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​APG wins first appraisal-of-share-value lawsuit against Safeway

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APG Asset Management, the €424bn asset manager for the Dutch civil service scheme ABP, has won an extra $33m (€29.3m) from the sale of its shares in Safeway after a US court ruled that the original share price agreed for the company’s takeover should be increased.

Last January, the Safeway grocery chain was sold to Albertsons, a rival supermarket operator owned by private equity firm Cerberus Capital Management, for $9.2bn.

Investors were to be paid $32.50 in cash per share, plus a share of proceeds from the sale of ancillary businesses such as joint ventures.

The total received by investors to date has been $34.92 per share.

However, five institutional investors – including APG and hedge fund companies Merion Capital and Magnetar Capital, which between them owned over 6% of the Safeway shares – launched an appraisal lawsuit challenging the price.

The Delaware Court of Chancery has now ordered Safeway to pay $44 per share to the investors who called for an appraisal.

For APG, this represents a total uplift of $33m on the original $92.8m cash proceeds of its 2.8m shareholding, which had made up around 1.3% of the total Safeway stock.

Merion and Magentar have also accepted the settlement, while the other two litigants are continuing legal action, according to press reports.

The number of appraisal cases in the US has surged in recent months.

Hedge funds in particular often employ the tactic of purchasing shares just before a takeover, opposing the bid, then suing for a bigger payout.

APG says it is the first time it has taken part in an appraisal suit.

Harmen Geers, spokesman at APG, told IPE: “This ruling is significant for us in the sense that appraisals were little used until recently.

“But we intend to make use of it whenever we think it can help us to make sure our pension funds and their participants receive every euro to which they are entitled.

“The fact that in the first instance we have taken this route it has led to a very significant extra payout only emboldens us.”

When asked whether there would be a growing trend for European pension funds to file lawsuits for appraisal of share values, Geers said: “It would only be logical for other European pension funds to take an interest in this specific course of legal action.”

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