Difficulties in fruit sector 'well known'

A financial markets consultant has told the High Court that information available to DCC chief executive Jim Flavin prior to the controversial €106 million sale of the DCC stake in Fyffes in early 2000 would not have materially affected the price of the shares had it been generally available at that time.

Frank O'Brien said he had examined the information available to Mr Flavin, which Fyffes alleges to be "price sensitive". That information was contained in the Fyffes management accounts for November 1999 and the fruit distributor's trading report for December 1999, both of which were made available to Mr Flavin in January 2000.

He had concluded, based on his examination of those documents and of other material from generally available sources, that the difficulties of the international fruit sector in late 1999 and early 2000 were well known and that their implications for Fyffes's trading and profitability were generally available.

Information that banana trading was difficult in this period and that the implications for Fyffes's profits were poor was generally available, he had concluded.

He had also concluded that the stock market in this period was in the grip of "a mania" (in relation to dotcom stocks) that ignored investment fundamentals.

Mr O'Brien, called as a witness for DCC, was beginning his evidence on the 75th day of proceedings by Fyffes alleging insider dealing in connection with the €106 million sale of the DCC stake in Fyffes on three dates in February 2000.

The action is against DCC, Mr Flavin and two DCC subsidiaries - S&L Investments and Lotus Green.

The defendants deny the claims and plead the share sales were properly organised by Lotus Green, a Dutch-registered subsidiary to which beneficial ownership of the Fyffes shareholding was transferred by DCC and S&L in 1995 in order to avoid the payment of capital gains tax on any subsequent sale of the shareholding.

The hearing resumed yesterday after a two-week adjournment necessitated by Ms Justice Mary Laffoy being on circuit in Limerick. Evidence in the case is expected to conclude on Friday.

Yesterday, Mr O'Brien told Michael Cush SC, for DCC, that he had some 40 years' experience of investment markets and had prepared, at the request of solicitors for DCC, an expert report relating to the claims by Fyffes in this case.

A former senior investment analyst and senior fund manager with Irish Life, Mr O'Brien said that he later set up his own business and was an executive director of Investment Faculty Ireland Ltd and Frank O'Brien Investment Strategies Ltd.

He had examined the international produce sector in 1999- 2000 and noted that, in the second quarter of 1999, stockbroking analysts began to reverse their earlier optimism about the trading background for the major players in the banana trade in 1999.

He had compiled a selection of analysts' comments through to December 1999, which showed that the weakness in banana pricing persisted to the end of that year.

The impact on company profitability of persistently weak banana prices was exacerbated by the strength of the dollar against the euro at the time and prompted a progression of downgrades by stockbroking analysts of estimated earnings per share.

He concluded that the trading background for banana and fruit producers in 1999/2000 was difficult and that banana prices were particularly weak in Europe.

The severe decline in the share prices of the banana companies during 1999 indicated the investment community was well aware of the developing background, he found.

Cross-examined by Paul Sreenan SC, for Fyffes, Mr O'Brien agreed the information available to Mr Flavin was internal company information, which sort of information was never available to the market. He agreed the market would attach more importance to information coming from a company than from analysts.

He agreed the figures for a company's monthly budget were an important piece of information, showing management's thinking about what was likely to happen. He also agreed that such information was highly confidential and that specific figures were never given to analysts except when results were announced.

He agreed the alleged price-sensitive information contained bad news in relation to Fyffes's performance for the first quarter of the fiscal year 2000, beginning November 1999. However, he disagreed there was no indication from the information as to how the losses were to be made up in the remaining quarters of the year.

He said this was a big business which was known to be volatile and the first quarter was always awful. He had no reason to believe the substance of the business was damaged in any way.

He said analysts knew of information about weak banana prices in 1999 and, subject to company guidance, would have taken that into account in their forecasts for Fyffes's performance. He was aware analysts had commented on the difference between Fyffes and its US banana competitors and agreed it was clear the market regarded Fyffes as a different type of creature in terms of investment potential.

However, this did not exempt Fyffes from the effect of lower banana prices in Europe, he added.

He agreed Fyffes's share performance remained essentially flat during 1999. It began at €2.03 in January 1999 and ended at €1.99 in December 1999.

He agreed that the core banana business was a profitable business at the end of 1999 and said there was no expectation that this would change.

He agreed no analyst had forecast that Fyffes would make losses at any stage in the financial year 2000. He said ABN Amro had spelled out as much as it could that the first half was in difficulty. He believed there was a signal to look for poor numbers in the first half of the year. He agreed it was the only analyst saying that.

Mr Sreenan suggested that the internet bubble did not burst in March 2000, when Fyffes issued a profit warning, and that by May 2000 companies were generally very positive about information technology and involvement in the IT business. Mr O'Brien said he was not sure about that. While they might have been confident and hopeful about prospects for the actual internet operation, the market's view had changed on those companies.

Mr O'Brien said there was a sharp reaction initially but it then went on and on and it was 2003 when the internet bubble finally stopped.

He agreed that, at the time of the Fyffes profit warning, the market knew the Nasdaq index of dotcom stocks had come off its peak but did not know whether it was pausing for breath or whether it was beginning to continue downward.

In a financial article he wrote in April 2000, he had written it had peaked. He agreed with the judge there was "lots of hindsight" involved, which made her task very difficult. He believed enthusiasm was beginning to wane in March 2000.

The hearing continues today.