The SPCG Law Firm represented MetLife Open Pension Fund (OFE) as one of five defendants in a dispute regarding the failure to announce a call for subscriptions for the sale of shares in connection with the alleged conclusion by the shareholders an agreement regarding the consistent voting at the general meeting and conducting a persistent policy towards the public company.
The basis of the complaint was art. 73 par. 2 and art. 87 par. 1 p. 5 of the Act of July 29, 2005 on Public Offering, Conditions Governing the Introduction of Financial Instruments to Organized Trading, and Public Companies. These provisions require shareholders who have agreed to vote in a consistent manner at the general meeting and to conduct a persistent policy towards the company and as a result exceeding 33% of the total number of votes, announcing a call for subscriptions for the sale of shares or conversion of shares in that company to achieve 66% of the total number of votes or disposal of shares in the number causing the achievement of no more than 33% of the total number of votes.
The plaintiff in this case was one of the company’s shareholders, who argued that due to the lack of announcement of the call for subscriptions for the sale of shares by the members of the alleged agreement, suffered damage, which is the difference between the price for which he sold shares and the price that would result from a call for subscriptions for the sale of shares.
The plaintiff’s claims were considered unjustified and unfounded by the Regional Court in Warsaw, while the claim was dismissed in its entirety. The same position was taken by the Court of Appeals in Warsaw, which then dismissed the shareholder’s appeal confirming that there was no agreement between the shareholders regarding the consistent vote at the general meeting and the conduct of a persistent policy towards the company. The Court of Appeal also made a theoretical analysis in which it confirmed that even if hypothetically accept the existence of an agreement – which was not the case – ad hoc agreements do not fall within the scope of the normalization of art. 87 par. 1 p. 5 of the Act on Public Offering.