D&O liability still the dominant issue
The central themes when it comes to advice on corporate disputes have remained the same for some years now: D&O liability remains an overarching topic in the market, especially as it is so closely related to governance and compliance advice, and litigation experience is also called for. But new elements are also emerging, for instance in cases where regulatory law or antitrust plays a role. Complex damages claims currently arising from the rail and auto supply cartels show the direction the market is heading, and are steering companies’ sights towards the potential infringements by their managers, with one example being the ThyssenKrupp suit against a former executive before the Labor Court (Arbeitsgericht). Similarly complex cases with an insolvency background have been on the increase for a while, as insolvency administrators are pulling out all the stops to increase the insolvency assets.
Tönnies, Suhrkamp, Media-Saturn – strife among family companies
The number of high-profile shareholder disputes, such as that at Tönnies, is still going strong – stakeholders’ readiness to take legal action continues unabated. This is also evident in long-running disputes like the wrangling over the Media-Saturn Group. The number of legal challenges against resolutions regarding the appointment of supervisory boards and auditors is much lower than in previous years, while shareholder disputes are getting increasingly complex and keeping advisors busy for the long haul.
Large outfits shaping the market
It is the large firms with pronounced corporate practices that are continuing to dominate this market. They provide a broad spectrum of advice and all have many years of experience advising company directors or litigating following structural resolutions on squeeze-outs or control agreements. Freshfields Bruckhaus Deringer, Hengeler Mueller, Gleiss Lutz and Linklaters traditionally lead this field, although the latter two practices displayed slightly less dynamism. At the same time, firms opting for broader, nationwide corporate advice while also boasting an established litigation practice are enjoying more and more access to such instructions. Among these are Noerr and Hogan Lovells.
Such firms are also the advisors who operate more flexibly on the side of a variety of clients and, in addition to busy activity for entrepreneurs, also represent company directors and D&O insurers. In shareholder disputes like the tug of war over trade corporate Metro, firms such as CMS Hasche Sigle are well positioned.
This chapter deals with disputes between companies on the one hand and on the other with investors, companies and individuals as shareholders that go before the courts, for example in challenges against board resolutions.
This chapter also concerns disputes between shareholders and cases involving company directors. Cases concerning D&O insurance litigation or post-M&A disputes are dealt with in the previous subchapter on ?commercial litigation and liability, since the legal basis is different. Other firms with litigation experience can be found in the ?corporate chapter.