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The Mannesmann Trial and the Role of the Courts

Published online by Cambridge University Press:  06 March 2019

Peter Kolla

Extract

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The Financial Times billed the Mannesmann trial, which began on January 21, 2004 and where final arguments by the prosecution and by the defense are scheduled for June 30, July 8 and 14, 2004 before the Regional Court (Landgericht) in Düsseldorf, as the “biggest criminal trial in German corporate history.” The backdrop for the trial was the January 2000 hostile takeover of Mannesmann AG, the once massive German telecommunications and engineering company that employed over 130,000 people. Vodafone Airtouch, the British telecommunications giant, had initially offered €101 billion for Mannesmann but only succeeded in their takeover by sweetening the price to €178 billion. Consequently, the Mannesmann takeover is still the largest the world has ever seen. The six defendants include towering figures in corporate Germany, most notably Josef Ackermann, the current chief executive of Germany's largest bank, Deutsche Bank and former member of Mannesmann's supervisory board (Aufsichtsrat). The enormity of the companies and personalities involved stretched the trial's magnitude beyond the confines of this single takeover. Reporting for their global business audience, the Financial Times conflated the trial to an indictment of Germany's entire system of capitalism. “What is on trial here is the free market itself,” wrote Wolfgang Munchau, their continental European business columnist.

Type
Private Law
Information
German Law Journal , Volume 5 , Issue 7 , 01 July 2004 , pp. 829 - 847
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 Jenkins, Patrick, Germany on Trial, Financial Times (15 January, 2004), available at <http//:www.ft.com>..>Google Scholar

2 Larsen, Peter Thal & Burt, Tim, Comcast Looks to Snatch Disney with $61.5bn Bid, Financial Times [US edition] (12 February, 2004) 1. For the sake of comparison, the hostile takeover of Disney by Comcast was worth $61.5 billion US, or €48.5 billion, when it was announced on Feb 12, 2004.Google Scholar

3 Jenkins, , Germany on Trial, supra note 1.Google Scholar

4 Munchau, Wolfgang, Market Economics is in the Dock in Germany, Financial Times [US edition] (26 January, 2004) 13.Google Scholar

5 Jenkins, , Germany on Trial, supra note 1.Google Scholar

6 Cheffins, Brian R., The Metamorphosis of “Germany Inc.“: The Case of Executive Pay, 49 Am. J. Comp. L. 497, 526 (2001).Google Scholar

7 Jenkins, , Germany on Trial, supra note 1.Google Scholar

8 Dore, Ronald, Lazonick, William & O'Sullivan, Mary, Varieties of Capitalism in the Twentieth Century, 15 Oxford Review of Economic Policy 102 (1999).Google Scholar

9 Id. at 105.Google Scholar

10 Id. at 108.Google Scholar

11 Hall, Peter A. & Soskice, David, An Introduction to Varieties of Capitalism, in Varieties of Capitalism: The Institutional Foundations of Comparative Advantage 1, 22-23 (Peter A. Hall & David Soskice eds., 2001).Google Scholar

12 Vitols, Sigurt, Varieties of Corporate Governance: Comparing Germany and the UK, in Varieties of Capitalism: The Institutional Foundations of Comparative Advantage 337, 344 (Peter A. Hall & David Soskice eds., 2001).Google Scholar

13 Id. at 337-339.Google Scholar

14 Cheffins, , supra note 6 at 501.Google Scholar

15 Id. at 499.Google Scholar

16 Jenkins, , Germany on Trial, supra note 1.Google Scholar

17 Id.Google Scholar

18 Jenkins, Patrick, Judge Revisits Vodafone Links in Esser Trial, Financial Times (11 February, 2004), available at <http//:www.ft.com>. Fok's precise words, allegedly: “Let's do it the Chinese way.”.+Fok's+precise+words,+allegedly:+“Let's+do+it+the+Chinese+way.”>Google Scholar

19 Id.Google Scholar

20 Jenkins, Patrick, “Fok Gives Long-distance Testimony, Financial Times [US edition] (27 February, 2004) 17.Google Scholar

21 Id.Google Scholar

22 Jenkins, , Germany on Trial, supra note 1.Google Scholar

23 Id.Google Scholar

24 Id.Google Scholar

25 Id.Google Scholar

26 Jenkins, Patrick, Esser “should have received €1bn,” Financial Times (23 January, 2004), available at <http//:www.ft.com>..>Google Scholar

27 Id.Google Scholar

28 Martin Höpner & Gregory Jackson, An Emerging Market for Corporate Control? The Mannesmann Takeover and German Corporate Governance 39 (2001), available at <http://www.mpi-fg-koeln.mpg.de>..>Google Scholar

29 Jenkins, , Esser, supra note 26.Google Scholar

30 Jenkins, Patrick & Major, Tony, Experts Back up Esser's Bonus Claim, Financial Times (28 January, 2004), available at <http//:www.ft.com>..>Google Scholar

31 Id.Google Scholar

32 Cheffins, , supra note 6 at 508.Google Scholar

33 Roberts, Dan, Executive Bonuses Set to Match Boom Levels, Financial Times [US edition] (22 March, 2004) 1.Google Scholar

