Australian firm to take S&P derivatives fight to Europe
By Amy Coopes, AFP
November 8, 2012, 12:10 am TWN
SYDNEY -- An Australian firm that won a landmark case against Standard & Poor's over financial products that collapsed ahead of the global economic crisis said Wednesday it would take its fight to Europe.
IMF Australia, a listed company that funds large legal claims, won a world-first lawsuit against the ratings agency this week on behalf of 13 towns that lost US$16.5 million on AAA-rated synthetic derivatives called CPDOs.
The Federal Court of Australia ruled that S&P's assessment of the "grotesquely complicated" CPDOs, or constant proportion debt obligation notes, as "extremely strong" had been "misleading and deceptive."
It was the first time a ratings agency has stood trial over complex debt derivatives, whose collapse was seen as a major cause of the 2008 global meltdown, and IMF Australia has described the ruling as a key precedent for future actions.
IMF Australia executive director John Walker said Wednesday he would travel to Europe at the weekend to meet investors from Germany, Austria and the Netherlands, and either France or Britain to discuss a similar CPDO lawsuit.
Walker said such a case would be run in the Netherlands on behalf of investors in Europe, where he estimated that CPDO notes worth up to two billion euros were issued in the three years before the crash.
"The laws of most (advanced) countries are similar insofar as they affect the creation and dissemination of financial products," Walker told AFP.
"All of those jurisdictions have a concept of a duty of care and similarly a concept of misrepresentation, and those two laws were basically the laws that addressed the issues in Australia."
Walker said IMF had been advised that "similar findings will occur in the Netherlands" as in the Australian case if the same facts were to be established — something he said he was "confident" would happen.
Evidence tendered in the Australian trial could be used in a European court, added Walker, giving IMF a "powerful dossier of information to put before the Dutch judiciary including emails between S&P employees debating the ratings process for ABN."
The so-called "Rembrandt" CPDOs were known as Castle Finance or Chess notes in Europe, and Walker said IMF was exploring legal claims in Europe against S&P and the Royal Bank of Scotland (RBS), which took over the Dutch bank, ABN AMRO, that issued the products.
"IMF has retained lawyers to investigate launching similar claims in Europe against S&P and RBS on behalf of major European banks and pension funds if there is sufficient demand to make proceedings commercially viable," Walker said.
"IMF is currently determining which institutions in Europe have valid claims; that is, where the rating was a material factor in the decision to invest."
The Federal Court of Australia ruled that S&P could only have rated the CPDO AAA on the basis "of an unreasonable combination of unreasonably optimistic inputs but not otherwise" and had failed to act with reasonable care.
S&P has rejected the decision and plans to appeal.