FMA boss favours civil action

FMA chief executive Rob Everett has supervised the introduction of capital market rules that had been in the pipeline for years.

While his predecessor spent his time cleaning up the "stench" of the finance company failures, Financial Markets Authority boss Rob Everett has overseen the implementation of new laws that try to ensure that level of catastrophe doesn't happen again.

Since joining the regulator in February last year, the FMA chief executive has supervised the introduction of capital market rules that had been in the pipeline for years.

The FMA, after some of the changes came into force in April last year, now has tools that allow it to proactively stamp out misleading conduct in the market.

And law firm Chapman Tripp last month said the level of recent enforcement action from the FMA showed it was "increasingly prepared to flex its regulatory muscles".

This high level of activity, Chapman Tripp suggested, might become the "new normal".

If the new regulatory regime has been a key feature of Everett's leadership to date, so too is the number of settlements announced under his watch.

Some of these deals would have been in the works or very near-completed prior to him stepping into the role.

They have included an agreement with Strategic Finance's directors, its auditors BDO Spicers and receivers.

This saw the directors and auditors pay $22 million to investors, but the settlement's confidential nature means that it isn't known who paid what amount.

While the FMA had earlier announced it believed Strategic Finance's directors were likely to have breached the Securities Act, the settlement was made without any admission of liability by any party.

Another settlement - announced last month - involved the directors of Dominion Finance and North South Finance.

These sorts of deals are practical - they are more cost effective than taking a claim to court and deliver a more certain outcome.

They make sense when receivers or liquidators and the FMA are all chasing the same group of people.

They secure a better return for investors and allow the FMA to focus on the future rather than the past.

But the secrecy of some details means the deals lack the high level of transparency that the public expect.

It also means that allegations against those involved remain untested by a court. And with the new capital markets regime's bias towards civil rather than criminal proceedings, it is conceivable more FMA settlements are likely.