ADVANT's advisory services covered the German and Italian aspects of the cross-border transaction, which was primarily conducted in Germany and involved numerous other jurisdictions in the EU, as well as the USA, Central America, and Asia. ADVANT was retained on the recommendation of the US law firm Winston Taylor. Winston Taylor advised JLL Partners as lead counsel on the US legal aspects of the transaction.

JLL Partners is a US-based private equity firm headquartered in New York and invests in businesses in sectors including healthcare, business services, and industrials.

Life Couriers Group is an internationally operating specialist for time- and temperature-critical logistics solutions for the healthcare and life sciences industries, headquartered in Munich. The group is particularly active in the areas of radiopharmaceuticals, life sciences, stem cell transport, direct supply to patients, pharmaceutical and emergency logistics, and has an international presence in the USA, Europe, Central America and Asia.

With this acquisition, JLL Partners intends to support Life Couriers' next phase of growth. The focus will be on further international expansion and the development of its services for time-critical healthcare logistics.

Advisors to JLL Partners:

ADVANT Beiten: Christian von Wistinghausen, Tassilo Klesen (both lead counsel), Dominik Moser (all Corporate/M&A), Danah El Ismail (Corporate/M&A & Real Estate, all Berlin), Insa Müller-Trucksaess (Corporate/M&A, Munich), Lelu Li (Corporate/M&A, Beijing), Christoph Schmitt, Nadejda Kysel, Jessica Schneeberger, Juliane Schöttler (all Banking/Finance/Restructuring, Frankfurt), Virginia Mäurer, Mark Zimmer, Katharina Furtmayr (all Employment Law, Munich), Christian Döpke (IP, Digital & Data, Düsseldorf), Philipp Hohmann (Commercial, Düsseldorf), Oliver Korte (Commercial, Hamburg), Jochen Pörtge, Kristin Trittermann (both Compliance, Düsseldorf), Silke Dulle (Health Care, Berlin), Christoph Heinrich, Cathleen Laitenberger (both Antitrust), Katrin Lüdtke (Public Sector, all Munich), Markus Linnartz (Tax, Düsseldorf)

ADVANT Nctm: Michele Motta, Mario Giambò, Benedetta Ripa, Federico Cirillo (all Corporate/M&A, Milan)

Press contact
Frauke Reuther
Manager Kommunikation
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

ADVANT Beiten's interdisciplinary team supported Zoot throughout the entire acquisition process - from the legal and tax due diligence to the structuring and negotiation of the transaction agreements through to the successful closing.

Zoot Sports was founded in 1983 in Kona, Hawaii - the birthplace of the Iron Man triathlon. The company specializes in innovative clothing, shoes and equipment for triathletes and endurance athletes and is one of the world's leading brands in this segment. Zoot stands for technical precision, high quality and athlete orientation and sells its products in over 25 countries. Since 2023, Zoot has been part of the Italian MVC Group, an international sporting goods company based in Italy.

Tailwind Brands is a company based in Bönen, which specializes in the distribution and brand management of premium sports and lifestyle brands. The company has an established distribution network in the DACH region as well as long-standing partnerships with leading sports retailers and online platforms. Tailwind has made a name for itself as a competent partner for the development and expansion of international brands in the European market.

With the acquisition of Tailwind Brands, Zoot Sports is laying the foundation for accelerated expansion in Europe. The combination of Zoot's international brand strength with Tailwind's regional market and sales expertise offers considerable growth potential in the coming years.

Advisor Zoot Sports:
ADVANT Beiten: Dr Markus Ley (Corporate/M&A, Munich), Dr. Erik Schmid, Virginia Mäurer (both Employment Law, Munich), Susanne Klein, Jason Komninos (both IP/IT, Frankfurt), Markus Linnartz (Tax, Dusseldorf), Petra Fendt (Banking & Finance, Munich), Anja Fischer (Real Estate, Munich).

Public Relations
Frauke Reuther
Communications Manager
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

In addition, six colleagues were elected Local Partners and nine colleagues were elected Salary Partners. The newly elected partners are from all six German offices of the law firm, working in seven different areas of competence.

