Following a recent decision by a Dutch court, aggrieved Fortis shareholders are entitled to damages under Dutch law.
Stichting Fortis Effect, which represents some Fortis shareholders who suffered damages following the nationalisation of the former Dutch bank in September 2008, won its appeal against Ageas (formerly Fortis), but lost against the Dutch State. Ageas and Fortis Effect are both starting a cassation procedure at the Dutch Supreme Court (Hoge Raad). Foreign shareholders can still join class actions in the Netherlands.
At a first trial, the request for compensation by shareholders, following the acquisition by the Dutch state of certain Fortis assets at a low price, had been rejected. Since then new proofs were brought forward by the Dutch shareholders association (VEB, sole member of BETTER FINANCE to litigate against Fortis) of the fact that Fortis misled and poorly informed investors as well as the fact that the bank could have been saved through other, less damaging means. The court has decided that six of the shareholders are therefore entitled to damages. In case this decision and the ruling on damages are extended to all former Fortis investors, the amount could run into hundreds of millions of euros.
Whereas the ruling regarding the Fortis Effect case only concerns misleading information put out by Fortis between 29 September and 1 October 2008, the VEB is litigating against Fortis on a much broader basis. Already in 2011, the VEB took action on behalf of Fortis shareholders against eight former executives, Fortis itself and the lead banks for repeatedly providing shareholders with misleading and incomplete information between August 2007 and October 2008.This case is still pending. This unlawful treatment of shareholders resulted in an estimated loss of in between 13 and 17 billion euro. The VEB expects a court decision in 2015.
At this stage foreign investors can still join the VEB in their undertakings with regards to the Fortis case. However, it is important to keep in mind that under international law, restrictions apply to the carrying out of multiple legal proceedings against the same entity (and based on the same facts) simultaneously in different jurisdictions. If a foreign investor already applied to join a judicial procedure elsewhere in Europe, it would be advisable to verify whether that procedure does not preclude participation in other legal proceedings in the Netherlands.
Stichting Fortis Effect, on the other hand, now seeks to recover more money by involving the responsibility of the Dutch authorities, because only Fortis was condemned and not the Dutch state, whereas the state is also considered by Fortis Effect to have misled investors.
Please find more information on VEB website here and on L’Echo's article here.