By Margot Laporte, Miller & Chevalier Chartered (Washington, DC) and Viviane Tse, Freshfields Bruckhaus Deringer LLP (Paris, France)
On April 17, 2020, France’s securities regulator, the Autorité des marchés financiers (“AMF”), levied one of its largest combined fines ever against Elliott Advisors UK Ltd. and Elliott Capital Advisors L.P., imposing a €20 million penalty for charges that included failure to adequately disclose their positions in a takeover bid. This case marks the second time in the past year that a U.S. activist hedge fund has found itself in the cross-hairs of the AMF and reflects renewed interest by French authorities in regulating short-sellers and activist hedge funds. Since 2019, France’s Finance Minister Bruno Le Maire, the French National Assembly’s Finance Commission, and the AMF, among other market participants, all have endorsed enhanced disclosures for short-sellers and activist investors. In this political environment, and particularly during the COVID-19 crisis and resulting economic downturn, the AMF is likely to demonstrate heightened focus on activist hedge funds whose activities it views as destabilizing to the French market and public companies.
U.S. hedge funds should anticipate heightened regulatory scrutiny and enforcement risk in France. U.S. hedge funds seeking to invest in the French market, therefore, should balance their investment strategies with steps to mitigate enforcement risk. These steps include assessing disclosures and trading strategies in light of French regulatory requirements and the expectations of French regulators as well as taking into account key differences between U.S. and French securities enforcement procedures.
April 2020 AMF Report on Shareholder Activism
On April 28, 2020, the AMF published a report regarding “Shareholder Activism” (“Communication de l’AMF sur l’activisme actionnarial”), which provides insight into how the French regulator views the activities of short-sellers and activist investors. The AMF’s report considered recommendations made by French lawmakers and market participants, including an October 2019 report by the Finance Commission of the French National Assembly, urging heightened disclosure requirements when activist investors and short-sellers take large positions in French companies. While stopping short of denouncing activist investing, the AMF’s report concluded that certain activities undertaken by activist investors have a “destabilizing effect” on the market. These activities, according to the AMF, include a lack of adequate transparency regarding investors’ holdings, intentions, and conflicts of interest; destabilization of companies; dissemination of false or misleading information; and price manipulation.
The AMF recommended several non-binding measures aimed at improving transparency regarding investors’ positions, financial exposure, and communications with issuers as well as increasing the AMF’s ability to respond to “activist campaigns.” The AMF’s proposed measures include:
- Lowering the legal threshold at which an investor is required to disclose its position in a French company from 5% to 3%;
- Updating AMF policies with provisions to enhance investor disclosures to issuers during activist campaigns;
- Supplementing the reporting of net short positions in equities with information on investors’ debt instrument holdings; and
- Several procedural reforms and amendments to French law to enhance the AMF’s ability to rapidly respond to activist campaigns.
The AMF, which is aware of the potential impact of any additional regulation on the attractiveness of Paris as a financial center, concluded that the current legal framework is sufficiently “flexible and robust” to enable it to intervene when it detects “investor activities that are potentially destabilizing for the market and issuers.”
Significantly, while the report discusses the AMF’s intention to “intervene” in the face of perceived “destabilizing” conduct by short-sellers and activist investors, the report does not identify all “destabilizing” conduct as illegal under governing law. The report, therefore, suggests that the AMF will take a broad view of the “flexible and robust” legal framework and vigorously enforce France’s securities laws against investors whose conduct it views as “destabilizing” to the market and public companies, particularly during times of economic instability.
Recent AMF Enforcement Actions Against U.S. Hedge Funds
The AMF has a history of enforcing France’s securities laws against U.S. activist hedge funds. Recently, the AMF’s Enforcement Committee (“AMF EC”) has initiated several investigations and enforcement actions against U.S. activist hedge funds for alleged disclosure failures and insider trading in connection with takeover bids and short-selling involving French public companies.