Dr Florian Weichselgärtner handles a large number of liability cases every year, both in the area of manager liability and the liability of lawyers, tax advisors, insolvency administrators, corporate and restructuring advisors and auditors. His area of activity further comprises advice to companies on the processing of liability cases and compliance violations. The interdisciplinary advisory service of ADVANT Beiten enables Dr Florian Weichselgärtner to comprehensively handle the often complex liability cases across all legal areas (tax law, criminal law, labour law, capital market law, insolvency law, etc.). Due to his many years of advisory practice, he has proven experience both in conducting and defending actions for damages as well as in out-of-court dispute resolution.

These are our new Local Partners in alphabetical order:

• Sascha Opheys (Public Sector, Dusseldorf)
• Max Stanko (Public Sector, Berlin)
• Dr Philipp Sahm (Corporate/M&A, Frankfurt)
• Haide Spanier (Banking, Finance & Restructuring, Frankfurt)
• Mark Thönißen (Corporate/M&A, Frankfurt)
• Dr Mark Zimmer (Labour Law, Munich)

Our newly elected Salary Partners are listed in alphabetical order:

• Regina Dietel (Labour Law, Munich)
• Gamze Dogan (Tax Law, Dusseldorf)
• Verena Nader (Real Estate, Munich)
• Dr Christian Osbahr (Corporate/M&A, Freiburg)
• Robert Schmid (Corporate/M&A, Berlin)
• Simon Schuler (Corporate/M&A, Freiburg)
• Etienne Sprösser (Corporate/M&A, Freiburg)
• Maximilian Steffen (Tax Law, Hamburg)
• Ulrike Stöhr (Tax Law, Munich)

"The appointment of our new partners shows how closely we work together across offices and between our practice groups - supported by diverse industry expertise," explains Dr Guido Krüger, Managing Partner of ADVANT Beiten, adding: "The fact that we have had successful elections at all three seniority levels underlines the continuous development of outstanding talent in our firm. Accompanying our colleagues on their path to partnership is one of our central tasks."

ADVANT Beiten also continues to follow its strategy of targeted growth by lateral hires in selected areas. The following Local and Salary Partners reinforced the firm last year:

• Tanja Ehls (SP, Public Sector, Frankfurt)
• Julian Gruß (SP, Real Estate, Dusseldorf)
• Peter Meisenbacher (SP, Public Sector, Freiburg)
• Ansgar Messow (LP, Real Estate, Dusseldorf)
• Johannes Voß-Lünemann (SP, Public Sector, Berlin)

PR
Frauke Reuther
Manager Communication
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

Part 26A Restructuring Plan

Even after its exit from the European Union, the United Kingdom still strives to be an attractive location for insolvency and restructuring proceedings. In a number of high-profile cases, debtors have deliberately relocated their Centre of Main Interests (COMI) to the UK to take advantage of the comparatively debtor-friendly legal framework there. Of particular interest to debtors is a restructuring plan under Part 26A UK Companies Act 2006. This process allows for either all creditors or only certain classes of creditors to be included in the proceedings. The key advantage of this instrument, from the debtor’s perspective, is precisely that a large number of creditors can be excluded from participation in the process. The associated, significant, costs—typically running into the millions—for relocating the COMI, engaging specialised lawyers and advisors, and utilising the English courts are willingly borne by many companies in the hope of achieving more flexible debt relief.

The recent decision by the English Court of Appeal to tighten the fairness requirements for such restructuring plans (ruling dated July 1, 2025), was unlikely to significantly reduce the attractiveness of the Part 26A Restructuring Plan for debtors. However, the recent decision of 22 August 2025 from the Frankfurt am Main Regional Court changes the picture entirely: now, from the debtor’s perspective, a major obstacle has been put before them because such restructuring plans are not recognised in Germany. Although Germany is only one jurisdiction, this is of critical significance because, in principle, a cross-border restructuring plan can only be approved by an English court if there is a reasonable prospect of recognition in the other jurisdictions involved. So far, where English courts have considered the question of whether a Part 26A Restructuring Plan is capable of recognition in Germany, they have (until now) affirmed the possibility of such recognition.

Legal Assessment of Recognisability in Germany

The crucial question of how courts in Germany assess the recognisability of Part 26A Restructuring Plans has had many lawyers on tenterhooks. The opinion of the English courts on this matter is irrelevant for recognition in Germany: only German law is decisive.

