Piper Alderman Partner, Amanda Banton, and her team represented the NSW councils in this win. The action was funded by IMF (Australia) Ltd.
Piper Alderman and IMF’s joint Media Release is below.
Global fallout likely after Federal Court makes a world-first finding against rating agency S&P over toxic financial products
Global fallout likely after Federal Court makes a world-first finding against rating agency S&P over toxic financial products
Sydney, 5 November 2012 – In a world-first Court ruling against a ratings agency in relation to complex financial products widely cited as a cause of the global financial crisis, the Federal Court of Australia today found against Standard & Poor's (S&P), investment bank ABN AMRO and investment manager for local government authorities, Local Government Financial Services (LGFS), in a claim over investments sold to NSW councils prior to the GFC.
In a decision that is likely to have global implications, and be felt hardest in Europe and the US where similar products were sold to banks and pension funds, the Federal Court ruled in favour of 12 NSW local councils who lost millions on the failed investments in the aftermath of the GFC.
The ruling means the councils will recover about $30 million in losses following failed investments in complex synthetic derivatives known as constant proportion debt obligations, or CPDOs, that were arranged by ABN AMRO, rated AAA by S&P and sold by LGFS in 2006.
Amanda Banton of Piper Alderman represented the 12 NSW councils (see full list of claimants below) and the action was funded by IMF (Australia) Ltd.
In her judgment, Justice Jayne Jagot said a reasonably competent ratings agency could not have rated the product AAA. She went on to say that the rating was misleading and deceptive and was a negligent misrepresentation to investors.
Her Honour stated that the description of the CPDOs as 'grotesquely complicated' was accurate. She found that S&P had been 'sandbagged' and ABN AMRO 'simply bulldozed the rating through' and ABN AMRO was knowingly concerned in S&P's misleading and deceptive conduct and also made negligent misrepresentations to LGFS and the Councils. IMF (Australia) Ltd Executive Director, John Walker, said the judgment not only benefited the councils but was also likely to pave the way for significant recoveries by investors in Europe from ABN AMRO (now a subsidiary of the Royal Bank of Scotland NV) and S&P. Around €2 billion in CPDOs are estimated to have been sold in Europe.
"ABN AMRO, in exercising real and substantial influence over S&P's rating process, misrepresented facts to S&P causing a AAA rating to be granted by S&P when the rating ought to have been more like junk," Mr Walker said.
"Today's Court ruling will enable the councils to recover a significant proportion of their losses that will now be available to provide services for their communities. It is welcome news and a relief for the tens of thousands of Australians who make up these local communities as they rely on the range of services provided by their local council," he said. Piper Alderman Partner, Amanda Banton, said: "This is a major blow to the ratings agencies, which for years have had the benefit of profiting from the assignment of these ratings without ever being accountable to investors for those opinions. Today's judgment will ultimately have the effect of ensuring ratings agencies are accountable and promoting transparency in the ratings process. No longer will rating agencies be able to hide behind disclaimers to absolve themselves from liability."
Mr Walker said the ruling was the first judgment in the world in the wake of the GFC examining the conduct of a ratings agency concerning the rating of CDOs or CPDOs. "We expect that investors, banks and regulatory authorities around the world will be examining this judgment carefully to determine the broader implications. IMF is exploring potential claims in the Netherlands in respect of issuances of CPDOs worth approximately €2 billion sold by ABN AMRO and rated by S&P in Europe," he said.
One successful council claimant was Parkes Shire Council, which stands to recover some of the significant losses incurred. Council's Director of Corporate Services Les Finn, said: "Council relied on the industry advisers LGFS to provide high level investment advice. LGFS held itself out to have the necessary expertise to advise councils about investments that complied with the ministerial investment order and which would not place the community's funds at risk. LGFS' marketing of the product relied heavily on the product's rating and created a misplaced confidence in these investments as they were rated AAA. The investments failed and council lost most of its investment. Today's judgment will go a long way towards reinstating some of those funds."
Another successful claimant, Ryde City Council, also stands to make significant recoveries. Ryde's Group Manager Corporate Services, Roy Newsome said: "Our decision on this investment was made only after we did the proper due diligence that included consideration that this investment was rated AAA, in addition to the advice from LGFS, which had a long history working with NSW local government authorities and which understood the general risk appetite of these authorities. The Court's ruling today vindicates our position and we are very pleased that our ratepayers' funds will be recovered."
Today's Federal Court ruling follows a ruling in September against Lehman Brothers Australia (now in liquidation) which found Lehman's breached its legal duties when it sold the toxic derivatives, known as collateralised debt obligations (CDOs), to a group of charities, councils and church groups who collectively lost around $250 million. This claim was also funded by IMF and run by Piper Alderman.
Media contacts: Adam Bell Sefiani Communications Group (for IMF (Australia) Ltd) abell@sefiani.com.au Ph: 02 8920 0700 Mob: 0448 302 533 Melissa Gunnsmith Piper Alderman Ph: 02 9253 3810 Mob: 0412 080 378 mgunnsmith@piperalderman.com.au
Key facts:
- The claims against S&P were for negligence and misleading and deceptive conduct, for its failure to exercise reasonable care in assigning the AAA rating.
- The claims against ABN AMRO were for negligence and misleading and deceptive conduct for its dissemination of the AAA rating and its involvement in S&P's breaches.
- The claims against LGFS were for breach of fiduciary duty, negligence, misleading and deceptive conduct, breach of contract and dealing outside its AFSL in recommending and selling the CPDO to the councils.
- Trial dates: The 13-week trial commenced in October 2011 and concluded in March 2012.
- Court's findings:
- The Court found that S&P was negligent as it owed a duty of care to investors, did not have reasonable grounds for assigning the AAA rating and could not rely on its disclaimers that the rating was merely opinion.
- S&P was found to have engaged in misleading conduct by publishing the rating without having reasonable grounds for that opinion.
- ABN AMRO was found to have been negligent and guilty of misleading conduct for passing on the unreliable rating and for its involvement in procuring the rating.
- LGFS was found to have breached the fiduciary duty it owed to the councils as it had a financial conflict of interest with its clients; and was found to be negligent for failing to adequately disclose the material risks of the product. - Total losses: $14.9 m (total for the twelve councils represented by Piper Alderman).
- Local Council claimants and their losses:
- Cooma Monaro Shire Council: $1.86 m;
- Corowa Shire Council: $933,225;
- Deniliquin Council: $466,613;
- Eurobodalla Shire Council: $466,612;
- Moree Plains Shire Council: $1.9 m;
- Murray Shire Council:$933,225;
- Narrandera Shire Council: $1.86 m;
- Narromine Shire Council: $466,612;
- Oberon Council: :$933,225;
- Orange City Council: $1.4 m;
- Parkes Shire Council: $2.8 m;
- City of Ryde: $933,225. - What it means in Australia: Ratings agencies are now directly liable to Australian investors for deficiencies in their ratings; investment banks are directly liable to investors for their involvement in structuring these products and procuring their ratings.
- What it means in the US: US rating agencies which rate products that are issued worldwide will be liable for ratings published and relied upon by investors outside the US. Significant impact on the "issuer-pays" ratings model in the US and around the world.
- What it means in Europe: S&P and The Royal Bank of Scotland N.V. are likely to be subject to further litigation in respect of €2 billion worth of CPDOs issued in Europe.
