Among the reasons behind the recent calls for regulatory reform, including the Paulson Committee’s Interim Report (here), is the belief that foreign companies are declining to list their shares on U.S. exchanges because of the burdens of U.S class action securities litigation. While the U.S. propensity for litigation may be deter some foreign companies from listing in the U.S. now, it should also be noted that international investors increasingly are demanding management accountability, and increasingly are seeking redress in courts – both in the U.S. and in their own countries.
A December 5, 2006 Law.Com article entitled “A Wary Europe Moves a Step Closer to Class Actions” (here), examines the apparent trend for European countries to permit the consolidations of related claims in a single action. According to the article, England, Spain, Germany and the Netherlands have already adopted “some form of class litigation.” A draft bill is before the French legislature to permit collective consumer litigation (as previously discussed on the D & O Diary, here), and the Irish, Italian and Finnish governments are considering legislation to permit collective litigation by multiple parties. Norway and Denmark are also considering the adoption of an opt-in class action procedure.
The new German collective-action procedure is examined in a December 2, 2006 New York Times article entitled “Collective Shareholder Lawsuits Reach European Courts” (here). The Times article takes a look at the action now pending under the new procedure against DaimlerChrysler. Interestingly, the plaintiff shareholder group includes investors from the U.S. According to the article, other companies that have also been sued under the new procedure include Deutsche Telecom and the aircraft maker European Aeronautics Defense & Space.
While these new procedures permit collective action in a single lawsuit, the actions lack many of the attributes of U.S. style class action litigation. In most jurisdictions, pre-trial discovery is unavailable or severely limited; the loser pays both sides’ legal fees; and punitive damages are barred. As the Times article notes, a few cases “do not mean that the Continent is poised for a flood of litigation.”
On the other hand, these new procedures represent a growing legislative recognition that investors are entitled to judicial means to compel accountability from corporate management. As The D & O Diary noted (here), the U.K. recently adopted new legislation that expanded shareholders’ rights to pursue derivative lawsuits against corporate officials. And as the Times article noted, “the trend toward a greater number of collective lawsuits will not be reserved soon.” The article quotes a Dutch lawyer as saying “the laws are changing and so are the attitudes.” It might be more accurate to say that the changed laws reflect a changed attitude.
European investors are also showing an increased interest in becoming more involved in shareholder litigation in the U.S. As detailed in a December 4, 2006 post on the ISS Corporate Governance Blog entitled “Europeans Take a More Active Role in U.S. Cases” (here), European investors (particularly public pension funds) are seeking to serve as lead counsel in U.S. securities fraud class actions. Among other cases, European pension funds are serving as lead plaintiffs in the cases against Parmalat. European and other international investors are also leading U.S. based derivative litigation and are seeking U.S governance changes.
U.S. based plaintiffs’ lawyers understand their opportunity and have begun what plaintiffs’ lawyer Adam Savett at the Lies, Damned Lies blog has called an “arms race”(here) in their efforts to attract international institutional clients. Several U.S. plaintiffs’ firms have announced that they are opening European offices or forming partnerships with U.S. firms. The European institutions for their part are interested in assuring that they are maximizing their opportunity to protect their beneficiaries’ interests.
International investors clearly are becoming more accustomed to using the courts to compel accountability both in their own countries and in the U.S. These investors are already successfully compelling changes to their legal systems as they press for means to enforce accountability. As procedures evolve and as these investors become more reliant on their own courts to compel corporate accountability, the differences between the systems may diminish. That process already seems to be underway.
Rubles Without A Cause?: Among the primary concerns to which the Paulson Committee’s proposed reforms are addressed is the U.S. exchanges’ loss of global IPO market share, particularly to the London exchanges. As the Paulson Committee’s Interim Report notes, many of the foreign companies listing on the London exchanges are Russian. The Report acknowledges the possibility that many companies from Russia (and elsewhere) may represent “unacceptable risks,” but the Report makes no attempt to exclude “unacceptable risks” from their calculation of what U.S. exchanges have “lost.”
A December 5, 2006 Wall Street Journal article entitled “British Spy Probe Turns to �migr�s” (here, subscription required) sheds an interesting light on this issue. The article is accompanied by a chart showing how many Russian companies have listed their shares on the London Stock Exchange in recent years. Just the seven deals completed in 2006 alone total 15.23 billion pounds. The article’s details about the Russian �migr�s’ lifestyle are about equal parts amusing and appalling; the article’s details about some of the Russian companies whose shares trade in London are basically just appalling:
Earlier this year, in a huge offering, state-controlled Russian oil company OAO Rosneft listed its global depositary receipts on the London Stock Exchange. Underscoring the disputes from Russia that have spilled over into London, the stock offering came about only after lawyers from Russian oil company OAO Yukos failed to stop the listing after claiming that Rosneft’s assets came from the unlawful seizures and sales of Yukos.
Wall Street’s bankers may well lament the loss of underwriting fees for these kinds of deals to their counterparts in The City, but readers will decide for themselves how sorry we should be that the stringency of U.S. regulations discourages companies of this type from listing on U.S. exchanges. The D & O Diary wonders on what basis the “failure” of U.S. exchanges to “attract” offerings of this type could possibly justify diminishing regulatory rigor in the U.S. It seems to me that the quickest way to eliminate the valuation premium that foreign companies now enjoy by listing their shares on U.S. exchanges would be for the U.S. to lower its standards so that lower quality companies feel more comfortable listing on U.S. exchanges. (My prior post on the valuation premium may be found here. )
A December 6, 2006 Wall Street Journal article entitled “At Lukoil, an Executive’s Death Exposes Network of Inside Deals” (here, subscription required) provides a more detailed look inside another Russian company.
Backdating Up North Too, Eh?: According to a recent press report (here), Canadian companies may also have an options backdating problem. An academic study of options grants between June 2003 and October 2006 at 66 of Canada’s largest publicly traded companies found options grant patterns that “may be consistent with backdating” and also that many options grants are not being reported as quickly as required under Canadian law. The final version of the report is due later this month.