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Thursday, May 1, 2008

One if by land, and two if by sea.

In my April 14 entry, titled “If I had a hammer . . . ,” I wrote that the U.K.’s treasury chief hopes to pass legislation this year allowing the Financial Services Authority to grant whistleblowers who report market manipulation immunity from prosecution. I opined that the FSA should proceed cautiously, since the legislation could prompt individuals who have engaged in wrongdoing to concoct stories about innocent colleagues in order to save their own skins. Now the FSA reports that more than a quarter of the takeovers in the U.K. last year were preceded by suspicious trading, including possible insider trades.

The British financial regulator, facing criticism that it is not as aggressive as our SEC in pursuing market abuse, will apparently increase its oversight of trades consummated prior to the announcement of takeovers. The FSA has announced that it will begin to criminally prosecute more individuals and request imprisonment as punishment. To that end, it has augmented the number of criminal lawyers on its staff by 150 percent. It also intends to utilize all the tools in its investigative arsenal, including “calling suspects and their families and friends after it becomes aware of an abnormal movement in a stock and ‘before recollections have dimmed.’” Finally, the FSA says it will push individuals to report suspicious trades – among rivals and even within their own firm.

In a world that has become increasingly flat, the FSA appears ready to bring down the hammer to combat insider trading. It remains to be seen whether it will emulate our DOJ, which has demonstrated that it is not shy about prosecuting insider trading whose effects span multiple time zones. Most recently, Hafiz Muhammad Zubair Naseem, a Pakistani national who worked for Credit Suisse in Manhattan, was convicted in federal court in Manhattan for tipping a Pakistani banker that TXU, the Texas energy giant, would be taken private. Any white-collar defense lawyer actively practicing against the backdrop of today’s global securities markets may do well to heed the historic midnight cry of Paul Revere: “The British are coming! The British are coming!” CP

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