The head magistrate of the 43rd Court of First Instance of Madrid has dismissed the lawsuits filed by the former executive president of Abengoa, Felipe Benjumea, and other shareholders of the company against Banco Santander and HSBC, from whom they demanded compensation of 1,000 million euros.
Benjumea, through Inversión Corporativa, together with Finarpisa and Ardachón, shareholders of the company, sued Banco Santander and HSBC for the capital increase of 650 million that Abengoa intended to undertake in September 2015 and that had to be guaranteed by the two benches.
Abengoa’s board of directors agreed to undertake a capital increase of 650 million euros on August 2, 2015 to reinforce the company’s liquidity, given the expected consequences of the economic crisis that in May of that year it was produced in Brazil.
Abengoa negotiated the assurance letter with Santander and HSBC in August and the first days of September, by which the entities would undertake to guarantee the expansion if its total amount was not placed on the market, and it was set on September 14 as the date to sign the letter.
On the same day of signing, Santander imposed as an “indispensable and inexcusable” condition for the successful completion of the operation that Benjumea leave his post, in order to improve the image of efficiency in the management of the company.
According to the sentence, these actions led Abengoa to bankruptcy law, when the idea that the company was managed irregularly was made public. The signing did not take place on the scheduled day, which caused Abengoa’s Class A shares to lose 15% of their value in the following week, delaying the holding of the meeting to October (which made forecasting impossible of “having the extension placed on October 1”), that the market lost confidence in the company and that several lines of liquidity were canceled.
The plaintiffs blame Santander and HSBC for the fact that Abengoa had liquidity needs of 1,000 million euros in November 2015, which would have determined that on the 25th of that month it entered the pre-tender process.
For this reason, they sued the two banks, demanding compensation of 1,000 million euros. For their part, Santander and HSBC claimed prescription of the action.
The statute of limitations for the action is fifteen years if it is a contractual action or one year if it is non-contractual. The judge says that “there was no contractual relationship between the plaintiffs and the defendant banks, nor negotiation, in order to sign a letter of assurance of the Abengoa capital increase, so there is no doubt about the non-contractual nature of the action exercised “.
Thus, the ruling includes that the limitation period is one year. As the events in which Benjumea and the rest of the shareholders support their claim took place on September 14, 2015 and the date of the first extrajudicial claim took place on March 23, 2018, the period of one year would have elapsed and the actions exercised, prescribed, which has determined that the Court has dismissed the claim and acquitted the banks, a resolution that is not yet final and can be appealed before the Provincial Court of Madrid.