Superintendencia Adjunta SMV Resolution No. 006-2024-SMV/10

Lima, 19 February 2024

Summary: Credicorp Capital Sociedad Titulizadora S.A is sanctioned with three (03) UIT equivalent to S/ 13,200.00 (Thirteen thousand two hundred and 00/100 soles) for having incurred in one (01) very serious infraction typified in Annex I, numeral 1, subsection 1.3 of the SANCTIONS REGULATION for violating the duty of reserve established in article 47 of the Single Ordered Text of the Securities Market Law.

Administered	Credicorp Capital Sociedad Titulizadora S.A.
Subject	: Administrative sanctioning procedure
File No.:	2023023063

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2023023063, Report No. 021-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the discharges presented by Credicorp Capital Sociedad Titulizadora S.A.; and,

CONSIDERING:

According to Article 1 of Law No. 29782, Law for the Strengthening of the Supervision of the Securities Market, the name of the National Supervisory Commission of Companies and Securities (CONASEV) is replaced by that of the Superintendency of the Securities Market (SMV), so any reference in legal norms to CONASEV shall be understood as the SMV;

I. FACTS

1. As a result of the supervision and control activities of the SMV, through Official Letter No. 2327-2023-SMV/10.3, notified on 19 May 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), charges were imputed to Credicorp Capital S.A. Sociedad Titulizadora (hereinafter, CREDICORP ST); for allegedly having breached provisions contained in the Securities Market Law, Legislative Decree No. 861 and its amendments, whose Single Ordered Text was approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO LMV);

2. By writing dated 30 May 2023, CREDICORP ST presented the discharges corresponding to the OFFICIAL LETTER OF CHARGES;

3. The charges formulated against CREDICORP ST, the discharges of the latter and their evaluation have been analyzed in Report No. 021-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

4. In observance of the Principle of Due Process contemplated both in Article IV, numeral 1.2, of the Preliminary Title and in article 248, subsection 2, of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS and its amendments (hereinafter, TUO LPAG), through Official Letter No. 083-2024-SMV/10, the administrative file referred to in Report No. 021-2024-SMV/10.3 was made available to CREDICORP ST for its review;

II. ISSUES TO BE DETERMINED

5. In the present administrative procedure, in the opinion of this Deputy Superintendency, it corresponds to determine the following:

a) Whether CREDICORP ST incurred or not in infraction to the provisions of article 47 of the TUO LMV for revealing to the market information protected by the duty of reserve.

b) Whether it corresponds or not to sanction CREDICORP ST for what is indicated in the previous subsection;

III. ANALYSIS

OF THE FACTS THAT OCCURRED

6. On 11 January 2021, CREDICORP ST communicated as a material fact the content of the Minutes of the Non-Presential Extraordinary General Assembly of the "First Certificate of Participation Issuance Program – FIBRA Credicorp"1 (hereinafter, PROGRAM) held on 4 January 2021, in which it is observed –among others- the full name of some holders of the participation certificates with their corresponding participation percentages2;

7. On 4 February 2021, CREDICORP ST regularized the communication of the material fact of 11 January 2021, sending again the Minutes of the Non-Presential Extraordinary General Assembly of the PROGRAM of 4 January 2021, without the list of attendees who participated in it3;

8. On 4 February 2021, CREDICORP ST requested the SMV to withdraw the Minutes of the Non-Presential Extraordinary General Assembly of the PROGRAM that was communicated as a material fact on 11 January 2021. The foregoing due to an involuntary human error, a file was sent that contained the list of attendees who participated in the assembly, instead of the file that contained the minutes without such information.4 In attention to what was requested, the referred minutes was

[1] Corresponding to the Trust Estate – Legislative Decree No. 861, Title XI – Securitization Trust for Investment in Real Estate Income – FIBRA Credicorp.

[2] File No. 2021000897.

[3] File No. 2021000897.

