Almost eleven years after the bankruptcy of the drugstore chain Schlecker, the insolvency proceedings are still dragging on – but for the creditors there is new hope that in the end there will be more money to distribute. The reason is a major lawsuit for damages by the insolvency administrator against several drugstore manufacturers, which has so far been unsuccessful. After a ruling by the Federal Court of Justice (BGH), the tide could possibly turn. The cartel senate decided on Tuesday that everything had to be checked again.
The claims are directed against a number of large drugstore manufacturers. The Bundeskartellamt had imposed fines on the companies because they exchanged information in a joint working group between 2004 and 2006. It was about intended price increases or the status of negotiations with individual retail chains. Insolvency administrator Arndt Geiwitz believes that Schlecker therefore had to pay excessive prices in purchasing. He wants around 212 million euros in damages.
Failed in the first instance
His lawsuit was dismissed in the first instance. The Frankfurt Higher Regional Court (OLG) did not consider it very likely that Schlecker could have suffered damage as a result of the exchange of information.
The judges in Karlsruhe do not agree with this. When the verdict was announced, the chairman, Wolfgang Kirchhoff, spoke of a “principle of experience”, according to which such an exchange of secret information contrary to antitrust law would very likely lead to higher prices. Although the Higher Regional Court also assumed such a principle based on experience, it incorrectly attributed too little weight to it.
The outcome of the second OLG hearing that is now necessary is not yet predetermined. Kirchhoff said the circumstances in the individual case always played a role. However, the position of the insolvency administrator is likely to have improved.
In the “fight for the mass creditors”
Geiwitz himself said: “I’m cautiously optimistic that we can prove the damage caused by the illegal agreements before the Higher Regional Court in Frankfurt.” The cartel lawsuits are “a fight for the mass creditors and thus above all for the Schlecker employees and for every taxpayer, since the Federal Employment Agency has high claims from the proceedings.”
It is about open claims to a maximum of three months’ continued payment of wages in the event of termination. Schlecker, once the largest drugstore chain in Europe based in Ehingen in Baden-Württemberg, filed for bankruptcy in January 2012. Many thousands of employees – mostly women – lost their jobs.
The lawsuit against the drugstore manufacturer is the largest of several antitrust lawsuits filed by Geiwitz. According to a spokesman, three more damage claims processes are still running, each in the first instance. The Stuttgart district court is about detergent and coffee, and the Mannheim district court is about sugar. A fifth dispute with confectionery manufacturers was settled out of court.