Elliott Enforcement Action for Disclosure Violations (2020)
In April 2020, the AMF EC fined Elliott Advisors UK and Elliott Capital Advisors €20 million for inadequate disclosures and obstruction of the AMF’s investigation in connection with a takeover bid by XPO, a U.S. company, for Norbert Dentressangle SA, a French public company. To date, Elliott has not appealed the decision. The enforcement action arises out of Elliott’s acquisition of shares and derivatives relating to Norbert Dentressangle securities in 2015, through which Elliott acquired enough shares and voting rights to prevent a mandatory “squeeze-out” of minority shareholders contemplated by XPO.
The AMF EC’s decision focused on whether Elliott accurately disclosed the size and nature of its positions. The AMF EC found, first, that Elliott failed to accurately report the nature of its shareholding in Norbert Dentressangle because Elliott declared in its threshold crossing notifications to the AMF that it had purchased contracts for difference (“CFDs”) when, in fact, it held equity swaps. Second, the AMF EC found that Elliott failed to timely disclose its intention not to tender its Norbert Dentressangle securities to the public offer, as required under French law after Elliott surpassed a 5% ownership threshold. Finally, the AMF EC found that Elliott Advisors UK obstructed the AMF’s investigation by delaying and providing incomplete information.
Elliott argued that it is not obligated under French law to specify the type of derivatives it held, particularly since the market does not differentiate between CFDs and cash-settled equity swaps, and that its inaccurate disclosure therefore did not harm market participants. Elliott further argued that it was not required to disclose its intentions regarding shares it did not hold at the time the ownership threshold was crossed (via its derivatives holdings)and emphasized the uncertainty around its ability to subsequently purchase the shares.
At the heart of the AMF EC’s decision regarding the amount of the penalty appears to have been its view, as reflected in statements by an AMF Board representative at a public hearing on February 7, 2020, that Elliott’s failings were “not just negligence” and were “particularly serious in bringing a manifest attack on the integrity of the market.” Indeed, the AMF EC’s decision stated that the €20 million penalty against Elliott reflected, among other factors, “the fact that the inaccurate reportings and the delay in submitting a declaration of intent to the AMF were intended to conceal from the market, for as long as possible, the strategy of blocking the squeeze-out offer in order to negotiate a reassessment of XPO’s offer price.”
Muddy Waters Warning Letter (2019)
In December 2019, the AMF EC issued a warning letter to U.S. hedge fund Muddy Waters Capital in connection with a report regarding French public company Casino Guichard Perrachon SA (“Casino”) that triggered a share price drop. In 2015, Muddy Waters, which held a short position in Casino, issued a report stating that Casino’s main investor, Rallye SA, was overvalued. The report led Casino and Rallye’s share prices to drop by 20% within hours. The AMF’s investigation focused on whether Muddy Waters timely disclosed its short position after it crossed a threshold and potential market manipulation. The AMF Board ultimately determined not to bring an enforcement action but issued a warning letter to Muddy Waters emphasizing “the importance of compliance with the principles of honesty, fairness and impartiality” when issuing investment recommendations regarding French securities, “including from abroad.” The AMF Board also warned Casino about the quality of its financial information, and Rallye was placed under protection from creditors in May 2019.
Elliott Enforcement Action for Insider Trading (2014)
In 2014, the AMF EC fined Elliott Management Corp. and Elliott Advisors UK €16 million, the largest combined penalty ever imposed at the time, for insider trading in connection with a takeover bid of French motorway operator Autoroutes Paris-Rhin-Rhone SA (“APRR”). The AMF EC found that, in 2010, Elliott Advisors UK passed inside information to Elliott Management regarding negotiations to sell its APRR shares to APRR’s major shareholder, and that Elliott Management traded on this information. Elliott’s sale of its shares enabled APRR’s major shareholder to trigger a “squeeze-out” of minority shareholders, and the AMF alleged that Elliott’s knowledge of the transaction “indisputably gave Elliott Management an advantage over others in the market.”