[4] File No. 2021004423.

withdrawn from the Public Registry of the Securities Market, and, therefore, from the Securities Market Portal;

OF THE REGULATIONS

9. According to article 47 of the TUO LMV, the following is established:

"Article 47.- Reserve of Identity It is prohibited for directors, officials and employees of brokerage agents, mutual fund investment in securities and investment fund management companies, rating agencies, issuers, bondholder representatives as well as directors, members of the Board of Directors, officials and employees of the stock exchanges and other entities responsible for the conduction of centralized mechanisms, as well as of the securities clearing and settlement institutions, to provide any information about the buyers or sellers of the securities traded on the stock exchange or in other centralized mechanisms, unless there is written authorization from those persons, a request from CONASEV or the exceptions referred to in Articles 32 and 47 concur.

Likewise, the prohibition indicated in the preceding paragraph is extended to information related to buyers and sellers of securities negotiated outside centralized mechanisms, as well as to that referring to subscribers or acquirers of securities placed through primary or secondary public offering.

In the event of an infringement of the provisions of the preceding paragraphs, the aforementioned subjects, without prejudice to the corresponding sanction, shall be jointly and severally liable for the damages and losses caused.” (Underlining added).

OF THE IMPUTED FACT

10. As has been stated, CREDICORP ST, through File No. 2021000897 of 11 January 2021, disclosed to the market a list of some of the holders of the participation certificates of the PROGRAM; said list contained the names and surnames of these investors, as well as the corresponding participation percentages. Therefore, CREDICORP ST was charged with having disclosed information protected by the duty of identity confidentiality, contemplated in article 47° of the TUO LMV;

OF THE DEFENSES SUBMITTED

11. On this matter, CREDICORP ST states that, as it made known in its communication of 04 February 2021 (file 2021004423), it expressly acknowledges the commission of the infringement charged in the STATEMENT OF CHARGES;

12. Nevertheless, CREDICORP ST considers it necessary that the sanctioning body take into account the following aspects exempting its company from liability in the commission of the infringement, at the time of its evaluation:

a) The disclosure of the reserved information of the investors of the PROGRAM was due to an involuntary human error in uploading the file to the MVNet system; and not to a deliberate decision to breach the duty of confidentiality that CREDICORP ST has towards its investors.

b) Once it became aware of the indicated disclosure, it immediately proceeded to notify the SMV, in order that said information be excluded from its portal and thus, to protect the information of the investors of the PROGRAM; that is, according to the management company, the infringement was duly remedied voluntarily and without any requirement on the part of the SMV.

c) Since the commission of the referred infringement, it has implemented a control regarding the process of uploading files to the MVNet, in order to prevent this kind of operational omissions from happening again in the future;

13. Without prejudice to the foregoing, in the denied event that the SMV considers applying any fine for the commission of the infringement, CREDICORP ST requests the evaluation of the following criteria:

• CREDICORP ST has no final sanctions for infringements of a similar nature, nor for other “very serious” infringements that have been imposed within the previous four (4) years.

• The commission of the infringement has not caused any economic harm to the investors of the PROGRAM or other investors and, to its understanding, has not generated any repercussion in the market.

• To date, it has not received any claim from any investor related to the facts subject of the STATEMENT OF CHARGES and, it has not become aware that this information has been used improperly in the market.

• CREDICORP ST has not obtained any illicit benefit as a result of the infringement indicated in the STATEMENT OF CHARGES.