The recognisability of a Part 26A Restructuring Plan under German law has been a matter of controversial debate. Possible legal bases for recognition include Section 343 of the German Insolvency Code (InsO), Section 328 of the German Code of Civil Procedure (ZPO), and Article 26(1) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (EuGVÜ). However, there have been significant reservations about applying any of these provisions, which is why the prevailing view in legal literature has so far been to fundamentally reject recognition. However, until now, no decision by German courts had addressed this question. 

The Frankfurt Regional Court decision and its significance

On August 22, 2025, the Frankfurt am Main Regional Court ruled that a Part 26A Restructuring Plan cannot be recognised in Germany. In doing so, it adopted the arguments frequently presented in legal literature and confirmed a legal position that ADVANT Beiten had already represented on behalf of creditors before the Frankfurt am Main Regional Court.

The court rejected recognition under Sect. 343 InsO, as this provision applies exclusively to insolvency proceedings. Insolvency proceedings under the German Insolvency Code are characterized by the inclusion of all creditors. Since the Part 26A Restructuring Plan does not include all creditors, the required collective nature of the proceeding is lacking.

The Regional Court also followed its previous case law by the Higher Regional Court (OLG Frankfurt am Main) rejecting the recognition of the restructuring plan under the EuGVÜ (Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 1968), on the basis that it was replaced in 2002 by the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (EuGVVO). Although the EuGVVO no longer applies to the United Kingdom since Brexit, the EuGVÜ as its predecessor does not become applicable again due to Brexit. 

Regarding Sect. 328 ZPO, the Frankfurt am Main Regional Court emphasised that mutual recognition of judgments must be ensured. Accordingly, the recognition of a Part 26A Restructuring Plan in Germany depends on whether comparable decisions by German courts would also be recognised in England. According to the Frankfurt am Main Regional Court, this is a question of fact rather than law, as it depends on the actual practice of recognition. In the case at hand, evidence for the claimed recognition in England could not be provided. Therefore, the court, based on the burden of proof, denied reciprocity and thus rejected recognition under Sect. 328 ZPO. As this is a regional court ruling, the decision is not yet final. It is possible – though in our view unlikely – that evidence of reciprocity could still be submitted later in the proceedings. From our perspective, it is doubtful whether reciprocity can be proven at all. It seems unlikely that a German restructuring decision regarding a claim governed by English law would be recognised in the United Kingdom. This is particularly supported by the so-called Rule of Gibbs, recently confirmed in UK case law. According to this principle, rooted in English common law, foreign insolvency or restructuring decisions have no effect on claims governed by English law.

Conclusion 

The decision of the Frankfurt am Main Regional Court is welcome news for creditors, because it upholds the protection that German insolvency law intends to grant them. Moreover, it ensures that the choice of governing law made at the time of contract conclusion remains effective throughout the entire duration of the legal relationship. A relocation of proceedings and a flight to non-European jurisdictions aimed at circumventing the interests of specific creditor groups is no longer easily possible. Companies considering such an “insolvency relocation” must now seriously consider the lack of recognition of their restructuring measures in Germany. From the creditors’ perspective, this means that affected creditors in Germany no longer must accept the consequences of English restructurings and can continue to assert their original rights. 

If the Frankfurt court’s case law prevails, English courts will also have to take notice. They would be unable to approve Part 26A Restructuring Plan involving Germany, as the lack of recognition would be established. Whether this will happen, and the decision will become final remains to be seen. However, a clear first signal against insolvency tourism abroad has been sent. Creditors affected by a foreign restructuring should examine whether it is also recognisable in Germany and whether their claims have indeed been extinguished.

If you are affected by a foreign restructuring, we are happy to offer a consultation.

Dr Nadejda Kysel
Dr Philipp Sahm
Jessica Schneeberger

ApoBank and the AXA Insurance Group have been cooperating in the sale of financial and insurance products for more than 25 years. Both companies now want to bundle the sales activities of their mobile sales companies apoFinanz and Deutsche Ärzte Finanz more closely. 

As part of the restructuring, apoFinanz will be merged with Deutsche Ärzte Finanz. At the same time, apoBank acquires additional shares in Deutsche Ärzte Finanz. The merger creates the largest financial sales organisation for academic health professionals in Germany. With around 500 independent financial advisors, the new company will serve more than 320,000 customers. The merger will be completed in August 2025. A cross-office team from ADVANT Beiten is providing apoBank with comprehensive legal advice.