Elliott denied that it traded on inside information, noting, among other points, that its acquisition of APRR shares between 2005 and 2010 had been part of a long-term strategy and that it had established an information barrier between Elliott Management and Elliott Advisors UK concerning APRR in 2010. In finding Elliott liable for insider trading, the AMF EC did not credit Elliott’s information barrier, concluding that inside information likely was passed between certain equity partners and that the establishment of an information barrier “necessarily implies that some staff of the Fund may hold, at least in the future, inside information which would, in essence, affect the share price.”
The AMF EC, however, declined to uphold charges against Elliott for price manipulation. Elliott’s subsequent appeals of the decision have been denied.
Steps for U.S. Hedge Funds to Mitigate Enforcement Risk in France
Given the AMF’s heightened focus on short-sellers and activist investors, and particularly in light of the current economic instability, U.S. hedge funds investing in the French market should mitigate their enforcement risk by taking the following proactive measures:
- Assess Disclosures to French Regulators and the Market. As demonstrated by the AMF’s report on “Shareholder Activism” and the recent investigations and enforcement actions against U.S. hedge funds, the AMF is focused on increasing transparency regarding activist investors’ holdings and even their intentions ( in the case of a public tender offer) in executing trading strategies. The AMF has demonstrated that it will not hesitate to bring an enforcement action against activist hedge funds it views as “destabilizing” the market on the basis of inadequate disclosures. U.S. hedge funds investing in the French market, therefore, should balance their trading strategies—which may not be well-served by disclosing their intentions to regulators and the market—with enforcement risk if they do not meet the AMF’s expectations with respect to transparency.
- Assess Trading Strategies in Light of the AMF’s Expectations Regarding Insider Trading and Market Abuse. U.S. hedge funds investing in the French market must comply with both U.S. and French insider trading laws. France’s market abuse law is based on the 2014 EU Market Abuse Regulation, which broadly defines covered offenses. The AMF thus has wide discretion in bringing enforcement actions for conduct it determines to sanction. The 2014 enforcement action against Elliott further suggests that the AMF EC may exercise its discretion, based on its assessment of the facts, not to credit certain compliance procedures, such as information barriers, that are viewed in the United States as an affirmative defense to insider trading allegations. In addition to pursuing trading strategies in France in accordance with their insider trading policies and applicable law, U.S. hedge funds should analyze whether the AMF may perceive their strategies as “destabilizing” in order to assess and mitigate their enforcement risk.
- Understand AMF Enforcement Procedures. U.S. hedge funds should understand differences in securities enforcement procedures between the United States and France in order to properly assess their enforcement risk when developing disclosures and trading strategies as well as in the event of an enforcement action. Several key differences between U.S. and French enforcement procedures are worth note:
First, unlike in the United States, once the AMF Board has determined to initiate an enforcement action, a “rapporteur”—a member of the AMF EC—is appointed to independently assess the case. The rapporteur reviews the investigation file, interviews the defendant, and issues an opinion regarding the charges against the defendant. Although the rapporteur’s opinion is non-binding, the AMF EC often accords significant weight to the rapporteur’s findings.
Second, while enforcement actions brought by the U.S. Securities and Exchange Commission (“SEC”) often are settled without trial, settlements with the AMF are limited to cases regarding breaches of professional obligations or market abuse with low financial stakes. In anticipating legal and reputational risk, U.S. hedge funds should be aware that AMF procedures include a public hearing before the AMF EC, which may be attended by the press, before the AMF EC renders a public written decision.
Third, it is less common in France than it is in the United States for regulators to move back and forth between the public and private sectors. While numerous members of AMF staff are former private lawyers, the AMF EC is chaired by judges from French Supreme Courts (administrative and judicial) and composed of professionals with a legal or financial background. As a result, their approach when evaluating charges against U.S. hedge funds is likely to be strictly legal rather than incorporating a practical consideration of hedge funds’ business, investment strategies, and trading activities.
