In March 2016, Fortis and several shareholder organizations reached a collective settlement providing €1.204 billion (roughly $1.3 billion) to harmed investors. The Fortis settlement represents the largest ever under Dutch collective settlement procedures, which is why it has garnered such significant press coverage. The settlement relates to Fortis’s unsuccessful participation in the ABN AMRO acquisition prior to the 2008 financial crisis. At the time, Fortis was working with a consortium of banks to consummate the acquisition. Doing so depleted Fortis’s balance sheet just as the crisis hit, which later resulted in intervention by the governments of the Netherlands, Belgium and Luxembourg.
In 2008, a class action was initiated in the U.S. District Court for the Southern District of New York. That action was dismissed by the Court on jurisdictional grounds in accordance with the Supreme Court decision in Morrison v. National Australia Bank, 561 U.S. 247 (2010). Without a forum to sue Fortis in the U.S., various shareholder organizations began to assemble support for litigation and settlement efforts in the Netherlands and Belgium shortly thereafter. Those efforts were consolidated into one Dutch Foundation with the goal of achieving a settlement of claims that would be binding across all claimants and all European countries.
The Fortis settlement may have implications for other Dutch Foundations underway in global securities matters like Volkswagen, Tesco, and Petrobras, as well as attempts to utilize these procedures to resolve antitrust or competition-based claims on a pan-European basis. While the Dutch Foundation serves as a convenient vehicle to settle securities claims that touch upon multiple European countries, Dutch courts have highly scrutinized efforts that target companies without a substantial connection to the Netherlands, or that appear to be set up for the purpose of enriching the organizers rather than the broader investor class.
The settlement remains subject to approval by the Amsterdam Court of Appeal.
- May 20, 2016: the parties jointly petitioned the Court to declare the settlement binding.
- March 24, 2017: a public hearing is scheduled. Prior to that hearing, the parties will submit a proposed claim form and notice for Court approval. Investors who do not want to be bound by the settlement will have the opportunity to opt out. After the hearing, the Court will need to approve the claim form and notice in its appropriate form before the claim submission process begins.
- Late 2017 / early 2018: expect the claim submission process to begin
- Late 2018: expect the distribution of settlements funds
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