Dutch Unfair Prejudice. And. Collective claim Proceedings

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1 Dutch Unfair Prejudice And Collective claim Proceedings Höcker Advocaten, The Netherlands Yvette Borrius

2 SHORT INTRODUCTION DUTCH REMEDIES UNFAIR PREJUDICE The most effective mechanism at the disposal of minority shareholders to enforce rules and principles of corporate governance and as source of protection are inquiry proceedings before the Enterprise Chamber, a special division of the Amsterdam Court of Appeal (art Book 2 DCC). The Dutch Enterprise Chamber is a specialised business court, which is unique within the EU. Since its establishment in the early 1970s, the Enterprise Chamber has successfully resolved numerous business disputes while also actively contributing to the Dutch corporate governance practice in general. The judges of this Enterprise Chamber consist of experts in commercial fields as well as the legal profession. They have proven their ability to act swiftly and decisively in a wide range of corporate disputes, including conflicts regarding corporate control. This unique feature is well appreciated by institutional investors as well as other businesses, companies and investors around the world. Shareholders are entitled to file an inquiry request if they, individually or collectively for instance through the Dutch Investors Association (VEB) - represent at least 10 % of the issued share capital or with a par value of EUR 225,000 (for large companies shareholders need tot hold at least 1 % or shares with a market value of at least EUR 20 million). A non-dutch party has the same rights as a Dutch party to initiate inquiry proceedings. In the first stage, a request is filed to appoint one or more experts to investigate the policy of the company and the conduct of its business. In the second stage a request may be filed to conclude that the expert report indeed demonstrates mismanagement and to order far-reaching remedies to address these problems. Over the last 30 years, the Enterprise Chamber has developed a rich case law as to the question of what may amount to "mismanagement". This includes the purchase (or sale) of subsidiaries without a proper assessment of their value, transactions between the company and its directors without having secured that there is no conflict of interest, unfair dividend policy or dividends wrongfully not distributed, failure of the company and/or its directors to provide correct information to the general meeting of shareholders, neglecting the interests of minority shareholders, issuance of a controlling block of shares to a third party without sound business reasons, etc. An important category of cases relates to deadlocks in the board of directors, and often in those situations in the general meeting as well. "Mismanagement" does not necessarily require acts by the board of directors. Decisions made by 2

3 the shareholders meeting, for example, are attributed to the company and may also be deemed "mismanagement". Some well known cases presented to the Enterprise Chamber over the past years are (corporate control struggles in relation tot) Gucci, Rodamco North America, Laurus, Stork, ABN AMRO and ASMI. The right of inquiry has some unique features. The Enterprise Chamber consists of 5 members: 3 professional judges and 2 outsiders (from a panel of 16 consisting amongst others of former CFO s, auditors and persons with other specific relevant expertise). The proceeding is initiated by an application (not a writ) which ensures flexibility yet it may entail an unpredictable outcome to a certain extent as well. Parties who consider themselves to be interested parties may join the proceedings of their own accord and influence an inquiry. Simultaneously with the application for an inquiry, injunctions for interim relief can be asked; the so called fast-track procedure under art. 349a book 2 DCC. Decisions regarding preliminary injunctions can be given very fast, sometimes at the very hearing itself. The Enterprise Chamber is, in principle, free to order the measures it deems fit in the given circumstances. Such provisional measures may include: (i) the suspension of voting rights of certain shareholders; (ii) orders not to execute certain resolutions or business decisions; (iii) deviating from the Articles of Association; (iv) the suspension of managing and/or supervisory directors, and (v) the appointment of interim managing and/or supervisory directors. In the period , out of 23 inquiry requests with respect to public companies, an injunctive relief was asked in 21 of these cases; a preliminary remedy was granted in 57% of these cases. In the context of close corporations, 234 injunctive reliefs were requested in 300 cases with a success rate of 47%. The Enterprise Chamber has repeatedly demonstrated a willingness to act fast and take rigorous action. Quite often, the inquiry proceeding assists the parties in overcoming their differences by promoting informal and supposedly efficient solutions. These non-formalistic remedies offer parties an 3

