Monday, November 24, 2008

Buyer beware

Letter by Adrian Tan

Much has been said and written about “Buyer beware”, investing “with their eyes open” and “I think the prospectus says ‘you could lose all or a substantial part of your investment in the Notes’ in bold print, on page 1 or 2”.

But what if the prospectus did not disclose material facts?

The New Paper’s Doctor Money ( Larry Haverkamp) wrote on 4 November 2008 that

“A feature common to ALL linked notes is that investors never see the charges. They include:
> costs embedded in the initial pricing;
> counter-party returns in the product’s risk/return structure;
> commissions from buying and selling the options, swaps and underlying bonds;
> market-making and surrender fees; and
> annual management fees, including trailer fees kicked back to distributors.

They are deducted directly from the yield. Investors are likely to attribute the low return to market conditions rather than unseen costs.

Most importantly, unit trusts and investment-linked products (ILPs) routinely publish their charges. Linked notes never do.”

Investors in Minibonds and HN5, Jubilee and Pinnacle Notes should be asking lawyers whether the failures to disclose the above amounts to a breach of section 243 (1)(a) of the Securities & Futures Act which reads, “A prospectus for an offer of securities shall contain all the information that investors and their professional advisers would reasonably require to make an informed assessment of the matters specified in subsection (3).

And if they are, what are the remedies and against whom. As Doctor Money wrote, “The question of the day is: ‘Should non-disclosure of embedded charges invalidate linked-note sales contracts and require a refund from issuers and distributors?’”

Breaches of section 243(1)(a) are something MAS is surely investigating because we have been assured, MAS is looking, “thoroughly into every possible breach of regulation, poor internal regulation or sales practices. And it will take action where necessary”.

Adrian Tan

10 comments:

  1. "“The question of the day is: ‘Should non-disclosure of embedded charges invalidate linked-note sales contracts and require a refund from issuers and distributors?’”

    Breaches of section 243(1)(a) are something MAS is surely investigating because we have been assured, MAS is looking, “thoroughly into every possible breach of regulation, poor internal regulation or sales practices. And it will take action where necessary”."


    WOW thats great news right



    So, when did they say is the Refund

    ReplyDelete
  2. "Investors in Minibonds and HN5, Jubilee and Pinnacle Notes should be asking lawyers whether the failures to disclose the above amounts to a breach of section 243 (1)(a) of the Securities & Futures Act which reads, “A prospectus for an offer of securities shall contain all the information that investors and their professional advisers would reasonably require to make an informed assessment of the matters specified in subsection (3)."




    Thanks for the referral.

    Lawyers, prepare your charge slips, here we come!

    ReplyDelete
  3. MAS should take strong & appropraite action if there is contravention of the Securities & Futures Act by our financial institutions. As there are many products sold with many hidden toxic underlying securities & varying maturing periods, the MAS can perhaps broker a uniquely S'pore deal where such investments can be converted into some sort of FD equivalents to be held to the original maturing periods - an alternative for failed investments & not a heavy toll on the financial institutions'balance sheets. MAS should act expeditiously & not let this unhappy episode drags on. Just my humble thought.

    ReplyDelete
  4. "...should..."

    "...perhaps..."

    "...can be..."

    "Just my humble thought."



    Your last statement said the most.

    I didnt say it did the most.

    ReplyDelete
  5. Securities & Futures Act:-

    Section 243...

    Contents of prospectus
    243.—(1) A prospectus for an offer of securities shall contain —
    (a) all the information that investors and their professional
    advisers would reasonably require to make an informed
    assessment of the matters specified in subsection (3); and
    (b) the matters prescribed by the Authority.
    [1/2005]
    (2) The prospectus shall, with respect to subsection (1) (a), contain
    such information —
    (a) only to the extent to which it is reasonable for investors and
    their professional advisers to expect to find in the prospectus;
    and
    (b) only to the extent that a person whose knowledge is
    relevant —
    (i) actually knows the information; or
    (ii) in the circumstances ought reasonably to have
    obtained the information by making enquiries.
    (3) The matters referred to in subsection (1) (a) shall relate to —
    (a) the rights and liabilities attaching to the securities;
    (b) the assets and liabilities, profits and losses, financial position
    and performance, and prospects of the issuer;
    (c) if the underlying entity is controlled by —
    (i) the person making the offer;
    (ii) one or more of the related parties of the person
    making the offer; or
    (iii) the person making the offer and one or more of his
    related parties,
    the assets and liabilities, profits and losses, financial position
    and performance, and prospects of that entity; and

