ELVIS’s Lawsuit Against Truck Cartel Dismissed in First Instance

More than four years after the lawsuit was filed in December 2017, the 30th Civil Chamber of the Stuttgart District Court (LG) dismissed the lawsuit of Themis Schaden GmbH against Mercedes-Benz Group AG (formerly: Daimler AG) for cartel damages amounting to approximately 96 million euros last week (Az. 30 O 17/18).

(Alzenau) “This decision was already indicated during the oral hearing on February 24, 2022,” comments Prof. Dr. Moritz Lorenz from the Berlin law firm Arnecke Sibeth Dabelstein and legal representative of Themis Schaden GmbH regarding the ruling. “We will now analyze the written reasoning of the judgment and then decide whether to appeal to the Higher Regional Court.”

The LG chamber cites the lack of standing of Themis Schaden GmbH, registered as a collection agency, as a key reason for the dismissal of the lawsuit. This company was established by the freight forwarders’ association ELVIS AG to consolidate the claims of 350 small and medium-sized freight companies. According to the court, however, Themis did not perform any permitted collection activities but rather provided legal advice. Therefore, the assignments of any potential cartel damage claims to it are void due to violations of §§ 3 and 4 of the Legal Services Act, which is why Themis did not become the owner of any cartel law damage claims, the court states in its press release.

Last Amendment of the Legal Services Act Not Considered

Lorenz: “We still do not share this view, as it does not take into account the last amendment of the Legal Services Act and also not the recent case law of the Federal Court of Justice, which significantly expanded the scope for collection class actions in Germany with its ruling of July 13, 2021 (Az. II ZR 84/20). We would have welcomed it if the Stuttgart District Court had been more open to the consolidated assertion of damage claims.”

About the Case:

The European Commission imposed a fine in the billions on various manufacturers of commercial vehicles, including Daimler AG, for antitrust violations with a decision dated July 19, 2016 (AT.39824 – Trucks).

On this basis and from assigned rights, Themis Schaden GmbH demands payment of cartel damages amounting to approximately 96 million euros plus interest from around 350 companies and the determination of the defendants’ liability for further cartel damages.

Foundation for the Area of Collection Services

Themis Schaden GmbH was founded in October 2016 by the European Freight Alliance of International Forwarders AG (ELVIS) as a 100% subsidiary and registered in February 2017 under § 10 Abs. 1 Satz 1 Nr. 1 RDG with the competent authority for the area of collection services. The companies are mostly ELVIS members and operate in the transport service sector. The vehicles in question from the brands Daimler, DAF, Fiat/Iveco, MAN, Scania, and Volvo/Renault were acquired by the companies in various ways (purchase, lease purchase, service leasing, financing leasing, etc.) and to varying extents (from one to about 1,600 vehicles per company).

Signet: © Themis Schaden AG