- Ageas, Deminor, Stichting FortisEffect, SICAF and VEB reach agreement aiming at settling all Fortis civil legacies
- March 14th, 2016
- Ageas Press Release March 2014 - Fine imposed on Fortis by AFM for disclosure in June 2008 is upheld
- March 4th, 2014
- Former Fortis Managers Charged With Misleading Investors
- March 4th, 2013
- Ageas Merger Press Release
- August 7th, 2012
- Dutch Writ with Translation (Filed July 7, 2011)
- July 7th, 2011
SICAF has reached an agreement with Ageas NV/SA ("Ageas") pursuant to which Ageas will pay an amount of €1.2 billion to eligible shareholders covered by the settlement. This is the largest settlement of investors' claims in Europe so far.
SICAF represents over 150 institutional investors from various parts of the world (US, Canada, UK, Continental Europe, Asia) on whose behalf two separate court actions were filed against Ageas and other defendants in Utrecht between 2011 and 2012 seeking damages on their investments in Fortis shares in the period from May 2007 to October 2008.
The active involvement of the litigating institutions in the Dutch court and the involvement of our Foundation in a leading role in the Dutch litigation since 2011 contributed significantly to this historic settlement. SICAF is proud to have played a prominent role in the negotiations and mediation process and appreciates the support from its board of directors as well as local counsel in this matter.
Our primary objective had always been the proper representation of the interests of the Foundation’s participants and active litigants and we appreciate their efforts and commitment to this cause. This will be reflected in the structure of the settlement which will reward investors who took active steps to making claims for damages against Fortis and which validates their decision to maximize recovery through active steps.
Both purchasers and holders of Fortis shares will be compensated under the settlement, albeit in a different way to be explained in detail as part of the submission of the petition to approve the settlement in court in May 2016. Eligibility to receive a compensation and the amount of such compensation will further depend on the periods of time during which each investor had purchased and/or held Fortis shares.
The settlement will be subject to the approval of a court in the Netherlands in accordance with the Dutch Act on Collective Settlements (Wet Collectieve Afwikkeling Massaschade). We strongly believe that this proposed settlement, once approved by the court, will provide all investors, including the SICAF participants and litigants, with a fair compensation. SICAF will provide further information as the approval process is going forward and as it becomes clearer when first payments are being made.
STICHTING INVESTOR CLAIMS AGAINST FORTIS (the “Foundation”) has been established as a foundation under Article 3:305a of the Dutch Civil Code (“DCC”) in an initiative of institutional investors seeking the recovery of losses suffered as a result of their investments in Qualifying Fortis Securities over the Relevant Period.
To download the Deed of Incorporation click here.
The Foundation currently has a Board of Directors composed of Prof. Paul Frentrop, Judge Karl Peter Puszkajler and Alexander Reus.
The Foundation's Purpose
The purpose of the Foundation is to protect the interests and rights of all investors in Qualifying Fortis Securities of Fortis SA/NV and/or Fortis N.V., now known as Ageas, (“Fortis” or “Ageas”), who have been misled by information published, or failed to be disclosed, by Fortis during the period from May 29, 2007 through October 14, 2008 (the "Relevant Period"). The Foundation seeks the implementation of any necessary corporate governance and management changes, the determination of liability of Fortis, its management, advisors and auditors, and the investigation and pursuit of sanctions against Fortis, its management, advisors and auditors by any official or regulatory body in the Netherlands, among them the AFM and the Enterprise Chamber in Amsterdam. The Foundation also supports the ultimate interest of its participants, and all relevant Fortis investors in general, to obtain compensation for losses sustained as a result of the false, misleading or missing information by Fortis and its demise in October 2008.