With more than half a million customers and total assets of around EUR 52 billion, apoBank is the largest cooperative retail bank in Germany and the number one financial services provider in the healthcare sector. Its customers are primarily members of the healthcare professions, their professional organisations and associations, healthcare facilities and companies in the healthcare market.

With the reorganisation of their joint sales subsidiaries, the partners want to combine the strengths of the companies and use the synergies for additional growth. 

Advisors to apoBank: 

ADVANT Beiten: Heinrich Meyer, Rainer Süßmann (both lead partners in charge, Banking/Finance, Frankfurt), Dr Christian Ulrich Wolf, Maren Dedert (both Corporate/M&A, Hamburg), Christoph Heinrich, Prof Dr Christian Heinichen (both Antitrust Law, Munich), Oliver Korte, Christopher D. Harten (both Commercial, Hamburg), Dr Thomas Drosdeck, Dr Gerald Müller-Machwirth (both Labour Law), Susanne Klein, Lennart Kriebel and Daniel Trunk (all IT- and Data protection Law, all Frankfurt)

Advisor to AXA: Hengeler Mueller

Public Relations
Frauke Reuther
Communications Manager
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

Heinrich Meyer
Rechtsanwalt 
ADVANT Beiten
Phone: +49 69 756095-414
heinrich.meyer@advant-beiten.com

D&O insurance is deemed to be an indispensable instrument in the risk management of modern companies. It protects managing directors, members of management and supervisory boards, and other executives against the financial consequences of any erroneous decisions contrary to duty and organisational deficits. 

However, in practice, it turns out: D&O insurance is a complex insurance product that often raises many questions for those involved. Policyholders, intermediaries, injured parties and even insurers are often confronted with a variety of challenging questions. 

Insurance terms and conditions: Inconsistent and difficult to compare

The insurance terms and conditions of D&O policies are often complicated and hard to understand for laypersons. The benefits vary greatly from one provider to another. In addition to defending against unjustified claims and indemnifying against justified claims for damages, many insurers now offer numerous additional services, such as criminal law protection, continued payment of salary in the event of claims for damages, medical and psychological care, reimbursement of ransoms, PR advice and much more. 

Policies also often differ greatly from one another with respect to exclusions. Restrictions on insurance cover are often found not only in the general insurance terms and conditions, but also in the insurance policy or in separately agreed terms and conditions.

Therefore, the scope of cover of D&O insurances is difficult to compare. In any case, a comparison of the sum insured, and the premium alone is not very conclusive. 

D&O insurance usually does not protect against personal liability claims

Claim settlement shows that many policyholders and insured persons do not know how a D&O insurance is designed. They wrongly assume that the injured party can directly contact the D&O insurance company regarding the claim settlement, and, in this respect, no personal liability is threatening. In fact, a D&O policy, however, generally requires such a personal liability claim for the occurrence of an insured event.

In many cases, the existence of such a D&O cover is even the "motivator" for personal liability claims which often renders the insurance purpose absurd. For only in very few cases, D&O insurance provides for a so-called self-insurance which at least allows injured policyholders to make claims directly against the insurer. 

Ambiguities about the scope of insurance benefits

The typical benefits of a D&O insurance include on the one hand providing defence cost protection, i.e. covering the legal costs for the defence against unjustified claim, and on the other hand indemnifying against justified claims. Contrary to the widespread view, not every D&O contract also offers criminal law cover, in other words protection against criminal investigation proceedings. 

The situation is similar with covering fines and penalties, in particular with antitrust violations. In misjudgement of this, insurers are increasingly confronted with the reporting of claims which are already not covered on the merits according to the wording of the insurance terms and conditions. 

Potential for disputes in the event of a claim

Especially in the area of D&O insurance, there are often nasty surprises in the event of a claim.

The parties involved are often not aware of the obligations of a D&O insurance or they are disregarded by ignorance of the legal consequences. It seems to have become common knowledge among claimants that the D&O insurer must be informed immediately of the insured event; in the vast majority of cases, letters concerning liability claims contain such a notice. The legal consequences of a delayed or erroneous damage report, however, still seem to be unknown to the vast majority of claimants. In any case, the damage reports to the insurers are mostly made very late and often only very cryptically. 

But also, the violation of pre-contractual obligations may lead to a (total) loss of insurance cover, for instance where incomplete information is provided in the questionnaires or critical facts are not disclosed upon conclusion of the D&O contract. 