• CREDICORP ST has assisted in the clarification of the facts subject of the infringement, including prior to the notification of the STATEMENT OF CHARGES, which is evidenced by the same actions it adopted in order to remedy it;

  14. Due to the foregoing, the securitization company considers that since the infringement has been remedied prior to the imputation of charges by the SMV, in accordance with the provisions of article 27, literal f) of the Sanctions Regulation, CREDICORP ST requests that it be exempted from any type of sanction or liability that could correspond for having infringed the duty of confidentiality;

EVALUATION OF THE DEFENSES

15. According to the defenses presented, CREDICORP ST expressly acknowledges that it disclosed to the market a list that contained the names and surnames of investors of the PROGRAM, as well as their corresponding participation percentages;

16. It should be added that the foregoing is duly accredited in the material fact of 11 January 2021, which was published on the SMV portal in accordance with file No. 2021000897;

17. With regard to the arguments developed regarding the sanction criteria alleged by the securitization company, as well as the exemptions from liability, it should be indicated that these aspects will be subject to evaluation at the time of determining the sanction to be imposed;

18. In that sense, the foregoing accredits that CREDICORP ST breached the duty of confidentiality contemplated in article 47 of the TUO LMV, thereby incurring in one (1) infringement classified as very serious, in accordance with Annex I, numeral 1, subsection 1.3 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), according to which it constitutes an infringement: “To breach the duty of identity confidentiality”;

IV. EVALUATION OF THE SANCTION

19. In accordance with article 344 of the TUO LMV and article 25 of the SANCTIONS REGULATION, in accordance with article 248, numeral 3, of the TUO LPAG5, the administrative sanctions that are imposed must take into account the criteria set forth by the TUO LMV, the SANCTIONS REGULATION and the TUO LPAG;

20. Within this framework, the evaluation of the sanction must consider the following criteria: a) antecedents of the offender; b) recidivism; c) the circumstances of the commission of the infringement; d) the harm caused and the repercussion in the market; e) the illicit benefit resulting from the commission of the infringement; f) probability of detection of the infringement; g) seriousness of the damage to the public interest and/or protected legal interest; h) the existence or not of intentionality in the conduct of the offender; as well as the mitigating and exempting conditions of liability;

21. With regard to the offender's record, in accordance with the provisions of article 17 of the SANCTIONS REGULATIONS, sanctions imposed and which have become final during the four (04) years prior to the date of the commission of the infringement constitute a record.

22. In this regard, from the review carried out in said period, it has been verified that CREDICORP ST has as a record the Resolution of the Deputy Superintendence SMV No. 031-2018-SMV/10 of 18 May 2018, which sanctioned it with three (03) warnings for having incurred in three (03) infringements of a minor nature, classified in Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATIONS, respectively, for having failed to submit eventual information referring to material facts within the period established in the applicable regulations. It should be noted that said sanction was reconsidered by CREDICORP ST, the appeal being resolved by Resolution of the Deputy Superintendence SMV No. 51-2019-SMV/10 of 31 December 2019, modifying the sanction from three (03) to two (02) warnings, which sanction became final on 22 January 2020;

[5] “Article 248.- Principles of the administrative sanctioning power (…) 3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct is not more advantageous for the offender than complying with the infringed rules or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance qualified as an infringement, observing the following criteria set out for their gradation: a) The illicit benefit resulting from the commission of the infringement; b) The probability of detection of the infringement; c) The seriousness of the damage to the public interest and/or protected legal interest; d) The economic harm caused; e) Recidivism, for the commission of the same infringement within a period of one (1) year from the date on which the resolution sanctioning the first infringement became final. f) The circumstances of the commission of the infringement; and g) The existence or not of intent in the offender's conduct”.

23. With reference to recidivism for the commission of the same infringement, account is taken of that final sanction imposed by the SMV within a period of one (1) year prior to the commission of the infringement to be sanctioned. In this sense, it must be stated that considering the aforementioned with regard to the sanction record, CREDICORP ST does not register sanctions for the commission of the infringements subject to analysis in the present administrative sanctioning procedure, within the mentioned period, and therefore the assumptions that constitute recidivism are not present;

