Adele Ferguson (The Australian) and Stephen Mayne (Crikey) both suggested that the Coles board may face an ASIC probe or shareholder class action over its incorrect forecasts last November.

There is no doubt that the Coles board was wildly optimistic with its forecasts, but that is the nature of forecasts – they can, and often will, be wrong.

To suggest that the Coles board should be found liable for misleading the market would be the corporate law equivalent of tall-poppy syndrome gone wild. The likelihood of ASIC even coming close to nailing the Coles board under section 1041E of the Corporations Act is so remote it is not worth wasting newsprint reporting.

Proving false or misleading conduct isn’t easy, the law required that the person making the comment not only make a false or misleading comment, but also know it was false at the time (or not care whether the statement is true to false).

Coles may have got its forecasts wrong, but so do hundreds of other companies, many in a far more egregious manner, without so much as a wink from ASIC.

Way back in November 2000, the then Infosentials chairman, Ian Ferries, claimed that the publicly listed company had “enough cash to run through the next couple of months and into the next year until some…big deals [come through]” and that it was set to post a “two million dollar profit”. Infosentials was placed in receivership 24 days later.

Similarly, in 1999 former Solution 6 chief and convicted felon, Chris Tyler, announced that Solution 6 shares would hit $100 (Solution 6 was acquired by MYOB three years later for around 55 cents).

Last year, numerous large, respectable companies including Downer EDI, Multiplex, Pacifica and DCA Group all issued shock profit figures which contradicted previous guidance without being investigated by ASIC.

Similarly, the likelihood of a class action has, being generous, virtually no chance of success. If anything, in a perverse way, Coles’s overly optimistic forecasts and subsequent poor performance will almost certainly result in shareholders receiving more than they would have under KKR’s last offer.

Importantly, as Coles’s share price remains above KKR’s offer, any Coles shareholder can sell their holding today and still be better off than they would have been had KKRs offer been accepted.

It is likely that if Coles is sold off piece by piece, shareholders will receive somewhere in the vicinity of $15.50 to $17.00 per share. As any plaintiff lawyer will know, you can’t receive compensatory damages when there is nothing to compensate for.

While John Fletcher’s reign has been far from glorious, the recent criticism of him has been a little over the top. It should be remembered that when Fletcher became CEO in 2001 the Coles Myer share price was around $7.50.

Since then, it has increased to $15.70 per share and has paid out around $1.90 worth of dividends for a return of more than 135%.

Sure Woolworths has performed better, but many have performed far worse.

Peter Fray

Get your first 12 weeks of Crikey for $12.

Without subscribers, Crikey can’t do what it does. Fortunately, our support base is growing.

Every day, Crikey aims to bring new and challenging insights into politics, business, national affairs, media and society. We lift up the rocks that other news media largely ignore. Without your support, more of those rocks – and the secrets beneath them — will remain lodged in the dirt.

Join today and get your first 12 weeks of Crikey for just $12.


Peter Fray
Editor-in-chief of Crikey