Dutch Funds Sue Shell in U.S. Court

The case reflects an increasing trend among European investors to use American law to recover damages, according to the lead plaintiffs' lawyer.

In the 1620s, Dutch settlers erected trading posts in and around Newark, New Jersey, to stake a business claim in the New World. Last week, still with an eye toward trading issues, Netherlanders landed in Newark once again. Only this time, they took their concerns to the U.S. District Court of New Jersey.

On January 6, a group of 25 Dutch institutional investors filed a securities fraud suit in the Newark court against Royal Dutch Shell plc, its subsidiary Shell Transport and Trading Co., the company’s current chief executive Jeroen van der Veer, and three former executives — including one-time group CFO Judith Boynton. The suit charges that Shell executives knowingly inflated oil and gas reserves, thereby spawning significant investor losses.

Shell is listed on the London Stock Exchange and the Euronext Exchange in Amsterdam as well as the New York Stock Exchange. But the case was probably brought in the United States because American courts have a reputation of being “shareholder friendly,” says lead plaintiffs’ attorney Jay Eisenhofer, a managing partner at Grant and Eisenhofer.

In other words, the well-developed body of U.S. securities law concerning shareholder suits brings more certainty to a plaintiff’s case. In Europe, only a handful of shareholder lawsuits are brought before civil courts, the attorney adds.

The investor group includes most Dutch workers that hold pensions, according to Eisenhofer. It is led by Stichting Pensioenfonds ABP, one of the world’s biggest pension funds (with $230 billion under management). ABP alone represents 2.5 million government and education employees and 35 percent of total Dutch pension fund assets.

The other funds in the group supply pensions to a broad cross-section of industries, such as farming, retail, metal working, and financial services. Other funds represent engineers, health-care workers, casino dealers, and hairdressers.

Beside the sheer number of pension funds involved, the case is significant because its was brought by foreign investors in an American court, reflecting “increasing activism among European investors to seek recovery under U.S. law,” according to Eisenhofer.

The complaint alleges that between 1997 and 2003, Shell executives knowingly overstated the company’s oil and natural gas reserves by an aggregate 33 percent (about 6 billion “barrels of oil equivalent,” the standard metric used to express reserves). The pension funds also charge that the oil company inflated its reserve replacement ratio (RRR) — a key performance indicator in the oil business — and overstated future cash flows by a total of $100 billion over six years.

The suit also alleges that Shell didn’t disclose the overstatements until 2004, by which time investors had bought shares at “artificially inflated prices.” The pension funds — which represent as much as 5 percent of Shell’s total shares — collectively bought more than 200 million shares of Shell ordinary stock between April 8, 1999, and February 3, 2005. They assert that they “suffered extensive losses when the stock tumbled following the disclosures,” according to court documents.

For example, following a January 9, 2004, restatement that dropped proved reserve totals by 20 percent, Shell and Shell Transport stock lost a total of $16 billion of market value as a result of the disclosure, according to the complaint.

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