Several purported shareholder class action lawsuits have been filed against ACE and certain of its present and former executive officers in the United States District Courts for the Southern District of New York and the Eastern District of Pennsylvania. These lawsuits are related to certain of the practices being investigated by the AG Investigations.
The first complaint filed charges defendants with violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. More specifically, the complaint alleges that the Company failed to disclose and misrepresented the following material adverse facts which were known to defendants or recklessly disregarded by them: (1) that the Company was paying illegal and concealed "contingent commissions" pursuant to illegal "contingent commission agreements"; (2) that by concealing these "contingent commissions" and such "contingent commission agreements" the defendants violated applicable principles of fiduciary law, subjecting the Company to enormous fines and penalties totaling potentially tens, if not hundreds, of millions of dollars; (3) that defendants had concealed the fact that ACE had engaged in illegal transactions; and (4) that as a result, the Company's prior reported revenue and income was grossly overstated
The complaint further alleges that on October 14, 2004, CBS MarketWatch issued an article entitled "Spitzer attacks insurance industry; NY Attorney General sues Marsh over commissions." The article stated in part: "In his latest move in a high profile campaign against corporate wrongdoing, Eliot Spitzer charged several of the nation's largest insurance companies and the largest broker with bid rigging and pay- offs that the New York Attorney General says violate fraud and competition laws." Additionally, "Spitzer unveiled a lawsuit Thursday against the world's largest insurance broker Marsh a& McLennan for a common industry practice known as "contingent commissions." Insurance companies pay contingent commissions to reward brokers for sending business their way. Critics claim the payments encourage brokers to sell policies from those insurance companies offering the highest commissions, rather than the ones most suited to their customers." Also on October 14, 2004, ACE issued the following statement: "The Attorney General of the State of New York filed a civil lawsuit today against Marsh & McLennan Companies, Inc. and Marsh Inc. This is an outgrowth of the Attorney General's investigation into broker compensation practices. Although ACE is not named as a defendant, ACE and several other insurers are referenced in the complaint. We have been cooperating with the Attorney General's office since earlier this year in this matter, and we intend to continue to cooperate fully with the investigation."
On these revelations, the Company's shares fell $3.84 per share, or 9.53 percent, to close at $36.47 per share on October 14, 2004 on unusually high trading volume. On October 15, 2004, CBS MarketWatch issued an article entitled: "ACE Manager Pleads Guilty in Probe." The article stated in part: "Patricia Abrams, an assistant vice president in the excess casualty division of ACE, pleaded guilty to charges that she was involved in bid rigging, according to Brad Maione, a spokesman for Spitzer." Additionally, "[f]rom September 2002 to September 2004, Gregory Doherty and others at Marsh periodically instructed Abrams and others at ACE to submit quotes for insurance coverage that were higher and less competitive than those of incumbent carriers, said Maione, citing the Spitzer's complaint against Abrams." Following this revelation, shares of ACE fell another 4 percent, or $1.49 per share, to close at $34.98 per share on October 15, 2004.
As summarized by the Company’s FORM 10-Q For the Quarterly Period Ended March 31, 2009, ACE was named in four putative securities class action suits following the filing of a civil suit against Marsh by the NYAG on October 14, 2004. The suits were consolidated by the JPML in the Eastern District of Pennsylvania and the Court appointed Sheet Metal Workers’ National Pension Fund and Alaska Ironworkers Pension Trust as lead plaintiffs. Lead plaintiffs filed a consolidated amended complaint on September 30, 2005, naming ACE and certain individuals as defendants. Plaintiffs allege that ACE’s public statements and securities filings should have revealed that insurers, including certain ACE entities, and brokers allegedly conspired to increase premiums and allocate customers through the use of “B” quotes and contingent commissions and that ACE’s revenues and earnings were inflated by these practices. Plaintiffs assert claims solely under Section 10(b) of the Securities Exchange Act of 1934 (the Exchange Act), Rule 10(b)-5 promulgated thereunder, and Section 20(a) of the Securities Act (control person liability). In 2005, ACE and the individual defendants filed a motion to dismiss. The Court heard oral argument on November 10, 2008, but did not rule on the motion. On December 16, 2008, the parties entered into a Stipulation of Settlement. If the Court approves the settlement and certifies a settlement class, ACE will pay the plaintiffs $1.95 million in exchange for a full release of all claims. The Court has preliminarily approved the settlement and set a final approval hearing for June 9, 2009.
On June 10, 2009, the Court entered the Order signed by the Honorable Timothy J. Savage approving the settlement. Judge Savage also dismissed with prejudice all actions part of the MDL action.