Case Law: High court holds firm accountable for providing advice without authorisation

At the end of March 2021, the FCA brought their case forward to the High Court against 24HR Trading Limited and Mr Maricar (the “Defendants”) in the case of Financial Conduct Authority v 24Hr Trading Academy Ltd [2021] EWHC648. The FCA’s claims arose from two activities that the Defendants engaged in:

1. the Company or Mr Maricar have, since 2017, sent “Signals” over social media, containing details of transactions in contracts for differences, spread betting contracts, and options (“CFDs“) relating to foreign exchange (“FX“), that Mr Maricar considered to be advantageous; and
2. the Defendants put clients in touch with two FX brokers: AvaTrade EU Ltd (“AvaTrade“) and Vantage Global Prime Pty Ltd (“Vantage FX“).

The FCA asserted that these activities involved the Defendants carrying on, by way of business, the regulated activities of: (i) advising on investments within article 53 of the Financial Services and Markets Act 2000 (“FSMA”) (Regulated Activities) Order 2001 (the “RAO“); and (ii) arranging deals in investments within article 25 of the RAO, in breach of the general prohibition set out in s19 of FSMA. They also asserted that both Defendants have communicated invitations or inducements to engage in investment activity in breach of s21 of FSMA.

ADVISING ON INVESTMENTS

Article 53 of the RAO describes the specified activity of “advising” as advice:

1. given to the person in their capacity as an investor or potential investor, or in their capacity as agent for an investor or a potential investor; and
2. advice on the merits of their doing any of the following (whether as principal or agent): buying, selling, subscribing for, exchanging, redeeming, holding or underwriting a particular investment which is a security, structured deposit or a relevant investment.

The Defendants argued that the Signals did not contain advice because the intention was that they should only be used as a tool to educate customers on how the markets worked and the kind of transactions and strategies that could be successful, but to use their own skill and judgment as opposed to relying on the Signals alone.

However, the courts determined that, based on the context provided – the combination of issuing those Signals and providing a Signal manual available, amounted to the Signals constituting advice on investments because:

• the Company issued frequent Signals that contained all the details that a recipient would need to buy specific CFDs;
• the Company boasted Mr Maricar’s success ratio, thereby indicating that the transactions referenced in the Signals would produce good levels of profit;
• the Company provided information, in the Signals Manual, on how to turn the Signals into CFDs; and
• the Company emphasised the lack of “hard work” that would be needed to use the Signals to produce a profit. A recipient just needed to “execute the trades” and be “good at following instructions”.

Furthermore, the judges reiterated that even if the recipients of Signals realised that it would be necessary to apply independent judgment as to whether the transaction was advisable, the Signal remained “advice” in the sense of being a recommendation from the Company to effect that transaction.

ARRANGING DEALS IN INVESTMENTS

From the FCA’s perspective, the activities engaged in by the Defendants did amount to arranging deals in investments on the following basis:

• the Defendants made “arrangements” consisting of a combination of transmitting the Signals and referring clients to AvaTrade and VantageFX;
• those arrangements were “for” the customers referred to to enter into transactions in particular investments, being the CFDs that would be recommended in the Signals;
• the arrangements satisfy the causation condition set out in Article 26 of RAO since they would cause customers to enter into those transactions;
• the Defendants made an arrangement with their customers and AvaTrade/VantageFX under which customers who used the Company’s sponsored links to open accounts with AvaTrade and VantageFX benefited from a free trial of the Company’s services and reduced fees thereafter; and
• those arrangements were made “with a view to” customers acquiring CFDs generally, since those were the kind of transactions that formed the subject matter of the Signals.

On this matter in particular, the judges concluded that customers were referred to AvaTrade and Vantage FX. On opening an account and depositing money, they would receive a free trial of the Company’s services and discounted fees thereafter. The Company’s services included the provision of Signals which were highly specific together with instruction as to how electronic instructions could be given over the very platforms at which they had just opened accounts to generate CFDs corresponding to those Signals. Viewed objectively such an arrangement was “with a view to” the investors entering into CFDs.

REMEDIES

As a result, the High Court enforced the following remedies:

1. an injunction against the Company, restraining it from continuing to transmit trading signals or otherwise provide advice on the merits of buying, holding or subscribing for CFDs, spread betting contracts and/or options; and
2. restitution of the commission that AvaTrade and Vantage paid Mr Maricar (totalling £530,695), which was a direct result of contraventions of Article 25(2) and s21 of FSMA. That commission was paid as consideration for the very act of referral to AvaTrade and Vantage, that was at the heart of the contraventions. This commission represented “profit” that Mr Maricar, a person knowingly concerned in those contraventions, received as the commission was paid into his personal bank account.

NEXT STEPS

This case is very timely considering the recent proliferation of companies selling courses, insight and educational material related to trading and reiterates the fine line between simply providing information and whether the provision of information and recommendations not intended to be provided as advice, could in fact be captured by the description in Article 53 of the RAO, and therefore require the necessary authorisations (or ability to rely on an appropriate exemption).

To review the case please click here.

For more information, and any guidance or advice on carrying out regulated activities Cleveland & Co External in-house counsel™, your specialist outsourced legal team, are here to help.