OSC to accept 'no-contest' settlement agreements
The Ontario Securities Commission has decided to let some individuals and companies settle misconduct disputes with the regulator without formally having to admit to any wrongdoing.
The new policy, often referred to as a no-contest settlement, is aimed at speeding up the whole enforcement process.
Under the old rules, the OSC required some admission of wrongdoing before a settlement could take place. That made for often difficult negotiations as defence lawyers worried that such admissions could leave their clients more vulnerable to other legal action from shareholders.
The OSC says its staff are continuing to explore the possibility of introducing a whistleblower program that would reward tipsters who provide the OSC "with actionable information about misconduct in the marketplace."
The OSC said it would be up to the commission to accept or reject any proposal to settle a case with a no-contest agreement.
The commission says serious cases of wrongdoing — including cases of abusive, fraudulent or criminal conduct — will still require formal admissions of misconduct. A no-contest settlement will also not be allowed in cases where the accused "misled or obstructed" staff during the investigation.
"When heightened accountability from respondents is paramount, we will continue to seek admissions as part of any proposed settlement agreement," said Tom Atkinson, the OSC's director of enforcement, in a statement.
An investor protection advocacy group says it has some misgivings about the new policies.
"We're concerned that they (the policies) may have the overall effect of reducing deterrents and end up being viewed . . . (by) wrongdoers as a licence fee for wrongdoing," said Neil Gross, executive director of the Canadian Foundation for Advancement of Investor Rights (FAIR).
"You can pay a fine and be on your merry way."
The OSC said it assessed more than $80 million in administrative penalties, disgorgement orders and settlement amounts in 2012-13.
In U.S. for years
No-contest settlements have been a hallmark of U.S. securities policy for many years. The U.S. Securities and Exchange Commission often reaches huge settlements with targeted companies or individuals without them having to formally acknowledge wrongdoing.
That has been controversial. In 2011, for example, a U.S. federal judge rejected a $285-million US settlement that Citigroup reached with the SEC, in part because the financial giant was not required to admit any guilt.
The SEC had accused the bank of betting against a complex mortgage investment in 2007 — making $160 million US in the process — while investors lost millions.
With files from The Canadian Press