24. As regards the circumstances of the commission of the infringements, it should be noted that the infringements were committed by an entity that has had authorization to operate in force since 10 February 1998 by CONASEV Resolution No. 045-1998-EF/94.10, and therefore, being a regulated company, it is aware of the regulatory framework governing its activities; however, despite this, it incurred in the commission of the infringements subject to charge. Likewise, it must be considered that the infringement was committed by a company whose functions are framed in obtaining financing through securitization trusts, reducing risks to investors, reducing transaction costs, improving financial indicators, achieving an adequate match between liabilities and assets, and contributing to the deepening of the capital market; that is, it is an entity that must comply with technical and specialization standards that imply a duty of diligence whose objective at all times must be to protect investors and the market; objectives that are not met when infringements such as the failure to observe the duty of confidentiality of identity are committed;

25. On this matter, it is necessary to indicate that CREDICORP ST incurred in the infringement subject to charge on 11 January 2021 by reporting as a material fact the content of the minutes of the non-attendance extraordinary general meeting of the PROGRAM, which set out the identity of some bondholders, as well as their percentage of participation; then, on 4 February 2021, twenty-four (24) days after the minutes were disclosed in the market, it sent a new material fact referring to the same minutes but this time without attaching the list of attendees or their respective percentage; and, on that same date, it requested the withdrawal of the aforementioned meeting minutes that was communicated as a material fact on 11 January 2021, because it contained information protected by the confidentiality of identity established in article 47 of the TUO LMV;

26. It should be noted that CREDICORP ST states that the commission of the infringement evaluated in the present administrative sanctioning procedure was due to an involuntary human error in uploading the file to the MVNet system; and not to a deliberate decision to breach the duty of confidentiality it has toward its investors. In view of this, it informed the SMV of such situation and requested the exclusion of said information from the SMV portal in order to protect the information of the investors of the PROGRAM;

27. As regards the harm caused and the impact on the market, it should be indicated that it has not been possible to evidence that the infringement incurred by CREDICORP ST in the present sanctioning procedure has caused a concrete economic harm to market participants or has had an impact on the market;

28. As regards the benefit resulting from the commission of the infringement, it has not been proven in the present administrative sanctioning procedure that CREDICORP ST has obtained any illicit benefit as a result of having incurred in the infringement subject to analysis;

29. With regard to the probability of detection of the infractions, it must be indicated that, since this is a matter of importance that is subject to supervision and control by the SMV in order to evaluate the veracity, sufficiency and timeliness of the information, as well as compliance with the duty of confidentiality established in article 47° of the TUO LMV, the probability of detection of the infraction was high;

30. With respect to the seriousness of the harm to the public interest and/or the protected legal interest, it must be indicated that in the present case it has not been possible to prove that CREDICORP ST's conduct in the commission of the infraction analyzed in this sanctioning proceeding has caused harm to the public interest;

31. However, through its conduct it has affected the legal interest relating to investor protection, since the information on the full names of seventeen (17) holders of the participation certificates of the PROGRAM, as well as their respective participation, which together amounted to 10.82% of the total participation certificates at that date, was disclosed to the market, thus affecting the investors who acquired the respective securities in the confidence that any information about them, including the number of securities they hold, would be protected in accordance with the provisions of the LMV, such that said information protected by the duty of confidentiality would not become public; a situation that has not been observed in the present case given the commission of the infraction that is the subject of the charge;

32. It should be noted that in this particular proceeding it must be considered that the first placement of the participation certificates issued under the PROGRAM took place in the month of August 2020 and, as of the date of commission of the infraction, they were being traded on the BVL stock exchange, where the security has been listed since 20 September 2019;

33. In this regard, it must be indicated that the duty of confidentiality constitutes a protection mechanism for natural or legal persons who decide to participate in the market, who have the protection of the rule before, during and after their participation in the securities market; thus becoming a pillar that generates confidence and therefore contributes fundamentally to the development of the securities market; aspects that have been affected in the present case given the administrator's failure to comply with its duty of confidentiality;

34. For its part, the legal interest relating to the protection and integrity of the market has additionally been affected, to the extent that it must be considered that the confidentiality of identity makes it possible for securities to be evaluated taking into consideration the information existing about them in the market and not for subjective reasons derived from those participating in the transactions, since the latter would seriously affect the principle of integrity or transparency of the market6 ; therefore, the fact of revealing information protected by the confidentiality of identity could generate distorting effects in the market, causing purchase or sale transactions of securities to be carried out based on their holder, which in turn could lead to variation in the price, trading or liquidity of the securities;

[6] Article 12°, subparagraph b) of the Securities Market Law, approved by Legislative Decree No. 861.

