The Financial Conduct Authority (FCA) has published a proposal to name companies under investigation far earlier in the process, to act as a deterrent to others by showing the significant harm flouting the rules does to consumers and markets.

The FCA is also proposing that it will give the firm which is the subject of the investigation no more than one business day’s notice and doesn’t envisage a formal process for subjects to make representations or challenge the publication of the facts of the investigation.

So what are the possible legal implications?

It could be difficult to successfully challenge the concept of publicity, but the main issue seems to be the balance between the reputational damage to firms if there is early publicity versus the perceived downside of the FCA having to wait at least until the warning notice stage of an enforcement action.

The industry concern will understandably be the “no smoke without fire” problem that early publicity may create the damage even though the FCA has not yet done the work to get to the warning notice stage.

Risk of reputational damage

The FCA will have to be very careful in describing the suspected misconduct in circumstances where it has not yet investigated whether the misconduct has taken place, so that readers understand that no findings have yet been made. Publication of the commencement of an investigation could lead to reputational damage, though this might be slightly mitigated as the number of investigation announcements increases and as many investigations are shown to be discontinued without an outcome.

What next?

Enforcement plays a vital role in delivering part of the FCA's three-year strategy to reduce and prevent serious harm, so these plans represent a significant step forwards.

We will be tracking developments closely.