While all investors in Qualifying Forits Securities purchased in the Relevant Period are represented by the Foundation according to its articles, whether they are an active participant or not, the Foundation currently counts over 200 Active Participants which collectively purchased over 200 million shares of Fortis stock. Additional institutional investors or nominee shareholder/custodians are encouraged to join the Foundation, if they have purchased substantial amounts of active Qualifying Forits Securities (ISINs: US34956J3095, BE0003801181, NL0000300838, and US00844W1099) between May 29, 2007 and October 14, 2008 ("Relevant Period"); or (2) participated in the September 2007 Rights Issue; or, (3) participated in the June 2008 Accelerated Book-Building Offer (altogether as "Qualifying Forits Securities"). Please provide us with all transactions within the stated period as well as beginning and end holdings for hte mentioned security IDs.
To become an Active Participant click here.
In order to properly inform the Foundation’s participants, and other shareholders affected by Fortis’ improper communication and disclosures required under Dutch law, the Foundation will provide regular updates of its efforts and additional information on this website or via other means of communication. If there are any questions, please contact the Foundation’s Board of Directors here (firstname.lastname@example.org).
Fortis’ False and Misleading Statements
Throughout the Relevant Period, Fortis misrepresented the value of its collateralized debt obligations, the extent to which its assets were held as subprime-related mortgage backed securities, and the extent to which its ill-fated decision to acquire ABN Amro Holding NV (“ABN Amro”) had compromised Fortis’ solvency. As a result of these false and misleading misrepresentations, investors lost up to 90% of the value of their investments. In just one year, from the end of 2007 to the end of 2008, reported shareholder equity at Fortis fell from €33 billion to €6.8 billion.
There is evidence that executives at Fortis materially misled investors with numerous public disclosures that they made in connection with the September 2007 Rights Issue used to raise capital to fund the acquisition of ABN Amro. Various U.S. class actions commenced shortly after the demise of Fortis in October 2008, but they were dismissed in February 2010, so that the best, and maybe only, alternative for Fortis investors to obtain a finding of liability and potentially a settlement for compensation, is to pursue claims in the Netherlands. It is also the Netherlands where most, if not all, positive developments have happened since shareholders lost most of their equity in 2008.
In February 2010, an investigation by the Belgian regulator (the Banking, Finance and Insurance Commission, or “BFIC”) and by the Dutch Autoriteit Financiële Markten (the Authority for the Financial Markets, or “AFM”) culminated in a finding and imposition of fines on Fortis in the total amount of €576,000, citing various violations of the Dutch Securities Act (“DSA”). The AFM specifically concluded that Fortis made incorrect and misleading statements during the Relevant Period that investors could have (reasonably) relied upon in their trading.
Furthermore, a team of investigators was appointed by the Enterprise Chamber in Amsterdam to investigate the management at Fortis over the Relevant Period, in order to determine if there was “mismanagement” in the form of lack of institutional control at Fortis. This investigation took over one year, but concluded with the publication of a final report on June 16, 2010.
The report harshly criticizes Fortis for its failure to communicate its financial problems (including its sub-prime exposure and solvency and liquidity issues) to the market in a timely fashion. In particular, the report concludes that Fortis materially misled investors in connection with its subprime exposure, its liquidity and solvency, and the impact on Fortis of the takeover of ABN Amro.
The report specifically concludes on page 482 that “… In the opinion of the investigators, Fortis' actions in relation to its obligation to secure that the prospectus provides accurate information for potential investors, are, also in light of the arguments provided during the recent interviews, not (sufficiently) justifiable…” (“Naar de mening van onderzoekers is de handelswijze van Fortis met betrekking tot haar verplichting tot een correcte informatievoorziening in het prospectus ten behoeve van het beleggend publiek, ook meewegende de argumenten welke in het wederhoorproces naar voren zijn gebracht, niet (goed genoeg) verdedigbaar.”)
The report also states on page 623 that “… The investigators acknowledge that during the month of May 2008 a trend revealed itself in which Fortis kept making soothing statements towards the market regarding its solvency, while internal information in that respect was getting more and more critical…” (“Onderzoekers stellen vast dat zich in de maand mei 2008 een trend aftekent waar Fortis geruststellende uitspraken blijft doen aangaande solvabiliteit, terwijl interne informatie dienaangaande steeds nijpender werd.”)
