On 30 March 2011, the Utrecht District Court delivered its decision in yet another case relating to the acquisition of food retailer Super de Boer by its rival Jumbo in 2009. The Dutch Association of Shareholders (Vereniging van Effectenbezitters) had initiated legal proceedings against Super de Boer, arguing that the company had not immediately published any price-sensitive information about the takeover bid.
Jumbo had initiated takeover negotiations with Super de Boer's management on 4 September 2009, after reaching an agreement in principle with Super de Boer's largest shareholder, Casino. In view of these negotiations, it was decided by Super de Boer not to immediately disclose the (price-sensitive) information to the public. Notwithstanding an increase in the trading volume of its shares after 4 September 2009, the takeover negotiations were not disclosed to the public until 18 September 2009.
Pursuant to Section 5:25i sub 3 of the Financial Markets Supervision Act such a delay in making available price-sensitive information to the public only applies if (among other conditions) the listed company can guarantee the confidentiality of the information. As such, the obligation to immediately disclose price-sensitive information comes back into effect if the confidentiality of the information (despite any measures taken) is no longer assured.
The extraordinary trading volume of Super de Boer shares in combination with the price-sensitive information made it, in the opinion of the Court, sufficiently likely that the confidentiality of the price-sensitive information was in fact no longer assured. As such, Super de Boer acted wrongfully against its shareholders by not immediately disclosing the price-sensitive information and is therefore liable for any damage suffered.
