CONASEV Resolution No. 061-2011 — SMV — PE

Lima, July 22, 2011

SEEN:

File No. 2009000796, Memoranda No. 2818-2010-EF/94.04.1 and No. 065-2011-EF/94.04.1 of the Legal Advisory Office dated November 25, 2010 and January 7, 2011, the document submitted by Seminario & Cía. Stockbroker Agent Society dated December 29, 2010, and after hearing the reports from Mr. Alberto Miguel Giha Conetta, Mr. Roberto Seminario Pizzorni, Ms. Vitalia Rodríguez Villacorta, Ms. Jeanette Sandhaus Valdizán, and Mr. Jorge Melo Vega;

CONSIDERING:

i) Regarding the challenged resolution:

That, through Administrative Tribunal Resolution of CONASEV No. 148-2010-EF/94.01.3, notified on June 17, 2010, hereinafter, the RESOLUTION, sanctions were imposed on: (i) Jeanette Sandhaus Valdizán (hereinafter, Ms. Sandhaus) and Alberto Miguel Giha Conetta (hereinafter, Mr. Giha) with a fine amounting to 10 UIT equivalent to S/. 34,500 (Thirty-Four Thousand Five Hundred with 00/100 New Soles) for having committed a serious offense typified in Annex I, numeral 1, item 1.8 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its modifying norms, for having violated item b) of Article 12 of the Securities Market Law, approved by Supreme Decree No. 093-2002-EF and its modifying norms (hereinafter, LMV), and (ii) Vitalia Rodríguez Villacorta (hereinafter, Ms. Rodríguez) and Seminario & Cía. Stockbroker Agent Society (hereinafter, Seminario) with a fine amounting to 5 UIT, equivalent to S/. 17,250 (Seventeen Thousand Two Hundred Fifty with 00/100 New Soles) for having committed a serious offense typified in Annex I, numeral 2, item 2.9 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its modifying norms, for having violated the third paragraph of Article 176 of the LM;

That, with Resolution No. 166-2010-EF/94.01.3, dated June 18, 2010, a material error contained in the RESOLUTION is rectified, declaring that Ms. Jeanette Sandhaus Valdizán and Mr. Alberto Miguel Giha Conetta committed a very serious offense typified in Annex I, numeral 1, item 1.8 of the Sanctions Regulation, for having violated item b) of Article 12 of the LMV;

ii) Regarding the appeals:

That, through a document dated July 9, 2010, Ms. Sandhaus, Ms. Rodríguez, Mr. Giha, and Seminario filed an appeal against the RESOLUTION;

That, with a document dated October 6, 2010, Ms. Sandhaus requests that the power of CONASEV to sanction the offense attributed to her has prescribed;

Of the prescription request formulated by Ms. Sandhaus:

She considers that, having elapsed more than three (03) years since the commission of the alleged offense (July 6, 2007) without CONASEV having definitively determined the existence of an offense, it corresponds, in accordance with what is established in Article 342 of the LMV, to declare that CONASEV's power to sanction has prescribed. She adds that, as long as CONASEV does not rule on the merits of the matter and resolves the appeal filed, the computation of the prescription period for the sanctioning power is not interrupted, due to the fact that the administrative act has not become final and the procedure has not been concluded;

Of the appeal filed by Ms. Sandhaus

She states that there were indeed economic grounds supporting the purchase orders made, so the subjective appreciation of the Administrative Tribunal considering that, as of May 31, 2, the economic and financial results obtained by Invertur had already been largely assimilated having increased by 187.5% the corrected quotation of the shares. Likewise, she mentions that, as can be seen in various considerations of the RESOLUTION, on the dates when the purchase orders were entered, there was a free interaction of supply and demand from rational investors, with other participants competing to buy INVERTC1 shares, and the proposals also resulted in real share purchase transactions;