35. With regard to the existence or non-existence of intent in the offender's conduct, it must be specified that no intent has been evidenced in CREDICORP ST's conduct with respect to the infraction under analysis;

36. In addition to the foregoing, it is appropriate to analyze the exempting and mitigating conditions of liability established in article 257° of the TUO LPAG7 and in articles 27 and 26 of the SANCTIONS REGULATIONS, respectively;

37. On this matter, CREDICORP ST requests that the exemption from liability contemplated in article 27, literal f) of the SANCTIONS REGULATIONS be applied, since the infraction was remedied prior to the imputation of charges by the SMV;

38. As regards the alleged exemption from liability, it must be indicated that the application of said exemption is subject to the remedying of the act or omission imputed itself, not the consequences of administrative infractions;

39. Taking into account the foregoing recital, in this sanctioning proceeding the infraction is evaluated for the breach of the duty of confidentiality of identity, which is contained in the infraction type established in Annex I, numeral 1, subparagraph 1.3 of the SANCTIONS REGULATIONS, according to which the following constitutes an infraction of a very serious nature: “Transgressing the duty of confidentiality of identity”;

40. In that sense, considering the indicated infraction type, it follows that the constitutive element of the infraction regarding the duty of confidentiality is precisely the failure to maintain absolute privacy of the information subject to confidentiality relating to the participants, so that, taking into account the specific type of infraction, the indicated non-compliance could not be remedied by the subsequent withdrawal of said information, because the disclosure to the market of information protected by the confidentiality of identity violated the protected legal interest referring to the protection of the participants, whose information should not have been revealed; thus, once the information subject to the charge was made available to the market, said information was already in the public domain, a situation in which it is impossible to reverse, repair or compensate the harm produced as a consequence of the commission of the infraction, even if the information is subsequently withdrawn from the publicity mechanisms;

[7] “Article 257.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting from liability for infractions: a) A duly proven fortuitous event or force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the ability to understand the infraction. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by a confusing or illegal administrative provision. f) The voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 235. 2.- The following constitute conditions mitigating liability for infractions: a) If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges its liability. In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its amount. b) Others established by special rule.”

41. Without prejudice to the foregoing recital to the effect that the infraction under analysis is not remediable since the information protected by the duty of identity confidentiality has already been immediately known to the entire market, it should be noted that article 28° of the SANCTIONS REGULATION regulates the cases in which remediation does not apply as an exemption from liability; thus, in its subsection e) it is provided that the performance of activities that imply the breach of the fiduciary duty of entities authorized by the SMV, such as CREDICORP ST, is not subject to remediation;

42. Therefore, the exemption from liability contained in article 27, literal f) of the SANCTIONS REGULATION is not applicable to this case;

43. It should be noted that in this procedure it is not observed that any of the other cases constituting conditions exempting from liability, established in article 27 of the SANCTIONS REGULATION, has been configured;

44. As for the mitigating circumstances, it should be noted that CREDICORP ST has acknowledged its liability in the commission of the infraction that is the subject of the sanctioning procedure;

45. Likewise, regarding the offender's contribution to its clarification, it should be noted that CREDICORP ST has contributed to the clarification of the facts related to the infraction that is the subject of this sanctioning procedure;

