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OCT 11 2017
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Investigations by the Financial Markets Authority

INVESTIGATIONS BY THE FINANCIAL MARKETS AUTHORITY

The Financial Markets Authority (FMA) investigates possible breaches of New Zealand’s financial markets legislation (such as the Financial Markets Conduct Act 2013).  This note explains what to do if you receive a notice from the FMA under section 25 of the Financial Markets Authority Act 2011, requiring you to supply information or produce documents or attend an interview. 

NOTICES TO SUPPLY INFORMATION OR PRODUCE DOCUMENTS

When you receive the notice, you should:

  • Advise senior management
  • Seek legal advice (including as to the validity of the notice, whether you must keep it confidential, and the scope for negotiating a reasonable deadline and format for responding to it)
  • Try to foster a co-operative working relationship with the FMA officers
  • Instruct team members not to destroy any relevant information or documents, and ensure that all automatic destruction processes are halted
  • Consider your other obligations (e.g. advise the NZX, contact clients, notify insurers, issue a press release, convene a board meeting, or commence your own investigation)

When you respond to the notice, you should:

  • Produce all information and documents specified in the notice (“document” can capture any written material, images, computers, mobile phones, USB drives etc)
  • Not produce any information or documents which are legally privileged to any person
  • Keep a copy of whatever is produced to the FMA (ideally electronic)

NOTICES TO ATTEND INTERVIEWS

If you receive such a notice, you should:

  • Advise senior management
  • Seek legal advice (including as to the validity of the notice, and privilege)
  • Not discuss the matter with other potential witnesses
  • Arrange for a lawyer to accompany you to the interview
  • Ask for a copy of the recording of the interview to be provided

Your lawyer will be able to help you prepare for the interview with reference to the relevant documents, and advise you how to deal with privilege or confidentiality issues. 

OTHER INTERACTIONS WITH THE FMA

The FMA also gathers information by other means (e.g. from public sources, from other agencies, and from voluntary provision of documents or voluntary interviews).  It can be helpful to engage with the FMA on a voluntary or informal basis, but doing so can also involve substantial risk.  You should seek legal advice before doing so.

ANDERSON CREAGH LAI LIMITED | Andy Glenie | Mobile: +64 21 568 923 | Email: andy.glenie@acllaw.co.nz