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18-393MR ASIC commences action against financial publisher and its director for misleading publications
ASIC has commenced civil penalty proceedings in the Federal Court against Port Phillip Publishing Pty Ltd (PPP), an online financial publisher and Australian financial services licence (AFSL) holder, and its director and CEO, Kristan Sayce.
The proceeding concerns an article promoting an investment strategy which, according to PPP, consumers could adopt to “piggyback”, or mimic the performance of, the Australian Government’s Future Fund. The article said that the investment strategy would generate monthly income of $540 to $6,667.
The article, which included client testimonials purportedly supporting the strategy, was targeted at retirees and was published on two of PPP’s websites and emailed to approximately 120,000 subscribers. Consumers were able to access the promoted investment strategy by purchasing a detailed guide from PPP for $49.
ASIC alleges that the article and the guide were misleading and deceptive because consumers could not mimic the performance of the Future Fund by adopting the promoted investment strategy, and that the testimonials contained in the article were false.
ASIC alleges that PPP and Sayce breached various consumer protection provisions of the ASIC Act and Corporations Act, that PPP breached its AFSL obligations, and that Sayce breached his duties as a director of PPP.
In addition to declarations and financial penalties, ASIC seeks corrective advertising orders, injunctions and disqualification orders against Sayce.
The first hearing of the matter is listed for 22 February 2019.
Regulatory Guide 234 Advertising financial products and services (including credit): Good practice guidance (RG 234) provides guidance to help promoters comply with their legal obligations not to make false or misleading statements or engage in misleading and deceptive conduct.
On 22 February 2019, the Court made orders which included a timetable for the matter up to and including mediation. A copy of the Court’s orders can be found here.
The matter is listed for a further case management conference on 24 May 2019.
Editor's note 2:
On 24 May 2019, the matter was adjourned to 7 June 2019.
Editor's note 3:
The matter has been set down for a half day hearing on 29 August 2019 in the Federal Court of Australia.