It is noticeable that such cases are becoming more frequent. The reasons therefor are manifold. Mostly, there is a fear that they will not receive any insurance cover or that they must pay a high premium if all information is provided. Often, the questionnaires are simply not given too much importance and are not completed with the necessary care. In this context, it is overlooked that the information for the insurers is relevant for decision-making and the insurers increasingly react to the violation of pre-contractual notification obligations with challenging the entire policy. 

By ignorance of the insurance terms and conditions, the primary obligation to provide coverage from other sources or from the previous insurer is often overlooked. Especially D&O insurances often provide for long subsequent reporting periods which may lead to an obligation to provide coverage of the previous insurer. As a result, the insurer actually responsible is usually informed far too late - in the worst case after expiry of the subsequent reporting period - about the event of a claim. 

In the event of a claim, it is also often revealed that the sum insured was set too low. Very often, this sum insured is not sufficient to cover the entire damage. In larger events of a claim with high amounts in dispute or many parties involved, the sum insured is often used up merely by defence costs. When concluding a D&O policy, it must therefore always be ensured that the sum insured is sufficiently high. In this context, the premium should not always be the decisive criterion. Affordable insurance cover can also be achieved by waiving certain - not always necessary - additional benefits or taking out excess insurances.

Incident reports and serial defect clauses also entail potential for disputes - especially also with regard to the often not sufficient sum insured. Through the incident report, an insured event can be drawn into a previous insurance period. Insurance exclusions are also often defined through incident reports. 

Serial defect clauses can be used to combine several insured events into one claim and assign them to a specific insurance period which may have implications for the sum insured (still) available or retentions. In practice, disputes regularly arise over the range and scope of such incident reports and serial defect clauses. The legal effectiveness of individual serial defect clauses is also highly controversial. 

Change of cover entails the risk of gaps in cover

Frequently, difficulties also arise when changing to a new D&O insurer. The reason for a change is usually striving for a more favourable premium or a better insurance cover. In case of a change, care must always be taken to ensure that the old and new D&O policy harmonise with regard to the insured periods (key word: retroactive cover) and their subsidiarity clauses. Otherwise, a game of ping-pong between the insurers is threatening in the event of a claim. 

In the worst case, changing to a new insurer may lead to the fact that no insurance cover exists for certain circumstances due to the resulting gap in cover. With regard to allegedly affordable premiums or better insurance cover, an expert comparison of the respective terms and conditions is therefore always required.

High demand for advice - expert advisors required

In case of D&O insurances, the demand for advice is high. The numerous insurance products on the market and the often very extensive insurance terms and conditions are mostly very difficult to understand for policyholders. They usually rely on the advice and the recommendation of their advisors and insurance brokers. The situation is similar with the insured persons who rely on their legal advisors in the event of a claim. Brokers and advisors should therefore also always be aware of the numerous pitfalls in processing in order to avoid falling into (their own) liability trap. 

Dr Florian Weichselgärtner

This article was first published in the Versicherungsmonitor magazine on 16 June 2025. Here you can find the original article.

BaFin is increasingly imposing fines on listed companies for violating the provisions of the German Securities Trading Act or the Market Abuse Regulation. Often, amounts in the millions are set for even minor offences. The amount of the fines also varies greatly from company to company for the same offence. This is due to the fact that BaFin bases the amount of the fines on the market capitalisation of the respective companies within the range stipulated by law. As a result, companies with a low market capitalisation have to pay much less for the same infringement than companies with a high market capitalisation.

Experience has shown that many companies agree to a "settlement" with BaFin as part of the fine proceedings. BaFin regularly grants discounts of around 30% on the threatened fine. In return, however, BaFin expects a waiver of legal remedies. 

However, practical experience shows that a significantly greater reduction can be achieved by lodging an appeal against the BaFin's fine notice in the subsequent court proceedings, which take place before the Frankfurt am Main Local Court. In such proceedings, the court has to deal with a very complex regulatory matter that is largely unknown to it and is therefore often interested in a quick resolution. In addition, the court may waive the grounds for its judgement in the event of a court settlement (Section 77b OWiG). The public prosecutor's office participating in the proceedings regularly raises no objections to such a procedure. 

In addition, there are cases in which BaFin interprets supervisory regulations too broadly or the alleged facts that are subject to a fine are disputed. In such cases, it is advisable to seek a complete cancellation of the notice in question - if necessary, by means of a legal appeal to the Higher Regional Court of Frankfurt am Main.

