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In M&A Disputes

Germany: Regional Court Düsseldorf on fraudulent misrepresentation in case of an inflation of the EBITDA

by and 7 Mins Read

In Germany, arbitral tribunals decide most disputes arising from M&A transactions. Parties often are concerned that German state courts are not experienced and therefore in no good position to decide complex and high-value M&A disputes. Parties favor arbitration because it allows them to choose arbitrators who have either experience in negotiating complex transactional agreements or in handling M&A disputes. The downside of this preference for arbitration over litigation is that not much case law is…

In Competition Litigation

General terms no major obstacle for private enforcement

by and 6 Mins Read

A recent judgment by the German Federal Court of Justice paves the way for forum shopping in abuse of dominance cases[1]. Following the European Court of Justice’s Wikingerhof decision, the Federal Court of Justice has clarified that tort jurisdiction may apply even if the conduct in dispute is covered by contractual provisions. In addition, the Federal Court of Justice has confirmed the restrictive interpretation of generic choice-of-forum clauses of the sort that is often found…

In Auditors' Liability

The impact of the FISG for auditors in Germany

by and 6 Mins Read

Introduction A lot has been said and written about the Wirecard scandal in Germany. Books and scholarly articles have been published, movies about the case are blockbusters in theatres. Therefore, just briefly here: Wirecard was the poster child start-up company in Germany, active as an (online) payment service provider. The German federal government lobbied for Wirecard with its international counterparts. In summer 2019, Wirecard publically announced that an amount of approx. EUR 2 billion on its…

In Competition Litigation

Whose claim is it anyway? – New German case law on claims vehicles

by 6 Mins Read

A few weeks ago, the Regional Court of Hanover dismissed a cartel damage lawsuit by a claims vehicle for lack of legal standing[1]. The judgment deserves scrutiny, as it confirms a trend among German courts to dismiss bundled claims on this basis[2]. 1. The incentive for bundling claims German law knows no class actions, and no specific means of collective redress that would provide cartel victims with payment titles. Therefore, cartel victims sometimes bundle their…

In Auditors' Liability

Draft law provides for drastic increase of auditors’ liability in Germany

by and 6 Mins Read

In October 2020, the German Government announced an action plan to improve the work of auditors in Germany (see https://bakermckenzie-globallitigationews-wordpress.onistaged.com/2020/10/21/unlimited-liability-for-auditors-in-germany/). This action plan resulted from the Wirecard scandal, one of the biggest financial scandals Germany has ever seen. Among others, the auditors of Wirecard had failed to uncover the massive financial fraud scheme that the top managers of Wirecard had created. An investigation committee of the German Parliament is still trying to get to the…

In Data & Technology Disputes

Germany: Another Million Euro Fine under the GDPR in Germany – What does it tell us?

by , , , and 4 Mins Read

The Hamburg Commissioner for Data Protection and Freedom of Information (“Hamburg DPA”) imposed a 35.5 million Euro fine on a global fashion company’s subsidiary in Germany for violations of the GDPR. This million Euro fine is the highest fine known in Germany so far. It follows: the 14.5 million Euro fine imposed in October 2019 by the Berlin Commissioner for Data Protection and Freedom of Information (“Berlin DPA”) against a real estate company for violating…

In Auditors' Liability

Unlimited Liability for Auditors in Germany?

by 4 Mins Read

In June 2020, the Wirecard-scandal hit the financial markets. The German financial service provider Wirecard AG (“Wirecard”), a DAX 30 company, filed for insolvency after revelations that an amount of EUR 1.9 billion was missing from its books and the auditors had refused to certify Wirecard’s balance sheet. The company’s stock fell more than 70 % in only two days. In the future, books and movies will certainly exploit this scandal: a crime thriller including fake banks on…

In Competition Litigation

Home sweet home? National jurisdiction for cartel damages claim proceedings in the EU – Episode 3

by and 5 Mins Read

On 29 July 2019, the Court of Justice of the European Union (“CJEU”) confirmed in Tibor-Trans/DAF Trucks (C-451/18) [1] that indirect customers can claim damages for damage suffered from cartel-related excessive pricing. However, claimants can sue infringers only in EU Member States within the geographic market affected by the anti-competitive conduct. For establishing jurisdiction, it is no longer relevant where the claimant suffered the damage. Is this the end of the “home-field advantage” for damaged…

In Europe

Damages for breach of jurisdiction agreements under German Law

by and 7 Mins Read

Internationally working litigators and arbitration lawyers experience the following situation again and again: A US client believes that it might have a million dollar claim against a German contractual partner. The contractual partner refuses to pay. The US client therefore wants to enforce the claim in court, preferably at its “home courts”. The client has the greatest confidence in its home courts and the organizational effort is low. An action before the foreign court of…

In Europe

Service abroad: Higher Regional Court of Frankfurt dismisses claim as statute-barred because plaintiff did not provide translation of statement of claim

by and 5 Mins Read

In a recent judgment of May 8, 2019 (Case No. 13 U 210/17, BeckRS 2019, 12531) based on Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the “Regulation”), the Higher Regional Court of Frankfurt (the “Court”) held that if a plaintiff opts for a translation of the statement of claim (although such translation is not required under the Regulation), plaintiff is responsible…