Albert Boehringer always led his company frugally, according to his biography on the Boehringer Ingelheim website. He founded the pharmaceutical group in 1885 by always demonstrating a good sense of “diligence and justice,” it says.
Today, Boehringer Ingelheim is the second-largest German pharmaceutical manufacturer with around €13 billion ($13.8 billion) in annual sales and almost 50,000 employees worldwide – by far the largest family-owned pharmaceutical manufacturer.
It is easy to wonder how Christoph, the founder’s great-grandson, strayed so far away from such principles. The 46-year-old Mr. Boehringer is currently on trial before Mannheim’s regional court. The member of the company’s important shareholder committee and head of the Boehringer Ingelheim Foundation is accused of insider trading, along with two other defendants. The alleged damages total almost €8 million ($8.5 million).
The Federal Court of Justice will have to decide whether the country’s lawmakers have inadvertently created general amnesty for market manipulators.
Despite Boehringer being a household name in Germany, the case has been largely ignored by the public. Mr. Boehringer has worked hard to keep it this way. A crisis advisor has gone great lengths to keep trial photos from surfacing. Online there are only a handful of pictures of the tall man and his wide smile to be seen.
However, the trial is of interest not only because a German billionaire from a well-known pharmaceutical dynasty sits in front of court. The dispute has implications far beyond Mannheim, into the boardrooms of various companies throughout Germany. The Federal Court of Justice will have to decide whether the country’s lawmakers have inadvertently created general amnesty for all market manipulators who committed their crimes before July 2016. On one day in particular, July 2, 2016, the criminal codes of the Securities Trading Act were not valid, according to Mr. Boehringer’s lawyers. Therefore, deeds that were committed before that date are exempt, they have argued.
This would not only benefit Mr. Boehringer, but also former Volkswagen boss Martin Winterkorn or VW supervisory board chairman Hans Dieter Pötsch. The Braunschweig public prosecutor’s office is currently investigating both men for market manipulation. Their alleged crimes also occurred prior to July 2016.
Thus, Christoph Boehringer is making a case on behalf of others in the Mannheim courtroom. His own alleged misdeeds date back to July 2008. At that time, he is said to have learned through internal channels that the biotechnology company Medigene was going to have problems with the approval of one of its drugs. Mr. Boehringer is said to have sold 540,000 shares before this information was made public. According to the public prosecutor, Mr. Boehringer was able to avoid a loss of around €660,000.
Allegedly even more profitable for Mr. Boehringer and his two co-defendants was the takeover of Microment. They are accused of acquiring more than one million shares of the pharmaceutical company between August and October 2011. When the U.S. company Amgen took over Microment, they profited handsomely. They are said to have come out €7 million ahead.
All three defendants, of course, deny this. And Christoph Boehringer, the first to comment on the allegations in the courtroom, defended himself eloquently, with extensive charts and slides. He wanted to prove the timelines of when information became public and that his sales and purchase projects were based on his own analysis and evaluations, he said.
His other defense strategy is based on two expert opinions. And to understand them, one must know that this year the German government allowed the Securities Trading Act to be adapted to European law. To this end, it prepared the Financial Market Amendment Act, which entered into force on July 2, 2016. It stipulated that the criminal codes in the Securities Trading Act, including insider trading and market manipulation, refer to the European Market Abuse Regulation. But it did not enter into force until July 3.
That is why, according to Mr. Boehringer’s defenders, crimes committed before July 3, 2016 are exempt, because according to the law, perpetrators must be held accountable to whichever regulation is the most lenient at the time.
However it is a strategy with a clear flaw: an acquittal due to legislation errors would not exactly be an overwhelming victory. This is probably why Mr. Boehringer’s crisis advisors have not allowed the defendant to speak with the press nor have they made the two expert opinions accessible.
One of the expert witnesses, constitutional law professor, Wolfram Höfling from the University of Cologne, did say that it’s clear from the legislative record that a mistake with the date had been made.
Whether this is true and what consequences it might have, federal courts will have to clear up. Ursula Charissé, the presiding judge of the business crimes court in Mannheim, has already made it clear that legislators hardly had general amnesty in mind. In the context of Mr. Boehringer, it seems likely that he’ll face a conviction before the Federal Court of Justice, or BGH.
The BGH is waiting for a rather interesting, possibly pioneering case. Judge Charissé has interrogated Mr. Boehringer in great detail about procedures and internal conversations on investments, including some with his cousin.
“High risk, high fun,” Mr. Boehringer had once written to his cousin. “Yes, that’s just my attitude,” Mr. Boehringer told the judge. Whether that attitude put him on the wrong side of the law remains to be seen. His great-grandfather, though, would likely be disappointed.
Jan Keuchel is a Handelsblatt correspondent covering the German legal system. To contact the author: firstname.lastname@example.org