India’s markets regulator, the Securities and Exchange Board of India, has proposed a revamp of its settlement framework to make the process simpler, more predictable and easier for entities to use. It has suggested changes to how settlement amounts are calculated and interest on disgorgement is charged. Mint explains the proposal
How will settlement amounts be calculated?
The base amount will be linked to the minimum penalty under the relevant securities laws, with a multiplier depending on the applicant. The formula will then factor in the stage of proceedings, past regulatory action, type of violation, aggravating and mitigating factors.
The proposal excludes wrongful gains or investor losses from the base-amount calculation, although such amounts must be disgorged separately. Sebi has also proposed a clearer interest structure for disgorgement. If no final order has been passed, interest would be charged at 9% a year from the transaction date until the settlement application is filed. If a final order has been passed, the rate would be 9% until that order and 12% thereafter until the application is filed.
What will change from the current formula?
Under the existing system, the settlement amount is calculated using a formula that combines the base amount, base value, proceeding conversion factor (PCF) and regulatory action factor (RAF). These components are similar to the ones proposed by the market regulator. Currently, Sebi has proposed increasing the number of mitigating factors from three to five, with a broader provision allowing other relevant mitigating circumstances to be considered as needed. The current framework also counts wrongful gains or investor losses while determining the base amount, before they are disgorged separately.
Why is Sebi proposing to change the framework?
The market regulator's study of cases where settlements failed found that settlement amounts proposed earlier were, on average, about eight times the final penalties. The revamp could bring this down to about four. The aim is to ensure that settlement is not so expensive that entities avoid the process altogether. The regulator wants the framework to be simpler, less discretionary and easier to implement, helping market participants resolve matters without prolonged litigation.
Which cases will qualify for fast-track settlement?
The proposal creates a monetary threshold for fast-track settlement. Cases where the settlement amount is up to ₹10 lakh would not need to go through the high powered advisory committee (HPAC). Such cases would move from the internal committee directly to the panel of whole time members. Once the applicant makes the payment, the settlement order can be passed by the competent authority or the panel, depending on where the proceedings are pending. Sebi already has a summary settlement for certain specified violations, but the new proposal would also extend fast-track treatment based on the settlement amount.
Can entities avoid legal action from Sebi?
In some instances, market participants can, but the new settlement norms do not guarantee that the market regulator will drop every form of action. According to the proposal, Sebi can now issue a settlement notice before a show-cause notice, except where prosecution is proposed, giving an entity 60 days to apply. Filing an application can delay or avoid the final enforcement order while the settlement is considered. However, Sebi can reject applications, and interim directions to protect investors or market integrity can still be issued. So, settlement offers an alternative to prolonged proceedings, but it is not an automatic shield from regulatory action.