RBS faces £4bn investor fight
RBS investors are poised to file a £4bn lawsuit against the bank and former boss Fred Goodwin after securing insurance against losing the case.
The crucial step forward in their fight to claim the money could see Goodwin, former chairman Sir Tom McKillop and former investment banking chief Johnny Cameron in the dock early next year.
The RBS Shareholders Action Group has been trying to raise roughly £20m from litigation funds and insurance companies to place a bond with the court to cover RBS’ legal costs should the case fail.
And insurance industry figures told the Mail that the action group was now ‘ effectively oversubscribed’ after multiple firms came forward with offers to underwrite the lawsuit.
The collective of nearly 100 institutions and 12,000 individuals are now likely to file a writ before Christmas alleging that directors misled them into taking part in its £12bn rights issue in 2008.
Their lawyers are expected to argue information given to investors billed the cash call as a ‘capital strengthening exercise’ rather than an emergency cash call. Investors lost most of their money when the bank was bailed out by the government later in 2008.
They will say that RBS was already operating with a dangerously low cash buffer, to the extent that it was put on ‘capital watch’ by the Financial Services Authority. The bank should have admitted this to investors and offered them stock at a far lower price, the group’s lawyers will argue.
If directors were found to have misled investors they would be in breach of the Financial Services and Markets Act 2000.
Section 90 of the Act states a company is liable to pay compensation if investors lose money as a result of ‘any untrue or misleading statement’ or an ‘omission’ of information.
RBS believes it has ‘substantial and credible legal and factual defences to the remaining and prospective claims and will defend itself vigorously’.
But if the case comes to court, it could drive a wedge between the bank and the disgraced trio of Goodwin, McKillop and Cameron.
Law firm Herbert Smith is representing both the bank and the former directors for the time being. But Herbert Smith might seek to distance the company from the three men to avoid the bank taking a financial hit if the RBS Shareholders Action Group is successful.
The trio are thought to have been indemnified from such lawsuits, but this protection could be worthless if they are found to have breached their contracts.
If the suit is successful, it could expose Wall Street banks Goldman Sachs and Merrill Lynch – which underwrote the rights issue – to allegations that they did not scrutinise the offer properly. Shareholders have until the end of October to apply to join the lawsuit, after which time they will not be entitled to compensation if the case succeeds.
A spokesman for the RBS Shareholders Action Group said the deadline had been extended due to a late surge in applications to join.
He said: ‘In order to deal with this fresh demand, and thus in the interests of wanting to offer all shareholders who lost their money in the rights issue the chance to join our action and seek compensation, the group has decided to continue to accept new shareholders for one more month.’
Previous actions against RBS have failed. Last month a court threw out a claim from US holders of RBS preference shares who said the bank had not disclosed its exposure to toxic sub-prime mortgages and gave an inaccurate assessment of its ill-fated takeover of Dutch bank ABN-Amro.
The judge said the actions of directors had amounted to ‘nothing more than corporate optimism’.