The judge of the National Court José de la Mata admitted last Wednesday a complaint against Isidro Fainé, former president of Caixabank, Gonzalo Gortázar, current CEO, and against the entity itself as a legal entity, among others, for alleged corporate irregularities in the process Purchase of the Portuguese Investment Bank (BPI), which culminated in February 2017. The complaint was filed by two shareholders of Caixabank, who complained that the procedure of that OPA caused a breach to the entity of "hundreds of millions of euros" . The operation reported is linked to an internal transfer of shares between the CaixaBank itself and Criteria (its holding company of investments), which allegedly could have damaged the minority shareholders of CaixaBank.
CaixaBank, for its part, has defended the operations carried out to take control of the Portuguese bank, which were carried out "in strict compliance with the legal requirements" and submitted to the regulators. In statements to EFE, sources of the bank have insisted that all operations were carried out in compliance with legal requirements and that they were submitted "to the knowledge or authorization of the relevant regulators."
CaixaBank was made in 2017 with majority control of the actions of the Portuguese bank at the beginning of last year after a long and hard battle with the Angolan tycoon Isabel Dos Santos. Later he took control. However, the complaint focuses on an exchange of shares between Caixabank and its controlling shareholder, Criteria, prior to the purchase of the Portuguese bank. In this operation, in December 2015, Caixabank transmitted to Criteria 17.24% of the capital of Bank of East Asia (BEA), the largest independent private bank in Hong Kong and which formed part of its portfolio since 2009. In exchange, Criteria transfers its own shares to Caixabank for 9.9% of the entity's capital plus a cash payment that was set at 642 million. The swap was formally carried out on May 31, 2016, after obtaining the authorizations of the European Central Bank and the regulatory authorities of Hong Kong.
The contract established a fixed price in the value of the shares that were exchanged, that is, the possible increase in the value of the securities would not be included when the market was aware of the possibility of a takeover bid on the Bank of East Asia. The BEA, controlled at 40% by the Li family, Fainé and the Japanese bank Sumitomo, reported this circumstance to the Hong Kong regulator on January 19, 2016. However, Caixabank did not inform the Spanish National Securities Market Commission until the same May 31 when the swap was effective.
In this period the value of the shares of the Hong Kong bank held by CaixaBank grew by 320.3 million euros. And from this date until August 15, 2016, day of the maximum quote of the BEA, another 334.4 million. According to the complaint, when the swap occurred at the fixed price agreed in the swap agreement without incorporating these increases "Caixabank (and therefore its minority shareholders) suffered a loss of 654.7 million euros." To this amount it would be necessary to add, affirms the complaint, the patrimonial damage to Caixabank when being deprived of 17.24% of the shares of the Bank of East Asia.
"This could have happened," the judge said, "through the abuse of privileged information and dominant position as a controlling shareholder in which Criteria imposed the agreement of the Board of Directors at the General Shareholders' Meeting of Caixabank on April 28, 2016, denying the information requested from the minority shareholders and denying any modification of the valuation of the shares of the BEA. "
An operation to buy BPI
The ultimate purpose of the swap operation, according to the complaint, "was the participation of Caixabank in the acquisition of the Portuguese bank BPI". Caixabank financed the IPO over the BIS, valued at 645 million, with the sale of 9.9% of treasury shares it had received from Criteria in the swap. The complaint expresses that the sale of treasury stock represented a loss for Caixabank of 687 million, a difference between the income derived from the swap contract in December 2015 (2,009 million) and the income obtained from its placement in the market to finance the purchase of BPI. (1,322 million).
According to the complaint, the purchase transaction of the BPI meant an additional loss of 102 million euros for Caixabank for the granting of a loan of 400 million euros to the Development Bank of Angola, controlled by Isabel Dos Santos, daughter of the former president of the country. African, and who was, in addition, the second shareholder of Portuguese BPI. This operation, affirms the complaint, was aimed at obtaining the support of Dos Santos to eliminate the voting restrictions of the BIS and ensure the success of the acquisition.
The complaint accuses the directors and the entity of crimes of market abuse (privileged information), unfair administration and corporate crimes (both by falsifying annual accounts or documents that must reflect the legal and economic situation of the entity and by the imposition of abusive agreements in the Shareholders' Meeting). The legal action is also directed against the chairman of the Board of Directors of the Bank of East Asia (BEA) David K.P. Li, and the directors of Caixabank Alejandro García Bragado Dalmau, Óscar Calderón Oya, Antonio Massanell Lavilla, Juan Antonio Álvarez García and Gonzalo Gortázar Rotaeche.
In the case of the legal entities Criteria Caixa SA and Caixabank SA, the court order requires them to appoint a representative, lawyer and solicitor. The magistrate, who recalls that the admission to processing of the complaint, "does not constitute, still and in any case, an act of formal imputation", requests the entity, if it understands that "in its right is appropriate", that it remits all the documentation on that operation.
This is the second time that the Audiencia Nacional has opened an investigation to CaixaBank for an operation. The judge of the National Court Ismael Moreno cited in May as investigated – as a legal entity – the entity for allegedly helping various mafia organizations of Chinese origin to launder 99.1 million between 2011 and 2015. The judge considered that 10 branches, located in the vicinity of the Cobo Calleja polygon, in Fuenlabrada (Madrid) and in the capital, they participated in the laundering of illicit profits, and they did so "with the knowledge and collaboration of the entity responsible for regulatory compliance".