On April 5, 2012, the Enterprise Court rendered a judgment approving and confirming the final report of the investigators, finding various acts of mismanagement by Fortis and nullifying the release of Fortis’ directors for the year 2007. While Fortis has appealed the decision of the Enterprise Chamber, the report itself and the factual findings thereof are very helpful for any civil claims for compensation. The Foundation sought and was admitted into the proceedings in front of the Enterprise Chamber as an “interested party” and as such substantially contributed to the final approval of the report by the Enterprise Chamber.
Finally, a court in Utrecht ruled on February 15, 2012, that Fortis’ ex-CEO Jean-Paul Votron and its ex-CFO Gilbert Mittler misled investors in 2008 by disseminating wrong information about Fortis solvency. Specifically, the court found that they, and Fortis bank itself, were liable to pay compensation to investors (see the court’s statement).
The Background of Fortis (now Ageas)
Prior to its collapse in 2008, Fortis was the largest financial services company in Belgium and the Netherlands. Based in Brussels, Fortis was dually-held by two parent companies operating as one: Fortis SA/NV in Belgium and Fortis N.V. in the Netherlands.
In March 2010, Fortis announced that the company name would be changed to “Ageas,” in order to represent the company’s identity transformation from a “bancassurer” to an international insurance company. The new name was approved by 97.14% of all shareholders in Brussels, Belgium and 99.63% in Utrecht, the Netherlands and it was announced that Ageas would be introduced gradually throughout 2010, with the completion of the rebranding scheduled by May 2011. Moreover, as of April 30, 2010, Ageas is now officially the name of the parent company and the name under which the stock trades on the Euronext. The ticker code has been changed from FOR(B) to AGS.
In 2012, Fortis announced that it would merge the Dutch company into the Belgian entity by exchanging Dutch shares for Belgian shares. As of August 7, 2012, the company has merged Ageas S.A./N.V. (Belgium) and Ageas N.V. (The Netherlands) Ageas N.V. and transferred all of its assets and liabilities to its Belgian arm, such that the Dutch entity ceased to exist and Fortis/Ageas is now solely a Belgian company (see Press Release). This merger does not have any impact on pending legal proceedings, including the ongoing Foundation action in the Netherlands. However, jurisdiction over claims against Fortis/Ageas in the Netherlands will be very difficult to establish from now on.
Ageas remains viable (and growing), with more than €2 billion of cash reserves and total assets of almost €100 billion. Therefore, Ageas should be financially capable of compensating its (past) shareholders in a judgment or settlement for the losses sustained by the shareholders as a result of the misinformation in the past.
The Actions by the Foundation
The Foundation supports the “Inquiry Procedure” that was conducted by the Enterprise Chamber, including the final report published on June 16, 2010 as well as the proceedings in front of the Enterprise Chamber, in which the VEB (Dutch Shareholder Association) is seeking a finding of mismanagement and the imposition of sanctions. The Foundation was admitted in the Enterprise Chamber proceedings as an “interested party” in 2011, and has contributed to the acceptance of the final report by attending various Enterprise Chamber proceedings. As a result, the findings in the report can be relied on by the Foundation in its pursuit of a declaratory judgment against Fortis.
While the Foundation cannot seek damages on behalf of its participants in general without any specific assignment of claim or instruction to pursue damage claims, it can seek a declaratory judgment. Any declaration of liability obtained will also work for the benefit of Foundation participants and investors covered by the Foundation articles. However, given the current corporate changes at Fortis/Ageas, the pursuit of individual damages actions in the Netherlands following a declaratory judgment is questionable due to jurisdictional challenges by Fortis/Ageas, now a Belgian company. Hence, the Foundation has now brought a damages action in Utrecht, based on certain assignments of claims, alongside a group of over 200 institutional investors seeking more than €1.5 bn in damages from Fortis, Merrill Lynch and various former Fortis directors or executives.