Investors often ask if they need an outside vendor for non-US opt-in service. After all, past settlements like Fortis and the upcoming one with Steinhoff have included investors that did not previously sue or join Foundation efforts against company defendants. So rather than paying someone to help join earlier, isn’t it better and cheaper to wait for later settlements and to file claims yourself?
At Financial Recovery Technologies, we think not; and here’s why:
1. Open settlements are the exception: Investors that wait until later may find it never comes. Defendants push for open settlements to reduce the risk of suits by previously inactive investors, i.e. to buy global peace. The threat from inactive investors does not exist if their claims are time-barred. Outside of Dutch Foundations, most non-US settlements to date have been limited to groups that previously filed suit, largely because the claims of others expired before the parties attempted resolution.
2. Previously active investors get more: In both Fortis and Steinhoff, previously active investors received 25 percent or more compensation. In Fortis, their premium was in the distribution plan. In Steinhoff, they received most of EUR 156M recovered from the auditor and director and officer defendants. So, there’s been a premium for early registration.
3. Dutch law has changed: We see open settlements in the Netherlands because it has a generous five-year statute of limitations (the legal time limit to bring claims) and because that limitations period can be easily disrupted and extended with demand letters. Moreover, in the past, Foundations have been able to represent non-Dutch investors without express consent, much like class actions in the US. Two things have changed that lessen the likelihood of future open settlements:
a. Some organizers are pursuing litigation using special-purpose litigation vehicles (SPLVs) that restrict future resolutions to their members.
b. Effective January 2020, Foundations can only pursue money damages for non-Dutch investors who affirmatively ‘opt-in’ by registering or notifying the court of their intention to be bound. Foundations may also have less ability to prevent the expiration of claims for absent non-Dutch Investors.
4. Filing claims isn’t so easy: As claimants learned in Fortis, while Foundation settlements are passive insofar as the money has already been recovered, satisfying the administration requirements can be challenging, particularly around proof of standing, authorization, and trade substantiation. The Steinhoff settlement is expected to be even more rigorous and demanding in its requirements. FRT saves our clients’ internal teams many hours of time and lots of frustration. If you don’t believe this, ask your FRT contact for a copy of the Steinhoff Alert outlining the requirements.
5. Other challenges remain: Clients going it alone may need to expend significant internal resources identifying matters, prioritizing them, and ensuring they fully understand the associated risks and burdens. This plus foregone money from missed opportunities exceeds the reasonable cost of outside service.
Savvy investors use a third-party as a non-US opt-in service given the growth in complexity and sheer numbers of non-US class actions. In fact, using an opt-in provider, like FRT, not only saves lots of time but can systematically boost returns.
To learn more about how FRT can help your firm maximize recoveries in shareholder class action settlements for passive participation (opt-in), active participation (opt-out) and non-standard cases, contact us at firstname.lastname@example.org.
SETTLED CLAIMS I PASSIVE GROUP I ANTITRUST I FUTURE CLAIMS I OPT-IN MONITORING I OPT-OUT MONITORING
Founded in 2008, Financial Recovery Technologies (FRT) is the leading technology-based services firm that helps the investment community identify eligibility, file claims and collect funds made available in securities and other class action settlements. Offering the most comprehensive range of claim filing and monitoring services available, we provide best-in-class eligibility analysis, disbursement auditing and client reporting, and deliver the highest level of accuracy, accountability, and transparency available. For more information, go to www.frtservices.com.
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