46. In view of the foregoing, it is concluded that CREDICORP ST has incurred one (1) very serious infraction;

47. In accordance with the provisions of article 33° of the SANCTIONS REGULATION, the very serious infraction is punishable by a fine of not less than fifty (50) and up to seven hundred (700) Tax Units (UIT), with suspension of the authorization to operate for a period of not less than ten (10) days and up to forty-five (45) days, or with the revocation of the authorization to operate; however, to the extent that CREDICORP ST has acknowledged the commission of the infraction, the provisions of article 26°8, literals a), numeral 1 of the SANCTIONS REGULATION should be applied, so the fine for infractions must range between 25 UIT and 350 UIT; that is, 50% of the range established for very serious infractions;

48. However, according to the sanction criteria analyzed in application of the Principle of Reasonableness contemplated in article 248°, numeral 3 of the TUO LPAG, which states that sanctions must be proportional to the

[8] “Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY The following constitute conditions mitigating liability for infractions: a) Acknowledgment of liability by the offender expressly and in writing, once the administrative sanctioning procedure has been initiated. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the acknowledgment of the infraction is presented within the period granted for the submission of defenses, the reduction amount shall be fifty percent (50%). (…) The acknowledgment of liability regarding an infraction must be made precisely, concisely, clearly, expressly and unconditionally, and must not contain ambiguous or contradictory expressions; otherwise, it shall not be understood as an acknowledgment. If defenses are submitted, despite having made an acknowledgment of liability, it shall be understood as a non-acknowledgment, and the authority shall proceed to evaluate the defenses”

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breach qualified as an infraction, it must be considered that it has not been evidenced that the infraction committed by CREDICORP ST has caused harm to the public interest, economic harm to market participants, nor that it has had an impact on the market; likewise, it must be taken into account that it has not been established that there was intentionality in the conduct of the securitization company, or that it obtained any illicit benefit in that regard, and that it has been verified that said company is not a repeat offender with respect to the referred infraction; furthermore, the circumstances of the commission of the infraction, the offender's background, as well as the fact that the probability of the infraction was high, must be taken into account;

49. Therefore, it is possible to impose on CREDICORP ST a sanction corresponding to a classification lower than that provided for very serious infractions, in accordance with the provisions of article 25, last paragraph, of the SANCTIONS REGULATION;

50. In that sense, considering the analysis carried out, it is appropriate to impose on CREDICORP ST, with respect to the infraction incurred, a sanction applicable to minor infractions, in accordance with the provisions of article 35 of the SANCTIONS REGULATIONS;

In accordance with the provisions of article 32, numerals 16 and 17, of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF.

RESOLVES:

Article 1.- Declare that Credicorp Capital Sociedad Titulizadora S.A. has incurred in an infraction classified as very serious typified in Annex I, numeral 1, subparagraph 1.3 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 and its amendments, for violating the duty of confidentiality established in article 47 of the Single Ordered Text of the Securities Market Law, Supreme Decree No. 020-2023-EF, by revealing the full name of some holders of participation certificates with their corresponding participation percentages that appear in the Minutes of the Non-Presential Extraordinary General Assembly of the “First Participation Certificate Issuance Program – FIBRA Credicorp”.

Article 2.- Sanction Credicorp Capital Sociedad Titulizadora S.A. with a fine of three (3) UIT equivalent to S/ 13,200.00 (Thirteen thousand two hundred and 00/100 soles) for the provisions of article 1 of this resolution.

Article 3.- This resolution does not exhaust the administrative remedy, unless it is consented to, and may be challenged before the Deputy Superintendency of Prudential Supervision by filing a motion for reconsideration or appeal before the same, within a period of fifteen (15) business days counted from the day following its notification.

Article 4.- In the event that this resolution is not challenged by means of a motion for reconsideration or appeal within fifteen (15) business days of notification and becomes final, it must be published on the Institutional Page of the SMV on the Single Digital Platform of the

Peruvian State, in observance of the provisions of numeral 1, article 7 of the Policy on the dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and by the provisions of article 14 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this resolution to Credicorp Capital Sociedad Titulizadora S.A., to the Lima Stock Exchange S.A. and to Cavali S.A. ICLV.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision