Why has Capita got off light over Arch Cru?
The FSA’s three enforcement actions against Arch smacks of hypocrisy and seems to show favoritism.
On Tuesday the Financial Services Authority issued decision notices against Arch Financial Products, its chief executive Robin Farrell and its former compliance director Robert Addison for their role in the Arch Cru debacle.
The enforcement actions, all of which are being contested in the Upper Tribunal, saw Mr Farrell and Mr Addison hit with fines totalling £850,000. Arch would have received a £9m fine if it had the funds to pay it, but it doesn’t.
The FSA is correct in its assertion that Arch could not pay this fine. It has total assets of £46,000, or at least it did when I interviewed Mr Farrell in April.
Capita Financial Managers, the authorised corporate director of the Arch Cru funds, was also censured by the FSA in recent weeks. It similarly escaped a £4m fine as it does not have the funds to pay it.
Again, this at first seems a fair assertion. According to its annual report, in 2011 CFM made a profit of £206,377.
However, its ‘ultimate parent company’ (the FSA’s words, not mine) Capita plc made a profit of £385.2m in 2011.
In CFM’s final notice, issued on 26 November, the regulator highlighted that Capita plc contributed heavily to the voluntary £32m provided to the £54m redress package for consumers as further justification for waiving its fine.
Even if the parent provided the entire sum, this equates to less than 10 per cent of its underlying profit.
Moreover, if the parent company is stepping in to cover the costs of this redress package contribution, why could it not also have covered any FSA fines levied against its subsidiary? It would have been a small drop in the ocean for them.
This is especially pertinent in the week the FSA has confirmed it is going to hit advisers with a redress scheme covering investor losses of up to £141m. It estimates that £20-£40m may eventually be paid by intermediaries that advised on Arch Cru.
The fine waiver for CFM smacks of hypocrisy. Worse, Chris Addenbrooke, CFM’s chief executive, is not even mentioned in the final notice.
As chief executive, he has two controlled functions: CF1 and CF3. The latter of these means that he has responsibility for the whole of the business, which surely must mean the company’s actions in relation to Arch Cru - which are severe enough to warrant public censure - are effectively his too?
One has to ask if it is fair that the Arch directors were fined for their wrongdoing, while executives from other parties that have also been found to have failed in their duties have not.
Now of course the two companies respective failings are not the same, but it seems to me that there are some striking similarities.
Arch’s decision notice also talks about conflict of interest that Arch had. However, in the Capita final notice the FSA does not mention that Hugh Aldous, the chairman of the current manager of the Arch Cru Guernsey cells SPL (which is driving litigation action that lays much of the primary blame for the funds’ failure squarely at the door of Arch), is also chairman of Capita Sinclair Henderson, a subsidiary of Capita which provides fund accounting, company secretarial and administration services.