34 Roberts, Dan, Buffett Holds on to “gusher of cash,” Financial Times [US edition] (8 March, 2004) 1.Google Scholar

35 Roberts, , Executive Bonuses, supra note 33.Google Scholar

36 Jenkins, Patrick, Deutsche Chief's Pay Risks Backlash, Financial Times [US edition] (9 March 2004) 13.Google Scholar

37 Jenkins, Patrick, Germany Searches its Soul on Pay, Financial Times [US edition] (7 April, 2004) 20.Google Scholar

38 Id.Google Scholar

39 Atkins, Ralph, D-Telekom Board Shows “solidarity,” Financial Times [US edition] (1 April, 2004) 16.Google Scholar

40 Benoit, Bertrand & Major, Tony, Lack of Faith in Upturn Keeps Gloomy Nation From Shops, Financial Times [US edition] (10 February, 2004) 7.Google Scholar

41 Jenkins, , Deutsche Chief's Pay, supra note 36.Google Scholar

42 Jenkins, & Major, , supra note 30.Google Scholar

43 Jenkins, Patrick, Düsseldorf Provides an Antiquated Location for Germany's Show Trial, Financial Times (24 January, 2004), available at <http//:www.ft.com>..>Google Scholar

44 Cheffins, , supra note 6 at 534.Google Scholar

45 Id. at 534-35.Google Scholar

46 Jenkins, , Germany Searches, supra note 37.Google Scholar

47 Cheffins, , supra note 6 at 535.Google Scholar

48 Jenkins, Patrick & Benoit, Bertrand, German Drama Lifts Curtain on Consultants, Financial Times [US edition] (14-15 February, 2004) 2. The play is “McKinsey kommt” (McKinsey comes) by Rolf Hochhuth.Google Scholar

49 Hollinger International Inc. v. Conrad Black [2004] WL 360877 (Del. Ch.) (WL) [Hollinger].Google Scholar

50 Kirchgaessner, Stephanie, Showdown in Delaware: Does Conrad Black Have the Right to Sell his Stake in the Hollinger Newspaper Group, Financial Times [US edition] (10 February, 2004) 13.Google Scholar

51 Hollinger, , supra note 49 at 13-14.Google Scholar

52 Id. at 14.Google Scholar

53 Id. at 32.Google Scholar

54 Id. at 17.Google Scholar

55 Id. at 32.Google Scholar

56 Compare the initial $466.5 million deal with the $1.2 billion that the Barclay brothers subsequently agreed to pay for the UK arm of Hollinger International after participating in a public auction of Hollinger's assets. Tim Burt and Stephanie Kirchgaessner, Barclays to Acquire Telegraph for £665m, Financial Times (23 June, 2004), available at <http//:www.ft.com>..>Google Scholar

57 Kirchgaessner, , supra note 50.Google Scholar

58 Hollinger, supra note 49 at 31.Google Scholar

59 Id. at 32.Google Scholar

60 London, Simon, Calpers Chief Relaxes in the Eye of the Storm, Financial Times [US edition] (2 June, 2004) 8.Google Scholar

61 N.Y.'s Spitzer: Won't Settle Grasso Suit, Reuters (8 June, 2004), available at <http//:www.reuteurs.com>..>Google Scholar

62 Burt, Tim & Parkes, Christopher, A “Resounding Victory” for Shareholders, Financial Times [US edition] (5 March, 2004) 20.Google Scholar

63 Wine, Elizabeth, Rise of the Corporate Crusaders, Financial Times [US edition] (5 March, 2004) 20.Google Scholar

64 Id.Google Scholar

65 Christel Lane, Changes in Corporate Governance of German Corporations: Convergence to the Anglo-American Model 4 (2003), available at <http://www.cbr.cam.ac.uk/research/programme2>..>Google Scholar

66 Id. at 2.Google Scholar

67 Giambattista Vico, The New Science of Giambattista Vico 60 (Thomas Goddard Bergin & Max Harold Fisch trans., 1984).Google Scholar

68 Major, Tony & Jenkins, Patrick, Business Press Kept from Directors’ Trial, Financial Times (10 December, 2003), available at <http//:www.ft.com>..>Google Scholar

69 Id.Google Scholar

70 Jenkins, Patrick, Court U-turn on Press Exclusions, Financial Times (15 January, 2004), available at <http//:www.ft.com>..>Google Scholar

71 Johnson, Benjamin W., German Corporate Culture in the Twenty-First Century: The Interrelation Between the End of Germany Inc. and Germany's Corporate Capital Gains Tax Reform, 11 Minn. J. Global Trade 69 (2002).Google Scholar

72 Id. at 89.Google Scholar

73 Jenkins, Patrick & Paoli, Nicola de, Mannesmann Trial Might End Early, Financial Times [US edition] (4 March, 2004) 22.Google Scholar

74 Jenkins, Patrick, Judge Throws Out Criminal Charges in Mannesmann Case, Financial Times [US edition] (1 April, 2004) 15.Google Scholar

75 Jenkins, Patrick, Mannesmann Verdict Leaves Questions, Financial Times [US edition] (1 April, 2004) 16.Google Scholar

76 Jenkins, , Germany on Trial, supra note 1.Google Scholar

77 Jenkins, , Mannesmann Verdict, supra note 75.Google Scholar

78 Dore, Ronald, Comment: Papers on Employees and Corporate Governance, 22 Comp. Lab. L. & Pol'y J. 159, 160-161 (2000).Google Scholar

79 Id.Google Scholar

80 Needed, Clarity, Financial Times [US edition] (5 April, 2004) 14.Google Scholar

81 Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935).CrossRefGoogle Scholar

82 Id. at 818.Google Scholar

83 Id. at 820.Google Scholar

84 Dore, , supra note 78.Google Scholar

85 Cohen, , supra note 81 at 812.Google Scholar

86 Id. at 824.Google Scholar

87 Hollinger, , supra note 49 at 32.Google Scholar

88 Jenkins, , Mannesmann Verdict, supra note 75.Google Scholar