CATT operates its first plant outside China in Arnstadt, Thuringia. With 1,700 employees, the plant is the largest foreign subsidiary of the battery manufacturer. Existing customers in Germany include companies such as BMW and Mercedes-Benz. In addition to the site in Germany, the expansion plans focus in particular on the sites in Hungary and Spain.

CATL has made a profit of approx. 4.6 billion dollars with the stock exchange listing in Hong Kong. The final price per share was set at 263 Hong Kong dollars, this corresponds to the maximum offer price. The scope of CATL's transaction could increase to 5.3 billion dollars, if a so-called greenshoe option results in the sale of a further 17.7 million shares. The fresh capital will be used in particular to finance CATL's further expansion into Europe. 

CATL Advisor - as a German Legal Counsel:

ADVANT Beiten: Dr Dirk Tuttlies (in charge; Capital Market Law), Dr Christian von Wistinghausen (in charge; Due Diligence), Tassilo Klesen, Danah El-Ismail, Simone Schmatz, Christian Burmeister, Lelu Li, Damien Heinrich, Robert Schmid (all Corporate/M&A), Katrin Lüdtke, Korbinian Goll (Public Law).

Public Relations

Frauke Reuther
Communications Manager
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

The new exemptions of the EU Prospectus Regulation, which has been amended since 4 December 2024, were applied for the first time in the admission to trading on the Frankfurt Stock Exchange: The admission of the new shares of Philomaxcap AG was completed without the publication of a prospectus only with the filing and publication of an 11-page admission document. (In accordance with Article 1(5), subparagraph 1(ba) and subparagraph 3 of Regulation (EU) 2017/1129 as amended by Regulation (EU) 2024/2809 and Annex IX). 

In this context, the team led by the two partners Dr Dirk Tuttlies and Rainer Süßmann examined in particular the question of whether shares from a non-cash capital increase, i.e. a contribution in kind, could possibly be classified as a public exchange offer. In addition, the filing of the admission document, which replaces the previously customary prospectus, had to be coordinated with BaFin, the German Federal Financial Supervisory Authority and the Frankfurt Stock Exchange. For both institutions, the application of the now valid exemptions of the EU Prospectus Regulation was the first case of application.

The listing of the new shares on the Frankfurt Stock Exchange was preceded by a successful capital increase with the acquisition of GenH2Corp. This strategic measure led to an increase in share capital from EUR 17 million to over EUR 110 million and was made possible by the issue of around 93 million new shares.

Philomaxcap AG, domiciled in Munich, is a holding company focussing on the hydrogen industry which offers services for existing and future investments. The admission of the new shares from the previous acquisition of GenH2Corp, a US company specialising in liquid hydrogen technology and equipment, ideally complements Philomaxcap's portfolio.

Advisor to Philomaxcap AG on Admission of the New Shares:

ADVANT Beiten: Dr Dirk Tuttlies (Munich), Rainer Süßmann (Frankfurt, both Banking/ Capital Markets)

Public Relations
Frauke Reuther
Manager Kommunikation
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

It happens just before Christmas, preferably on 23 December. The doorbell rings and a friendly postperson hands a registered letter to the managing director. The registered letter reads - in a more subtle way, but usually in exactly the same tone: 'Dear Mr Managing Director, you have breached your duties and have a liability towards the company of 10 million euros. Please remit the amount to the following bank account no later than by 27 December. Sincerely'.

At a first glance, such letters seem grotesque. What individual has several million euros available in their private banking account at short notice and would be willing to transfer them within a few days? At a second glance, they seem comprehensible at least from a legal point. They are not aimed at the managing director's private banking account, but at the D&O insurance policy taken out for the benefit of the director. Only a letter addressed to the managing director can trigger insurance coverage and also default interest. Yet, it does not take much to visualise what such a letter shortly before the Christmas holidays will do to the managing director receiving it.

Obligations under insurance law: notification of D&O insurer

Upon receipt of this kind of letter, the managing director must immediately report the claim to the D&O insurer. Failing to do so is a breach of the director's obligations under insurance law, something a managing director often is not even aware of. But more on that later. In the worst-case scenario, the managing director will lose insurance cover by failing to report the claim. The managing director will also try to find a suitable lawyer for his defence before the Christmas holidays.

