"Whatever you do in life, surround yourself with smart people who'll argue with you." - John Wooden
Players in the capital markets be warned – ASIC is watching and will dig deep!
Those involved in capital raisings and issuing disclosure documents under the Corporations Act 2001 (Cth) will be well aware of the liabilities that can attach to the issue of a prospectus. The implications can be far reaching and arise where there is a misstatement included in, or omission from, the prospectus.
It is common practice for companies issuing a prospectus to adopt a “due diligence” process – the intention being that in undertaking this process, the company, its directors and any underwriters will have the benefit of the due diligence defence which is available under the Corporations Act.
The due diligence process is a well-trodden path – but it does seem that there may be some complacency creeping in.
ASIC has recently issued a report into a review process it has undertaken of 12 recent IPO’s: Report 484 Due diligence practices in initial public offerings. While the report notes a systematic review of the quality of due diligence of a range of issues, ASIC’s concerns identified in their report relate generally to the processes adopted (or perhaps not adopted) by small to mid-sized issuers.
There appears to be a consistent theme in the concerns ASIC have documented – that shortcuts in the due diligence process will, more often than not, lead to ultimate pain in a capital raising. Some observations from the Report include:
- poor due diligence practices are more likely to lead to defective disclosure;
- while due diligence is generally undertaken across the board – the depth of the process adopted varied and the lesser the investigations, the greater the risk of defective disclosure;
- box-ticking on due diligence will not get you there; and
- a lack of director involvement – even though ultimately it is the directors who will be liable.
ASIC has highlighted something that I am sure is not news to anyone – you get what you pay for. While it might appear cost effective to go with the cheaper adviser offering a “tick the box” process, ultimately it might cost the company time, money and their reputation.
My recommendation would be to adopt the approach of “surround yourself with smart people who will argue with you". An adviser who will “tick the box” for you might seem like a good idea in terms of up-front costs, but they might not provide ultimate value if what they offer does not produce a robust document that will withstand the interrogation of both ASIC and the market. What is the point of a due diligence process if the end result is either no raising or liability exposure because the coveted due diligence defence is not available?
The role of an adviser is to advise – not to tell you what you want to hear. Directors conscious of the potential liabilities from raising capital would be well served to heed ASIC’s warning on this, as a few simple steps can mitigate their risks significantly.
For more information or discussion, please contact HopgoodGanim Lawyers' Corporate advisory and governance team.