She argues that, contrary to what the Tribunal stated, when the corrected price of the shares rose to S/. 0.7555, she did not sell, even though what would have been expected of a speculator was that she would sell and close her position; she adds that it was Mr. Giha who happened to take advantage of selling his shares. Finally, she indicates that the Tribunal has made a subjective analysis of her proposals and operations, which did not violate any market regulation, and therefore it is not possible to sanction her simply for having a different investment criterion;

Of the appeal filed by Mr. Giha

He specifies that it has not been proven that the orders instructed by him and Ms. Sandhaus altered investors' perception regarding the existence of greater demand for Invertur shares and consequently induced other investors to purchase these shares, as there has been no determination of a direct relationship between the entered proposals and the purchases made by other investors at prices even of S/. 0.935;

He alleges that the good economic and financial fundamentals of Invertur, as well as its dividend policy and financial ratios, were what finally exerted real influence on the perception of investors who entered Purchase Proposals and carried out operations with the shares;

He mentions that the analysis prepared in the RESOLUTION ignores that the fluctuation of market prices is governed by supply and demand, leaving aside the global market environment. He also argues that it is proven that there was demand for the shares, which is reflected in the purchase proposals of other stockbroker agent societies and in the operations carried out by other investors; he considers, in this regard, that the Administrative Tribunal subjectively limits the way the market could assimilate the company's fundamentals with a non-significant negotiated amount, and that it has not considered that the trading of INVERTC1 was affected by the earthquake produced in Ica, which affected the company's operations or the fact that the entire Peruvian stock market fell from July 2007 to December 2008;

He states that although the share price fell at the end of 2007, in 2008, the share continued to trade at prices higher than the purchase proposals of Ms. Sandhaus between June and July 2007, so if the share was indeed overvalued, as established in the RESOLUTION, it would not have been possible for the shares to trade above the referred proposals and be acquired by investors with solid knowledge of the company;

He considers that, in the sanctioning procedure, a direct relationship between the entered proposals and the purchases made by other investors has not been determined, and in that same sense, the principle of material truth collected in the Law of the Sanctioning Administrative Procedure - LPAG has not been observed, since the ten (10) investors other than the accused who participated in the analyzed period have not been cited to testify;

Finally, he indicates that the imposed sanction violates the principle of due proof, since it is based on mere indications or assumptions about the commission of an offense, there being no foundation nor proof that demonstrates that an act, practice, or mechanism of a deceptive or fraudulent nature was carried out, so, in accordance with Directive No. 001-2002-EF/94.20 of the Legal Advisory Department of CONASEV, it should be declared that no sanctionable conduct was committed, considering, in addition, that the operations were transparent and were carried out within the guidelines established in the LMV and in the Rules of Operations in the Stock Exchange Wheel, (hereinafter, RORBVL);

Of the appeal filed by Ms. Rodríguez

She expresses arguments similar to those already stated by Mr. Giha and Ms. Sandhaus, and considers that CONASEV has not presented suitable proof to demonstrate that the operations subject of analysis had the intention of promoting false supply and demand conditions, it being considered that her action was limited to entering purchase proposals in the system of price formation of Invertur that marked a new quotation of S/. 0.28 on May 31, 2007 and to the entry into the Elex system of 10 purchase proposals during 4 consecutive wheels between prices of S/. 0.28 and S/. 0.40, thus, the orders were entered considering market conditions and in compliance with her function as representative of Seminario, there being no reasons to abstain from entering the proposals or prevent them from being made, since, otherwise, she would have been failing to comply with the conduct rules of mandatory compliance contemplated in Article 16 of the Regulation of Intermediation Agents;

She finally mentions that the conclusion reached by the RESOLUTION regarding the participation of other investors in Invertur shares being due to them having been induced by the entered proposals has not been proven, since the three participants supposedly induced and who subsequently purchased Invertur shares at substantially higher prices have sufficient market experience and knowledge so that it cannot be taken as certain that they were induced solely by purchase proposals of amounts close to S/. 2,000.00 New Soles, and the alleged offense attributed to her is not duly typified in the Sanctions Regulation, since it seeks to sanction for an alleged non-compliance with a care norm contained in Article 176 of the LMV; however, the RESOLUTION refers to the Sanctions Regulation to determine that there would have been non-compliance with “Not execute with diligence the functions established by the regulation,” constituting this form of typifying a violation of the Principle of Typicity collected in Article 230 item 4 of the LPAG;

