Claim and injunction for unsolicited contact to shareholders

Date 25 aug. 2008

In a principled decision of 9 October 2009, the Danish Financial Supervisory Authority (the “Danish FSA”) decided to express criticism of a Danish bank (“the Bank”) for unsolicited approach of the Bank’s shareholders in connection with an offer to buy put forward by a bank and mortgage credit institution (the “Institution”). At the same time, the Danish FSA ordered the Bank to immediately stop making unsolicited contact to shareholders and customers who had not consented hereto.

 

The case in brief

On 15 September 2008, the Institution put forward a voluntary offer to purchase all outstanding shares of the Bank for a purchase price of DKK 1.8 billion. The takeover bid was recommended by the management of the Bank with reference to the offer price of DKK 105 per share which, at the time when the takeover bid was put forward, was much higher than the price of DKK 58.5, at which the share had closed at the previous trading day.

 

On 2 October 2008, the Danish FSA’s attention was drawn to the fact that the Bank had systematically made inquiries by phone to the shareholders of the Bank with the intention of making the shareholders accept the offer. In a specific case, the shareholder called the Bank upon request from a message left on the shareholder’s answering machine.

 

Applicable rules on unsolicited contact and best practices

Pursuant to Section 6 of the Danish Act on Consumer Contracts, an issuer may not, without prior request, contact a consumer, neither personally nor by phone, at his or her address, work place or any other place to which there is not usual access in order to, immediately or later, obtain an offer or an accept of an offer on conclusion of an agreement.

 

The provision of Section 6 of Danish Act on Consumer Contracts is supplemented by Section 3 of the Danish Executive Order on Best Practises for Financial Undertakings according to which a financial undertaking must act honestly and loyally towards its customers.

 

 

The decision of the Danish FSA

The Danish FSA concluded that the applied form of unsolicited contact to the shareholders was in conflict with Section 6 of the Danish Act on Consumer Contracts.

 

In this respect, the Danish FSA stated that regardless of the fact that a shareholder upon request returned a call from the Bank, the first call from the Bank resembled an unsolicited contact. It was, thus, of no relevance to the decision of the Danish FSA that the Bank was, incidentally, not able to reach the relevant shareholder in connection with the first phone call.

 

 

Based on these considerations, the Danish FSA concluded that the Bank’s behaviour constituted a violation of Section 3 of the Danish Executive Order on Best Practices for Financial Undertakings.

With the decision in the case, the Danish FSA has determined that no unsolicited approach of or contact to the consumer may take place in connection with information on a takeover bid. Such approach may only take place in cases where the consumer in question has specifically given his or her prior written consent hereto.

 

The above does not constitute legal counselling, and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.