BBL Successfully Represents German Government Against Major Clawback Action (FlexStrom Insolvency)

Action for contestation of 68.5 million Euro dismissed for the most part

Berlin, March 2, 2018. The Berlin Regional Court (Landgericht Berlin) mostly dismissed a clawback action in the total amount of EUR 68.5 million that was filed by the insolvency administrator of FlexStrom AG against the Federal Republic of Germany. The action was dismissed in the amount of EUR 64 million (judgment dated February 12, 2018, case no. 11 O 101/16). BBL successfully argued that the Federal Republic of Germany was not aware of a potential insolvency of the debtor at the relevant times

Insolvency proceedings over the assets of FlexStrom AG as debtor were opened on July 1, 2013. Subsequently, FlexStrom AG’s insolvency administrator, Dr. Christoph Schulte-Kaubrügger of White & Case demanded repayment of the electricity tax that FlexStrom AG had paid to the Government since June 2011, arguing that FlexStrom AG had been insolvent at that time. The court left it undecided whether FlexStrom AG had in fact already been insolvent at that early stage, finding that there was, in any event, insufficient evidence that would show that the Federal Republic of Germany was aware of an impending insolvency at that time.

“The Court accepted most of our line of argument. Consequently, circumstantial evidence that was provided by the insolvency administrator on hundreds of pages concerning a very early insolvency of FlexStrom AG and an alleged corresponding knowledge of the Federal Republic of Germany was irrelevant” emphasized Dr. Christoph Weber from BBL. “That way, the court straightforwardly applied the present case law of the German Federal Court of Justice (“Bundesgerichtshof”) that focuses on a wholistic view of all circumstances.” added his BBL colleague Martin Clemens Lang. Whether or not an appeal against the judgment will be filed with regard to the part of the decision that granted a claim in the amount of EUR 4.5 million is currently under review. Both Weber and Lang are experienced lawyers who know quite well the arguments and litigation tactics of insolvency administrators themselves. They both have been working at BBL for many years, handling, among other things, defenses against claw back actions and claw back actions as well.

Background
The insolvency proceedings of the FlexStrom Group in 2013 are one of the largest insolvency proceedings in Germany – measured by the number of creditors. Approximately 835,000 creditors were affected by this insolvency proceeding. At the beginning of 2016 the insolvency administrator unleashed a wave of claw back actions.

Legal counsel Federal Republic of Germany
Dr. Christoph Weber, Esq., BBL Bernsau Brockdorff & Partner, Berlin
Martin Clemens Lang, Esq.,BBL Bernsau Brockdorff & Partner, Berlin

BBL is one of the leading German law firms with excellent connections, focusing solely on special situations – restructuring, rehabilitation and insolvency. We have significant experience in drawing up and implementing complex restructuring concepts within and outside the scope of insolvency proceedings. More than 50 lawyers are present in Germany and in London.
Further information: www.bbl-law.de

Contact person for the media:
Dr. Constanze Baumgart
Guttmann Law Communications
Tel: +49 221 3596405
Mail: cb@guttmann.legal