On 9 November 2018, against all expectations, the Court of Milan dismissed the claims brought against Saipem by Deminor clients. The court was of the opinion that the custodian bank statements produced by the plaintiffs did not constitute sufficient evidence of their purchases of Saipem shares for which they were claiming damages. According to the court, the investors should have produced the holding certificates that are required under Italian law to be admitted to shareholder meetings of Italian listed companies.
Deminor is convinced that the court’s decision is wrong, because it is based on an incorrect assessment of the difference between a claim for damages against a listed company following a misrepresentation (which is the case brought by the plaintiffs before the Court of Milan) and the exercise of shareholder rights by a shareholder, either at the shareholder meeting or in a derivative action.
The decision is unprecedented and departs from existing case law (including other cases involving Deminor clients). If this decision were to become the new standard in Italy, it would become extremely difficult, if not impossible, for investors to seek damages against an Italian listed company in cases of misrepresentation.
Supported in our analysis by two law professors, one contesting the judgment from a civil procedure point of view and the other from a capital markets point of view, Deminor advised its clients to appeal against the judgement of first instance. On 31 December 2018, the appeal was filed, and the first hearing will take place on 22 May 2019.
Merits of the case
Saipem has been sanctioned by Consob and the Milan public prosecutor has sued Saipem before the criminal court for the same facts on which our clients’ damages claims are based. Saipem has lost all challenges against Consob’s decision, including a challenge that reached the highest civil court (Corte di Cassazione). In its judgment the Court of Milan did not make any decision on liability/damages. Therefore, we believe the merits of the case and prospects for recovery remain intact.
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Written on February 8, 2019 by
Deminor Recovery Services – Country Manager Italy. Responsible for promoting and managing Italian cases in the three core business area of Deminor Recovery Services: Investment Recovery, Antitrust Damages and Commercial Litigation