Professional plaintiff
A professional plaintiff (sometimes also called a predatory shareholder or multiple plaintiff) is someone who professionally represents the interests of shareholders or is himself a small shareholder and appears at general meetings of stock corporations with the aim of enforcing their own interests or those of third parties - in case of doubt in court. The forwarding company Klaus Zapf as well as Karl-Walter Freitag, Axel Sartingen and Caterina Steeg are known as German professional plaintiffs .
backgrounds
The profession of “professional plaintiff” is neither firmly defined nor clearly delineated. It has been empirically proven that since the beginning of the 21st century there has been an increasing number of recurring actions for rescission by individual persons or groups of persons, which often ended in judicial or extrajudicial settlements . In 1981, for example, there was only one shareholder action against the resolutions of a general meeting in Germany, whereby in 1999 there were 45. The Frankfurt Institute for Law and Finance came to the conclusion in a study that the number of complaints for defective resolutions increased 60-fold between 1980 and 2006. While the number of public companies increased significantly during this period, even if this effect is factored out, there were eight times as many lawsuits. While the term “professional plaintiff” usually has negative connotations in the public debate, a distinction must be made between “good” and “bad” professional plaintiffs, depending on the target direction of the actors involved. In 2012, the lawyer Theodor Baums evaluated 600 lawsuits against the resolutions of general meetings and came to the conclusion that half of these proceedings were initiated by 14 people. Overall, Baums put the number of "professional plaintiffs" in Germany at 49.
Changes to stock corporation law in 2005 and 2009 made their work considerably more difficult for small investors among the "professional plaintiffs". At the same time, however, the number of " activist shareholders " (mostly hedge funds ) who collect capital from investors in order to participate in public companies increased. The aim is to put the respective management under pressure and to increase the return, be it by breaking up the company or by massively increasing dividend distributions. The number of such "attacks" increased from 31 to 74 in Europe between 2010 and 2013, most of them in Great Britain . The German companies affected included thyssenkrupp , Uniper , STADA and OHB .
“Bad” professional plaintiffs
In the negative extreme, “professional plaintiffs” are used to refer to people whose primary goal is to bring about a legal challenge after an unsuccessful objection . This action for avoidance then represents a good negotiating position, the aim of which is the highest possible severance payment as a nuisance premium for withdrawing the action. Since important decisions, such as the merger of companies, squeeze-outs or z. For example, capital increases only become legally binding upon entry in the commercial register , but if this means that the resolutions have not been challenged, even shareholders with only one share can sustainably block the implementation of a company's resolutions by means of actions for rescission.
In accordance with this action, the professional plaintiffs or the shareholders behind the plaintiffs try to maximize their own profit. Since this often happens by blocking corporate decisions that are supported by the majority of the other shareholders, this practice is not in the interests of the company or the majority of shareholders and is therefore to be viewed as negative.
Even if the payments for settlements at first glance only look like reimbursements for legal fees incurred, they often turn out to be above average. Even if this can often not be proven, the assumption is often that the plaintiffs themselves receive a not insignificant part of the money paid.
"Good" professional plaintiffs
Viewed positively, professional plaintiffs can also be persons who simply represent the interests of shareholders and have the necessary knowledge to assess the legality of the interests and the procedure of the stock corporations. In this case, the "objective legal control" and not the lawsuit itself is in the foreground. Professional plaintiffs can thus be described as the extended arm of the shareholders who, in addition to the supervisory board and the auditors, controls the stock corporation and promotes lawful action.
Legal developments
In its key decision "Kochs Adler" from 1989, the 2nd Civil Senate of the Federal Court of Justice ruled that an action for annulment can be countered with the objection of abuse of rights according to § 242 BGB . The prerequisite is that the plaintiff files an action for avoidance with the aim of inducing the sued company in a grossly selfish manner to perform to which he is not entitled and which he cannot reasonably claim, whereby he generally wants to be guided by the idea that the sued company will provide the service because it hopes that the occurrence of contestation-related disadvantages and damage can thereby be avoided or at least kept to a minimum.
As early as 2005, the federal government tried to limit the abuse of the right to sue through the "Law on Corporate Integrity and Modernization of the Right to Avoid (UMAG)". However, this was only successful to a limited extent and did not significantly limit abuse.
In order to limit the abuse of legal rights by small shareholders , based on a Federal Council initiative , the German Bundestag passed the law to implement the Shareholder Rights Directive in May 2009 , whereby the legal proceedings were limited in the first and last instance to the respective higher regional court. In addition, the threshold from which small investors can sue has been increased to a nominal amount of EUR 1000 of the share capital, which means a multiple of the capital expenditure depending on the share price. Addresses abroad or delayed payment of court costs can no longer drag out proceedings, a practice that up until then was often used by "professional plaintiffs". As a result, it is still possible for small shareholders to initially block the implementation of the resolutions by suing individual decisions, but the threat potential of the plaintiffs resulting from the foreseeable duration of the proceedings has become significantly lower.
In July 2015, the Cologne Finance Court (Az .: 13 K 3023/13) ruled that "professional plaintiffs" had to pay income tax and value added tax on their "fees", which mostly stem from out-of-court settlements . It is expressly not a matter of tax-free compensation payments. The small shareholder concerned had with his GmbH u. a. blocked a capital increase . According to the judges, the payments made to him were due to the "considerable annoyance of the actions for annulment and annulment which delayed the urgently needed restructuring of the companies concerned".
Literature on the subject
Individual evidence
- ↑ Detlef Grumbach: How the Bundestag tries to put an end to "predatory shareholders"
- ↑ Nadine Oberhuber: Business model: lawsuit: predatory shareholders . In: FAZ.NET . April 30, 2012, ISSN 0174-4909 ( faz.net [accessed April 29, 2018]).
- ↑ Deutsches Aktieninstitut - Statement on the draft bill for the implementation of the Shareholder Rights Directive (PDF; 148 kB)
- ↑ Der Spiegel (49/2004): The power of the dwarfs
- ^ Advance against professional plaintiffs in stock corporation law proceedings - Federal Council resolves Baden-Württemberg's legislative initiative of March 14, 2008 [1], accessed on May 8, 2019
- ↑ At General Meetings, the professional plaintiffs propose to , the world of 13 April 2012 [2] Retrieved on May 8, 2019
- ↑ Bundestag brakes professional plaintiffs , FAZ from May 29, 2009 [3] accessed on May 8, 2019
- ↑ Attack of the Fund Warriors , Wirtschaftwoche of March 10, 2014 [4] accessed on May 8, 2019
- ↑ Activist shareholders: more active than ever , goingpublic.de, December 11, 2018 [5] accessed on May 8, 2019
- ↑ BGHZ 107, 296 = NJW 1989, 2689
- ↑ Legislative decision of the Bundestag: Law on corporate integrity and modernization of the right of avoidance ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ↑ Dr. Joachim Jahn - When legal action is used for blackmail (page 39) ( Memento from November 19, 2010 in the Internet Archive ) (PDF; 2.2 MB)
- ↑ Prosecution against professional plaintiffs in stock corporation law proceedings - Federal Council resolves legislative initiative
- ↑ Statement by the Federal Council on the Act to Implement the Shareholder Rights Directive (ARUG)
- ^ Finance court exposes “predatory shareholder” , FAZ from July 16, 2015 [6] accessed on May 8, 2019