U.S. hedge funds face increasing scrutiny from French regulators, lawmakers, and politicians, especially during the current period of economic instability following the COVID-19 crisis. Therefore, U.S. hedge funds seeking to invest in French companies, and particularly those pursuing activist or short-selling strategies, should take proactive steps to assess and mitigate their enforcement risk in light of their investment strategies.
Investing into a more sustainable future: changing businesses from the inside out
By Shawn Welch, Vice President and General Manager of Hi-Cone Worldwide
As industries across the world are facing unprecedented uncertainty and anticipating the economic implications of the current health crisis, business leaders have the unique opportunity to seize the chance to make lasting, positive changes and re-interpret the business challenges in a positive way – without forgetting or minimising the toll the pandemic has taken. When trying to identify a way forward, the future must be sustainable. We must take this opportunity to find a more sustainable way for businesses and manufacturers to survive.
Environmental and economic concern have only increased the gap on what consumers want – more sustainability – and how much progress businesses can make without risking their viability. However, rather than giving up on ambitious goals, maybe we need to reframe the way we look at sustainability. So far, businesses have tended to react to consumer demands, often without looking into the long-term implications and research-based due diligence one would expect. Therefore, now is the right time to be more deliberate: to continue on the path towards a truly sustainable ‘new normal’, businesses need to consider the bottom line impact more than ever before and truly invest in changing their business models to become more sustainable.
To meet the UN’s ambitious 2030 Sustainable Development Goals, businesses ultimately must thrive – working towards establishing a circular economy remains crucial. Instead of a linear ‘extract, use, dispose’ approach, materials need to be respected and re-used as many times as possible, which is only possible if products are designed for re-use, re-manufacturing, repair or restarting. After all, any and all consumption comes at a price. In manufacturing, processes draw on resources to produce items that, once they have served their purpose, become surplus to requirements. Yet, to ignore this is to take an incomplete view of sustainability: instead, materials are extracted from waste to re-enter production processes. Reuse and recycling initiatives are central to this and great strides have been made in raising awareness of this need. The full environmental cost of production and consumption includes the choice of materials themselves but also the level of carbon emissions generated, and energy consumed.
Once products and processes have redesigned for a circular approach, this initial investment will often easily be recouped, especially if we start with looking at the facts when starting this crucial process. To make the Circular Economy a focus for any business very often means changing the business model. Here, investing in research and development is vital. In the packaging industry, for example, we are seeing that customers and consumers are increasingly more focused on sustainability, and that surprising changes can unlock societal and business value. Through minimising a product’s carbon footprint or making recycling easier for consumers, lifecycle-assessment-based product redesigns or using recycled plastics instead of larger quantities of cardboard, companies are identifying these more creative options and enjoying the long-lasting benefits that come with implementing them. In any case, leadership is key. A research-driven approach gets everyone on-board and seeing management committing to these goals as part of business plans helps cement these. At a recent Reuters Responsible Business Summit virtual panel, I was part of an interesting conversation. Here, Yolanda Malone, Vice President Global R&D Snacks PKG, PepsiCo, discussed how leaders have to drive the behaviours within the organisation and the tone for the culture. She explained that her sustainable plastics vision is a world where plastics never become waste. Only through putting the mantra of “reduce, recycle, rethink and reinvent” can we bring circular products to consumer. She stressed that, if we don’t reinvent, we will fall back into old habits.
Of course, consumer behaviours play a part and the easier the solution, the more likely consumers will get behind it. End consumers are becoming increasingly conscious of packaging. So, to be truly circular, we need to take into account the entire lifecycle. Mindset change needs to continue to happen. Consumers need to be clear about what their choices are. To achieve this, we must change our businesses from the inside out, allowing for close collaboration inside and outside of our organisations. Other organisations – such as governments and recycling organisations – will need to be involved in businesses’ efforts, multiplying the impact our investments will have. We must address all aspects of sustainability and, for example, have better recycling, a focus on infrastructure and emphasis on consumer education. To recover, reuse and recycle, the R&D must be in place and dedicated to sustainability. Partnerships are important as we, as other leading global companies realise, cannot do this alone. Collaboration is key when investing in a more sustainable, more Circular, future.
