In November 2024, the UK FCA released a Consultation which seeks to clarify its proposed approach to publicising ongoing enforcement action—dubbed the "name and shame" plan—and to assure the wider market of the plan's benefits. Responses are due by 17 February 2025.
The FCA has now proposed providing affected firms with 10 days' notice before an announcement is made. It has also agreed that additional matters—such as the impact on affected firms—will form part of its public interest test when it considers whether to make an announcement. It agrees that it will not announce investigations that have begun before the proposals come into effect, but will be able to confirm public knowledge of an ongoing investigation.
These all seem helpful concessions to the plan's detractors but some difficulties with the proposals persist.
Whilst the FCA argues that many investigations already end up in the public domain because of firms' wider disclosure requirements, this may not be comforting to firms that do not have relevant disclosure requirements, for example because they are not listed.
The FCA contends that while the announcement of an investigation can be associated with a fall in a firm's share price, and consequent detriment to a firm, that is often not the case and it is difficult to isolate the impact of an announcement on share prices. However, they do also concede that in some cases large share price falls do appear to have been triggered by announcements of regulatory action.
In its defence, the FCA asserts that announcements may provide an educational opportunity to foster a competitive and credible market environment, but some may feel that this down-plays to too great an extent the "innocent until proven guilty" principle, especially in cases where the FCA decides to name the parties involved.
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