On 17 November 2023, the Financial Conduct Authority (FCA) announced that it has censured the holding company of the largest private healthcare operator in the United Arab Emirates (UAE), NMC Health Plc (in administration) (NMC), for misleading the market about its debt, and failing to declare related party transactions, which was found to be market abuse (market manipulation) in breach of Article 15 of EU MAR.
NMC was placed into administration in April 2020 and it is anticipated that no funds will be available after creditor claims have been met. Were this not the case, the FCA would have imposed a substantial financial penalty on NMC.
The case is a reminder of the FCA’s ongoing focus on preventing, detecting and punishing market abuse. We await to see whether any action is being taken against individuals in connection with this case, although the FCA notes that NMC’s directors were based in the UAE, which may make this less likely.
NMC’s shares were admitted to trading on the Premium Segment of the London Stock Exchange in 2012 and it entered the FTSE100 in 2017. Between at least March 2019 and February 2020, NMC published a series of financial statements and announcements which contained materially inaccurate information about its debt position, under-reporting to the market its levels of debt. For example, in August 2019, NMC published an interim report for the half year ended 30 June 2019 which stated that the Group’s total debt was USD 2.1 billion, but by that time it was in fact USD 6.2 billion.
In December 2019, investment research company Muddy Waters Capital LLC published a number of allegations querying the accuracy of NMC’s financial reporting. In response, NMC denied the allegations, but announced that it would be commencing an independent third-party review to investigate them.
In February 2020, NMC announced the review had identified potential inconsistencies in the company’s bank statements and ledger entries, following which the FCA agreed to NMC’s request for a temporary suspension of its shares to ensure the smooth operation of the market. At the end of March 2020, NMC announced its debt position was around USD 6.6 billion and, following this, in April 2020 one of its principal creditors filed an application for the appointment of administrators, which was successful, with joint administrators being appointed on 9 April 2020. At the end of April 2020, at NMC’s request, NMC’s ordinary shares were delisted.
The FCA found that NMC had been operating with dual sets of partial accounting records throughout the relevant period. These included internal spreadsheets, where borrowing recorded as “Non-Showing” was not included in the figures which were reported to the market. On the other hand, borrowing recorded as “Showing” was reported. In addition, prior to and during the relevant period, supply chain finance had been set up and heavily drawn upon by some suppliers which were related parties to NMC Healthcare LLC, for which NMC was the ultimate guarantor. These were found to be related party transactions, which consequently should have been included in the financial information reported to the market, but they were not.
The FCA states in the Final Notice that it does not specifically find that every member of NMC’s board knew, or ought to have known, that the disseminated information was false or misleading, but that it is satisfied that there was knowledge within NMC at a sufficiently senior level that the disseminated information was false or misleading for that knowledge to constitute the knowledge of NMC for the purposes of market abuse. The Notice does not give any further details regarding the level of the relevant individuals.
In addition to the matters set out in the Final Notice, the FCA states that it is aware of allegations of similar misconduct by NMC in the preceding years, 2012 to 2017. However, the FCA has decided that it is not proportionate to devote additional resource to investigation of that alleged misconduct, given that NMC has already entered administration and has effectively ceased as a going concern.
The FCA found NMC’s conduct to be serious, stating that such market abuse undermines investor confidence in the integrity of the financial markets. However, as it is anticipated that no funds will be left after creditor claims have been met, the FCA has imposed a public censure rather than imposed a financial penalty on NMC. The FCA considers that it is preferable for NMC to meet creditor claims.
In some circumstances, the FCA can decide to identify a specific sum which it would otherwise have imposed as a fine. However, in this case, the FCA considers that such an indication would not be appropriate, as it would only indicate a penalty imposed on the basis of the relevant period, rather than the full period for which there are allegations of misconduct as noted above.