Of the appeal filed by Seminario SAB

It states that Seminario has entered the purchase orders within the margins established by the Rules of Operations in the Wheel, respecting the market margin of 15%, being said margin a guarantee that prices reflect real conditions and avoid excessive fluctuations that respond to speculative maneuvers, and an agent who wishes to buy shares enters its proposals considering the conditions of the existing supply and demand at a given moment, seeking the greatest possible benefit, and not indiscriminately;

It states that Seminario acted in accordance with the regulations regulating the Securities Market and the entry of the proposals was due to the analysis of the relevant elements used to determine the value of Invertur shares, being that Seminario noticed the strong price increase of the company between May 8, 2007 and July 6, 2007, causing that the proposals of purchase of the shares of Invertur in the period investigated;

It argues that Seminario verified that each of the proposals entered into ELEX was in accordance with the Rules of Operations, that they were not anonymous, and that the formulation of the purchase proposals was done giving sufficient time to possible sellers to propose sale offers;

It indicates that sanctioning Seminario for “not executing with diligence the functions established by the regulation” violates the principle of typicity since the alleged infringing conduct lacks content as it does not establish which is the function established in the regulation that Seminario would not have acted with diligence. In this line, it adds that, by attributing to Seminario the commission of an “atypical” offense, the principle of causality is also violated, since the link between the typified conduct and the damage caused is shaken. Finally, it concludes that, since there is no infringing conduct and, therefore, a causality with respect to it, Seminario is innocent of the charges attributed to it and, consequently, since an administrative sanctioning procedure was initiated violating the principles governing the sanctioning power, it corresponds to declare the nullity of the administrative act that imposes the sanction;

That, through a document presented on December 29, 2010 by Seminario, the legal report prepared by Dr. Jorge Danós Ordoñez regarding the application of the Principle of Typicity in the Sanctioning Administrative Procedure carried out by CONASEV against Seminario is attached. The legal report concludes, among other points, that the offense case collected in numeral 2.9 of Annex I of the Sanctions Regulation constitutes a general clause and/or open clause, so Resolution No. 148-2010-EF/94.01.3, through which Seminario is sanctioned, violates the principle of typicity and, therefore, affects the due procedure of the administrator, for which said Resolution should be declared null;

iii) Of the analysis of the appeals:

That, it has been verified that the appeals filed have observed what is provided by articles 207 and 211 of the General Administrative Procedure Law (LPAG), have been filed within the established deadline, and meet the requirements set forth in article 113 of the aforementioned law;

Of the prescription request formulated by Ms. Sandhaus

That, in the first place and in accordance with numeral 3 of article 233 of the LPAG, it corresponds to evaluate the prescription request presented by Ms. Sandhaus;

That, regarding this, we must point out that the prescription period applicable to the offenses that instructs CONASEV is regulated by article 342 of the LMV, where it is provided that: “The power of CONASEV to determine the existence of offenses prescribes in three (3) years.” On the other hand, the text of numeral 233.2 of article 233 of the LPAG, which was in force at the time of the commission of the facts, established that the prescription period is only interrupted with the initiation of the sanctioning procedure, resuming the period if the file remained paralyzed for more than one month due to a cause not attributable to the administrator;

That, article 1 of Legislative Decree No. 1029 modified the norm under comment, establishing that the computation of the prescription period of the power to determine the existence of offenses will begin from the day on which the offense was committed or from when it ceased, if it were a continuous action, and that the computation of the prescription period is only suspended with the initiation of the sanctioning procedure through the notification to the administrator of the facts constitutive of the offense that are attributed to him as a charge, in accordance with what is established in article 235, item 3 of this Law. Such computation must be resumed immediately if the processing of the sanctioning procedure remains paralyzed for more than twenty-five (25) working days, due to a cause not attributable to the administrator;

