With this issue we supplement the documentation of public tender offers in Germany by our Morgan Lewis takeover monitor for Morgan Lewis clients and interested persons with respect to recent judgments of the German Federal Court of Justice relating to public tender offers under the German Securities Acquisition and Takeover Act as well as legislative developments relating to German takeover law.

RECENT CASE LAW RELATING TO PUBLIC TENDER OFFERS UNDER THE GERMAN SECURITIES ACQUISITION AND TAKEOVER ACT (WPÜG):

The German Federal Court of Justice (FCJ) pronounced on November 23, 2021 two judgments in parallel proceedings that may have landmark effect. In contrast to the FCJ’s earlier judgment of July 29, 2014,2 in which the FCJ discussed claims of a shareholder who had accepted the concerned public takeover offer and held that if the consideration offered in the context of a takeover offer is not adequate, then shareholders who accepted the takeover offer are entitled to a claim for payment of the adequate consideration against the offeror, the FCJ now discusses claims brought by shareholders or, respectively, swap holders who had declined to accept a public takeover offer, which they claimed was underpriced.