Securing Information Throughout the Supply Chain – Preventing Supplier Vulnerabilities
By Adam Strange, Data Classification Specialist, HelpSystems
The financial services sector is experiencing extreme disruption coupled with rapid innovation as established institutions strive to become more agile and meet evolving customer demand. At the same time, new market entrants compete fiercely for customers. Increasing operational flexibility, through the deployment of cloud infrastructure or via digital transformation initiatives, is critical for future competitiveness but it has also driven regulatory and security challenges, particularly around working with suppliers.
That said, the benefits of a diverse, interconnected supply chain are compelling: agility, speed, and cost reduction all weigh on the positive side of the equation, prompting financial institutions to pursue close, collaborative relationships with suppliers, often numbering in the hundreds or thousands.
Weakness in the supply chain
On the negative side is the increased cyber threat when enterprises expose their networks to their supply chain. In our modern interconnected digital ecosystems, most financial organisations have many supply chain dependencies and it only takes one of these to have cybersecurity vulnerabilities to bring a business to its knees.
As a result, breaches originating in third parties are common and costly – a Ponemon Institute/IBM study found that breaches being caused by a third party was the top factor that amplified the cost of a breach, adding an average of $370,000 to the breach cost.
Concern around the supply chain was also evidenced in a recent report we have just issued, whereby we interviewed 250 CISOs and CIOs from financial institutions about the cybersecurity challenges they face and nearly half (46%) said that cybersecurity weaknesses in the supply chain had the biggest potential to cause the most damage in the next 12 months.
But sharing information with suppliers is essential for the supply chain to function. Most financial services organisations go to great lengths to secure intellectual property, personally identifiable information (PII) and other sensitive data internally, yet when this information is shared across the supply chain, does it get the same robust attention?
Further amplified by COVID-19
Financial service organisations have always been a key target for cyber attacks. Our research showed that since COVID-19 hit, the risk has elevated further, with 45% of the respondents seeing increased cybersecurity attacks during this period. Likewise, hackers are rejecting frontal assaults on well-defended walls in favour of infiltrating networks via vulnerabilities in suppliers.
But financial services organisations must maintain reputations and ensure customer trust. Firms are keen to demonstrate that they are protecting customer assets, providing an ultra-reliable service and working with trustworthy partners. So, what can they do to better protect their supplier ecosystem?
At the very least, they need to ensure basic controls are implemented around their suppliers’ IT infrastructure. For example, they must ensure suppliers maintain a secure infrastructure with a minimum of Cyber Essentials or the equivalent US CIS certification controls. Cyber Essentials defines a set of controls which, when implemented, provide organisations with basic protection from the most prevalent forms of threats, focusing on threats which require low levels of attacker skill, and which are widely available online.
Likewise, they need to ensure good information management controls are in place and this begins with accurate information/data classification. After all, how can you apply appropriate controls to your information unless you know what it is and where it is?
How ISO27001 helps organisations put in place a data classification process
The international standard on information security, ISO27001, describes the basic ingredients for data classification to ensure the data receives the appropriate level of protection in accordance with its importance to the organisation. It comprises three basic elements:
- Classification of data – in terms of legal requirements, value, criticality and sensitivity to unauthorised disclosure or modification.
- Labelling of data – an appropriate set of procedures for information labelling should be developed and implemented in accordance with the organisation’s information classification scheme.
- Handling of assets – procedures for the handling of assets developed and implemented in accordance with the organisation’s information classification scheme.
Adoption of this methodology will help financial services organisations and their supply chain take a more data-centric information security approach. However, there are essentially four key stages for implementing a data risk assurance supply chain approach and these are:
1. Approval – in organisations with complex supply chains senior management, vendor management, procurement and information security will all need to support a robust risk-based information management approach. Details of previous incidents and their impact alongside the business benefits will be essential to gain stakeholder buy in.