That, in a prior manner and in contrast to what is stated by Ms. Sandhaus, it must be indicated that in accordance with numeral 233.2 of article 233 of the LPAG, the prescription period is suspended with the initiation of the sanctioning procedure through the notification to the administrator of the facts constitutive of the offense that are attributed to him as a charge and, likewise, said period will be computed until the moment in which the authority determines the existence of administrative offenses, regardless if these are subject of challenge through the administrative resources contemplated in the LPAG, since the power of the administration to determine the offense was exercised on that occasion. In the analyzed case, according to file No. 2009000796, through Office No. 5260-2009-EF/94.06.1, notified on December 23, 2009, charges were formulated to Ms. Sandhaus for having determined that she had carried out different successive acts directed to alter the perception that investors had regarding the true value of INVERTC1 shares in the market, with the purpose of inducing other investors to purchase said shares;

That, according to the office of charges, the last proposal formulated by Ms. Sandhaus that had the object of inducing other investors to acquire INVERTC1 shares was executed on July 6, 2007, so at the date of imputation of charges (December 23, 2009) there would have elapsed 2 years, 5 months and 17 days. Likewise, it has been observed that the sanctioning procedure was paralyzed by a cause not attributable to the administrator for twenty-five (25) working days from the date on which she answered the charges (January 21, 2010), so from February 22, 2010, the prescription period resumed, from February 22, 2010, the prescription period resumes;

That, in that sense, from February 22, 2010 (when the prescription period resumed) to the date of notification of the RESOLUTION to Ms. Sandhaus (June 17, 2010) elapsed 3 months and 26 days, which added to the period prior to the imputation of charges (2 years, 5 months and 17 days) make a total of 2 years, 9 months and 13 days. Therefore, in the present case, the three (03) years have not elapsed to which article 342 of the LMV refers, for the proceeding of the prescription of the power of CONASEV to determine offenses, so the request formulated by Ms. Sandhaus is inadmissible;

Of the arguments of appeal formulated by the administrators

That, in the first place, it corresponds to evaluate the argument referred to that there is no foundation nor, less still, proofs that demonstrate that other investors were induced to acquire Invertur shares through the entry of multiple purchase proposals at successively higher prices in consecutive wheel sessions;

That, regarding this, it must be indicated that, according to the current regulations, during a certain wheel session, the price of a company's shares can only fluctuate within a market margin, being its lower limit equal to 85% of the reference price and its upper limit, to 115% of the reference price;

That, the reference price on the basis of which the market margin for the wheel session to be carried out on day “t+1” is determined as the closing quotation of day “t” or, if applicable, (i) the best unsatisfied purchase proposal valid at the end of the wheel of day “t” (i.e. that with a price superior to the closing quotation of day “t”) or (ii) the best unsatisfied sale proposal valid at the end of the wheel of day “t” (i.e. that with a price inferior to the closing quotation of day “t”);

That, the mere existence of a market margin within which the price of a value can fluctuate daily does not guarantee that there is no possibility of manipulating said price;

That, in the case of illiquid shares that register low Quotation Frequencies[1] it is then possible that even if there are no counterparts that allow establishing new quotations, it is possible, only through the entry of purchase proposals at prices higher than the last valid quotation, to increase the reference price of these shares and, in this way, raise successively the market margin for these shares;

That, this was precisely the modality used by Mr. Giha and Ms. Sandhaus, so that between June 19 and July 6, 2007, multiple and successive purchase proposals were entered, on behalf of both gentlemen, which allowed the daily increase of the reference price, on the basis of which the market margin for the following wheel sessions was determined;

That, it is worth highlighting that in said period, Mr. Giha and Ms. Sandhaus were the only investors who instructed purchase orders at prices that were higher than the last valid quotation or the price of the best valid purchase proposal, and therefore were the only ones who with said action caused a successive and systematic increase in the reference price of Invertur shares, on the basis of which the market margin for the following wheel sessions was determined;

