On 15th August last I spoke to Paul Appleby, director of ODCE about the DCC/Fyffes case. He informed me that they were examining the Supreme Court decision before deciding what action to take.
The case involves Jim Flavin, executive chairman of DCC who was found by the Supreme Court to have broken the law on insider trading (Analysis here).
One of the judges, Mr. Justice Fennelly, was clear.
“To trade on the use of inside information is recognised for what it is. It is a fraud on the market.”
(Full Supreme Court decision here).
Towards the end of September and beginning of October I made further enquiries to ODCE and eventually got through to Mr. Appleby’s legal advisor.
I expressed the view that the case seemed like an open and shut case and wondered why it was taking so long to come to a decision. He informed me that not every case is as easy as it seems to the general public.
Coincidently, on the same day that the Irish Supreme Court made its findings another case of insider dealing was reaching a conclusion in the United States, a jurisdiction where law enforcement is taken seriously.
Joseph P. Nacchio, former chief executive of Qwest, was sentenced to six years in prison, fined $19 million and ordered to forfeit $52 million he earned from illegal stock shares in 2001.
There is, of course, not the remotest possibility that Mr. Flavin will ever have to face such traumatic law enforcement in Ireland.
If the ODCE decide to act against him and by some miracle, actually win the case, Mr. Flavin, if he’s not retired by that time, will probably receive a small fine and be restricted from acting as a director for a short period.
To be fair to the ODCE, it is the only state agency showing even the slightest interest in the case. The Director for Public Prosecutions, Financial Regulator, Stock Exchange , Revenue Commissioners, An Gardai and body politic have all, apparently, decided that insider trading is not really a serious issue.