienced securities lawyers.

Citation

Bates, C., Conceicao, C., Norman, G., Pudge, D. and Sarch, P. (2008), "New FSA disclosure regime for short selling during rights issues", Journal of Investment Compliance, Vol. 9 No. 3, pp. 44-48. https://doi.org/10.1108/15285810810908734