SRKW acted as co-lead counsel in Converium/SCOR, the first trans-Atlantic settlement of a U.S. securities class action. On January 17, 2012, the Amsterdam Court of Appeal declared binding the two non-U.S. settlement agreements in the litigation – for an aggregate recovery of $58,400,000. (The U.S. portion of the overall settlement totaled $84,600,000.) In doing so, the Dutch court confirmed as final the expansive view of its jurisdiction set forth in its first landmark ruling on November 12, 2010, where it had announced that it had jurisdiction to declare the international settlements of the Converium/SCOR action binding, even though the claims were not brought under Dutch law, the alleged wrongdoing took place outside the Netherlands, and none of the potentially liable parties and only a limited number of the potential claimants were domiciled in the Netherlands. That decision, which is now final, recognizes that all other European Union Member States, as well as Switzerland, Iceland and Norway, must recognize the Court of Appeal’s ruling, under the Brussels I Regulation and the Lugano Convention.
As a result of these two decisions by the Amsterdam Court of Appeal, the Netherlands has taken the most pragmatic approach within Europe to aid investors and other claimants. It means that parties can reach a settlement of an action based outside the Netherlands and then use the Dutch courts and the Dutch Act on the Collective Settlement of Mass Claims (the “Dutch Collective Settlement Act”) to make that settlement binding on an entire class on an “opt out” basis as occurs under U.S. class action procedures. The approach taken in the Netherlands is important for all investors. This was underscored by the U.S. Supreme Court’s 2010 decision in Morrison v. National Australia Bank, which restricted the rights of investors to bring claims before U.S. courts for shares not purchased on a U.S. exchange. Thus, when U.S. courts will not hear their claims, European (and American) investors will more readily look to resolve them in European courts. The Dutch Collective Settlement Act, and the Court of Appeal’s recent ruling in the Converium/SCOR case, will make it easier for them to do so.
Decision of Amsterdam Court of Appeal (informal translation) - dated January 17, 2012