UPDATE: Brian Henry admits market manipulation charges, fined $130,000
(Adds Henry comment)
By Jonathan Underhill
Aug. 7 (BusinessDesk) - Brian Henry, a venture capitalist who helped found Diligent Board Member Services, has admitted breaches of the Securities Markets Act by manipulating the company's shares in early 2010.
At the Auckland High Court, Henry admitted his trading in Diligent shares contravened the law. He was fined $130,000.
Henry admitted that on two occasions he executed what are known as ‘wash trades’, where he was both buyer and seller, moving the stock price without any change of ownership. On four other occasions gave "a false or misleading appearance of trading in Diligent shares" by 'layering,' where multiple buy and sell orders are placed without being completed to give the impression of more activity and force up the price.
“The conduct that Mr Henry engaged in undermines the development of a fair, efficient, and transparent financial market," Justice Venning said in his judgment. "Such market manipulation is likely to undermine the integrity of the NZX and jeopardise the confidence of both overseas and domestic investors in the NZ security markets. A pecuniary penalty is appropriate."
The Financial Markets Authority said it was the first case of market manipulation brought in New Zealand.
US-based Henry had said last year that the FMA's case had no merit, while confirming he had made “errors” in trading the shares in early 2010. He was a former chief executive of Diligent, leaving the company in 2009.
In a statement, Henry said he was satisfied the settlement amount reflected the agreed summary of facts, and that he'd never disputed the trading errors. He sought advice from the FMA's predecessor, the Securities Commission, in 2010 about his obligations, and said he wasn't surprised no action was taken at the time.
“However a year ago – three years after the trades - the FMA decided that they had a valid point to make about the integrity of the market, and I respect that," Henry said. “It is disappointing that it has taken four years and extensive legal fees for both parties to get to this point."
In a separate statement, stock market operator welcomed the High Court decision, saying the successful prosecution "reflects the importance NZX places on upholding the integrity of the markets it operates."
The decision comes a day before Diligent is due to report its first-half results and expected to post reported net profit of $5 million, up from $3.3 million a year earlier, according to analysts at First NZ Capital.
Diligent shares rose 2.4 percent to $4.20 and have gained 7.9 percent this year.