Claimants often demand that the statute of limitations be waived at short notice to avoid a lawsuit. Such waiver also needs to be discussed with the D&O insurer and the director's own lawyer. This is often not an easy task during the Christmas season. It is a time that is often highly emotional and overwhelming for the director concerned. There goes Christmas. The holidays are overshadowed by dealing with the accusations and worries about a possible personal insolvency. 

Managing director liability: claims do not become statute-barred at the end of the year

But is it necessary? From a legal perspective, it is normally not necessary to make a claim at the end of the year. Claims based on the managing director's liability expire after five years (section 43 (4) of the German Limited Liability Companies Act (Gesetz über die Gesellschaften mit beschränkter Haftung, GmbHG)). The limitation period, however, does not begin at the end of the year in which the claim arose.

As section 43 (4) GmbHG makes no provision for the start of the limitation period, the limitation period commences immediately when the claim arises, regardless of the company's knowledge or grossly negligent lack of knowledge of such claim (section 200 sentence 1of the German Civil Code (Bürgerliches Gesetzbuch, BGB)). According to the ruling of the German Federal Court of Justice (Bundesgerichtshof, BGH) dated 29 September 2008 (case no. II ZR 234/07), any knowledge of the injured party is irrelevant. The question of why many claims, including demands for waivers of claims, are made at the end of the year can only be explained by the claimants' ignorance of the limitation periods. 

Foresight secures claims

Irrespective of the above, the question remains as to why the claimants mostly use a very harsh tone and why there is no explanation that the claim is being made primarily with regard to the D&O insurance. It is an open secret that the claim against the managing director is usually aimed exclusively at the D&O insurance, as the managing director's private assets are rarely sufficient to satisfy the claim.

D&O insurance is maintained precisely to protect the director against such claims. Why is this not disclosed to the managing directors to ease their worries? There are only a few claim letters that make any reference to the existence of D&O insurance and, more importantly, to what specifically needs to be done to fulfil the obligations imposed by insurance law. The obligations are set out in the terms and conditions of the D&O insurance policy, which the managing director does not usually know.

At the same time, it is also in the claimant's interest that the insurance cover is not unnecessarily jeopardised by not meeting obligations. Without insurance cover, the claimant’s only option would be to fall back on the managing director's private assets, which are usually not worth millions.

A question of style

This article is meant to be an appeal for mutual respect at Christmas time. From a legal perspective, it is normally not necessary to make a claim at the end of the year. If it is, however, it can be worded and timed in such a way that it will not become a Christmas disaster for the managing director and everyone else involved. Particularly in complex D&O cases with several parties involved, economically sensible solutions can often be found for all parties through a settlement process. The comparison and consideration of the different interests in a mediation approach requires good judgement and foresight and − right at the beginning of a dispute − good etiquette.

Dr Florian Weichselgärtner

This article was first published in the Versicherungsmonitor magazine on 9 December 2024. Here you can find the original article.

The i8, with its timber hybrid construction and LEED Platinum certification, PV system and façade made from recycled aluminium, and more such features, has been designed with sustainable construction in mind.

Advisor to the Interhyp Group:
ADVANT Beiten: Anja Fischer (Real Estate, Munich), Dr Christoph Schmitt (Banking & Finance) and Volker Szpak (Tax, both Frankfurt):

Advisor to R&S Immobilienmanagement:
Noerr: Annette Pospich, Dr Antonio DiMieri (both Real Estate) and Steffen Arlich (Tax, all Munich).

The deal was arranged by BNP Paribas Real Estate GmbH, Christoph Bayreuther.

Media Contact
Frauke Reuther
Manager Kommunikation
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

TETEC AG, which specialises in regenerative medicine, had been integrated into the international medical technology group B. Braun through the surgical division Aesculap, based in Tuttlingen, Germany. In future, Aesculap will strategically focus even more strongly on innovative medical technology relating to surgical processes in the operating room, which means that the regenerative medicine business segment no longer fits into the medical technology group's portfolio.

In the United States, B. Braun has partnered with Octane Medical for more than ten years. With the completion of the transaction, the Canadian specialist for regenerative medicine has taken over TETEC completely, including the approximately 160 highly specialised employees at the site in Reutlingen, Germany.