2. Preparation – Organisations should start with Tier 1 suppliers and initially identify the contracts with the highest business impact/risk. They should identify and record information repositories and the data that they contain together with the responsible business owners. Define a business taxonomy based on information categories of that data and include supply chain factors such as what information categories are shared.
For example, they need to understand the business impact of compromise against each of the information categories. Have any suppliers suffered security incidents? What assurance mechanisms are in place? Once all this information is collated the organisation can create a data classification policy and define a set of controls for each data category.
3. Discovery – Select each data category and identify the associated contracts. Then prioritise the data category based on the risk assessment and verify that the data security controls and arrangements for each data category and contract meet the overall requirements. Once complete, hand over the contract for inclusion in the vendor management cycle.
4. Embed process – the overall objective is to embed information risk management into the procurement lifecycle from start to finish. Therefore, whenever a new contract is created there are a number of actions required which embed data risk at each stage of the bid, tender, procurement, evaluation, implementation and termination phases of the contract.
To summarise, organisations should start by researching the information risk and security frameworks such as ISO27001 and others. They should then focus on defining their business taxonomy and data categories together with the business impact of compromise to help develop a data classification scheme. Finally, they should implement the data classification scheme and embed data risk management into the procurement lifecycle processes from start to finish. By effectively embedding data risk management and categorisation into their procurement and vendor management processes, they are preventing their suppliers’ vulnerabilities becoming their own and are more effectively securing data in the supply chain.
Deloitte: Middle East organizations need to rethink their workforce in the wake of COVID-19
Organizations in the Middle East have had to take immediate actions in reaction to the COVID-19 pandemic, such as shifting to remote and virtual work, implementing new ways of working and redirecting the workforce on critical activities. According to Deloitte’s 10th annual 2020 Middle East Human Capital Trends report, “The social enterprise at work: Paradox as a path forward,” organizations now need to think about how to sustain these actions by embedding them into their organizational culture.
“COVID-19 has created a clarifying moment for work and the workforce. Organizations that expand their focus on worker well-being, from programs adjacent to work to designing well-being into the work itself, will help their workers not only feel their best but perform at their best. Doing so will strengthen the tie between well-being and organizational outcomes, drive meaningful work, and foster a greater sense of belonging overall,” said Ghassan Turqieh, Consulting Partner, Human Capital, Deloitte Middle East.
According to the Deloitte report, many organizations in the Middle East made quick arrangements to engage with employees in the wake of the pandemic through frequent communications, multiple webinars where senior leaders addressed employee concerns, virtual employee events, manager check-ins, periodic calls and other targeted interactions with the workforce.
The report also discussed how UAE and KSA governments have reexamined work policies and practices, amended regulations and introduced COVID-19 initiatives to support companies and the workforce in the public and private sectors. Flexible and remote working, team-building and engagement activities, well-ness programs, recognition awards and modern workspaces are among the many things that are now adding to the employee experience.
Key findings from the Deloitte global report include:
- Only 17% of respondents are making significant investments in reskilling to support their AI strategy with only 12% using AI primarily to replace workers;
- 27% of respondents have clear policies and practices to manage the ethical challenges resulting from the future of work despite 85% of respondents saying the future of work raises ethical challenges;
- Three-quarters of leaders are expecting to source new skills and capabilities through reskilling, but only 45% are rewarding workers for the development of new skills; and
- Only 45% of respondents are prepared or very prepared to take advantage of the alternative workforce to access key capabilities despite gig workers being likely to comprise 43% of the U.S. workforce this year according to the Bureau of Labor Statistics.
“Worker well-being is a top priority today, and similarly to the rest of the world, companies in the Middle East are focusing their efforts to redesign work around well-being by understanding workforce well-being needs,” said Rania Abu Shukur, Director, Human Capital, Consulting, Deloitte Middle East.
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