Is the Centro action filed by ASIC yesterday really a test case? Surely there isn’t a director in the land who does not think he or she is responsible for what’s in the accounts. All directors that I know certainly act as if they are.
If James Hardie directors were held responsible for a press release they didn’t see, then how much more accountable are all directors for the balance sheet, P&L and directors’ report that they spend a week poring over before actually signing?
The idea that directors can sign off the accounts and then go “Oh whoops, sorry” if there’s a big mistake in them is plainly absurd, and no director really thinks that. Mind you, they will wriggle out of it if at all possible, so the Centro case will be hard fought and controversial.
In my view, the more important legal development on this subject this week was the ruling on Tuesday by the Federal Court that all shareholder class actions are managed investment schemes (MIS), and must be registered as such.
Having filed its long-awaited non-test case against the directors of Centro, ASIC should now quickly issue a blanket exemption for class actions against having to register as MISs.
On Tuesday the Federal Court, in a majority two-to-one judgment, ruled that all class actions were actually MISs and that the one against Multiplex — the subject of the case — was invalid because it hadn’t been registered with ASIC.
The case was on appeal by the defendant, Multiplex, after Mr Justice Finkelstein ruled against it. That means two Federal Court judges think class actions are MISs and two think they’re not; the majority ruling by the Full Court means, at this stage, that they are.
This is ridiculous, and can’t be allowed to stand. It would mean that only “sophisticated investors”, as defined by MIS regulations, would be able to bring class actions to recover their money because of the nuisance of registering an MIS, along with Product Disclosure Statement and the rest of it.
Unless ASIC exempts shareholder class actions then it will have to launch all proceedings against the directors.
There is already a class action against Centro directors over the same issue at the centre of ASIC’s claim — that directors mis-classified about $2.5 billion of debt as non-current in the 2007 accounts, when it was, in fact, current.
A cross-claim was filed by the company against its auditors, Pricewaterhouse Coopers, but so far no direct actions against the auditor. It’s expected they won’t be long arriving.
But perhaps the people most interested in the future of class action law are those running credit ratings agencies.
There is potentially a great dam of actions against ratings agencies that’s about to break, including in Australia. Moody’s, Standard & Poor’s and Fitch would like nothing better than for these to become managed investment schemes requiring a PDS and registration, although most of the claimants would probably by “sophisticated investors” (an ironic term, perhaps, in the case of those who bought CDOs).
Two claims against ratings agencies have been filed in the US over the ratings of structured investment vehicles such as CDOs — one by Abu Dhabi Commercial Bank and another by California Public Employees Retirement System (CalPERS).
It is likely that if either of those lawsuits succeed, then enough class actions will be filed against Moody’s, S&P and Fitch over their ratings of CDOs and other SIVs, to send them broke several times over.
It’s the last shoe of the global financial crisis to drop.