4 additional round of after-the-fact bargaining either by themselves or under the supervision of independent observers. The principle of fast, informal and what we call judge-initiated mediation or conciliation appears to be very attractive to minority shareholders. This applies to both listed and nonlisted companies. In particular, the inquiry proceeding is employed to resolve deadlock situations in closely held corporations. A number of key decisions in the inquiry proceeding have served to protect minority shareholders. Particular in the context of listed companies it could be argued that several characteristics make the proceeding prone to abuse. The open standard of proper management, in combination with the fact that the company bears the costs of the inquiry, invites minority ( activist ) shareholders to initiate an inquiry proceeding. Since parties generally decide not to go through the two stages, but instead accept the injunctive relief as the final decision, the inquiry proceeding may be invoked to press management for changes of the company strategy, policy or organizational structure. This is particularly true since media attention for inquiry proceedings in the context of listed companies is almost guaranteed. SHORT INTRODUCTION COLLECTIVE CLAIM PROCEEDINGS The enquiry procedure does not provide for the assessment of damages; this can be entailed by collective claim proceedings which is based on the Dutch Act on the Collective Settlement of Mass Damages. Such agreement is a negotiated settlement of mass damages, agreed upon between, on the one hand foundations and/or associations that defend the common interest of a certain group of persons (such as shareholders) who have incurred damage, and on the other hand the party held liable or a party willing to compensate the group for alleged damages. The facility makes it possible for parties to request that a judge declares a settlement between a liable party and a foundation or association which represents the interests of the injured parties universally binding. Once declared universally binding, the agreement is binding upon all injured parties. The facility thus makes it possible for a liable party to settle a claim with an undetermined number of injured parties definitely. Once a judge grants the motion, injured parties will have the possibility to opt 4

5 out of the settlement during a limited period of time. When an injured party opts out it can either litigate itself or to try to reach an individual settlement. The Amsterdam Court of Appeal evaluates the collective settlement agreement on various points. The agreement itself must meet the criteria set out in Article 7:907 section 2 DCC. Accordingly, the agreement needs to contain (i) a description of the group of persons on behalf of which the agreement was made, (ii) an (as precise as possible) determination of the number of persons that belong to that group, (iii) the compensation to be paid to these persons, (iv) the conditions that these persons must meet in order to qualify for the compensation, (v) the manner in which the amount of compensation is to be calculated and obtained, and the data of the persons to notify about the opt-out. The judge will carry out a legal test of representation, verify if certain required minimum provisions are met and test the reasonabless of the compensation offered. The main feature of the collective claim proceedings is the fact that the declaration by the Court of Appeal binds all persons covered by the collective settlement agreement as a matter of law. Liable parts are thus able to deal with all or almost all potential claims in one settlement agreement and the collective action problem for individual is dealt with at the same time. Well know cases are Shell and Ahold settlements, concerning damage suffered by investors due to incorrect or misleading information published by a listed company. However the opt-out possibility for individuals may entail uncertainty. Persons may pursue individual recovery of the claim if they believe an individual action may lead to a higher compensation, notwithstanding the costs to be made. The collective settlement agreement can lose binding effect if a certain maximum percentage of opt-outs, used as condition precedent, is passed. In the Shell (2007) and Converium (2010) cases the Court of Appeal accepted jurisdiction and competence to declare international collective settlements binding. According to the Court of Appeal the binding effect of the ruling in collective claims proceedings should be given effect outside the Dutch borders. In the Converium case, the Court of Appeal deemed itself authorized toe hear an application to declare a settlement binding, even though the subject of dispute which had led to the settlement had very little connection to the Dutch jurisdiction. The matter dealt with 12,000 non-us damaged parties, of which 200 were domiciled in or resident of the Netherlands. In legal literature it has been questioned whether or not there is a sufficiently close connection between the concerned claimants (the majority of which resides in Switzerland). However no interested party objected to the competence of the Court of Appeal which rendered its final court order. By accepting competence in 5

6 this matter it seems the Court of Appeal has positioned itself as a (or the most) important non-us forum for international settlements. It is not clear as to whether the courts decision to declare a settlement universally binding will be recognized in all foreign countries (specifically outside the EU). The collective claim procedure is another example of a tool for shareholders to safeguard their rights. Höcker Advocaten Van Eeghenstraat 98, 1071 GL Amsterdam, The Netherlands Tel: / Fax: / URL: http//: 6