British Appeals Court Authorizes FSA To Compel Production of U.K. Accounting Firm’s Documents In Cooperation With S.E.C. Investigation Into Illegal Short-Selling Scheme In U.S. Involving Hedge Fund Amro International SA
Hedge Fund Law Report
On February 24, 2010, the U.K. Financial Services Authority (FSA) won an appeal in the U.K. Court of Appeal, Civil Division, concerning the scope of its authority to assist the U.S. Securities and Exchange Commission (SEC) in its investigations by compelling document production from U.K. firms. As part of an investigation into an illegal short-selling scheme by Rhino Advisors Inc., an unregistered investment adviser, the SEC had requested that the FSA obtain a decade worth of documents from a London-based accounting firm relating to its service of Rhino and Rhino clients Amro International SA and Creon Management SA. In August 2009, a U.K. Administrative Court quashed the FSA’s order because it found the SEC’s request “exceedingly wide” and beyond the scope of issues presented in the underlying U.S. litigation. The Court of Appeal reversed. Emphasizing the increasingly international nature of financial enterprises and transactions, it declared, “It is . . . of the greatest importance that national financial regulators cooperate, particularly where there are suspicions or allegations of financial fraud or other misconduct.” It then rejected the Administrative Court’s concerns, explaining, “It is not for the courts of this country to determine whether the SEC’s request will result in documents being obtained that will be useful for it,” or not. We summarize the background of the action, the relevant legal framework and the Court of Appeal’s legal analysis.