The United States District Court for the Southern District of New York found that it had subject matter jurisdiction over claims brought by German plaintiffs against Spanish defendants pursuant to Section 14 of the Securities Exchange Act of 1934 and denied a motion to dismiss them. Plaintiffs alleged that defendants’ purchase of 13% of a Spanish issuer’s stock from investors in the United States and elsewhere in the world constituted a “tender offer” under the United States’ securities laws and that defendants violated those laws by failing, among other things, to file the requisite schedule disclosing their tender offer.
The Court found that the conduct challenged did not constitute a “tender offer” under Spanish securities law. Nevertheless, after (i) finding, among other things, that the defendants worked directly and intensively with a U.S. investment bank, that a significant number of U.S. investors were involved in the stock purchase and that more than 10% of the issuer’s shares were allegedly held by U.S. investors, and (ii) applying the SEC’s 2000 amendments to Regulation 14D (which expressly concern cross-border tender offers), the Court held that it had subject matter jurisdiction over plaintiffs’ claims and that they could not be dismissed at the pleading stage. (E.ON AG v. Acciona, S.A., 2007 WL 62713 (S.D.N.Y. Jan. 9, 2007))