The report from Intralinks and the Cass Business School on the number of deals being leaked makes interesting reading, partly from a cultural perspective with India being the "leakiest " country and partially from a deal type. It notes real estate deals are subject to significant leaks, but it also raises the issue of what is a leak and what is a deal tactic.
The rules on leaks of public deals are clearly set out both in legislation and in the disclosure rules, takeover code and market abuse rules. It is a criminal offence to trade or encourage trading by the use of price sensitive information/insider information and the civil and regulatory sanctions are also severe and career limiting. After virtually every public announcement the stock exchanges surveillance team will follow up on insiders involved in the deal and the share trading pre announcement.
However, it would appear that the line between a leak, what is illegal and what is a smart deal doing is keeping blurred.
Increasingly investment banks and intermediaries see their role less about preparing the glossy information memorandum or financial pro forma information and more as people who can have the discrete call there or lunch here to nudge interest and the price up. It is the so called "deal currency where bankers earn their corn".
The fine line between what amounts to market abuse or a criminal offence and what doesn't is blurring. It would be surprising if regulators don't look hard at this in the future.
Clearly, once a deal is announced and a timetable is started, the secrecy of the opportunity disappears. The rules allow for latecomers/ interlopers but time is against a late comer. Institutions normally reserve their right to allow higher bidders into a process but rarely do they appear. This is anecdotally because all potential bidders have been sounded out before announcement in ways the rules don't really cater for. Whether regulators will one day require bankers to disclose which companies they approached pre announcement and in what way will be an area of compliance to watch.
M&A deal leaks are increasing (and no wonder – they pay off) Tougher regulation is failing to prevent leaks around deals, new research out today shows. And no wonder – being loose-lipped about transactions generally pays off. The mergers and acquisitions (M&A) research, by Intralinks and Cass Business School, found 8.6 per cent of deals globally were the subject of leaks, either to the media or other interested parties, in 2015. This was up from six per cent in 2014.