ACTIONS CORNER

In the scandal surrounding Libor interest-rate manipulations the Deutsche Bank has come under the scrutiny of the Federal Financial Supervisory Authority (BaFin). The Authority is therefore doing a special audit at the bank. The biggest German bank officially points only to the fact that it is working together with the authorities because of questions about inter-bank interest rates between 2005 and 2011. In this context, Metzler Investment GmbH, a subsidiary of Metzler Bank, has together with other investors filed a lawsuit at a New York court. Metzler Bank and other investors have accused a total of 15 large banks of keeping the Libor rate artificially low during the 2007-2010 financial crisis.

Telegate has finally prevailed against Deutsche Telekom in two of its three actions for damages. The Federal Court of Justice dismissed the complaints of inadmissibility by Telekom against two judgments of the Düsseldorf Higher Regional Court (OLG), both companies announced on 19 July. Hence, the OLG judgment of 13 April 2011 is final. From the two actions brought by datagate GmbH and telegate MEDIA AG for damages for excessive data costs, claims arise for a total of around €47 million including process interest. This repayment amount will still be reduced by tax expenses and profit-related payments.

The European Court of Justice (ECJ) concluded in its judgment in the E.ON and Suez case against the EU Commission that the fines imposed three years ago for carving up the French and German gas markets were far too high. The sentences of €553 million each have accordingly been lowered to €320 million for the two utilities. Although the Court confirmed the decision in the main, it notes however that the assessment of the duration of the infringement on each of the markets by the Commission was in error. Between 1980 and 1998 absolutely no competition could have developed, because of regional monopolies.

The Bundesgerichtshof (BGH) on 10 July quashed last year’s judgments of the Frankfurt Higher Regional Court on the awarding of consulting assignments to supervisory-board members and the non-discharge of the top management of Fresenius SE at the 2009 AGM. The latter was decided to the detriment of Fresenius, said the BGH. In her appeal against the discharge decisions Gabriele Kröner had criticized conflicts of interest, because mandates were awarded to the Noerr law firm, where the then supervisory-board member Dieter Schenk is a Managing Partner. The appeals court must now retry the case.

In the dispute between METRO and Erich Kellerhals the Munich Higher Regional Court (OLG) declared on 21 June in its preliminary legal opinion that it did not have jurisdiction, and referred the two parties to an arbitration tribunal appointed by themselves. At the same time, the Court urged the Düsseldorf commercial group and the minority shareholder of Media-Saturn-Holding (MSH) to reach a compromise. Although the arbitration court had not yet arrived at a verdict on 24 July, it announced that it would by the beginning of August. On 9 August the OLG will also give its opinion. Kellerhals accused the METRO leadership on 23 July of incompetence and called for a trade man at the head of the retail group. He was especially unhappy with the financial expert Olaf Koch. It was not enough “just to go sending financial packages back and forth.” If the dispute could not be settled, one should perhaps think about new shareholders, Kellerhals continued. He and METRO have been arguing for some time now about the future course for MSH. The Düsseldorfers hold a 75 percent stake in Media-Saturn and want to overturn the founder’s veto. For this purpose METRO had against the will of the minority shareholders set up an advisory board as an additional decision-making body, which can take decisions by simple majority.

In the dispute over the temporary shutdown of its nuclear power plants Biblis A and B RWE has reached a stage victory. The energy group’s lawsuits from spring 2011 are according to the Hessian administrative court in Kassel admissible, contrary to an order of the Land Government. The action was not prima facie hopeless, said the presiding judge on 4 July. Following the nuclear disaster in Fukushima in March 2011 the Hessian Ministry for the Environment had ordered a three-month closure of the two nuclear units, after federal and state governments had agreed on such an approach.

On 20 June DuPont filed suit against SolarWorld before a U.S. District Court for the District of Oregon because of a patent lawsuit. Apparently, the U.S. subsidiary of the solar group had infringed a patent of the U.S. chemical company. It is alleged to have manufactured, sold and used a registered silver paste for solar cell production, announced DuPont in Portland. SolarWorld Industries America Inc. is a customer of Heraeus Materials Technology LLC, against which a September 2011 complaint by the Americans is still running. Heraeus had passed on the silver conductive paste to the German solar company’s U.S. subsidiary.

The Bundeskartellamt has slapped a fine of 103 million euros on ThyssenKrupp because the steel company has for years been involved in price fixing on the German rail market. The rail suppliers, among them also Vossloh and Voestalpine, had for many years assured each other of almost constant shares of the volume of orders from Deutsche Bahn, said Bundeskartellamt President Andreas Mundt. Overall, the antitrust authority imposed fines totalling €124.5 million on four manufacturers and suppliers of rails. The investigations are still not complete.