In a judgment in 2002 in re: Macroton, the Federal Supreme Court (Bundesgerichtshof) had held that the delisting of shares in a German stock corporation (Aktiengesellschaft) did require shareholder approval in an AGM. In addition, it did trigger the duty of the corporation itself or its majority shareholders to make a mandatory offer to buy out the minority shareholders. In a judgment in October 2013 that was published today, the Federal Supreme Court revisited that issue. Reversing its previous case law, the court held that a change of market segment, in the case at hand leaving the Regulated Market of the Berlin Stock Exchange and moving the listing to the Entry Standard (Open Market) of the Frankfurt Stock Exchange did not give rise to a claim of minority shareholders to be bought out in cash (angemessene Barabfindung). Read More
Category: Securities Litigation
Bayern München, Borussia Dortmund and the Business Judgment Rule in a Transfer Window
What an approriate post in the run-up to tonight’s Champions League clashes between Arsenal/Dortmund and Chelsea/Schalke: If you were a supporter and/or shareholder (which may or may not be the same thing) of Borussia Dortmund, could you hold the club’s management responsible for not having transferred Robert Lewandowski to Bayern for a hefty fee this season, rather than letting him join the arch-rivals for free next summer? If you though that Bayern München spending EUR 37,000,000 to sign Mario Goetze was madness, would that argument have legs in a court room? Read More
Porsche Plaintiffs’ Tour de Germany: Last Exit Braunschweig?
The hedge funds seeking billions of Euros in damages from Porsche’s failed Volkswagen take-over still have not found a court willing to assume jurisdicton to hear their matter: Having started out in Stuttgart, or even in New York, they have been on a trip that looked as if it had ended in Hannover, when the Braunschweig District Court (Landgericht) transferred the matter to Hannover District Court on the basis that the plantiffs relied on competition law theories. Read More
Update: German Takeover Rules – Damages and the Failure to Make Mandatory Offer
Last week, I reported on the Federal Supreme Court’s judgment that denied claims of individual investors if a controlling shareholder fails to make a mandatory offer. Ulrich Wackerbarth, a corporate law professor and blogger* at the Corporate BLawG, has published a fundamental critique of the judgment: No rights of private action – basta! Read More