That, in the case of illiquid shares, investors who operate in the market do not carry out a continuous follow-up of the Proposal Book of said shares, as occurs with more liquid shares, so it is possible that successive increases in the prices of the purchase proposals not be perceived immediately by the rest of the market;

That, in fact, in the case of Invertur shares, the increases registered at the level of the prices of the purchase proposals were not perceived immediately by the rest of the market,[2] so it was possible that between June 19 and 22, 2007, through the entry of multiple purchase proposals in a successive and systematic manner, on behalf of Mr. Giha, the reference price of these shares was being increased, without these purchase proposals being materialized in effective share acquisitions nor in the establishment of new quotations;

That, between June 22 and July 6, 2007, the manipulative scheme also included, during four of said wheel sessions, on behalf of Mr. Gi, at prices even higher than the purchase proposals entered on behalf of Ms. Sandhaus; in such a way that in said sessions the Proposal Book of Invertur shares not only gave the appearance that investors were interested in acquiring Invertur shares at higher prices,[3] but also that investors willing to sell demanded even higher prices;[4]

That, consequently, investors who wished to acquire Invertur shares were forced to instruct the purchase of these shares at higher prices;

That, in addition, it must be indicated that the instruction of sale orders of Invertur shares by Mr. Giha was, at least, discordant with the purchase recommendation that Ms. Sandhaus simultaneously made, under the argument (according to her defenses) that the price of these shares was undervalued compared to the solid economic fundamentals presented by the company;

That, on the other hand, the purchase proposals at successively higher prices entered on behalf of Mr. Giha and Ms. Sandhaus were, in their majority, for amounts equal to or slightly higher than the minimum amount required to establish quotation (ascending to S/. 2,00 2,000.00 New Soles, S/. 2,000.00 New Soles, so when finally these purchase proposals managed to establish the quotation, they were executed at prices higher than the last valid quotation or the price of the best valid purchase proposal, and therefore were the only ones who with said action caused a successive and systematic increase in the reference price of Invertur shares, on the basis of which the market margin for the following wheel sessions was determined;

That, in the case of illiquid shares, investors who operate in the market do not carry out a continuous follow-up of the Proposal Book of said shares, as occurs with more liquid shares, so it is possible that successive increases in the prices of the purchase proposals of these shares not be perceived immediately by the rest of the market;

That, in fact, in the case of Invertur shares, the increases registered at the level of the prices of the purchase proposals were not perceived immediately by the rest of the rest of the market,[2] so it was possible that between June 19 and 22, 2007, through the entry of multiple purchase proposals in a successive and systematic manner, on behalf of Mr. Giha, the reference price of these shares was being increased, without these purchase proposals being materialized in effective share acquisitions nor in the establishment of new quotations;

That, between June 22 and July 6, 2007, the manipulative scheme also included, during four of said wheel sessions, proposals of sale on behalf of Mr. Giha, at prices even higher than the purchase proposals entered on behalf of Ms. Sandhaus; in such a way that in said sessions the Proposal Book of Invertur shares not only gave the appearance that investors were interested in acquiring Invertur shares at higher prices,[3] but also that investors willing to sell demanded even higher prices;[4]

That, consequently, investors who wished to acquire Invertur shares were forced to instruct the purchase of these shares at higher prices;

That, on the other hand, the purchase proposals at successively higher prices entered on behalf of Mr. Giha and Ms. Sandhaus were, in their majority, for amounts equal to or slightly higher than the minimum amount required to establish quotation (ascending to S/. 2,000), so when finally these purchase proposals managed to establish the quotation, they were executed at prices higher than the last valid quotation or the price of the best valid purchase proposal, and therefore were the only ones who with said action caused a successive and systematic increase in the reference price of Invertur shares, on the basis of which the market margin for the following wheel sessions was determined;