The fact scenario expounds an unenviable situation in which Jacinta, through no material transgression of her own, having been inadvertently informed of the unethical dealings and fraudulent conduct of Purple Coffee Supplies Ltd, is compelled to make an intractable decision, on which the fate of the entire company may ride. As the CEO of one of Australia’s leading superannuation funds, Bob’s meeting with Purple’s Board members and senior management is critical. Jacinta’s decision as to whether she will disclose Purple’s unethical behaviour will undoubtedly dictate the future of its commercial relationship with Bloggs Superannuation, market reputation and prospective profitability.
As General Counsel and Company Secretary, Jacinta acts as both Purple’s Chief Administrative Officer[footnoteRef:1] and In-house Counsel. Her principal responsibilities are largely imbricated[footnoteRef:2] and lie in ensuring Purple’s compliance with corporate legislation and the continued development of concordant relations with approved market operators (AMOs), such as the ASX and regulatory authorities, like ASIC. These regulators and market operators look to promote investor confidence (in maintaining market integrity) by imposing various transparency and disclosure obligations.[footnoteRef:3] Having been unwittingly copied in on an inculpating email from Simon to senior management, Jacinta now possesses substantive knowledge of Purple’s unethical import practices. Jacinta has three possible courses of action which need to be considered in light of their ethical, commercial and practical ramifications. In order to come to a judicious conclusion, the opposing views of Simon and Bob, as key stakeholders, will also be taken into account. [1: Corporations Act 2001 (Cth) s 9.] [2: Sarah Duggin, ‘The Pivotal Role of the General Counsel in Promoting Corporate Integrity and Professional Responsibility’ (2007) 51 Saint Louis University Law Journal 989, 1001; Jason Harris, Company Law: Theories, Principles and Applications (LexisNexis Butterworths, 2nd ed, 2015) 398-402.] [3: Harris, above n 2, 716-31; Keith Kendal and Gordon Walker, ‘Insider Trading in Australia’ in Stephen Bainbridge (ed), Research Handbook on Insider Trading (Edward Elgar, 2013) 365, 368.]
1. Jacinta remains silent.
Jacinta’s knowledge of the transactions opens her up to possible accessorial[footnoteRef:4] and even direct[footnoteRef:5] liability for the dealings of her firm. Such dealings result in an artificial inflation of profit margins and unethically contravenes statutory disclosure requirements, whilst corrupting, otherwise legitimate valuations of their holdings, beguiling both existent and prospective investors. If Jacinta were to stay silent, should ASIC discover Purple’s unscrupulous dealings, all parties involved, including Jacinta, will be jointly and severally liable. As with most ethical and commercial dilemmas, Jacinta’s decision is not without substantial pressures from...