Fortis Collective Settlement provides €1.204b (roughly $1.3b) to harmed investors

CASE BACKGROUND

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.

CASE TIMELINE (As of February 3, 2017 when blog was published. Note new timeline as communicated on January 17, 2018 in our Fortis Settlement Update)

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

RELATED MATERIALS

For more information on this case or other securities, global and antitrust class action litigations, please contact Financial Recovery Technologies at learnmore@frtservices.com.

Hong Kong one step closer to introducing class actions

In November of 2012, the Hong Kong Department of Justice announced it would create a working group to study and consider introducing a class action regime. The first meeting of this cross-sector working group was set for earlier this year. The group will discuss the proposals for the introduction of a comprehensive class action regime set out by the Law Reform Commission’s Report on Class Actions in May 2012.

Hong Kong Class Actions

The working group will be chaired by the Solicitor General and will consist of members representing stakeholders in the private sector, the relevant government bureaus and departments, the two professional legal bodies and the Consumer Council. A representative of the Judiciary will also have a limited role providing input to the working group on interaction with court operations.

It may be some time before the group proposes legislation to introduce class actions, as the Commission’s report only makes high-level recommendations and the intricacies of a working system still need to be deliberated, especially given the complexity of the issues and opposition to reforms. The report does recommend phasing the implementation of class action suits to avoid overwhelming the system with mass litigation. The Report suggests beginning with consumer cases and later extending the law to include other types of cases, which would eventually include securities class actions. The Law Reform Commission also recommends an opt-out approach as the default, but would provide the court with the discretion to order otherwise in the interests of justice.