• GE Courts Federal Court ruled again on takeover of Postbank by Deutsche bank.
• The plaintiffs in both cases held shares in Deutsche Postbank AG (Postbank).
• Case re takeover bid pursuant to S29(1) Securities Acquisition, Takeover Act (WpÜG).
• Federal Court of Justice Second Civil Chamber responsible for company law, parts of capital market law, overturned appeal rulings, referred cases back to Court of Appeal.

Overview

• After providing background of case release states plaintiffs believe Deutsche Bank AG should have published mandatory offer at price of €57.25 per share based on original contract as this contract led to defendant acquiring control pursuant to S29(2) WpÜG.
• In proceedings II ZR 9/21, the district court dismissed the action; the Higher Regional Court dismissed the plaintiff's appeal.
• On appeal by plaintiff, Federal Court of Justice overturned judgment of Higher Regional Court and referred matter back to the Higher Regional Court for new hearing, decision.
• The Higher Regional Court took evidence and again rejected the plaintiff's appeal.
• In proceedings II ZR 14/21, plaintiffs were initially largely successful with their claims.
• On appeal by the defendants, the Higher Regional Court dismissed the claims.
• With their appeals approved by court of appeal, the plaintiffs are pursuing their claim.

Decision of Federal Court of Justice

• Federal Court of Justice Second Civil Chamber responsible for company law, parts of capital market law, overturned appeal rulings, referred cases back to Court of Appeal.
• Plaintiffs may be entitled to further payment if defendant had already been obliged to make mandatory offer to Deutsche Postbank shareholders pursuant to S35 (2) WpÜG.
• That, based on agreements concluded between Sep. 2008 and Feb. 2009; it depends on whether defendant exceeded threshold of 30% of voting rights in Postbank due to attribution of voting rights from shares held by Deutsche Post AG per S30 WpÜG.
• Assessment on which appeal judgments are based, that prerequisites for attribution of voting rights are not met, does not stand up to legal scrutiny in some respects.
• Court of Appeal erred in law in assuming that requirements for attribution are not met because dividend opportunity from shares in question remained with Deutsche Post.
• The necessary overall consideration from an economic point of view does not speak against transfer of dividend opportunity to defendant but in favor of it.
• Decision of Court of Appeal in proceedings II ZR 14/21 does not turn out to be correct in part either, because the claims of some plaintiffs are statute-barred.
• Asserted claim is subject to regular limitation period of 3 years per §195, §199 BGB.
• However, due to legal uncertainties about existence of a claim, it was not reasonable for plaintiffs concerned to bring action before the Federal Court of Justice.