Credit Suisse v Ivanishvili: the door opens to fraud-on-the-market claims under s 90A FSMA

This article considers the effect of the Privy Council’s decision in Ivanishvili on claims under s 90A Financial Services and Markets Act 2000. It argues that Ivanishvili opens the door to claims based on the “fraud on the market” theory: it is now clear that a claimant need not prove it was consciously aware of misleading representations or dishonest omissions to establish reliance. However the decision also acknowledges the difficulties which arise with respect to ambiguous representations. Cases brought under s 90A in which statements made in published information leave room for more than one meaning may still face difficulties given the requirement to prove that an ambiguous representation was understood in the sense in which it is said to be false. What may matter in resolving these difficulties is the sense in which the defendant intended its published information to be understood. This along with the...