6 Dec 2008
Dennis Eng and Albert Wong
A US class-action lawsuit by local investors in soured minibonds is expected to start by the end of next month, paving the way for a protracted legal battle that could drag on for two years, a spokesman for the investors said.
“We really don’t want to do this but we have no other option. We’re not going to give up,” Peter Chan Kwong-yue, chairman of investor action group Alliance of Lehman Brothers Victims, said. Investors bought minibonds, issued or guaranteed by Lehman Brothers, from one or more of 16 local banks.
The move is seen as a last-ditch effort by angry investors to recover almost HK$13 billion from the bankrupt Wall Street giant after a proposed buy-back of the minibonds suffered a setback. Secretary for Financial
Services and the Treasury Chan Ka-keung said a legal challenge by lawyers representing Lehman’s liquidators would inevitably delay the buy-back timetable.
Details of the buy-back were supposed to be announced last week. “I think what the liquidators were doing was to ask the trustee to stop any actions regarding the collaterals,” he said, referring to the minibonds’ underlying assets.
Minibonds consist of high-risk, credit-linked derivatives that are marketed as a proxy investment in well-known companies.
“This, of course, will throw some challenges into the process of the buy-back, and the banks have to address these before they can proceed.”
Hong Kong Association of Banks chairman He Guangbei said the priority now was to try to clarify the legality of the buy-back and resolve the legal challenge. The buy-back was conceived under British law but the trustee, HSBC Bank USA, was incorporated under United States law, complicating the matter.
“There is a conflict in legal opinion from the US and UK,” Mr He said. “ According to UK law, there’s certainly a priority in terms of payments but there is this challenge from the US bankruptcy law. Which one is going to stand is very hard to say.”
The government said it had considered the legal risks when it proposed the buy-back to banks in October. It said the taskforce formed by the banks on the issue had clearly stated it was seeking legal advice and “we hope [it] will continue to follow up with the trustees of the Lehman minibonds in taking necessary actions to get back the market value of the minibonds”.
The class-action lawsuit will automatically cover the roughly 33,000 Lehman minibond investors in Hong Kong although they can opt out. US lawyers contacted Peter Chan as well as the Democratic Party about the possibility of a US class-action lawsuit. An agreement is still pending.
Peter Chan declined to identify the US lawyers but said they were involved in helping investors affected by the collapse of energy trader Enron in late 2001. Law firm Coughlin Stoia Geller Rudman & Robbins helped Enron investors settle for US$ 7.2 billion and negotiated a record US$688 million in fees.
The prospect of a drawn-out lawsuit is increasingly likely after banking sector legislator David Li Kwokpo, the chairman of Bank of East Asia, said lawyers advised against the buyback.
But Democratic Party legislator James To Kun-sun said he hoped the government would not give up on the buy-back proposal.
Since October 17, the Hong Kong Monetary Authority has referred 207 Lehman-related cases to the Securities and Futures Commission.
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