    TO ALL READERS OF THIS SECTION:-

    ANYONE WANT TO TELL ME THAT INVESTORS OF TOXIC PRODUCTS DON'T HAVE A CASE?

    ReplyDelete
  6. Dear Adrian Tan

    Thanks for bringing out a GOOD point for pondering.

    However, further reading into the Securities & Futures paper, page 37, wrotes...

    ‘‘securities’’ means —
    (a) debentures or stocks issued or proposed to be issued
    by a government;
    (b) debentures, stocks or shares issued or proposed to be
    issued by a corporation or body unincorporate;
    (c) any right, option or derivative in respect of any such
    debentures, stocks or shares;
    (d) any right under a contract for differences or under any
    other contract the purpose or pretended purpose of
    which is to secure a profit or avoid a loss by reference
    to fluctuations in —
    (i) the value or price of any such debentures, stocks
    or shares;
    (ii) the value or price of any group of any such
    debentures, stocks or shares; or
    (iii) an index of any such debentures, stocks or shares;
    (e) any unit in a collective investment scheme;
    (f) any unit in a business trust; or
    (g) any derivative of a unit in a business trust,
    but does not include —
    (i) futures contracts which are traded on a futures market;
    (ii) bills of exchange;
    (iii) promissory notes; or
    2006 Ed. Securities and Futures CAP. 289 37
    1.4.2006
    (iv) certificates of deposit issued by a bank or finance
    company whether situated in Singapore or elsewhere;

    Could you kindly enlighten us if linked notes is still considered as Securities?

    Thank you sir.

    JC

    ReplyDelete
  7. "Could you kindly enlighten us if linked notes is still considered as Securities?"

    "ANYONE WANT TO TELL ME THAT INVESTORS OF TOXIC PRODUCTS DON'T HAVE A CASE?"


    Picture this, the Court will ask you what makes you determine what is Toxic what is not, when you have difficulty defining what YOU bought.

    You need someone to recommend you a good lawyer.

    The biggest problem is, so do the rest 9,999 Investors

    ReplyDelete
  8. While the marketing and packaging of these treacherous financial products did not break any law in letter, it certainly does that in spirit. The naming of the products, the flagging of the reference entities, which have nothing to do with the products, and the hiding of key facts in fine print in advertisements, the convoluted way of explaining the risk in the prospectuses, all suggest that the financial institutions that created these monstrous products, were out to defraud unwary investors out of their hard earned money.

    While it is sad that the financial institutions that robbed the people even today refused to admit guilt, it is even sadder that government ministers have dismissed out of hand the victims' legitimate calls for compensation. Even sadder that some ministers used such derogatory terms as "with their eyes wide open" to describe the victims' plight. Caveat emptor does not apply when there is clear evidence that evil doers tried everything within their means to cheat and defraud, even if they did not break any law in letter. Would caveat emptor applies, I ask the ministers, if a vendor of milk prints "safe to drink" prominently on the milk carton but hides "this may contain melamine" in tiny print on the bottom of the carton?

    ReplyDelete
  9. "Would caveat emptor applies, I ask the ministers, if a vendor of milk prints "safe to drink" prominently on the milk carton but hides "this may contain melamine" in tiny print on the bottom of the carton?"



    The legal answer is YES.

    ReplyDelete
  10. To Anonymous at 11.06am

    Thank you very much for the metaphor of Melamine.

    We need justice!

    ReplyDelete