Octane is a global group of companies headquartered in Ontario, Canada, with subsidiaries in the United States and Europe, specialising in innovative processes, biomaterials and bioreactors for regenerative medicine. Part of the group are Octane Clinical Systems, Octane Orthobiologics, Octane Exo, Octane Biotech and Octane Biotherapeutics (BioTx).

B. Braun is one of the world's leading medical technology companies. With over 60,000 employees, B. Braun is a reliable partner that develops intelligent solutions and sets pioneering standards to accelerate progress in healthcare.

Advisors to Aesculap AG:
ADVANT Beiten: Dr Sebastian Weller (lead partner), Nico Frielinghaus, Dr Winfried Richardt, Markus Schönherr, Sarah Heinrichs, Simon Litterst (all Corporate/M&A), Christian Schenk, Markus Linnartz (both Tax), Thomas Herten (Real Estate), Christian Döpke (Data Protection Law, all Dusseldorf), Dr Erik Schmid (Labour Law), Christoph Heinrich (Antitrust Law, both Munich), Rainer Süßmann (Banking & Finance, Frankfurt), Dr Christian von Wistinghausen, Lelu Li (both Foreign Trade Law, Berlin).

Advisor to Octane Medical:
Osborne Clarke

Media Contact
Frauke Reuther
Manager Kommunikation
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

Dr Sebastian Weller
Rechtsanwalt
ADVANT Beiten
+49 (211) 51 89 89 - 134
sebastian.weller@advant-beiten.com

You can view the article, which appeared in the Yearbook Perspectives 2024 of the Association of Foreign Banks in Germany, at this link or in the download area. 

Located at Lake Starnberg in southern Bavaria, Mauermann has around 60 employees. The company is GMP certified as contract manufacturer for the manufacturing and packaging of solid dosage forms. Founded in 1938, the family enterprise has been working with Wörwag for more than 45 years.

Wörwag Pharma, with its headquarters in Böblingen, is able to enhance its production capacities with the takeover. The factory at Lake Starnberg is the second own production facility of Wörwag Pharma. Wörwag Pharma Operations in Lodz, Poland, is the first own production facility. It was acquired in 2021 and was able to deliver goods for the first time in the past year. The share of products from the company's own production is growing continuously.

Wörwag sells prescription drugs as well as OTC preparations and food supplements. The company has established itself with products in therapeutic areas such as diabetes and associated diseases, neurological diseases, musculoskeletal disorders and diseases of the immune system. In 2022, the company achieved sales of EUR 291 million. The number of employees grew by 200 to 1,400 in the past year.

Founded in 1971, the manufacturer has been represented in Hungary, Russia, Romania, Bulgaria and other Eastern European countries since 1993. The products are also offered in Latin America and Asia.

ADVANT Beiten has been advising Wörwag Pharma regularly on transactions.

Advisors to Wörwag Pharma GmbH & Co. KG:
ADVANT Beiten: Dr Barbara Mayer (Freiburg), Christian Burmeister (Freiburg and Berlin, both lead partners in charge), Dr Moritz Handrup (Banking & Finance, Frankfurt), Damien Heinrich and Lisa Werle (Corporate/M&A, Freiburg).

Media Contact
Frauke Reuther
Manager Kommunikation
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

Barbara Mayer
Rechtsanwältin
ADVANT Beiten
+49 (761) 150984 - 14
Barbara.Mayer@advant-beiten.com

The takeover bid was preceded by a share purchase of Genius with the principal shareholder of Your Family Entertainment AG, F&M Film- und Medien Beteiligungs-GmbH with registered seat in Vienna. Its sole shareholder is Dr. Stefan Piëch, great-grandson of Ferdinand Porsche, the founder of Porsche. The takeover takes place in several stages, i.e. the principal shareholder and Genius are at first bound by a shareholders' agreement so that there is an acquisition of control. Genius itself then has acquired a portion of the shares of F&M Film- und Medien Beteiligungs-GmbH. Genius does not exclude that it will in future increase the holding by means of another public offering.

Advisor to Genius Brands International Inc.:
ADVANT Beiten: Dr. Dirk Tuttlies (Banking & Finance, Munich); Rainer Süßmann (Banking & Finance, Frankfurt).

Press Contact
Frauke Reuther
Communications Manager
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

Dr. Dirk Tuttlies
Rechtsanwalt (Lawyer)
ADVANT Beiten
+49 (89) 3 50 65 - 1241
dirk.tuttlies@advant-beiten.com