Leading Decisions
Since its formation in 1998, ROTTER RECHTSANWÄLTE could bring about many leading decisions of the Federal Court of Justice and the European Court of Justice, thus contributing significantly to the further development of investment laws. A selection of the most important leading decisions brought about by our law firm:
Leading decision of the Federal Court of Justice on admissibility of a lawyer's circular letter to limited partners:
In this leading decision issued 13 November 2013, the Federal Court of Justice confirmed our legal opinion and ruled that our circular letter to limited partners was admissible and did not violate the prohibition of advertising in this individual case. In the headnote of this judgment, the Federal Court of Justice states: a lawyer does not mandatorily violate the prohibition of advertising (§ 43b of the Federal Lawyers' Code [BRAO]) when he writes to potential clients of whom he knows that they concretely need advice (in this case: claim of an investment company against the limited partner for repayment of dividends) and offers his services. There is no violation if the addressee is neither annoyed, nor forced, nor taken by surprise by this letter and if he is in a situation in which he must rely on advice and such advertising meets his needs (Federal Court of Justice, judgment issued 1 March 2001 - I ZR 300/98, BGHZ 147, 71, 80 – Anwaltswerbung II (advertising by lawyers); Federal Court of Justice, judgment issued 15 March 2001 - I ZR 337/98, WRP 2002, 71, 74 – Anwaltsrundschreiben (lawyers' circular letter)).
Leading decision of the Federal Court of Justice on the costs and fees to be borne by a model claimant:
In this decision issued 22 October 2013 (II ZB 7/09), the Federal Court of Justice ruled in favour of the model claimant represented by ROTTER RECHTSANWÄLTE that a claimant in model proceedings under the Investor Model Proceedings Act must pay the statutory fees only on the basis of the value in dispute claimed by him in the first instance and not on the basis of the overall value in dispute, i.e. the sum of all individual claims. By this decision, the Federal Court of Justice makes sure that model proceedings can be carried out at reasonable cost, in the interest of all investors involved.
Leading decision of the Federal Court of Justice on the circumstances in which a shift of CEO is an insider information and must be disclosed:
In this decision issued 23 April 2013 (II ZB 7/09), the Federal Court of Justice ruled in favour of the model claimant represented by ROTTER RECHTSANWÄLTE that, if an event like bringing about a supervisory board resolution on the shift of the chairman of the management board stretches over time, each intermediary step, i.e. for instance the acting chairman of the management board informing the chairman of the supervisory board about his intent to retire before expiry of his term of office, can already be considered an insider information. Furthermore, the Federal Court of Justice made clear in this decision that disclosure of such insider information does not necessarily require a predominant or high probability that the underlying event actually occurs, but rather that, following the rules of general experience, occurrence of this event is just more probable than the opposite.
Leading decision of the European Court of Justice on the conditions to be met by an information to be considered an insider information that must be disclosed ad-hoc:
In its judgment issued 28 June 2012 (C 19/11), the ECJ ruled in favour of the investors represented by ROTTER RECHTSANWÄLTE that, if occurrence of a certain event or materializing of a certain circumstance stretches over time, not only this precise event or circumstance can be an information within the meaning of the applicable provisions, but also the intermediate steps leading to such event or circumstance.
Leading decision of the Federal Court of Justice on whether and to which extent a Higher Regional Court is bound to observe the decision of a Regional Court in model proceedings under the Investor Model Proceedings Act:
In this decision issued 26 July 2011 (II ZB 11/10), setting aside a decision of the Higher Regional Court of Munich, the Federal Court of Justice ruled in favour of the plaintiff represented by ROTTER RECHTSANWÄLTE that a Higher Regional Court is also bound to the judgment of a Regional Court – the Regional Court of Munich in this case – if such judgment, despite mistakes and omissions, is an appropriate basis for conducting model proceedings. In the opinion of the Federal Court of Justice, such mistakes and omissions can be eliminated in the interest of the investors during the model proceedings and therefore do not entitle the Higher Regional Court to set aside the judgment and refer the case back to the Regional Court.
Leading decision of the Federal Court of Justice on the duty to ad-hoc disclosure of insider information and submission of two questions to the European Court of Justice:
In this decision issued 22 November 2010 (II ZB 7/09), the Federal Court of Justice ruled in favour of the model claimant represented by ROTTER RECHTSANWÄLTE that, in the light of the "Spector" decision of the European Court of Justice (ref. C-45/08), the Federal Court of Justice has doubts about whether, in order to trigger a duty of ad-hoc disclosure, sufficient probability that an event occurs or a circumstance materializes means predominant probability, and submits two legal issues to the European Court of Justice for decision.
Leading decision of the Federal Constitutional Court on the issue of the conditions required for injured investors to be granted inspection of the public prosecutor's investigation records:
In this decision issued 20 May 2008 (2 BvR 1043/08), the Federal Constitutional Court rejected a constitutional complaint of a tip-giver convicted for market rigging against a decision of the Regional Court of Berlin granting inspection of the records. The Federal Constitutional Court, in this decision in favour of the investors represented by ROTTER RECHTSANWÄLTE, ruled that investors entitled to damages based on market rigging are injured persons within the meaning of the Criminal Procedure Code and therefore inspection of the records must be granted. Thus, the Federal Constitutional Court expressly opted in favour of the "wide" definition of injured persons and clearly dismissed the often advocated legal opinion that investors "only" entitled to damages are not injured persons within the meaning of the Criminal Procedure Code.
Leading decision of the Federal Court of Justice on the admissibility of model proceedings also in actions with a joinder of parties:
In this decision issued on 21 April 2008 (II ZB 6/07), the Federal Court of Justice decided in favour of investors represented by ROTTER RECHTSANWÄLTE that a joinder of ten parties may also bring an action under the Investor Model Proceedings Act and therefore need not bring ten individual actions.
Leading decision of the Federal Court of Justice on the issue of whether circumstances relating to the future can be insider information and when a disputed fact can be considered as being admitted:
In its decision issued on 25 February 2008 (II ZB 9/07), the Federal Court of Justice has ruled in favour of the model claimant represented by ROTTER RECHTSANWÄLTE that also circumstances relating to the future, such as plans, projects and intents of a person can be an insider information subject to disclosure if the facts to which they relate, though not having finally materialized, are nevertheless sufficiently clear within the meaning of § 13 paragraph 1 phrase 3 of the German Securities Trade Act ("WpHG"), and their materialization is sufficiently probable. Furthermore, the Federal Court of Justice ruled that the criterion of sufficient probability within the meaning of WpHG is met when the probability of such circumstances to materialize is more than 50%, i.e. is "predominant" over the opposite case. Finally, in this decision in favour of the model claimant, the Federal Court of Justice ruled that the judge may only consider disputed facts as admitted if the party concerned has unambiguously given up its intent to deny them. In cases of doubt, the court must bring about a clear statement of the party concerned.
Leading decision of the Federal Court of Justice on the liability of a board member (Vorstand) for incorrect ad-hoc releases:
This ruling of the Federal Court of Justice issued 19 July 2004 (II ZR 402/02), for the first time in Germany, recognized that the director of a stock company is liable for wilful issuance of incorrect ad-hoc releases.