Following the bankruptcy of Turkish jewellery company Goldas Kuyumculuk Sanayi Ithalat Ihracat AS, and the resultant grave effects on many investors, the Capital Markets Board (CMB) has rendered a decision in which it imposed severe penalties on members of the company's board of directors for misleading investors.
The CMB evaluated public disclosures, mainly with regard to special events and related party and capital increase transactions made by Goldas, in line with the relevant legislation.
First, it discovered that the company's financials corresponding to the period between 2008 and 2012 did not reflect the actual sales amounts and financial condition of the company. As a result, the CMB decided to file criminal complaints (for keeping misleading records and fictitious financial statements and for forging private documents) against the members of the board of directors that had signed the related financial statements, along with the accountants responsible.
In addition, according to the CMB's evaluation, the company
- did not properly disclose the information regarding its sales;
- did not collect payments arising from the sale of 10.37 tons of gold; and
- effected intra-group transactions by appearing to be engaging in trading activities.
Such fictitious sales (which were in reality generated by effecting intra-group transactions, not from actual trading activities) were considered by the CMB to be organised and intentional acts for the purpose of draining the company's assets, without the knowledge of investors and the authorities. In this respect, the CMB filed a criminal complaint against the board of directors, based on misuse of trust, and requested the seizure of their assets from the prosecution office. The CMB also determined that certain capital increase amounts undertaken by related parties were fictitious, and therefore decided on payment of such amounts to the company, along with interest.
Laying out the grounds for its decision, the CMB also pointed out that disclosures issued by Goldas on several different dates stated that disputes with foreign suppliers had no adverse effects on the production of the company and no adverse condition would materially affect the investment decisions of investors. The CMB decided that such disclosures did not reflect the actual conditions. Such misleading disclosure also resulted in the filing of criminal complaints against the board of directors, based on manipulation of information.
The CMB further stated that the documents and information presented to it were insufficient to prove that payments for capital increases were properly made. In addition, CMB officials were misled, as the presented documents and information provided were not the proper documents requested by it. This situation is regulated separately as an offence under the Capital Markets Law – the case at hand is one of the rare circumstances in which the CMB has relied on the relevant article of the law setting out the imprisonment penalties for withholding information and documents and preventing a CMB audit.
Relying on the relevant articles of the Capital Markets Law, the CMB adopted a rarely seen approach and filed detailed criminal complaints against each member of the board of directors of Goldas, based on each irregularity and incompliance with the law and related regulations. In this respect, the decision is a milestone for market players, due to its broad scope and strict approach on the liability of the board of directors.
In consideration of the complaints filed by the CMB, it is likely that its decision will pave the way for a stricter approach on the implementation of penalties and the measures that the CMB may adopt under such circumstances. Directors of a company are therefore encouraged to be even more diligent with respect to their capital markets-related activities.
For further information on this topic please contact Kayra Ucer or Gülbin Olgun at Hergüner Bilgen Özeke by telephone (+90 212 310 1800), fax (+90 212 310 1899) or email (firstname.lastname@example.org or email@example.com). The Hergüner Bilgen Özeke website can be accessed at www.herguner.av.tr.